State v. Hester ( 2000 )

FILED
March 22, 2000
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE,
Cecil Crowson, Jr.
Appellate Court Clerk
AT KNOXVILLE
STATE OF TENNESSEE,
Appellee,
V. CCA No. 03C01-9704-CR-00144
HARVEY PHILLIP HESTER,
Appellant.
CONCURRING OPINION
I concur in Judge Wade’s articulate opinion. However, this
resolution of the lesser-included offense issue is at odds with the opinion of a
panel of this court in State v. David Michael Gamble, No. 03C01-9812-CR-00442
(Tenn. Crim. App., Knoxville, Jan. 21, 2000), and I write separately in order to
address the conflict in the two opinions.
In David Michael Gamble, the defendant was charged with theft via
an indictment which alleged,
[theft of] a 1990 Freightline tractor, trailer and sixty-five (65) assorted
pieces of La-Z-Boy furniture, valued at over $60,000, belonging to
Volunteer Trucking without the owner’s effective consent and with the
intent to deprive the owner of said property, in violation of Tennessee
Code Annotated [section] 39-14-103, against the peace and dignity of the
State.
Id., slip op. at 8. The evidence showed that Gamble “picked up the loaded truck
and trailer as expected, but then spent the next two and a half to three days in
Chattanooga instead of delivering the load to Kentucky and Ohio as obligated.”
Id. This court ruled that, although the state proved that Gamble exercised
control over the truck and its contents without the owner’s effective consent, the
evidence was insufficient to show that Gamble intended to deprive the owner of
the property. Id., slip op. at 9. Even though the court vacated the theft
conviction, it imposed a conviction for unauthorized use of a vehicle, commonly
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known as joyriding. See Tenn. Code Ann. § 39-14-106 (1997); id., slip op. at 14.
In reaching this conclusion, the court concluded that the offense of unauthorized
use of a vehicle is a lesser-included offense of theft. Id., slip op. at 13.
The David Michael Gamble court reached this conclusion despite
its determination that, “because the unauthorized use of a vehicle statute
contains the additional element of the taking of a vehicle, as opposed to just the
taking of any property, it does not satisfy part (a) of the Burns test, which
requires that all of the statutory elements of the lesser offense be included within
the statutory elements of the greater.” Id., slip op. at 12-13 (italicized emphasis
added, other emphases in original). The court reasoned that if a person
exercised control over “something other than a vehicle, the person might be
guilty of theft, but could never be guilty of unauthorized use of a vehicle.”
Rather, the court based its lesser-included offense finding on part
(b) of Burns. In so doing, it utilized both components of part (b): “(1) a different
mental state indicating a lesser kind of culpability; and[] (2) a less serious harm
or risk of harm to the same person, property or public interest.” See David
Michael Gamble, slip op. at 13; State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.
1999). The court said that the lesser offense met the test of part (b)(1) because
the unauthorized user of a vehicle “need not have the intent to deprive the owner
of the vehicle.” David Michael Gamble, slip op. at 13. The lesser offense met
the test of part (b)(2) because, without the intent to deprive the owner of the
vehicle, there is “less serious harm or risk of harm to the owner and the
property.” Id.
In the present case, the relationship of the greater offense to the
proposed lesser offense is analogous to the relationship of the greater and
lesser offenses in David Michael Gamble. In both cases, the field of activity
proscribed by the greater offense is broader than that of the lesser. Theft
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proscribes the stealing of any kind of property, but “joyriding” may only be
committed through the taking or unauthorized use of a vehicle; the murder
statutes proscribe the unlawful killing of another through any means whatsoever,
but vehicular homicide is committed only when the instrumentality of the killing is
a vehicle.
If it is accurate to say, as Judge Welles in David Michael Gamble
and Judge Wade in the present case have said, that Burns’s part (a) is not
serviceable in these cases because the lesser offense requires an element that
is not included among the elements of the greater offense, then this
determination should have dictated a different part (b) result in David Michael
Gamble. Part (b) of Burns requires that in order to be a lesser-included offense,
an offense must “fail[] to meet the definition in part (a) only in the respect that
contains a statutory element or elements establishing” the different mental state
indicating a lesser culpability or a less serious harm or risk of harm. Burns, 6
S.W.3d at 466-67 (emphasis added). The David Michael Gamble rationale for
utilizing the part (b) analysis to establish the lesser-included offense ignores the
presence of the extra element of the taking of a vehicle which defeated the use
of part (a). Although it is true that joyriding has a “different mental state
indicating a lesser kind of culpability,” it is not true that the lesser offense of
joyriding fails to meet the subset test of Burns’s part (a) “only in the respect that it
contains a statutory element or elements establishing [the different mental
state.]” See id. (emphasis added). The requirement in the joyriding statute that
the object of the offense must be a vehicle is not contained as an element in
theft and, in and of itself, has nothing to do with the offender’s mental state.
Likewise, although it is true that joyriding implicates a “less serious harm or risk
of harm to the same person . . . [or] property” than does the greater offense of
theft, it is not true that the lesser offense fails to meet the part (a) test “only in the
respect” that it contains an element establishing a less serious harm or risk of
harm. Again, the extra element, in and of itself, has nothing to do with the
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increased harm. Burns’s part (b) requires the extra element of the lesser offense
to be operative in establishing a lesser mental state or lesser harm or risk of
harm.
I recognize that at least one basis for harmonizing David Michael
Gamble and the present case exists but has not been explored in either opinion.
In cases in which the proscribed conduct of the lesser offense is more specific
than that of the greater offense, as is true with the object of the crime in David
Michael Gamble and the instrumentality of the crime in the present case, one
might argue that the greater specificity contained in the lesser offense is not a
different element at all, but rather a category of the broader field which is singled
out for proscription via lessened culpability or risk elements. Viewed in that light,
when the lesser offense’s decreased culpability through a different mental state
or its decreased harm or risk of harm would supply the only incongruity of
elements, part (b) would be applicable. However, as Judge Wade points out in
the present case in which the indictment did not state the type of instrumentality
used to kill the victims, courts must take account of the “defendant’s
constitutional right to be given notice of the offense or offenses charged.” See
State v. Dominy, 6 S.W.3d 472, 476 (Tenn. 1999). It may well be that an
indictment which does not allege the specific object or instrumentality of the
crime does not provide the defendant with the constitutionally-mandated notice
of the lesser offense. On that score, David Michael Gamble is distinguishable
because the indictment in that case specified that the object of the charged theft
was a vehicle.
At this juncture, we must be mindful of the of dictate of Howard v.
State, 578 S.W.2d 83 (Tenn. 1979), which is the basis of Burns’s part (a), that
the lesser-included offense is established when its elements are necessarily
included in the greater offense “as those elements are set forth in the
indictment.” Howard, 578 S.W.2d at 85 (emphasis added). See Burns, 6
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S.W.3d at 467 (part (a) is consistent with Howard). When we view the
“elements” as set forth in the David Michael Gamble indictment, they at least
give notice that the crime of unauthorized use of a vehicle is possibly alleged in
the indictment, making the case distinguishable from the present case, in which
there is no allegation in the indictment that a vehicle was the instrumentality of
the crime.
The question remains whether this technique of specifying the
object or instrumentality of the crime should be utilized by our courts to establish
a lesser-included offense. I see the utility in looking to the elements as set forth
in the indictment for the purpose of narrowing the greatest offense being
charged. For instance, when an indictment alleges especially aggravated
kidnapping, see Tenn. Code Ann. § 39-13-305 (1997), it is useful to know if the
basis of the prosecution is, for instance, Code section 39-13-305(a)(3), that the
crime was “committed to hold the victim for ransom or reward, or as a shield or
hostage.” This designation informs the analysis of whether kidnapping and
aggravated kidnapping are lesser-included offenses. See Tenn. Code Ann. §§
39-13-303, 304 (1997). However, the use of factual specifications in the
indictment to expansively create lesser included offenses may be fraught with
chaos and confusion, depending upon the creativity or prolixity of the prosecutor
drawing the charging instrument. In my view, the trial and appellate benches are
perplexed about lesser-included offenses, and if an approach which expands
and defies structure in the analysis of lesser-included offense issues causes
more confusion and difficulty of application, its merits are doubtful.
In Burns, the supreme court attempted to clarify the problem
through fashioning a rule for determining lesser-included offenses which would
be simple to apply, especially if the part (a) subset analysis is used rather
narrowly and literally, as it has been used in the present case. In cases in which
the field of proscribed activity is broader in a greater offense than that proscribed
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in a proposed lesser-included offense, our supreme court must ultimately decide
the approach to be used. On the basis of simplicity of application and
predictability of result, I favor the approach used in the present case and concur
in Judge Wade’s analysis.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
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