1 

# FILED
March 22, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE, AT KNOXVILLE STATE OF TENN ESSEE,

Appellee, V. CCA No. 03C01 -9704-CR-00144 HARVEY PHIL LIP HESTER ,

Appellant.
CONCURRING OPINION
I concur in Judge Wade’s articulate opinion . However, this resolut ion of the

lesser -inclu ded offense issue is at od ds wit h the opi nion of a panel of this court in State v. David Michael Gamble , No. 03C01-9812-CR-00442 (Tenn. Crim. App., Knoxv ille, Jan. 21, 2000), and I w rite separately in or

der to address the conflict in the two opinions.

In David Michael Gamble , the defendant was charged with theft via an indictment which all eged, [theft of] a 1990 Freightline tr actor, trailer and six

ty-five (65) assor

ted pieces of La-Z-Boy furnitur e, valued at over $60,000, belonging to Volunteer Trucking wi

thout the owner’s effective consent and with the intent to deprive the ow ner of said property, in v iolation of Tennessee Code Annotated [section] 39-14-10 3, against the peace and dig nity of the State.
Id ., slip op. at 8. The evidence showed that Gamble “picked up the loaded truck and trailer as expected, but then spent the next two and a half to three da ys in Chattanooga instead of deliv ering the load to Kentucky and Ohio as obligated.” Id . This court ruled that, although the state proved that Gamble exercised control over the truck

and its contents without the owner’s effective cons ent, the evidence was insufficient to show that Gamble intended t o deprive the owner of the property. Id ., slip

op. at 9. Even th ough the court v acated t he theft conviction, it imposed a conviction for unauthorized use of a vehicle, commo nly2

known as joyridin g. See Tenn. Code Ann. § 39-14-106 (1997); id ., slip op. at 14. In reaching this conclu sion, the court concluded that the offense of unauthorized use of a vehicle is a less er-included offense of theft. Id ., slip op. at 13.

The David Michael Gamble court reached this conclu sion despite its determination that, “beca use the unauthorized use of a v ehicle statute contains the additional element of the tak

ing of a vehicle , as opposed to just the taking of any property , it does not satisfy part (a) of the Burns test, which requires that all of the statutory elements of the lesser off ense be included within the statutory elements of the greater.” Id ., slip op. at 12-13 (italicized emphasis added, other emphases in origi nal). The court reasoned that i f a person exercised control ov

er “something other than a v ehicle, the person might be guilty of theft, but could never be guilty of unauthorized use of a vehicle.”

Rather, the court based its lesser-included offense f inding on part (b) of Burns . In so doing, it utili zed both components of part (b): “(1) a different mental state indicating a lesser kind of culpability; and[] (2) a less serious harm or risk of harm to the same person, property or public interest.” See David Michael Gamble , slip op. at 13; State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999). The court said that the lesser offense met the test of part (b)(1) because the unauthorized user of a v ehicle “need not have the i ntent to deprive the owne r of the vehicle.” David Michael Gamble , slip op. at 13. The lesser offense met the test of part (b)(2) becaus e, without the intent to depr ive the owner of the vehicle, there is “l ess serious harm or ris k of harm to the owner and the property.” Id

.
In the present case, the relat ionship of the greater offense to the proposed lesser offense is analog ous to the relationship of the g reater and lesser offenses in David Michael Gamble . In both cases, the field of activ ity proscr ibed by the greater offe nse is b roader t han that of the lesser. T heft3

proscribes the stealing

of any kind of property, but “joyriding” may only be committed through the taking or unauthorized use of a v ehicle; the murder statutes proscribe the unlawful killing of another through any means whatsoever, but vehicular homicide is committed only when the instrumentality of the killing is a vehicle.
If it is accurate to say, as Judge Welles in David Michael Gamble and Judge Wade in the present case have sai d, that Burns ’s part (a) is not serviceable in these c

ases because the lesser offense req uires an element that is not included among the elements of the greater of fense, then this determination should have di ctated a different part (b) resul t in David Michael Gamble . Part ( b) of Burns requires that in order to be a lesser-included offense, an offense must “fail[] to meet th e definition in part (a) only in the respect that contains a statutory element or elements establishing ” the different mental state indicating a lesser culpability or a less serious harm or risk of harm. Burns , 6 S.W.3d at 466-67 (emphasis added). The David Michael Gamble rationale for utilizing the part (b) analysis to establ ish the lesser-included offense ignores the presence of the extra element of the taking of a vehicle which defeated the use of part (a). Although it i s true that joyriding has a “different mental state indicating a lesser k

ind of culpability,” it is not true that the lesser offense of joyri ding fai ls to mee

t the sub set test of Burns ’s part (a) “ only in the respect that it contains a statutory element or elements establishing [the different mental state.]” See id . (emphasis added). The requi rement in the joyriding statute that the object of the offense mu st be a vehicle is not contained as an element in theft and, in and of itself, has nothing to do with the offender’s mental s tate. Likewise, although it is true that joyriding implicates a “less serious harm or risk of harm to the same person . . . [or] property” than does the g reater offense of theft, it is not true that the l esser offense fails to meet the part (a) test “ only in the respect” that it contains an element esta blishing a less seri ous harm or risk of harm. Again, the extra element, in and of itself, has nothing to do with the4

increased harm. Burns ’s part (b) requires the extra element of the lesser offense to be operative

in establishing a les

ser mental state or lesser harm or risk of harm.
I recognize that at least one basis f or harmonizing David Michael Gamble and the present case exist s but has not been explored i n either opinion. In cases in which the proscribed conduct of the lesser offen se is more specific than that of the greater offense, as is true with the object of the c rime in David Michael Gamble and the instrumentality of the crime in the present case, on e might argue that the gr eater specificity contai ned in the lesser offense is not a different element at all, but rather a category of the broader field which is sing led out for proscription vi a lessened culpability or risk elements. View ed in that light, when the lesser offense’s decr eased culpability throu gh a different mental state or its decreased harm or r isk of harm would supply the only incongruity

of elements, part (b) would be applicable. However, as Judge Wade po ints out in the present case in whic h the indictment did not state the type of instrumentality used to kill the victims, courts must take account of the “defen dant’s constitutional right to be given notice of the offense or of fenses charged.” See State v. Dominy , 6 S.W.3d 472, 476 (Tenn. 1999). It may well be that an indictment which does not a llege the specific object or instrumentality of the crime does not provide the defendant with the constitutiona lly-mandated notice of the lesser offense. On that score, David Michael Gamble is distinguishable because the indi ctment i n that ca se speci fied that the obje ct of the charge d theft was a vehicle.

At this junctur e, we mu st be min dful of th e of dict ate of Howard v. State , 578 S.W.2d 83 (Tenn. 1979), w hich is the basi s of Burns ’s part (a), that the lesser-included offense is established when its elemen ts are necessarily included in the greater offense “ as those elements are set forth in the indictment

.” Howard , 578 S.W.2d at 85 (emphasis added). See Burns , 65

S.W.3d at 467 (part (a) is consistent w ith Howard ). When we view the “elements” as set forth in the David Michael Gamble indictment, they at least give notice that the crime of unauthorized use of a vehicle is possibly alleged in the indictment, making the case distinguishable from the present case, in which there is no allegation i n the indictment that a vehic le was the instrumentali ty of the crime.
The question remains whether this technique of specifyi ng the object or instrumentality of the crime should be utiliz ed by our courts to establish a lesser-included offense. I see the utility in looki ng to the elements as set forth in the indictment for the purpose o f narrowing the great

est offense being charged. For instance, when an indictment alleg es especially agg ravated kidnapping, see Tenn. Code Ann. § 39-13-305 (1997), it is useful to know if the basis of the prosecution is, for instance, Code section 39-13 -305(a)(3), that the crime was “committed to h old the victim for ransom or reward, or as a shie ld or hostage.” This designati on informs the analysis of w hether kidnapping and aggravated kidnapping are lesser-included offenses. See Tenn. Code Ann. §§ 39-13-303, 304 (1997). How ever, the use of factual specific ations in the indictment to expansive ly create lesser i ncluded offenses may be fraught wi th chaos and confusion, depending upon the creativity or pr olixity of the prosecutor drawing the charging instrument. In my view, the trial and appellate benches are perplexed about lesser- included offenses, and if an approach w hich expands and defies structure in the anal ysis of lesser-incl uded offense issues causes more confusion and difficulty of appli cation, its merits are doub tful.

In Burns , the supreme court attempted to cl arify the problem through fashioning a rule for determining lesser-included off enses which would be simple to apply, especi ally if the part (a) s ubset analysis is used rather narrowly and literally, as it has been used in the present case. In cases in which the field of proscribed activ ity is broader in a g reater offense than that proscribed6

in a proposed lesser-included offense, our supreme court must ultimately decide the approach to be used. On the basi s of simplicity of applicat ion and predictability of resul

t, I favor the approach used i n the present case and concur in Judge Wade’s analysis.

________________________________ JAMES CURWOOD WITT, JR., JUDGE