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State v. Hatfield2/26/2003
Factual Background
On February 9, 1999, the Appellant received his income tax check and traveled to the Top of The Mountain Market in Fentress County, where he purchased two six-packs of beer. The Appellant then proceeded to Obe Delk's meat packaging business just before dark. As the Appellant drove onto the business premises, Tracey Kerney, the victim, came outside and a heated conversation between the two ensued. The victim, who was highly intoxicated, began to beat the Appellant. To avoid further confrontation, the Appellant drove away. The Appellant testified that Kerney hit him in the head with a pistol and, during the altercation, the weapon fell onto the floor of the Appellant's vehicle. However, the victim denied having a gun.
The Appellant returned about thirty minutes later. He explained that, shortly after leaving, he discovered approximately $332.00 of his income tax refund and some tax papers had fallen out of his pocket during the fracas with Kerney and he had returned to recover the items. Upon his return, the victim again exited the business. Delk testified that, on this occasion, the Appellant cocked the gun and shot at the victim saying, "Run, bitch! Run!" The bullet struck the victim in the foot. The Appellant 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 Appellant then drove away.
State Trooper Kevin Norris was at the Sheriff's office when a call concerning the shooting incident was reported. Shortly thereafter, Trooper Norris observed the Appellant's vehicle on Highway 52, where the Appellant was stopped. Norris testified that he smelled alcohol on the Appellant; however, he also testified that the Appellant did not appear to be under the influence of an intoxicant. Upon a search of the vehicle, Norris found "a .32 caliber pistol under the seat and some beer bottles." About forty-five minutes after the initial stop, the Appellant was taken to the hospital, where a blood sample was drawn, and his blood alcohol content was determined to be .11%.
A Fentress County grand jury returned a four count indictment charging the Appellant with attempted first degree premeditated murder, aggravated assault, felony possession of a weapon, and DUI. At the conclusion of a jury trial, the trial court charged attempted first degree murder, second degree murder as a lesser-included offense of that charge; aggravated assault, reckless aggravated assault and felony reckless endangerment as lesser-included offenses of that charge; and DUI. The Appellant was found guilty of felony reckless endangerment and DUI. This timely appealed followed.
ANALYSIS
I. Felony Reckless Endangerment
First, the Appellant contends that "the trial court erred in charging the jury with felony reckless endangerment as a lesser included offense because all the elements of felony reckless endangerment are not contained in the crimes as charged in the indictment." As previously noted, the trial court charged felony reckless endangerment as a lesser- included offense of aggravated assault. The indictment for aggravated assault alleged that the Appellant "did unlawfully, feloniously, intentionally, and knowingly cause bodily injury to Tracey C. Kerney by shooting her with a pistol, a deadly weapon."
Convicting a person of a crime neither raised by the indictment nor a lesser-included offense thereof violates the Sixth Amendment, which requires that the State inform the accused "of the nature and cause of the accusation against him." U.S. Const. amend. VI. Allowing the Appellant to be convicted for an offense that was neither charged in th
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