            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE               FILED
                         OCTOBER 1998 SESSION
                                                        February 19, 1999

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,         *      C.C.A. No. 03C01-9712-CC-00548

      Appellee,             *      BLOUNT COUNTY

VS.                         *      Honorable D. Kelly Thomas, Jr., Judge

BRANDON R. PATRICK,         *      (Felony Reckless Endangerment)

      Appellant.            *




For Appellant:                     For Appellee:

Robert W. White                    John Knox Walkup
Attorney for Appellant             Attorney General and Reporter
404 Ellis Avenue
Maryville, TN 37804                Clinton J. Morgan
                                   Counsel for the State
                                   425 Fifth Avenue, North
                                   Cordell Hull Building, Second Floor
                                   Nashville, TN 37243-0493

                                   Charles Carpenter
                                   Assistant District Attorney General
                                   363 Court Street
                                   Maryville, TN 37804



OPINION FILED:__________________



REVERSED IN PART AND REMANDED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Brandon R. Patrick, was convicted in a jury trial of

felony reckless endangerment, felony evading arrest, and driving on a suspended

license, third offense. The jury acquitted the defendant on a related charge of

aggravated assault. The trial court imposed concurrent Range I sentences of two

years for felony reckless endangerment and four years for the felony evading arrest.

A concurrent sentence of eleven months, twenty-nine days was imposed for driving

on a suspended license. The sentence for evading arrest was ordered to be served

consecutively to a prior sentence in Blount County. The defendant was fined

$5,000.00.



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

whether the trial court erred by providing the jury with an instruction on felony

reckless endangerment rather than misdemeanor reckless endangerment. We

reverse the judgment of the trial court.



              Rick Arnold, an officer with the Alcoa Police Department, testified that

early on February 24, 1996, he was patrolling Alcoa Highway in marked cruiser

when he detected a car, later determined to be driven by the defendant, traveling at

more than 70 m.p.h. in a 50 m.p.h. zone. Officer Arnold pursued the vehicle through

the city streets and into a residential area where speed limits dropped to 35 m.p.h.

As the defendant maintained his speed, the officer activated his police siren and

blue lights. The defendant disregarded several red lights, despite the presence of

other cars on the roadway, and eventually stopped in a driveway. At that point,

Officer Arnold stepped out of his cruiser and approached the defendant with his

weapon drawn. Suddenly, the defendant backed out of the driveway, requiring

Officer Arnold to jump out of the way of the vehicle's path. The officer testified that


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he clearly saw the face of the defendant. He followed the defendant through several

stop signs before he lost control of the cruiser and discontinued the chase.



              The victim of the reckless endangerment charge, Rachel Miller, who

was a passenger in the car driven by the defendant, testified that when Officer

Arnold began to follow, the defendant increased his speed and ignored several red

lights and stop signs. Ms. Miller described the defendant's driving as "fast" and

believed that the defendant knew that a police cruiser was in pursuit. She recalled

that when the defendant stopped in a driveway, she saw the officer approach the

car with his weapon aimed at the defendant. She stated that the defendant then put

the car in reverse and drove away. Ms. Miller testified that she became fearful only

when the officer aimed his weapon at the defendant and was otherwise unafraid at

any other point during the chase. She testified that there were no other cars in the

vicinity when the defendant failed to stop at the red lights and stop signs and that it

never occurred to her that the defendant might lose control of the vehicle.



              The defendant claims that there is no evidence that he used a motor

vehicle as a deadly weapon against the victim. It is his contention that the trial court

erred by charging felony reckless endangerment rather than misdemeanor reckless

endangerment. 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). Reckless endangerment is defined 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

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              deadly weapon is a Class E felony.

Tenn. Code Ann. § 39-13-103. An automobile is not, under all circumstances, a

deadly weapon; the method of use is the controlling factor 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).



              While the defendant concedes that an automobile can be considered a

deadly weapon, he argues that his "manner of the use of the vehicle, in which [Ms.]

Miller was a passenger, was to evade [Officer] Arnold, not to use it as a deadly

weapon against [Ms.] Miller." He admits that his actions may have placed the victim

in imminent danger of death or serious bodily injury but contends because the victim

was inside the vehicle, the car was not a weapon aimed at the victim.



              In our view, this evidence sufficiently supports the state's theory that

the defendant operated the vehicle in a manner capable of causing death or serious

bodily injury to the victim. Clearly, there was proof that the defendant utilized the

vehicle in a dangerous manner. The defendant drove nearly 40 m.p.h. over the

speed limit in a residential area, disregarding red signals and stop signs. Officer

Arnold testified that there were other cars on the roadway during the chase. Those

circumstances establish that the defendant's manner of driving subjected the victim

to risk of injury or death. That the victim claimed not to be frightened by the

defendant's driving is immaterial. That is not an element of the offense. See Tenn.

Code Ann. § 39-13-103. In our view, the trial court properly charged felony reckless

endangerment.




                                           4
                 The defendant also contends that the trial court erred by failing to

charge misdemeanor reckless endangerment, a lesser offense of felony reckless

endangerment. The defendant, who requested the charge, maintains that whether

the vehicle was used as a deadly weapon was ultimately a question for the jury.

The state did not address this issue in its appellate brief.



                 The trial judge 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 a statutory right, rather than one founded in the Tennessee

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

analysis:


         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
                 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)).



                 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

S.W.2d 558 (Tenn. Crim. App. 1997). When the defense argued that the vehicle

was not used as a deadly weapon against the victim, the trial court, in rejecting the

request for the misdemeanor instruction, stated: "[T]he way the vehicle was used

could arguably fit the statutory definition of a deadly weapon." (Emphasis added). It

was the task of the jury to determine the degree of reckless endangerment. The

ultimate question was one of fact. That is, whether the vehicle was used in such a

manner as to be a deadly weapon. The facts and circumstances must be examined

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

endangerment prevented the jury from making this determination. We cannot

conclude that the proof of the greater offense was so overwhelming that the jury

would have chosen the greater offense over the lesser offense if given the choice.

The failure to instruct on lesser offense which was legitimately raised by the

evidence presented would not qualify as harmless error, whether the error is of a

constitutional magnitude or not.2



                 Accordingly, the judgment of the trial court as to the conviction for

felony reckless endangerment is reversed and remanded for a new trial. In all other

respects, the judgment is affirmed.


      2
          See State v. Williams, 977 S.W .2d 101 (Tenn. 1998).

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                                       _____________________________
                                       Gary R. Wade, Presiding Judge

CONCUR:



________________________________
David H. Welles, Judge



________________________________
Thomas T. W oodall, Judge




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