         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 11, 2001

                     STATE OF TENNESSEE v. NED JACKSON

                      Appeal from the Criminal Court for Shelby County
                              No. 99-11735  Chris Craft, Judge



                   No. W2000-02589-CCA-R3-CD - Filed December 18, 2001


NORMA MCGEE OGLE , J., dissenting.

                While I agree with the majority’s conclusion that the evidence adduced at trial is
sufficient to support the jury’s verdict of guilt of aggravated robbery, I respectfully disagree with its
conclusion that the trial court properly declined to instruct the jury on lesser-included offenses.
Currently, members of this court are divided concerning the correct interpretation of the two-step
process set forth by our supreme court in State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), for
determining if the evidence adduced at trial justifies jury instructions on lesser-included offenses.
See, e.g., State v. Linnell Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247 (Tenn.
Crim. App. at Knoxville, October 15, 2001). I am largely in agreement with the position expressed
by Judge Smith in his opinion in Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247,
at *21 (concurring in part and dissenting in part)(footnote omitted), that
                [a] reading of the recent cases of [State v. Bowles, 52 S.W.3d 69, 80
                (Tenn. 2001), and State v. Ely, 48 S.W.3d 710, 724-725 (Tenn.
                2001),] leads one to the inescapable conclusion that our high court
                has mandated that lesser-included offense instructions be given
                anytime the evidence is sufficient to support a conviction for these
                offenses. This means that anytime the proof is sufficient for a
                conviction of the indicted offense, the proof will a fortiori be
                sufficient for a conviction of the lesser-included offenses. . . . As a
                practical matter, this in turn means that it will almost always be error
                to fail to instruct the jury as to all lesser-included offenses of the
                indicted offense. Thus, the only real inquiry, in my opinion, in
                virtually all of the cases raising the lesser-included offense issue is
                whether the error in failing to instruct on the lesser offenses can be
                said to be harmless beyond a reasonable doubt.

               Judge Smith acknowledged in Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL
1222247, at *21 n.1, and our supreme court has indicated, see, e.g., Ely, 48 S.W.3d at 724; State v.
Fowler, 23 S.W.3d 285, 288-289 (Tenn. 2000); and Burns, 6 S.W.3d at 470-471, that the sufficiency
of evidence of lesser-included offenses “a fortiori” will not hold true for lesser-included offenses
such as facilitation that contain statutory elements inconsistent with or different from those of the
charged offense. In other words, in those cases, additional and sufficient proof will be necessary to
establish the distinct statutory element of the lesser-included offense. That having been said, if such
proof is adduced at trial, “[w]hether sufficient evidence supports a conviction of the charged offense
does not affect the trial court’s duty to instruct on the lesser offense.” Burns, 6 S.W.3d at 472; see
also State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000); State v. Steven Lee Whitehead, No.
W2000-01062-CCA-R3-CD, 2001 WL 1042164, at *19-20 (Tenn. Crim. App. at Jackson,
September 7, 2001); State v. Laquenton Monger, No. W2000-00489-CCA-R3-CD, 2001 WL
1011763, at *15 (Tenn. Crim. App. at Jackson, August 27, 2001).

               In any event, as noted by the majority opinion, this court in State v. James Eric Alder,
No. M1999-02544-CCA-R3-CD, 2000 WL 1606588, at *2 (Tenn. Crim. App. at Nashville, October
27, 2000), concluded that the statutory elements of both theft and aggravated assault by causing
another to reasonably fear imminent bodily injury while using or displaying a deadly weapon are
included in the statutory elements of aggravated robbery accomplished with a deadly weapon.
Accordingly, evidence establishing the offense of aggravated robbery necessarily warranted
instructions on the lesser-included offenses of theft and aggravated assault. I would also note in
passing that the evidence adduced at trial likewise warranted instructions on the lesser-included
offenses of robbery and assault by causing another to reasonably fear imminent bodily injury.

                Turning to the question of whether the trial court’s error was harmless beyond a
reasonable doubt, I once again agree with the position that was adopted by Judge Smith in
Richmond, No. E2000-01545-CCA-R3-CD, 2001 WL 1222247, at **22-23, and is supported by the
cases cited in his opinion. In short, as suggested by my opinions in Whitehead, No. W2000-01062-
CCA-R3-CD, 2001 WL 1042164, at *20, and Monger, No. W2000-00489-CCA-R3-CD, 2001 WL
1011763, at *15, I too believe that recent Tennessee Supreme Court precedent compels the
conclusion that a failure to instruct a jury on lesser-included offenses will only be found harmless
beyond a reasonable doubt under the circumstances presented in the case of State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998). Because the jury in this case was not afforded an opportunity to
consider intermediate lesser-included offenses, I cannot conclude beyond a reasonable doubt that the
trial court’s error was harmless. Accordingly, I would reverse the defendant’s conviction and
remand this case for a new trial wherein the jury is instructed on lesser-included offenses.


                                               ___________________________________
                                               NORMA McGEE OGLE, JUDGE




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