            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                          JULY SESSION, 1998         FILED
                                                 September 15, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9709-CR-00397
      Appellee              )
                            )    DAVIDSON COUNTY
vs.                         )
                            )    Hon. Thomas H. Shriver, Judge
GREGORY COULSON,            )
                            )    (Disorderly Conduct)
      Appellant             )



For the Appellant:               For the Appellee:

David E. High                    John Knox Walkup
227 Second Avenue, North         Attorney General and Reporter
First Floor
Nashville, TN 37201              Daryl J. Brand
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493


                                 Victor S. (Torry) Johnson III
                                 District Attorney General

                                 Mary Campbell
                                 Asst. District Attorney General
                                 Washington Square, Suite 500
                                 222-2nd Avenue North
                                 Nashville, TN 37201-1619



OPINION FILED:


REVERSED AND DISMISSED



David G. Hayes
Judge
                                        OPINION



       The appellant, Gregory Coulson, appeals as of right his conviction in the

Davidson County Criminal Court for the misdemeanor offense of disorderly conduct.

Following a bench trial, the appellant was sentenced to thirty days in jail, all of which

was suspended, and was assessed a fine of fifty dollars. The appellant’s sole issue

on appeal is whether a defendant who proceeds to trial upon a charge of

misdemeanor assault may be convicted of disorderly conduct.



       For the reasons discussed below, the judgment of conviction is reversed and

dismissed.




       The question of whether one charged with misdemeanor assault can be

convicted of disorderly conduct turns not upon the proof in the case but upon a

question of law. Although it is unnecessary to fully develop the facts of this case, a

brief procedural and factual history is helpful to facilitate review.



       In observance of a red traffic light at the intersection of Sawyer Brown and

Old Harding Roads, motorist Danielle Stocks slowed her vehicle before coming to a

stop at the intersection. Before Mrs. Stocks initiated her turn onto Old Harding

Road, the driver of the vehicle behind her, the appellant, began beeping his horn

and “tapped [her car] on [the] back . . . bumper.” Mrs. Stocks immediately got out of

her car to see if any damage had occurred. Mrs. Stocks testified that, at this point,

the appellant yelled “Get out of my way Bitch,” put his car in reverse, then he put it in

drive,” forcing Mrs. Stocks to jump out of the way of his moving vehicle. Mrs. Stocks

got his license plate number as he drove away. On the following Monday, Mrs.

Stocks telephoned the appellant at work explaining that “I thought that I could talk

with [him] and see if . . . I could get an apology from him to see what was going on.”


                                           2
When asked how she got his telephone number, Mrs. Stocks informed the appellant

that her husband was a Metro police officer.



        Five days after the incident, Mrs. Stocks signed an affidavit of complaint and

a warrant issued charging the appellant with felony reckless endangerment. On

October 29, 1996, the appellant waived his right to be tried by indictment and his

right to a jury trial. The case proceeded to trial in General Sessions Court upon the

misdemeanor charge of reckless endangerment. At trial, the appellant denied

making contact with Mrs. Stocks’ vehicle, denied attempting to harm her, and, in

effect, contradicted almost all of Mrs. Stocks testimony. He did admit, however, that

after “the light changed to green and [her[ car did not move . . . after four five or six

seconds . . . I blew the horn.” At this trial, the appellant was found not guilty of

reckless endangerment but was found guilty of the “amended charge of assault,”

which he appealed to the Criminal Court.1 On March 31, 1997, the appellant’s case

proceeded to trial in the Davidson County Criminal Court. At the conclusion of the

bench trial, the trial court found that the State had failed to prove an assault.

However, the court did find the appellant guilty of disorderly conduct, a class C

misdemeanor.



        The controlling question of law is whether disorderly conduct is a lesser

offense of misdemeanor assault. The Sixth Amendment requires that the State

inform the accused “of the nature and cause of the accusation against him.” U.S.

Const. amend VI. Thus, in order to comport with the constitutionally guaranteed

notice requirement, a defendant may only be convicted of an offense which is a

lesser included or lesser grade of the greater offense charged in the indictment.

See State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996); see also Hagner v. United

States, 285 U.S. 427, 430, 52 S.Ct. 417, 418-419 (1932).



        1
       The reco rd do es no t exp lain th e m ann er in w hich the c harg e wa s am end ed or whe n it
was amended.

                                                    3
            Although the State concedes that disorderly conduct is not a lesser included

offense of assault 2 as defined in Tenn. Code Ann. § 39-13-101(1991), the State

urges this court to adopt a pleadings, or charging instrument, approach for offenses

not charged by indictment. Specifically, the State argues that, since the “degree of

strictness required of a felony indictment is not required of a warrant charging a

misdemeanor,” the affidavit of complaint in the present case contains sufficient

language to encompass the offense of disorderly conduct and, thus, the appellant

was on notice to defend upon the crime for which he was convicted.



        In State v. Howard, 578 S.W.2d 83, 86 (Tenn. 1979), Chief Justice Henry

acknowledged, in his dissent, the existence of three approaches for determining

lesser offenses, i.e., (1) the statutory approach, (2) the pleadings, or charging

instrument, approach, and (3) the evidentiary approach.3 “Under the statutory test

the elements of the two offenses, as reflected in the respective statutory provisions,

are considered in the abstract, wholly apart from the facts established by the proof.”

Howard, 578 S.W.2d at 86 (Henry, C.J., dissenting). See also Comments, MODEL

PENAL CODE § 1.07 (1985). In other words, under the statutory approach, in order to

warrant a charge on a lesser included offense, the lesser offense must be included

within the proof necessary to establish the offense charged. However, under a

pleadings, or charging instrument, approach, a lesser offense may be included in

the greater if the language in the charging instrument, i.e., the arrest warrant or the

indictment, sets forth the elements of the lesser offense even though under the

statutory definitions it would be possible to commit the greater offense without

committing the lesser. See Howard, 578 S.W.2d at 86 (Henry, C.J., dissenting);


        2
          Although the offense charged in the warrant is reckless endangerment, both parties
ackn owledg e that this ch arge wa s am ended to misd eme anor as sault.

        3
         Unde r an evide ntiary appro ach, the p roof, not the contents of the indictment, establish
the elem ents of th e lesser included offens e. Howard , 578 S.W .2d at 87 (Henry C.J., dissenting);
Com men ts, M ODEL P ENAL C ODE § 1.07. This standard was expressly rejected in Trusty .
Moreover, we note that this standard would most likely not survive a “notice” challenge under the
Sixth Am endm ent.

                                                  4
Comments, MODEL PENAL CODE § 1.07.



       The pleadings approach was tacitly rejected by our supreme court in Trusty.

Indeed, the supreme court, implicitly adopting the statutory approach, concluded:

       [D]efendants are entitled to jury instructions on all lesser included
       offenses as defined in Howard and on all offenses which are a lesser
       grade or class of the charged offense, if the evidence would support a
       conviction for the offense. The authorizing statute and rule ensure that
       each defendant has fair and reasonable notice of the charges and an
       opportunity to defend against them. It preserves a defendant’s right to
       an instruction on all lesser offenses necessarily included in the offense
       charged in the indictment. . . .

Trusty, 919 S.W.2d at 311 (emphasis added). We can find no reason to adopt a

different standard for offenses initiated by warrant from those initiated by indictment.

The constitutional requirement of notice for the accused who is tried upon an arrest

warrant is no different than for the accused who is tried by way of indictment. Thus,

we adhere to the statutory approach in determining whether an offense is a lesser

offense of the charged offense.



       After review, we find the appellant's position well-taken. Both parties

concede and we agree that the offense of disorderly conduct is neither a lesser

grade nor a lesser included offense of assault. Compare Tenn. Code Ann. § 39-13-

101 with Tenn. Code Ann. § 39-17-305 (1991). In view of this state's adoption of

the "statutory approach" for determining lesser offenses, we conclude that the

appellant's conviction for disorderly conduct is infirm. The judgment of the trial court

is reversed and the appellant's conviction is dismissed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




_____________________________________
PAUL G. SUMMERS, Judge




_____________________________________
JERRY L. SMITH, Judge




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