### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON October 3, 2000 Se ssion

STATE OF TENNESSEE v. MICHAEL P . HEALY

Direct Appeal from the Criminal Court for Shelby County No. 98-13878; 98-13879 Joseph Dailey, Judge

No. W1999-01510-CCA-R3-CD - Filed June 26, 2001

On Novemb er 24, 1998, the She lby County

Grand Jury in

dicted the Defe

ndant for one cou

nt o f aggravated

robbery and one count of aggra vated a ssault. Following a subsequent jury trial, the Defendant

was convicted on both counts. On September 30, 1998, after a sentencing hearing, the trial court sentenced t he Defendant as a career offender to serve thirty years incarceration for the aggravated

robbery c onsecutively

to fifteen years for the aggra vated assault. The court also ordered bothsentences served consecutively to a sentence for w hich the Defenda nt was on parole. On appeal, the Defendant claims that the trial court should have instructed the jury to consider robbery andtheft as les ser-includ ed offenses of agg ra vated robbery and that the trial court should have instructedthe jury to c

onsider reckles s endangermen t, reckless agg

ravated assault

and simple assault

as lesser-included offenses of aggravated assault. After a r eview of the record, we affirm the judgment of the tr

ial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY L. S MITH , J., delivered the op inion of the court,

in which D AVID G. H AYES , J., and A LAN E. G LENN , J., joined.

W. Mark Ward, Assistant Public Defender, Memphis, Tennessee, for app ell ant , Mi chae l P. Heal y.

Pau l G. S umm ers , At tor ney G ener al & R epo rte r; J . Ro ss D yer, A ssi sta nt A tto rney G eneral
, Nashville, Tennessee; William L. Gibbons, District Attorney General; Dan

Byer, Assistant District Attorney; Memphis, Tennessee, for appellee, State of Tennessee.

OPINION

Factual Backgrou

nd On July 2, 1998, She

rrie and Benny

Colville were wor

king in a store they owned

in Shelby Coun tywhen Mrs. Colville noticed the Defendant turning his car around in the parking lot of the
store. Approximately

twenty-five minutes later, Mr. Colville went into the back of the store when the Defendant entered

the store wearing a platinum-blonde wig, sunglasses and something covering-2-

his face. The Defendant sat down in a chair, pointed the gun at Mrs. Colville and demanded that she open the cash-register. She refused to open the register and screamed her husband’s name. From behind a two-way mirror

in the back of the store, Mr. Colville saw the Defendant attempting to rob his wife. He retrie

ved a pistol from his

desk and began making his way toward the front of the store. Meanwhile, the Def

endant grab bed Mrs. Colville’s purse which was ly

ing nearby

, and turned to leave. As he did so, Mrs. Colville threw a book at the Defendant. The Defendant then noticed Mr. Colville crouching in the back

of the store and pointed

his gun at Mr. Colville. The Defendant then fledthe store, and Mr. Col vi lle followed him. However, the Defendant managed to elude Mr. Colville by running down an alley. The Defendant g ot into his car, the same

one that Mrs. Colvill

e hadseen earlier. H

owever, before

he reached the

car, the Defen

dant was taking o

ff his disguise. He turned for a moment and Mr. Colville was able to see the Defendant’s face. Moszell Lagrone was driving his car in the alley behind the Colvilles’ store when he saw the Defendant. Mr. Lagrone thought the Defendant was suspicious because he was wearing a plat

inumblonde wig, carrying a purse and a g un andrunning very fast. Mr. Lag rone saw theDefendant in his

car and noticed the license plate number. Mr. Lagrone went to hi s wife’s place of employment where he called the police and gave them the license plate number. After obtaining the license plate number, police determined that the license

plate in question belonged to the Defendant

. Although police

saw the car immed

iately after the robbery and attempted
to follow it, the Defendant managed to elude police, in part by driving in the wrong lane of traffic. Police apprehended the Defendant later at a store near his father’s liquor store. The day after

the robbery, Mr. and Mrs. Colville went to the police station to give a statement. Police showed the C olvilles a photographic

line-up that consisted of six pictures. Mr. and Mrs. Colville bot

h independently

identified the De

fendant as the pe

rpetrator of the

crimes.

Lesser Included Offenses The Defendan t’s sol e claim on appeal is that the trial court erroneously refused to instruct the jury to consider lesser-included offenses. Specifically , the Defendant claims that the trial court should have charged

the jury to consider robbery and the ft as lesser-included offenses of aggravated robbery and reckless aggra vated assault, reckless endangerment and simple assault as lesser-includ e d offenses of aggravated assault. We disagree. The Tennessee Supreme Court has held that an offense is a lesser-included offense if: (a) all of its statutory elements are included within the statutory 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 lesser kind of culpability; and/or

(2) a less seriou

s harm or risk of ha

rm to the same pers

on, property

or public interest; or

(c) it consists of-3-

(1) facilitation of the offense charged or of an offense that otherwise me ets the definition of lesser-included offense in part (a) or (b); or

(2) an attempt to c

ommit the offense c

harged or an of

fense that other

wise meets the definition of lesser-included offense in part (a) or (b); or

(3) solicitation to

commit the offense

charged or an

offense that othe

rwise meets the definition of lesser-included offense in part (a) or (b).

State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999).

Aggravated assault, ascharged in the indictment in this ca

se, is defined as i

ntentionally

or knowingly causing another reasonably to fear imminent

bodily injury

while the defend

ant is using

or displaying a deadly wea pon. Tenn. Code Ann. §§ 39-13-101, -10 2. It is clear

that reckless aggravated

assault and simple assault are lesser-included offenses of aggravated

assault, because the
statute defining agg

ravate d ass ault itself includes assault as an element, and reckless aggravated assault differs only

in tha t a d iff eren t me nta l st ate ind ica tin g a le sse r ki nd o f cul pab ili ty, i.e. reckless instead of intentionally or knowing, is required. Tenn. Code Ann. §§ 39-13-101, 39-13-102(a)(1), (2)(B). It is also clear that theft and robbery are lesser-included offenses of aggravated robbery. To prove aggravated

robbery, the State must establish that the Defendant committed a robbery with a deadly weapon. Id . § 39-13-402(a)(1). Furthermore, "[r]obbery is the intentional or knowing theft of property from

the person of another by violence o r putting the person in f ear." Id . § 39-13-401. Fin all y, “[a] person commits theft of property if, with intent to deprive the owner of property , the person knowingly obtains or exerci ses co ntrol over the property without the owner's effective consent.” Id . § 39-14-103. The statutes themselves indicate that the elements of theft are subsumed by the elements of robbery and the element s of robbery, in turn, are subsumed by the elements of aggravated

robb ery . Accordingly, by apply ing part (a) of the Burns test, theft and robbery a re obv iou sly l ess er-i ncl ude d of fens es o f agg rava ted rob bery. This does not mean,

however, that an

instruction must be g

iven simply be

cause an offense is a lesser-included offense of another. In Burns , the supreme court adopted a two-step analysis for determining whether aninstruction on a lesser-included offense must be given. First, the trial court must determine whethe

r "any ev

idence exists that r

easo nabl e minds could accept as to the lesser-incl udedoffense." Burns , 6 S.W.3d at 469. In this regard, the trial court must vi ew th e evidence in a light most favorable to theexistence of the lesser-included offense, without

regard to the credibility of the evidence. Second, the trial court must determine whether the evide nce viewed in this light is legally sufficient to support a conviction for the lesser-included offense. Id. It is the first inquiry which

is fatal to the Defendant’ s argument, bec ause there was a

bsolutely

no evi den ce t hat the Defe nda nt m erel y com mit ted rob bery o r th eft ins tea d of aggr avat ed ro bbe ry. All of the evidence at trial indicated that the Defenda nt used a pistol to rob Mrs. Colville of her purse, and no evidence indicated otherwise, i.e.. that he may not have had a g un. Similarly, all of the evidence at trial indicated that the Defendant acted intentionally when he pointed his gun at Mr. Colville thereby placing Mr. Colville in fear. Again, there w as no evidence that the Defendant acted-4-

recklessly or that he may not hav e had a gun ; thus there is no ev idence that the D

efendant merel

y committed reckless aggravated assault or simple assault instead of aggravated assault. This Court has previously held that “the trial court is not obliged to give the lesser-included offense instruction where there is no evidence of the lesser offense

other than the ver

y same evide

nce which suppor

ts the greater offense, that is, ‘that reasonable minds could accept as to the lesser-included offense.’” Statev. Terry T. Lewis , No. M1999-00876- CCA-MR3-CD, 2000 WL 284181, *10 (Tenn.

Crim. App. at Nashvil le, March 17 , 2000)(cit ing Burns , 6 S.W.3d at 4 69). In other words, “[f]ailure

to instruct is n ot e rro r wh ere t he re cord cle arl y sho ws t hat the defe nda nt w as gu ilt y o f the greater offense and the record is devoid of any evidence permitting an infe rence of guilt of the lesser offens e.” St ate v. Langford , 994 S.W. 2d 126, 128 (Tenn. 1999 )(citing State v. Stephenson , 878 S.W.2d 530, 550 (Tenn. 1994)). Finally, we

are convinced t

hat reckless e

ndan germent is not a lesser-included offense of aggravated

assault. A person

commits reckless

endangerment

if that person re

cklessly engages in conduct which pla

ces or may p

lace another pe

rson in imminent dang

er of death or se

rious bodily injury. Id . § 39-13-103(a) -(b). As one Judge of this Court has note

d: [Aggravated

assault] has a result-of-con duct aspect in that it focuses on

the victim being placed in fear of imminent bodily injury

. . . . On the other ha nd, felo ny reckles s endangermen t is defined as eng

aging in conduct committed with a deadly weapon which places or may place another person in imminent danger of death or serious bodily injury . It focuses – by its terms – upon the conduct that causes a risk of harm, not the harm itself. Those

within the zone of danger need not even be aware that the threat exists. . . . Thus, one may comm

it t he offense of aggravated assault by causing fear of bodily injury while u sing or disp laying a weapon without committing the offense of felony reckless endangerment. Likewi se, on e may commit the offense of felony

r eckl ess endangerment without committing the offense of aggravated assa ult by causing fear. In other words, neither offense covers the range of conduct

or result of the other. This means that neither offense is included in the other.

Statev. Ralph Dewayne Moore , No. E1999-02743-CCA-R3-CD. 2000 WL 1612705, *4-*5 (Tenn. Crim. App. at Knoxville, Oc t. 30, 2000)(Tipton, J. disse nting). Becau

se we find that the

elements of reckless endange rment are not included in the elements of aggravated assault and because the elementsdo not only diffe r w ith respect to the applicable mental state and/or harm, we hold that reckl ess endangerment is not a lesser-included offense of aggra vated assault under Burns

. Moreover
, the evidence clearly shows that the defendant is guilty of aggrava ted assault and the re

cord is devoid of any evidence from which an inference may be drawn that the de

fendant is guilty

only of rec

kless endangerment

. This issue is without

merit. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE