The Tennessee Court of Criminal Appeals has partially reversed the conviction of Kristopher Pappas, ruling that the trial court erred by instructing the jury that aggravated assault was a lesser-included offense of attempted second-degree murder. While Pappas’s conviction for reckless endangerment with a deadly weapon and the denial of his request for judicial diversion were upheld, the appeals court ordered a new trial for the aggravated assault count, directing the lower court to proceed with the appropriate lesser-included offense of attempted voluntary manslaughter.
The case stems from a volatile confrontation in a Fayette County Subway parking lot in March 2023. Pappas was initially convicted by a jury of aggravated assault causing serious bodily injury and felony reckless endangerment, stemming from an indictment that included attempted second-degree murder.
The Core Legal Issue: Improper Lesser-Included Offense Instruction
The central pillar of the appellate ruling rests on a procedural error concerning jury instructions. The appeals court, on its own initiative, ordered supplemental briefing to examine whether instructing the jury on aggravated assault as a lesser-included offense of attempted second-degree murder was legally sound.
Under Tennessee law, an offense qualifies as a lesser-included offense only if all its statutory elements are contained within the charged offense, or if it differs only by having a lesser mental state or lesser harm.
The court examined the elements of the offenses:
1. Attempted Second-Degree Murder: Requires a “knowing killing” of the victim (predicate for the attempt).
2. Aggravated Assault (as charged): Requires intentionally or knowingly causing bodily injury resulting in *serious bodily injury* or involving a deadly weapon.
The Court of Criminal Appeals determined that aggravated assault, particularly when involving serious bodily injury, contains an element—the resulting serious injury—that is not necessarily required for attempted second-degree murder. Attempted second-degree murder can be committed without any injury occurring. Citing established precedent, the court concluded that aggravated assault is not a lesser-included offense of attempted second-degree murder.
Because the jury was instructed on an offense that was not properly included within the scope of the indictment, the defendant’s constitutional right to notice of the charges against him was violated. The court found that the five prerequisites for plain error relief were met, necessitating the reversal of the aggravated assault conviction.
Double Jeopardy and Remand for New Trial
Since the jury already acquitted Pappas of the main charge—attempted second-degree murder—double jeopardy principles prevent the State from retrying him on that offense. However, the appellate court found that Pappas could be retried for any properly supported lesser-included offenses of attempted second-degree murder. The court therefore remanded Count 1 (the charge leading to the aggravated assault conviction) for a new trial solely on the lesser-included offense of attempted voluntary manslaughter.
Affirming Reckless Endangerment and Self-Defense Claims
Pappas had argued on appeal that all evidence was insufficient because he acted in self-defense. The appellate court addressed this claim only as it pertained to the remaining conviction: felony reckless endangerment with a deadly weapon.
The evidence supporting the reckless endangerment conviction was deemed sufficient. Witnesses testified that Pappas fired a gun multiple times in a busy parking lot, putting numerous people, including minors, in imminent danger of serious bodily injury or death.
Regarding the self-defense claim, the court noted the conflicting testimony. Pappas claimed Mr. Tucker attacked him first, leading to a physical fight where he used the gun defensively. However, the victim (Mr. Tucker), his girlfriend, and several bystanders testified that Pappas initiated the shooting *before* any physical contact occurred, while Mr. Tucker had his hands up. The jury, as the trier of fact, was entitled to reject the self-defense theory and credit the State’s witnesses. Thus, the conviction for reckless endangerment was affirmed.
Denial of Judicial Diversion Upheld
Pappas also challenged the trial court’s decision to deny him judicial diversion—a program that allows certain eligible offenders to avoid a permanent conviction record by successfully completing probation.
The trial court found Pappas technically eligible (no prior qualifying convictions) but ultimately denied diversion based on several factors, including:
* Amenability to Correction: The presentence report indicated Pappas used marijuana and “another substance daily.”
* Circumstances of the Offense: The court deemed the circumstances “horrible,” noting the shooting occurred in a public area with customers and minors present.
* Deterrence Value: The court emphasized the need to deter others from similar violent conduct.
The appellate court reviewed this denial under an abuse of discretion standard, presuming the trial court’s decision reasonable if supported by substantial evidence. Given the severity of the victim’s injuries (including a serious brain injury requiring skull removal) and Pappas’s admitted daily substance use, the appeals court found substantial evidence supporting the trial court’s conclusion that granting diversion would not serve the interests of justice. The denial of judicial diversion was affirmed.
In summary, Kristopher Pappas will face a new trial on a less severe charge related to the shooting, while his conviction for reckless endangerment and his sentence remain in place.