         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                                AT KNOXVILLE                   August 17, 1999

                                                              Cecil Crowson, Jr.
                              JULY 1999 SESSION              Appellate C ourt
                                                                 Clerk



STATE OF TENNESSEE,                   )
                                      )    NO. 03C01-9901-CR-00047
      Appellee,                       )
                                      )    HAMILTON COUNTY
VS.                                   )
                                      )    HON. STEPHEN M. BEVIL,
JERRY WAYNE ALEXANDER,                )    JUDGE
                                      )
      Appellant.                      )    (Attempted Second Degree Murder;
                                      )    Aggravated Assault)



FOR THE APPELLANT:                         FOR THE APPELLEE:

JOHN C. CAVETT, JR.                        PAUL G. SUMMERS
Pioneer Bank Building                      Attorney General and Reporter
801 Broad Street, Suite 428
Chattanooga, TN 37402                      CLINTON J. MORGAN
                                           Assistant Attorney General
                                           Cordell Hull Building, 2nd Floor
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           WILLIAM H. COX III
                                           District Attorney General

                                           MARK A. HOOTON
                                           Assistant District Attorney General
                                           600 Market Street, Suite 310
                                           Chattanooga, TN 37402




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                      OPINION



      A Hamilton County jury convicted defendant, Jerry Wayne Alexander, of

attempt to commit murder in the second degree and aggravated assault. The trial

court sentenced him to ten and five years, respectively, and ordered the terms to

run concurrently. In this appeal as of right, defendant raises two issues:

      (1)    whether the trial court erred by failing to instruct the jury
             on reckless endangerment as a lesser offense of
             aggravated assault; and

      (2)    whether the evidence was sufficient to support the
             verdicts.

We find no reversible error and AFFIRM the trial court’s judgment.



                                       FACTS



      On June 18, 1996, Chattanooga police officers, Todd Royval and Glenn

Scruggs, were on patrol at a Hamilton County housing development. They were

looking for defendant in order to serve arrest warrants unrelated to this case. Soon

after they started their shift, they saw defendant in the front passenger seat of a

green Cutlass. Royval pulled the marked patrol car in behind the slow-moving

Cutlass, activated his blue lights, and sounded the siren several times. The Cutlass

did not stop for some distance, but subsequently pulled into a parking area

surrounded on three sides by apartment buildings.



       Royval stopped the patrol car at an angle facing the Cutlass’ passenger-side

door. He and Scruggs got out and started walking towards the Cutlass. However,

they stopped when they saw defendant reach down and come back up to the

window with an SKS 7.62 millimeter assault rifle.



       Defendant leveled the rifle and began firing toward the officers. Royval was

only about ten feet from the defendant and dropped to the ground. Scruggs

scrambled to the back of the patrol car for cover. An inspection of the patrol car

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later revealed a bullet hole in the rear driver-side quarter panel, approximately

twelve to fourteen inches from where Royval was standing. Both officers returned

gunfire as the Cutlass pulled away with defendant hanging out the window.



        Royval and Scruggs chased the Cutlass until it stopped and continued the

pursuit on foot when the suspects abandoned it. Defendant ran into a nearby

apartment where Royval and Scruggs apprehended him. Royval found the assault

rifle in the front seat of the Cutlass with a live round jammed in the chamber and an

“off-the-market” thirty-round magazine clip holding twenty-two additional rounds.



        The defense presented no proof at trial.



        Based upon this evidence, the jury convicted the defendant of the attempted

second degree murder of Officer Royval and aggravated assault upon Officer

Scruggs.



                                   JURY INSTRUCTION



        Defendant claims the trial court committed reversible error by failing to

charge reckless endangerment as a lesser included offense of aggravated assault.1

We respectfully disagree.




        Firstly, we note this issue was not raised in the motion for new trial. Thus,

it is waived. See Tenn. R. App. P. 3(e). Although this Court has the authority to


        1
          At first glance, defendant’s brief appears unclear as to whether he assigns as error the
failure to give an instruction on reckless endangerment for both attempted first degree murder and
aggravated assault. Since he asserts in his brief that reckless endangerment is “a lesser included
offense of assault,” we assume the alleged error relates only to the charge of aggravated assault.
Regardless, it would appear that reckless endangerment is neither a lesser included nor lesser grade
offense of attempted first degree murder. See generally State v. Trusty, 919 S.W.2d 305, 312
(Tenn. 1996).


                                                3
address this issue if it involves “plain error,” see Tenn. R. Crim. P. 52(b), we

conclude there is no plain error.



       The indictment charged aggravated assault by intentionally or knowingly

causing the victim to reasonably fear imminent bodily injury by use of a deadly

weapon. See Tenn. Code Ann. § 39-13-102(a)(1)(B). Reckless endangerment is

reckless conduct which places the victim in “imminent danger of death or serious

bodily injury.” Tenn. Code Ann. § 39-13-103(a). If committed with a deadly

weapon, reckless endangerment is a Class E felony. Tenn. Code Ann. §39-13-

103(b). Regardless of whether reckless endangerment is a true lesser included

offense of aggravated assault, it is certainly a lesser grade offense and must be

charged when justified by the evidence. See State v. Cleveland, 959 S.W.2d 548,

553 (Tenn. 1997).



       However, the trial court does not have to charge the jury with a lesser

included or lesser grade offense where the record clearly shows that the defendant

was guilty of the greater offense, and the record is devoid of evidence permitting an

inference of guilt on the lesser offense. State v. Langford, ___ S.W.2d ___, ___

(Tenn. 1999).     “Obviously, where ‘there is no proof in the record which would

support the instruction,’ no jury instruction on a lesser offense need be submitted

to the jury.” State v. Elder, 982 S.W.2d 871, 877 (Tenn. Crim. App. 1998)(citing

State v. Trusty, 919 S.W.2d 305, 311) (Tenn. 1996)).



       “Plain error” or “fundamental error” is recognized under Tenn. R. Crim. P.

52(b). State v. Stephenson, 878 S.W.2d 530, 553 (Tenn. 1994). It must affect a

“substantial right” which is a right of “fundamental proportions in the indictment

process, a right to the proof of every element of the offense, and is constitutional in

nature.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). It is an

egregious error that strikes at the “fairness, integrity or public reputation of judicial

proceedings.” Id. (citing United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir.



                                           4
1989)).



       In the instant case, the record unequivocally established that the defendant

acted intentionally and knowingly and caused Officer Scruggs to fear imminent

bodily injury by firing at him with an assault rifle. The trial court did charge the

lesser offense of simple assault. The jury opted to find the defendant guilty of

aggravated assault and declined to convict on simple assault. The failure to instruct

on reckless endangerment did not strike at the fairness, integrity or public reputation

of the proceedings. If the trial court did err in refusing to instruct on reckless

endangerment, it clearly did not constitute “plain error.”



       This issue is without merit.



                        SUFFICIENCY OF THE EVIDENCE



       Defendant charges that the evidence presented at trial was insufficient to

convict him of the attempted second degree murder of Royval and the aggravated

assault upon Scruggs.



       Defendant claims that the case against him “hinged totally upon the [officers’]

testimony” and that their “testimony must be analyzed in light of their emotional

state.” These contentions are misguided. Great weight is given to the jury verdict

in a criminal trial, and it accredits the state’s witnesses and resolves all conflicts in

the state’s favor. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

Nor may this Court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(1956). To the contrary, this Court is required to afford the state the strongest

legitimate view of the evidence contained in the record as well as all reasonable and



                                           5
legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914

S.W.2d 926, 932 (Tenn. Crim. App.1995). Furthermore, a guilty verdict replaces the

presumption of innocence with a presumption of guilt which appellant must

overcome on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



       The proof at trial showed that Officers Royval and Scruggs stopped a vehicle

in which defendant was a passenger. The officers approached within ten feet of the

car’s passenger window when they saw defendant level a military-style assault rifle

at them. When defendant fired at them, Royval dropped to the ground and Scruggs

ran for cover. The frightened officers returned the gunfire. When Royval recovered

the rifle, a live round was jammed in its chamber with seven rounds missing from

a thirty-round magazine clip.



       Given the presumption of guilt and viewing the evidence in the light most

favorable to the state, we find the overwhelming proof more than sufficient to uphold

defendant’s convictions. This issue is without merit.



                                  CONCLUSION



       Based upon the foregoing, we AFFIRM the judgment of the trial court.




                                                ____________________________
                                                 JOE G. RILEY, JUDGE




CONCUR:


                                         6
____________________________
GARY R. WADE, PRESIDING JUDGE




____________________________
DAVID H. WELLES, JUDGE




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