         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 26, 2000

            STATE OF TENNESSEE v. RALPH DEWAYNE MOORE

                  Direct Appeal from the Criminal Court for Roane County
                           No. 11679     E. Eugene Eblen, Judge



                                  No. E1999-02743-CCA-R3-CD
                                        October 30, 2000



JOSEPH M. TIPTON, J., dissenting.

        I agree that the evidence is sufficient, albeit barely, to prove reckless endangerment, given
the defendant’s drinking, anger, threats, and pointing a loaded shotgun at people. However, I do not
believe that felony reckless endangerment is a lesser included offense of the aggravated assault that
is alleged in the indictment.

         In relevant part, the indictment charges that the defendant did “unlawfully and intentionally
by the use of a deadly weapon, to-wit: a shotgun cause Irvin Taylor to reasonably fear imminent
bodily injury.” This aggravated assault charge relates to intentionally or knowingly causing another
reasonably to fear imminent bodily injury while the defendant is using or displaying a deadly
weapon. See Tenn. Code Ann. § § 39-13-101(a)(2), -102(a)(1)(B). It has a result-of-conduct aspect
in that it focuses on the victim being placed in fear of imminent bodily injury. With the victim’s fear
being a key element, the offense is committed whether the defendant’s gun is loaded or unloaded.

       On the other hand, felony reckless endangerment is defined as engaging in conduct
committed with a deadly weapon which places or may place another person in imminent danger of
death or serious bodily injury. Tenn. Code Ann. § 39-13-103. 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. However, whether the gun used is loaded or unloaded could
determine if the offense is committed.

       Thus, one may commit the offense of aggravated assault by causing fear of bodily injury
while using or displaying a weapon without committing the offense of felony reckless endangerment.
Likewise, one may commit the offense of felony reckless endangerment without committing the
offense of aggravated assault 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. I would
vacate the felony reckless endangerment conviction.



                                                     ___________________________________
                                                     JOSEPH M. TIPTON, JUDGE




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