              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                AT JACKSON
                          OCTOBER SESSION, 1997


                                                                         FILED
STATE OF TENNESSEE,                 )                              January 23, 1998
                                    )      No. 02C01-9702-CC-00083
       Appellee                     )                             Cecil Crowson, Jr.
                                    )      GIBSON COUNTY           Appellate C ourt Clerk
vs.                                 )
                                    )      Hon. Dick Jerman, Jr., Judge
CYNTHIA ROBERSON and,               )
RHODNEY ROBERSON                    )      (First degree murder;
                                    )      aggravated assault)
       Appellant                    )



                              SEPARATE CONCURRING

       I agree with the majority that Cynthia Roberson's conviction for aggravated

assault must be reversed. I write separately only to note additional reasons for so

concluding.



       The Sixth Amendment requires that the State inform the accused "of the

nature and cause of the accusation against him" through presentment or indictment

of a grand jury. State v. Trusty, No. 02C01-9307-CR-00170 (Tenn. Crim. App. at

Jackson, Oct. 12, 1994) (Hayes, J., dissenting), rev’d, 919 S.W.2d at 305. See also

U.S. CONST . amend. VI (1791); TENN. CONST . Art. I, Sec. 14 (1870). Inherent within

the functions of an indictment is the due process guarantee that the accused be

provided a fair opportunity to defend against the offense as charged in the

indictment. State v. Barnes, 954 S.W.2d 760, 763 (Tenn. Crim. App. 1997)

(citations omitted). It is a well-established principal that “convicting a person of a

crime neither raised by the indictment nor a lesser included offense thereof violates

a fundamental right.” Trusty, No. 02C01-9307-CR-00170 (Hayes, J., dissenting). In

other words, one cannot be accused of one crime and convicted of another. See

Barnes, 954 S.W.2d at 764. I find this to be the situation before us.



       In this case, "CR" was put on notice by the indictment to defend against the
offense of first degree murder resulting from aggravated child abuse and all lesser

included and lesser grades of offenses. Thus the prosecution's theory, as charged

by the indictment, was that "CR" was criminally liable based upon her abusive

conduct resulting in serious bodily injury and the ultimate death of her daughter. I

find, the jury's verdict, however, reflects an entirely different theory of criminal

liability, not encompassed by the indicted charge. The jury found "CR" guilty based

upon her intentional or knowing failure or refusal "to protect" her child from an

aggravated assault. Clearly, the latter proscribes an omission to act in order to

prevent an aggravated assault whereas the former proscribes voluntary conduct in

the commission of a murder. See Tenn. Code Ann. §§ 39-13-102(a)(2)(A); 39-13-

102(b). Accordingly, I find that aggravated assault, as charged to the jury, is neither

a lesser grade nor lesser included offense of first degree murder by aggravated child

abuse. See Trusty, 919 S.W.2d 305, 310-11 (Tenn. 1996).



       For these additional reasons, I would reverse the conviction of "CR."




                                    ____________________________________
                                    DAVID G. HAYES, Judge




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