### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE September 7, 2000 S ession

STATE OF TENNESSEE v. GUY WILLIAM RUSH

Appeal from the Co

urt of Criminal Appe

als Criminal Court for Sullivan County No. S38259 R. Jerry Beck, Judge

No. E1998-00592-SC-R11-CD - Filed April 6, 2001

Guy William Rush

was indicted and tried for one count of attempt to commit second degree murder and one count of aggravated assault. On the attempted second degree murder count, the trial court instructed the jury on a number of lesser-included offenses, including attempted vol untary
ma nslaughter; intentional or knowing aggravated assault accompanied by serious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. The jury convicted Rush of the lesser-included offense of reckless aggravated assault. Rushappealed, challenging the trial court’s instructions on lesser-includ ed offenses,

and the Court of Criminal Appeals a

ffirmed. Applying

the lesser-inclu

ded offense test

establis hed in State v. Burns , 6 S.W.3d 453 (Tenn. 1999), we conclude that neither reckless aggravated assault nor felony reckless endangerment are lesser-included offenses of attempted sec ond degree murder. We

con clude, h owever, that the offense of misdemeanor reckless endangerment is a lesser-included offense of attempted second

degree murder a

nd that the trial co

urt erred in fail

ing to so instruct the jury. Accordingly, we reverse the judgment of the Court of Criminal Appeals and rema nd the cause for a new trial in accordance with this opinion.
Tenn. R. App. P. 11 Appeal by Permission ; Judgment of the C ourt of Criminal App

eals Reversed; Remanded for New Trial

A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., J ANICE M. H OLDER and W ILLIAM M. B ARKER , JJ., joined. F RANK F. D ROWOT A , II I, J., not participating.
Mark D. Harris (at trial and on appeal) and Richard A. Spivey (at trial

), Kingsport,

Tennessee, for the appellant, Guy William Rush.

Paul G. Summers, Attorney General an d R eporter, Michae l E. Moore, Solicitor

General, Dary

l J. Brand, Associate

Solicitor Genera

l, Erik W. Daab, A

ssistant Attorney G

eneral, H. Gre

eley Wells, Jr., District Attor

ney General,

and Edward E. Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.1 At the time of the events at issue i

n this case,

Guy and Tina Rush had been divorced for approximately thre e and one half years. They conti nued to encounter one another regular ly, mainly because thei

r daughter visit

ed Guy Ru sh every other wee

kend.

-2- OPINION
I. Facts and Procedural History

On October 1, 1995, Tina Rush 1 and a friend, We ndy Crowe, went to t

he Station Bar in Sullivan County to play pool and watch television. They arrived at the bar between 3 and 3:30 p.m. Approximately

three hours later, Guy William Rush (Rush), the defendan t, entered the bar accompanied

by his friend, Larry A. “Pete” Gross. While in the bar, Rush and Tina Rush conversed amicably.

Later that evening, at the bar, Gross became invol ved in an argument with Jimmy Cullop, and the owner of the bar asked Gross to leave. Gross and Rush were escorted outside; they loitered in the parking lot. Between fifteen minutes and one hour later, Crowe and Tina Rush left the bar. As they were leaving, they paused to speak with Cullop, a forme

r boyfriend of Tin

a Rush. Shortly thereafter, Rush approached Tina Rush and initiated a conversation. At some point in the conversation, Tina Rush apparently be lieved that Rush inte

nded to fight with Cul

lop, so she told Rushto leave Cullop alone. This caused an altercation, during which Tina Rush sprayed Rush’s face withpepper

spray, and

Rush struck Tina Rush in the jaw with his fist. Crowe retreated into the bar to call the police, and while she was inside the bar, Rush pulled a knife from his pocket and stabbed Tina Rush in her right elbow and under her left breast. He then seized her from behind and stabbed her twice in the back.

When C rowe e merged from the bar, she pulled Rush away from Tina Rush. Rush made stabbing motions toward Crowe with his knife but did not stab her, possibly because his vision had become blurredby the pepper

spray. Eventuall

y, the owner of the

bar forced Crow

e and Tina Rush back inside the bar , leaving Rush in the parking lot, wher

e police soon arr

ived and arreste

d him. Tina Rush was transported by ambulance to Bristol Medical Center, where she was treated for multiple puncture w

ounds. She remaine

d hospitalized for

four days.

Rushwas tried by a Sullivan County jury on one count of attempted second degree murder of Tina Rush (Count I) and one count of aggravated assault of Wendy Crowe (Count II). At the conclusion of trial, the trial court instructed the jury on several lesser-included offenses. Pursuant to Count I, the trial court instructed the jury regarding attempted second degree murder; attempted voluntary manslaughter; inte ntional or knowing a

ggravated assa

ult accompanied by s

erious bodily injury; reckless aggravated assault accompanied by serious bodily injury; and assault accompanied by bodily injury. With respect to Count II, the trial court gave instructions regarding intentional or knowing aggravated assault by use of a deadly weapon; reckless endangerment by use of a deadly weapon; and assault by ca using another to re

asonably fear im

minent bodily

injury. In addition, the2 Because we find that the reckless aggra

vated assault i

nstruction was err

oneous, we need not address whether the evide nce wo uld hav e suppo rted a con viction fo r reckless ag gravated assault.

-3- trial court instructed the jury on the defenses of self-defense and necessity. The jury convicte d Rush of reckless aggravated assault with respect to Count I but acquitted him with respect to Count II.

Rushappealed, contending in ter aliathat (1) reckless aggravated assault is not a lesserincluded offense of

attempted second degree murder, and therefore the trial court erred in instructing the jury on the offense of reckless aggravated assault; (2) the evidence was insufficient to support

a conviction for reckless aggravated assault; and (3) the trial court erred in failing to instruct the jury

on the offense of felony reckless en danger ment as a lesser-included offense of attempted second degree murder. The Court of Criminal Appea

ls affirmed the r

eckless aggravated assault conviction. We granted appeal, limited to the three issues discussed above, in order to clarify the proper analysis to be employed in determining what instructions should be given to t he jury regarding lesserincluded offenses. Afte

r reviewing rele

vant authority, we

conclude that the

trial c ourt erred in instructing the jury on the off ense of reckles s aggravated as sault. 2 We further conclude that the trial court did not err in failing to i nstru ct the jury on the of fense of felony r

eckless endange

rment. However, we find

that misdemeanor reckless endangerment is a lesser-included offense of second degree murder and that the trial court erred in failing to instruct the jury regarding thi s offense. Therefore, we reverse the judgment of the Court of Criminal Appeals, and we remand the cause to the trial court for a new trial consistent with this opinion.

II. Standard of Review

The question whether a given offense should be submitted to the jury as a lesser-included offense is a mixed question of law and fact. State v. Smiley , ___ S.W.3d ___ (Tenn. 2 001). T he

s tandardof review for mixed questions of law and fact is de novo with no presumption o f correctness. Id. ; see also Aaron v. Aaron , 909 S.W.2d 408, 410 (Tenn. 1995).
III. Analysis

A. Lesser Includ

ed Offenses Ge

nerally

In criminal prosecu

tions, the accuse

d has a right to fai

r and reasonabl

e notice of the charges to be defended. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Because of this right to notice, the accused may be convicted only of a cri me which is rais ed by the indictment or which is a lesserincluded offense thereof. See Hagner v. United States
, 285 U.S. 427, 431, 52 S. Ct. 417, 419, 76 L. Ed. 861 (1932). Under the TennesseeRules of Criminal Procedure, an offense is defined as a lesserincluded offense if it is “n ecessarily inclu

ded in the offense

charged.” Ten

n. R. Crim. P. 31(c). A trial court has the duty to instruct the jury “on all lesser-included offenses if the evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.” State v. Langford , 994 S.W.2d 126, 128 (Tenn. 1999). This mandate applies “whether or not a defendant requests such an3 In State v. Tru sty , we briefl y expanded our les ser-inc luded offens e ana lysis to encompass “lesser-grade” offenses, defined as

those offe

nses loca ted withi n the same stat

utory part

as the char

ged offense but

containi ng differe

nt

or additiona l elemen ts than the ch arged o ffense. See State v. Tru sty , 919 S.W.2d 305, 310-11 (Tenn. 1996). How ever, the lesser-grade offense analysis of Trusty proved to be unw orkable in applicatio n and h as been a bando ned. See Burns , 6 S.W.3d at 465.

-4- instruction.” State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999); see also Tenn. Code Ann. § 40-18- 110(a) (1999) (providing

that trial judges in

felony prosecuti

ons “wherein two or more grades or classe s of offen se may be included in the indictment” have a duty to charge the jury as to each offense “without any request on the part of the defendant to do so”).
Historically, Tennessee has followed a “statu tory elements” approach to defining lesserincluded offenses. 3 See State v . Dominy , 6 S.W.3d 472, 476 (Te nn. 1999); Howard v. State , 578 S.W.2d 83, 85 (Tenn. 1979) . Generally speaking, an offense qualifies as lesser-included under the statutory elements approa ch only when the element

s of the lesser off

ense are a subse

t of the elements of the greater offense. See Schmuck v. United States , 489 U.S. 705, 716, 109 S. Ct. 1443, 1450, 103 L. Ed. 2d 734 (1989); see also James A. Shellenberger and James A. Strazzella, The Lesser-included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeop ard y Remedies
, 79 Marq. L. Rev. 1, 6-11 (1995) . In Dominy , w e described Tennessee’s statutory elements approa

ch as follows:

[A] determination of w heth er an offense [is] lesser-included involve[s] a comparison of the statuto ry elements of the offense charged in the indictment with the statutory elements of the of fense alleged to [be] l

esser-included

. Under this test, a

n offenseis lesserincluded if all its elemen t s are contained within the elements of the offense charg

ed in the indictmen

t.
Dominy , 6 S.W.3d at 476.

In State v. Burns , however, we recognized that strict adherence to th

e statutory eleme

nts test may unfairly disadvantagethe accused. 6 S.W.3d at 465. As we stated in Burns , “Application of the statutory element

s test . . . may preclude instruction on a lesser related offense where that lesser offense contain

s an element not re

quired for the gr

eater offense . Thus, in some cases, application of the [statutory elements] analysis may deprive the defe ndant of the right t

o present a

defense.” Id. In order to remedy this problem, we adopted a modified version of t he American Law Institute’s Model Penal Code definit ion of lesser-inc

luded offenses,

which broadens so

mewhat the statuto

r y elementstest in

order to rectify

its disadvantages . In outlining the te st to be followed by

trial courts in determining whether one offense is a lesser-included offense of another, we stated:

An offense is a lesser-included offense if:4 In addition to the lesser -included offense test outlined above, of course, an offense can also be a lesserincluded offense of a greater offense i

f it i s so desi

gnated by the

legislat ure. Burns , 6 S.W.3d at n.12 (cit ing, e.g. , Tenn. Code Ann. § 39-15-401(d) ( Supp. 1998) (des ignating c hild abuse or neglect

as a les ser-inc

luded offens e of any kind of homicide, statut

ory assault, or sexual offense i f the victi

m is a child and the evidence suppor ts the c harge); Tenn. Code Ann. § 55-10-415(c) (1998) (desi

gnating the

offense of underage drivi ng while impair

ed as a lesser-i

ncluded offense of driving while intoxicated)).

-5-

(a ) all of its statutory e lements are inclu

ded within the sta

tutor y elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a les se r kind of culpability; and/or
(2) a less serious harm or r isk of harm to the sa

me person, prope

rty or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense tha

t otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-inc lu ded offense in part (a) or (b); or
(3) solicitation to commit the offense char ged or an offense that otherwise meets the definition of lesser- in cluded offense in part (a) or (b).

Id. at 466-67. 4

The Burns test thus provides a three-part ana

lysis for determin

ing whether one of

fense is a lesser-included

offense of a greater offense. Part (a) represents a strict statutory element

s test, under which an offense can only be a lesser-include

d offense if

all of its elements are contained within the elementsof the greater offense. I d. at 467. Parts (b) and (c) represent exceptions to the strict applicat io n of the statutory elements analysis. Under part (b), an offense may still be a lesserincluded offense despite h aving a d ifferent element if the differing element reflects a less serious harm or risk of harm or involves a differing mental state indicating a lesser kind of culpability. Id. Importantly, however, the an alysis under part

(b) is more narro

w than the corre

spondin g analysis espousedby the Model Penal Co de because the s

tatutory elements

in question remain the focus of5 Because the elem ents of reck less aggrav ated assau lt and felony reckless endangerment do not constit ute the facili tation, attempt, or solici tation of attempted s

econd degree murder, part (c) is not implicated in this case and bears no further discussi

on here.

-6- the inquiry. See id. Under part (c), the inchoate offenses of facilitation, attempt, and solicitation are designatedto be lesser-included offenses in cases where the e vide nce would support a conviction for the inchoate offense. 5 Id.

Once an offense

is determined to

be a lesser-included offense, Burns provides that the trial court then must determine whether the evidence adduced at trial would support a conviction for that offense. Id. at 467-68. To make this determination, the Burns Court directed,

First, the trial court mus

tdetermine whether

any evidence exists that reasonable

minds could accep

t as to the le sser- included offense. In making this determination, the trial c ourt must view the evidence liberally in the light most favo ra ble to the existence of the lesserincluded offense without making any judgments on the credibility of such evidence. Second, the trial court must determine if the evidence, viewedin this l ight, i s legally sufficient to support a conviction for the lesser-included offense.

Burns , 6 S.W.3d at 469. If t he trial court fin

ds that the offens

e is lesser-included and theevidence would support a convicti on for that offense, then it has a duty to instruct the jury regarding the lesser-included offense. Id.
B. Reckless Aggra vated Assault
Applying the Burns test to the offenses at issue in the case under submission, we find that reckless aggravated assault is not a lesser-included offense of attempted second degree murder. Because second degree murder is defined in pertinent part as “[a] knowing killing of another,” the offense of attempted second degree murder requires proof o

f the following ele

ments: (1) a knowing (2) attempt, (3) to kill another. See Tenn. Code Ann. §§ 39-13-210(a)(1) (1999) (defining second degree murder); 39-12-101 (1999) (defining cri minal attempt). By comparison, the aggravated assault statute provides in

pertinent part tha

t a defendant co

mmits aggravated a

ssault when he or she “[r]ecklessly

commits an assault as defined in § 39-13-101(a)( 1) [in other word s, ‘recklessly causes bodily injury to another’], and (A) causes serious bodily injury to another; or (B) uses or displays

a deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(2) (1999) see also State v. Hammonds
, 30 S.W.3d 294, 298 (Tenn. 200 0)(discussing the

elements of aggr

avated assault) . Therefore, r eckless aggravated

assault requires proof of the following: (1) reckl e ssly (2) causing bodily injury to another and (3) either (a) the bodily injury is serious or (b) a deadly weapon is displayed. See id. T hus, under part (a) of the Burns test, reckless aggravated assault cannot be a lesser-included offense of seconddegree murder b

ecause reckle

ss aggravated a

ssault requires proof of either (a) serious bodily6 Indeed, it would b e theoretica lly possible for a defenda

nt to beguilty of

second degree murder even though the intend ed victim was com pletely un aware o f the attem pt.

7 Even if elemen ts reflecting an intent low er on the h ierarchy w ere treated a s differing e lements, th e same re sult would be reach ed und er part (b)(1 ), for lesser-h ierarchy in tent elem ents also refle ct a lesser degree of culpabilit

y. Since such elements ar

e not trea

ted as di ffering, however, the a

nalysis under part (a) of Burns s uffices and it is simply n ot necessary to use part (b)(1). Part (b)( 1) is nece ssary, howeve r, when an offe

nse has a di

ffering ment

al stat e element which does not neatly fi t within the hie

rarchy (e.g., vol

untary manslaughter as a l esser-incl

uded offense of firs

t degree murder).

-7- injury or (b) bodily inju

ry an d display of a deadly weapon, neither of which is required to prove attempted second degree murder. 6
Having found tha t par t (a) of the Burns test does not apply, we turn to part (b). Part (b) continues the elements-based analysis of the prior part. Initially , we focus upon what

the differing element or elements indicate. If the differing element indicates a “different mental state,” then the defendant must demonstrate that the element satisfies part (b)(1) of the Burns test. If the of fense is related to the ha

rm posed by th

e offense, then

the defendant mus

t demonstrate that

it satisfies part (b)(2). If the offense c ontains di ffering e lement s related to both me ntal state and har

m, then both (b)(1) and (b)(2) must be satisfied.

The offense at issue here, reckless aggravated assault, appe ars to contain two elements which differ fr om the elements of attempted second degree murder: (1) the reckless intent element; and (2) the element requiring proof of either serious bodily injury or bodily injury

and display o

f a deadly weapon. The reckless intent element, howeve

r, actually is not a differing

element. Because lesser levels of the statutory hierarch y of mental

states (intentiona

l, knowing, rec

kless, and crimina

lly negligent)

are included within the greater levels pur suan t to Tenn. Code Ann. § 39-11-301(a)(2) (2000), an intent element which differs from the intent element of the charged offense only by one of these lower-hie

rarchy me ntal states is not ac

tually treated as a dif

fering elemen

t. 7 In this case, the reckless intent element of reckless aggravated assault is lower on the statut or y hierarchy than the knowing intent element of second degree murder. T hus , it is included within the knowing intent element of attemp

ted second degr

ee murder and is n

ot considered a d

iffering eleme

nt.

Con seq uen tly, the only truly differing ele ment in reckless aggrava ted assault is the requirement

of either seriou

s bodily injury or bodily injury

and display o

f a deadly w

eapon. While this requirement is related to the harm contemplated by the offense, par t (b)(2) is not satisfied bec ause the differing e

lement does not re

flect a “less ser

ious harm or risk of

harm to the sa

m e person, pro pert y, or public interest.” One might argue that the harm contemplate

d by the elements of attempted second degree murder, death, is more serious than the bodily injury contemplated by the elements of aggravated assault. However, under the narrow reading of part (b) required by Burns , such an argument is not persuasive. In order to convict a defendant of reckless aggravated assault, the State

must prove that either bodily injury or serious bodily injury has occurred. In order to convict a defendant

of attempted second degree murder, on the other hand, the State does not have to p rove any bod ily injury at all, for an attempt to kill does not necessarily result in injury to the-8-

victim. Thus, the harm contemplated by the bodily injury element of reckless aggra

vated assault is not less serious than the harm contemplated by the attempted killing element of attempted second degree murder because

many attempted mur

ders do not involve

any injury at all to t

he victim, whereas a reckless aggr

avated assault a

lways involves bodi

ly injury. Consequently, part (b) is not satisfied, and therefore, reckless aggravated assault is not a lesser-included offe nse of atte

mpted second degree murder under the Burns test.
C. Felony Reckless Endangerment

A similar analysis applies to the offense of felony reckless endangerment. Th e reckles s endangerment

statute provides that a person commits felony rec

kless endangerment if he or she (1) recklessly (2) “engages in conduct which places or may place another perso n in imminent danger of death or serious bodily injury” and (3) a deadly weapon is used. See Tenn. Code Ann. § 39-13- 103(a), (b) (1999). Because proof of use of a deadly weapon is always required for a felony reckle

ss endangerment

conviction but

is not required for an attempted second degree murder conviction, and because the deadly weapon element doe s not reflect an intent requirement indicating lesser culpability

or a less serious risk of harm, neither part (a) nor part (b) of the Burns test is satisfied. The refore, like reckless ag gravated assau

lt, felony reckle

ss endangerment i

s not a lesser-in

clude d offense of attempted second degree murder, and the trial court thus did not err in failing to instruct the jury on this offense.
D. Misdemeanor Reckless Endangerment

Our review of the reckless endangerment statute suggests, howe ve r, that misdemeanor reckless endangerment would be a lesser-included offense of attempted s e cond degree murder. Although Rush has not raised the issue whether the trial court erred by failing to ins t ruct the jury regarding misdemeanor rec kless endangerme

nt, we find it appro

priate to discuss

this offense for

two
reasons: first, m isdem eanor reckless endangerment is governed by the same statute as felony reckless endangerment, and second, the t rial court has a d

uty to instruct the ju

ry regarding all applicable lesser-included offenses regardless of whether the defendant re quests the instruction.

Misdemeanor

reckless endangerment includes all of the elements of fe lony reckless endangerment

except for theelement requirin g use of a deadly

weapon. See Tenn. Code Ann. § 39- 13-103(a) (1999). Thus, the offense requires: (1) reckless conduct which (2) places another pe rson in danger of death

or serious bodily in

jury. Although thes

e eleme n ts do not satisfy part (a) of the Burns test because they are not included in the offense of attempted second degree murder,they do satisfy part (b). The reckless intent requirement of misdemeanor reckless endangerment indicates

a lesser degree o

f culpability than t

he knowing intent to

kill contemplated by th

e offense of second degree murder, and

the risk of harm

contemplated by misdemeanor reckless endangerment, danger of death or serious bodily injury, is less serious than the risk of an attempted killing contemplated by attempted second degree murder. Therefore, the trial court er

red because it di

d not instruct the jury regarding th

e lesser include

d offense of misde

meanor reckles s endangerment.-9-

Having found that misdemeanor reckless en dan germent is a lesse r-included offe

nse to attem pted second degree m urder, we must ne

xt determine whet

her there is a ra

tional basis f

or a charge on that offense. A s provided in Burns , “the mere existence of a lesser offense to a charged offense is not sufficient alone to warrant a charge on that offense. Whether or not a particular lesserincluded offense should be charged to the jury depends on whether proof in the record would support the lesser charge. ” 6 S.W.3d at 468. Vi ewing the evidenc

e liberally in the light most favorabl e to the existence of the lesser-included offense, as required by Burns , we conclude that a reasonable jury could find that Rush reck

lesslyengaged in conduct which placed or may have placed Tina Rush in imminent danger of

death or serious b

odily injury. There

fore, the trial c

ourt had a duty to

instruct the jury regardi

ng the lesser-inc

luded offense of

misdemeanor rec

kless endangerme

nt.

Because the jury was not properly instructed regarding lesser-included offenses of attempted second degree m

urder, and beca

use Rush was convic

ted of an offense

which was neither

included in the indictment nor a

lesser-included offense of attempted second degree murder, Rush must have

a new trial on Count I

of the indictment,

charging the attempted second degree murder of Tina Rush. On that Count, however, the jury at the first trial has rejected the charge s of attempted second degree murder and attempted voluntary manslaughter by finding Ru sh guilty of a le sser offens e, even thou gh the offense on which

it convicted Rush wa

s not properly

before it. To ret

ry him, under

these circumstances,

for attempted second degree m urder and attempted volu ntary mansl

aughter would violate constitutio

nal prohibitions ag

ainst double

jeopardy. See State v. Maupin , 859 S.W.2d 313 (Tenn. 1 993) (allowing retrial on lesser-included offenses but prohibiting retrial on the grea t e r of fe nse). Thus, on remand, Rush should be tried for any offenses which qualify under the Burns analysis as lesser-included offenses of attempted second degree murder that

(1) were not orig

inally charged; or (

2) were charg

ed but which are l

esser offenses

than reckless ag

gravated assa

ult.

IV. Conclusion

For the foregoing reasons, we hold that reckless aggravated assault and felony re c kless endangerment

are not lesser-included offenses of attempted second degree murder. However, misde meanor reckless endangerment is a lesser-included offense of attempted second degree murder, and the trial court

erred in failing to charge the jury regarding that offense. Therefore, we reverse the judgment

of the Court of Criminal Appeals and remand the cause for a new trial on Count I of the indictment

in accordance

with this opinion. Costs on this appeal are taxed to the appellee, the State of Tennessee.

___________________________________ ADOLPHO A. BIRCH, J R., JUSTICE