IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 2004 Session
STATE v. WILMORE HATFIELD
Appeal by permission from the Court of Criminal Appeals
Criminal Court for Fentress County
No. 7750 Hon. Eric Shayne Sexton, Judge
No. M2002-00939-SC-R11-CD - Filed March 11, 2004
This is an appeal from the Criminal Court for Fentress County which convicted the
defendant, Wilmore Hatfield, of felony reckless endangerment as a lesser-included offense of
aggravated assault. Relying on this Court’s decision in State v. Moore, 77 S.W.3d 132 (Tenn. 2002),
the Court of Criminal Appeals reversed the conviction, concluding that felony reckless endangerment
was not a lesser-included offense of aggravated assault. The State then sought, and this Court
granted, permission to appeal on the sole issue of whether felony reckless endangerment is a lesser-
included offense of aggravated assault committed by intentionally or knowingly causing bodily
injury to another by the use of a deadly weapon. We hold that it is a lesser-included offense under
State v. Burns, 6 S.W.3d 453 (Tenn. 1999). Consequently, the Court of Criminal Appeals’ decision
with respect to the felony reckless endangerment conviction is reversed, and that conviction is
reinstated.
Tenn. R. App. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Reversed in Part; Judgment of Trial Court Reinstated
WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON , ADOLPHO A. BIRCH , Jr., and JANICE M. HOLDER , JJ. joined.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth B.
Marney, Assistant Attorney General, for the appellant, State of Tennessee.
Onnie Winebarger, Byrdstown, Tennessee, for the appellee, Wilmore Hatfield.
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OPINION
BACKGROUND
On February 9, 1999, the defendant, Wilmore Hatfield, after receiving his income tax refund,
purchased two six-packs of beer. He then drove to Obe Delk’s meat-packaging business just before
dark. As the defendant arrived on the premises, Tracey Kerney, the victim, came outside, and a
heated argument between the two ensued. Ms. Kerney entered the defendant’s car and began to beat
his head against the car window. The defendant testified that Ms. Kerney hit him in the head with
a pistol and that during the altercation, the weapon fell onto the floor of the defendant’s vehicle. Ms.
Kerney denied having a gun that night. Ms. Kerney explained that she was intoxicated and assaulted
the defendant because he had recently beaten up the son of her boyfriend. Shortly after the
altercation began, the defendant drove away.
The defendant testified that he returned about thirty minutes later after discovering that
approximately $332.00 of his income tax refund and some tax papers had fallen out of his pocket
during the altercation with Ms. Kerney. Upon his return, Ms. Kerney again exited the business. A
shot was fired by the defendant, and the bullet struck Ms. Kerney in the left foot. Obe Delk, the
owner of the business, testified that the defendant had cocked the gun and fired at the victim saying
“Run, bitch! Run!” The defendant denied making such a statement and claimed that he was trying
to unload the gun when his thumb slipped off the hammer and it went off. The defendant drove
away after the weapon was fired.
State Trooper Kevin Norris stopped the defendant’s vehicle shortly thereafter. Norris
testified that he smelled alcohol on the defendant’s breath and that upon searching the vehicle, he
found a .32 caliber pistol and part of two six-packs of beer. About forty-five minutes after being
stopped, the defendant was taken to a hospital where a blood sample was taken; his blood alcohol
content was found to be 0.11 percent.
A Fentress County grand jury returned a four-count indictment charging the defendant with
attempted first degree murder, aggravated assault, felony possession of a weapon, and DUI. At the
conclusion of the trial, the trial court charged the jury on attempted first degree murder, second
degree murder as a lesser-included offense of attempted first degree murder, aggravated assault,
reckless aggravated assault and felony reckless endangerment as lesser-included offenses of
aggravated assault, and DUI. The defendant was found guilty of felony reckless endangerment and
DUI and sentenced to two years for the former and eleven months and twenty-nine days for the latter.
On appeal, the Court of Criminal Appeals concluded that felony reckless endangerment is
not a lesser-included offense of aggravated assault. The court therefore reversed that conviction and
remanded for a new trial on the lesser charge of misdemeanor assault. The Court of Criminal
Appeals affirmed the conviction for DUI but modified the sentence to reflect suspension of sentence
after service of forty-eight hours. The State filed a timely application to appeal on the issue of
whether felony reckless endangerment is a lesser-included offense of aggravated assault committed
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by intentionally or knowingly causing bodily injury to another by the use or display of a deadly
weapon.
STANDARD OF REVIEW
The question of whether a given offense should be submitted to the jury as a lesser-included
offense is a mixed question of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The
standard of review for mixed questions of law and fact is de novo with no presumption of
correctness. Id.; see also Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998).
ANALYSIS
The sole issue is whether the offense of felony reckless endangerment is a lesser-included
offense of aggravated assault committed by causing bodily injury by use of a deadly weapon under
part (b)(2) of the rule we established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999).1
Tennessee Code Annotated sections 39-13-101, -102 (2003) define the offense of aggravated
assault. Pursuant to the statute, aggravated assault may be committed in either of two ways: (1) by
intentionally or knowingly causing another to reasonably fear imminent bodily injury by use of a
deadly weapon, or (2) by intentionally, knowingly or recklessly causing bodily injury to another by
use of a deadly weapon. Tenn. Code Ann. §§ 39-13-101, -102 (2003). By comparison, felony
reckless endangerment is defined as recklessly engaging in conduct which places another person in
imminent danger of death or serious bodily injury by use of a deadly weapon. Tenn. Code Ann. §
39-13-103(a) (2003).
In State v. Moore, 77 S.W.3d 132 (Tenn. 2002), we held that when the offense of aggravated
assault is charged as having been committed by causing fear of bodily injury, felony reckless
endangerment is not a lesser-included offense.
1
An offense is a lesser included offense of a charged 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; or
(c) it consists of
(1) facilitation of the offense charged . . .; or
(2) an attempt to commit the offense charged . . .; or
(3) solicitation to commit the offense charged . . . .
Burns, 6 S.W .3d at 466-67.
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[T]he presence of danger is not an essential element of aggravated assault committed
by placing another person in fear of imminent danger of death or serious bodily
injury. Consequently, one can commit the offense of aggravated assault by placing
another person in fear of danger even if there is no risk of danger. The same does not
hold true for felony reckless endangerment. It logically follows that the danger
produced during the commission of felony reckless endangerment produces a more
serious harm or risk of harm than the fear of a non-existent danger that may be
produced during the commission of aggravated assault; therefore, part (b)(2) of the
Burns test if not satisfied.
Moore, 77 S.W.3d at 135-36 (footnote omitted).
The facts in this case are different from those in Moore, in that in this case, the defendant
actually inflicted injury by use of a deadly weapon and did not merely cause fear of injury. When
aggravated assault is charged as being committed by causing bodily injury by use of a deadly
weapon, felony reckless endangerment is a lesser-included offense under part (b)(2) of Burns
because actual bodily injury to another person as the result of an aggravated assault is necessarily
a greater harm than the merely placing a person in danger of serious bodily injury or death. For
example, the infliction of a gunshot wound, as occurred in the case under submission, produces a
more serious harm than creating a danger that such a harm might occur. See State v. Rush, 50
S.W.3d 424, 431 (Tenn. 2001) (reckless aggravated assault not a lesser-included offense of
attempted second-degree murder under Burns (b)(2) because reckless aggravated assault requires
proof of either serious bodily injury or bodily injury while attempted murder does not necessarily
involve injury to victim). Because of this, felony reckless endangerment is a lesser-included offense
of aggravated assault committed by intentionally or knowingly causing bodily injury to another by
the use of a deadly weapon.
CONCLUSION
In summary, we hold that where aggravated assault is charged as having been committed by
causing actual bodily injury, felony reckless endangerment is a lesser-included offense of that
aggravated assault. Therefore, we reverse the Court of Criminal Appeals’ decision and reinstate the
defendant’s conviction for felony reckless endangerment.
Costs of this appeal are assessed to the defendant, Wilmore Hatfield.
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WILLIAM M. BARKER, JUSTICE
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