           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON                    FILED
                             JANUARY 1999 SESSION                 February 23, 1999

                                                                 Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,                         )
                                            )      NO. 02C01-9709-CR-00356
       Appellee,                            )
                                            )      SHELBY COUNTY
VS.                                         )
                                            )      HON. JOSEPH B. DAILEY,
CLEO HENDERSON,                             )      JUDGE
                                            )
       Appellant.                           )      (Attempt to Commit Second Degree
                                            )       Murder)


                               DISSENTING OPINION


       The majority opinion concludes that the Tennessee Supreme Court has

adopted the statutory approach in determining lesser offenses to be charged the jury.

The majority opinion further concludes that “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.” My reading of the cases relied upon by the majority

reflects that the language contained in the indictment is indeed material and can be

determinative of lesser offenses to be charged. For this reason, I respectfully

dissent.

       The majority opinion primarily relies upon three decisions of the Supreme

Court of Tennessee; to-wit: State v. Cleveland, 959 S.W.2d 548 (Tenn. 1997); State

v. Trusty, 919 S.W.2d 305 (Tenn. 1996); and Howard v. State, 578 S.W.2d 83 (Tenn.

1979). The majority concludes that these cases establish our adoption of the

statutory approach and rejection of the pleadings approach to lesser offenses. My

reading of these cases does not lead to such a simple conclusion.

       In Howard v. State, the Supreme Court concluded that:

              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.

578 S.W.2d at 85 (emphasis added). Since the burglary indictment in Howard did not

allege a breach of peace, the Court concluded criminal trespass was not a lesser
offense to be charged to the jury.

       In State v. Trusty, the Supreme Court adopted the Howard language set forth

above. 919 S.W.2d at 310-11. The Court further stated that “unless aggravated

assault is either a lesser grade or class or lesser included offense of attempted first-

degree murder as alleged in the indictment, appellant’s conviction must be reversed.”

Id. at 310 (emphasis added). The Court then went on to specifically examine the

language used in the indictment. Noting that it contained no reference to “serious

bodily injury or the use or display of a deadly weapon,” the Court concluded that the

indictment was insufficient to allege any of the forms of aggravated assault defined

in the statute. Id. at 312. Based upon this failure, the Court concluded aggravated

assault should not have been charged as a lesser offense of attempted first-degree

murder. Id.

       In State v. Cleveland, our Supreme Court relied upon the holdings of Trusty

and Howard. 959 S.W.2d at 554. The Court concluded that “aggravated assault is

not a lesser included offense of attempted aggravated rape, as charged in the

indictment.” Id. (emphasis added). Again, the Court examined the indictment and

concluded that an essential element of aggravated assault was absent; to-wit: bodily

injury, reasonable fear of imminent bodily injury, or offensive physical contact. Noting

that the “focus must be placed on the elements of each offense and the allegations

in the indictment,” the Court concluded the trial court did not err in failing to instruct

the jury on aggravated assault. Id. (emphasis added).

       Unlike the indictments in Howard, Trusty, and Cleveland, the indictment in the

case at bar specifically alleged all essential elements of aggravated assault.

Specifically, as the majority notes, the indictment alleged the defendant did

“knowingly attempt to kill Eva Itson by use of a deadly weapon. . . and did cause

bodily injury to the said Eva Itson.” Thus, the essential elements of aggravated

assault are present in the indictment. See Tenn. Code Ann. §§ 39-13-101(a)(1) and

39-13-102(a)(1)(B).     In accordance with the holdings of Howard, Trusty and

Cleveland, aggravated assault was properly charged as a lesser offense of attempted

second degree murder.



                                            2
       Based upon my reading of Howard, Trusty and Cleveland, it would appear

Tennessee has adopted a hybrid approach calling for the consideration of both the

pleadings and the statutes. I fully agree that our hybrid approach has produced great

difficulty in the trial courts as evidenced by the numerous appellate cases which have

addressed the issue. The statutory approach appears to be the most widely used in

other jurisdictions and may very well be the simplest and best approach, especially

from the trial court’s perspective.

       Although I would hope this jurisdiction would adopt a simpler approach to

lesser offenses to be charged to the jury, the trial court’s charging aggravated assault

as a lesser offense of attempted second degree murder in this case was clearly

proper under the holdings of Howard, Trusty and Cleveland. For this reason, I

dissent.1




                                              ___________________________________
                                              JOE G. RILEY, JUDGE




       1
         I also note the inherent unfairness to the state of allowing a defendant to secure the
benefit of a lesser offense charge without objection and, upon conviction, complain the
conviction is improper. In this case the trial court informed the defendant that aggravated
assault would be charged as a lesser offense, and there was no objection. Nor was there any
objection at the conclusion of the charge. In the motion for new trial, defense counsel even
conceded that aggravated assault was a lesser offense. This issue was first raised on appeal.
It may well be that defendant’s implied approval of aggravated assault being charged to the
jury could be viewed as a consensual amendment of the indictment. See State v. Billy Joe
Stokes, C.C.A. No. 01C01-9710-CC-00442, Humphreys County (Tenn. Crim. App. filed
January 19, 1999, at Nashville); but see State v. Michael Davenport, C.C.A. No. 03C01-9704-
CR-00159, Cumberland County (Tenn. Crim. App. filed April 2, 1998, at Knoxville)
(concluding that the mere failure to object to an erroneous lesser offense instruction does not
result in an amended indictment.).

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