1 In Stat e v. Bur ns , our supreme court set forth a three-part tes t for determining lesser-included offenses. Part

(a) of the test provide s that an offen se is a lesser-included offense if “all of its statu tory elem ents ar e inclu ded with in the st atutory el ements of the off ense charged.” 6 S.W.3d 453, 466 -67 (Tenn . 1999). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON June 16, 199 9 Session STATE OF TENN ESSEE v. KHANH V . LE Appeal from the Criminal Court for Shelby County No. 96-01 118 W. F red Axley, Judge
No. W1998- 00637-CC A-R3-C D - File d January 25, 2002 No. W2001- 01615-CC A-RM- CD - F iled Janu ary 25, 2002

D AVID H. W ELLES , J., concurring. I concur with the majority opinion that this case must be reversed and remanded

for a new trial due to the trial court’s failure to instructon lesser

-include d offens es. I

write se parately b ecause I disagree with the statement in the majority opinion that “a fa ilure to in str uct a jury on lesser
included offense s will only be found harmlessbeyond a re asonable doubt under the circumstances presented” in State v. Will iams , 977 S.W.2d 101, 106 (Tenn. 1998).
For those offenses which are lesser-included of others under part

(a) of the Burns test, 1 proof of the greater

offense will alway s provide proof of the lesser offense. See, e .g. , State v. Bowles , 52 S.W.3d 69, 80 (Tenn. 2001) (noting that, “[i]n p

roving r obbery , . . . the Sta

te also proved [the lesserincluded offense of] the ft, forall of the elements of theft are included within the elements of-2-

robbery .”) Thus, under the reasoning of Bowles , it would be error to fail to charge such alesserincluded offense. Where pr oof of the additiona l element require d for the

great er offe nse is ce rtain and undisputed, however, I would find any error in failing to give the les ser-includ ed offe nse instruction harmless beyond a r easonable doubt.
For instance, the accused commits an aggr avated a ssault with

a gun. T here is a bsolutely no question or dispute

about the defenda nt’s use of the gun in committing the assa ult. Clear ly, assault is a lesser-included offense of ag gravated assault, under part (a) of the Burns test. However, in order to convict the defenda

nt of assa ult instea d of ag grava

ted assa ult, the jur

y in this hy pothetic al would have to ignore the fact that the gun wa s used. A reasonable jury would not do this, and therefore I believe that any

error b y the trial c ourt in fa iling to g ive an ins truction o n assault would be h armless bey ond a rea sonable d

oubt.
In applying this standar

d of review, I find helpful the United States Supreme Court’s opinion in Chapman v . Califor

nia , 386 U.S. 18 (1967). In that case, the Supreme Court was called u pon to determine whether a trial error violating an accuse d’s federal constitutional rights could be harmless . Id. at 20. The Court con cluded that such error could be harmless, and suggested that a r eviewing court resolve the issue by determining “‘whether there i s a reasonabl e possibility that the [error] complained of mighthave contributed to the conviction.’” Id. at 24, quoting Fahy v. Connecticut , 375 U.S. 85, 86-7 (1963) (emphasis added). When the reviewing court can declare a belief that the error was har mless bey ond a rea sonable doubt, reversal is not

required. Chapman , 386 U.S. at 24.-3-

Where the evidence adduced at trial is such that there is no re asonable possibility that the jury would have convicted the defendant of the lesse r-inc luded offens e, oth er than throu gh its de facto power of nullification, then I believe any error in failing to give

the instruction is harmless beyond a reasona ble doubt. I

do not interpret the decisions of our supreme court to restrict a ha rmless error analysis solely

to the circumstances presented in Williams .
I concur in all other re spects with the majority opinion.

___________________________________ DAVID H. WELLES, JUDGE