State of Tennessee v. Leroy Myers, Jr., M2015-01855-CCA-R3-CD

Defendant Leroy Myers, Jr. was indicted for aggravated assault after police responded to a March 13, 2014 incident in which a city property inspector, Sandra Custode, testified Myers yelled at her, fired two shots as she drove away, and lowered the gun in her direction.
Custode testified she was frightened and that Myers fired "because of me." Defense witnesses (Myers and Mallory) said he fired at hawks to protect chickens and did not aim at Custode.
The trial was a bench trial; a full transcript was not included in the record on appeal.
The trial court credited Custode’s testimony, found insufficient proof of aggravated assault, but convicted Myers of reckless endangerment with a deadly weapon, concluding Custode was within a "zone of danger."
Defendant moved for judgment of acquittal arguing reckless endangerment is not a lesser-included offense of aggravated assault and claiming no effective amendment of the indictment; the trial court denied the motion, finding defense counsel had effectively sought consideration of reckless endangerment.
On appeal, the Court of Criminal Appeals affirmed, holding the incomplete record and the trial court’s findings (including that the defense effectively requested consideration of reckless endangerment) precluded relief.

Issue	State's Argument	Myers' Argument	Held
Whether reckless endangerment conviction was permitted when indictment charged aggravated assault	Trial court could convict of reckless endangerment because defense counsel argued and submitted authorities about that offense, effectively consenting to amendment	Reckless endangerment is not a lesser-included offense of intentional/knowing aggravated assault and there was no consent/amendment to charge it	Affirmed: defense conduct (argument, submitting cases) and trial court findings amounted to effective amendment/consent; appellant waived challenge given incomplete record
Whether appellate review is barred by incomplete record	N/A (relied on trial court record showing defense sought reckless endangerment)	Argued trial court’s references to discussions were incorrect; incomplete transcript prevents presumption of consent	Court presumes trial court findings correct when record incomplete; failure to provide full transcript waived review

State v. Payne, 7 S.W.3d 25 (Tenn. 1999) (discusses when firing a weapon constitutes reckless endangerment)
State v. Moore, 77 S.W.3d 132 (Tenn. 2002) (recognizes reckless endangerment is not a lesser-included offense of intentional/knowing aggravated assault)
State v. Cleveland, 959 S.W.2d 548 (Tenn. 1997) (defendant cannot be convicted of an offense not charged absent indictment amendment or consent)
State v. Stokes, 24 S.W.3d 303 (Tenn. 2000) (Rule 7(b) amendment requires motion and clear consent on the record)
Demonbreun v. Bell, 226 S.W.3d 321 (Tenn. 2007) (defendant who actively seeks instruction on uncharged lesser offense effectively consents to amendment)
State v. Ballard, 855 S.W.2d 557 (Tenn. 1993) (appellant’s failure to supply complete record relevant to issues constitutes waiver)
State v. Draper, 800 S.W.2d 489 (Tenn. Crim. App. 1990) (appellate court cannot consider issues absent transcript of relevant proceedings)
State v. Boling, 840 S.W.2d 944 (Tenn. Crim. App. 1992) (appellate presumption that trial court findings are correct when record is incomplete)