 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Wilson6/16/2005
the conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint." Id. * 39-11-106(31).
We find that the proof, taken in a light most favorable to the State, supports a finding that Defendant was aware of the risk created by his driving and consciously disregarded it. As the State argues, the chase had been going on for some time when Defendant appropriated Mr. Burr's vehicle. Officer Moyer had pursued Defendant in his patrol car, and then on foot after Defendant abandoned the red car. The police dog had attacked Defendant once and was again holding on to Defendant's arm with his teeth. Officer Moyer testified that Officer MacLeod was standing by the open driver's side door with the police dog. Officer Moyer was standing by the Pontiac's front fender next to a another car parked next to the Pontiac. When Defendant began to drive off, Officer Moyer was pinned between the Pontiac and the parked car. Officer Moyer said he was afraid his legs were going to be crushed. The Pontiac's open car door brushed against Officer Moyer as Defendant drove out of the parking space. Based on our review of the record, we find the evidence sufficient to support Defendant's conviction of reckless endangerment.
III. Lesser Included Offenses
At the conclusion of the proof, the trial court instructed the jury on the offense of unauthorized use of an automobile as the only lesser included offense of the charged offense of carjacking. Relying on State v. Kerry L. Dowell, No. M2002-00630-CCA-R3-CD, 2003 WL 21486978 (Tenn. Crim. App., at Nashville, June 27, 2003) perm. to appeal denied (Tenn. Nov. 24, 2003), Defendant argues that the trial court erred in failing to instruct the jury on the offenses of robbery and theft of property as lesser included offenses of carjacking.
In Dowell, a panel of this Court held without analysis that "both robbery and theft of property are lesser included offenses under both (a) and (b) of the Burns analysis." Dowell, 2003 WL 21486978, at *15. In Burns, our Supreme Court concluded that an offense is a lesser included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it 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. . . .
State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). By definition, then, a specifically defined lesser offense cannot be a lesser offense of a specifically defined greater offense under both part (a) and (b) of the Burns analysis. We observe, however, that offenses containing alternative elements, such as aggravated assault, for example, may have one form of assault qualify as a lesser included offense under part (a), and another form of assault qualify under part (b). Even under this scenario, however, the lesser included offense must fall into either the "(a)" category, or the "(b)" category, but not both.
In count two of the indictment, Defendant was charged with carjacking, which is unlawfully taking a motor vehicle from the possession of another, to wit: Mr. Burr, by force or intimidation. Tenn. Code A
Page 1 2 3 4 5 6 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|