        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs June 27, 2001

           STATE OF TENNESSEE v. LARRY MITCHEL WATSON

                  Appeal from the Criminal Court for Cumberland County
                             No. 5509 Lillie Ann Sells, Judge



                                No. E2000-01923-CCA-R3-CD
                                     September 11, 2001

The defendant, Larry Mitchel Watson, appeals his conviction and sentence for felony reckless
endangerment in the Cumberland County Criminal Court. On appeal, the defendant argues that the
evidence was insufficient to sustain his felony reckless endangerment conviction and that the trial
court improperly sentenced him. Because the jury was erroneously instructed on felony reckless
endangerment as a lesser-included offense of aggravated assault, we reverse his conviction for that
offense and remand the cause for a new trial in accordance with this opinion.

   Tenn. R. App. P. 3; Judgment of the Trial Court Reversed; Remanded for New Trial.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ROBERT W. WEDEMEYER , JJ., joined.

David Neal Brady, District Public Defender; Cynthia Lyons, Assistant Public Defender, for the
appellant, Larry Mitchel Watson.

Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General;
William E. Gibson, District Attorney General; Anthony Craighead, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                The Cumberland County Grand Jury indicted the defendant for one count of
aggravated assault, a Class C felony, and one count of possession of methamphetamine with intent
to sell or deliver, also a Class C felony. After a trial, the jury convicted the defendant of felony
reckless endangerment, a Class E felony, and simple possession of methamphetamine, a Class A
misdemeanor. The jury also recommended fines of $3000 for his felony reckless endangerment and
$2500 for his simple possession conviction. During the sentencing hearing, the trial court declined
to apply any mitigating factors supplied by the defense. The court did find, however, that
enhancement factors (1), (10) and (13) applied.1 After a sentencing hearing, the court imposed
sentences of two years, at Range I, for the felony reckless endangerment and eleven months, 29 days
for simple possession, to run concurrently. 2

                 On appeal before this court, the defendant raises three issues:

                 (1) The evidence was insufficient to support the conviction for felony reckless
                 endangerment;3

                 (2) The trial court erred in failing to consider mitigating factors filed by the defense;
                 and

                 (3) The trial court erred in applying certain enhancement factors to increase the
                 sentence.


              For the reasons that follow, we reverse the felony reckless endangerment conviction
and remand for a new trial on the charge of simple assault.

                On the night of April 14, 1999, the defendant and his cousin, Jason Frazier, went to
the trailer home of Frazier’s ex-girlfriend, Tammy, to retrieve Frazier’s belongings. Concerned that
Tammy’s new boyfriend might appear and trouble ensue, the defendant stood “guard” outside the
door of the trailer with his rifle and waited for Frazier to gather his belongings. After a time, the
defendant went inside the trailer to find out what was taking his cousin so long. At this point, the
defendant saw headlights coming up the driveway and shouted, “Come on, Jason. Let’s go.” The
two men fled through the back door of the trailer, into the woods.

                The headlights belonged to two Cumberland County Sheriff’s Department deputies.
 The deputies, Jerry Jackson and Sergeant Rick Reed, were attempting to serve a domestic violence
warrant on Frazier, and Reed had information that Frazier could often be found at this particular
trailer home. Earlier in the evening, the deputies had tried unsuccessfully to serve the warrant on
Frazier, and thus around 11:30 p.m., they returned to the trailer to attempt again to serve Frazier.
The deputies were in their patrol cars but did not have their blue lights flashing.

               Upon seeing the defendant and Frazier flee the trailer, the deputies gave chase. Reed
pursued the first suspect, later identified as Frazier, while Jackson followed the second suspect
whom he later was able to identify as the defendant. After chasing the defendant some fifteen to


       1
           See Tenn. Code Ann. § 40-35-11 4(1), (10), (13) (1997).

       2
           The defendant has been released from prison pursuant to his two-year determinate sentence.

       3
           The defendant does not contest his conviction for simple possession.

                                                       -2-
twenty yards into the woods, Jackson heard an unidentified voice say to him, “Don’t go this way,
fellows, I don’t want to have to shoot you.” Jackson immediately turned on his flashlight to ascertain
from where the voice was coming. In doing so, he saw the scope of a rifle lying on the ground. He
testified that he saw only part of the scope, that he did not see a rifle but assumed one was attached,
and that he did not see any person holding the scope. Jackson testified that he was terrified for his
life at this point and turned off his flashlight. A moment later, Jackson heard gun fire and then return
fire coming from his left in the direction where Reed had followed the other suspect.4 Jackson held
his position until back-up officers arrived.

                 After deputies from several other counties arrived to help search the woods, the
defendant was found sitting in Frazier’s vehicle about one-half mile from the woods. A Remington
423 rifle with a scope was found in his possession, and a pat-down search revealed that the defendant
had 2.5 grams of methamphetamine in his possession. The defendant was arrested and charged with
aggravated assault of Jackson and with possession of methamphetamine with intent to sell or deliver.
He was later convicted of felony reckless endangerment and misdemeanor possession.

I. Sufficiency of the Evidence

                In his first issue, the defendant contends that the evidence is insufficient to support
his conviction of felony reckless endangerment because it rests solely on Jackson’s testimony that
he saw the scope of a rifle laying on the ground. The defendant was indicted for aggravated assault,
and the trial court charged the jury with attempted aggravated assault, felony reckless endangerment,
and misdemeanor assault as lesser-included offenses of aggravated assault. The jury subsequently
convicted him of felony reckless endangerment.

               Felony reckless endangerment, we hold, is not a lesser-included offense of aggravated
assault and cannot serve as the basis of a conviction pursuant to the aggravated assault charge.
Accordingly, it is unnecessary to determine whether the evidence was sufficient to support this
conviction.5


         4
            The other suspect was later determined to be Jason Frazier. Frazier’s body was found in the woods near
where th e shots w ere fired.

         5
              Although not raised on appeal by either party, this court is obliged to address the issue of the erroneous
instruction as a matter of plain error. Tenn. R. Crim. P. 52(b). In State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App.
1994), our court set forth the following factors to consider when determining whether an error constitutes "plain error":
           (a) the reco rd must clea rly establish what o ccurred in th e trial court;
           (b) a clear a nd unequ ivocal rule o f law must have been bre ached;
           (c) a substan tial right of the accu sed must ha ve been ad versely affected ;
           (d) the accused did not waive the issue for tactical reasons; and
           (e) conside ration of the er ror is "nece ssary to do su bstantial justice.
Id. at 641-42 . Clearly, befo re an error m ay be reco gnized pu rsuant to Rule 52(b),Tennessee Rule Criminal Procedure,
the error must be "p lain" and it mu st affect a "substa ntial right" of the a ccused. Id. Having de termined tha t it was error
for the trial court to instruct the jury on felony reckless endangerment as a lesser-included offense of agg ravated ass ault,
                                                                                                                (continu ed...)

                                                              -3-
               This court has previously determined that under the principles for determining lesser-
included offenses announced in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), felony reckless
endangerment is not a lesser-included offense of aggravated assault. State v. Michael P. Healy,
No.W1999-01510-CCA-R3-CD (Tenn. Crim. App., Jackson, June 26, 2001). Relying on a
dissenting opinion of one member of this court in a prior case, the Michael P. Healy panel noted:

                     [Aggravated assault] has a result-of-conduct aspect in that it focuses on the victim
                     being placed in fear of imminent bodily injury . . . .
                     On the other hand, felony reckless endangerment is defined as engaging in
                     conduct committed with a deadly weapon which places or may place another
                     person in imminent danger of death or serious bodily injury. It focuses--by
                     its terms--upon the conduct that causes a risk of harm, not the harm itself.
                     Those within the zone of danger need not even be aware that the threat exists
                     . . .
                     Thus, one may commit the offense of aggravated assault by causing fear of
                     bodily injury while using or displaying a weapon without committing the
                     offense of felony reckless endangerment. Likewise, one may commit the
                     offense of felony reckless endangerment without committing the offense of
                     aggravated assault by causing fear. In other words, neither offense covers the
                     range of conduct or result of the other. This means that neither offense is
                     included in the other.

Id., slip op. at 4 (quoting State v. Ralph Dewayne Moore, No. E1999-02743-CCA-R3-CD (Tenn.
Crim. App., Knoxville, Oct. 30, 2000) (Tipton, J., dissenting)).6

               The Michael P. Healy court then concluded that because the elements of reckless
endangerment are not included in the elements of aggravated assault and because the elements do
not differ only with respect to the degree of harm or the applicable mental state, felony reckless
endangerment is not a lesser-included offense of aggravated assault. Id., slip op. at 4. We agree with
the holding in Michael P. Healy and conclude that, in the present case, the conviction offense of



         5
             (...continued)
we conclude that the defendant’s rights were substantially affecte d as require d by Adkisson.


         6
           The Burns opinion had bee n released at the time o f trial in this case. We acknowledge that there is post- Burns
caselaw from this court which might support a conclusion that felony and m isdemeanor reckless endangerm ent are
lesser-included offenses o f aggrav ated assau lt. It should be noted, however, that none of that caselaw engaged in a
Burns analysis to determine specifically whether felony and misdemeanor reckless endangerment are lesser-included
offenses of aggra vated assa ult. See, e.g., State v. Jake Christopher Reyno lds, No. M2000-00210-CCA-R3-CD (Tenn.
Crim. App., N ashville, M ay 23, 2 001); State v. Christopher Bengtson, No. E1999-01190-CCA-R3-CD (Tenn. Crim.
App., Knoxville, Oct. 2, 2000).

                                                            -4-
reckless endangerment was not a lesser-included offense of the charged offense of aggravated assault.

                 In criminal prosecutions, the accused has a right to fair and reasonable notice of the
charges to be defended. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Because of the defendant’s
constitutional right to notice, he “may be convicted only of a crime which is raised by the indictment
or which is a lesser-included offense thereof.” State v. Guy William Rush, __ S.W.3d __, __, No.
E1998-00592-SC-R11-CD, slip op. at 7 (Tenn., Knoxville, Apr. 6, 2001); see Hagner v. United
States, 285 U.S. 427, 431, 52 S. Ct. 417, 419 (1932). In Guy William Rush, the defendant was
indicted for attempted second degree murder but was convicted of reckless aggravated assault. Guy
William Rush, __ S.W.3d at __, slip op. at 4-5. The Rush court determined that reckless aggravated
assault is not a lesser-included offense of attempted second degree murder, and because the
defendant was not indicted for reckless aggravated assault, the court reversed his conviction and
remanded for a new trial on any remaining lesser-included offenses (1) that were not charged to the
jury or (2) that were charged and are lesser offenses than reckless aggravated assault. Id., __
S.W.3d at __, slip op. at 4-5.

               The jury in this case acquitted the defendant of aggravated assault and attempted
aggravated assault. That acquittal bars further prosecution for those crimes. See Guy William Rush,
__ S.W.3d at __, slip op. at 20 (citing State v. Maupin, 859 S.W.2d 313 (Tenn. 1993)). Upon retrial,
the defendant is entitled to a new trial on any lesser-included offense of aggravated assault (1) that
was not originally charged to the jury or (2) that was charged but is a lesser offense than felony
reckless endangerment. The only offense which meets these criteria is misdemeanor assault.7

                Before we remand the case for a new trial on assault, however, we must determine
whether there was sufficient evidence in the trial below to sustain a charge of misdemeanor assault.
If the evidence presented was insufficient to support a conviction on assault, then that charge -- and
effectively the case as a whole -- must be dismissed.

                 In order to assess the sufficiency of the convicting evidence, this court must review
the record to determine if the evidence adduced at trial is sufficient “to support the finding by the
trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In determining the
sufficiency of the evidence to support a charged offense, this court does not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)). We are required
to afford the state the strongest legitimate view of the evidence contained in the record as well as all
reasonable and legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).




         7
           In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), the supreme court outlined a test to determine whether one
offense is a lesser-include d offense of a nother. The Burns test provides in relevant part that an offense is a lesser-
included offense if “all of its statutory elem ents are includ ed within the statutory elements of the offense charged.” Id.
at 466. O ne of the elem ents of aggrav ated assault is an assault. See Tenn. Code. Ann. § 39-13-102 (1997) (a person
commits aggravated assault by committing “a n assault as defined in § 39-13-101," coupled with at least one aggravating
circumstance being pres ent); Id. § 39-13-101 (defining assault, a misdemeanor o ffense). Thus, assault is a lesser-included
offense of agg ravated ass ault. See Burns, 6 S.W.3d at 466.

                                                            -5-
               Assault is defined as “(1) Intentionally, knowingly or recklessly caus[ing] bodily
injury to another; (2) Intentionally or knowingly caus[ing] another to reasonably fear imminent
bodily injury; or (3) Intentionally or knowingly caus[ing] physical contact with another and a
reasonable person would regard the contact as extremely offensive or provocative.” Tenn. Code
Ann. § 39-13-101 (1997). Subsections (1) and (3) are not applicable because there is no evidence
that Jackson suffered any bodily injury nor that he experienced any physical contact with the
defendant.

                 Subsection (2), however, is applicable because reasonable minds could accept that
the defendant caused Jackson “to reasonably fear imminent bodily injury” when he threatened the
deputy and/or when the deputy saw the scope of the rifle laying on the ground as was charged in the
indictment for aggravated assault. See id. § 39-13-101(a)(2). The testimony of Jackson that he “was
in fear for [his] life” when he heard the defendant’s threat and saw the scope of the rifle laying on
the ground supports this conclusion. The evidence was sufficient to support a conviction of assault,
had the jury not pretermitted its consideration of the offense by finding the defendant guilty of felony
reckless endangerment.

              Accordingly, rather than dismissing the pending charge of assault, the case must be
remanded to the trial court for a new trial on this charge.

II. Improper Sentencing

               As a second issue, the defendant claims that he was improperly sentenced by the trial
court. Pursuant to Tennessee Code Annotated section 40-35-112(a)(5), the defendant received the
maximum sentence of two years as a Range I offender. The defendant contends the trial court
improperly or erroneously applied enhancement factors and that the trial court erred when it declined
to accept the mitigating factors the defense presented. Because we have determined that his
conviction should be reversed and the cause remanded for a new trial on a misdemeanor charge, it
is unnecessary for us to address all the sentencing issues raised by the defendant. However, we are
compelled to comment briefly on the application of enhancement factor (13). See Tenn. Code Ann.
§ 40-35-114 (13) (Supp. 2000).

                 The defendant contends that the trial court erroneously applied enhancement factor
(13) that the felony was committed while the defendant was on probation. We agree. During the
sentencing hearing, the trial court “put[] a great deal of weight on . . .” the presumed fact that the
defendant committed the felony while he was on probation for another felony conviction. There is
nothing in either the original or amended presentence reports to indicate that the defendant was on
any type of release status, probation or otherwise. There is also no indication in either of these
reports that the defendant had any prior felony convictions for which he was on probation to activate
enhancement factor (13). Thus, this enhancement factor should not have been applied.




                                                  -6-
              In conclusion, because we determine that the conviction offense of felony reckless
endangerment is not a lesser-included offense of aggravated assault, we reverse the conviction and
remand this cause for new trial in accordance with this opinion.



                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                               -7-
