# FILED

October 13, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1999 SESS ION

STATE OF TENN ESSEE, * No. 03C01-9805-CR-00193 Appellee * SULLIVAN CO UNTY V. * Hon. R. Jerry Beck, Ju dge GUY WILLIAM RUSH, * (Reckless Aggrav ated Assault) Appellant. *
For Appellant For Appellee Mark D. Harris Paul G. Summers 142 Cherokee Street Attorney General and Repor ter Kingsport, TN 37660 425 Fifth Avenue North Nashville, TN 37243-0493 Erik W. Daab Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Edward E. Wilson Assistant District A

ttorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED:

AFFIRMED
NORMA MCGEE OGLE, JUD GE2 OPINION The appellant, Guy William Rush, appeals hi s conviction in the Sullivan County Criminal Court of reckless aggravated assault. The trial court sentenced the appellant as a Rang e III offender to ten years in the Tennessee Department of Correction. On ap peal, the appellant presents the following issues for our re view:

(1) Whether the trial court erroneously instructed the jury on the offense of reckless aggrav

ated assault. (2) Whether the trial court erred in failin g to instruct the jury on the lesser offenses of attempt to commit criminally negligent homicide and felony reckless endangerment. (3) Whether the State v iolated Tenn. R. Crim. P. 16 and the rule set forth in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194 (1963), by failing to c

omply with the appella nt’s Motio n for Disc overy. (4) Whether the trial court erroneously admitted evide nce at trial conce rning a pending charge against the appellant of custodial interference. (5) Whether the trial court erred in failin g to enforce the parties’ stipulation concerning the appropriate range of punishment

. (6) Whether the trial court erroneously denied the appellant’s Motion for New Trial on the basis of newly discov

ered evidence. (7) Whether the evidence adduced at trial w as sufficient to support the appellant’s conviction of reckless aggravated assault. Following a thoroug h review of the recor d and the parties’ briefs, w e affirm the judgment of the trial court.

I. Factual Background

On Decem ber 12, 19 95, a Sull ivan Count y Grand Jur y returned a two count indictment charging the appellant in Count I w ith attempt to commit second1 The victi m in this case i s referred t o elsewhere i n the transcript as “Ti na Louise Rush” and “Tenna Cherie Rush.” However, on an “Appl icati on for Criminal Injuri es Compensation” form, Ms. Rush indicated th at her na me is, in f act, “Tina Cherie R ush.” 3 degree murder of Tina Cherie Rush 1 and in Count II with ag gravated assault of Wendy Renee Crowe. The indictment stemmed from a fight between the appellant and his ex-wife, w

hich occurred on October 1,1995, in the parking lot o f the Station Bar in Sullivan County. The appellant’s case proceeded to trial on March 17 and 18, 1997.

At the appellant’s trial, the State established that on Oct ober 1, 1995, Tina Rush and a friend, Wendy Crowe, deci ded to go to the Station Bar i n order to play pool and watch a NASCAR race on the bar’s tel evision. They arri ved at the bar at 3:00 p.m. or 3:30 p.m. Approx imately three hours after th eir arrival, the appe llant and a friend, Pete Gross, also entered the bar. The appellant and Tina Rush had been divorced for approxi mately three and one half year s. Moreover, in 1993 and 1994, Ms. Rush had been convi cted of assaulting the appellant . However, the former couple continued to encounter one another regularly , as their marriage had produced one daughter who visited the appellant every other weekend. Thus, while inside th e bar, the appellan t and Ms. Ru sh convers ed amica bly.

Later that evening, Mr. Gross became involved in an argument and fist fight with another customer in the bar named Jimmy “J.J .” Cullop. The owner of the bar asked Mr. Gross to l eave, and Mr. Gross and the appellant walked outsid e into the parking lot. Ms. Rush and Ms. Crowe r emained in the bar for an additional amount of time between fifteen minutes and one hour.

As they were leav

ing the bar, Ms. Rush an d Ms. Crowe paused immediately outside the entr ance to speak with Mr.Cullop, who was a former4 boyfriend of Ms. Rush. Both women noticed that the appe llant and Mr. Gross were still in the parking

lot, speaking with the owner of the bar. When the women emerged from the bar, the appellant approached them and initiated a somew hat disjointed conversati on.

The appellant first asked Ms. C rowe if she would acc ompany him on a date. When M s. Crow

e emphati cally

refused,the appe llant t urned to his ex -wife and inquired whether or not he would see her in court the following Tuesday. Ms. Rush replied, “Yes, bec ause I can’t let you keep do ing the things you do,so I will be there.” Finally, the appellant turned to Mr. Cullop and spoke with him about his earlier fight with Mr. Gross. Mr. Cul lop remarked that he “know ed he couldn’t whoop [Mr. Gross].” The appell ant responded, “I couldn’t w hoop him either unless I used a knife, and I’ve got one.”

At this point, Ms. Rush ap parently believed that the appellant intended to fight with Mr. C ullop and asked the appellant to l eave Mr. Cullop alone.In response, the appellant placed hi s hand on his pocket. When Ms. Rush war ned the appellant that she was carrying pepper spray, the appellant violently pushed Ms. Rush against the outside w all of the bar, prompting Ms . Crowe to interv ene by pushing the appellant away from Ms. Rush. The appellant str uck Ms. Crowe in the head with his fist, w

hereupon Ms. Rush attempted to spr ay the appellant with pepper spray. The appellant then struck Ms. Rush in the jaw with his fist. Ms. Crowe managed to extricate herself from the melee, retreat inside the bar, and call the police. Mr. Cullo p also fled the parking lot at some point during the fight

.

While Ms. Crowe was inside the bar, the appellant pulled a k nife from his pocket and stabbed Ms. Rush in her right elbow and under her left breast. Ms.2 Although cont radicted by Ms. Rush’s test imony, Ms. Crowe recal led that she withdrew f rom the fight , entered the bar, and ret urned one more time before t he owner of the bar interv ened. 5 Rush continued to spray the appellant with pepper sp ray and attempted to run aw ay. The appellant seized Ms. Rush from behind and stabb ed her twice in the back.

Ms. Crowe reemerg ed from the Station Bar and pulled the appellant away from Ms. Rush. The appellant made stabbing motions with his knife in Ms. Crowe’s direction.However, Ms. C rowe testified at trial that the appellant’s eyes were “squinted shut”

and he appeared to have difficulty seeing her. Ultimatel

y, the owner of the bar forced both Ms.Rush and Ms. Crowe ba ck inside the bar, leav

ing the appellant in the parking lot. 2

John Rose, an officer employed by the Sullivan County Sheriff’s Department, was dispatched to the Station Bar at approx imately 8:21 p.m. When he arrived, the appellant was standing in the par king lot with his

arms outstretched. He appeared to be holding a kni fe in his right hand and “w as screaming and hollering and thrashing his arms back and forth.” By standers in the parking lot yelled to Officer Rose that s omeone inside the bar had been stabbed.

Officer Rose ordered the appellant to lie on the ground, repeating the order several times. When the appellan t finally complied, Officer Rose placed him in handcuffs and retrieved both the knife and a can of pepper spray w hich was lying on the ground nearby the appel lant. Officer Rose then confirmed that an ambulance was en route to the ba r and waited for the arri val of additional officers. As soon as another officer arri ved, Officer Rose entered the bar in search of the victim. The officer observed Ms. Rush lying motionless on the floor. Several people were attempting to treat wounds on her back. An ambul ance then arrived and6 transported Ms. Rush to Br istol Regional Medic

al Center.

Officer Rose returned to the park ing lot and advised the appellant of his Miranda

rights. The appellant decl ined to provide a statement to the police, indicating that his ey

es were “burning.”

Officer Rose concluded that the appellant had probably been sprayed with pepper spray, a nd he directed another officer to transport the appellant to the M edical Center in order t o ensure that he did not require medical treatment.

At the appellant’s trial, Officer Rose testified that, gener ally, pepper spray will caus

e difficulty breathing and a burning sensation in the ey es, forcing the eyelids to close. The sev erity of these symptoms w ill vary depending

upon whether the pepper spray directl y hits the intended targ et, and the symptoms can last fro m twenty to forty minute

s. Officer Rose testified that, al though pepper spray can cause panic, an individual can also overcome the effects of pepper spray, open his or her eyes, and continue t o struggle and fight. Officer Rose noted that, on the “continuum of force,” the use of pepper s pray is one level above a verbal command and one level below the direct application of phys ical force, such as twi sting someone’s hand or wrist.

Dr. Glenn Birkitt, Jr., testified at trial that he treated Ms. Rush at the Bristol Regional Me

dical Center. Dr. Bi rkitt stated that Ms. Ru sh had suffered four puncture wounds: a superfici al wound in her rig ht elbow; another superfici al wound in her left anterior chest; and more serious wounds i n her right upper and ri ght middle back. The last wound was the largest wound and was still bleeding actively when Dr. Birkitt exami ned Ms. Rush at th e Medical Center. Upon performi ng a “CAT” scan, the doctor determined that the puncture wound was approximately six3 Incidentally , Dr. Bir kitt al so stated t hat, duri ng the course of h is treat ment, he noticedno signs that

Ms. Rush was intoxi cated. He recal led: At the ti me I saw her, she was reasonabl e, she was coherent and able to give me inf orm ation and talk to m e. Ther e was n o reaso n to be co nce rned that s he w as im paire d in an y way. Ms. R ush he rself testified that, while at the Station Ba r, she on ly consum ed one and one half Zim as. Moreover, we note that Offi cer Rose testi fied that he noticed no signs that the appell ant was intoxi cated on the ev ening of hi s offense. 7 centimeters in length and had penetrated the back of the liver, causing the liver to bleed into the abdominal cavity. Ms. Rush was administered fluids intravenously in order to maintain her blood v olume and was transferred to the intensive care unit. Ms. Rush remained in the hospital for four days. 3

In defense, the appellant presented the t estimony of Larry A. “Pete” Gross. Mr. Gross testified that he and the appellant have been best friends since childhood. He recounted that, on the afternoon of October 1, 1995, he met the appellant at the home of a mutual acquai ntance. They watched a rac e on television and then decided to drive “ through the mountain.” Duri ng their excursion,the appellant instructed Mr. Gross to drive to the S tation Bar. The appellant expl ained that he wished to locate his ex-wife in order to obtain her permission to see their daughter that weekend.

When the appellant and Mr. Gross arrived at the Station Bar, Ms. Rush was playing

pool. The appellant approached Ms . Rush and inquired concerning their daughter. Both the appellant and Ms. Rush appeared friendly during the ensuing conv ersation, which laste

d approximately five or six minutes. Afterwards, Mr. Gros

s became involved in a fight with Jimmy “J .J.” Cullop. The owner of the bar asked Mr.Gross and the appellant to lea ve the bar and escorted them outside into the parking lot. In the parking lot, the appellant and Mr. Gross conversed with the owner of the bar, who finally decided that they could return inside.8 Mr. Gross and the owner of the bar continued their conv ersation in the parking lot, but the appellant turned and walked toward the entrance of the bar. Ms. Rush, Ms. Crowe, and Mr. Cullop had followed the appellant and Mr. Gross into the parking lot and were standing just outside the entrance of the bar. According to Mr. Gross, whose view was somewhat obscured by several parked cars, Ms. Rush stopped the appellant and initiat ed a conversation. She soon began “screaming and . . . cussing [at the appel lant].” Mr. Gross r esumed his conversation w ith the owner of the bar, but the altercation at the entrance once again captur ed his attention when he heard the appellant ex claim, “You sprayed me, why did you spr ay me?” As noted earlier, Mr. Gros

s’s view of the bar’ s entrance was obscured by several parked cars. Neverth eless, as he approached the entr ance, Mr. Gross could hear the appellant saying, “[G]et away, stay b ack.” When he arrived, the appellant w as alone and kept saying, “ I can’t see, I’m blind, she b linded me.” Mr. Gross testified that the appellant was holdi ng a knife.

At the conclusion of the appellant’ s trial, the trial cou rt instructed the jury on the following offenses pursuant to Count I of the ind ictment pertaining to Ms. Rush: attempt to commit second degree murder; atte mpt to commit voluntary manslaughter; intentional or knowing aggrav

ated assault accompanied by s erious bodily injury; r

eckless aggravate

d assault accompanied by ser ious bodily injury ; and assault accompanied by bodil y injury. With respect to Count II of the indictment pertaining to Ms. Crowe, the trial court instructed the jury on the following offenses: intentional or knowing aggravated assault by use of a deadly weapon; reckless endangerment by use of a deadly weapon; and assault by c ausing another to reasonably fear imminent bodily injury. The trial court additionally instructed the jury on the defenses of self-def ense and necessity. Following deliberation, the jury found the appellant guilty of r eckless aggravate

d assault with respect

to Count I of9 the indictment and acquitted th e appellant of Count II.

II. Analy

sis
A. Jury Instructions

i. Reckless Aggr

avated Assau lt The appellant first contends that, w ith respect to his indic

tment for attempt to commit second degree murder of Ms. Rush, the trial court erroneously instructed the jury on the offense of reckless aggrav ated assault. The appellant correctly notes that our supreme court in State v. Trusty , 919 S.W.2d 305, 312 (Tenn. 1996), held that aggr avated assault is neither a lesser grade nor a l esser included offense of attemp ted murder. However, because the supreme court’s holding was based, in part, upon the language of the in dictment in that case, the holding does not necessari ly avail the appell ant.

The supreme court’s opinion in Trusty was grounded in the due process requirements that a criminal defendant be inf ormed of the nature and cause of the State’s accusation and afforded a fair opportunity to defend against the charges. Id. at 309. Consistent with these requirements, “an i ndictment or presentment must provide noti ce of the offense charged, an adequate basi s for the entry of a proper judgment, and suitable protection against doub le jeopardy.” Id. Relying upon these g uidelines, the court concl uded that a constitutionally adequate indictment for one offense will addi tionally provide no

tice of (1) all lesser offenses which, by reason of statutory construction, are lesser grade offenses, and (2) all lesser offenses which, by reason of the language in the indictment, are necessarily included in the greater offense. Id . at 310-311. Thus, a determination of lesser included offenses depends upon the language by which the greater off ense is charged in the indictment and can only be made on a case by case basis. See,10 e.g. , State v. Flanigan , No. 03C01-9708-CR-00330, 1998 WL 338207, at *2 n.1 (Tenn. Crim. App. at Knoxville, June 26, 1998)(while aggravated assault is generally not a lesser included offense of attempted mur der, the language of an indic tment charging attempted murder may nevertheless allege an aggravated assault ); State v. Nolan , No. 01C01-9511-CC-00387, 1997 WL 351142, at **5-6 (Tenn. Crim. App. at Nashville, June 26, 1997)(even if an indictment charges attempt to com mit first degree murder, the indictment will support a conviction of aggravated assault if it alleges serious bodily injury or the use of a deadly weapon).

In this case, the indictment c harged: GUY WILLIAM RUSH on or about October 1, 1995 . . . did unlawfully, feloniously, and knowingly attempt to kill Tina Cherie Rush . . . by stabbing her several times, in violation of Tennessee Code Annotate d Section 39-13- 202 . . . . The appellant contends that the indictme nt cannot support a conviction of reckless aggravated assault as it fails to allege the use of a deadly weapon, serious bodily injury, or a mental state of recklessness.

Initially, whether or not Count I of the indictment alleged the appellant’s use of a deadly weapon is i rrelevant to the resol ution of this issue, because the t rial court only instructed the jury on the offense of reckless aggravated assault accompanied by serious bodily injury. Specifically, the trial court instructed the jury that the State was requi red to prove beyond a r easonable doubt that the appellant (1) recklessly c

aused bodily injury

to Ms. Rush and (2) the bodi ly injury w as serious. Tenn. Code. Ann. § 39-13-102(a)(2)(A) (1995); Tenn. Code. Ann. § 39-13-101(a)(1) (1995).

Moreover, Tenn. Code. Ann. § 39-11-301 (1997) and the11 accompanying Sentencing Commission Comments provide that greater levels

of culpability encompass the lesser. See, e.g. , State v. Brantley , No. 01C01-9508-CC00255, 1997 WL 11 0008 (Tenn. Crim. App. at Nashville, March 13, 1997)(this court held that an indictment charging intentional or knowing aggravated assault could support a conviction of rec kless aggravated as

sault). Accordingly, the mental state of “knowingly” charged in the indictment at issue encompassed the necessary mental state of “recklessness .”

Thus, with respect to the trial court’s instruction on reckless aggravated assault, the only question before thi s court is whether the indictment alleged serious bodily

injury. Again, i n reviewing an i ndictment, “the touchstone for constitutionality is adequate notice to the accused.” State v. Hill , 954 S.W.2d 725, 729 (Tenn. 1997). Adequate notice entails fact ual allegations relating to each essential element of the offense. Trusty , 919 S.W.2d at 309. See also State v. Cutshaw , 967 S.W.2d 332, 338 (Tenn. Crim. App. 1997)(“[a] judgment based on an indictment or presentment that does not allege all the essential elements of the offense is a nullity”). M oreover, the indictment must state the facts in ordinary and concise language, enabling a person of “common understan ding” to know what is intended. Trusty , 919 S.W.2d at 309; Tenn. Code. Ann. § 40-13-202 (1997).That having been said, our s upreme court explained in Trusty “that in some instances, where an element is impli cit although not specifical ly stated in the indictment, a conviction may be sust ained.” 919 S.W.2d at 312-313; Hill , 954 S.W.2d at 729 (“the required mental state may be inferred from the nature o f the criminal conduct alleged [in the indictment]”). See also State v. Palmer , No. 01C01-9607-CR-00285, 1997 WL 722789, at *10 (Tenn. Crim. App. at Nashvi lle, November 20, 1997), perm. to appeal denied , (Tenn. 1998). We conclude that a person of common understanding would int erpret the language in the indictment charging the appellant12 with knowingly

“stabbing” the vic

tim “several times” to include the essential ele ments of reckle ss aggravat ed assau lt, includ ing seriou s bodily in jury.

Tenn. Code. Ann. § 39-11-106(a)(34) (1995) def ines “serious bodily injury” as “bodily injury which involves:

(A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pai n; (D) Protracted or obvious di sfigurement; or (E) Protracted loss or subst antial impairment of a function of a bodily member, organ or mental faculty . . . .” The language of the indictment in this case provided sufficie nt notice to the appellant that the State was alleging injuries which either created a substantial risk of death or caused “[e]xtreme phy sical pain.” In reachi ng this conclusion, w e note that the common dictionary definition of “stab” is “to pierce or wound with or as if with a pointed weapon . . . . to thrust, plunge, o r jab (a knife, pointed we apon, or the like) into something . .. . to penetrate sharply or painfully . . . . Random House Webster’s Unabridged Dictionary 1852 (2d ed. 1998). Moreover, the indictment in this case alleged that the appellant stabbed the victim more than once, logically increasing any accompany ing risk of death or any pain. This issue is w

ithout merit.

ii. Attempt to Commit Criminally Negligent Homicide and Felony

Reckless Endangerment The appellant next alleges that the trial court err oneously failed to instruct the jury on the offenses of attempt to commit criminally negligent homicide and felony reckless endange rment. A trial court in a criminal case is req uired by statute to instruct the jury on the general principles of law relating to each offense4 The record refl ects that the appell ant’s t rial co unsel did r equest inst ructions on the offenses of attempt to com mit criminally negligent homicide and reckless end angerme nt, but the trial court denied the appe llant ’s request.Trial counsel subsequently

emphasized his obj ection t o the tri al court’s f ailure to charge th e offense of reckl ess endangerment with r espect to Count Iof the indictm ent. 13 included in the indictment, ev en absent a request by the defendant. 4 Tenn. Code. Ann. § 40-18-110(a) (1997). See also State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997); State v. Elder , 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998). Therefore, when the evidence i ntroduced at trial is le gally sufficient to suppor t a conviction of a lesser grade or lesser included offense, a criminal def endant is entitled to a jury ins

truction on the lesser offense. Trusty , 919 S.W.2d at 311; Cutshaw , 967 S.W.2d at 341-342; State v. Cowart , No. 03C01-9512-CR-00402, 1999 WL 5174, at *15 (Tenn. Crim. App. at Knoxv ille), perm. to appeal denied , (Tenn. 1999). See also State v. Willia ms , 977 S.W.2d 101, 10 5 (Tenn. 1998).

Of course, as noted above, the tr ial court must first determi ne whether a requested instruction sets forth a lesser offense of the offense charg ed in the indictment. Elder , 982 S.W.2d at 876. In th is case, the trial court correctly determined that attempt to commit cr iminally neglig ent homicide is not a lesser offense of attempt to com mit second degree murder, because the former of fense does not exist in Tennessee. State v. Mooney , No. 02C01-9508-CC-00216, 1998 WL 906477, at *4 (Tenn. Crim. App. at Jackson, Dec ember 30, 1998); State v. Nolan , No. 01C01-9511-CC-00387, 1997 WL 351142, at *9 (Tenn. Crim. App. at Nashville, June 26, 1997)

. Cf. State v. Kimbrou gh , 924 S.W.2d 888, 891-892 (Tenn. 1996)(“[i]t is impos sible to conceive of an attempt where a crime by definition may be committed recklessly or negligently but not intentionally”).

In contra st, in ligh t of the l anguage in Count I of the indic tment, we must conclude that, in this c ase, felony reckless endang erment is a lesser incl uded14 offense of attempt to commit second degree murder

. Compare State v. Bentley , No. 02C01-9601-CR-00038, 1996 WL 594076, at *1-2 (Tenn. C rim. App. at Jackson, October 17, 1996)(this court implicitly acknowledged that, in that case, reckless endangerment was neither a lesser grade nor less er included offense of attempt to commit first degree murder) . Again, the indictment char ged the appellant with knowingly stabbing Ms. Rush several times. A person commits reckless endangerment “who recklessly engages in conduct which places or may place another person in imminent dange r of death or serious bodily injury. Tenn. Code. Ann. § 39-13-103(a)(1997). Wh en the offense of reckless endangerm ent is committed with a deadly weapon, the offense is a class E felony. Id. at (b). Just as a person of common understanding w ould interpret the languag e “by stabbing her several times” to imply serious bodily injury to the victim, she would similarly understand the language to enc ompass the imminent danger of death or serious bodily injury. Moreover, we conclude that the use of a deadly weapon is implicit in this language.

Having concluded that felo ny reckless endanger ment is a lesser included offense of attemp t to commit second degree murder, we must also determine whether an instr uction on the lesser incl uded offense was warranted by the evidence adduced at trial

. Elder , 982 S.W.2d at 876-877. The relevant questio n is whether “the evidence, when viewed in the light most favorable to the defendant’s theory of the case, would just ify a jury ver dict in ac cord with th e defen dant’s th eory, and would permit a rational trier of fact to find the defendant guil ty of the lesser offense and not guilty of the greater offe nse.” Id. at 877. See also State v. Langford , 994 S.W.2d 126, 12 8 (Tenn. 1999)(failure to instruct on a lesser offe nse is not error when the r

ecord is devoid of any ev idence permitting an inferenc e of guilt of the lesser offense); State v. Lewis , 978 S.W.2d 558, 565 (Tenn. Crim. App.15 1997), perm. to appeal denied , (Tenn. 1998)(“[o]nly when there is some evidence upon which reasonable minds could convict the defendant of a particular lesser offense is the court required to instruct regarding that offen se”).

In this case, the primary distinction between reckless endangerment and reckless aggrav

ated assault (other than the use of a deadly weapon, whi ch was undisputed at trial) w

as the distinction between the imminent danger of death or serious bodily injury and the realization of that danger in the form of serious bodily injury creating a substantial risk of death or extreme physical pain. In other words, this court must ask whether a rational trier of fact c ould have found the appellant guilty beyond a rea

sonable doubt of merely placing Ms. Rush in danger of death o r serious bodily injury and acquitted the appellant of inflicting serious bodily injury upon Ms. Rush.

As noted earlier, the evi dence at the appellant’s tria l established that the appellant became embroiled in a physical altercati on with his ex-w ife and, upon being sprayed with pepper spray, with drew a knife and stabbed Ms. Rush four times. The most serious wound was six centimeters in length and penetrated Ms. Rush’s liver. M s. Rush was placed in the intensive care unit at Bristol Regional Medical Center and remained in the hospital for four days.Ms. Rush testified that, during the incident, she w as “in a lot of pain” and beli eved that she was dy ing. She stated that, at the time of the appellant’ s trial, s he was sti ll experi encing some residual pain as a result of her injuries. Dr. Birkitt confirmed that the injuries would have been painful. Dr. Bir kitt additionally tes

tified that Ms. Rush report ed to him at the hospital that, followi ng the appellant’s attack, she “was notably unco mfortable” and “had pain in her chest and back.” Dr. Birkitt stated that at no time did Ms. Rush experience clinical

shock, and her vital s igns, including her blood pressure, her16 pulse, and her respiration,remained within normal r ange. Viewing this

evidence in a light most favorable to the appellant, we must conclude that rationa l jurors could have disagreed concerning the extent of Ms. Rush’s injuries.

However, although we have concluded that the appellant was entitled to an instruction on the less er included offense of felony reckles s endangerment, our analysis is not c

omplete. We must still determine whether the trial court’s err or affirmatively appears to hav e affected the result of the trial on th e merits, or, in other words, whether the er

ror more probably than not affected the judgment to the appellant’s prejudice. Williams , 977 S.W.2d at 105; Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). In Williams , 977 S.W.2d at 101, the defendant was indicted for the offense of first degree premeditated mur der. At trial, in additi on to instructing the jury on the offense of first degree murder, the trial court instructed the jury on the lesser included offenses of second deg ree murder and reckless homi cide. Id. at 106. The trial court erroneo usly declined to instr uct the jury on the less er offense of voluntary manslaught

er. Id. The jury convicted the defendant of first degree murder. Id. Our supreme court concluded that the trial court’s error was harmless, because the jury’s “di sinclination to consider the lesser included offense of second degree murder clearly

demonstrate[d] that it certai nly would not have returned a verdict on voluntary manslaughter.” Id. In other words, by finding the defendant guilty of the highest offense to the exclusion of the immediatel y lesser offense, the jury necessarily

rejected all other less

er offenses. Id. Unfortunately, the analy sis of our supreme court in Williams does not neatly fit the facts of this case, because felony reckless endanger ment, had it been charged, w ould itself have been the immediately lesser offense. Therefor e, arguably, the jury

’s rejection of the lesser offense of assault says nothing about whether it would hav

e returned a verdict on felony reckless endanger ment.17 Yet, we have already

noted that the key distinc tion between felony reckless endangerment and reckless aggravated assault as instructed in this case was the distinction betw een the mere possibility of death or serious bodily injury and the realization of serious bodily injury. The key distinction betw een assault and reckless aggrav

ated assault was the distinction between bodily injury and serious bodily injury. Ms. Rush unquestionably suffered bodily injury. Therefore, regardless of whether the trial cour t charged felony reckl ess endangerment, assault, or both, the only question before the jury in choosing between reckless aggravated assault and any lesser offense was w hether Ms. Rush suffered serious bodily injury. The jury foun d that Ms. Rush suf fered se rious bod ily injury.

In Williams , our supreme court did not l imit its holding to the fact s of that case, but appeared to announce a br oader principle that a tri al court’s failure to instruct on lesser offenses is subject to the harmless err or analysis set forth i n Tenn. R. App. P. 36(b) and Tenn. R. C rim. P. 52(a). Somewhat i nconsistently, the supreme court more recently remarked that “[t]he failure t o instruct on a lesser offense . . . may be shown to be harmless beyond a reasonable doubt under some circumstances.” State v. Bolden , 979 S.W.2d 587, 59 2 (Tenn. 1998)(emphasis added). In any event, w e conclude that the trial cou rt’s error in this case was harmless beyond a reasonable doubt.

B. The State’s Failure to Comply with the Appellant’s M otion for Discov ery i. Th e Sta te’s Fail ure t o Pro vide the C rimi nal R ecor d of W endy Crowe The appellant additionally al leges that the State withheld information that one of its witnesse

s, Wendy Cr

owe, ha d been co nvicte

d of misde meanor t heft5 At the heari ng on the appel lant’ s Motion for New Tri al, t he appellant introduceda copy of t he judgment of conviction, ref lecti ng that, on December 15, 1993, Ms. Crowe was convi cted in t he Gene ral Sess ions Co urt of Sullivan Coun ty of misd eme anor the ft. 18 in 1993. 5 Prior to trial, the ap pellant submitted a Motion for D iscovery, requ esting that the State provide the cr iminal records of any w itnesses for the State followi ng direct examination of the witness at trial. The appellant contend s that the State’s compliance with this r

equest was mandated by Tenn. R. Crim. P. 16 and the Unit ed States Supreme Court’s decis ion in Brady v. Maryl and , 373 U.S. 83, 83 S.Ct. 1194 (1963).

Initially, our supr eme court has held that the State has no duty, either under Tenn. R. Crim. P. 16 or pursuant to decisional law in this state, to secure a nd deliver to a criminal

defendant the arrest histories , if any, of the State’s witnesses. State v. Workman , 667 S.W.2d 44, 51 (Tenn. 1984). See also State v. King , 905 S.W.2d 207, 212 (Tenn. Crim. App. 1995), overruled on other gr ounds by Williams 977 S.W.2d at 106 n.7(this court held that the cr iminal history of a witness for the State is not the kind of information the State has a duty to produce p ursuant to Tenn. R. Crim. P. 16); State v. Dunlap , N o. 02 C0 1- 98 01 -C C- 00 00 9, 19 98 WL 641338, at *4 (Tenn. Crim. App. at J ackson, September 21, 1998)(the St ate is not required to provide a defendant with the criminal records of the State’s witnesses). However, this cour

t must still address w

hether the State possessed such a duty
pursuan t to fede ral const itutiona l law.

In Brady v. Maryl and , 373 U.S. at 87, 83 S.Ct. at 1196- 1197, the United States Supreme Court hel d that the State has a duty purs uant to principles of due process to furnish excul patory evidence to an ac cused. In United St ates v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 3380 (1985 ), the Supreme Court clarified that the Brady

rule encompasses impeachment ev idence. However, before6 The State notes i n its bri ef that t he appellant faile d to renew hi s request for the disput

ed evidence fol lowing Ms. Crowe’ s testi mony. However, t he State ci tes no authori ty for the proposi tion that the appellant

was required t

o renew his requ est in ord er to tr igger the Bradyrule. Indeed, assuming that the

other prer

equisit es to appli cation of the Brady rule w ere s atisfie d, Ms . Cro we’s record was arg uably the type o f “obvious ly exculpato ry” evidenc e which m ust be pr ovided b y the State even in the absen ce of an y reques t by a crim inal defen dant. 19 the appellant is entitled to r elief pursuant to the Brady rule, he must establish the following prerequi sites: (a) the appellant mus t have submitted a proper r equest for the production of evidence, unless the evidence was obviously exculpatory in nature and would have been helpful to the ap pellant ; (b) the p rosecuti on must h ave suppressed evidence; (c) the suppressed evidence must have been favorable to the accused; and (d) the evide nce must have been material. See State v. Edgin , 902 S.W.2d 387, 389 and 390 (Tenn. 1995); Irick v. State , 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998); State v. Welcome , No. 03C01-9709-CR-00386, 1998 WL 832433, at *10 (Tenn. Crim. App. at Knox ville), perm. to appeal denied , (Tenn.), cert. denied , U.S. , 119 S.Ct. 219 (1998). The ap pellant carries t he burden of proving a Brady violation by a prepo nderance of the evidence. Edgin , 902 S.W.2d at 389.

It is undisputed in this c ase that the appellant submitted a r equest for the criminal records of all witnesses for the prosecution. 6 Moreover, it is u ndisputed that Ms. Crowe’s c riminal record constituted evidence favorable to the appellant. Ms. Crowe was the only witness for the prosecution, other than the v ictim, who was able to recount details of the fig ht between the appellant and his ex-wife. Had the State provided the appellant with Ms. Crowe ’s criminal record, he could have asked Ms. Crowe on cross-examination about her prior conviction of theft for the purpose of impeaching her testimony. Tenn. R. Evid. 609. See also State v. Ho ltcamp , 614 S.W.2d 389, 394 (Tenn. Crim. App. 1980)(“[s]teal ing is dishonest conduct and an offense involving such c onduct is a proper subject o f cross-examination); State v. Johnson , No. 02C01-9504-CC-00097, 1997 WL 80970, at *4 (Tenn. Crim. App. at Jackson, February 27, 1997)(theft is a crime involving dishonesty and is particularly20 relevant to the issue of cr edibility). Accor

dingly, the resoluti on of this issue turns on the questions of whether the prosecution suppressed the ev idence and whether the evidence was material.

One court has recently o bserved that, “[a]bsent pr osecutorial knowledge, by definiti on there can have been no gov ernment suppression of evidence.” Shakur v. United States , 32 F.Supp.2d 651, 658 (S.D.N.Y. 1999). In this case, the record reflects and it is undisputed that the pros ecutor was not aware

of Ms. Crowe’s cri minal record at the time of the appel lant’s trial. Nev ertheless, the Supreme Court in Kyles v. Whitley , 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995 ), stated that “the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” In other words, “[t]he individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation.” United States v. Paynes , 63 F.3d 1200, 1208 (2nd Cir. 1995).

In Kyles , the Court was addressing the detectives’ failure in that case to provide information to the prosecutor which they had uncovered during the course of their investigation.514 U.S. at 438, 115 S.Ct. at 1568 . The Court expressed concern that permitting the prosecutor to thereby av oid the Brady

rule would effectively substitute the police for the prosecutor. Id. In contrast, the appellant does not allege that police officers investigating this case were aware of Ms. Crowe’s criminal record at the time of his trial, but only that the criminal record existed. It is a sig nificant step from imputing know ledge to prosecutors of information uncovered by pol ice during the course of a s pecific investigatio n to imputing knowledge to

the prosecutor of all information possessed by the police o r other government agenci es. But see, e.g. , Criven v. Roth , 172 F.3d 991, 996-99821 (7th Cir. 1999).

More importantly, this court has previously held that, when exculpatory evidence is equally available to the prosecution and the accused, the accused must bear the responsibility

of seeking its discov

ery. State v. Marshall , 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992); State v. Moates , No. 03C01-9610-CR-00383, 1997 WL 344800, at *4 (Tenn. Crim. App. at Knoxvi lle, June 24, 1997), perm. to appeal denied, concurring in results only , (Tenn. 1998); State v. Brewer , No. 01C01-9308- CR-00276, 1996 WL 63949, at *24 (Tenn. Crim. App. at Nashville, February 13, 1996); State v. Walls , No. 02C01-9307-CR-00140, 1995 WL 686104, at * 5 (Tenn. Crim. App. at Jackson, Nov ember 15, 1995). Thus, in Bourff v. State , No. 03C01- 9705-CR-00189, 1998 WL 381970, at *3 (Tenn. Crim. Ap p. at Knoxville), perm. to appeal denied , (Tenn. 1998), we recentl y declined to find a Brady violation when the State failed to provide to the defendant evidence of the victim’s prior convictions in general sessions court. We observed that the con victions were a matter of public record and not in the excl usive control of the State. Id. See also, e.g. , Payne , 63 F.3d at 1208 (documents that are par t of the public record are not deemed suppressed if defense counsel should have known of them and failed to obta in them because of lack of diligence in his own investigation). Similarly, in this case, Ms. Crowe’s prior conviction in the Sullivan County General Sessions Court was a matter of public record and av ailable to the appellant. Tenn. C ode. Ann. § 10-7-507 (1992).

Moreover, even if the St ate should have discover ed Ms. Crowe’s pri or conviction and provi ded the information to the appellant, the evidence was not material. The relevant q uestion is whether, in the absence of this impeachment evidence, the appellant rec eived “a fair trial, understood as a trial resul ting in a7 The State correct ly not es that Tenn. Code. Ann. § 40-17-106 ( 1997) is i napplicabl e, as the State didnot present the testi mony of either Mr. Ellis or Mr. Cull op at tri al, nor is there any indicat ion that th e Sta te eve r inten ded to rely u pon their te stim ony. 22 verdict worthy of confidence.” Kyles , 514 U.S. at 434, 115 S.Ct. at 1566

. See also Edgin , 902 S.W.2d at 390; Irick , 973 S.W.2d at 657. We conclude that the proceedings in the instant case satisfy this standar d. This issue is without merit.

ii. Failure to Prov

ide the Names and A

ddresses of all Potenti al Witnesses to the Offen se The appellant also alleges th at the State failed to provide him with the name and address of the owner of the Station Bar, one Richard Ell is, the name and address of Jimmy “J.J.” C ullop, and, possibly, th e names and addresses or “other eyewitnesses of whom the State is aware but has no t informed [the appellant].” In his pre-trial Motion

for Discovery, the appellant asked that the State pro vide “the names and addresses of all persons known to the Distric t Attorney General or other law enforcement officers to hav e been present at the time and place of the alleged offense.” Again, the appellant contends th at the State’s compliance with this request was mandated by Tenn. R. Crim. P. 16 and Brady v. Maryl and , 373 U.S. at 83, 83 S.Ct. at 1194.

Initially, Tenn. R. Cr

im. P. 16 does not require n or authorize pretrial discovery of names and addr esses of witnesses for the Sta te, much less possible or potential witnesses. State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992); State v. Jones , No. 02C01-9703-CC-00120, 1997 WL 777077, at *8 (Tenn. Crim. App. at Jackson, December 18, 1997), perm. to appeal denied , (Tenn. 1998). 7 However, the Brady

rule encompasses information about or statem ents of witnesses which are favorable to a defendant. Smith v. State , N o. 02 C0 1- 98 01 -C R- 00 01 8, 19 98 WL 899362, at *6 (Tenn. Crim. App. at J ackson, December 28, 1998), perm. to appeal23 granted , (Tenn. 1999); Payne v. State , N o. 02 C0 1- 97 03 -C R- 00 13 1, 19 98 WL 12670, at *5 (Tenn. Crim. App. at J ackson), perm. to appeal denied , (Tenn. 1998). Nevertheless, the appell ant in this case has utterl y failed to demonstrate that the State suppressed any favorable and material evidence. See Edgin , 902 S.W.2d at 389, 390; Irick , 973 S.W.2d at 657; Welcome , N o. 03 C0 1- 97 09 -C R- 00 38 6, 19 98 WL 832433, at *10. Compare Marshall , 845 S.W.2d at 230-234 (this court found a clear violation of Brady

when the State withheld a list of witnesses who could possibly have exonerated the defendant and st atements by those witness es which both corroborated the defendant’s alib i and identified a possible alternative perpetrator)

. Indeed, the appellant has failed to ex plain why this infor

mation would not have been equally availabl e to his attorney as w ell as the prosecutor. Marshall , 845 S.W.2d at 233; Moates , No. 03C01-9610-CR-00383, 1997 WL 344800, at *4; Brewer , No. 01C01-9308-CR-00276, 1996 WL 63949, at *24; Walls , No. 02C01-9307-CR-00140, 1995 WL 686104, at * 5. This issue is witho ut merit.

C. The Admission at Trial of Testimony Concerning the Pending Charge Against

the Appellan

t of Custodial Int

erference The appellant additionally argues that the trial court erroneously permitted Ms. Rush to testi fy concerning a charg e of custodial interference pending against the appellant. The tr ial court conducted a hearin g out of the presence of the jury pursuant to Tenn. R. E vid. 404(b) and determined that the proposed testimony was relevan t to the ap pellant ’s motive f or the cha rged off ense and that the probative value of the disputed testimony was not outweighed by the danger of unfair prejudice.

Rule 404(b) governs the admission at trial of evidence of a person’s other crimes, wrongs, or acts as substantive evidence. A trial court should only admit evidence of other crimes , wrongs, or acts if relevant to issues suc h as motive,24 intent, identit

y, rebuttal of a

ccident or mist ake defen ses, and

the exi stence o

f a larger continuing pl an, scheme, or conspiracy of which the crime on tri al is a part. State v. Hall , 958 S.W.2d 679, 707 (Tenn. 1997), cert. denied , U.S. , 118 S.Ct. 2348 (1998). Assuming the tr ial court’s compliance w ith the procedural requirements of Rule 404(b) , its application of the rule will not be disturbe

d on appeal absent an abuse of discretion. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997).

The record in this case warrants deference to the trial court’s evidentiary ruli ng. During the appell ant’s trial, Ms. Rus h testified before the jury that , immediately prior to ass aulting her, the appellant inquired concerning a pending court hearing which they were both to attend the following week. According to Ms. Rush, she informed the appellant that she would attend the hearing . She further remarked to the appellant, “ . . . I can’t let you keep doing the things you do, so I will be there.” Contrary t

o the appellant’s assertion,the jury was nev er informed of the nature of the court proceedings, only that the appellant an d his ex-wife were

en ga ge d i n a n o ng oi ngle ga l d is pu te at th e t im e of t he

ap pe ll an t’ s o

ffe ns e. We agree with the trial court that Ms. Rush’s testimony was relevant to the appellant’s motive and, accordingl

y, his intent to commit the offense of attempted second degree murder. Moreov er, it is readily apparent that the extremely limited testimony at issue in no way pr

ejudiced the appellant.

D. The Parties’ Stipulation Concerning the Appropriate Range of Punishment The appellant next contends that, during the appellant’s tr ial, the parties stipulated that, if c onvicted, he would be s entenced as a Range II offender. Moreover, the appellant asserts that, in reliance upon this stipulation, he waived his statutory right to a n instruction pursuant to Tenn. Code Ann. § 40-35-201(b)8 Although t he record of t he trial proceedings reflects t hat a writ ten motion was fi led wit h the trial court, t his motion i s not incl uded in the r ecord. At t he sentencing hea ring, t he parties debated whethe r a written or o ral mo tion had b een su bmitted to the cou rt. 25 (Repealed, May 18, 1998) on the possible penalties for the charged offenses. The appellant concludes that the tr ial court’s failure to enforc e the parties’ stipulatio n and the court’s imposition of a Ra nge III sentence are inconsi stent with general principles of sentencing s et forth in Tenn. Code. Ann. § 40-35-10 2 (1997), including the pursuit of justice and fair and consistent treatment of all cr iminal defendants. The appellant does not otherwi se challenge his sentence.

The record reflects that, on Mar ch 26, 1996, the State submitted a “Notice of Intent to Seek Enhanced P unishment and To Inquire About Pri or Convictions If Defendant Elect s to Testify,” which n otice was amended on March 29, 1996. The amended notice set forth the following felony offenses:

1. One count of attempt to commit armed robbery and one count of use of a firearm on January 22, 1983, in Washington County, Virginia. 2. Petit larceny on November 25, 1985, in Sullivan County, Tenness ee. 3. Sale of Marijuana on October 11, 1991 in Sullivan County, Tenness ee. 4. One count of sale of marijuana and one count of sale of cocaine on October 14, 1991, in Sullivan County, Tennessee. 5. One count of sale of marijuana on October 18, 1991, in Sullivan Count y, Tennessee.

On the first day of the appellant’ s trial, immediately pr ior to the commencement of the trial, defe nse counsel filed a motion with the trial court 8 asking the trial cour

t to instruct the jury

pursuant to Tenn. Code. Ann. § 40-35- 201(b) on the possible penalties for the charged off enses of attempt to commit second degree murder in Count I and intentional or knowing aggravated assault in Count II. While discussing the possi ble penalties for the charged offense of attempt9 The appellant was represented at

trial by Richard A. Spivey andMark D. Harris. 26 to commit second degree murder,defense counsel observed that he had received notice of the appellant’s status as a Range II off ender and argued that the trial court should only instruct the jury on the possible penalties within Range II. The trial court disagreed. He indicated that, although he would not instruct the jury on possible penalties for attempt to commit second degree murder exceeding Range II, he would instruct the jur

y on possible penalties for that offense below Range II. The trial court explaine

d that the State might fail to pr ove the appellant’s Rang e II status at the sentencing hearing . The trial court then asked defense counsel to submit a proposed instruction.

Subsequently, followi ng testimony by sev eral witnesses for the prosecution, the parties r esumed their discussion w ith the trial court conc

erning the proposed instruction pursua nt to Tenn. Code Ann. § 40-35-201(b) . The following exchange between the trial court, the prosecutor (General W ilson), and defense counsel (Mr. Spivey) 9 ensued:

The Court: Now, what I said a w hile ago, I’m assuming the parties don’t have any stipulations as to what range, what l ength, mitigated, Range I, Rang e II, that the parties haven’t reached any stipulation? General Wilson: We haven’t, but I think -- as

Mr. Spivey mentioned earlier, I think we can stipulat

e that he would be Range II based upon . . . The Court: Couldn’t be mo re than Range

II? General Wilson: Could not be more than

Range II. The Court: Right. Because you haven’t

filed sufficient notice to make him anything other than a multiple offender. General Wilson: That’s right, my -- my notice27 would -- would make h im a Range II. Mr. Spivey: See, aggravated assault is not

-- not eligi ble for sa fety valve reduction. So . . . The Court: Well, see, look on your chart

there. Mr. Spivey: Uh-hum. (Affi rmative) I am. The Court: Okay, it’s got -- it breaks it

down, it gives you one, then it brings it down to tha

t level. Then it brings down to the other level. Then if you’ ve got all of them, it brings it down. So, you can look there. Let me show you. Mr. Spivey: Yeah, I see what you’re

saying, that’s ex

actly right. The Court: See, if . . . Mr. Spivey: 4.20. The Court: Right. Well, you go . . . Mr. Spivey: Maximum credit, safety v alve. He won’t get that. The Court: Well, you can take the safety

valve out and compute it. Mr. Spivey: Can you believe they ’ve made something so simple so difficult? That’s pathetic. The Court: That’s the way you got to do

it. Mr. Spivey: Well . . . The Court: I was . . . Mr. Spivey: I agree . . . The Court: Well, here’s the one we did in the --

remember that . . . Mr. Spivey: Bob . . . The Court: . . . disc jockey w e did? Mr. Spivey: Dave Carter. The Court: That’s the way -- that -- that’s

before it changed. I think it’s got different since then. Mr. Spivey: No. No. We’re going to

withdraw the rang e of punishment request. The Court: All right. Mr. Spivey: We’re taking it away. The Court: Now, I’d review anything you all submitted to me. Mr. Spivey: I -- I will state for the record

that your position regarding us giving you char

ges had nothing to do with that decision. The Court: All right.28 Mr. Spivey: I don’t -- yeah, I unders tand. No, I will not rel

y on that on appeal. The Court: Okay. But you have that right.

You can require me . . . Mr. Spivey: I understand that, but I’m not -

- we -- we don’t

want it. The Court: All right. Mr. Spivey: Now, we do want al l the

lesser included offenses. The parties then proceeded to debate w hat lesser included or l esser grade offenses the trial court sho uld instr uct to the jury.

Following the appell ant’s conviction of reck less aggravated ass

ault, the trial court condu cted a sentenc ing hearing on Sep tember 11, 19 97. At the heari ng, the State argued that, with respect to his convi ction of reckless aggr avated assault, the appellant was a Rang e III offender. Defense counsel objected t o the imposition of a Range III sentence, citin g the State’s earlier s tipulation. The following exchange between the trial court, the prosecutor (General W ilson), and defense counsel (Mr. Harri s) ensued: General Wilson: Well, Your Honor, please, if

convicted of the charge he went to trial on, and the jury went to deliberate, if conv icted of that, he wou ld be a Range II. But, they came back w ith a D felony conviction, which makes him a Range III because he had five priors, but he did not have sufficient priors to count for a conv iction on a A or B conviction. The Court: Did we -- yeah, because that

takes a specific kind of conviction. General Wilson: Yes, sir. The Court: To Range II on it. Now, I can’t

remembe r at trial, did we discuss charging of r

ange of punishment as to lesser and included offenses? Mr. Harris: Yes, Your Honor. Y es, Your Honor. Maybe not specifically29 each less er includ ed, but we requested the lesser inc luded charge. You set those out , what they would be. It would go down to reckless aggravated assault. It would not be a reckless endangerment because it was not a lesser included of attempted second degree, and you would give this misdemeanor assault. And then we requested -- at that time, we requested range of punishment charge. And at that time is when -- i s when the conversation took place as to what range he w

as and where the c

harge wou ld come from within the range. The Court: Okay. Mr. Harris: I mean if that -- if -- if that

would have been the case, Your Hono r, we would h ave elected to have the charg es read as . . . * * * The Court: Okay. Now, but when the --

defense counsel says when this was discussed at trial, that on representation that the Defendant was a Range II Offender to the lesser included offense he was eventually convi cted of, you made a strategy decisi on not to request range of punishment. Mr. Harris: Based on the representation,

that’s correct, Your Honor . . . . I don’t see how the State can say he’s a Range IIand then come back later now and try to say he’s a R

ange III. The Court: Well, there’s different ranges

for different classes of offenses. Mr. Harris: But, we -- we w ere talking about the lesser includeds. General Wilson: I don’t believe we w ere, Your Honor.30 Ultimately, the court concluded that the State’s sti pulation to the appellant’s R ange II status was solely related to the original charge of attempt to commit second deg ree murder and was not a stipul ation to the appellant’s rang e with respect to any lesser included offenses.

Although the appellant characterizes his claim as a challenge to his sentence, implicit in his argument is his contention that the State’s misrepresentation concerni ng its stipulation to th e appellant’s status as a Ra nge II offender and the trial court’s imposition of a Range III sentence deprived him of his statutory right to h ave the jury know the range of punishment applicabl e to the charges before deciding g uilt or innocence. State v. Cook , 816 S.W.2d 322, 326 (Tenn. 1991). The denial of a defendant’s sta tutory right under Tenn.Code. Ann. § 40-35-201(b) may constitute “prejudice to the judic ial process,” requi ring a reversal of a defendant’s conviction. Id. at 326-327.

Nevertheless, whether characterized as a sentencing error or a deprivation of his statutor y right to a jury

instruction on possible punishments for the charged offenses, his argument depe nds upon the existence of a stip ulation between the parties to the appe llant’s status as a Rang e II offender for purposes of the lesser included offense of reckl ess aggravated assaul t. In short, we agr

ee with the trial court’s finding that, to the extent the State stipulated to th e appellant’s status as a Range II offender, the s tipulation did not extend to possible punishments for lesser offenses of attempt to commit second degree murder.

Our conclusion is inesc apable upon a careful reading of the t ranscript. The prosecutor indicated a w illingness to stipul ate to a Range II sentence upon th e trial court’s resumpti on of a conversation about the appr opriate range of punishment31 for the specific offense of attempt to commit second degree murder. The conclusi on that the prosecutor’s proffered stipulation was limited to sen tencing for this offense is buttressed by his ob

servation to the trial

court that his “Notice of Intent to Seek Enhanced Punishment” only pro vided notice of the appellant’ s status as a Range II offender. Clearly, with respect to the offense of reckless aggravated assault as opposed to attempt to commit second deg ree murder, the State’s notic e supported Range III sentencing. M oreover, contrary to the appellant’s assertio n at the sentencing hearing and i n his brief, neither the tri al court nor the parties ha d yet determined the lesser offenses of attempt to c ommit second degree murder w hen the prosecutor proffered the disputed stipulation.

We additionally note in passing that the record arguably does not support the exi stence o

f any stipulation, much less the s tipulation alleged by the appellant. Generally, s tipulations are favored and s hould be encouraged and enforced by the courts, sinc e they expedite the busine ss of the courts. State v. Ford , 725 S.W.2d 689, 691 (Tenn. Crim. App. 1986). It i s all the more important, therefore, for counsel to ensure that the existence a nd scope of any stipulation is clearly reflected in the record. In this case, al though the State indicated a willingness to stipulate to the appellant’s status as a Range II offender with respect to the charge of attempt to commit sec ond degree murder, defense counsel did not indicate the appellant’s ag reement to forego any future chal lenge to his Range II status before waiving

the appellant’s right t

o the proposed instruction. See Cohen, Sheppeard, and Paine, Tennessee Law of Evidence (1995) § 201.8, p.49 (“[s]i nce a stipulation requires an agreement, one party’s offer to stipulate does not create a stipulation; both parties mus t agree before a stipulation o ccurs). See also Ford , 725 S.W.2d at 691(emphasis in original)(“[a] stipulation is an agreement between counsel with respect to business before the court”). Indeed, in light of defe nse32 counsel’s claim that their waiver of the appellant’ s right under Tenn. Code. Ann.§ 40-35-201(b) was conti ngent upon the alleged stipu lation, we find it curi ous that counsel made no attempt to clarify and confirm the existence and s cope of the parties’ agreement. This i ssue is without merit.

E. Newly Discovered E vidence The appellant also contends that the trial court should hav e granted his Motion for New Tri al due to the availability following the appel lant’s trial of another eyewitness to the appellant’s offense. Specificall y, the appellant contends that Jim my “J.J.” Cu llop was a f ugitive fr om justic e during hi s trial. Su bsequen tly, the poli ce appre hended M r. Cull op who w as there after av ailabl e to testify concerning the appellant’s offense. However, at the hearing on the app ellant’s Motion for New Trial, the appellant offered no proof concerning the content of Mr. Cullop’s propose d testim ony.

In order to obtain a new tr ial based upon newly di scovered evidence, the appellant must establish: ( 1) reasonable diligence in attempting to discov er the evidence; (2) the materiality of the evidence; and (3) that the evidence would likely change the result of the trial

. State v. Nichols , 877 S.W.2d 722, 73 7 (Tenn. 1994); State v. Caldwell , 977 S.W.2d 110, 116 (Tenn. Crim. App. 1997), perm. to appeal denied , (Tenn. 1998); State v. Perez , N o. 03 C0 1- 96 03 -C C- 00 13 4, 19 98 WL 851470, at *19 (Tenn. Crim. App. at Knoxville, December 10, 1998). The decision to grant or deny a new trial on the basis of newly discovered evidence rests within the sound discretion of the tri al court. State v. Walker , 910 S.W.2d 381, 395 (Tenn. 1995); Caldwell , 977 S.W.2d at 117; Perez , N o. 03 C0 1- 96 03 -C C- 00 13 4, 19 98 WL 851470, at *19. In the instant cas e, the appellant has patently failed to demonstrate his right to a new t rial or any abuse of discretion by the trial c ourt.33 F. Sufficiency of

the Evidence Finally, the appellant challenges the sufficiency of the evidence supporting his convi ction of reckless aggr avated assault. In Tennessee, ap pellate courts accord considerabl e weight to the ver dict of a jury in a cri minal trial. In essence, a jury conviction removes the presumption of the defen dant’s innocence and replaces it with on e of guilt, so that the appellant carries the burden of demonstrating to this cour t why the evidence will not support the j ury’s findings. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). The appellant must estab lish that no “reasonable trier of fact” could have found the essential elements of reckless aggravated assault be

yond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App . P. 13(e).

Accordingly, on appeal , the State is entitled to the strongest legitimate view of the evidence a nd all reasonable inferences w hich may be drawn there from. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). In other word s, questions concerning the credibil ity of witnesses and the weight and value to

be given the evidence, as well as

all factual issues raise d by the evidence, are r esolved by the trier of fact, and not the appellate c ourts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990).

As noted earlier, in order to commit reckless agg ravated assault, a person must recklessly cause bodily injury

to another, and the bodily i njury must be serious. Tenn. Code. Ann. § 39-13 -102(a)(2)(A); Tenn. Code . Ann. § 39-13- 101(a)(1). Bodily i njury “includes a cut, abrasion, bruise, burn o r disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty .. . .” Tenn. Code. Ann. § 39-11- 106(a)(2) (1995). In contrast, serious bodily injury requires

a substantial risk of death or extreme physical34 pain. Tenn. Code. Ann. § 39-11-106( a)(34)(A) and (C). The distinction between bodily injury and s

erious bodily injur

y is a question of fact for the jury and not a question of law. State v. Barnes , 954 S.W.2d 760, 765-766 (Tenn. Crim. App. 1997).

Briefly revisiti ng the evidence adduced at tr ial and viewing the evidence in a light mos t favorable to the State, the r ecord reflects that the appellant initiated a physical c

onfrontation with his ex -wife in the parking lot of the Station Bar. During the course of the fight , Ms. Rush s prayed th e appella nt with pep per spray, whereupon the appellant w ithdrew a knife and stabbed her four times. One of the stab wounds penetrated Ms. Rush’s liver, caus ing her liver to b leed into her abdominal cavity. She w as placed in the intensiv e care unit of the Bristol R egional Medical Center and remained at the Medical Center for four d ays. We conclude that the record clearly reflects that the appellant recklessly caused Ms. Rush bodily injury. Moreover, we conclude that the ev idence adduced at trial suppor ted a finding that Ms. Rus h’s injuri es both creat ed a substant ial risk o

f death and ext reme physical pain. Tenn. Code. Ann. § 39-11-106-(a)(34)(A) and (C). Although Ms. Rush’s vital sig ns remained within normal ranges, serious bodil

y injury does not require an imminent ris k of death, only a substantial risk. Tenn. Code. Ann. § 39- 11-106-(a)(34)(A). A

rational juror could c

onclude beyond a reasonable doubt that the six centimeter stab w ound which penetrated Ms. Rush’s liver cre ated a substantial risk of death. M oreover, while thi s court has conceded the difficulty of quantifying or measuri ng pain, the testimony at t rial supported a conclusi on that the pain caused by the four stab wounds was sufficiently severe to be placed in a class with an injury i nvolving a substantial risk of death. State v. Si ms , 909 S.W.2d 46, 49 (Tenn. Crim. App. 1995).10 The State in i ts brief also cit es Tenn. Code. Ann. § 38-2-102 (1997), which provi des that “[r]esi stance suffi cient to prevent [an] offense may be made by t he party a bout to be i njured to pr event an: (1) Offense ag ainst t he party’s person . . . .” Thi s provisi on is impli cit i n the stat ute setti ng forth t he defense of self

-defense. The Stat

e’s cit ation emphasiz es the point that, when evaluati ng a claim of self-defense , a factor in the j ury’s a nalysi s must be whether or not the State has proved beyonda reasonable doubt

that th e vic tim ’s cond uct w as law ful. 35 However, the appellant argues that the State failed to negate his argument at trial that he ac ted in self-defense. Tenn. Code. Ann. § 39- 11-611(a) (1997) sets forth the components of a defense of self-defense: (1) the victi m used or attempted to use unlawful force against the accused ; (2) the accused reasonably believed that he was thr eatened with imminent death or serious bodily injur y, i.e., the belief was founded upon reasonable grounds; and (3) the danger of imminent death or serious bodily injury was real

or the accused honestly be lieved that the danger was real at the

time of the accused’s threat or use of force. “The [S]tate has the burden of proof to negate the defense; the bur den is not upon the defendant to prove the defense exists.” State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996). Whether the State has met its burden is a question for the jury t

o determine. State v. Clifton , 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994); State v. Dean , No. 03C01-9508-CC-00251, 1997 WL 7550, at *6 (Tenn. Cr im. App. at Knoxville , January 10, 1997). We conclude that the rec ord supports the jury’ s resolution of this issue in favor of the Sta te.

Initially, the defense of self-de fense is only applicable w hen the other party is using or attempting to use “unlaw ful force.” Tenn. Code. Ann. 39-11-611( a). Given the trial court

’s full and complete instruction on the law of self-defense, a rational juror could hav e concluded beyond a reasonable doubt that Ms. Rush was lawfully defending hers elf against the appellant’s as sault when she spraye

d the appellant with pepper spr ay, particularly

in light of the appellant’s statement that he was carrying a knife. 10 See State v. Belser , 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996)(while emphasizing the State’s burden of negating the defense of self-defense36 beyond a reasonable doubt, this court observed that the defense set forth in Tenn. Code. Ann. § 39-11-611(a) ari ses only when a defendant is protecting himself from unlawful force).

In any event, even ass uming that Ms. Rush’s ac t in spraying the appellant with pepper spr ay constituted “unlaw

ful force,” the evidence adduced a t trial supported a finding beyond a reasonable doubt that th e appellant provoked Ms. Rush’s use of pepper spray and did not subsequently aba ndon the encounter or clearly communicate an intent to do so. Tenn. Code. Ann. § 39-11-601(d) (1997), See also State v. Alford , No. 02C01-9509-CC-00281, 1996 WL 551787, at *3 (Tenn. Crim. App. at Jackson, September 30, 1996), vacated in part on other g rounds , State v. Alford , 970 S.W.2d 944 (Tenn. 1998)(because the appellant w as the initial aggressor, self-defense w as not justified unless he abandoned the encounter or clearly indicated to the victim the intent to do so). We acknowledge that, contrary to the testimony of the witnesses for the prosecution, Mr. Gross testified that Ms. Rush first verbally assailed the appellant and that, during the ensuing fight, he overheard the appellant exclaim, “[G]et awa y, stay back.” Neverthe less, we will not reweigh the credibility of the w

itnesses at trial. Pruett , 788 S.W.2d at 561.

Finally, a rational juror could have concluded beyond a reasonable doubt that the appellant did not poss ess a reasonable belief that he w as in imminent danger of death or serious bodi ly injury. The rec ord does reflect that, in res ponse to the appellant’s initial as sault and prior to the stabbi ng, Ms. Rush spray ed the appellant with pepper spr ay. Moreover, the r

ecord reflects that, at some point during the appellant’s assault, he was blinded by the pepper spray. Further, defense counsel adduced testimony at trial that Ms. Rush had previously assaulted the appellant. However, the record is devoid of evidence that Ms. Rush had37 previously inflic

ted upon the appellant bodily injury or threatened hi m with serious bodily injury or

death. Additionally, the record is devoid of ev idence that Ms. Rush, Ms. Crowe, or Mr. Cullop threatened the appellant on the night in question or were armed with anything more than pepper spray. Indeed,during the course of the fight, the only force applied agai nst the appellant comprised M s. Rush’s use of the pepper spray and Ms. Crow

e’s repeated attempts to push or pull the appellant away from Ms. Rush. Additionally, although the appellant asser ts that he was “outnumbered three to one,” there is no ev idence in the record that M r. Cullop participated o r attempted to participate in the fig ht in any way. To th e contrary, the testimony at trial strongly s uggests that Mr. Cul lop fled as soon as the fight beg an. In all cases of self-defense, the force used must be reaso nable, considering all of the circumstances. State v. Renner , 912 S.W.2d 701, 704 (Tenn. 1995). Again, considering all of the ci rcumstances in this case, the jury was entitl ed to find that the appellant did not possess a r easonable belief in danger jus tifying the repeated stabbing of his ex-w

ife.

The appellant also contends that the State failed to negate beyond a reasonable doubt the defense of necessity. Tenn. Code. Ann. § 39-11-609 (1997) provides: Except as provided in §§ 39-1 1-611-39-11-621, conduct

is just ified if: (1) The person reasonably believ es the conduct is immediately necessary to avoid imminent harm; and (2) The desirability and urgency of avoiding harm clearly outwei gh, according to ordinary standards of reas onableness, the harm sought to be prevented b y the law proscribing the conduct. (Emphasis added). We initially q uestion the applicability of this defense to a defendant’s threat or use of force against a nother person in light of the introductory clause emphasized above. State v. Culp , 900 S.W.2d 707, 710 (Tenn. Crim. App.38 1994)(although this court is not at liberty to choose or reject any particular defense for a particular offense, this pre rogative does lie w ith the legislature).In any event, the record supports the jur y’s rejection of this d efense. This issue is without merit.

III. Conclusion For the foregoing reasons , we affirm the judgment of the tri al court.

Norma McGee Ogle, Judge

CONCUR:

Gary R. Wad e, Presiding Judge

Cornelia A. Clark, Special Judge