IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 6, 1999
Cecil Crowson, Jr.
MAY 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9810-CR-00369
Appellee, * HAMILTON COUNTY
VS. * Honorable Stephen M. Bevil, Judge
JOSEPH AZELL LEE, * (Attempted Aggravated Assault)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
TOM LANDIS PAUL G. SUMMERS
744 McCallie Avenue, Suite 327 Attorney General & Reporter
Chattanooga, TN 37403
R. STEPHEN JOBE
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM H. COX, III
District Attorney General
MARK A. HOOTON
Assistant District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED: _______________
AFFIRMED - RULE 20
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Joseph Azell Lee, appeals his conviction for attempted
aggravated assault. The defendant was indicted for aggravated assault and
attempted escape. At the close of proof at trial, the trial court granted the
defendant’s motion for a judgment of acquittal on the aggravated assault count.
Nevertheless, the trial court did submit to the jury the lesser included offense of
attempted aggravated assault. The defendant argues that the proof at trial did
not support attempted aggravated assault and that the trial court therefore erred
in instructing the jury on that offense. We find no error and AFFIRM the
judgment of the trial court.
On August 29, 1996, Officer Ronald Rice of the Hamilton County Sheriff’s
Department transported the defendant from the Hamilton County Jail, where he
was incarcerated, to the county health department for a scheduled examination.
After the defendant’s examination, Rice escorted the defendant back to the
police car. When Rice moved in front of the defendant to open the passenger
door, the defendant attacked him. During the ensuing struggle, the defendant
grabbed Rice’s handgun. Rice reacted by immediately placing both of his hands
on the weapon and holding it down in the holster. Because both of Rice’s hands
were occupied, the defendant was able to strike Rice in the face several times
with his free hand. The defendant also bit Rice on the back during the struggle.
Ultimately, Rice was able to attract the attention of another police officer, and the
two subdued the defendant.
The defendant was indicted and tried before a jury for aggravated assault
(by use of a deadly weapon) and attempt to escape from a penal institution. At
the close of proof, the trial court granted the defendant’s motion for a judgment
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of acquittal on the aggravated assault count. Nevertheless, the trial court
instructed the jury on the lesser included offenses of attempted aggravated
assault and assault. The jury returned verdicts of guilty for attempted escape
and attempted aggravated assault, and the defendant was sentenced as a
career offender to six months and twelve years respectively.
The defendant’s argument that the trial court should not have instructed
the jury on attempted aggravated assault because the proof did not support that
offense is without merit. The state introduced sufficient proof to support the
offense of attempted aggravated assault, and the trial court was required to
charge lesser included offenses supported by the evidence. See State v.
Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). The evidence supports
the jury’s verdict, and we find no error of law mandating reversal. Therefore,
pursuant to Rule 20 of the Court of Criminal Appeals, we AFFIRM the judgment
of the trial court.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_______________________________
JAMES CURWOOD WITT, JR., Judge
_______________________________
ALAN E. GLENN, Judge
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