         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                  STATE OF TENNESSEE v. CLINT T. MELTON

                   Direct Appeal from the Criminal Court for Knox County
                                         NO . 67737



                                  NO . E1999-02090-CCA-R3-CD
                                        OCTOBER 19, 2000



James Curwood Witt, Jr., J., concurring.


I concur in Judge Hayes’s excellent opinion, and I agree that the jury charge on the lesser-included
offense of theft is not justified in this case. I write separately, however, to express my view that the
first prong of the Burns justification analysis test, rather than the second prong, is dispositive of the
issue. See State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999).

                The first prong of the justification test requires the trial court to determine whether
any evidence exists that reasonable minds could accept as to the application of the lesser-included
offense. I conclude that this prong means that a charge on the lesser-included offense is not justified
when there is no evidence that the defendant committed the lesser offense as opposed to the greater,
as is the case before us. See State v. Robbie James, No. M2000-00304-CCA-RM-CD, slip op. at 5
(Tenn. Crim. App., Nashville, Mar. 20, 2000) (Witt, J., concurring); State v. Terry T. Lewis, No.
M1999-00876-CCA-MR3-CD, slip op. at 17-19 (Tenn. Crim. App., Nashville, Mar. 17, 2000).

                                                        ________________________________
                                                        James Curwood Witt, Jr., Judge
