### FILED August 6, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1999 SESSION

STATE OF TENN ESSEE, * C.C.A. # 03C01-9810-CR- 00369

Appellee, * HAMILTON CO UNTY VS. * Honorable Step hen M. Bevil, Judge JOSEPH AZELL L EE, * (Attempted Aggravated As sault) Appellant. *

FOR THE APPELLANT : FOR THE APPELLEE : TOM LANDIS PAUL G. SUMMERS 744 McCallie Avenue, Sui te 327 Attorney General & Repor ter Chattanooga, TN 37403 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General MARK A. HOOTON Assistant District A

ttorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED: _______________

AFFIRMED - RULE 20

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The defendant, Joseph Azell Lee, appeals his conviction for attempte d aggravated assault. The defendant was indicted for agg ravated assault and attempted escape. At the close of proo f at trial, the trial cour

t granted the defendant’s motion for a judgment of acqui ttal on the aggravated assault count. Nevertheless, the tri al court did submit to the j ury the lesser incl uded offense of attempted aggravated assault. The defendan t argues that the proof at trial did not support attempted aggrav ated assault and that the trial court therefore erred in instructing the jur

y on that offense. We find no error and AFFIRM t he judgment of the trial court.
On August 29, 1996, Officer Ronald Rice of the Ham ilton County Sheriff’s Department transported the defendant from th e Hamilton County Jail, where he was incarcerated, to t he county health department for a s cheduled examination. After the defendant’s examination, R ice escorted the defendant back to th e police car. When Rice moved in front of the defendant to open the passenger door, the defendant attacked him. Dur ing the ensuing strug gle, the defendant grabbed Rice’s handgun. Rice reacted by immediat ely placing both of his hands on the weapon and holding it down in the holster. Bec ause both of Rice’s hands were occupied, the defendant w as able to strike Rice in the face several times with his free hand. The defendant als o bit Rice on the back duri ng the struggle. Ultimately, Rice w

as able to attract the attentio n of another police officer, and the two subdued the defendant.

The defendant was indicted and tried bef ore a jury for aggravated assault (by use of a deadly w

eapon) and attempt to escape from a penal i nstitution. At the close of proof, the trial cour t granted the defendant’s motion for a judgment-3- of acquittal on the aggravated assault count. Nevertheless, the trial court instructed the jury on the lesser included offenses of attempted ag gravated assault and assault. The jury returned verdicts of g uilty for attempted escape and attempted aggravated assault, and the defe ndant was sentenced as a career of fender to six mont hs and twe lve years res pectively.
The defendant’s argument that the tria l court should not have i nstructed the jury on attempted agg ravated assault because the proof did not support that offense is without merit. The st ate introduced sufficient proof to suppor t the offense of attempted aggravated assault, and the trial court w as required to charge lesser included

offenses supported by the eviden ce. See State v. Forbes , 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). The ev idence supports the jury’s verdi ct, and we find no error of l aw mandating revers al. Therefore, pursuant to Rule 20 of the Court o f Criminal Appeals, we AF FIRM the judgment of the trial court.

_____________________________ JOHN EVERETT W ILLIAMS, Judge
CONCUR:

_______________________________ JAMES CURW OOD WIT T, JR., Judge

_______________________________ ALAN E. GLENN, Ju dge