         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

                   STATE OF TENNESSEE v. RANDALL WHITE

                              Criminal Court for Davidson County
                                        No. 97-C-1829



                     No. M2000-01492-CCA-R3-CD - Filed March 27, 2002



                                               ORDER


Following a dispute over rent the appellant shot his unarmed roommate with a .22 caliber rifle. As
a result of this act the appellant was indicted for attempted first degree murder. At the appellant’s
trial, the judge instructed the jury on attempted first degree murder, attempted second degree murder
and attempted voluntary manslaughter. The jury returned a verdict of guilty for attempted second
degree murder. The appellant was sentenced to serve ten years in incarceration as a standard Range
I offender.

        In this appeal, the appellant challenges his conviction based upon the trial judge’s failure to
instruct the jury on the offense of aggravated assault, which the appellant claims is a lesser-included
offense of attempted first degree murder. We find no reversible error with respect to this issue and
we affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal
Appeals.

        This Court has previously held that aggravated assault is not a lesser-included offense of
attempted first degree murder. State v. Joshua Lee Williams, No. W2000-01435-CCA-R3-CD, 2001
Tenn. Crim. App. LEXIS 452, at *19 (Tenn. Crim. App. at Jackson, June 27, 2001); State v.
Christopher Todd Brown, No. M1999-00691-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 214, at
*4 (Tenn. Crim. App., at Nashville, Mar. 9, 2000). Moreover, even if aggravated assault were a
lesser-included offense of attempted first degree murder, any error in failing to instruct the jury with
respect to it would be harmless beyond a reasonable doubt. The jury in the instant case declined to
find the appellant guilty of the least serious offense presented to them, i.e., attempted voluntary
manslaughter. Instead the jury returned a guilty verdict on the intermediate offense of attempted
second degree murder. Under these circumstances any error in failing to charge an offense less than
attempted voluntary manslaughter is clearly harmless beyond a reasonable doubt. See State v.
Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998).
        Accordingly, the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the
Court of Criminal Appeals. It appearing to the court that the appellant, Randall White is indigent,
costs are taxed to the State of Tennessee.



                                                     ____________________________________
                                                     JERRY L. SMITH, JUDGE


                                                     ____________________________________
                                                     GARY R. WADE, PRESIDING JUDGE


                                                     ____________________________________
                                                     DAVID G. HAYES, JUDGE




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