Lindell Hollingsworth v. S & W Pallet
W1998-00857-SC-WCM-CV
Authoring Judge: Adolpho A. Birch, Jr., J.
Trial Court Judge: Julian P. Guinn, Judge
In this workers' compensation action involving the Second Injury Fund, the employee has suffered two disabling heart attacks. The first was non-compensable; the trial court found the second compensable and awarded permanent and total disability benefits, with 4 percent of the disability allocated to the second heart attack. The court held that the Second Injury Fund would have been responsible for the remaining 6 percent of benefits, but the statute of limitations barred recovery against the Fund. The Special Workers' Compensation Appeals Panel affirmed the trial court's award of permanent total disability but held the employer liable for 1 percent of the benefit award. We granted a motion for review before the entire Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(5)(B) (1997). Primarily, we are asked to determine whether an employer's allegations of a pre-existing condition covered by the Second Injury Fund statute should be treated as an affirmative defense that is waived if not timely raised. We hold that the employer is not barred from attributing liability to the Fund after the running of the statute of limitations. Additionally, the employee asserts that the trial court erred in attributing 4 percent disability, rather than 1 percent, to the second heart attack. We hold that the evidence supports a finding that the second injury resulted in 4 percent disability. In regard to all remaining issues, we adopt the memorandum opinion of the Special Workers' Compensation Appeals Panel affirming the award of permanent total disability and remanding the cause for determination of temporary total disability.

State of Tennessee v. William David Marks
M2001-01497-CCA-R9-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant brings this interlocutory appeal in which he challenges the prosecutor's denial of pretrial diversion for simple assault and the trial court's denial of his certiorari petition. We conclude the prosecutor properly considered the need for deterrence for domestic violence, the defendant's lack of remorse and failure to take responsibility for his actions, and the seriousness of the offense and its impact upon the victim. However, we conclude the prosecutor wrongfully considered certain factors relating to domestic violence cases that have no application to the circumstances of this case, and wrongfully considered the defendant's depression for which he takes prescription medication. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration in accordance with this opinion.

Brendi Kaplan v. John A. Bugalla
M2003-01012-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Donald P. Harris
This case involves a petition to modify child support. By court approved Marital Dissolution Agreement executed May 10, 2002, child support payable by the father was set at $4,000 per month. At the time of the agreement and divorce decree father was earning in excess of $20,000 per month. The parties did not appeal the May 10, 2002 judgment, but on September 4, 2002 the mother filed a petition to increase child support in order to accommodate attendance of the two children to private school. The trial judge denied the petition. We affirm the action of the trial court.

Robert L. Freeman v. State of Tennessee
M2000-00904-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Jane W. Wheatcraft

The petitioner originally pled guilty pursuant to a negotiated plea agreement to one count of aggravated assault for an agreed eight-year sentence as a Range II multiple offender. He timely sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends his trial counsel was ineffective, and his guilty plea was involuntary. We affirm.

Alberta Dodson v. James Dodson
M2000-01682-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
The trial court awarded a divorce to the parties, and ordered the husband to pay $1,000 per month as alimony in futuro. In light of the needs of the wife, and of the husband's ability to pay, we increase the alimony award to $1,500 per month.

Ricardo Maxwell v. State of Tennessee
W2000-02011-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joe C. Morris

A Madison County jury convicted the petitioner and his co-defendants of felony murder, conspiracy to commit especially aggravated burglary, especially aggravated burglary, and theft over five hundred dollars. See State v. Montez Antuan Adams, No. 02C01-9709-CC-00352, 1998 WL 556174, at *1 (Tenn. Crim. App. at Jackson, Sept. 1, 1998). For these offenses the petitioner effectively received a life sentence. Id. On appeal this Court reduced the especially aggravated burglary to aggravated burglary and announced the corresponding sentence for this offense with respect to the petitioner and each of his co-defendants; however, the remainder of the convictions were affirmed, and the effective sentence remained the same. Id. at *1, *9. Subsequently, the petitioner filed a pro se post-conviction petition and received appointed counsel thereon. At the evidentiary hearing on this petition, the petitioner unsuccessfully pursued an ineffective assistance of counsel claim. Through this appeal he continues to aver that he received ineffective assistance because counsel did not fully discuss potential trial tactics and strategies with him, thereby depriving him of the opportunity to aid in his defense. After considering this matter, we determine that the petitioner has failed to prove that this claim merits relief. As such, we affirm the trial court's dismissal of the petitioner's post-conviction petition.

State of Tennessee v. Kenneth Javon Bills
W2001-00396-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jon Kerry Blackwood

The Defendant, Kenneth Javon Bills, was convicted by a jury of attempted second degree murder and aggravated assault. He was sentenced as a Range I standard offender to ten years for the attempted murder and four years for the aggravated assault, to be served concurrently in the Department of Correction. In this direct appeal, the Defendant raises the following issues: (1) whether the evidence is sufficient to sustain his convictions; (2) whether double jeopardy principles require dismissal of his aggravated assault conviction; (3) whether the trial court erred by admitting certain rap lyrics authored by the Defendant; and (4) whether his sentence is excessive. Finding that double jeopardy principles prohibit the Defendant's dual convictions, we reverse and dismiss the Defendant's conviction for aggravated assault. In all other respects, we affirm the trial court's judgment.

Michele Beeler v. Southeast Service Corporation d/b/a
2001-02527-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Wheeler A. Rosenbalm, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had failed to show by a preponderance of the evidence that she had suffered carpal tunnel syndrome as a result of her work for the defendant. The plaintiff, in two issues, basically claims the trial judge erred by finding the plaintiff had failed to carry the burden of showing she was entitled to recover for a work related injury. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J., and HOWELL N. PEOPLES, SP. J., joined. James C. Cone, Knoxville, Tennessee, for the appellant, Michele Beeler. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, Southeast Service Corporation d/b/a SSC Service Solutions and CNA Insurance Company. MEMORANDUM OPINION Facts At the time of trial, the plaintiff was 39 years of age, married and the mother of two children. She had a high school education. The parties agree that the plaintiff has carpal tunnel syndrome but do not agree on its cause. Medical Dr. C. Stanford Carlson Jr. treated the plaintiff for the carpel tunnel syndrome. He testified in a deposition that first she had carpel tunnel syndrome in the left hand with borderline findings of carpel tunnel syndrome in the right hand. The history according to Dr. Carlson given by the plaintiff was that her work duties with the defendant required her to do intensive computer work with fine manipulation of the hands all day long. He understood she used both hands eight hours a day to do the work. Based upon this, Dr. Carlson was of the opinion the carpel tunnel syndrome was caused by the work. When it became clear that the plaintiff did not use the computer all day long and that she seldom used her left hand in the work, a second deposition of Dr. Carlson was taken. When asked in the second deposition whether the correct history, which showed the plaintiff did not use her left hand for data entry, would affect his previous diagnosis of a work related carpel tunnel syndrome, Dr. Carlson replied that would be "problematic." Further exchange between counsel and Dr. Carlson produced the following question and answer: Q. And Doctor, your opinions that the plaintiff has bilateral carpal tunnel is related to her - that her bilateral carpal tunnel is related to her employment with Southeast Services is based on the truth and accuracy of the history that she provided you. A. Correct. ... There's no question but that carpal tunnel syndrome or any orthopedic condition that is produced by use is dependent upon the accuracy of the history and a determination about where the bulk of the use - hand use and the aggravation is produced. Dr. Carlson further testified that there are a variety of activities that can cause carpel tunnel syndrome and rated the use of a key board as being low on the causation list. Discussion The resolution of the case lies upon the testimony of two key witnesses - the plaintiff and Dr. Carlson. Dr. Carlson clearly testified his original determination of the cause of the plaintiff's carpel tunnel syndrome was caused by the plaintiff's work as outlined on the history given to him by the plaintiff. The plaintiff's testimony showed the history given to Dr. Carlson was not accurate. When Dr. Carlson was made aware of the inaccuracy, he testified that whether the carpel tunnel syndrome was caused by the work was problematic, and further testified that the work the plaintiff did is low -2-

State of Tennessee v. Cory James Martin
E2001-00914-CCA-R9-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Cory James Martin, was indicted for two counts of rape of a child and three counts of especially aggravated sexual exploitation of a minor. After granting a motion to suppress two incriminating statements made by the defendant prior to his arrest, the trial court permitted the state an application for permission to appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. In this interlocutory appeal, the state asserts that the trial court erred by granting the motion to suppress. Because the defendant was not in custody at the time of the statements and Miranda warnings were not required, the judgment of the trial court is reversed and the cause is remanded for trial.

State of Tennessee v. Shanta LaVett McKinney
W2001-01832-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph H. Walker, III

The Defendant, Shanta Lavett McKinney, pled guilty to one count of automobile burglary; one count of theft over $1000; one count of misdemeanor assault; and one count of theft under $500. He was sentenced as a Range I standard offender to one year, six months for the auto burglary; three years for the theft over $1000; eleven months, twenty-nine days for the assault; and eleven months, twenty-nine days for the theft under $500, all sentences running concurrently. Under separate indictment, the Defendant pled guilty to four counts of aggravated burglary; one count of theft between $500 and $1000; and three counts of theft under $500. He was sentenced as a Range I standard offender to five years for each of the burglaries; one year six months for the theft over $500; and eleven months, twenty-nine days for each of the thefts under $500. These sentences were ordered to run concurrently with each other, but consecutively to the previously mentioned sentences, for an effective sentence of eight years in the Department of Correction. In this direct appeal the Defendant challenges both the length of his felony sentences and the trial court's denial of an alternative sentence. We affirm the judgment of the trial court.

John Wayne Slate, Sr. v. State of Tennessee
E2001-01906-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James B. Scott, Jr.

The Defendant, John Wayne Slate, Sr., appeals the trial court's summary dismissal of his second petition for post-conviction relief. The Defendant contends the trial court improperly dismissed his petition for post-conviction relief without an evidentiary hearing. We affirm the trial court's dismissal of the petition.

William T. Tarpley, v. Ron Searcy, et al.
M2000-03094-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Marietta M. Shipley

The Circuit Court of Davidson County affirmed an arbitrator's award despite the opponent's claim of the arbitrator's bias and of erroneous calculations. We affirm.

State of Tennessee v. Jared Anthony Breaux
M2001-01993-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Frank G. Clement, Jr.

The defendant, who had three convictions for DUI, was incarcerated after the suspended portion of his most recent DUI sentence had been revoked because of a fourth arrest for DUI and his failure to report the new arrest to his probation officer. The following month, the defendant was released on a four-day furlough to attend his grandmother's funeral in Louisiana, and, apparently because of the late hour when the release occurred, the conditions of his release were not explained. Two hours later, the defendant was seen by a jail deputy at a nearby Hooter's Restaurant, as he drank a beer with his brothers, whom he had met there for the journey to Louisiana. Following a hearing, he was held in contempt of court for consuming an alcoholic beverage while on furlough and sentenced to ten days confinement to be served consecutively to the sentence for which he then was incarcerated. He timely appealed that ruling, arguing that since the conditions of the furlough had not been explained to him, the evidence was insufficient for the finding that he was in contempt of court. Upon our review, we affirm the trial court.

State of Tennessee v. Timothy J. King
M2001-01880-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Buddy D. Perry

The defendant was indicted for second degree murder, convicted by a jury of the lesser-included offense of voluntary manslaughter, and subsequently sentenced to a term of six years. In this appeal, the defendant contends: (1) the evidence was insufficient to support his conviction; (2) the state improperly cross-examined him concerning his use of illegal drugs; (3) the district attorney committed prosecutorial misconduct in closing argument; (4) the trial court improperly instructed the jury concerning the weight to be given the defendant's testimony; and (5) the defendant's sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court in all respects.

Faye R. Taylor v. Andrew R. Dyer, et al.
M2001-00967-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Carol L. Soloman

In a non-jury trial, the Circuit Court of Davidson County awarded $10,920 to a plaintiff injured in a rear-end collision. The defendants assert on appeal that the court erred in allowing the plaintiff to supplement her trial proof with her doctor's statement that his charges were reasonable and necessary. In addition, the defendants assert that most of the medical expenses included in the plaintiff's award were not caused by the accident. We affirm the judgment of the trial court.

State of Tennessee v. James Henderson Dellinger and Gary Wayne Sutton
E1997-00196-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge D. Kelly Thomas, Jr.

James Henderson Dellinger and Gary Wayne Sutton were convicted of first degree premeditated murder in the death of Tommy Mayford Griffin. Dellinger and Sutton were both sentenced to death, and the Court of Criminal Appeals affirmed their convictions and sentences. We entered an order designating the following issues for oral argument:1 1) whether the indictments violate the United States Constitution as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000); 2) whether the trial court erred in refusing to grant the defendants a severance or to grant separate juries for each defendant; 3) whether the trial court erred in dismissing the jury selection expert previously granted the defendants; 4) whether the trial court erred in refusing to suppress evidence seized from Dellinger’s residence under a search warrant; 5) whether the evidence supports the jury’s finding of aggravating circumstance (i)(2); 6) whether the trial court erred in failing to instruct the jury at sentencing that the identity of the defendants in prior convictions must be proven beyond a reasonable doubt; 7) whether the trial court erred in refusing to charge the jury as a mitigating factor that the defendants are human beings; 8) whether the trial court erred in refusing to answer the jury’s question about the manner of serving life sentences; and 9) whether the sentences of death are excessive or disproportionate under Tenn. Code Ann. § 39-13-206(c)(1)(D). Having carefully reviewed these issues and the remainder of the issues raised by Dellinger and Sutton, we find no merit to their arguments.2 Accordingly, we affirm the Court of Criminal Appeals in all respects.

Lisa Sills v. Humboldt Nursing Home, Inc.
W2000-03034-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
The appellant presents the following issues for review: (1) Whether the evidence preponderates against the trial court's finding that the plaintiff sustained a work related injury that resulted in a permanent disability to the plaintiff, and (2) Whether the evidence preponderates against the trial court's award of benefits to the plaintiff based on a percentage of the body as a whole rather than to a scheduled member.

Wilma Adkins v. Modine Manufacturing
E2001-01237-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: James B. Scott, Jr., Circuit Judge
The trial court awarded the employee 75 percent permanent partial disability to each arm. The employer has appealed and insists the award is excessive and should have been fixed to the body as a whole. The judgment is affirmed.

Melissa Suzanne Dew v. Pro-Temp
E2001-01165-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Robert M. Summit, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 2 percent permanent partial disability to her right hand. The employee appeals insisting the court had used the multiplier statute in computing the award and that the statute does not apply to scheduled member injuries. The judgment is modified to award the employee 4 percent to the right hand. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified and Affirmed. THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. Roger E. Ridenour, of Clinton, Tennessee, for Appellant, Melissa Suzanne Dew. B. Chadwell Rickman, of Knoxville, Tennessee, for Appellee, Pro-Temp. MEMORANDUM OPINION The trial court awarded the employee, Melissa Suzanne Dew, 2 percent permanent partial disability to her right hand. The employee has appealed insisting the court had restricted her recovery to two and one-half times the 8 percent medical impairment and that the multiplier statute does not apply to scheduled member cases. Facts The employee is a high school graduate and was 26 years of age at the time of the trial. After high school, she had some vocational training in office technology and data processing. She was employed by defendant, Pro-Temp, and was working on the assembly-line at Eagle Bend Manufacturing Company, Inc., on February 5, 1998, when she was injured. The work in progress involved the manufacture of automobile trunk hinges. She testified that the machine had jammed and while working with it, the machine "pinched her." At the time she was wearing gloves but her right index finger was cut and later began to swell. She went to the emergency room and was released to see a regular physician who eventually referred her to an orthopedic surgeon. Dr. John M. Ambrosia, an orthopedic surgeon, testified by deposition and stated he prescribed therapy treatments initially but then recommended surgery since she had not made a lot of progress. Surgery was performed on June 12, 1998, and resulted in freeing up the scar tissue around the extensor tendon and the joint of the finger. After surgery, therapy was resumed and he released her to return to work without any restrictions. The doctor stated she would have a 42 percent impairment to her right finger. The employee was also seen and examined by Dr. Geron Brown, an orthopedic surgeon, for an independent medical examination. He testified by deposition and said she had sustained a crushing injury with laceration and that the fracture of her finger had healed; that she was right hand dominant and the medical impairment would be 42 percent to the finger and 8 percent to the hand. When he was asked about returning to work with restrictions, he replied that because of the limited motion of the hand, there would be activities that she would either have difficulty with or simply could not do. He did not place permanent restrictions because when he saw her she was working at another job although the functional capacity evaluation recommended she should work at a level less than medium work. In describing the present condition of her injury, the employee testified she could not straighten out her finger; that it stayed cold most of the time; that she had problems in gripping things with her hand and that when she used her hand a lot, she would have pain down the center of the palm of her hand. She testified the strength of her hand was not near what it used to be. With regard to the pain down the center of the palm of her hand, she said she had been told this was because of the tendon on the front side of her finger. In rendering a decision, the trial judge originally awarded the employee 42 percent disability to the right hand. Upon defense counsel inquiring if he had made a mistake in the 42 percent award since this exact percent was given to the finger only, the court retracted the award and asked if the multiplier statute applied. When advised it had no application to a scheduled member injury, the court announced the award would be fixed at 2 percent to the right hand. After entry of the judgment, the employee filed a motion for new trial insisting the recovery had been reached by using the multiplier of two and one-half times the 8 percent medical impairment. The court stated his decision was not reached by that computation and that he had considered the usual factors in assessing the evidence and fixing the 2 percent disability to the hand. -2-

Ronald Haywood v. Ormet Aluminum Mill Products
W2001-01494-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the Employer/Defendant asks: (1) Whether the limitations in Tenn. Code Ann. _ 5-6-241(a)(1) apply?; and (2) whether the evidence supports an award of fifty-six percent (56%) to the body as a whole? As discussed below, the Panel concludes the trial court's judgment is affirmed.

State of Tennessee v. Ben Mills
W1999-01175-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge John P. Colton, Jr.

The defendant, Ben Mills, was convicted of one count of first degree premeditated murder, one count of felony murder, one count of aggravated robbery and two counts of attempted first degree murder. The trial court merged the murder convictions and imposed a sentence of life imprisonment. For the remaining convictions, the trial court imposed sentences as follows: eight years as a standard, Range I offender for aggravated robbery to be served concurrently with the life sentence, and 15 years as a standard, Range I offender for each attempted first degree murder conviction to be served concurrently to each other but consecutively to the sentences for first degree murder and aggravated robbery. The effective sentence, therefore, is life plus 15 years. In this appeal as of right, the defendant contends (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by failing to instruct the jury regarding all of the lesser included offenses of felony murder; and (3) that the trial court erred by failing to instruct the jury on intoxication. The judgments of the trial court are affirmed. The judgment for first degree murder is modified to reflect that the conviction for felony murder is merged into the conviction for premeditated first degree murder.

State of Tennessee v. Jessie Nelson Hodges
W2001-00871-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph H. Walker, III

A Lauderdale County Grand Jury indicted the defendant for robbery, and following a trial, a Lauderdale County jury convicted the defendant of the offense charged. In this direct appeal, the defendant presents the following issues for our review: (1) whether sufficient evidence was presented at trial to support his conviction; (2) whether evidence introduced at trial was illegally obtained in contravention of the defendant's Fourth Amendment rights; (3) whether the defendant was deprived of an "independent analysis of the evidence"; and (4) whether the trial court improperly instructed the jury. Finding no error in the record, we affirm the defendant's conviction.

Hannah Robinson v. Charles C. Brewer, et al.
W2001-01745-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Roger A. Page

This is an automobile collision personal injury case. Plaintiff-motorist was stopped in a thru-traffic lane over the crest of a hill behind a vehicle attempting to make a left turn off of the highway. The defendant-motorist came over the crest of the hill and struck the plaintiff-motorist in the rear, causing injuries to the plaintiff. Judgment was entered on a jury verdict for the defendant that the defendant was not at fault in the accident. Plaintiff appeals. We affirm.

State of Tennessee v. Damond Lavonzell Macon and Kenneth Ray Woods
W2001-02706-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Donald H. Allen
The defendants, Damond Lavonzell Macon and Kenneth Ray Woods, entered pleas of guilt to possession of marijuana and possession of drug paraphernalia. Pursuant to a plea agreement, the defendant Macon received concurrent sentences of 11 months and 29 days on each count, suspended after six months; the defendant Woods received concurrent sentences of 11 months and 29 days, all of which was to be served on unsupervised probation. The charge against Woods for disobeying a stop sign was dismissed as part of the plea agreement. The defendants reserved for appeal the question of whether the stop was based upon a reasonable suspicion supported by specific and articulable facts. See Tenn. R. Crim. P. 37. The judgments are affirmed.

State of Tennessee v. Ralph Dewayne Moore
E1999-02743-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge E. Eugene Eblen

Ralph Dewayne Moore was indicted and tried on one count of disorderly conduct and two counts of aggravated assault. The jury was instructed that misdemeanor assault and felony reckless endangerment were lesser-included offenses of aggravated assault. Moore was subsequently convicted of disorderly conduct, one count of misdemeanor assault, and one count of felony reckless endangerment. The conviction was affirmed by the Court of Criminal Appeals. On appeal to this Court, Moore contends that: (1) felony reckless endangerment is not a lesser-included offense of aggravated assault; and (2) the evidence presented at trial is insufficient to support the conviction for felony reckless endangerment. We conclude that the offense of felony reckless endangerment is not included within the offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon; thus, we hold that the jury was improperly instructed. As a result of our holding, we find it unnecessary to address Moore's second contention. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court.