State of Tennessee v. Michael Dean Hodges

The Davidson County Grand Jury indicted the Appellant, Michael Dean Hodges, of aggravated child abuse in counts one through three and aggravated child neglect in count four.  After a jury trial, the Appellant was acquitted in count one but convicted as charged in counts two and three and convicted of knowing aggravated assault as a lesser-included offense of aggravated child neglect in count four.  The trial court merged the aggravated assault conviction into the aggravated child abuse convictions and sentenced the Appellant to an effective twenty-five-years in confinement to be served at 100%.  On appeal, the Appellant claimed that the trial court erred by failing to sever the charge of aggravated child abuse in count one from the remaining two counts of aggravated child abuse; that the trial court erred by allowing the jury to hear a portion of his statement in which he admitted to prior bad acts; that the trial court erred by giving the jury a supplemental instruction on “knowingly” that failed to include language about non-accidental conduct; and that cumulative error warranted a new trial.  This court concluded that the trial court erred by allowing the jury to hear that the Appellant had been “in trouble” previously but that the error was harmless; however, we concluded that the Appellant’s conviction of aggravated assault had to be reversed because knowing aggravated assault was not a lesser-included offense of aggravated child neglect.  The Tennessee Supreme Court granted the Appellant’s application for permission to appeal and remanded the case to this court for reconsideration in light of the court’s recent opinion in State v. Howard, 504 S.W.3d 260 (Tenn. 2016), regarding lesser-included offenses.  Upon reconsideration, we again conclude that knowing aggravated assault is not a lesser-included offense of aggravated child neglect as charged in this case and modify the conviction to reckless endangerment.