                                                                    FILED
                                                                    March 22, 2000

            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE,
                                                    Cecil Crowson, Jr.
                                                   Appellate Court Clerk
                           AT KNOXVILLE

STATE OF TENNESSEE,
          Appellee,

V.                                          CCA No. 03C01-9704-CR-00144

HARVEY PHILLIP HESTER,
         Appellant.


                            CONCURRING OPINION



              I concur in Judge Wade’s articulate opinion. However, this

resolution of the lesser-included offense issue is at odds with the opinion of a

panel of this court in State v. David Michael Gamble, No. 03C01-9812-CR-00442

(Tenn. Crim. App., Knoxville, Jan. 21, 2000), and I write separately in order to

address the conflict in the two opinions.



              In David Michael Gamble, the defendant was charged with theft via

an indictment which alleged,

       [theft of] a 1990 Freightline tractor, trailer and sixty-five (65) assorted
       pieces of La-Z-Boy furniture, valued at over $60,000, belonging to
       Volunteer Trucking without the owner’s effective consent and with the
       intent to deprive the owner of said property, in violation of Tennessee
       Code Annotated [section] 39-14-103, against the peace and dignity of the
       State.


Id., slip op. at 8. The evidence showed that Gamble “picked up the loaded truck

and trailer as expected, but then spent the next two and a half to three days in

Chattanooga instead of delivering the load to Kentucky and Ohio as obligated.”

Id. This court ruled that, although the state proved that Gamble exercised

control over the truck and its contents without the owner’s effective consent, the

evidence was insufficient to show that Gamble intended to deprive the owner of

the property. Id., slip op. at 9. Even though the court vacated the theft

conviction, it imposed a conviction for unauthorized use of a vehicle, commonly


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known as joyriding. See Tenn. Code Ann. § 39-14-106 (1997); id., slip op. at 14.

In reaching this conclusion, the court concluded that the offense of unauthorized

use of a vehicle is a lesser-included offense of theft. Id., slip op. at 13.



                 The David Michael Gamble court reached this conclusion despite

its determination that, “because the unauthorized use of a vehicle statute

contains the additional element of the taking of a vehicle, as opposed to just the

taking of any property, it does not satisfy part (a) of the Burns test, which

requires that all of the statutory elements of the lesser offense be included within

the statutory elements of the greater.” Id., slip op. at 12-13 (italicized emphasis

added, other emphases in original). The court reasoned that if a person

exercised control over “something other than a vehicle, the person might be

guilty of theft, but could never be guilty of unauthorized use of a vehicle.”



                 Rather, the court based its lesser-included offense finding on part

(b) of Burns. In so doing, it utilized both components of part (b): “(1) a different

mental state indicating a lesser kind of culpability; and[] (2) a less serious harm

or risk of harm to the same person, property or public interest.” See David

Michael Gamble, slip op. at 13; State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.

1999). The court said that the lesser offense met the test of part (b)(1) because

the unauthorized user of a vehicle “need not have the intent to deprive the owner

of the vehicle.” David Michael Gamble, slip op. at 13. The lesser offense met

the test of part (b)(2) because, without the intent to deprive the owner of the

vehicle, there is “less serious harm or risk of harm to the owner and the

property.” Id.



                 In the present case, the relationship of the greater offense to the

proposed lesser offense is analogous to the relationship of the greater and

lesser offenses in David Michael Gamble. In both cases, the field of activity

proscribed by the greater offense is broader than that of the lesser. Theft



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proscribes the stealing of any kind of property, but “joyriding” may only be

committed through the taking or unauthorized use of a vehicle; the murder

statutes proscribe the unlawful killing of another through any means whatsoever,

but vehicular homicide is committed only when the instrumentality of the killing is

a vehicle.



               If it is accurate to say, as Judge Welles in David Michael Gamble

and Judge Wade in the present case have said, that Burns’s part (a) is not

serviceable in these cases because the lesser offense requires an element that

is not included among the elements of the greater offense, then this

determination should have dictated a different part (b) result in David Michael

Gamble. Part (b) of Burns requires that in order to be a lesser-included offense,

an offense must “fail[] to meet the definition in part (a) only in the respect that

contains a statutory element or elements establishing” the different mental state

indicating a lesser culpability or a less serious harm or risk of harm. Burns, 6

S.W.3d at 466-67 (emphasis added). The David Michael Gamble rationale for

utilizing the part (b) analysis to establish the lesser-included offense ignores the

presence of the extra element of the taking of a vehicle which defeated the use

of part (a). Although it is true that joyriding has a “different mental state

indicating a lesser kind of culpability,” it is not true that the lesser offense of

joyriding fails to meet the subset test of Burns’s part (a) “only in the respect that it

contains a statutory element or elements establishing [the different mental

state.]” See id. (emphasis added). The requirement in the joyriding statute that

the object of the offense must be a vehicle is not contained as an element in

theft and, in and of itself, has nothing to do with the offender’s mental state.

Likewise, although it is true that joyriding implicates a “less serious harm or risk

of harm to the same person . . . [or] property” than does the greater offense of

theft, it is not true that the lesser offense fails to meet the part (a) test “only in the

respect” that it contains an element establishing a less serious harm or risk of

harm. Again, the extra element, in and of itself, has nothing to do with the



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increased harm. Burns’s part (b) requires the extra element of the lesser offense

to be operative in establishing a lesser mental state or lesser harm or risk of

harm.



              I recognize that at least one basis for harmonizing David Michael

Gamble and the present case exists but has not been explored in either opinion.

In cases in which the proscribed conduct of the lesser offense is more specific

than that of the greater offense, as is true with the object of the crime in David

Michael Gamble and the instrumentality of the crime in the present case, one

might argue that the greater specificity contained in the lesser offense is not a

different element at all, but rather a category of the broader field which is singled

out for proscription via lessened culpability or risk elements. Viewed in that light,

when the lesser offense’s decreased culpability through a different mental state

or its decreased harm or risk of harm would supply the only incongruity of

elements, part (b) would be applicable. However, as Judge Wade points out in

the present case in which the indictment did not state the type of instrumentality

used to kill the victims, courts must take account of the “defendant’s

constitutional right to be given notice of the offense or offenses charged.” See

State v. Dominy, 6 S.W.3d 472, 476 (Tenn. 1999). It may well be that an

indictment which does not allege the specific object or instrumentality of the

crime does not provide the defendant with the constitutionally-mandated notice

of the lesser offense. On that score, David Michael Gamble is distinguishable

because the indictment in that case specified that the object of the charged theft

was a vehicle.



              At this juncture, we must be mindful of the of dictate of Howard v.

State, 578 S.W.2d 83 (Tenn. 1979), which is the basis of Burns’s part (a), that

the lesser-included offense is established when its elements are necessarily

included in the greater offense “as those elements are set forth in the

indictment.” Howard, 578 S.W.2d at 85 (emphasis added). See Burns, 6



                                          4
S.W.3d at 467 (part (a) is consistent with Howard). When we view the

“elements” as set forth in the David Michael Gamble indictment, they at least

give notice that the crime of unauthorized use of a vehicle is possibly alleged in

the indictment, making the case distinguishable from the present case, in which

there is no allegation in the indictment that a vehicle was the instrumentality of

the crime.



              The question remains whether this technique of specifying the

object or instrumentality of the crime should be utilized by our courts to establish

a lesser-included offense. I see the utility in looking to the elements as set forth

in the indictment for the purpose of narrowing the greatest offense being

charged. For instance, when an indictment alleges especially aggravated

kidnapping, see Tenn. Code Ann. § 39-13-305 (1997), it is useful to know if the

basis of the prosecution is, for instance, Code section 39-13-305(a)(3), that the

crime was “committed to hold the victim for ransom or reward, or as a shield or

hostage.” This designation informs the analysis of whether kidnapping and

aggravated kidnapping are lesser-included offenses. See Tenn. Code Ann. §§

39-13-303, 304 (1997). However, the use of factual specifications in the

indictment to expansively create lesser included offenses may be fraught with

chaos and confusion, depending upon the creativity or prolixity of the prosecutor

drawing the charging instrument. In my view, the trial and appellate benches are

perplexed about lesser-included offenses, and if an approach which expands

and defies structure in the analysis of lesser-included offense issues causes

more confusion and difficulty of application, its merits are doubtful.



              In Burns, the supreme court attempted to clarify the problem

through fashioning a rule for determining lesser-included offenses which would

be simple to apply, especially if the part (a) subset analysis is used rather

narrowly and literally, as it has been used in the present case. In cases in which

the field of proscribed activity is broader in a greater offense than that proscribed



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in a proposed lesser-included offense, our supreme court must ultimately decide

the approach to be used. On the basis of simplicity of application and

predictability of result, I favor the approach used in the present case and concur

in Judge Wade’s analysis.




                                         ________________________________
                                         JAMES CURWOOD WITT, JR., JUDGE




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