         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 23, 2002 Session

      STATE OF TENNESSEE v. JOSEPH AND EVANGELINE COMBS

                      Appeal from the Criminal Court for Sullivan County
                       No. S41,992 and S41,993   R. Jerry Beck, Judge


                                  No. E2000-2801-CCA-R3-CD
                                  No. E2000-2800-CCA-R3-CD
                                       September 25, 2002


GARY R. WADE, P.J., concurring.

        While I concur in the results reached by the majority, it is my view that the failure to charge
the lesser included offenses of facilitation of especially aggravated kidnapping and false
imprisonment on the charge of especially aggravated kidnapping and reckless endangerment and
assault on the charge of aggravated assault was, in fact, error. The majority implies that but does not
so assert. I also believe that the error is harmless beyond a reasonable doubt as to each of those
convictions. Most recently, in State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002), our supreme court
established that a contextual analysis of the entire record was necessary in order to determine
whether the failure to charge a lesser included offense qualified as harmless beyond a reasonable
doubt. In my opinion, the Allen ruling negates any implication in State v. Williams, 977 S.W.2d
101, 106 (Tenn. 1998), that the failure to instruct on lesser included offenses will always be
harmless when the jury returns a verdict two levels in excess of an omitted lesser included offense.

         With regard to defendant Joseph Combs’ conviction for aggravated perjury, I fully agree that
the trial court’s failure to provide an instruction on the lesser included offense of perjury was error
that does not qualify as harmless beyond a reasonable doubt and that a new trial should be granted
on the primary charge.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE
