              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                           FILED
                                  AT KNOXVILLE                           August 6, 1999

                                                                        Cecil Crowson, Jr.
                                 MAY 1999 SESSION                      Appellate C ourt
                                                                           Clerk




STATE OF TENNESSEE,                  *    C.C.A. # 03C01-9810-CR-00369

            Appellee,                *    HAMILTON COUNTY

VS.                                  *    Honorable Stephen M. Bevil, Judge

JOSEPH AZELL LEE,                    *    (Attempted Aggravated Assault)

            Appellant.               *



FOR THE APPELLANT:                        FOR THE APPELLEE:

TOM LANDIS                                PAUL G. SUMMERS
744 McCallie Avenue, Suite 327            Attorney General & Reporter
Chattanooga, TN 37403
                                          R. STEPHEN JOBE
                                          Assistant Attorney General
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          WILLIAM H. COX, III
                                          District Attorney General

                                          MARK A. HOOTON
                                          Assistant District Attorney General
                                          600 Market Street, Suite 310
                                          Chattanooga, TN 37402




OPINION FILED: _______________



AFFIRMED - RULE 20



JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

       The defendant, Joseph Azell Lee, appeals his conviction for attempted

aggravated assault. The defendant was indicted for aggravated assault and

attempted escape. At the close of proof at trial, the trial court granted the

defendant’s motion for a judgment of acquittal on the aggravated assault count.

Nevertheless, the trial court did submit to the jury the lesser included offense of

attempted aggravated assault. The defendant argues that the proof at trial did

not support attempted aggravated assault and that the trial court therefore erred

in instructing the jury on that offense. We find no error and AFFIRM the

judgment of the trial court.



       On August 29, 1996, Officer Ronald Rice of the Hamilton County Sheriff’s

Department transported the defendant from the Hamilton County Jail, where he

was incarcerated, to the county health department for a scheduled examination.

After the defendant’s examination, Rice escorted the defendant back to the

police car. When Rice moved in front of the defendant to open the passenger

door, the defendant attacked him. During the ensuing struggle, the defendant

grabbed Rice’s handgun. Rice reacted by immediately placing both of his hands

on the weapon and holding it down in the holster. Because both of Rice’s hands

were occupied, the defendant was able to strike Rice in the face several times

with his free hand. The defendant also bit Rice on the back during the struggle.

Ultimately, Rice was able to attract the attention of another police officer, and the

two subdued the defendant.



       The defendant was indicted and tried before a jury for aggravated assault

(by use of a deadly weapon) and attempt to escape from a penal institution. At

the close of proof, the trial court granted the defendant’s motion for a judgment



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of acquittal on the aggravated assault count. Nevertheless, the trial court

instructed the jury on the lesser included offenses of attempted aggravated

assault and assault. The jury returned verdicts of guilty for attempted escape

and attempted aggravated assault, and the defendant was sentenced as a

career offender to six months and twelve years respectively.



       The defendant’s argument that the trial court should not have instructed

the jury on attempted aggravated assault because the proof did not support that

offense is without merit. The state introduced sufficient proof to support the

offense of attempted aggravated assault, and the trial court was required to

charge lesser included offenses supported by the evidence. See State v.

Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). The evidence supports

the jury’s verdict, and we find no error of law mandating reversal. Therefore,

pursuant to Rule 20 of the Court of Criminal Appeals, we AFFIRM the judgment

of the trial court.




                                              _____________________________
                                              JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_______________________________
JAMES CURWOOD WITT, JR., Judge




_______________________________
ALAN E. GLENN, Judge




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