             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE             FILED
                                 JULY 1997 SESSION
                                                            October 24, 1997

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
STATE OF TENNESSEE,                    )
                                       )    C.C.A. NO. 01C01-9601-CC-00030
             Appellee,                 )
                                       )    WAYNE COUNTY
VS.                                    )
                                       )    HON. WILLIAM B. CAIN,
FRANKLIN JENKINS,                      )    JUDGE
                                       )
             Appellant.                )    (Aggravated assault)



FOR THE APPELLANT:                          FOR THE APPELLEE:


NATHANIEL H. KOENIG                         JOHN KNOX WALKUP
150 Second Ave., N., Suite 300              Attorney General & Reporter
Nashville, TN 37201-1902
     (On appeal)                            LISA A. NAYLOR
                                            Asst. Attorney General
SHARA FLACY                                 450 James Robertson Pkwy.
District Public Defender                    Nashville, TN 7243-0493

LARRY NICKELL                               MIKE BOTTOMS
Asst. Public Defender                       District Attorney General
P.O. Box 1208
Pulaski, TN 38478                           RICHARD H. DUNAVANT
    (At trial)                              Asst. District Attorney General
                                            P.O. Box 304
                                            Pulaski, TN 38478




OPINION FILED:____________________



REVERSED AND REMANDED


JOHN H. PEAY,
Judge
                                                   OPINION



                   The defendant was indicted for aggravated assault committed by use of

a deadly weapon.1 A jury convicted him of Class D aggravated assault2 and he was

sentenced as a Range I standard offender to three years incarceration. In this direct

appeal, the defendant contends that he is entitled to a new trial because the court

below failed to instruct the jury on the lesser offense of assault. He also challenges

the length of his sentence, contending that the trial court erred in applying certain

enhancement factors. Upon our review of the record, we reverse the defendant’s

conviction and remand this matter for retrial.



                   Nadine Armstrong testified that on September 14, 1992, she had gotten

into an argument with the defendant, her boyfriend. According to Ms. Armstrong, the

defendant hit her in the mouth and she ran into another room. As she was running,

she heard a shot. She turned around and saw the defendant standing in front of her

with a gun. She testified that she just stood there and started to scream. At that

point, the defendant held the gun to her chest and threatened to kill her. She testified

that she had been afraid for her life and asked him not to kill her. He subsequently

took the gun down. A bullet was later recovered from the floor.



                   The defendant testified that, during the argument, the victim “raised up

the mattress on the bed and reached her hand under the bed, and I told her, I said,

you better not be getting no gun. And I slapped her.” According to the defendant, the


         1
           The indictment provides, in pertinent part, that the defendant “did unlawfully, intentionally and
kno wing ly by the u se of a dea dly we apo n, to w it: a 38 0 calib er pis tol, ca use [the vic tim] t o rea son ably
fear imminent bodily injury by hitting said [victim] in the mouth and did shoot at [the victim] and did put
the aforesaid pistol in the chest of [the victim] while stating he would kill her, in violation of Tennessee
Code Annotated 39-13-102.” At the time this crime was committed, aggravated assault could be
com mitte d by as sau lting s om eon e and caus ing se rious bodily in jury or using or dis playing a dea dly
weapon. T.C.A. § 39-13-102(a)(1) (Repl. 1991). The instant indictment sufficiently alleges aggravated
assault only by use or display of a deadly weapon. The indictment contains no allegation of serious
bod ily injury.

         2
         Effe ctive M ay 12, 1993 , agg rava ted a ssa ult be cam e eith er a C lass C or C lass D felo ny,
depen ding upo n wheth er the as sault was com mitted inte ntionally or kn owingly, or rec klessly. See
T.C.A. § 39-13-102 (Su pp. 1993).

                                                           2
victim then went to her vehicle and when he next saw her in the house, “she had a

gun in her hand.” He testified that he had been scared and slapped the gun with his

left hand. At that point, he testified, “the gun hit the floor, and it went off. And she

was clawing at me, and I didn’t mean to hit her, but I hit her.” He testified that he

subsequently retrieved the gun and threw it into the woods.



              Assault is committed when a person “(1) Intentionally, knowingly or

recklessly causes bodily injury to another; (2) Intentionally or knowingly causes

another to reasonably fear imminent bodily injury; or (3) Intentionally or knowingly

causes physical contact with another and a reasonable person would regard the

contact as extremely offensive or provocative.” T.C.A. § 39-13-101(a) (Repl. 1991).

Assault is a lesser grade offense of aggravated assault. See generally State v. Trusty,

919 S.W.2d 305 (Tenn. 1996). At the time the instant crime was committed,

aggravated assault occurred when a person committed an assault as defined in

T.C.A. § 39-13-101 and used or displayed a deadly weapon, and it was a Class C

felony. T.C.A. § 39-13-102(a)(1)(B) and (b) (Repl. 1991).



              In 1993, our legislature rewrote the section of our Code dealing with

aggravated assault. In pertinent part, aggravated assault was divided into Class C

and Class D felonies, depending upon the defendant’s mens rea at the time he or she

committed the offense. That is, aggravated assaults committed intentionally or

knowingly remained Class C felonies. However, aggravated assaults committed

recklessly became Class D felonies. See T.C.A. § 39-13-102 (Supp. 1993). In this

case, the court below instructed the jury under the revised version of aggravated

assault. This was error. See T.C.A. §39-11-112 (Repl. 1991) (“Whenever any penal

statute . . . is repealed or amended by a subsequent legislative act, any offense, as

defined by the statute . . . being repealed or amended, committed while such statute

. . . was in full force and effect shall be prosecuted under the . . . statute in effect at

the time of the commission of the offense.”)


                                              3
              The court below compounded its error by failing to instruct the jury on

simple assault. “It is the duty of all judges charging juries in cases of criminal

prosecutions for any felony wherein two (2) or more grades or classes of offense may

be included in the indictment, to charge the jury as to all of the law of each offense

included in the indictment.” T.C.A. § 40-18-110(a) (Repl. 1990). It is error to fail to

instruct the jury on the lesser offense(s) unless the record clearly shows that the

defendant was guilty of the greater offense and is devoid of any evidence permitting

an inference of guilt of the lesser offense. State v. Boyd, 797 S.W.2d 589, 593 (Tenn.

1990). In this case, the defendant testified that the victim had had the gun and that he

hit her after disarming her. This testimony, if believed, would support a conviction of

simple assault: not aggravated assault by use of a deadly weapon. Accordingly, it

was error for the trial court to fail to instruct the jury on the lesser offense of assault.

The trial court’s error entitles the defendant to a new trial. See, e.g., State v.

Summerall, 926 S.W.2d 272, 279 (Tenn. Crim. App. 1995). There remains the issue,

however, of which charges the defendant may be retried upon.



              When the trial judge charged the jury under the new version of

aggravated assault, he instructed it to first consider the offense of intentional or

knowing aggravated assault, the Class C felony. If the jury determined the defendant

to be not guilty of this offense, it was then to consider the defendant’s guilt of reckless

aggravated assault, the Class D felony. The jury returned a verdict of guilt of Class D

aggravated assault. Obviously, then, it acquitted the defendant of intentional or

knowing aggravated assault. Equally obviously, the defendant cannot now be retried

for that offense. See U.S. Const. amend. V; Tenn. Const. art. I, § 10. We see no

double jeopardy violation, however, in permitting the defendant to be retried for

reckless aggravated assault, as that offense existed at the time the offense was

committed. That is, that the defendant recklessly caused bodily injury to the victim

and used or displayed a deadly weapon. See T.C.A. §§ 39-13-102(a)(1)(B) and 39-

13-101(a)(1) (Repl. 1991). Accordingly, we remand this matter for a new trial on the


                                              4
charge of reckless aggravated assault under T.C.A. § 39-13-102(a)(1)(B) (Repl. 1991)

and, to the extent supported by the evidence, all lesser offenses.



                   The defendant also contends that the trial court erred when it enhanced

his sentence based on his use of a firearm and causing injury to another person. We

first note that, in sentencing the defendant, the court below also noted as an

enhancement factor that the defendant committed the crime while on parole. This

was appropriate. See T.C.A. § 40-35-114(13). The defendant’s prior criminal history

serves as yet another enhancement factor. T.C.A. § 40-35-114(1). Thus, while our

disposition of this case renders this issue moot, we find that a mid-range sentence of

three years3 was appropriate given these two enhancement factors alone. However,

we further note that use of the enhancement factor for possession or use of a firearm

during the commission of the offense, T.C.A. § 40-35-114(9), is improper when

sentencing for a conviction of aggravated assault by use or display of a deadly

weapon. This enhancement factor is an essential element of the offense and

therefore may not be used. T.C.A. § 40-35-114. Similarly, enhancement on the basis

that the reckless aggravated assault resulted in bodily injury to another person4 is not

appropriate because bodily injury is an element of reckless assault. See T.C.A. § 39-

13-101(a)(1) (Repl. 1991).



                   With respect to resentencing following retrial of this matter, if the

defendant is again convicted of reckless aggravated assault, the conviction must be

treated as a Class D felony for punishment purposes. See T.C.A. § 39-11-112 (“[I]n

the event [a] subsequent [legislative] act provides for a lesser penalty, any punishment

imposed shall be in accordance with the subsequent act.”) The legislature’s revision

to the aggravated assault section of our Code provides for a lesser penalty for


        3
            The s entenc ing range for this offe nse wa s two to fo ur years. See T.C.A. § 40-35-112(a)(4).

        4
          Bodily injury committed during the commission of a felony may be applied as an enhancement
factor in at least two circumstances: where the defendant has been previously convicted of a felony that
resulted in death or bodily injury, T.C.A. § 40-35-114(11), and where the defendant willfully inflicted
bodily injury upo n anothe r person . T.C.A. § 40-35-1 14(12).

                                                        5
reckless aggravated assault than did the prior statute. Accordingly, the defendant is

entitled to the lesser penalty if he is reconvicted of the same offense.



              The court below having committed reversible error, we reverse the

defendant’s conviction for aggravated assault and remand this matter for a new trial in

accordance with this opinion.



                                                 ______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
WILLIAM M. BARKER, Judge



______________________________
JERRY L. SMITH, Judge




                                            6
