State of Tennessee v. Roy D. Nelson, Jr.

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 9, 1999
• Docket: 03C01-9710-CR-00454
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE February 9, 1999 NOVEMBER 1998 SESSION Cecil Crowson, Jr. Appe llate Court C lerk

STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9710-CR-00454 ) vs. ) Washington County ) ROY D. NELSON, JR., ) Hon. Lynn W. Brown, Judge ) Appellant. ) (Burglary, Aggravated Burglary, ) Aggravated Arson, Possession of Marijuana)

FOR THE APPELLANT: FOR THE APPELLEE:

DONALD E. SPURRELL JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 128 E. Market St. Johnson City, TN 37604 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493

DAVID CROCKETT District Attorney General

JOE C. CRUMLEY Asst. District Attorney General P.O. Box 38 Jonesborough, TN 37659

OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE OPINION

The defendant, Roy D. Nelson, stands convicted of burglary, aggravated burglary,

aggravated arson and possessionof marijuana as aresult of hisefforts toblow up his ex-wife's home.

Nelson received his convictions at the conclusion of a jury trial in the Washington County Criminal

Court. A Range III offender, Nelson is presently serving an effective 62-year sentence in the

Department of Correction for his crimes.1 In this direct appeal, Nelson claims he was improperly

convicted of aggravated arson because he, rather than another person, suffered the serious bodily

injury relied upon to elevate the offense from arson to aggravated arson. Having reviewed the

appellate record, the arguments of the parties and the applicable law, we affirm the judgm of the ent

trial court.

I

Upon initial review of the record, we discovered that Nelson's notice of appeal was

filed two and a half months after thetrial court entered its order overruling the motion for new trial. In

order to be timely, the notice of appeal should have been filed and received by the clerk of the trial

court within 30 days after entry of the order denying a new trial. Tenn. R. App. P. 4(a), (c). If a

defendant failsto com with theRules of AppellateProcedure, theappellatecourt may waive tim ply ely

filing in the interest of justice. Tenn. R. App. P. 4(a). Equally, the appellate court may choose not to

allow an untimely appeal in a criminal case. See, e.g., State v. Cleotha Nash, No. 02C01-9701-CC-

00026, slip op. at 3 (Tenn. Crim. App., Jackson, Feb. 18, 1998), perm. app. denied (Tenn. 1998);

State v. Austin Kipling Stratton, No. 01C01-9611-CC-00472, slip op. at 2-3 (Tenn. Crim. App.,

Nashville, Dec. 4, 1997).

Unlike many cases in which a notice of appeal is untimely filed, Nelson has not filed

a motion to waive tim filing of the notice of appeal or any similar pleading. Typically, such filing ely

would contain acknowledgm that thenoticeof appeal wasnot timelyfiled and would include verified ent

1 Total fines of $60,350 were imposed.

2 factual and/or legal assertions why the interests of justice dictate that we should waive timely filing of

the notice of appeal. See Cleotha Nash, slip op. at 3 (appeal dismissed where neither record nor

allegation by the defendant provided sufficient basis for waiver of timely filing of notice of appeal).

DespiteNelson's shortcoming in this regard, we somewhat reluctantly waive the timely

filingrequirement for the notice of appeal. The issue Nelson has raised on appeal is a novel one, and

as best we can tell, is an issue of first impression in Tennessee. It is better addressed now on direct

appeal, rather than in a delayed appeal following a post-conviction case in which defense counsel

might be found ineffective for failing to perfect a timely direct appeal. In the interest of justice, we

waive the requirement of timely filing of the notice of appeal. Tenn. R. App. P. 4. We admonish

counsel and other appealing parties, however, that thisresult isnot a preordained conclusion, and we

expect acknowledgment and an explanation when counsel has failed to comply with the Rules of

Appellate Procedure.

II

Nelson claims his aggravated arson conviction cannot be sustained because the

serious bodily injury used to elevate the crime from sim arson w his ow not another person's. ple as n,

In pertinent part, "[a] personcommits aggravated arson whocommits arson as defined in § 39-14-301

or § 39-14-303 . . . [w]hen any person, including firefighters and law enforcem officials, suffers ent

serious bodily injury as a result of the fire or explosion." Tenn. Code Ann. § 39-14-302(a)(2) (1997)

(emphasis added). "'Person' includes the singular and plural and means and includes any individual,

firm, partnership, copartnership, association, corporation, governmental subdivision or agency, or

other organization or other legal entity, or any agent or servant thereof[.]" Tenn. Code Ann. § 39-11-

106(a)(27) (1997).

Theaggravatedarsonstatuteis anomalous. Elsewhere in the criminal code, offenses

which are aggravated or especially aggravated by the infliction of bodily injury or serious bodily injury

3 are worded differently. See Tenn. Code Ann. § 39-13-102(a)(1)(A) (1997) (aggravated assault)

("serious bodily injury to another"); Tenn. Code Ann. § 39-13-304(a)(4) (1997) (aggravated kidnapping)

("victim suffers bodily injury"); Tenn. Code Ann. § 39-13-305(a)(4) (1997) (especially aggravated

kidnapping) ("victim suffers serious bodily injury"); Tenn. Code Ann. § 39-13-402(a)(2) (1997)

(aggravated robbery) ("victimsuffers serious bodily injury"); Tenn. Code Ann. § 39-13-403(a) (1997)

(especially aggravated robbery) ("victim suffers serious bodily injury"); Tenn. Code Ann. § 39-13-

502(a)(2) (1997) (aggravated rape) ("defendant causes bodily injury to the victim Tenn. Code Ann. ");

§ 39-13-504(a)(2) (1997) (aggravated sexual battery) ("defendant causes bodily injuryto the victim");

Tenn. Code Ann. § 39-14-404(a)(2) (1997) (especially aggravated burglary) ("victimsuffers serious

bodily injury"). The aggravated arson statute stands alone raising the possibility of a defendant's

conviction of the aggravated offense based upon his own serious bodily injury.

In examining the criminal code, we find no indication that we should depart from the

plain meaning of the definition of "person" and the common, ordinary usage of the word "any." Thus,

we believe "any person" who suffers serious bodily injury includes the defendant. We are further

persuaded by the wording of the aggravated arson statute itself, which provides that "a person" is

guilty of the crime if certain elements are m including that "any person" (not "any other person") et,

suffersserious bodily injury. Unlike other criminal code provisions, the aggravated arson statutedoes

not require injury to a "victim" or "another" as an element of the crime. Furthermore, this result is

consistent with the unique character of the crim of arson. More so than the other offenses in the e

criminal code which are aggravated by som level of bodily injury, arson as a general proposition e

creates a dangerous exigency which has the potential to endanger the criminal himself, in addition to

any targeted individual, members of the public, and rescue personnel.

Thus, we find no flaw with the defendant's conviction of aggravated arson based upon

his own seriousbodilyinjury fromtheexplosion he created. Thejudgm of thetrial court is affirmed. ent

4 ________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ DAVID H. WELLES, JUDGE

_______________________________ L.T. LAFFERTY, SPECIAL JUDGE