         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 26, 2002

            STATE OF TENNESSEE v. RENNE EFREN ARELLANO

                   Direct Appeal from the Circuit Court for Maury County
                            No. 12120    Robert L. Jones, Judge



                  No. M2002-00380-CCA-R3-CD - Filed February 26, 2003


The Appellant, Renne Efren Arellano, was indicted by a Maury County grand jury for one count of
aggravated arson, a class A felony, eight counts of attempted first degree murder, class A felonies,
and one count of felony possession of a weapon, a class E felony. A negotiated plea agreement
allowed the Appellant to plead to one count of arson, eight counts of aggravated assault, and one
count of felony possession of a weapon in exchange for an effective twelve-year sentence. The
manner of service of the twelve-year sentence was to be determined by the trial court. Following a
sentencing hearing, the trial court ordered that the twelve-year sentence be served in the Department
of Correction. On appeal, Arellano contends that the trial court erred in not sentencing him to any
form of alternative incarceration. However, plain error dictates that the convictions be vacated and
the case remanded for further proceedings because aggravated assault is not a lesser included offense
of attempted first degree murder.

        Tenn. R. App. P. 3; Judgment of the Circuit Court Vacated and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

William C. Barnes, Jr., Columbia, Tennessee, for the Appellant, Renne Efren Arellano.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; T. Michael Bottoms, District Attorney General; and Joseph L.
Penrod, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

       On October 1, 2000, the Appellant and “Danny, Larry, Mario, John, Michael, [and] Michelle”
were at the Appellant’s home drinking alcohol. At approximately 3:00 a.m., the group decided to
make “cocktail bombs” and throw them at Patricia Hood’s trailer. According to the Appellant the
following events transpired:

         We had all gotten pretty drunk. Michael already had a grudge with the people who
         lived in the trailer that got burnt. He started trying to talk everyone to do something
         to their house. Michael came up with the idea of making cocktail bombs to throw at
         their home. So he got gasoline from our lawn mower gas jug and filled up some of
         the beer bottles that we had been drinking from. . . . We all drove down to their
         trailer. Mario and I in my car and everyone else in John’s car. We all got out and
         walked to their trailer. I can’t really remember who threw the first bottle, but soon
         as the bottle exploded I threw my bottle on the ground and ran back to my car. . . .

       Patricia Hood was inside the trailer along with Cassandra, Amanda, Jessica, and Alexsandra
Hood, Murray Smith, Trent Litwheller, and Santos Lane. Patricia Hood was awakened by Smith,
who told her that the trailer was on fire. Everyone safely exited the trailer without suffering any
physical harm; however, Jessica Hood was covered with black smoke and taken to the hospital,
where she was later released. According to Patricia Hood, seventy percent of the trailer was
destroyed and it was unlivable.

        Thereafter, a Maury County grand jury indicted the Appellant for one count of aggravated
arson, eight counts of attempted first degree murder, and one count of felony possession of a weapon.
In a negotiated plea agreement, the Appellant pled guilty to arson, eight counts of aggravated assault,
and felony possession of a weapon and received an effective twelve-year sentence as a standard
Range I offender.1 The manner of service of the sentence was to be determined by the trial court.
On February 1, 2002, a joint sentencing hearing was held for the Appellant and Mario Estrada, who
was also indicted in the offense. The trial court denied any form of alternative sentencing and
imposed total incarceration for the twelve-year sentence. This timely appeal followed.

                                                  ANALYSIS

        Apparently, all of the parties to this plea agreement operated under the assumption that
aggravated assault was a lesser included offense of attempted first degree murder. Unfortunately,
that assumption was incorrect. Although the issue has not been raised by either the Appellant or the
State, we find as plain error that the Appellant’s convictions for aggravated assault were improper.
See Tenn. R. App. P. 13(b); Tenn. R. Crim. P. 52(b); State v. Adkisson, 899 S.W.2d 626, 638-39
(Tenn. Crim. App. 1994) (issues which rise to the level of plain error lie within the sound discretion
of the appellate court and may be addressed to prevent needless litigation, prevent injury to the
interests of the public, prevent prejudice to the judicial process, prevent manifest injustice, or to do


        1
          The Appellant received three-year sentences for the arson and each aggravated assault conviction and a one-
year sentence for felony possession of a weapon. The arson conviction and three of the aggravated assault convictions
were run co nsecutively to one another. The remaining aggravated assault convictions and the weapon offense were run
concurrently to the o ther co nviction s, resulting in an effective twelve -year sentence.

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substantial justice). Perhaps the most basic constitutional right afforded a criminal defendant is the
right not to “be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment by a grand jury . . . .” U.S. CONST . amend. V; TENN. CONST . art. I, § 14. A defendant
cannot legally be convicted of an offense which is not charged in the indictment or which is not a
lesser offense embraced in the indictment. State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997).
Moreover, after an indictment has been returned, its charge may not be broadened or changed except
by action of the grand jury.2 State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001)
(citations omitted). The test for determining whether an offense is a lesser included offense of that
charged in the indictment is found in our supreme court’s decision State v. Burns, 6 S.W.3d 453,
466-67 (Tenn. 1999).

         An offense is a lesser included offense if:

         (a) all of its statutory elements are included within the statutory elements of the
         offense charged; or

         (b) it fails to meet the definition in part (a) only in the respect that it contains a
         statutory element or elements establishing:

                  (1) a different mental state indicating a lesser kind of culpability;
                  and/or

                  (2) a less serious harm or risk of harm to the same person, property or
                  public interest; or

         (c) it consists of

                  (1) facilitation of the offense charged . . .; or
                  (2) an attempt to commit the offense charged . . .; or
                  (3) solicitation to commit the offense charged.

Id. Here, the Appellant was indicted for attempted first degree murder but was convicted of
aggravated assault. Under the prevailing Burns analysis, this court has held, in State v. Christopher
Todd Brown, No. M1999-00691-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 9, 2000), that
aggravated assault is not a lesser included offense of attempted first degree murder. Moreover, we
are constrained to note that no appellate court of this state has held, under any lesser included test,
that aggravated assault is a lesser included offense of attempted first degree murder. State v. Trusty,
919 S.W.2d 305, 311-312 (Tenn. 1996), overruled by State v. Dominy, 6. S.W.3d 472, 475 (Tenn.


         2
           W e would also acknowledge that Tennessee Code A nnotated § 40-3-103 pro vides: “All violations of the
criminal laws may, with the consent of the accused and the accused’s attorney and of the court, be prosecuted upon the
filing of an information.” Moreover, Rule 7(b) of the Tennessee Rules of Criminal Procedure prohibits the amendment
of an ind ictment, presentmen t, or inform ation if an additional or different offense is thereb y charged.

                                                         -3-
1999). Accordingly, we conclude that application of the lesser included offense test articulated in
Burns requires the conclusion that aggravated assault is not a lesser included offense of attempted
first degree murder.

                                        CONCLUSION

        The judgment of conviction is reversed, and the Appellant’s plea of guilty is vacated. This
case is remanded to the trial court for a new trial or other appropriate proceedings.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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