# FILED
October 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9601-CC-00030 Appellee, ) ) WAYNE COUNTY VS. ) ) HON. WILLIAM B. CAIN, FRANKLIN J ENKINS, ) JUDGE ) Appellant. ) (Aggravated assault)

FOR THE APPE LLANT: FOR THE APPELLEE:
NATHANIEL H. KOENIG JOHN KNOX WALKUP 150 Second Ave., N., Suite 300 Attorney General & Repor ter Nashville, TN 37201-1902 (On appeal) LISA A. NAYLOR Asst. Attorney General SHARA FLA

CY 450 Jame s Roberts on Pkwy. District Public Defender Nashville, TN 7243-0493 LARRY NICKELL MIKE BOTTOMS Asst. Public Defender District Attorney General P.O. Box 1208 Pulaski, TN 38478 RICHARD H. DUNA VANT (At trial) Asst. District Attor ney General P.O. Box 304 Pulaski, TN 38478

OPINION FILED:____________________

REVERSED AND

REMANDED JOHN H. PEAY, Judge1 The indictment pr ovides, i n pertinen t part, that th e defendant “di d unlawful ly, intent ionally and kno wing ly by the u se of a dea dly we apo n, to w it: a 38 0 calib er pis tol, ca use [the vic tim] t o rea son ably fear imminent bodi ly i njury by hitt ing said [

victi m] in the mouth and di d shoot at [ the vict im] and did put the aforesai d pistol

in the chest

of [the v icti m] while stating he would killher, in violation of Tennessee Code Annotated 39-13- 102.” At the time thi s crime was committed, aggravat ed assault coul d be com mitte d by as sau lting s om eon e and caus ing se rious bodily in jury or using or dis playing a dea dly weapon. T.C.A. § 3 9-13-102(a)( 1) (Repl. 1991). The inst ant indi ctment suffici ently alleges agg ravated assault only by use or display of a deadly

weapon. The indi ctment contains no allegat ion of seri ous bod ily injury.

2 Effe ctive M ay 12, 1993 , agg rava ted a ssa ult be cam e eith er a C lass C or C lass D felo ny, depen ding upo n wheth er the as sault was com mitted inte ntionally or kn owingly, or rec klessly. See T.C.A. § 39-13-102 (Su pp. 1993). 2 O P I N I O N
The defendant was indicted for agg ravated assault committed by use of a deadly weapon. 1 A jury convicted him of Class D aggravated assault 2 and he was sentenced as a Range I standard offende r to three years incarceration. In this direct appeal, the defendant contend s that he is entitled to a new trial because the court below failed to instruct the jury on the lesser offense of assault. He also challenges the length of his sentence, contending that the trial court erred in ap plying certain enhancement factors. Upon our review of the record, we reverse the defend ant’s conviction and remand this matter for retrial.

Nadine Armstrong testified that on September 14, 1992, she had got ten into an argument with the defendant, her boyfriend. Accordi ng to Ms. Armstrong, the defendant hit her in the mou th and she ran in to another roo m. As she was runnin g, she heard a shot. She turned arou nd and saw the defendant standing in front of her with a gun. She testifie d that she just stood there and s tarted to scream. At that point, the defendant held the gun to her chest and threatened to kill her. She testified that she had been afraid for her life and asked him not to kill her. He subsequently took the gun down. A bullet was later recovered from the floor.

The defendant testified that, during the argument, the victim “ raised up the mattress on the bed and reached her hand under the bed, and I told her, I said, you better not be getting no gun. And I slapped her.” According to the defendant, the3

victim then went to her vehicle and when he nex t saw her in the house, “ she had a gun in her hand.” He testified that he had been scared and slap ped the gun with his left hand. At that point, he testified , “the gun hit the floor, and i t went off. And she was clawing at me, and I didn’t mean to hit her, but I hit her.” He testified that he subsequently retriev

ed the gun and threw it i nto the woods.

Assault is committed when a person “(1) Intentionall y, knowingly

or recklessly causes b

odily injury to another; (2) Intentionally or knowingly c

auses another to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly causes physical contact with another and a reasonabl e person would regard the contact as extremely o ffensive or provocativ

e.” T.C.A. § 39-13-101(a) ( Repl. 1991). Assault is a lesser g rade offense of aggravated assault. See generally State v. Trusty , 919 S.W.2d 305 (Tenn. 1996). At the time the instant cr ime was committed, aggravated assault occurred when a person committed an assault as define d in T.C.A. § 39-13-101 and used or displayed a deadly weapon, and it was a Class C felony. T.C.A. § 39-13-102(a) (1)(B) and (b) (Repl . 1991).

In 1993, our legislature rewrote the section of our Code dealing with aggravated assault. In pertinent part, aggravated assault was divided into Class C and Class D felonies, depending upon the defe ndant’s mens rea at the time he or she committed the offense. That is, aggr avated assaults committed intentionally or knowingly remain ed Class C felonies. How ever, aggravated

assaults committed recklessly became Cl ass D felonies. See T.C.A. § 39-13-102 (Supp. 1993). In this case, the court below i nstructed the jury under the revised versi on of aggravated assault. This was err

or. See T.C.A. §39-11-112 (Repl. 1991) (“Whenever any penal statute . . . is repealed or amended by a subsequent leg islative act, any offense, as defined by the statute . . . being repealed or amended, committed w hile such statute . . . was in full force and e ffect shall be prosecuted under the . . . statute in effect at the time of the commission of the of fense.”)4 The court below compounded its error by failing to instruct the jury on simple assault. “It is the duty of all judges char ging juries in cas

es of criminal prosecutions for any felony wherein two (2) or more grades or class es of offense may be included in the indictment, to charge the jury as to all of the law of each of fense included in the indictment.” T.C.A. § 40-18-110(a) (R epl. 1990). It is error

to fail to instruct the jury on the lesser offense(s) unless the record clearly show s that the defendant was guilty of the greater offense and is devoid of any evidence permitting an inference of guilt of the lesser offense. State v. B oyd , 797 S.W.2d 589, 593 (Tenn. 1990). In this case, the defendant tes tified that the victim had had the gun and that he hit her after disarming her. This testimony, if believ ed, would support a conv iction of simple assault: not aggravated assault by use of a deadly weapon. Accordingly, it was error for the tri al court to fail to instruc t the jury on the lesser

offense of assault. The trial court’s error

entitles the defendant to a new t rial. See, e.g. , State v. Summerall , 926 S.W.2d 272, 279 (Tenn. Crim. App. 1995). There r emains the issue, however, of which c

harges the defendant may be retr ied upon.
When the trial judge charged the jury under the new versi on of aggravated assault, he instructed it to first c onsider the offense of intentional or knowing aggrav

ated assault, the Class C felony. If the jury determi ned the defendant to be not guilty of this offense, it was then to consider the def endant’s guilt of reckless aggravated assault, the Class D felony. The jury returned a verdict of guilt of Class D aggravated assault. Obviously, then, it acquitted the defendant of intentional or knowing aggrav

ated assault. Equally

obviously, the defendant cann ot now be retried for that offense. See U.S. Const. amend. V; Tenn. Const.art. I, § 10. We see no double jeopardy viola

tion, however, in per

mitting the defendant to be retri ed for reckless aggrav

ated assault, as that offense exis ted at the time the offense was committed. That is, that the defend ant recklessly caused bodily injury to the victim and used or displayed a deadl y weapon. See T.C.A. §§ 39-13-102(a)(1)( B) and 39- 13-101(a)(1) (Repl. 1991 ). Accordingly, we remand this matter for a new trial on the3 The s entenc ing range for this offe nse wa s two to fo ur years. See T.C.A. § 40-35-112(a)(4).
4 Bodily injury committed during t he commission of a felony may be applied as an enhancement factor i n at least

two circumstances: where the defenda nt has been previ ously convicted of a fel ony that resulted i n death or bodi ly i njury, T.C.A. § 40-35- 114(11), and wher e the defendant

willfully inflicted bodily injury upo n anothe r person . T.C.A. § 40-35-1 14(12). 5 charge of reckless agg ravated assault under T.C.A . § 39-13-102(a)(1)(B) (Repl. 1991) and, to the extent supported by the evidence, all lesser offense s.

The defendant also contends that the trial court erred when it en hanced hi s s en te nce b as edon hi s u se of a f ir ea rm an d cau si ngin

ju ry to an ot he r p er

so n. We first note that, in sentencing the defendant, the court below also noted as an enhancement factor that the def endant committed the crime while on parole. This was appropriate. See T.C.A. § 40-35-114(13). The defendan t’s prior criminal history serves as yet another

enhancement factor. T.C.A. § 40-35-114 (1). Thus, while our disposition of this case rend ers this issue moot, w e find that a mid-range sentence of three years 3 was appropriate given these two enhancement factors alone. However, we further note that use of the enhanceme nt factor for possession or use of a firearm during the commission of the offense, T.C. A. § 40-35-114(9), is impr oper when sentencing for a conviction of aggravated assault by use or display of a deadly weapon. This enhancement factor is an essential element of the offense and therefore may not be used. T.C.A. § 40-35-114. Similarly, enhan cement on the basis that the reckless aggr

avated assault resulted i n bodily injury t o another person 4 is not appropriate because bodily injury is an element of r eckless assault. See T.C.A. § 39- 13-101(a)(1) (Repl. 1991 ).

With respect to resentencing followi ng retrial of this matter,if the defendant is again convicted of reckless aggrav

ated assault, the conviction must be treated as a Class D felony for punishment purposes. See T.C.A. § 39-11-112 (“[I]n the event [a] subsequent [l egislative] act pr ovides for a lesser penalt y, any punishment imposed shall be in accordanc e with the subsequent act .”) The legislature’s revision to the aggravated assau lt section of our Code prov ides for a lesser penalty for6

reckless aggravated assault than did the prior statute. Accordingly, the defendant is entitled to the lesser penalt y if he is reconvic

ted of the same offense.
The court below having committed reversible er ror, we reverse the defendant’s conviction for aggravated assault and remand this m atter for a new trial in accordance with this op inion.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ WILLIA M M. BARKER, Judge

______________________________ JERRY L. SMITH, Jud ge