Session February 6, 2019
by Permission from the Court of Criminal Appeals Criminal
Court for Davidson County No. 2014-B-1303 Steve R. Dozier,
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.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed; Conviction of Felony Reckless
Endangerment Vacated and Dismissed
Jay Norman, Nashville, Tennessee, for the appellant, Leroy
Herbert H. Slatery III, Attorney General and Reporter;
Andrée Sophia Blumstein, Solicitor General; Clark B.
Thornton, Senior Assistant Attorney General; Victor S.
Johnson III, District Attorney General; and Jennifer Charles,
Assistant District Attorney General, for the appellee, State
A. Page, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., Cornelia A. Clark, Sharon G. Lee,
and Holly Kirby, JJ., joined.
A. PAGE, JUSTICE
issue in this case is whether the proceedings in this bench
trial constituted the defendant's effective consent to
amend the indictment charging him with aggravated assault, a
Class C felony, to include felony reckless endangerment, a
Class E felony, which is not a lesser-included offense of
aggravated assault as charged.
Facts and Procedural History
Custode, the victim in this case, was employed as a property
standards inspector with the Metro Codes Department in
Nashville, Tennessee. Her job entailed inspecting properties
about which people filed complaints involving debris on the
property, dilapidated houses, or old cars being kept on the
property. Ms. Custode had previously inspected the
defendant's property due to a complaint that he had been
operating an automobile repair shop in the garage of his
home, which was located in a residential neighborhood. On
March 13, 2014, she conducted a second inspection of the
defendant's property to investigate whether the defendant
had complied with her abatement letter.
Custode arrived in her clearly-marked government vehicle.
Because this was the second visit about the complaint, she
intended to take photographs as evidence of whether the
defendant was in compliance with the directive to abate. As
she was driving toward the defendant's property, Ms.
Custode could clearly see several automobiles parked behind a
fence in the yard and two automobiles in front of the garage.
At the front of the defendant's house, she saw several
people talking to him as he worked on one of the cars.
Custode parked her car in the right-of-way in front of the
defendant's garage to take photographs because he had
previously "ordered" her off of his property. For
that reason, she did not venture onto his property but rather
took photographs from her vehicle. The defendant saw Ms.
Custode taking pictures and began "yelling" as he
walked toward her car. When he arrived at Ms. Custode's
car, the defendant called her names and cursed at her. He
directed her to other properties in the area and suggested
that Ms. Custode go "get" them. Ms. Custode
recalled, "He was pacing back and forth and just
flailing his arms. He was screaming at the top of his voice.
He was really angry. Spit was flying out of his mouth. He was
just mad." She attempted to answer the defendant's
questions from her vehicle, but he would not listen to her.
The defendant suddenly stopped his tirade and "stomped
off towards his garage" with his "fists
clenched." Believing that the dialogue was over, Ms.
Custode began to drive away. She looked in her rearview
mirror and pulled onto the road. She then heard shots. Upon
hearing the second shot, she turned, looked over her
shoulder, and saw the defendant lowering a gun. Ms. Custode
described the gun as a "long gun," "like a
rifle." The defendant was about two feet outside of the
garage, facing Ms. Custode, and two people were standing
alongside him. One of the people, a female, was laughing. The
defendant turned and walked into the garage.
Custode drove to Ivy Point Road, where she pulled over her
vehicle to see if the defendant had followed her. She
telephoned her employer, who advised her to call the police.
The police instructed her to drive to the bottom of the hill
on Ivy Point Road, and she complied. There, a police officer
approached her and asked her to follow him to the
defendant's house. She identified the defendant then
remained there until she was instructed to drive to the
police department to file a complaint.
Nashville Police ("Metro") Sergeant Lukas Merithew
along with Officers Jason Dugley and Joshua Borumn arrived at
the scene to investigate Ms. Custode's complaint. Officer
Dugley found a Mossberg pump-action shotgun just inside the
"primary entrance," leaning against a washing
machine. He cleared the weapon, rendered it safe, and placed
it in a patrol car as evidence. Neither he nor anyone else
located spent shotgun shells, but he clarified that one must
manually eject the shells from this type of weapon.
Borumn sat inside his patrol car typing his report while the
defendant was in the back seat. Officer Borumn heard the
defendant say that he was shooting at chicken hawks that were
trying to attack his chickens; however, the officer did not
observe any chickens in the front yard. During the time at
the defendant's residence, Sergeant Merithew did not see
any chickens on the property. The sergeant said that because
of the rural nature of the area, it was not unusual to hear a
shotgun being fired. The defendant also mentioned that he had
a "history" with Ms. Custode from
"codes." In the arrest warrant, Officer Borumn
wrote that the "[d]efendant admitted that he fired off a
few rounds at some animals that just happened to be in the
general vicinity of the victim."
the course of the investigation, a young couple appeared at
the defendant's residence. Officer Dugley characterized
the couple as being "friendly" with the defendant.
The female, Debra Mallory, testified at the bench trial that
she had witnessed the altercation, that she heard what the
defendant said to Ms. Custode, and that he neither cursed her
nor threatened her. She recalled that Ms. Custode had
"pulled down the road and . . . was away from the
house" when the defendant responded to the commotion in
the backyard and retrieved his gun. Although Ms. Mallory
testified that the defendant fired the gun "once in the
air and once in the backyard," she admitted that she did
not actually see him shoot the gun. She said, "I
didn't see him, no. I mean, I -- I was a little bit away
from him, by -- seen him shoot up in the air, but I
didn't see him." Ms. Mallory had given a statement
to the State's investigator previously, in which she had
stated that the defendant fired the gun because he was mad at
Ms. Custode, who was taking pictures, but during the bench
trial, she did not remember making that statement. She also
denied having said in the statement that the defendant was
firing at an animal, stating instead that he shot in the air
and into the backyard, but not at an animal. The State's
investigator testified in rebuttal that Ms. Mallory had
previously stated that the defendant had fired his weapon
because he was angry with the "codes lady."
Custode recalled that she felt "really scared" and
"terrified" during the incident. She began crying
and shaking. She feared that the defendant intended to follow
her vehicle and shoot her. Ms. Custode described the
defendant as having been "crazed mad" at her. He
previously had cursed at her, and his attitude toward her
became more aggressive with each visit. She was certain that
the defendant was shooting at her because "maybe only
five seconds went by from the time [she] last saw him and
[she] started [her] car and he was stomping to the
defendant testified at the bench trial and said that he kept
chickens in the backyard of his property. He kept several
varieties, including bantams, which were very small. Hawks
had flown down, grabbed bantams through the fence, and
carried them away. He had lost twenty to twenty-five of those
chickens within the six months prior to this incident. The
problem was so pervasive that he kept a shotgun inside of the
garage. Following the incident with Ms. Custode, during which
the defendant admitted to having "words" and
complaining to her, he said he observed a hawk flying
"from the road . . . back towards [his] backyard."
He grabbed the gun from his garage, walked outside, pointed
the gun upward and toward the backyard, and fired twice. He
said he did not see Ms. Custode at that time and had no idea
how Ms. Custode could have seen him, positing that her
testimony that he had retrieved a gun was a "lucky
guess." Moreover, he asserted that Officer Borumn's
testimony regarding the defendant's admission in the back
of the patrol car was false.
Custode testified that she did not believe the
defendant's assertion that he was merely shooting at a
hawk that was attempting to attack his chickens. She recalled
that his chickens were confined in an enclosed coop from
which the chickens could not escape and hawks could not
enter. She maintained, "[H]e was shooting because of me.
Whether or not he shot at me, I don't know. But he shot
because of me."
Custode had to return to the defendant's property at a
later date because her job required her to do so, but she was
still scared when she returned. Since the incident, the house
in which the defendant lived had been torn down, but Ms.
Custode was under the belief that he still resided in the
area. A nearby residence had several vehicles parked in the
yard, and Ms. Custode surmised that the defendant might have
relocated there. Thus, she was afraid to knock on the door
and speak with the owners because she feared it would be the
the presentation of evidence, the State made its closing
argument, followed by a closing argument by defense counsel.
Counsel argued first that the evidence was insufficient
because Ms. Custode did not testify that she feared
"imminent bodily injury." Furthermore, he argued
that the defendant was exercising his right to free speech
via actions to express his anger at the government and not
with the intent of causing Ms. Custode to be fearful of
imminent bodily harm.
[T]he Court knows I'm sure that firing a shotgun into a
tree can't be reckless endangerment. There is [sic] many
opinions, Tennessee Supreme Court has talked about that, and
I believe it's State versus Payne. And if firing
a shotgun into a tree can't be reckless endangerment, a
class E felony, I don't know how in the world we are
going to elevate this to a class C felony?
. . . .
State versus Shaw also speaks to it -- simply firing
a weapon does not amount -- tantamount to reckless
endangerment. I mean, that's the problem I have, Your
Honor please. If you fire a shotgun up into a tree, if
you're not recklessly endangering somebody, how can you
say that is an actual assault unless the person is in the
closing arguments, the trial court explained that there were
factors to consider before rendering a verdict, such as
credibility issues and accuracy of the location of the
initial confrontation between Ms. Custode and the defendant.
The court also noted that defense counsel had "raised
issues about, not in this direct discussion, but whether or
not there might be less -- a lesser offense like reckless
endangerment." The court encouraged defense counsel to
submit the two cases to which he had referred during his
closing argument, "in terms of imminent danger."
The trial court then took the matter under advisement.
30, 2015, the trial court entered an order finding the
defendant not guilty of aggravated assault but guilty of
reckless endangerment, stating:
Here the [D]efendant did not merely shoot the gun into a
tree. He fired the weapon twice in Ms. Custode's
direction to scare her off of his property as she was
leaving. Ms. Custode saw the [D]efendant lower the gun in her
direction. Ms. Custode was present in the zone of danger,
wherein a reasonable probability of danger existed.