         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 27, 2001 Session

           STATE OF TENNESSEE v. JOHN HENRY SPARROW, III

                   Direct Appeal from the Circuit Court for Dickson County
                            No. CR4260      Allen Wallace, Judge



                     No. M2000-03238-CCA-R3-CD - Filed April 16, 2002


Jerry L. Smith, J., concurring in results.

         For the reasons stated in my opinion concurring in part and dissenting in part in State v.
Linnell Richmond, No. E2000-01499-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 830 (Tenn.
Crim. App. at Knoxville, Oct. 15, 2001), I can only concur in the result reached by the majority in
this case.
         In Richmond, I expressed the opinion that recent Tennessee Supreme Court precedent in the
area of lesser-included offenses mandated that, at least with respect to Burns part (a) lesser-included
offenses, a jury instruction must be given on such lesser offenses if the proof is sufficient to sustain
a guilty verdict on the greater offense. Moreover, I opined that this same precedent allowed an
appellate court to find an erroneous failure to give such an instruction harmless beyond a reasonable
doubt in the situation presented in State v. Williams, 977 S.W.2d 101 (Tenn. 1998).
         Recently however, the Tennessee Supreme Court decided the case of State v. Walter Lee
Allen, No. E1998-00416-SC-R11-CD (Tenn. Feb. 22, 2002) (electronic database citation not yet
available), in which the court makes plain that harmless error analysis in this area is not limited
solely to the Williams scenario. However, the court also appears in Allen to reinforce the notion that
a lesser-included offense instruction is mandated with respect to offenses under part (a) of Burns
whenever sufficient proof exists to sustain a conviction to the greater offense. Allen at ___.
         With our supreme court’s opinion in Allen in mind I must conclude in the instant case that
the trial judge’s failure to instruct on the lesser-included offense of attempted false imprisonment
was erroneous. However, it is clear to me that given the facts of this case no juror could have
concluded that the four-year-old victim was thirteen-years-old or older. Therefore, the error in this
case is harmless beyond a reasonable doubt, and I concur in the judgment of the court affirming the
appellant’s conviction.


                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE
