In a recent case in Nashville, Leroy Myers was charged with aggravated assault after he allegedly shot a gun in the direction of a Metro Codes employee visiting his home. Following a bench trial, the trial court found Leroy Myers not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment with a deadly weapon. The trial court ruled that based on defense counsel’s argument and submissions to the court that the defendant effectively amended the indictment to include reckless endangerment. On appeal, Myers asserted that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of the case and that there was not an implicit amendment to the indictment to include reckless endangerment. The Tennessee Court of Criminal Appeals affirmed the judgment of the trial court. State v. Myers, No. M2015–01855–CCA–R3–CD, 2016 WL 6560014 (Tenn. Crim. App. November 4, 2016).
A defendant cannot legally be convicted of an offense which is not charged in the indictment or which is not a lesser offense embraced in the indictment. State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997). The State, the defendant, and the trial court agreed that reckless endangerment was not a lesser included offense of intentional or knowing aggravated assault. However, when a defendant actively, yet erroneously, seeks an instruction on a lesser-included offense, the defendant effectively consents to an amendment of the indictment. State v. Greg Patterson, No. W2011–02101–CCA–R3–CD, 2012 WL 206287, at *3 (Tenn. Crim. App., at Jackson, Dec. 11, 2012)
In this case, defense counsel through his comments, submissions of case law, and argument to the court raised the issue of whether the defendant’s actions could be a lesser included offense like reckless endangerment. When the court stated it would take the matter under advisement to consider lesser included offenses like reckless endangerment, defense counsel made no objection. In furtherance of defense counsel’s argument and for the court’s consideration of lesser-included offenses, defense counsel submitted two cases for the court to consider. Both of these were reckless endangerment cases. State v. Payne, 7 S.W.3d 25 (Tenn. 1999); State v. Shaw, W2010–00201–CCA–R3–CD (Tenn. Ct. Crim. App. June 1, 2011). Based upon those facts, the trial court found an effective amendment to the indictment because the defendant actively sought to place it before the court on the uncharged offense, reckless endangerment. The trial court stated and the appellate court reiterated that the defendant cannot complain about convictions for an offense which, without his own counsel’s intervention, would not have been considered by the Court. In addition, the appellate record was incomplete and the appellate court presumed the trial court’s findings were correct.