            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1999

                                                                  FILED
STATE OF TENNESSEE,               )                       February 23, 1999
                                  )   No. 02C01-9709-CR-00356
      Appellee                    )                       Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
                                  )   SHELBY COUNTY
vs.                               )
                                  )   Hon. Joseph B. Dailey, Judge
CLEO HENDERSON,                   )
                                  )   (Attempt to Commit Second
      Appellant                   )   Degree Murder)



For the Appellant:                    For the Appellee:

Coleman W. Garrett                    Paul G. Summers
Attorney for Appellant                Attorney General and Reporter
200 Jefferson Avenue, Suite 850
Memphis, TN 38103                     Georgia Blythe Felner
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493


                                      William L. Gibbons
                                      District Attorney General

                                      Terrell L. Harris
                                      Asst. District Attorney General
                                      Criminal Justice Complex
                                      Suite 301, 201 Poplar Avenue
                                      Memphis, TN 38103



OPINION FILED:

REVERSED AND DISMISSED



David G. Hayes
Judge
                                        OPINION



         The appellant, Cleo Henderson, was charged in a one count indictment with

attempt to commit second degree murder. A Shelby County jury found the

appellant guilty of aggravated assault, resulting in a fourteen year sentence as a

persistent offender. In this appeal as of right, the appellant argues that the evidence

is insufficient as a matter of law to support the jury’s verdict of aggravated assault.



         For the reasons discussed below, the judgment of conviction is reversed and

dismissed.



                                      Background



         On March 30, 1996, Eva Itson, the victim in this case, traveled to the South

Memphis apartment of her friend, Jacqueline “Jackie” Baggett, to visit with her and

spend the night. Jackie Baggett resided at this residence with her seven year old

son, Cleo Baggett, and her live-in boyfriend, Lee “Lucky” Gathings.



         Around 1:45 a.m., Lee Gathings and Jackie Baggett, who had retired to their

bedroom, heard a loud knock at the front door. Ms. Baggett looked out of their

second floor bedroom window and saw the appellant, the father of her son, Cleo.

The appellant asked Jackie where his son was; she responded that he was asleep.

Jackie closed the window and the appellant left. Within five minutes, however, the

appellant returned and demanded that Jackie and Lee come downstairs. The

appellant, who appeared intoxicated, told Lee that Cleo was his child and that he

wanted to see him. Lee responded that he had no problem with the appellant

visiting Cleo at a decent time, but it was too late to see him that night. After

exchanging some words with Ms. Baggett, the appellant left, but warned, “I’ll be

back.”


                                          2
       Prior to these events, Eva Itson had left the apartment to purchase beer and

attend a party. Shortly after the appellant’s second departure, Eva returned to the

apartment, let herself in with a key she had been given, and went upstairs to Jackie

and Lee’s bedroom. Shortly thereafter, a loud knock was again heard at the front

door. Jackie recognized the voice outside as being that of the appellant. Lee told

Jackie not to respond to the appellant. Eva, however, volunteered to go to the

window and tell the appellant that Jackie was asleep. Eva opened the window and

informed the appellant that they “were in the bed” and that “they weren’t getting up.”

As she moved to close the window, the appellant yelled, “You tell them I ain’t

nothing to play with.” A shotgun blast followed and “[t]hat is when the [appellant]

shot [Eva Itson.]”



       At the conclusion of the proof, the trial court instructed the jury upon the

indicted offense of criminal attempt to commit second degree murder. Additionally,

the trial court submitted to the jury an instruction on the offense of aggravated

assault. The jury found the appellant guilty of aggravated assault.



                                       Analysis



       Included within the appellant’s sufficiency of evidence argument is his

contention that “[t]he jury’s verdict represents a compromised decision for which

there was no bases in law or fact.” Although ambiguously argued, the appellant, in

effect, asserts that aggravated assault is neither a lesser grade nor a lesser included

offense of attempted second degree murder. The appellant cites as authority State

v. Trusty, 919 S.W.2d 305 (1996), for the proposition that the trial court erred in

permitting the jury to consider the offense of aggravated assault as an included

offense within the indictment. It is undisputed that our supreme court in Trusty held

that aggravated assault is not a lesser offense of attempted first degree murder.

Trusty, 919 S.W.2d at 309. The State argues, however, that the indictment, in this


                                          3
case, is factually distinguished from the indictment in Trusty. The indictment in

Trusty essentially tracked the statutory language of criminal attempt and first degree

murder. The indictment in the case before us charged as follows:

         . . . on March 30, 1996, in Shelby County, Tennessee . . . did
         unlawfully attempt to commit the offense of Second Degree Murder in
         that he, the said Cleo Henderson did unlawfully and knowingly attempt
         to kill EVA ITSON by use of a deadly weapon, to-wit: a shotgun and
         did cause bodily injury to the said EVA ITSON, in violation of T.C.A.
         39-12-101. . .

[Emphasis added].


The State acknowledges that, although the indictment expressly charges violation of

Tenn. Code Ann. § 39-12-101, attempted second degree murder, the inclusion of

the above emphasized language “use of a deadly weapon” and “did cause bodily

injury” provided notice of the crime of aggravated assault.



         We find this argument misplaced. There is nothing in the record before us

which remotely suggests that the State ever considered aggravated assault as a

prosecution theory. Moreover, allegation of acts in the indictment by which the

appellant may have committed the offense, i.e., “by use of a deadly weapon” or the

phrase “did cause bodily injury,” contrary to the State’s argument, will not serve to

convert one offense in a single count indictment into multiple offenses. To do so

would render the single count indictment duplicitous and subject to dismissal. 1 An

averment will be construed according to the context and a count will not be made

duplicitous through punctuation or clerical error, nor held so if the singleness of the

charge is clear to common understanding. 42 C.J.S. Indictments and Information,

§ 159 [1991].




         1
           Gene rally, two distinct of fenses canno t be char ged in the sam e coun t of an indictm ent.
State v. Jefferson, 529 S.W .2d 6 74, 6 78 (T enn . 197 5), ab and one d on o ther g roun ds by State v.
Mitc hell, 593 S.W .2d 280 ( Tenn . 1980). See also, Tenn. Code Ann. § 40-13-202; Rule 8, Tenn.
R. Crim. P., (each offense is to be stated in a sep arate count).

          Duplicity rend ers the ind ictmen t voidable n ot void. As s uch, the in dictme nt is subje ct to
pre-trial dism issal. See Rule 12(b)(2), Tenn. R. Crim. P. (defenses and objections based on
defects in the indictment).

                                                      4
       In all criminal prosecutions, the accused is granted “the right to be informed

of the nature and cause of the accusation” against him. U.S. Const. Amend. VI;

Tennessee Const. Art. I, Sec. 9. Moreover, it is fundamental that a defendant

cannot legally be convicted of an offense which is not charged in the indictment.

See Trusty, 919 S.W.2d at 310; see also Hagner v. United States, 285 U.S. 427,

430, 52 S.Ct. 417, 418-419 (1932).



       Although the right to be informed of the nature and cause of the accusation is

constitutionally derived, the method employed in the providing of this right is

procedural. Thus, it remains for the states to enact, through rules of criminal

procedure and/or by case law, the necessary means by which constitutional “notice”

will be provided. Within this context, Tennessee has enacted both rules of

procedure and statutory law which bears upon the issue of providing notice to the

accused.



       1. Tenn. Code Ann. § 40-18-110 provides: it is the duty of all judges
       charging juries in cases of criminal prosecution for any felony wherein
       two 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, without any request on the part of the
       defendant to do so, and

       2. Rule 31 (c), Tennessee Rules of Criminal Procedure, places the
       defendant upon notice that he “may be found guilty of an offense
       necessarily included in the offense charged or of an attempt to commit
       either the offense charged or an offense necessarily included therein if
       the attempt is an offense.”

Thus, the issue before us in this case is whether the appellant’s conviction for

aggravated assault was “necessarily included” in the offense charged. The

resolution of this question requires us first to define the term “necessarily included.”



       At first glance, it would appear that the phrase “necessarily included” could be

easily construed and capable of a single definition. This, however, is not the case.

Although the clear majority of jurisdictions have adopted Federal Rule 31(c) and its

language “necessarily included,” three prevailing definitions have emerged among

                                          5
federal and state jurisdictions. Those definitions have resulted in the formation of

(1) the statutory approach; (2) the pleadings approach; and (3) the evidentiary

approach. See State v. Howard, 578 S.W .2d 83, 86 (Tenn. 1979) (Henry,

C.J.,dissenting). See also State v. Coulson, No. 01C01-9709-CR-00397 (Tenn.

Crim. App. at Nashville, Sept. 15, 1998); MODEL PENAL CODE Section 1.07,

Comments.



       We believe that a brief review of each of the three approaches is helpful in

contrasting their differences and will aid the trial court in its determination of what

constitutes a “necessarily included” offense of the indictment.



                              EVIDENTIARY APPROACH

       The evidentiary approach provides that the defendant is entitled to a charge

on a lesser offense when the lesser offense is established by the evidence adduced

at trial in the proof of the greater and the greater and lesser offenses relate to

protection of the same interest. See United States v. Whitaker, 447 F.2d 314, 319

(D.C.Cir.1971). No Blockburger test is performed and there is no requirement that

the offense be charged in the indictment.



       This approach was expressly rejected by our supreme court in Howard v.

State, 578 S.W.2d at 83, wherein, the court held that criminal trespass, although

established by the proof at trial, was not a lesser included offense of third-degree

burglary. In so holding, the court observed, “that if [this] theory is adopted, trial

judges will receive ‘request for instructions limited only by the imagination and

ingenuity of the defendant’ to the ultimate confusion of the jury and frustration of the

judicial process.” Id. (citing State v. Washington, 273 Or. 829, 543 P.2d 1058

(1975)). Again, in State v. Trusty, our supreme court rejected the evidentiary

approach, ruling that aggravated assault is not a lesser included or lesser grade




                                           6
offense of criminal attempt to commit first degree murder. Trusty, 919 S.W.2d at

309.




                              PLEADINGS APPROACH

       Under the pleadings or charging instrument approach, a lesser offense is

included in the charged offense if the description of the charged offense in the

pleadings also sets forth all the elements of the lesser offense. People v. Marshall,

309 P.2d 456, 458 (Cal. 1957). The yardstick for determining “included” offenses is

the language of the accusatory pleading. Id. at 461. This approach requires no

Blockburger analysis and permits convictions of a lesser offense even though it

would be possible to commit the greater without committing the lesser. This

approach has been held sufficient to satisfy the constitutional requirement of notice.

See,e.g., U.S. v. Stolarz, 550 F.2d 488 (9th Cir. 1977).



       The indictment in this case and the State’s argument on appeal is, in effect,

an argument for endorsement of the pleadings approach. This approach was

rejected by our supreme court in State v. Cleveland, 959 S.W.2d 548, 552 (Tenn.

1997) (holding that aggravated assault was not a lesser included offense of

attempted aggravated rape).



       Specifically, in Cleveland, our supreme court held:

       Whether aggravated assault is a lesser included offense in attempted
       aggravated rape is a more complex question. The indictment charged
       the defendant with ‘unlawfully, forcibly, or coercively attempt[ing] to
       engage in sexual penetration with [the victim], while [he was] armed
       with a weapon or an article used or fashioned in a manner to lead the
       victim to believe it to be a weapon.’
       ...

       A close analysis of these elements reveals that aggravated assault is
       not a lesser included offense of attempted aggravated rape, as
       charged in the indictment. Each form of aggravated assault contains
       at least one element that is not necessarily included in the offense of
       attempted aggravated rape, and, therefore, not charged in the
       indictment in this case: bodily injury, reasonable fear of imminent

                                         7
        bodily injury, or physical contact a reasonable person would regard as
        extremely offensive or provocative. See Tenn. Code Ann. § 39-13-
        101(a)(1)-(3). Although we recognize that any or all of these elements
        may and often do accompany an attempted aggravated rape, that
        does not satisfy the test for a lesser included offense under the
        Trusty/Howard analysis.

        The defendant’s argument, as well as the Court of Criminal Appeals’
        analysis, emphasizes that the evidence presented in this case by the
        State was sufficient to support a conviction for aggravated assault.
        We do not disagree; in fact, the evidence was sufficient to support a
        separate count in the indictment for aggravated assault had the
        prosecutor chosen to pursue such a charge. Yet the sufficiency or
        weight of the evidence is not the test for determining if one offense is
        necessarily included in another offense. Instead, to preserve a
        defendant’s right to receive fair and reasonable notice of the charges,
        and also to ensure the prosecution’s right to seek charges on the
        offenses it deems appropriate, the focus must be placed on the
        elements of each offense and the allegations in the indictment.
        Howard, 578 S.W.2d at 84.

(emphasis added) (internal footnote omitted).


                                  STATUTORY APPROACH

        This state has by case law adopted the statutory approach. See Trusty, 919

S.W.2d at 311. Under the statutory approach, a lesser offense is included in the

charge of a greater if the proof necessary to establish the greater offense will of

necessity establish every element of the lesser offense. Under this approach, a

lesser offense is included in the greater if all the statutory elements of the lesser are

also elements of the greater. As stated by our supreme court in Howard v. State,

“an offense is necessarily included in another if the elements of the greater offense,

as those elements are set forth in the indictment, include, but are not congruent

with, all the elements of the lesser. Howard, 578 S.W.2d at 85. Again, in Trusty, our

supreme court held: “Thus, pursuant to our statute, [TCA 40-18-110] rule, [Rule

31(c) Tenn. R. Crim. P.] and case law interpretations, defendants are entitled to jury

instructions on all lesser included offenses as defined in Howard and on all offenses

which are a lesser grade or class of the charged offense, if the evidence would

support a conviction for the offense. Trusty, 919 S.W.2d at 311.2 Finally, in State v.

        2
         The language in Trusty , on several occasions in the text of the opinion, utilizes the
phrase, “as charged in the indictment.” This language, however, does not permit, as argued by
the State, consideration of multiple offenses in a single count and must be viewed within the
context of its ultimate holding and the holding in Howard . See supra, Duplicity.

                                                8
Cleveland, the supreme court again restated the lesser included - lesser grade

principles announced in Trusty, 919 S.W.2d at 310-311 (quoting Howard, 578

S.W.2d at 85), undisputedly embracing the statutory approach. Cleveland, 959

S.W.2d at 353.



       This approach is, as observed, the most narrow of the three approaches in

determining what constitutes an included offense. Additionally, of the three

approaches, this approach is the most widely used. This jurisdiction is but one of

few jurisdictions that statutorily impose upon the trial judge the obligation of charging

the jury each offense included in the indictment without any request. To require the

trial judge to charge every included offense in the indictment under either the

evidentiary or pleadings approach would produce nothing less than chaos and, as

observed by Justice Cooper in Howard, “the request for instructions [would be]

limited only by the imagination and ingenuity of the defendant . . . .” Howard, 578

S.W.2d at 85 (citation omitted).



       Again, the indictment in the present charged that the appellant

              did unlawfully attempt to commit the offense of Second
              Degree Murder in that he . . . did unlawfully and
              knowingly attempt to kill Eva Itson by use of a deadly
              weapon . . . and did cause bodily injury to the said EVA
              ITSON.

This panel concedes that, had Tennessee adopted the pleadings approach,

aggravated assault would have been a lesser offense in the present case.

However, it is clear that our supreme court has chosen the statutory approach.

Thus, in determining what constitutes a lesser offense, the trial court is required to

consider only the lesser offenses of the offense charged in the indictment, not the

language contained in the indictment. Applying these principles to the case before

us requires the finding that aggravated assault is not a lesser included offense of

attempt to commit second degree murder.       See e.g., Trusty, 919 S.W.2d at 309;

State v. Nolan, No. 01C01-9511-CC-00387 (Tenn. Crim. App. at Nashville,


                                          9
June 26, 1997), perm. to appeal denied, (Tenn. Mar. 2, 1998). See also Cleveland,

959 S.W.2d at 553.




                                     Conclusion



      Thus, we conclude that the trial court erroneously submitted to the jury the

non-included offense of aggravated assault. As previously noted, the indictment

must charge an offense in terms that puts the defendant on notice of the offense

with which he is charged so that he may prepare his defense and be protected

against double jeopardy. In view of this state’s adoption of the “statutory approach”

for determining lesser offenses, we conclude that the appellant’s conviction for

aggravated assault is infirm. Indeed, the appellant was convicted and sentenced for

an offense for which he was never charged. As such, the conviction may not stand

and we find it unnecessary to address the appellant’s remaining issues. The

judgment of the trial court is reversed and the appellant’s conviction is dismissed.




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:



_____________________________________
JOE G. RILEY, Judge



_____________________________________
JOHN EVERETT W ILLIAMS, Judge




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