            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          NOVEMBER 1998 SESSION
                                                         March 11, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,           *    C.C.A. No. 01C01-9804-CR-00188 Clerk
                                                    Appellate Court

      Appellee,               *    WILSON COUNTY

VS.                           *    Honorable J. O. Bond, Judge

LESLIE R. HOLT,               *    (Felony Reckless Endangerment)

      Appellant.              *




For Appellant:                     For Appellee:

Jay Norman                         John Knox Walkup
Attorney for Appellant             Attorney General and Reporter
213 Third Avenue, North
Nashville, TN 37201                Timothy Behan
                                   Assistant Attorney General
                                   425 Fifth Avenue, North
                                   Cordell Hull Building, Second Floor
                                   Nashville, TN 37243-0493

                                   Robert Hibbett
                                   Assistant District Attorney General
                                   119 College Street
                                   Lebanon, TN 37087



OPINION FILED:__________________



REVERSED AND REMANDED



GARY R. WADE, PRESIDING JUDGE
                                          OPINION

              The defendant, Leslie R. Holt, was convicted of felony reckless

endangerment. The jury acquitted the defendant on a related charge of aggravated

assault. The trial court imposed a Range I sentence of two years with supervised

probation after service of thirty days.



              In this appeal of right, the defendant presents a single issue for review:

whether the trial court erred by failing to provide the jury with an instruction on

misdemeanor reckless endangerment, a lesser offense of felony reckless

endangerment. We reverse the conviction and remand for a new trial.



              The defendant and his ex-wife, Judy Holt, have a son, Colton, who

was four years old in 1996. On October 11 of that year, the defendant's second

wife, Cynthia Bryant, drove to the Holt residence to pick up Colton for visitation over

the weekend. About three hours later, someone from the sheriff's department

telephoned Ms. Holt and asked her to drive there and take custody of Colton. When

Ms. Holt arrived, she saw that Ms. Bryant's car had been scratched and dented

since she last saw the vehicle. Colton was unhurt. Ms. Holt testified that she was

unaware at that point that Ms. Bryant and the defendant had obtained a divorce on

October 9, 1996, two days before the incident.



              Cynthia Bryant testified that after she picked up Colton, she drove to

her farm. Upon her return, she discovered the defendant was "in one of his moods.

... acting crazy, bizarre, angry." Ms. Bryant, who decided to take Colton to Lebanon

for dinner, was driving south on Highway 231, when she saw the defendant driving

behind her. Ms. Bryant testified that the defendant struck her car with his vehicle

several times, finally forcing her vehicle into a ditch. The defendant then struck the


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windows of her car and threatened "to kill you both." Ms. Bryant, fearful for her life,

was able to maneuver her vehicle back onto the highway and drive to the sheriff's

department.



              Keith Taylor, a captain with Wilson County Emergency Management,

was driving north on Highway 231 when he saw two vehicles approach from the

opposite direction. He recalled that the driver of one of the vehicles seemed

anxious to pass and was driving very close to the lead car. When the two vehicles

passed by, Captain Taylor saw through his rearview mirror that the car in the rear

had forced the lead car into a ditch. As Captain Taylor turned his vehicle, he

noticed that the driver of the car in the ditch was attempting to return to the highway

and the other driver was striking the car window with his fists.



              The defendant testified that on the date of this incident, he drove to

Ms. Bryant's farm, collected his belongings, and waited for her return. He claimed

that when Ms. Bryant arrived with Colton sometime after 7:00 P.M., he and Ms.

Bryant engaged in an argument over the defendant dating another woman. He

contended that Ms. Bryant took Colton and, over his objections, began to drive

away; as she did so, she struck the defendant's parked car. The defendant

maintained that he followed in his vehicle, demanding that she stop and return

Colton to his custody. He asserted that Ms. Bryant veered off the road into a ditch

as he attempted to pass. The defendant admitted that he pounded Ms. Bryant's

window with his fists but denied that he forced her vehicle into the ditch or caused

any of the damage to her vehicle. The defendant claimed that he had contacted the

Wilson County Sheriff's Department shortly after the incident and learned that they

were unaware of Ms. Bryant's whereabouts. It was his contention that when he

went to Metropolitan Police Department in Nashville to make a complaint against


                                           3
Ms. Bryant for taking Colton without his permission, he was informed that he needed

to go to the Wilson County Sheriff's Department to work things out.



                The defendant alleges that the trial judge erred by failing to charge the

lesser offense of misdemeanor reckless endangerment. The state asserts there

was no error.



                The trial judge, of course, has a duty to give a complete charge of the

law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319

(Tenn. 1986). There is an obligation "to charge the jury as to all of the law of each

offense included in the indictment, without any request on the part of the defendant

to do so." Tenn. Code Ann. § 40-18-110(a). "Pursuant to our statute, rule, and

case law interpretations, defendants are entitled to jury instructions on all [lesser

offenses], if the evidence would support a conviction for the offense." State v.

Trusty, 919 S.W.2d 305, 311 (Tenn. 1996). Such a charge "allows the jury to

consider all relevant offenses in determining the appropriate offense, if any, for

conviction" and "more evenly balances the rights of the defendant and the

prosecution and serves the interests of justice." Id. It is only when the record is

devoid of evidence to support an inference of guilt of the lesser offense that the trial

court is relieved of the responsibility to charge the lesser crime. State v.

Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d

589, 593 (Tenn. 1990).



                In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme

court overruled several prior cases and, by a three to two majority, held that the right

to instructions on lesser offenses is merely a statutory right, rather than one founded




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in the Tennessee Constitution1 and that, in consequence, the error is subject to a

harmless error analysis:

                 Reversal is required if the error affirmatively appears to
                 have affected the result of the trial on the merits, or in
                 other words, reversal is required if the error more
                 probably than not affected the judgment to the
                 defendant's prejudice.

(citing Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b)).



                 Reckless endangerment is defined by our legislature as follows:

                 Reckless endangerment.--(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.
                   (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. The use of a deadly weapon, defined as "[a]nything

that in the manner of its use or intended use is capable of causing death or serious

bodily injury" elevates the misdemeanor offense of reckless endangerment to a

felony. See Tenn. Code Ann. § 39-11-106(5)(b). An automobile is not, under all

circumstances, a deadly weapon; the method of use is the controlling factor and that

must be examined on a case-by-case basis. State v. Scott W. Long, C.C.A. No.

03C01-9301-CR-00032, slip op. at 6-7 (Tenn. Crim. App., at Knoxville, Aug. 19),

app. denied, (Tenn., Nov. 8, 1993); State v. Tate, 912 S.W.2d 785 (Tenn. Crim.

App. 1995).



                 Misdemeanor reckless endangerment is a lesser grade of felony

reckless endangerment. It is also a lesser included offense. This is not a case in

which the record is devoid of proof of the lesser offense. See State v. Lewis, 978


         1
           "[T]he jury shall have the right to determine the law and the facts, under the direction of the
court, as in other crim inal case s." Tenn . Const. A rt. I § 19. See McG owan v . State, 17 Tenn. 184
(183 6) an d its p roge ny.

                                                     5
S.W.2d 558 (Tenn. Crim. App. 1997). Taken in a light most favorable to the

defendant, the evidence would be sufficient to support a conviction for misdemeanor

reckless endangerment. See State v. Elder, 982 S.W.2d 871, 877 (Tenn. Crim.

App. 1998). At trial, the defendant testified that his conduct, reckless at worst,

merely placed Ms. Bryant and his son "in imminent danger of death or serious bodily

injury." He asserted that he never used his vehicle as "a deadly weapon." See

Tenn. Code Ann. § 39-13-103. Under these circumstances, it was the task of the

jury to determine the degree of reckless endangerment. See State v. Brandon

Patrick, C.C.A. No. 03C01-9712-CC-00548 (Tenn. Crim. App., at Knoxville, Feb. 19,

1999) (reversing and remanding where the trial court refused to charge

misdemeanor reckless endangerment). The ultimate question became one of fact

rather than one of law; that is, whether the vehicle was used in such a manner as to

be a deadly weapon. The facts and circumstances must be examined by the jury on

a case-by-case basis. The failure to charge the jury with misdemeanor reckless

endangerment prevented the jury from making this assessment. Because the proof

of the greater offense was not so overwhelming that the jury inevitably would have

chosen the greater offense over the lesser offense if given the choice, the error

appears to have been harmful. Relevant to the quantum of proof is the acquittal by

the jury on the separate count of aggravated assault and the lesser offense of

assault. In this instance, the failure to instruct on a lesser offense which was

legitimately raised by the evidence would not qualify as harmless error, whether the

error is of a constitutional magnitude or not.2



                  Accordingly, the judgment of the trial court is reversed and remanded

for a new trial.




       2
           See Williams, 977 S.W .2d 101.

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                                   _________________________________
                                   Gary R. Wade, Presiding Judge

CONCUR:



________________________________
John H. Peay, Judge



________________________________
Jerry L. Smith, Judge




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