 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Combs9/25/2002
confinement, and not as the result of any specific intent on the part of the accused to harm or injure the victim. Id.
Neither is part (b) of the Burns test satisfied. Part (b) states that a lesser-included offense may be found in cases where the offense "fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the same person, property or public interest." Burns, 6 S.W.3d at 467. Both offenses involve serious bodily injury , the essential difference being whether especially aggravated kidnapping associates a mental state with causation of the injury. Because we find that the mental state required to intentionally, knowingly, or recklessly cause a victim's serious bodily injury cannot be considered a lesser kind of culpability or harm than that required in an offense where serious bodily injury merely results, part (b) is not satisfied. Clearly, part (c) is also not satisfied since the lesser offense does not involve facilitation, attempt, or solicitation of either the charged offense or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
Our research reveals that the issue whether the crime of assault is a lesser-included offense of especially aggravated kidnapping was raised in State v. Legg, 9 S.W.3d 111 (Tenn. 1999), but decided on other grounds. Id. at 118. The supreme court made the following observation during its consideration of the two offenses: "Unlike aggravated kidnapping, the elements of the crime of assault do not contemplate a continuing course of conduct . . . . Rather, the crime itself contemplates that it is consummated or completed the moment bodily injury occurs." Id. This suggests that even the nature of the crimes are quite dissimilar. In any event, because we find that the assault offense requires proof of some intent to cause injury, while the kidnapping charge requires confinement where injury results, but which need not even be caused by either Defendant, the Burns test for lesser-included offense status is not satisfied in this case. Thus, the trial court did not err by failing to instruct the jury on the offense of aggravated assault.
Defendant Joseph Combs singularly contends that the trial court also erred by not giving the jury instructions on "involuntary servitude," as a lesser-included offense of especially aggravated kidnapping. "Involuntary servitude" is defined as "the condition of a person who is compelled by force, coercion or imprisonment and against the person's will to labor for another, whether paid or not." See Tenn. Code Ann. § 39-13-301(1) (1997). Involuntary servitude is not a distinct offense, but one of two elements describing a condition of confinement which must be proved to convict a person of kidnapping. See id. § 39-13-303(a)(2) (1997). This argument has no merit.
B. Aggravated Assault
Count 2 of the presentment in this case charged Defendant Joseph Combs with aggravated assault, i.e., intentionally and knowingly causing bodily injury to Esther Combs by the display of a deadly weapon, Tenn. Code Ann. § 39-13-102 (a)(1)(B). The jury was instructed on intentional/knowing aggravated assault, the crime charged, and reckless aggravated assault as a lesser-included offense. Defendant contends that the trial court committed reversible error by failing to also charge the jury on the offenses of reckless endangerment and assault, as additional lesser-included offenses of aggravated assault. We disagree.
"Reckless endangerment" is committed when the defendant "recklessly enga
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|