James v. Ball ( 1996 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1996 SESSION FILED
June 10, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9511-CR-00353
Appellee, )
) Shelby County
V. )
) Honorable Carolyn Wade Blackett, Judge
)
LEONARD A. FOX, ) (Simple Assault; Reckless Endangerment)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
James V. Ball Charles W. Burson
Attorney at Law Attorney General & Reporter
217 Exchange Avenue
Memphis, TN 38105 John R. Collier
Assistant Attorney General
Joseph S. Ozment Financial Division
Attorney at Law 500 Charlotte Avenue
217 Exchange Avenue Nashville, TN 37243-0496
Memphis, TN 38105
John W. Pierotti
District Attorney General
Rhea Clift
Asst. Dist. Attorney General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED: ___________________
VACATED AND DISMISSED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Leonard A. Fox, was convicted of simple assault and
reckless endangerment. He was sentenced to 11 months 29 days for assault
and three years for reckless endangerment. His sentences were ordered to run
concurrently. On appeal, he argues: (1) the evidence was insufficient to sustain
a conviction for assault, and (2) the evidence was insufficient to sustain a
conviction for reckless endangerment. The state concedes his first issue. As to
the appellant's remaining issue, we find the evidence insufficient to sustain a
conviction for reckless endangerment. We vacate and dismiss.
FACTS
The appellant's indictment on the charge of reckless endangerment read
as follows:
. . . did unlawfully and recklessly, by use of a deadly weapon, to wit:
a pistol, engage in conduct which placed other persons, whose
identities are to the Grand Jurors aforesaid unknown, in imminent
danger of death or serious bodily injury. . . .
The indictment stemmed from the appellant's acts of discharging a pistol into the
air or up into a tree.1 There was no testimony that anyone was either in the tree
being fired upon or outside the apartment building in the immediate vicinity of the
appellant.
ANALYSIS
Reckless endangerment is proscribed in Tenn. Code Ann. § 39-13-103(1991 Repl.). The statute provides that:
(a) A person commits an offense who recklessly engages in
conduct which places or may place another person in imminent
danger of death or serious bodily injury.
1
W itnesses informed the police that they saw the appellant "shooting in the air."
-2-
(b) Reckless endangerment is a Class A misdemeanor; however,
reckless endangerment committed with a deadly weapon is a Class
E felony.
Tenn. Code Ann. § 39-13-103. Accordingly, reckless endangerment is couched
in terms of risk to another person produced by one's conduct. This Court has
previously recognized the potentially "absurd" and "unreasonable" results that
may arise from permitting prosecution of one discharging "a weapon under any
circumstances where any other human being might possibly be present or where
a stray bullet might possibly strike another person." State v. Culbertson, No.
03C01-9412-CR-00449, slip op. at 2 (Tenn. Crim. App. Aug. 30, 1995).
We find the appellant's mere discharge of a weapon into the air or up into
a tree top did not "place another person in imminent danger of death or serious
bodily injury." Merely discharging a gun, standing alone, is not sufficient to
constitute commission of reckless endangerment. See People v. Richardson, 97
A.2d 693 (N. J. Super. Ct. App. Div. 1953) (holding discharge of gun into air does
not constitute reckless endangerment). The discharge must create an imminent
risk of death or serious bodily injury to some person or class of persons. The
state's proof has fallen short of this requirement. The judgment of the trial court
is, therefore, reversed.
The judgments of conviction as to both indictments are vacated and
dismissed.
-3-
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
PAUL R. SUMMERS, Special Judge
-4-