        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 25, 2014

                  STATE OF TENNESSEE v. DANNY ADAMS

                 Appeal from the Criminal Court for Monroe County
                         No. 09-445 Carroll L. Ross, Judge


                 No. E2013-01236-CCA-R3-CD - Filed April 22, 2014


The Defendant, Danny Adams, was convicted by a jury of simple assault. On appeal, he
challenges the sufficiency of the evidence for that conviction, including an argument therein
of inconsistent verdicts. We have thoroughly reviewed the record on appeal, and although
the evidence is sufficient, we must reverse the Defendant’s conviction because an incorrect
mental state was included in the jury charge. Moreover, we cannot deem the error harmless
beyond a reasonable doubt. Accordingly, we reverse the judgment of the trial court and
remand the case for further proceedings consistent with this opinion.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                             Reversed and Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Richard Hughes, District Public Defender, and Jeanne L. Wiggins, Assistant Public
Defender, for the appellant, Danny Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Steven Bebb, District Attorney General; and James H. Stutts,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

      This case arises from a June 24, 2009 evening brawl at Hidden Lake Campground in
Monroe County. The Defendant and his cohort, Vincent Cole, quarreled with Joshua
Anderson that evening, ultimately leading to Joshua Anderson’s shooting of both the
Defendant and Cole. Thereafter, the Defendant was charged with the criminally negligent
homicide of Cole and the aggravated assault of Anderson. See Tenn. Code Ann. §§ 39-13-
102, -212. The Defendant proceeded to trial on August 30, 2012.

        The proof at trial revealed the following facts. Thirty-year-old Joshua Anderson
testified that he visited Hidden Lake Campground with his wife, Jamie Anderson, on the
evening of July 24, 2009.1 According to Joshua, they arrived at the campground pavilion
around 7:00 or 8:00 p.m. to meet with Joshua’s uncle, Mark Anderson, and a party with a
karaoke machine was in progress. Both Cole and the Defendant were present at the party
when Joshua arrived. Joshua stated that he had met both men before, but he did not have a
personal relationship with them. He first encountered Cole, amongst a group of other people,
as he walked up the ramp to the pavilion.

       Joshua stated that, at some point in the evening, he engaged in a conversation with
Cole. During that conversation, the Defendant walked over and asked, “Is there a problem
here, [Cole]? Have we got a problem?” referring to Joshua. According to Joshua, Cole
responded, “No, there ain’t no problem.” After talking a few minutes longer with Cole,
Joshua sat down. Joshua then walked to his car to get a drink, returning through a group of
people on the ramp on his way back to the pavilion. This time, “it seemed a little more
tense[,]” so he said to Jamie, “We need to get out of here.” Joshua described the group as
“aggressive” and said that “nobody want[ed] to move to let [him] walk by[.]” He also
observed a “razor knife” on the Defendant’s side as he passed him. Joshua went to Cole,
asking if there was problem because it was not “a comfortable scene.” Joshua then told
Jamie to walk down the back steps, pretending to go the bathroom, and they would meet at
the car and leave.

        As Joshua was making his way to the car, the Defendant ran up to him, yelling at him
and asking if he had flipped “a bird” at the Defendant. Joshua replied, “No. . . . I’m
leaving.” By this time, a crowd began to gather according to Joshua, “circl[ing] around
[him,]” and Jamie had brought him his .22-caliber pistol because she was “scared” for him.
Joshua continued to assert his desire to leave and turned to walk towards his car when the
Defendant hit him from behind and knocked him down on the gravel parking area. As
Joshua got up from the ground, the Defendant “kept coming towards” him, pursuing him up
an incline. In an attempt to thwart the Defendant’s efforts, Joshua fired a warning shot into
the air and once again stated his desire to leave. According to Joshua, the warning shot
stopped the Defendant “for a split second,” and Jamie got in between them at that time,
pleading with the Defendant to let them leave. The Defendant threatened Joshua with his
knife, stating, “I’m going to cut your f--king guts out.” The Defendant’s then girlfriend,


1
  For the sake of clarity, we will refer to the Andersons by their first names or full names. We intend no
disrespect.

                                                    2
Lynette Adams, “knocked [Jamie] out from in between” the two men. According to Joshua,
that was when the Defendant “tried to cut” him, so he shot the Defendant. Joshua stated that
he “was in fear for [his] life, or . . . real bad bodily harm.”

         Joshua saw that Cole’s wife, Sydne Cole, had now grabbed Jamie and placed a knife
to her throat. Joshua testified that Cole came “running [at him] with a knife “ and was going
to “stick [him] in the back,” so Joshua placed his pistol under his arm and shot Cole. Joshua
believed he had no other option but to fire at the men. At this time, Cole’s wife let Jamie go,
and the couple proceeded to leave the campground. The couple then drove to Joshua’s
grandfather’s house, which was nearby, and immediately telephoned 911. Joshua waited for
the police to arrive that evening to speak with him and turned his weapon over to the police
once they arrived. Joshua exercised his right to remain silent when questioned at the county
jail later that evening.

       On cross-examination, Joshua was asked about the operation of the .22-caliber
handgun. He stated that the weapon’s magazine held ten bullets. After Jamie brought him
the weapon at the campground that evening, he did look to see if a bullet was in the chamber,
but he did “take [his] hands to make the action to put a bullet into the chamber[.]” He
confirmed that the weapon did not misfire during the altercation and stated that “the cops
dropped a round when they [were] unloading it” at his grandfather’s house.

        Mark Anderson, Joshua’s uncle, testified about his observations the evening of July
24, 2009. Mark was responsible for inviting Joshua to the party at the campground pavilion
that evening. At the time of the party, Mark was “good friends” with Cole, but he did not
know the Defendant. According to Mark, when Cole’s “bunch pulled up, they [were] raising
hell[,]” “[j]ust ornery[,]” and “[t]rying to pick a fight with anybody they could.” While
singing karaoke, Mark saw the Defendant “jump[] up” when Joshua was talking to a girl
from high school and heard the Defendant say to Joshua, “You got anything to say to her, you
can say it to me.” At some point in the evening, Mark noticed that Joshua and Jamie were
gone. Mark stated that he then “heard two firecrackers behind” him and turned to see his
nephew standing in the road with a gun. Mark went to assist Joshua, walking swiftly up the
hill to where Joshua was located, and there he met Cole, who “was in [his] face” when he
turned around. Mark said to Cole, “You need to leave Josh alone,” and then, Mark was “hit
in the crotch[,]” causing him to pass out.

      Cathy Lusby, who knew both Cole and the Defendant but not Joshua or Jamie
Anderson prior to the party, shared with the jury her observations of the brawl that evening.
According to Ms. Lusby, Cole and the Defendant arrived at the party about 8:00 p.m. That
evening, she heard “a firecracker” and yelling. She looked to see “a whole crowd of people”
who were “coming up the hill.” She stated that Joshua and his wife were “backing up” the

                                              3
hill being pursued by the Defendant and Cole. According to Ms. Lusby, Jamie was “pulling
[Joshua] like up the hill.” Ms. Lusby heard Cole telling the Defendant several times that
Joshua had a gun and to “[g]et away” from him; however, she did not observe the Defendant
or Cole actually back away from Joshua. Ms. Lusby described Joshua’s movements, “[H]e
would back up and then step forward. . . . Like he, he wanted to maybe go away, but then
he wasn’t done either[.]” Everyone was starting to get loud at that point, and Ms. Lusby
heard shots fired and saw “the women . . . trying to pull the guys off of each other.” Cole
was shot first, followed by the Defendant, according to Ms. Lusby. Although she saw the
gun, she did not see whether Cole had a knife in his hand. After the shooting, the crowd
scattered, and the Andersons got into their car and left. Ms. Lusby also did not observe
anyone get into a physical altercation with Jamie Anderson that evening. The entire episode
last ten to fifteen minutes according to Ms. Lusby.

       Cole died from his gunshot wound to his arm pit area, and the Defendant required
surgery for his wound to the abdomen. During Cole’s autopsy, his blood alcohol level was
determined to be .12 percent at the time of his death. Other than the gunshot wound, Cole
exhibited “a few fairly minor abrasions of his legs and ankles[.]”

        Investigator Douglas Brannon with the Monroe County Sheriff’s Department collected
evidence at the scene. According to Inv. Brannon, there were approximately ten officers,
four Emergency Management Services personnel, and ten bystanders present when he arrived
at the campground pavilion. During his search, Inv. Brannon discovered two shell casings,
along with one unfired round, scattered around the area. Eyeglasses, a hoop earring, a ball
cap, and a large “clump of hair” were also recovered. A matching hoop earring was later
retrieved from Jamie Anderson.

       Inv. Brannon stated that, when he retrieved the weapon from Joshua after the
shooting, there were six rounds in the chamber. The officers were unable to account for one
round of the ten-round chamber, and Inv. Brannon opined that another spent round should
have been present at the scene because the gun had been fired three times according to
witnesses. Inv. Brannon discussed how Joshua’s weapon operated, “It’s . . . a .22 caliber,
semi-automatic pistol, meaning that it self-loads. Once it’s loaded to begin with, each time
you pull the trigger, it loads itself, ejects the old one and puts a new one in.”

        Joshua was later photographed at the jail and exhibited “some injuries” in those
photographs. Also, some sand and gravel were seen “in the backside of [Joshua’s] britches”
according to Inv. Brannon. The morning following the shooting, after the investigation had
been concluded, the police received a call that a lock-blade knife had been found at the scene.
The knife, which was covered by a chair, was retrieved. Blood was present on the knife, and
a partial DNA profile of that blood matched the Defendant.

                                              4
       The Defendant testified in his own defense and provided a different version of the
events. The Defendant claimed that, as Joshua was coming down the ramp from the pavilion,
Joshua ran into him and knocked him against the railing. The Defendant said, “Excuse you,
buddy,” but Joshua kept walking and did not respond. Shortly thereafter, Cole approached
the Defendant inquiring about Joshua, “What’s that guy’s problem?” The Defendant said,
“I don’t know. . . . I don’t know him.” According to the Defendant, Cole sat down beside
Jamie Anderson, and Joshua told Cole “to get out of his f--king seat[.]” Cole told Joshua that
the seat did not belong to him, but he would get out of it anyway. The Defendant stated that
everything settled down at that point.

       During this period of reprieve, Jamie went to her vehicle and returned with something
in a brown paper bag for Joshua. Joshua pulled the item out of the bag and stuck it in his
pants according to the Defendant.

      Five minutes or so later, Joshua approached Cole again and “started talking smack[.]”
A verbal altercation ensued, but the parties eventually calmed down, appearing to have
mended their grievances with one another.

        The Defendant said he went to use the bathroom fifteen minutes after that where he
encountered Joshua pointing a gun at Cole. The Defendant admitted that he then hit Joshua,
who fired at him but missed. The Defendant was yelling at Cole to get the gun when Mark
Anderson got in between them and pushed Cole off Joshua. When Cole kicked Mark, Joshua
fired at them. The Defendant claimed that Cole was backing away at the time he was shot
and that neither of them produced a knife during the altercation. According to the Defendant,
Sydne Cole grabbed Jamie after the shooting and threatened to cut Jamie’s throat, but the
Defendant still never saw a knife.

        On cross-examination, the Defendant acknowledged that he had three convictions for
passing fraudulent checks, seven for credit card fraud, and one for possessing cocaine for the
purpose of delivery. On redirect, the Defendant testified that both he and Cole had a knife
like the one found at the scene. However, he claimed that he still had his in his possession
at the time of trial.

        The Defendant’s estranged wife, Lynette Adams, testified for the defense and
provided a similar recount of the events as the Defendant. However, she provided one
different, important detail from other witnesses; she testified that the Defendant was shot
first, before Cole.

       Following the conclusion of the proof, the Defendant was acquitted of the criminally
negligent homicide of Cole and found guilty of the lesser-included offense of the simple

                                              5
assault of Joshua Anderson, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-101.
Thereafter, the trial court sentenced the Defendant to eleven months and twenty-nine days,
to be served on unsupervised probation if the Defendant paid his court costs within two
weeks. This appeal followed.


                                         ANALYSIS

      On appeal, the Defendant argues that the evidence is insufficient to sustain his
conviction for simple assault. Specifically, he asserts that,

       for the jury to acquit [the Defendant] of both aggravated assault and criminally
       negligent homicide, the jury must necessarily have rejected the State’s theory
       in this case. If the jury rejected the State’s theory that [the Defendant]
       committed an aggravated assault with a deadly weapon or caused Josh
       Anderson to shoot and kill Vince Cole, they could not have rationally viewed
       [the Defendant’s] conduct as in furtherance of criminal activity but in defense
       of himself and Mr. Cole.

The Defendant then engages in a lengthy recount of the trial testimony in an attempt to
support his allegation of insufficient evidence, discussing the credibility of the witnesses, the
evidence admitted, and the perceived deficiencies in the crime scene investigation. He
concludes that “[t]he jury’s verdict is simply inconsistent with their other findings and
further, unsupported by the proof presented at trial.” The State disagrees, stating,

       because the proof permitted a reasonable jury to find that Josh Anderson was
       in reasonable fear of imminent bodily injury when the [D]efendant hit him and
       displayed a knife and that the [D]efendant acted either intentionally,
       knowingly, or recklessly, the jury could find that the elements of assault had
       been proven.

The State notes that the jury chose to accredit Joshua Anderson’s testimony and that
inconsistent verdicts will not be disturbed if the evidence is sufficient to sustain the
conviction.

        An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all

                                               6
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “is
the same whether the conviction is based upon direct or circumstantial evidence.” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on
appeal of a conviction is not to contemplate all plausible inferences in the [d]efendant’s
favor, but to draw all reasonable inferences from the evidence in favor of the State.” State
v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

        Because the Defendant’s sufficiency issue also includes an inconsistent verdict
argument, we will recap the charges as they were initially presented to the jurors for their
consideration. The Defendant was charged with the criminally negligent homicide of Cole
and the aggravated assault of Joshua Anderson. Criminally negligent homicide is defined
as “[c]riminally negligent conduct which results in death.” Tenn. Code Ann. § 39-13-212(a).

       “Criminal negligence” refers to a person who acts with criminal negligence
       with respect to the circumstances surrounding that person’s conduct or the
       result of that conduct when the person ought to be aware of a substantial and
       unjustifiable risk that the circumstances exist or the result will occur. The risk
       must be of such a nature and degree that the failure to perceive it constitutes
       a gross deviation from the standard of care that an ordinary person would
       exercise under all the circumstances as viewed from the accused person’s
       standpoint.

Tenn. Code Ann. § 39-11-106(a)(4). The aggravated assault charge, of which the Defendant
was acquitted, required the State to prove that the Defendant “[i]ntentionally or knowingly
commit[ed] an assault as defined in § 39-13-101” and that the Defendant used or displayed
a deadly weapon. See Tenn. Code Ann. § 39-13-102. In accordance with Tennessee Code
Annotated section 39-13-101(a)(2), a person commits the offense of simple assault, the

                                               7
offense for which the Defendant stands convicted, when he “intentionally or knowingly
causes another to reasonably fear imminent bodily injury[.]” 2

       The Defendant’s sufficiency argument is two-fold. First, he challenges the credibility
of the witnesses, the evidence, and the crime scene investigation. As previously noted, the
Defendant gives a detailed review of specific aspects of the testimony and evidence at trial,
noting Joshua Anderson’s testimony that his wife brought him the gun after she saw an
altercation ensuing, the location of the unfired round, the testimony about how the .22-caliber
pistol operated, the chaotic crime scene following the shooting, the insignificance of the
DNA evidence found on the knife, the lack of injury to Joshua Anderson, the State’s
inadequate investigation following the shooting, and Ms. Lusby’s “rather distant but
interesting view of events.” He further notes that “there was only one witness[, Joshua
Anderson,] who testified that [the Defendant] had a knife and that witness also testified that
Vince Cole tried to stab him from behind[,]” leaving this testimony unsubstantiated. The
Defendant testified that he and Cole were attacked by Joshua Anderson; however, the jury
was free to reject this testimony. Juries are tasked with assessing the credibility of trial
witnesses and are generally free to reject, in whole or in part, the testimony of any witnesses.
As often stated, it is the province of the jury to assess the credibility of the witnesses, weigh
the evidence, and resolve disputed issues of fact. State v. Leach, 148 S.W.3d 42, 53 (Tenn.
2004). In the case at bar, the jury listened to multiple witnesses testify that the Defendant
and Cole pursued the Andersons up an incline while the men engaged in a quarrel. There
was sufficient evidence to support a conviction that the Defendant intentionally or knowingly
caused Joshua Anderson to reasonably fear imminent bodily injury.

       Although not stated as a separate issue, the Defendant contends that the jury
necessarily rejected the State’s theory of the case based upon their verdicts, i.e., the jury’s
verdicts were inconsistent. However, the Defendant was charged with separate counts
dealing with separate victims. When the jury determined that the Defendant lacked the
requisite intent that caused Cole’s death, i.e., that the Defendant did not act with criminal
negligence, the jury could still have properly concluded that the Defendant was guilty of the
assault of Joshua Anderson. Moreover, as noted by the State, even if they were inconsistent,
inconsistent verdicts have long been upheld in this State. See Wiggins v. State, 498 S.W.2d
92, 93-94 (Tenn. 1973) (holding that “[c]onsistency in verdicts for multiple count
indictments is unnecessary as each count is a separate indictment” and must be individually
supported by the evidence).




2
  The Defendant was not charged with assault by “[i]ntentionally, knowingly or recklessly caus[ing] bodily
injury to another[.]” See Tenn. Code Ann. 39-13-101(a)(1).

                                                    8
        However, we deem it necessary to note a separate error that requires reversal of this
case. See Tenn. R. App. P. 36(b) (stating that “[w]hen necessary to do substantial justice,
[this] court may consider an error that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for a new trial or assigned as error
on appeal”). In order for this court to find plain error, we consider the following five factors:

          (a) the record must clearly establish what occurred in the trial court;
          (b) a clear and unequivocal rule of law must have been breached;
          (c) a substantial right of the accused must have been adversely affected;
          (d) the accused did not waive the issue for tactical reasons; and
          (e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994). Plain error cannot be found unless the record
establishes all of the elements of the Adkisson standard. Id. at 283.

       A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Litton, 161 S.W.3d 447, 458 (Tenn. Crim. App. 2004) (quoting State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990), superseded by statute on other grounds as stated in State v.
Reid, 91 S.W.3d 247, 291 (Tenn. 2002)). “A charge should be considered prejudicially
erroneous if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Forbes,
918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531 (Tenn.
1977)).

       Here, the trial court gave the following instruction on the lesser-included offense of
simple assault3 :

                  For you to find the [D]efendant guilty of this offense, the State must
          have proven beyond a reasonable doubt the existence of the following essential
          elements: the State must have proven (1) that the [D]efendant caused another
          to be in reasonable fear of imminent bodily injury; and (2) that the [D]efendant
          acted either intentionally, knowingly or recklessly.

The State notes in its appellate brief that the jury was instructed that they could convict the
Defendant based upon a mens rea of recklessness but does not address the issue any further.
However, one can only commit reckless assault where there is bodily injury, which was not
alleged here. See Tenn. Code Ann. 39-13-101(a)(1) (“A person commits assault who

3
    The record clearly establishes what occurred in the trial court.

                                                        9
[i]ntentionally, knowingly or recklessly causes bodily injury to another[.]”); see also State
v. Goodwin, 143 S.W.3d 771, 776 (Tenn. 2004) (holding that reckless aggravated assault
cannot be a lesser-included offense of aggravated assault based upon fearing imminent bodily
injury because reckless aggravated assault requires actual bodily injury). Additionally, the
comments to section 39-13-101 provide, “Both fear of bodily injury and physical contact
must be done intentionally or knowingly to constitute assault; recklessness is not sufficient.”
Thus, the instruction given was clearly in error. We conclude that a clear and unequivocal
rule of law has been breached.

        Jury instruction errors of this type are subjected to constitutional harmless error
analysis because “[o]nly when the jury is properly instructed can appellate review of the
sufficiency of the convicting evidence satisfy the due process safeguard.” State v. Cecil, 409
S.W.3d 599, 609 (Tenn. 2013). This requires the appellate court to determine whether a
failure to instruct the jury was harmless beyond a reasonable doubt, that is, “whether it
appears beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (citation omitted);
see also Chapman v. California, 386 U.S. 18, 24 (1967) (“[B]efore a federal constitutional
error can be held harmless, the court must be able to declare a belief that it was harmless
beyond a reasonable doubt.”). When considering this category of error, a reviewing court
“should ask whether the flaw in the instructions ‘had substantial and injurious effect or
influence in determining the jury’s verdict.’” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)
(citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marks omitted
in original)). As the United States Supreme Court explained,

       Consistent with the jury-trial guarantee, the question it instructs the reviewing
       court to consider is not what effect the constitutional error might generally be
       expected to have upon a reasonable jury, but rather what effect it had upon the
       guilty verdict in the case at hand. Harmless-error review looks, we have said,
       to the basis on which “the jury actually rested its verdict.” The inquiry, in
       other words, is not whether, in a trial that occurred without the error, a guilty
       verdict would surely have been rendered, but whether the guilty verdict
       actually rendered in this trial was surely unattributable to the error.

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citations omitted).

       At the Defendant’s trial, the prosecution argued that the Defendant and his cohort,
Cole, perpetrated an assault on Joshua Anderson, requiring Joshua to first fire a warning shot,
and then to shoot both men in self-defense when they produced knives. By contrast, the
Defendant testified that he went to Cole’s aid when Joshua pulled a gun on Cole and that



                                              10
Joshua shot them both.4 Given the competing theories presented to the jury, we cannot, in
our view, say that the error is harmless beyond a reasonable doubt, i.e., that the guilty verdict
actually rendered in this trial was surely unattributable to the error. Although the offense of
aggravated assault contains the additional element of use or display of deadly weapon, the
jury was instructed, properly so, with only the mental states of intent or knowing for that
offense and declined to find the Defendant guilty. The instruction for simple assault added
the additional mental state of reckless. As such, we are unable to conclude that “the guilty
verdict actually rendered in this trial was surely unattributable to the error”; thus, we cannot
conclude that the instructional error was harmless beyond a reasonable doubt.5 Accordingly,
plain error requires us to reverse the Defendant’s conviction and remand the case for a new
trial on the charge of assault, to be accompanied by proper instructions.

                                             CONCLUSION

       In accordance with the foregoing, we reverse the Defendant’s conviction for simple
assault and remand for a new trial consistent with this opinion.




                                                           ________________________________
                                                           D. KELLY THOMAS, JR., JUDGE




4
    We can think of no incentive for the Defendant to waive the issue for tactical reasons.
5
  A substantial right of the accused has been adversely affected, and consideration of the error is “necessary
to do substantial justice.”

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