         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    June 17, 2003 Session

           STATE OF TENNESSEE v. ALONZO MAURICE ROGAN

                     Appeal from the Criminal Court for Sumner County
                        No. CR230-1999     Jane Wheatcraft, Judge


                   No. M2002-01603-CCA-R3-CD - Filed January 22, 2004



THOMAS T. WOODA LL, J., concurring in results only.

        I write separately to explain why I am concurring in results only in this case. The record
reflects that Defendant’s counsel adamantly asserted that aggravated assault was a lesser-included
offense of attempted first degree murder. Just as adamantly, the State argued that aggravated assault
was not a lesser-included offense of attempted first degree murder under our supreme court’s
decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The record also reflects that while the trial
court had reservations about the appropriateness of charging aggravated assault as a lesser-included
offense, it was ultimately persuaded to do so by arguments of Defendant’s counsel. Counsel’s
conduct may or may not be grounds for relief to Defendant in a post-conviction proceeding, but that
must be decided at a later hearing on a later date.

        The trial in this case was concluded on February 24, 2000. Less than two weeks later, this
court filed its opinion in State v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD, 2000
Tenn. Crim. App. Lexis 214 (Tenn. Crim. App. at Nashville, March 9, 2000) perm. to app. denied
(Tenn. 2001). In Brown, this Court clearly held that aggravated assault is not a lesser-included
offense of attempted first degree murder.

        Had the State asserted and argued to the trial court that aggravated assault should be charged
as a lesser-included offense, or even if the State had quietly acquiesced in the charge of aggravated
assault, I would feel compelled to reverse and dismiss the conviction for aggravated assault, because
Defendant was clearly convicted of an offense for which he had not been originally charged.
However, relying upon State v. Ealey, 959 S.W.2d 605 (Tenn. Crim. App. 1997), I feel that, at least
in the direct appeal from his conviction, Defendant should not benefit from his counsel’s assertion
that aggravated assault is a lesser-included offense of attempted first degree murder. In Ealey, the
trial court erroneously charged statutory rape as a lesser-included offense of rape of a child. The
defendant in Ealey was convicted of statutory rape. This Court held that because the defendant
requested a jury charge on the offense of statutory rape, that this action “amounted to a consensual
amendment to his presentment such that he was properly charged with statutory rape in addition to
rape of a child.” Id. at 612. I am cognizant of our supreme court’s holding in State v. Stokes, 24
S.W.3d 303 (Tenn. 2000). I distinguish Stokes from the case sub judice on the basis that in Stokes,
the defendant and the State “passively agreed” to the erroneous instruction. Id. at 306. Also, Stokes
did not expressly overrule Ealey, and I am unable to conclude that it implicitly overruled Ealey.

        For these reasons, I concur in results only with the majority’s opinion addressing the issue
of an erroneous lesser-included offense instruction. I fully concur with the remaining portion of the
majority opinion.

                                                      ____________________________________
                                                      THOMAS T. WOODALL, JUDGE




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