State of Tennessee v. Leroy Myers, Jr.

The defendant, Leroy Myers, Jr., was indicted for the aggravated assault of Sandra Custode, an inspector with the Department of Codes and Public Safety (“Metro Codes Department”), by intentionally or knowingly causing her to reasonably fear imminent bodily injury by use or display of a deadly weapon.  See Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii).  Following a bench trial, he was convicted of felony reckless endangerment, which is not a lesser-included offense of aggravated assault as indicted in this case.  Both the trial court and the Court of Criminal Appeals concluded that the defendant, through the actions of counsel, caused an effective amendment of the indictment.  We granted the defendant’s application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to consider whether and under what circumstances the actions of counsel can rise to the level of causing an effective amendment to an indictment absent the clear consent of the defendant.  Upon our review, we hold:  (1) Tennessee Rule of Criminal Procedure 7(b)(1) sets forth the procedure for amending an indictment with a defendant’s consent, and these mandates were not followed in this case; and (2) the actions of counsel amounted, at most, to mere acquiescence rather than an affirmative request for the trial court to consider felony reckless endangerment as a lesser offense.  We reverse the judgment of the trial court and the Court of Criminal Appeals, vacate the judgment of conviction, and dismiss the case.