         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 22, 2005

               STATE OF TENNESSEE v. MITCHELL PRESNELL

                       Appeal from the Circuit Court for Cocke County
                            No. 6413     Rex Henry Ogle, Judge



                    No. E2004-00266-CCA-R3-CD - Filed August 17, 2005



DAVID G. HAYES, J., separate concurring.


       With respect to the defendant’s issue (2), whether the trial court erred in not charging lesser
offenses, I join in the result, but for reasons other than those reached by the majority.

       The majority concludes that this court’s opinion in State v. Robert Page, No. W2003-01342-
CCA-R3-CD (Tenn. Crim. App. at Jackson, August 26, 2004), perm. to appeal granted, (Tenn. Jan.
18, 2005), is correct in its holding that the provisions of Tennessee Code Annotated section 40-18-
110(a)-(c) are unconstitutional, thus, the defendant’s issue requires scrutiny under lesser included
and harmless error analysis. In the final analysis, the majority opines the error is harmless.

      As noted by my dissent in Page, I find the legislature’s enactment of Tennessee Code
Annotated section 40-18-110 (a)-(c) constitutional, thus, I find the issue waived.




                                                      ____________________________________
                                                      David G. Hayes, Judge
