IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY SESSION, 1998 FILED September 15, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9709-CR-00397 Appellee ) ) DAVIDSON COUNTY vs. ) ) Hon. Thomas H. Shriver, Judge GREGORY COULSON, ) ) (Disorderly Conduct) Appellant )
For the Appellant: For the Appellee:
David E. High John Knox Walkup 227 Second Avenue, North Attorney General and Reporter First Floor Nashville, TN 37201 Daryl J. Brand Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493
Victor S. (Torry) Johnson III District Attorney General
Mary Campbell Asst. District Attorney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1619
OPINION FILED:
REVERSED AND DISMISSED
David G. Hayes Judge OPINION
The appellant, Gregory Coulson, appeals as of right his conviction in the
Davidson County Criminal Court for the misdemeanor offense of disorderly conduct.
Following a bench trial, the appellant was sentenced to thirty days in jail, all of which
was suspended, and was assessed a fine of fifty dollars. The appellant’s sole issue
on appeal is whether a defendant who proceeds to trial upon a charge of
misdemeanor assault may be convicted of disorderly conduct.
For the reasons discussed below, the judgment of conviction is reversed and
dismissed.
The question of whether one charged with misdemeanor assault can be
convicted of disorderly conduct turns not upon the proof in the case but upon a
question of law. Although it is unnecessary to fully develop the facts of this case, a
brief procedural and factual history is helpful to facilitate review.
In observance of a red traffic light at the intersection of Sawyer Brown and
Old Harding Roads, motorist Danielle Stocks slowed her vehicle before coming to a
stop at the intersection. Before Mrs. Stocks initiated her turn onto Old Harding
Road, the driver of the vehicle behind her, the appellant, began beeping his horn
and “tapped [her car] on [the] back . . . bumper.” Mrs. Stocks immediately got out of
her car to see if any damage had occurred. Mrs. Stocks testified that, at this point,
the appellant yelled “Get out of my way Bitch,” put his car in reverse, then he put it in
drive,” forcing Mrs. Stocks to jump out of the way of his moving vehicle. Mrs. Stocks
got his license plate number as he drove away. On the following Monday, Mrs.
Stocks telephoned the appellant at work explaining that “I thought that I could talk
with [him] and see if . . . I could get an apology from him to see what was going on.”
2 When asked how she got his telephone number, Mrs. Stocks informed the appellant
that her husband was a Metro police officer.
Five days after the incident, Mrs. Stocks signed an affidavit of complaint and
a warrant issued charging the appellant with felony reckless endangerment. On
October 29, 1996, the appellant waived his right to be tried by indictment and his
right to a jury trial. The case proceeded to trial in General Sessions Court upon the
misdemeanor charge of reckless endangerment. At trial, the appellant denied
making contact with Mrs. Stocks’ vehicle, denied attempting to harm her, and, in
effect, contradicted almost all of Mrs. Stocks testimony. He did admit, however, that
after “the light changed to green and [her[ car did not move . . . after four five or six
seconds . . . I blew the horn.” At this trial, the appellant was found not guilty of
reckless endangerment but was found guilty of the “amended charge of assault,”
which he appealed to the Criminal Court.1 On March 31, 1997, the appellant’s case
proceeded to trial in the Davidson County Criminal Court. At the conclusion of the
bench trial, the trial court found that the State had failed to prove an assault.
However, the court did find the appellant guilty of disorderly conduct, a class C
misdemeanor.
The controlling question of law is whether disorderly conduct is a lesser
offense of misdemeanor assault. The Sixth Amendment requires that the State
inform the accused “of the nature and cause of the accusation against him.” U.S.
Const. amend VI. Thus, in order to comport with the constitutionally guaranteed
notice requirement, a defendant may only be convicted of an offense which is a
lesser included or lesser grade of the greater offense charged in the indictment.
See State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996); see also Hagner v. United
States, 285 U.S. 427, 430, 52 S.Ct. 417, 418-419 (1932).
1 The reco rd do es no t exp lain th e m ann er in w hich the c harg e wa s am end ed or whe n it was amended.
3 Although the State concedes that disorderly conduct is not a lesser included
offense of assault 2 as defined in Tenn. Code Ann. § 39-13-101(1991), the State
urges this court to adopt a pleadings, or charging instrument, approach for offenses
not charged by indictment. Specifically, the State argues that, since the “degree of
strictness required of a felony indictment is not required of a warrant charging a
misdemeanor,” the affidavit of complaint in the present case contains sufficient
language to encompass the offense of disorderly conduct and, thus, the appellant
was on notice to defend upon the crime for which he was convicted.
In State v. Howard, 578 S.W.2d 83, 86 (Tenn. 1979), Chief Justice Henry
acknowledged, in his dissent, the existence of three approaches for determining
lesser offenses, i.e., (1) the statutory approach, (2) the pleadings, or charging
instrument, approach, and (3) the evidentiary approach.3 “Under the statutory test
the elements of the two offenses, as reflected in the respective statutory provisions,
are considered in the abstract, wholly apart from the facts established by the proof.”
Howard, 578 S.W.2d at 86 (Henry, C.J., dissenting). See also Comments, MODEL
PENAL CODE § 1.07 (1985). In other words, under the statutory approach, in order to
warrant a charge on a lesser included offense, the lesser offense must be included
within the proof necessary to establish the offense charged. However, under a
pleadings, or charging instrument, approach, a lesser offense may be included in
the greater if the language in the charging instrument, i.e., the arrest warrant or the
indictment, sets forth the elements of the lesser offense even though under the
statutory definitions it would be possible to commit the greater offense without
committing the lesser. See Howard, 578 S.W.2d at 86 (Henry, C.J., dissenting);
2 Although the offense charged in the warrant is reckless endangerment, both parties ackn owledg e that this ch arge wa s am ended to misd eme anor as sault.
3 Unde r an evide ntiary appro ach, the p roof, not the contents of the indictment, establish the elem ents of th e lesser included offens e. Howard , 578 S.W .2d at 87 (Henry C.J., dissenting); Com men ts, M ODEL P ENAL C ODE § 1.07. This standard was expressly rejected in Trusty . Moreover, we note that this standard would most likely not survive a “notice” challenge under the Sixth Am endm ent.
4 Comments, MODEL PENAL CODE § 1.07.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY SESSION, 1998 FILED September 15, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9709-CR-00397 Appellee ) ) DAVIDSON COUNTY vs. ) ) Hon. Thomas H. Shriver, Judge GREGORY COULSON, ) ) (Disorderly Conduct) Appellant )
For the Appellant: For the Appellee:
David E. High John Knox Walkup 227 Second Avenue, North Attorney General and Reporter First Floor Nashville, TN 37201 Daryl J. Brand Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493
Victor S. (Torry) Johnson III District Attorney General
Mary Campbell Asst. District Attorney General Washington Square, Suite 500 222-2nd Avenue North Nashville, TN 37201-1619
OPINION FILED:
REVERSED AND DISMISSED
David G. Hayes Judge OPINION
The appellant, Gregory Coulson, appeals as of right his conviction in the
Davidson County Criminal Court for the misdemeanor offense of disorderly conduct.
Following a bench trial, the appellant was sentenced to thirty days in jail, all of which
was suspended, and was assessed a fine of fifty dollars. The appellant’s sole issue
on appeal is whether a defendant who proceeds to trial upon a charge of
misdemeanor assault may be convicted of disorderly conduct.
For the reasons discussed below, the judgment of conviction is reversed and
dismissed.
The question of whether one charged with misdemeanor assault can be
convicted of disorderly conduct turns not upon the proof in the case but upon a
question of law. Although it is unnecessary to fully develop the facts of this case, a
brief procedural and factual history is helpful to facilitate review.
In observance of a red traffic light at the intersection of Sawyer Brown and
Old Harding Roads, motorist Danielle Stocks slowed her vehicle before coming to a
stop at the intersection. Before Mrs. Stocks initiated her turn onto Old Harding
Road, the driver of the vehicle behind her, the appellant, began beeping his horn
and “tapped [her car] on [the] back . . . bumper.” Mrs. Stocks immediately got out of
her car to see if any damage had occurred. Mrs. Stocks testified that, at this point,
the appellant yelled “Get out of my way Bitch,” put his car in reverse, then he put it in
drive,” forcing Mrs. Stocks to jump out of the way of his moving vehicle. Mrs. Stocks
got his license plate number as he drove away. On the following Monday, Mrs.
Stocks telephoned the appellant at work explaining that “I thought that I could talk
with [him] and see if . . . I could get an apology from him to see what was going on.”
2 When asked how she got his telephone number, Mrs. Stocks informed the appellant
that her husband was a Metro police officer.
Five days after the incident, Mrs. Stocks signed an affidavit of complaint and
a warrant issued charging the appellant with felony reckless endangerment. On
October 29, 1996, the appellant waived his right to be tried by indictment and his
right to a jury trial. The case proceeded to trial in General Sessions Court upon the
misdemeanor charge of reckless endangerment. At trial, the appellant denied
making contact with Mrs. Stocks’ vehicle, denied attempting to harm her, and, in
effect, contradicted almost all of Mrs. Stocks testimony. He did admit, however, that
after “the light changed to green and [her[ car did not move . . . after four five or six
seconds . . . I blew the horn.” At this trial, the appellant was found not guilty of
reckless endangerment but was found guilty of the “amended charge of assault,”
which he appealed to the Criminal Court.1 On March 31, 1997, the appellant’s case
proceeded to trial in the Davidson County Criminal Court. At the conclusion of the
bench trial, the trial court found that the State had failed to prove an assault.
However, the court did find the appellant guilty of disorderly conduct, a class C
misdemeanor.
The controlling question of law is whether disorderly conduct is a lesser
offense of misdemeanor assault. The Sixth Amendment requires that the State
inform the accused “of the nature and cause of the accusation against him.” U.S.
Const. amend VI. Thus, in order to comport with the constitutionally guaranteed
notice requirement, a defendant may only be convicted of an offense which is a
lesser included or lesser grade of the greater offense charged in the indictment.
See State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996); see also Hagner v. United
States, 285 U.S. 427, 430, 52 S.Ct. 417, 418-419 (1932).
1 The reco rd do es no t exp lain th e m ann er in w hich the c harg e wa s am end ed or whe n it was amended.
3 Although the State concedes that disorderly conduct is not a lesser included
offense of assault 2 as defined in Tenn. Code Ann. § 39-13-101(1991), the State
urges this court to adopt a pleadings, or charging instrument, approach for offenses
not charged by indictment. Specifically, the State argues that, since the “degree of
strictness required of a felony indictment is not required of a warrant charging a
misdemeanor,” the affidavit of complaint in the present case contains sufficient
language to encompass the offense of disorderly conduct and, thus, the appellant
was on notice to defend upon the crime for which he was convicted.
In State v. Howard, 578 S.W.2d 83, 86 (Tenn. 1979), Chief Justice Henry
acknowledged, in his dissent, the existence of three approaches for determining
lesser offenses, i.e., (1) the statutory approach, (2) the pleadings, or charging
instrument, approach, and (3) the evidentiary approach.3 “Under the statutory test
the elements of the two offenses, as reflected in the respective statutory provisions,
are considered in the abstract, wholly apart from the facts established by the proof.”
Howard, 578 S.W.2d at 86 (Henry, C.J., dissenting). See also Comments, MODEL
PENAL CODE § 1.07 (1985). In other words, under the statutory approach, in order to
warrant a charge on a lesser included offense, the lesser offense must be included
within the proof necessary to establish the offense charged. However, under a
pleadings, or charging instrument, approach, a lesser offense may be included in
the greater if the language in the charging instrument, i.e., the arrest warrant or the
indictment, sets forth the elements of the lesser offense even though under the
statutory definitions it would be possible to commit the greater offense without
committing the lesser. See Howard, 578 S.W.2d at 86 (Henry, C.J., dissenting);
2 Although the offense charged in the warrant is reckless endangerment, both parties ackn owledg e that this ch arge wa s am ended to misd eme anor as sault.
3 Unde r an evide ntiary appro ach, the p roof, not the contents of the indictment, establish the elem ents of th e lesser included offens e. Howard , 578 S.W .2d at 87 (Henry C.J., dissenting); Com men ts, M ODEL P ENAL C ODE § 1.07. This standard was expressly rejected in Trusty . Moreover, we note that this standard would most likely not survive a “notice” challenge under the Sixth Am endm ent.
4 Comments, MODEL PENAL CODE § 1.07.
The pleadings approach was tacitly rejected by our supreme court in Trusty.
Indeed, the supreme court, implicitly adopting the statutory approach, concluded:
[D]efendants 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. The authorizing statute and rule ensure that each defendant has fair and reasonable notice of the charges and an opportunity to defend against them. It preserves a defendant’s right to an instruction on all lesser offenses necessarily included in the offense charged in the indictment. . . .
Trusty, 919 S.W.2d at 311 (emphasis added). We can find no reason to adopt a
different standard for offenses initiated by warrant from those initiated by indictment.
The constitutional requirement of notice for the accused who is tried upon an arrest
warrant is no different than for the accused who is tried by way of indictment. Thus,
we adhere to the statutory approach in determining whether an offense is a lesser
offense of the charged offense.
After review, we find the appellant's position well-taken. Both parties
concede and we agree that the offense of disorderly conduct is neither a lesser
grade nor a lesser included offense of assault. Compare Tenn. Code Ann. § 39-13-
101 with Tenn. Code Ann. § 39-17-305 (1991). In view of this state's adoption of
the "statutory approach" for determining lesser offenses, we conclude that the
appellant's conviction for disorderly conduct is infirm. The judgment of the trial court
is reversed and the appellant's conviction is dismissed.
5 ____________________________________ DAVID G. HAYES, Judge
CONCUR:
_____________________________________ PAUL G. SUMMERS, Judge
_____________________________________ JERRY L. SMITH, Judge