             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                          Remanded by Supreme Court October 29, 2001

             STATE OF TENNESSEE v. CORNELIUS MICHAEL HYDE

                            Appeal from the Circuit Court for Blount County
                              No. C-10230    D. Kelly Thomas, Jr., Judge



                                        No. E2001-02708-CCA-RM-CD
                                              January 15, 2002

The Defendant, Cornelius Michael Hyde, was convicted of aggravated child abuse of a child under
seven years old1 and appealed as of right on numerous grounds, including the trial court’s failure to
instruct the jury on the lesser-included offenses of aggravated assault and assault. Judge Welles held
that the trial court’s failure to so charge the jury was error, but harmless under State v. Williams, 977
S.W.2d 101, 105 (Tenn. 1998). Judge Wedemeyer concurred, finding the error harmless beyond a
reasonable doubt; Judge Tipton dissented, finding that the State failed to carry its burden of
demonstrating that the trial court’s error in not instructing the jury on the lesser-included offenses
was harmless beyond a reasonable doubt. See State v. Cornelius Michael Hyde, No. E2000-00042-
CC-R3-CD, 2000 WL 1877490, at *11 (Tenn. Crim. App., Knoxville, Dec. 28, 2000). Our supreme
court subsequently granted the Defendant’s application to appeal this case for the purpose of
remanding it to us for reconsideration in light of that court’s opinions in State v. Honeycutt, 54
S.W.3d 762 (Tenn. 2001) and State v. Ely, 48 S.W.3d 710 (Tenn. 2001). We now conclude that the
trial court’s error in failing to instruct the jury on the lesser-included offense of reckless aggravated
assault is reversible error, and therefore remand this case to the trial court for a new trial.


        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT
W. WEDEMEYER , JJ., joined.

Eugene B. Dixon, Maryville, Tennessee, for the appellant, Cornelius Michael Hyde.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
Mike Flynn, District Attorney General; Kirk Andrews and Edward P. Bailey, Jr., Assistant District
Attorneys General, for the appellee, State of Tennessee.
                                   OPINION ON REMAND

         1
          Aggravated child abu se of a child u nde r seve n years of age is a Class A felon y. See Tenn. Code Ann. § 39-15-
402(b). Aggravated child abuse of a child over six years old is a Class B felon y. Id. The uncon troverted proof in th is
case was that the victim was less than seven years of age at the time he was abused.
        We begin with a brief recitation of the relevant facts. The victim in this case, three year old
Jacob Randall Duke, is the son of the Defendant’s girlfriend, Angela Gates. The Defendant was
stopped for a traffic violation, and the police officer noticed that Jacob was not properly restrained
in the car. The officer also noticed that Jacob had a blood blister on his mouth and that he had
bruises on his face and arms. Jacob and the Defendant were taken to the police station and Jacob
was subsequently examined at an emergency room. The examining physician testified that Jacob
had bruises all over his body. He further testified that, in his opinion, the injuries were not
accidental and resulted from blunt trauma. He agreed that a belt could have caused many of the
bruises and stated that the infliction of the injuries would have caused the child “severe pain.” The
examining physician found no broken bones, and explained that Jacob would not suffer any long-
term physical effect from the bruises.

        After being shown photographs of Jacob’s injuries, the Defendant admitted to the police that
he had “whipped” Jacob with a belt. At trial, the Defendant admitted that he had spanked Jacob with
a belt on multiple occasions. He admitted that the last time he spanked Jacob, it was excessive. He
denied, however, ever hitting Jacob in the head, face, groin, or arms. He admitted that he could have
made some of the bruises on Jacob’s body, but denied making all of them. He did not know how
Jacob got all of the bruises and said he only hit Jacob two or three times when he spanked him.

        On behalf of the Defendant, Dr. Larry Wolfe testified that he had reviewed the photographs
taken of Jacob and Jacob’s medical records and stated that the medical records showed no evidence
that Jacob had suffered extreme physical pain when the bruises were inflicted.

                                            ANALYSIS
         Among other issues, the Defendant challenged the sufficiency of the evidence in support of
his conviction of aggravated child abuse. Aggravated child abuse is committed when a person
“knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such
a manner as to inflict injury,” Tenn. Code Ann. § 39-15-401(a), and “[t]he act of abuse results in
serious bodily injury to the child.” Tenn. Code Ann. § 39-15-402(a)(1). The Defendant contended
that the evidence was not sufficient to establish that Jacob suffered serious bodily injury. We held
that “a rational jury could have found beyond a reasonable doubt that the Defendant caused injuries
which resulted in Jacob experiencing extreme physical pain,” and therefore concluded that the
evidence was sufficient to support the jury’s verdict.2

        In its charge to the jury, the only lesser-included offense on which the trial court gave
instructions was child abuse. Child abuse is committed when a person “knowingly, other than by
accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict
injury.” Tenn. Code Ann. § 39-15-401(a). The Defendant argued on appeal that aggravated assault


         2
         “Serious bod ily injury” is defin ed in part as “bodily injury wh ich involv es . . . [e]xtreme physical pain.” Tenn.
Code A nn. § 39-11 -106(a)(34).

                                                             -2-
and assault are also lesser-included offenses of aggravated child abuse, and that the trial court
therefore erred in failing to instruct the jury on these offenses.

        A trial court is under the mandatory duty to instruct the jury on a lesser-included offense,
even if such an instruction is not requested, when “any evidence exists that reasonable minds could
accept as to the lesser-included offense” and when that evidence is “legally sufficient to support a
conviction for the lesser-included offense.” State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999); see also
Tenn. Code Ann. § 40-18-110(a). In Burns, our supreme court adopted a new three-part test for
determining whether an offense is a lesser-include offense. See Burns, 6 S.W.3d at 466-67. Under
the new test, which was largely derived from the Model Penal Code, 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 of an offense
                         that otherwise meets the definition of lesser-included
                         offense in part (a) or (b); or
                         (2) an attempt to commit the offense charged or an
                         offense that otherwise meets the definition of lesser-
                         included offense in part (a) or (b); or
                         (3) solicitation to commit the offense charged or an
                         offense that otherwise meets the definition of lesser-
                         included offense in part (a) or (b).

Id.

        Aggravated assault is committed when a person intentionally, knowingly or recklessly causes
serious bodily injury to another. See Tenn. Code Ann. § 39-13-102(a). Our supreme court has
recently concluded that
               knowing or reckless aggravated assault qualifies as a lesser-included
               offense of aggravated child abuse under part (a) of the Burns test
               because the elements of aggravated assault are included within the
               offense of aggravated child abuse. In other words, the elements of
               aggravated child abuse consist of all the elements of knowing or
               reckless aggravated assault, plus the additional element that the
               victim must be a child under 18 years of age.



                                                -3-
Honeycutt, 54 S.W.3d at 771 (footnote omitted). However, the court continued, “[i]ntentional
aggravated assault . . . would not be a lesser-included offense of aggravated child abuse” under
Burns. Id.

        With respect to assault, that offense occurs when a person intentionally, knowingly, or
recklessly causes bodily injury to another. See Tenn. Code Ann. § 39-13-101(a)(1). Thus, under
the rationale of Honeycutt, knowing or reckless assault is a lesser-included offense of aggravated
child abuse under part (a) of the Burns test, while intentional assault would not be a lesser-included
offense.

        Having concluded that knowing or reckless aggravated assault and knowing or reckless
assault are lesser-included offenses of aggravated child abuse, we must now determine whether the
trial court should have instructed the jury on those offenses. The test we must utilize to make this
determination is (1) whether any evidence exists that reasonable minds could accept as to the lesser-
included offense, and (2) whether the evidence is legally sufficient to support a conviction for the
lesser-included offense. See Burns, 6 S.W.3d at 469. In examining first the offense of knowing
aggravated assault, which requires that the accused knowingly caused serious bodily injury to
another, see Tenn. Code Ann. § 39-13-102(a)(1)(A), there is no question but that the proof is
sufficient to support the jury’s conclusion that the Defendant knowingly injured the victim. The
Defendant admitted to “whipping” Jacob with a belt and causing at least some of the child’s injuries.
As set forth above, the proof is also sufficient to support the jury’s conclusion that the Defendant
inflicted serious bodily injury on the victim. Thus, both prongs of the Burns test initially appear to
be satisfied. However, because the victim’s age is the only difference between aggravated child
abuse and knowing aggravated assault, the only way the jury could have convicted the Defendant
of knowing aggravated assault is if it believed the victim was not a child. Reasonable minds could
not have reached that conclusion. Thus, we find that the trial court did not err in failing to instruct
the jury on the lesser-included offense of knowing aggravated assault.

        Aggravated assault by reckless conduct, however, presents a different situation. Reasonable
minds could have determined that the Defendant acted recklessly, but not knowingly, when he
injured the child.3 Also, as set forth above, the evidence is sufficient to support a conclusion that the
bodily injuries the Defendant inflicted on Jacob were serious. Thus, we conclude that the trial court
erred by not instructing the jury on the offense of aggravated assault by reckless conduct, as set forth
in Tennessee Code Annotated section 39-13-102(a)(2)(A).

        We turn now to the lesser-included offenses of knowing and reckless assault, both of which
require the infliction of bodily injury by the accused upon another person. See id. § 39-13-101(a)(1).
The trial court instructed the jury on the lesser-included offense of child abuse, which requires a
finding that the accused knowingly, other than by accidental means, treated a child under the age of
eighteen in such a manner as to inflict injury. See id. § 39-15-401(a). Thus, the only difference


         3
          Wh ere the proof is sufficient to su ppo rt a find ing th at the accused acted k now ingly , it is also sufficient to
support a finding th at the accused acted recklessly. See Tenn. Co de An n. § 39-11-3 01(a)(2).

                                                             -4-
between child abuse and knowing assault is the age of the victim. As set forth above, reasonable
minds could not have concluded that the victim was over eighteen years old. Accordingly, the trial
court did not err by failing to charge the jury with the lesser-included offense of knowing assault.
As we concluded with reckless aggravated assault, however, we hold that the trial court did err by
not instructing the jury on the offense of reckless assault. As set forth above, reasonable minds
could have concluded that the Defendant acted recklessly rather than knowingly when he struck
Jacob with the belt. Moreover, whether Jacob suffered “serious bodily injury” or just “bodily injury”
at the Defendant’s hands was an issue hotly contested at trial, and we believe that reasonable minds
could have accepted the evidence that Jacob suffered only bodily injury. Thus, the trial court should
also have instructed the jury on the lesser-included offense of reckless assault.

       Having determined that the trial court erred in failing to instruct the jury on the lesser-
included offenses of reckless aggravated assault and reckless assault, we must now determine
whether the trial court’s error is harmless beyond a reasonable doubt. See Ely, 48 S.W.3d at 727
(holding that, “when determining whether an erroneous failure to instruct on a lesser-included
offense requires reversal, . . . the proper inquiry for an appellate court is whether the error is harmless
beyond a reasonable doubt.”)

         In his charge to the jury,4 the trial judge instructed the jury on only two offenses: aggravated
child abuse and child abuse. The offense of aggravated child abuse required the jury to find that the
Defendant (1) knowingly, other than by accidental means, treated the victim in such a manner to
inflict injury; (2) the act of abuse resulted in serious bodily injury to the victim; and (3) the victim
was under seven5 years of age. See Tenn. Code Ann. §§ 39-15-401(a), 39-15-402(a). The offense
of child abuse differed only in that the abusive conduct caused injury, rather than serious bodily
injury. See id. § 39-15-401(a). Thus, both offenses required a knowing state of mind.

        As we have concluded, however, the proof would have supported a finding that the
Defendant acted recklessly rather than knowingly when he “whipped” Jacob with the belt.
Moreover, the proof would have supported a finding that the recklessly inflicted injuries were not
“serious” as defined by our criminal code. See id. § 39-11-106(a)(34). However, although the jury
was not given a choice as to whether the Defendant acted knowingly or recklessly, it was given a
choice as to whether the injuries suffered by Jacob were serious. The jury determined that the
injuries inflicted on Jacob were serious bodily injuries, and the proof supports this determination.
Accordingly, it is apparent that, had the jury been given the additional choices of reckless
aggravated assault and reckless assault, and had it determined that the Defendant’s mens rea was
reckless rather than knowing, the jury would have convicted the Defendant of reckless aggravated
assault rather than reckless assault. Thus, we find that the trial court’s error in failing to instruct the
jury on the lesser-included offense of reckless assault was harmless beyond a reasonable doubt.

         4
          The record does not contain a verbatim transcript of the trial court’s charge to the jury. We must, therefore,
base our findings on the copy of the typewritten charge included in the technical record.
         5
          A findin g that the victim is under seven years of age was necessary to convict the Defendant of Class A felony
agg ravated ch ild abuse as opp osed to Class B felony aggravated ch ild abuse. See Tenn. Co de An n. § 39-15-4 02(b).

                                                          -5-
        Aggravated assault by reckless conduct presents a different situation, however. Reasonable
minds could have determined that the Defendant acted recklessly rather than knowingly when he
struck the child. The jury, however, was not given the option of finding that the Defendant acted
recklessly rather than knowingly. Given that the proof would support a conviction of aggravated
assault by reckless conduct, and given that the jury was erroneously precluded from considering any
lesser-included offense requiring a reckless mens rea, we cannot find that the trial court’s error in
this regard was harmless beyond a reasonable doubt. Cf. Ely, 48 S.W.3d at 727 (finding that, where
the evidence was sufficient to support a conviction of second degree murder, reckless homicide, or
criminally negligent homicide, but the jury was given no option to convict of a lesser offense than
felony murder, the failure to instruct on the lesser-included offenses was not harmless beyond a
reasonable doubt). See also State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001) (finding that the trial
court’s error in failing to charge theft as a lesser-included offense of robbery was not harmless
beyond a reasonable doubt where the jury had no opportunity to consider an intermediate lesser-
included offense).

        In light of the foregoing, we conclude that the Defendant’s conviction of aggravated child
abuse must be reversed and this matter remanded for a new trial. The trial court shall instruct the
jury on all lesser-included offenses of aggravated child abuse which are supported by the proof
adduced at the new trial.6 In all other respects, the remainder of this Court’s prior opinion in this
matter remains unchanged and is incorporated by reference herein.




                                                                ___________________________________
                                                                DAVID H. WELLES, JUDGE




         6
            Although not argued by the Defendant on this appeal, we must note that our suprem e cou rt also held in
Ho ney cutt that misde meanor reckless endangerment is also a lesser-included offense of aggravated ch ild abuse. See
id., 54 S .W.3d at 772 . The elements of reckless endangerment are: (1) recklessly engaging in conduct, (2) which places
or m ay place anoth er person in imminent danger of: (a) death; or (b) serious bod ily injury. Id.; see also Tenn. Code
An n. § 3 9-13-103(a).



                                                          -6-
