           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                              MARCH SESSION , 1998               FILED
STATE OF TENNESSEE,                )      C.C.A. NO. 02C01-9709-CC-00341
                                   )
         Appellee,                 )
                                                                     April 1, 1999
                                   )
                                   )      HENRY COUNTY
VS.                                )
                                   )      HON. JULIAN P. GUINN Crowson, Jr.
                                                           Cecil
JAMES ROBERT FIELDS,               )      JUDGE
                                   )                              Appellate C ourt Clerk
         Appe llant.               )      (Direct Appeal - Class B Misdemeanor
                                   )      Assault)



                               CONCURRING OPINION

               I agree that the conviction should be affirmed. Assault is not a lesser

included or lesser grade offense of statutory rape. I disagree, however, with

footnote 3 which suggests that a special request by the defendant for an instruction

on a lesser offense would serve to amend the indictment. See State v. Leland Ray

Reeves, No. 01C01-9711-CR-00515 (Tenn. Crim. App., at Nashville, Mar. 23,

1999).



                                          _________________________________
                                          Gary R. Wade, Presiding Judge
