IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON MARCH SESSION , 1998 FILED STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709-CC-00341 ) Appellee, ) April 1, 1999 ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN Crowson, Jr. Cecil JAMES ROBERT FIELDS, ) JUDGE ) Appellate C ourt Clerk Appe llant. ) (Direct Appeal - Class B Misdemeanor ) Assault)

CONCURRING OPINION I agree that the conviction should be affirmed. Assault is not a lesser included or lesser grade offense of statutory rape. I disagree, however, with footnote 3 which suggests that a special request by the defendant for an instruction on a lesser offense would serve to amend the indictment. See State v. Leland Ray Reeves, No. 01C01-9711-CR-00515 (Tenn. Crim. App., at Nashville, Mar. 23, 1999).

_________________________________ Gary R. Wade, Presiding Judge