                                                                                       04/17/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                            May 10, 2016 Session
        Remanded from the Tennessee Supreme Court September 22, 2017

               STATE OF TENNESSEE v. LEROY MYERS, JR.

               Appeal from the Criminal Court for Davidson County
                   No. 2014-B-1303     Steve R. Dozier, Judge


                            No. M2015-01855-CCA-R3-CD
                       _____________________________

After a bench trial, the trial court issued a written order finding the Defendant, Leroy
Myers, Jr., not guilty of the charged offense, aggravated assault, but guilty of reckless
endangerment. The Defendant appealed, asserting that reckless endangerment is not a
lesser-included offense of aggravated assault under the facts of this case and that there
was not an implicit amendment to the indictment to include reckless endangerment. We
affirmed the trial court. State v. Leroy Myers, Jr., No. M2015-01855-CCA-R3-CD, 2016
WL 6560014 (Tenn. Crim. App., at Nashville, November 4, 2016). The Defendant filed
an application for permission to appeal with the Tennessee Supreme Court pursuant to
Rule 11(a) of the Tennessee Rules of Appellate Procedure. On September 22, 2017, the
Tennessee Supreme Court granted the Defendant’s application for the purpose of
remanding the case to this Court to supplement the record. On remand, we again affirm
the trial court’s judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Jay Norman, Nashville, Tennessee, for the appellant, Leroy Myers, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Jennifer Charles, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts
       On May 27, 2014, a Davidson County grand jury indicted the Defendant for the
aggravated assault of Sandra Custode. The Defendant waived his right to a jury trial and
a bench trial began on May 28, 2015, and was continued until June 4, 2015, for further
testimony. We recite the facts as summarized in the trial court’s order:

              The State’s first witness was Sandra Custode. She testified that she
      is a property inspector and has been employed in that capacity with Metro
      Codes for twenty-one (21) years. On March 13, 2014, she testified that she
      was present at [] Union Hill Road in her official capacity. She testified that
      it was her second time there. She testified that she also sent a letter to abate
      the codes violation at this location. She testified that the [D]efendant works
      on cars out of his garage, and she has received complaints. She traveled to
      the residence to take pictures, and she saw cars behind the fence in the yard.
      She testified that she is familiar with the [D]efendant because she
      investigated another codes violation involving the [D]efendant previously.
      The State entered photographs of the location into evidence (Exhibit 1). On
      the date of the incident, she testified that she was taking pictures from her
      car in front of the garage. She stated that the [D]efendant told her on a
      prior date that she should not be on his property. She testified that the
      [D]efendant came out yelling at her and said, “Fucking bitch, why don’t
      you leave me alone” and “fucking fat bitch, go get someone else”. She
      testified that he was screaming and she could see the spit coming out of his
      mouth. She further stated that the [D]efendant was approximately five feet
      from her car while it was parked on the street. She testified that she tried to
      tell the [D]efendant why she was there, but he kept ranting. She testified
      that he went back to his garage. She stated that she “pulled out on the
      road” and traveled about thirty (30) feet from the [D]efendant’s driveway
      when she heard a gunshot. She testified that she looked back and heard the
      second shot. When she looked back, the [D]efendant was lowering the gun
      in her direction and the girl with him was laughing. Subsequently, she
      testified that she stopped her car farther down the road and called the
      police. She stated that she was really scared, crying, and shaken. She
      testified that “he shot because of me” and not at a hawk. She testified that
      the [D]efendant had chickens which were enclosed in a small cage. She
      also positively identified the [D]efendant in court.

              Officer Jason Merithew, Metro Police Department (MPD), testified
      when he arrived the [D]efendant was working on a car at the garage. He
      testified that he stayed with the [D]efendant in the front yard.


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              Officer Jason Dudley, MPD, testified that when he arrived at the
      residence, the garage doors were open. He stated that the gun was inside
      the garage leaning up against a washing machine. Without objection, the
      State entered the gun into evidence (Exhibit 2). He testified that the gun
      was unloaded when he found it. He testified that two young people showed
      up at the residence, and they stated they did not see what happened.

              Officer Joshua Borum, MPD, testified that on March 13, 2014, he
      did not see any chickens at the [D]efendant’s residence. He testified that he
      saw the [D]efendant and he said the [sic] he was “shooting at hawks trying
      to attack his chickens”. He testified that the [D]efendant said Ms. Custode
      had been at his house before.

            The Court then heard from the [D]efendant. He testified that he has
      chickens, Rhode Island Reds. He stated that hawks pull the chickens
      through the screen. Further, he testified that, at the time of this incident, a
      hawk came in from the road, approximately fifty (50) yards from the street,
      and he fired his gun up in the air. He testified that, at no time, was he near
      Ms. Custode or her car at the street.

            Ms. Mallory testified on behalf of the defense. She stated that the
      [D]efendant did not shoot at the victim. She testified that he was shooting
      at hawks. She also testified that he did not call the victim names.

             In rebuttal, the State called Hugh Coleman, an investigator with the
      District Attorney’s office. He stated the [sic] he spoke to Ms. Mallory
      about this incident. She stated to him that the [D]efendant shot because he
      was upset at the “code’s lady”.

       Following the evidence, the State argued that the Defendant had fired a shotgun
placing Ms. Custode in fear of imminent bodily injury and asked the trial court to convict
the Defendant as charged. Defense Counsel responded that the State failed to show that
Ms. Custode feared imminent bodily injury and that the proof did not support aggravated
assault, much less reckless endangerment. Defense counsel then referenced two cases
wherein a court concluded that “simply firing a weapon does not amount - - tantamount
to reckless endangerment.” The trial court then responded as follows:

      [T]his case, like many to a large extent will boil down to the credibility
      issues and there are some issues to consider in terms of Ms. C[u]stode’s
      testimony in terms of how she would know there was a gun there if she had
      already drove off. And whether Ms. Mallory and Mr. Myers are accurate in
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       terms of where he was and the initial confrontation between the two and
       where he was then when the shot occurred. And [defense counsel]’s raised
       issues about, not in this direct discussion, but whether or not there might be
       less - - a lesser offense like reckless endangerment.

              So I will take this under advisement to consider those issues . . . .

      The trial court then invited defense counsel to submit copies of any of the cases he
had referenced during closing argument about imminent danger. Defense counsel
submitted two cases on reckless endangerment for the trial court’s consideration: State v.
Payne, 7 S.W.3d 25 (Tenn. 1999) and State v. Terrence Shaw, No. W2010-00201-CCA-
R3-CD, 2011 WL 2176561 (Tenn. Crim. App., at Jackson, June 1, 2011), no Tenn. R.
App. P. 11 application filed.

       In an order filed on June 30, 2015, the trial court accredited the victim’s
testimony, concluding that the Defendant “did not transform from an outraged landowner
to a humble hunter in a matter of seconds.” Nonetheless, the trial court found insufficient
proof to sustain an aggravated assault conviction. The trial court then considered reckless
endangerment, specifically discussing the case law defense counsel had submitted
regarding a “zone of danger.” The trial court concluded:

              Here the [D]efendant did not merely shoot the gun into a tree. He
       fired the weapon twice in Ms. Custode’s direction to scare her off of his
       property as she was leaving. Ms. Custode saw the [D]efendant lower the
       gun in her direction. Ms. Custode was present in the zone of danger,
       wherein a reasonable probability of danger existed. Therefore, the
       [D]efendant is guilty of reckless endangerment, a Class E Felony.

       Thereafter, the Defendant filed a motion for judgment of acquittal on the basis that
reckless endangerment is not a lesser-included offense of intentional or knowing
aggravated assault. In its order denying the motion, the trial court agreed that reckless
endangerment was not a lesser-included offense but reasoned as follows:

       In defense counsel’s closing argument, he argued there was no assault.
       Referring to State v. Payne, 7 S.W.3d 25 (Tenn. 1999), he stated that
       simply firing a shotgun into a tree is not reckless endangerment, a Class E
       Felony. Defense counsel further argued that the [D]efendant’s actions did
       not constitute reckless endangerment; therefore, it cannot be an assault
       “unless he was in the tree”.

              ....
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              Defense counsel raised the issue of whether the [D]efendant’s
       actions could be a lesser included offense like reckless endangerment.
       Further, when the Court stated it would take the matter under advisement to
       consider lesser included offenses like reckless endangerment, defense
       counsel made no objection. In furtherance of defense counsel’s argument
       and for the Court’s consideration of lesser[-]included offenses, he
       submitted two cases for the court to consider. Both of these were reckless
       endangerment cases. State v. Payne, 7 S.W.3d 25 (Tenn. 1999); State v.
       Shaw, W2010-00201-CCA-R3-CD (Tenn. Ct. Crim. App. June 1, 2011).
       The Court finds an effective amendment to the indictment because the
       [D]efendant actively sought to place it before the court on the uncharged
       offense, reckless endangerment. Therefore, the [D]efendant cannot
       complain about convictions on an offense which, without his own counsel’s
       intervention, would not have been considered.

(footnotes omitted). In one of the footnotes to the order, the trial court noted, “Both the
Assistant District Attorney and defense counsel discussed with the Court whether the
facts merited a finding as to reckless endangerment versus aggravated assault.”

        In our original opinion, we concluded that the Defendant had failed to provide us
with an adequate record and, in the absence of a complete record, presumed the findings
of the trial court were correct. See State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim.
App. 1992). The Defendant appealed and the supreme court issued an order vacating our
judgment and remanding the case for consideration on the merits upon supplementation
of the record. The order stated, “the Court of Criminal Appeals shall order the trial court
clerk to supplement the record with the full transcript of the bench trial in this case,
including the proceedings on May 28, 2015, and June 4, 2015.” In compliance with the
supreme court’s order, we ordered the trial court clerk to supplement the record exactly
as directed by the supreme court.

                                       II. Analysis

       On appeal, the Defendant asserts that the trial court erred when it found an
effective amendment to the indictment to include reckless endangerment. The State
responds that trial counsel’s argument regarding reckless endangerment and the cases
submitted on reckless endangerment support the trial court’s finding of an effective
amendment.

       “[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.
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Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997) (citing State v. Trusty, 919 S.W.2d 305,
310 (Tenn. 1996)). The indictment may be amended, however, with the defendant’s
consent. Tenn. R. Crim. P. 7(b)(1). In order for an indictment to be amended pursuant to
Rule 7(b), “an oral or written motion to amend the indictment should be made, and the
defendant’s oral or written consent to the motion must be clear from the record.” State v.
Stokes, 24 S.W.3d 303, 303 (Tenn. 2000). Further, “[w]hen a defendant actively, yet
erroneously, seeks an instruction on a lesser-included offense, the defendant effectively
consents to an amendment of the indictment.” State v. Greg Patterson, No. W2011-
02101-CCA-R3-CD, 2012 WL 206287, at *3 (Tenn. Crim. App., at Jackson, Dec. 11,
2012) (citing Demonbreun v. Bell, 226 S.W.3d 321, 326 (Tenn. 2007)); see also State v.
Ealey, 959 S.W.2d 605, 612 (Tenn. Crim. App. 1997) (holding that a defendant cannot
“complain about convictions on an offense which, without his own counsel's intervention,
would not have been charged to the jury”) (internal quotation marks and citations
omitted).

       In the instant case, the Defendant was indicted for aggravated assault but was
convicted of reckless endangerment. As correctly noted by the Defendant and conceded
by the State, reckless endangerment is not a lesser-included offense of intentional or
knowing aggravated assault. See, e.g., State v. Moore, 77 S.W.3d 132, 136 (Tenn. 2002).
Based upon the record before us, however, it appears the Defendant sought the trial
court’s consideration of reckless endangerment as a lesser-included offense.

       One of the circumstances that the trial court relies upon in concluding that the
Defendant affirmatively sought the trial court’s consideration of reckless endangerment
involves conversations not included in the record. The trial court twice references
discussions that included defense counsel on whether reckless endangerment should be
considered as a lesser-included offense. First, during closing argument, the trial court
noted that defense counsel had previously raised the issue of reckless endangerment for
consideration as a lesser-included offense. The trial court then stated it would take the
matter under advisement for further consideration of “those issues.” The Defendant did
not object or attempt to correct the record when the trial court referenced this prior
conversation about consideration of a lesser-included offense. The trial court invited the
Defendant to submit case law, and the Defendant submitted case law on reckless
endangerment for the trial court’s consideration. Next, in the trial court’s order denying
the Defendant’s motion for acquittal, it again references a discussion between the parties
about reckless endangerment as a lesser-included offense. The conversations referenced
by the trial court are not included in the supplemented material or in the record submitted
by the Defendant.

       Although this Court should not “presume consent merely from the accused’s
silence,” the prior conversations seeking consideration of reckless endangerment, defense
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counsel’s raising and referencing reckless endangerment again at closing argument, and
defense counsel’s submission of case law on reckless endangerment to aid the trial court
in its determination all support the trial court’s conclusion that the Defendant actively
sought the trial court’s consideration of reckless endangerment. Furthermore, we note
that when, at the bench trial, the trial court states, “[defense counsel]’s raised issues
about, not in this direct discussion, but whether or not there might be less - - a lesser
offense like reckless endangerment,” there is no objection raised by defense counsel or by
the State.

       Accordingly, in our view, the record supports the trial court’s judgment that the
indictment was effectively amended to include reckless endangerment as a charged
offense. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). The
Defendant is not entitled to relief.

                                    III. Conclusion

     In accordance with the aforementioned reasoning and authorities, we affirm the
judgment of the trial court.

                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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