# FILED
September 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 01C01-9709-CR-00397 Appellee ) ) DAVIDSON COUNTY vs. ) ) Hon. Thomas H. Shriver, Judge GREGORY COULSON, ) ) (Disorderly Conduct) Appellant )
For the Appellant : For the Appellee : David E. High John Knox Walkup 227 Second Avenue, North Attorney General and Repor ter First Floor Nashville, TN 37201 Daryl J. Brand Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. (Torry

) Johnson III District Attorney General Mary Campbell Asst. District Attor

ney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1619

OPINION FILED:
REVERSED AND DISMISSED
David G. Hay

es Judge2 OPINION
The appellant, Gregory C oulson, appeals as of right his conviction in the Davidson County Cr

iminal Court for the misdemeanor offense of disorderly conduct. Following a bench trial, the appellant was sentenced to thirty days in jail, all of which was suspended, and was as sessed a fine of fifty dollars. The appellant’s sole issue on appeal is whether a defendant w ho proceeds to trial upon a ch arge of misdemeanor assault may be conv icted of disorderly conduc t.

For the reasons discussed below, the judgment of conv iction is reversed and dismissed.

The question of whether one char ged with misdemeanor assault can be convicted of disorderly

conduct turns not upon the proof in the case but upon a question of law. Althoug h it is unnecessary to fully develop the facts of this case, a brief pro cedural a nd factu al histor y is helpf ul to fac ilitate re view.

In observance of a red traffic li ght at the intersection of Saw yer Brown and Old Harding Roads, motor ist Danielle Stocks sl owed her vehicle before coming to a stop at the intersection. Befor e Mrs. Stocks initiat

ed her turn onto Old Harding Road, the driver of the vehicle behind her, the appellant, began bee ping his horn and “tapped [her car] on [the] bac k . . . bumper.” Mrs. St ocks immediately got out of her car to see if any damage had occurred. Mrs. Stock s testified that, at this point , the appellant yelled “Get out of my way Bitch,” put his car in reverse, then he put it in drive,” forcing Mrs. Stocks to jump out of the way of his moving vehicle. Mrs. Stocks got his license plate number as he drove away. On the following Monday, Mrs. Stocks telephoned the appellant at work explaining that “I thought that I could talk with [him] and see if . . . I could get an apology from him to see what was going on.”1 The reco rd do es no t exp lain th e m ann er in w hich the c harg e wa s am end ed or whe n it was amended. 3 When asked how she got his telephone number, M rs. Stocks informed the appellant that her husband was a Metro police officer.
Five days after the inc

ident, Mrs. Stocks sig ned an affidavit of complaint and a warrant issued char

ging the appellant with felony reckless endangerment. On October 29, 1996, the appellant waived his right to be tried by indictment and his right to a jury tr

ial. The case proceeded to tri al in General Sessions C ourt upon the misdemeanor charge of reckles s endangerment. At trial, the appellant denied making contact with Mrs. Stocks’ vehicle, denied attempting to harm her, and, in effect, contradicted almost all of Mr s. Stocks testimony. H e did admit, however, that after “the light changed to green and [her[ car did not move . . . after fou r five or six seconds . . . I blew the h orn.” At this trial, the appellant was found not gui lty of reckless endangerment but w as found guilty of the “amended char ge of assault,” which he appealed to the Cr iminal Court. 1 On March 31, 1997, the appellant’s case proceeded to trial in the Davidson County Cri minal Court. At the conclus ion of the bench trial, the trial c

ourt found that the State had failed to pro ve an assault. However, the court did find the appellant guilty of disorderly conduct, a class C misdemeanor.
The controlling questi on of law is whether disorderly conduct is a lesser offense of misdemeanor assault. The Sixth Amendment requires that the State inform the accused “of the nature and cause of the accusation against hi m.” U.S. Const. amend VI. Thus, in order to comport with the consti tutionally guaranteed notice requirement, a defendant may only be convicted of an o ffense which is a lesser included or less

er grade of the greater offense char ged in the indictment. See State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996); see also Hagner v. United States , 285 U.S. 427, 430, 52 S.Ct. 417, 418-419 (1932).2 Although t he offense charged i n the warrant is reckless e ndangerment, both par ties ackn owledg e that this ch arge wa s am ended to misd eme anor as sault.

3 Unde r an evide ntiary appro ach, the p roof, not the content s of the i ndictment, est ablish the elem ents of th e lesser included offens e. Howard , 578 S.W .2d at 87 (Henry C.J., dissenting); Com men ts, M ODEL P ENAL C ODE § 1.07. This standard was expressl y reject ed in Trusty

. Moreover, we note that t his standardwould most li kely not survive a “ notice” chal lenge under t he Sixth Am endm ent. 4 Although the State concedes th at disorderly conduct is not a lesser included offense of assault 2 as defined in Tenn. Code Ann. § 39-13-1 01(1991), the State urges this court to adopt a pleadings, or chargi ng instrument, approach for offenses not charged by indictment . Specifically, the State argues that, since the “ degree of strictness require d of a felony in dictment is not required of a warran t charging a misdemeanor,” the affidavit of complai nt in the present case contains sufficient language to encompass the offense of disor derly conduct and, thus, th e appellant was on notice to defend upon the cr ime for which he was c onvicted.

In State v. Howard , 578 S.W.2d 83, 86 (T enn. 1979), Chief Justice Henry acknowledged, in his dissent, the existence of thr ee approaches for determining lesser offenses, i.e. , (1) the statutory appr oach, (2) the pleadings, o r charging instrument, approach, and (3) the evidentiary approa ch. 3 “Under the statutory test the elements of the two offenses, as ref lected in the respective statutory provisions, are considered in the abstract, wholly apart from the facts established by the proof.” Howard , 578 S.W.2d at 86 (Henry, C.J., diss enting). See also Comments, M ODEL P ENAL C ODE § 1.07 (1985). In other wo rds, under the statutory approach, in order to warrant a charge on a lesser included offense, the less er offense must be included within the proof necessary to establish the offense charged . However, under a pleadings, or charging instrument, approach, a lesser offense m ay be included in the greater if the language in the charging inst rument, i.e. , the arrest warrant or the indictment, sets forth the elements of the lesser offense even though under the statutory definitions it would be possible to commit the greater offense without committing the lesser. See Howard , 578 S.W.2d at 86 (Henry, C.J., dissenting);5

Comments, M ODEL P ENAL C ODE § 1.07.
The pleadings approach was tacitly rejected by

our supreme court in Trusty

. Indeed, the supreme court, impli citly adopting the st atutory approach, concluded: [D]efendants are entitled to jur y instructions on all

lesser included offenses as defined in Howard and on all offenses which are a lesser grade or class of the charged offense, if the evidence would s upport a conviction for the offense. The authorizing statute and rule e nsure that each defendant has fair and reasonable noti ce of the charges and an opportunity to defend against them. It preserves a defendant’s right to an instruction on all lesser offenses necessarily included in the offense charged in the indictment

. . . . Trusty , 919 S.W.2d at 311 (emphasis added). We can find no reason to adopt a different standard for offenses initiated by warrant from those initi ated by indictment. The constitutional requirement of notice fo r the accused who is tried upon an arrest warrant is no different than for the accused who is tried by way of indictment. Thus, we adhere to the statutory approach in determining w hether an offense is a lesser offense of the charged offense.

After review, we find the appellant's position w ell-taken. Both parties concede and we agree that the offense of disorderly conduct i s neither a lesser grade nor a lesser included offense of assault. Compare Tenn. Code Ann. § 39-13- 101 with Tenn. Code Ann. § 39-17-305 (1991).In view of this stat e's adoption of the "statutory approach" for dete rmining lesser offenses, w e conclude that the appellant's conviction for disorderly conduct is infirm. The judgment of the trial court is reversed and the appell ant's conviction is d ismissed.6 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_____________________________________ PAUL G. SUMMERS, Ju dge

_____________________________________ JERRY L. SMITH, Jud ge