IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMBER 1998 SESSION March 11, 1999
Cecil W. Crowson STATE OF TENNESSEE, * C.C.A. No. 01C01-9804-CR-00188 Clerk Appellate Court
Appellee, * WILSON COUNTY
VS. * Honorable J. O. Bond, Judge
LESLIE R. HOLT, * (Felony Reckless Endangerment)
Appellant. *
For Appellant: For Appellee:
Jay Norman John Knox Walkup Attorney for Appellant Attorney General and Reporter 213 Third Avenue, North Nashville, TN 37201 Timothy Behan Assistant Attorney General 425 Fifth Avenue, North Cordell Hull Building, Second Floor Nashville, TN 37243-0493
Robert Hibbett Assistant District Attorney General 119 College Street Lebanon, TN 37087
OPINION FILED:__________________
REVERSED AND REMANDED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Leslie R. Holt, was convicted of felony reckless
endangerment. The jury acquitted the defendant on a related charge of aggravated
assault. The trial court imposed a Range I sentence of two years with supervised
probation after service of thirty days.
In this appeal of right, the defendant presents a single issue for review:
whether the trial court erred by failing to provide the jury with an instruction on
misdemeanor reckless endangerment, a lesser offense of felony reckless
endangerment. We reverse the conviction and remand for a new trial.
The defendant and his ex-wife, Judy Holt, have a son, Colton, who
was four years old in 1996. On October 11 of that year, the defendant's second
wife, Cynthia Bryant, drove to the Holt residence to pick up Colton for visitation over
the weekend. About three hours later, someone from the sheriff's department
telephoned Ms. Holt and asked her to drive there and take custody of Colton. When
Ms. Holt arrived, she saw that Ms. Bryant's car had been scratched and dented
since she last saw the vehicle. Colton was unhurt. Ms. Holt testified that she was
unaware at that point that Ms. Bryant and the defendant had obtained a divorce on
October 9, 1996, two days before the incident.
Cynthia Bryant testified that after she picked up Colton, she drove to
her farm. Upon her return, she discovered the defendant was "in one of his moods.
... acting crazy, bizarre, angry." Ms. Bryant, who decided to take Colton to Lebanon
for dinner, was driving south on Highway 231, when she saw the defendant driving
behind her. Ms. Bryant testified that the defendant struck her car with his vehicle
several times, finally forcing her vehicle into a ditch. The defendant then struck the
2 windows of her car and threatened "to kill you both." Ms. Bryant, fearful for her life,
was able to maneuver her vehicle back onto the highway and drive to the sheriff's
department.
Keith Taylor, a captain with Wilson County Emergency Management,
was driving north on Highway 231 when he saw two vehicles approach from the
opposite direction. He recalled that the driver of one of the vehicles seemed
anxious to pass and was driving very close to the lead car. When the two vehicles
passed by, Captain Taylor saw through his rearview mirror that the car in the rear
had forced the lead car into a ditch. As Captain Taylor turned his vehicle, he
noticed that the driver of the car in the ditch was attempting to return to the highway
and the other driver was striking the car window with his fists.
The defendant testified that on the date of this incident, he drove to
Ms. Bryant's farm, collected his belongings, and waited for her return. He claimed
that when Ms. Bryant arrived with Colton sometime after 7:00 P.M., he and Ms.
Bryant engaged in an argument over the defendant dating another woman. He
contended that Ms. Bryant took Colton and, over his objections, began to drive
away; as she did so, she struck the defendant's parked car. The defendant
maintained that he followed in his vehicle, demanding that she stop and return
Colton to his custody. He asserted that Ms. Bryant veered off the road into a ditch
as he attempted to pass. The defendant admitted that he pounded Ms. Bryant's
window with his fists but denied that he forced her vehicle into the ditch or caused
any of the damage to her vehicle. The defendant claimed that he had contacted the
Wilson County Sheriff's Department shortly after the incident and learned that they
were unaware of Ms. Bryant's whereabouts. It was his contention that when he
went to Metropolitan Police Department in Nashville to make a complaint against
3 Ms. Bryant for taking Colton without his permission, he was informed that he needed
to go to the Wilson County Sheriff's Department to work things out.
The defendant alleges that the trial judge erred by failing to charge the
lesser offense of misdemeanor reckless endangerment. The state asserts there
was no error.
The trial judge, of course, has a duty to give a complete charge of the
law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319
(Tenn. 1986). There is an obligation "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." Tenn. Code Ann. § 40-18-110(a). "Pursuant to our statute, rule, and
case law interpretations, defendants are entitled to jury instructions on all [lesser
offenses], if the evidence would support a conviction for the offense." State v.
Trusty, 919 S.W.2d 305, 311 (Tenn. 1996). Such a charge "allows the jury to
consider all relevant offenses in determining the appropriate offense, if any, for
conviction" and "more evenly balances the rights of the defendant and the
prosecution and serves the interests of justice." Id. It is only when the record is
devoid of evidence to support an inference of guilt of the lesser offense that the trial
court is relieved of the responsibility to charge the lesser crime. State v.
Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d
589, 593 (Tenn. 1990).
In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme
court overruled several prior cases and, by a three to two majority, held that the right
to instructions on lesser offenses is merely a statutory right, rather than one founded
4 in the Tennessee Constitution1 and that, in consequence, the error is subject to a
harmless error analysis:
Reversal is required if the error affirmatively appears to have affected the result of the trial on the merits, or in other words, reversal is required if the error more probably than not affected the judgment to the defendant's prejudice.
(citing Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b)).
Reckless endangerment is defined by our legislature as follows:
Reckless endangerment.--(a) A person commits an offense who recklessly engages in conduct which places or may place another person in imminent danger of death or serious bodily injury. (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.
Tenn. Code Ann.
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 FILED NOVEMBER 1998 SESSION March 11, 1999
Cecil W. Crowson STATE OF TENNESSEE, * C.C.A. No. 01C01-9804-CR-00188 Clerk Appellate Court
Appellee, * WILSON COUNTY
VS. * Honorable J. O. Bond, Judge
LESLIE R. HOLT, * (Felony Reckless Endangerment)
Appellant. *
For Appellant: For Appellee:
Jay Norman John Knox Walkup Attorney for Appellant Attorney General and Reporter 213 Third Avenue, North Nashville, TN 37201 Timothy Behan Assistant Attorney General 425 Fifth Avenue, North Cordell Hull Building, Second Floor Nashville, TN 37243-0493
Robert Hibbett Assistant District Attorney General 119 College Street Lebanon, TN 37087
OPINION FILED:__________________
REVERSED AND REMANDED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Leslie R. Holt, was convicted of felony reckless
endangerment. The jury acquitted the defendant on a related charge of aggravated
assault. The trial court imposed a Range I sentence of two years with supervised
probation after service of thirty days.
In this appeal of right, the defendant presents a single issue for review:
whether the trial court erred by failing to provide the jury with an instruction on
misdemeanor reckless endangerment, a lesser offense of felony reckless
endangerment. We reverse the conviction and remand for a new trial.
The defendant and his ex-wife, Judy Holt, have a son, Colton, who
was four years old in 1996. On October 11 of that year, the defendant's second
wife, Cynthia Bryant, drove to the Holt residence to pick up Colton for visitation over
the weekend. About three hours later, someone from the sheriff's department
telephoned Ms. Holt and asked her to drive there and take custody of Colton. When
Ms. Holt arrived, she saw that Ms. Bryant's car had been scratched and dented
since she last saw the vehicle. Colton was unhurt. Ms. Holt testified that she was
unaware at that point that Ms. Bryant and the defendant had obtained a divorce on
October 9, 1996, two days before the incident.
Cynthia Bryant testified that after she picked up Colton, she drove to
her farm. Upon her return, she discovered the defendant was "in one of his moods.
... acting crazy, bizarre, angry." Ms. Bryant, who decided to take Colton to Lebanon
for dinner, was driving south on Highway 231, when she saw the defendant driving
behind her. Ms. Bryant testified that the defendant struck her car with his vehicle
several times, finally forcing her vehicle into a ditch. The defendant then struck the
2 windows of her car and threatened "to kill you both." Ms. Bryant, fearful for her life,
was able to maneuver her vehicle back onto the highway and drive to the sheriff's
department.
Keith Taylor, a captain with Wilson County Emergency Management,
was driving north on Highway 231 when he saw two vehicles approach from the
opposite direction. He recalled that the driver of one of the vehicles seemed
anxious to pass and was driving very close to the lead car. When the two vehicles
passed by, Captain Taylor saw through his rearview mirror that the car in the rear
had forced the lead car into a ditch. As Captain Taylor turned his vehicle, he
noticed that the driver of the car in the ditch was attempting to return to the highway
and the other driver was striking the car window with his fists.
The defendant testified that on the date of this incident, he drove to
Ms. Bryant's farm, collected his belongings, and waited for her return. He claimed
that when Ms. Bryant arrived with Colton sometime after 7:00 P.M., he and Ms.
Bryant engaged in an argument over the defendant dating another woman. He
contended that Ms. Bryant took Colton and, over his objections, began to drive
away; as she did so, she struck the defendant's parked car. The defendant
maintained that he followed in his vehicle, demanding that she stop and return
Colton to his custody. He asserted that Ms. Bryant veered off the road into a ditch
as he attempted to pass. The defendant admitted that he pounded Ms. Bryant's
window with his fists but denied that he forced her vehicle into the ditch or caused
any of the damage to her vehicle. The defendant claimed that he had contacted the
Wilson County Sheriff's Department shortly after the incident and learned that they
were unaware of Ms. Bryant's whereabouts. It was his contention that when he
went to Metropolitan Police Department in Nashville to make a complaint against
3 Ms. Bryant for taking Colton without his permission, he was informed that he needed
to go to the Wilson County Sheriff's Department to work things out.
The defendant alleges that the trial judge erred by failing to charge the
lesser offense of misdemeanor reckless endangerment. The state asserts there
was no error.
The trial judge, of course, has a duty to give a complete charge of the
law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319
(Tenn. 1986). There is an obligation "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." Tenn. Code Ann. § 40-18-110(a). "Pursuant to our statute, rule, and
case law interpretations, defendants are entitled to jury instructions on all [lesser
offenses], if the evidence would support a conviction for the offense." State v.
Trusty, 919 S.W.2d 305, 311 (Tenn. 1996). Such a charge "allows the jury to
consider all relevant offenses in determining the appropriate offense, if any, for
conviction" and "more evenly balances the rights of the defendant and the
prosecution and serves the interests of justice." Id. It is only when the record is
devoid of evidence to support an inference of guilt of the lesser offense that the trial
court is relieved of the responsibility to charge the lesser crime. State v.
Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d
589, 593 (Tenn. 1990).
In State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998), our supreme
court overruled several prior cases and, by a three to two majority, held that the right
to instructions on lesser offenses is merely a statutory right, rather than one founded
4 in the Tennessee Constitution1 and that, in consequence, the error is subject to a
harmless error analysis:
Reversal is required if the error affirmatively appears to have affected the result of the trial on the merits, or in other words, reversal is required if the error more probably than not affected the judgment to the defendant's prejudice.
(citing Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b)).
Reckless endangerment is defined by our legislature as follows:
Reckless endangerment.--(a) A person commits an offense who recklessly engages in conduct which places or may place another person in imminent danger of death or serious bodily injury. (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.
Tenn. Code Ann. § 39-13-103. The use of a deadly weapon, defined as "[a]nything
that in the manner of its use or intended use is capable of causing death or serious
bodily injury" elevates the misdemeanor offense of reckless endangerment to a
felony. See Tenn. Code Ann. § 39-11-106(5)(b). An automobile is not, under all
circumstances, a deadly weapon; the method of use is the controlling factor and that
must be examined on a case-by-case basis. State v. Scott W. Long, C.C.A. No.
03C01-9301-CR-00032, slip op. at 6-7 (Tenn. Crim. App., at Knoxville, Aug. 19),
app. denied, (Tenn., Nov. 8, 1993); State v. Tate, 912 S.W.2d 785 (Tenn. Crim.
App. 1995).
Misdemeanor reckless endangerment is a lesser grade of felony
reckless endangerment. It is also a lesser included offense. This is not a case in
which the record is devoid of proof of the lesser offense. See State v. Lewis, 978
1 "[T]he jury shall have the right to determine the law and the facts, under the direction of the court, as in other crim inal case s." Tenn . Const. A rt. I § 19. See McG owan v . State, 17 Tenn. 184 (183 6) an d its p roge ny.
5 S.W.2d 558 (Tenn. Crim. App. 1997). Taken in a light most favorable to the
defendant, the evidence would be sufficient to support a conviction for misdemeanor
reckless endangerment. See State v. Elder, 982 S.W.2d 871, 877 (Tenn. Crim.
App. 1998). At trial, the defendant testified that his conduct, reckless at worst,
merely placed Ms. Bryant and his son "in imminent danger of death or serious bodily
injury." He asserted that he never used his vehicle as "a deadly weapon." See
Tenn. Code Ann. § 39-13-103. Under these circumstances, it was the task of the
jury to determine the degree of reckless endangerment. See State v. Brandon
Patrick, C.C.A. No. 03C01-9712-CC-00548 (Tenn. Crim. App., at Knoxville, Feb. 19,
1999) (reversing and remanding where the trial court refused to charge
misdemeanor reckless endangerment). The ultimate question became one of fact
rather than one of law; that is, whether the vehicle was used in such a manner as to
be a deadly weapon. The facts and circumstances must be examined by the jury on
a case-by-case basis. The failure to charge the jury with misdemeanor reckless
endangerment prevented the jury from making this assessment. Because the proof
of the greater offense was not so overwhelming that the jury inevitably would have
chosen the greater offense over the lesser offense if given the choice, the error
appears to have been harmful. Relevant to the quantum of proof is the acquittal by
the jury on the separate count of aggravated assault and the lesser offense of
assault. In this instance, the failure to instruct on a lesser offense which was
legitimately raised by the evidence would not qualify as harmless error, whether the
error is of a constitutional magnitude or not.2
Accordingly, the judgment of the trial court is reversed and remanded
for a new trial.
2 See Williams, 977 S.W .2d 101.
6 _________________________________ Gary R. Wade, Presiding Judge
CONCUR:
________________________________ John H. Peay, Judge
________________________________ Jerry L. Smith, Judge