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
2 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
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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
2 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