         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 26, 2000 Session

             STATE OF TENNESSEE v. JIMMY LEE CULLOP, JR.

                     Appeal from the Criminal Court for Sullivan County
                       No. S40,256 & 40,257    R. Jerry Beck, Judge



                                 No. E2000-00095-CCA-R3-CD
                                        April 17, 2001



JOSEPH M. TIPTON, J., concurring in part and dissenting in part.


        I concur in the holdings and rationale of the majority opinion save its double jeopardy
analysis. I do not believe that the Double Jeopardy Clause bars convictions for both felony reckless
endangerment and felony evading arrest under the circumstances in this case. I am convinced by the
differences in the statutes that the legislature did not intend them to be viewed as the same offense
for double jeopardy purposes.

         As the majority opinion points out, under the Blockburger test, one easily concludes that the
offenses are separate. The only fact that the two statutes have in common is that others must be put
in risk of harm by the defendant’s conduct. I note that as opposed to the reckless endangerment
statute, the evading arrest statute does not require recklessness or any other mens rea regarding other
persons being placed at risk. More importantly, contrary to the majority opinion’s view, I believe
that the purposes of the statutes are different.

         The majority opinion views both the Class B felony evading arrest and the felony reckless
endangerment statutes as seeking “to deter reckless conduct which creates a risk of death or injury
to third parties.” However, the gravamen of the evading arrest offense is the attempt to elude police
while in a vehicle which places others at risk. Obviously, the legislature was focused upon the
particular dangers created by the most common form of evading arrest.

       Furthermore, I question the extent to which the same evidence must be used to prove
reckless endangerment and evading arrest, given the different elements and purposes of the statutes.
Under these circumstances, I do not believe that Class D felony evading arrest is the same offense
for double jeopardy purposes as the Class E felony reckless endangerment.
        Also, I question the majority opinion’s conclusion that Class D felony evading arrest is the
same offense as felony reckless endangerment but that Class E felony evading arrest is not. Simply
put, the majority opinion holds that for purposes of the Double Jeopardy Clause of the Tennessee
Constitution, Class D felony evading arrest and Class E felony reckless endangerment are the same
offense and that Class D felony evading arrest and Class E felony evading arrest are the “same”
offense but that Class E felony evading arrest and Class E felony reckless endangerment are not the
same offense. This is a strange result, but not necessarily because of any faulty reasoning in the
majority opinion.

        There are several reasons why we concern ourselves about what constitutes a lesser included
offense. First, we cannot run afoul of the right against being placed in jeopardy twice or punished
twice for the same offense, and lesser included offenses are deemed the “same offense” for double
jeopardy purposes. See State v. Denton, 938 S.W.2d 373, 379 (Tenn. 1996); Brown v. Ohio, 432
U.S. 161, 169, 97 S. Ct. 2221, 2227 (1977). Second, the parties are entitled to the jury’s deciding
the justice of the cause upon the facts and related law. This means that we do not limit the jury’s
consideration to the offenses actually alleged in the charging instrument. See Tenn. Code Ann. §40-
18-110; Tenn. R. Crim. P. 31(c). Implicit in this, as well, is our interest in the defendant’s due
process right to adequate notice of the charge against him for defense preparation purposes. Thus,
we look at the concept of lesser included offenses for two basic purposes – double jeopardy and jury
determination of the offense committed.

        In determining what constitutes an offense and its lesser included offenses, we should
understand that subject to certain constitutional limitations, the legislature has the power to define
crimes and set the punishment therefor. State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992). Thus,
the analysis is essentially one of determining legislative intent. See Denton, 938 S.W.2d at 379;
Whalen v. United States, 445 U.S. 684, 691-92, 100 S. Ct. 1432, 1437-38 (1980).

        In the federal courts, the same elements test is essentially used for both double jeopardy and
lesser included offense jury instructions. See Rutledge v. United States, 517 U.S. 292, 297, 116 S.
Ct. 1241, 1245 (1996); Schmuck v. United States, 489 U.S. 705, 716-22, 109 S. Ct. 1443, 1450-53
(1989). In this respect, the Blockburger test is considered an aid to statutory construction. It
provides that “where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one is whether
each provision requires proof of an additional fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). If the elements of the two offenses are not
necessarily contained in each other, then the courts presume that the legislature intended for the two
to be separate offenses for conviction and punishment, unless a contrary legislative intent is
otherwise clearly shown. See, e.g., Albernaz v. United States, 450 U.S. 328, 340-41, 101 S. Ct.
1137, 1143 (1981). Any perceived shortcomings are left to the legislature to address. When dealing
with lesser included offenses, the federal courts look to determine whether the lesser offense is
necessarily included in the greater. This means that if the greater offense can be committed without
committing the lesser offense, the lesser is not deemed a lesser included offense for either instruction
or double jeopardy purposes. See, e.g., Schmuck, 489 U.S. at 716-17, 109 S. Ct. at 1451; United


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States v. Woodward, 469 U.S. 105, 107-08, 105 S. Ct. 611, 612 (1985) (if offense does not always
prove the lesser offense, the lesser is not the “same” for Blockburger purposes). The Court has also
noted that the same elements test is the most certain and predictable to apply. Schmuck, 489 U.S.
at 720-721, 109 S. Ct. at 1453.

         Tennessee used the same elements analysis as the basis of its double jeopardy jurisprudence
for years. See, e.g., State v. Cloud, 588 S.W.2d 552 (Tenn. 1979) (holding that violation of motor
vehicle habitual offender order necessarily includes driving without a license so as to bar separate
convictions). In this vein, regarding jury instructions, I note that Rule 31(c), Tenn. R. Crim. P.,
provides that the jury may convict the defendant for an offense “necessarily included in the offense
charged.” This rule reads the same as Rule 31(c), Fed. R. Crim. P., upon which the Supreme Court
relied in Schmuck to apply the same elements test for lesser included offense instructions. Schmuck,
489 U.S. at 716-17, 109 S. Ct. at 1451.

        However, in Howard v. State, 578 S.W.2d 83, 85 n.4 (Tenn. 1979), the Tennessee Supreme
Court stated that the analysis for what constitutes a lesser included offense for jury instruction
purposes is different from that for double jeopardy purposes. Today, Tennessee’s standard for
determining the same offense for double jeopardy purposes is presented in State v. Denton, 938
S.W.2d, 379-81(Tenn. 1996), while the standard for determining lesser included offenses for jury
instruction purposes is presented in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). Although
both start with the same elements test, both profess to diverge from it – but not in the same direction.
The potential for confusion exists because separate standards exist and each standard is viewed to
encompass more than the same elements test. Contradictory results are inevitable, as the present
case indicates. Similarly, although aggravated assault is not a lesser included offense of attempted
murder, see State v. Guy William Rush, ___S.W.3d ___, No. E1998-00592-SC-R11-CD, Sullivan
County (Tenn. Apr. 6, 2001), using the Burns standard, this court has concluded under similar facts
that attempted murder and aggravated assault are the same offense, i.e., lesser offense, using the
Denton standard. See State v. Adams, 973 S.W.2d 224, 229 (Tenn. Crim. App. 1997).

        I believe that the same standard should be used for determining lesser included offenses for
both instruction and double jeopardy purposes. Even if our supreme court chooses not to limit the
analysis to the same elements test, at least the potential for contradiction will reduce.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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