         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 22, 2005 Session

             STATE OF TENNESSEE V. LARRY ALLEN WHITED
                  and WILLIAM HENRY RUTHERFORD

                      Appeal from the Criminal Court for Sumner County
                          No. 186-2003    Jane Wheatcraft, Judge


                     No. M2005-00167-CCA-R3-CD - Filed March 7, 2006


David G. Hayes, Judge, dissenting in part on the majority opinion.

         The majority affirms the Defendant Whited’s conviction for aggravated assault concluding
that “a rational jury could easily infer that [seventeen-month-old] Tristian was in reasonable fear of
imminent bodily injury . . . .” For the reasons discussed below, I respectfully dissent.

        Under our statute, an assault occurs when a person engages in conduct which “causes another
to reasonably fear imminent bodily injury.” T.C.A. § 39-13-101(a)(2). The use of the term
“reasonably” denotes that the fear or apprehension of bodily injury is measured by an objective
standard. The fear or apprehension must be one which would normally be aroused in the mind of
a reasonable person. Without fear, there is no crime of assault under the provisions of § 101(a)(2).
While I agree that it is not necessary that a victim expressly testify that he or she was in fear of
imminent bodily injury, as fear may be inferred from the facts of the case, nonetheless, it remains
that the victim must still experience fear.

        As an element of the offense, it was the State’s burden to prove that the defendant’s conduct
“cause[d] [the victim] to reasonably fear imminent bodily injury” by use of the deadly weapon. I am
unable to agree with my colleagues’ conclusion that the proof established that the seventeen-month-
old victim had the ability to comprehend the inherent danger of the assault rifle and that injury could
result by the use of the weapon. The majority’s holding today, thus, permits a conviction, not only
when the victim is an infant but also when the victim is mentally incapacitated or comatose,
irrespective of the ability to comprehend fear, the central element of the crime. Here, the
Defendant’s unlawful conduct could have been prosecuted by charging the proper crime of felony
reckless endangerment, which proscribes the placing of a person in imminent danger of serious
bodily injury by use of a deadly weapon, without the requirement of fear by the victim. T.C.A. § 39-
13-103(a), (b).

       In all other respects, I concur.

                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE
