### FILED August 17, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JULY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9901-CR-00047 Appellee, ) ) HAMILTON COUNTY VS. ) ) HON. STEPHEN M. BEVIL, JERRY WAYNE ALEXA NDER, ) JUDGE

) Appellant. ) (Attempted Secon d D egree Murder ; ) Aggravated Assault)

FOR THE APPELLANT : JOHN C. CAVETT, JR. Pioneer Bank Bu ilding 801 Broad Street, Suite 428 Chattanooga, TN 37402 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General MARK A . HOOTON Assistant

District Attorney

General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 OPINION

A Hamilton County jury convicted defendant, Jerry Wayne Al exander, of attempt to commit murder in the second degree and aggr avated assault. The trial court se ntenced hi m to ten and five years, r espectively, and orde red the terms to run concurrently. In this appeal as of right, defendant raises two issues: (1) whether

the trial court erred b

y failing to

instruct thejury on reckless endangerment as a lesser offense of aggravated assault; and (2) whether

the evidence was sufficie nt to supp ort th e verdicts. We find no reversible error and AFFIRM the trial court’s judg ment.

FACTS

On June 18, 1996, Chatta nooga police officers, Todd Royv al and Glenn Scrugg s, were o n patrol at a Hamilton County housing development. They were looking fordefendant in order to serve ar rest warrants unrel ated to this case. Soon afterthey started thei r shift, they sa w defend ant in th e front passeng er seat of a green Cutlass. Ro yval pulled the marked patrol car in behind the sl ow-moving Cutlass, activated his blue lights, and sounded the siren several times. The Cutlass did not stop for s

ome distance, but subsequently pulled into a parking ar ea surrounded on three sides by apartment buildings.
Royval stopped the patrol car at an angle facing the Cutlass’ passenger-side door. He and Scruggs got out and started walking towards the Cutlass. However, they stopped when they saw defendant reach down and come back up to the window with an S KS 7.62 millimeter assault r ifle.

Defendant leveled therifle and began firing toward the officers. Royval w as onlyabout ten fe et from the de fendant an d dropped to th e ground. Scruggs scrambled to the back o f the patrol car for cover. An inspection of the patrol car1 At first glance, defendant’s brief appears unclear as to whether he assigns as error the

failure to give an instruction on reck less endangerment for both attem pted first degree murder and aggravated assault. Since he asserts in his brief that reckless endangerm ent is “a lesser included offense of assault,” we assume the alleg ed error relates only to the charge of a ggravated assault. Regardless, it would appear that reck less endangerment is neither a lesser inclu ded nor lesser grade offense of attempted first degree m urder. See generally State v. Trust y , 919 S.W.2d 305, 312 (Tenn. 1996).
3 later revealed a bullet hole i n the rear driver-s ide q uarter p anel, approximately twelve to fourteen inches from where Royval was standing. Both officers returned gunfire as the Cutlass pull ed away with defendant hang ing out the window.
Roy val and Scruggs chased the Cutlass until it stopped and contin ued th e pursuit on foo t when the suspects abandoned it. Defendant ran into a nearby apartment where Royval a nd Scruggs apprehended hi m. Royval found the assault rifle in the front seat of the Cutlass with a live round jammed in the chamber and an “off-the-market” thirty-round magazine clip holding twenty-two additional rounds.
The defense presented no proof at trial.

Based upon this evidence, the jur y convicted the

defendant of the attempted second degree murder of Officer Royv al and aggravated ass ault upon Of fic er Scruggs.

JURY INSTRUCTION

Defendant claims the trial court committed reversib le error by failing to charge reckless endangerment as a lesser included offense of aggr avated assault. 1 We respectfully disagree.

Firstly, we note this issue was no t raised in the motion for new trial. Thus, it is waived. See

Tenn. R. App. P . 3(e). Although this Court has the authorit y to4

address this issue if it involves “plain error,” see Tenn. R. Crim. P. 52 (b ), we conclude there is no plain er ror.

The indictment charged aggravated assault by intentionally or knowingly causing the victim to reasonably fear imminent bodily injur y by us e of a d eadly weapon. See

Tenn. Code Ann. § 39-13-102(a)(1)(B). Reckless endangerment is reckless conduct w hich places the victi m in “imminent danger of death or serious bodily injury.”

Tenn. Cod e Ann. § 39-13-103(a). If committed with a deadly weapon, reckless endangerment is a Class E felony. Tenn. Code Ann. §39-13- 1 03(b ). Regardless of whether reckless endangerment is a true lesser included offense o f agg ravated assault, it is certainly a lesser grade offense and must be charged when justified by the ev idence. See State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997).
However, the trial court does not hav e to charge the jury w ith a le sser included or lesser grade offens e where the record cle arly shows that the defendant was guilty

of the greater offense, and the record i s devoid of evidence permitting an i nf erence of guilt on the lesser offense. State v. Langford , ___ S.W.2d ___, ___ (Tenn. 1999). “Obviously, where ‘there is n o proof in the record which would support the instruction,’ no jury instruction on a lesser offense need be su bm itted to the jury.” State v. Elder , 982 S.W.2d 8 71, 877 (Tenn. Crim. App. 1998)(citing State v. Trusty , 919 S.W.2d 305, 311) (Tenn. 1996)).

“Plain error” or “fundamental error” is recognized under Tenn. R.Crim. P. 52(b)

. State v. Stephenson , 878 S.W.2d 530, 553 (Tenn. 1994). It must affect a “substantial right” which i s a right of “fundamenta l p roportions in the indictment process, a right to the

proof of every element of the offense, an d is constitutional in nature.” State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). It is an egregious

error that strikes at

the “fairness, integrity

or public reputation of

judicial proceedings.” Id

. (citing United St ates v. Rodriguez , 882 F.2d 1059, 1064 (6th Cir.5

1989)).

In the instant case, the record unequivocal ly establishedthat the defendant acted intentionally and knowingly and caused Offic er Scrugg s to fear imminent bodily injury by firing

at him with an assault r ifle. The trial court did charg e the lesser offense of simple assault. The jury opted to find the defendan t guilty of aggravated assault and declined to convict o n simple assault. The failure to instruct on reckless endangerment did not strike at the fairness, integrity or public reputation of the proceedings. If the tr ial court did err in refusing to instruct on reckless endangerment, it clearly did not constitute “plain error.”

This issue is without merit.

SUFFICIENCY OF THE EVIDENCE

Defendant charges that the evidence presented at trial was insufficient t o convict him of the attempted second degree murde r of Royval and the aggravated assault upon Scruggs.

Defendant claims that the case again st him “hinged totally upon the [officers’] testimo ny” and that their “testimony must b e anal yzed in light of thei r emotional state.” These contentions are misguided. Great w eight is given to

the jury verdict in a criminal trial, and i

t accredits the state’s w itnesses and resolves all conflicts in the state’s f avo r. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, this Court does not re weigh or reevaluate the evidenc e. State v. Cabbage , 571 S.W.2d 832, 835 (Te nn.1978). Nor may this Court substitute its inferences for those draw n by the trier

of fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (19 56). To t he contrary, this Court is required to afford the state the strongest legitimateview of the evidence contained in the record as well as all reasonab le and6

legitimateinferences which may be drawn from theevidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn . Crim. App.1995). Furthermore, a g uilty verdict r eplaces the presumpti on of inn ocence with a presumption of guilt which appellant must overcome on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).

The proof at trial showed that Officers Royval and Scruggs stopped a vehicle in which defendant was a passenger. The officers approached within ten feet of the car’s passenger window when they

saw defendant level a military-style assault rifle at them. When defendant fired at them, Royval dropped to the ground and S cruggs ran for cover. The frightened officers returned the gunfire. When Royval recovered the rifle, a live round was jammed in its chamber wit h seve n rounds missing from a thirty-round magaz ine clip.

Given the presumption of guilt and v iewing the evidenc

e i n the light

most favorable to the state, we find the overwhelming proof more than sufficient to uphold defendant’s convictions. This issue is without meri

t.

CONCLUSION
Based upon the foregoing, w e AFFIRM the judgment of the trial cour t.

____________________________ JOE G. RILEY, JUDGE

CONCUR:7

____________________________ GARY R. WA

DE, PRESIDING JUDGE

____________________________ DAVID H. WELL ES, JUDGE