     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT JACKSON

                      MAY 1996 SESSION             FILED
                                                     June 10, 1996

                                                  Cecil Crowson, Jr.
                                                   Appellate Court Clerk
STATE OF TENNESSEE,         )
                            ) C.C.A. No. 02C01-9511-CR-00353
     Appellee,              )
                            ) Shelby County
V.                          )
                            ) Honorable Carolyn Wade Blackett, Judge
                            )
LEONARD A. FOX,             ) (Simple Assault; Reckless Endangerment)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

James V. Ball                  Charles W. Burson
Attorney at Law                Attorney General & Reporter
217 Exchange Avenue
Memphis, TN 38105              John R. Collier
                               Assistant Attorney General
Joseph S. Ozment               Financial Division
Attorney at Law                500 Charlotte Avenue
217 Exchange Avenue            Nashville, TN 37243-0496
Memphis, TN 38105
                               John W. Pierotti
                               District Attorney General

                               Rhea Clift
                               Asst. Dist. Attorney General
                               201 Poplar Avenue, Third Floor
                               Memphis, TN 38103




OPINION FILED: ___________________


VACATED AND DISMISSED


PAUL G. SUMMERS,
Judge
                                             OPINION


       The appellant, Leonard A. Fox, was convicted of simple assault and

reckless endangerment. He was sentenced to 11 months 29 days for assault

and three years for reckless endangerment. His sentences were ordered to run

concurrently. On appeal, he argues: (1) the evidence was insufficient to sustain

a conviction for assault, and (2) the evidence was insufficient to sustain a

conviction for reckless endangerment. The state concedes his first issue. As to

the appellant's remaining issue, we find the evidence insufficient to sustain a

conviction for reckless endangerment. We vacate and dismiss.



                                                 FACTS



       The appellant's indictment on the charge of reckless endangerment read

as follows:

       . . . did unlawfully and recklessly, by use of a deadly weapon, to wit:
       a pistol, engage in conduct which placed other persons, whose
       identities are to the Grand Jurors aforesaid unknown, in imminent
       danger of death or serious bodily injury. . . .

The indictment stemmed from the appellant's acts of discharging a pistol into the

air or up into a tree.1 There was no testimony that anyone was either in the tree

being fired upon or outside the apartment building in the immediate vicinity of the

appellant.



                                              ANALYSIS



       Reckless endangerment is proscribed in Tenn. Code Ann. § 39-13-103

(1991 Repl.). The statute provides that:

       (a) A person commits an offense who recklessly engages in
       conduct which places or may place another person in imminent
       danger of death or serious bodily injury.




       1
           W itnesses informed the police that they saw the appellant "shooting in the air."

                                                    -2-
       (b) Reckless endangerment is a Class A misdemeanor; however,
       reckless endangerment committed with a deadly weapon is a Class
       E felony.

Tenn. Code Ann. § 39-13-103. Accordingly, reckless endangerment is couched

in terms of risk to another person produced by one's conduct. This Court has

previously recognized the potentially "absurd" and "unreasonable" results that

may arise from permitting prosecution of one discharging "a weapon under any

circumstances where any other human being might possibly be present or where

a stray bullet might possibly strike another person." State v. Culbertson, No.

03C01-9412-CR-00449, slip op. at 2 (Tenn. Crim. App. Aug. 30, 1995).



       We find the appellant's mere discharge of a weapon into the air or up into

a tree top did not "place another person in imminent danger of death or serious

bodily injury." Merely discharging a gun, standing alone, is not sufficient to

constitute commission of reckless endangerment. See People v. Richardson, 97

A.2d 693 (N. J. Super. Ct. App. Div. 1953) (holding discharge of gun into air does

not constitute reckless endangerment). The discharge must create an imminent

risk of death or serious bodily injury to some person or class of persons. The

state's proof has fallen short of this requirement. The judgment of the trial court

is, therefore, reversed.



       The judgments of conviction as to both indictments are vacated and

dismissed.




                                         -3-
                                       _____________________________
                                       PAUL G. SUMMERS, Judge


CONCUR:




_____________________________
DAVID G. HAYES, Judge




_____________________________
PAUL R. SUMMERS, Special Judge




                                 -4-
