The opinion
FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 9, 1999
NOVEMBER 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9710-CR-00454
)
vs. ) Washington County
)
ROY D. NELSON, JR., ) Hon. Lynn W. Brown, Judge
)
Appellant. ) (Burglary, Aggravated Burglary,
) Aggravated Arson, Possession of
Marijuana)
FOR THE APPELLANT: FOR THE APPELLEE:
DONALD E. SPURRELL JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
128 E. Market St.
Johnson City, TN 37604 ELIZABETH B. MARNEY
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
DAVID CROCKETT
District Attorney General
JOE C. CRUMLEY
Asst. District Attorney General
P.O. Box 38
Jonesborough, TN 37659
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Roy D. Nelson, stands convicted of burglary,
aggravated burglary, aggravated arson and possession of marijuana as a result of
his efforts to blow up his ex-wife's home. Nelson received his convictions at the
conclusion of a jury trial in the Washington County Criminal Court. A Range III
offender, Nelson is presently serving an effective 62-year sentence in the
Department of Correction for his crimes. 1 In this direct appeal, Nelson claims he
was improperly convicted of aggravated arson because he, rather than another
person, suffered the serious bodily injury relied upon to elevate the offense from
arson to aggravated arson. Having reviewed the appellate record, the arguments
of the parties and the applicable law, we affirm the judgment of the trial court.
I
Upon initial review of the record, we discovered that Nelson's notice
of appeal was filed two and a half months after the trial court entered its order
overruling the motion for new trial. In order to be timely, the notice of appeal should
have been filed and received by the clerk of the trial court within 30 days after entry
of the order denying a new trial. Tenn. R. App. P. 4(a), (c). If a defendant fails to
comply with the Rules of Appellate Procedure, the appellate court may waive timely
filing in the interest of justice. Tenn. R. App. P. 4(a). Equally, the appellate court
may choose not to allow an untimely appeal in a criminal case. See, e.g., State v.
Cleotha Nash, No. 02C01-9701-CC-00026, slip op. at 3 (Tenn. Crim. App., Jackson,
Feb. 18, 1998), perm. app. denied (Tenn. 1998); State v. Austin Kipling Stratton,
No. 01C01-9611-CC-00472, slip op. at 2-3 (Tenn. Crim. App., Nashville, Dec. 4,
1997).
1
Total fines of $60,350 were imposed.
2
Unlike many cases in which a notice of appeal is untimely filed, Nelson
has not filed a motion to waive timely filing of the notice of appeal or any similar
pleading. Typically, such filing would contain acknowledgment that the notice of
appeal was not timely filed and would include verified factual and/or legal assertions
why the interests of justice dictate that we should waive timely filing of the notice of
appeal. See Cleotha Nash, slip op. at 3 (appeal dismissed where neither record nor
allegation by the defendant provided sufficient basis for waiver of timely filing of
notice of appeal).
Despite Nelson's shortcoming in this regard, we somewhat reluctantly
waive the timely filing requirement for the notice of appeal. The issue Nelson has
raised on appeal is a novel one, and as best we can tell, is an issue of first
impression in Tennessee. It is better addressed now on direct appeal, rather than
in a delayed appeal following a post-conviction case in which defense counsel might
be found ineffective for failing to perfect a timely direct appeal. In the interest of
justice, we waive the requirement of timely filing of the notice of appeal. Tenn. R.
App. P. 4. We admonish counsel and other appealing parties, however, that this
result is not a preordained conclusion, and we expect acknowledgment and an
explanation when counsel has failed to comply with the Rules of Appellate
Procedure.
II
Nelson claims his aggravated arson conviction cannot be sustained
because the serious bodily injury used to elevate the crime from simple arson was
his own, not another person's. In pertinent part, "[a] person commits aggravated
arson who commits arson as defined in § 39-14-301 or § 39-14-303 . . . [w]hen any
person, including firefighters and law enforcement officials, suffers serious bodily
injury as a result of the fire or explosion." Tenn. Code Ann. § 39-14-302(a)(2)
3
(1997) (emphasis added). "'Person' includes the singular and plural and means and
includes any individual, firm, partnership, copartnership, association, corporation,
governmental subdivision or agency, or other organization or other legal entity, or
any agent or servant thereof[.]" Tenn. Code Ann. § 39-11-106(a)(27) (1997).
The aggravated arson statute is anomalous. Elsewhere in the criminal
code, offenses which are aggravated or especially aggravated by the infliction of
bodily injury or serious bodily injury are worded differently. See Tenn. Code Ann.
§ 39-13-102(a)(1)(A) (1997) (aggravated assault) ("serious bodily injury to another");
Tenn. Code Ann. § 39-13-304(a)(4) (1997) (aggravated kidnapping) ("victim suffers
bodily injury"); Tenn. Code Ann. § 39-13-305(a)(4) (1997) (especially aggravated
kidnapping) ("victim suffers serious bodily injury"); Tenn. Code Ann. § 39-13-
402(a)(2) (1997) (aggravated robbery) ("victim suffers serious bodily injury"); Tenn.
Code Ann. § 39-13-403(a) (1997) (especially aggravated robbery) ("victim suffers
serious bodily injury"); Tenn. Code Ann. § 39-13-502(a)(2) (1997) (aggravated rape)
("defendant causes bodily injury to the victim"); Tenn. Code Ann. § 39-13-504(a)(2)
(1997) (aggravated sexual battery) ("defendant causes bodily injury to the victim");
Tenn. Code Ann. § 39-14-404(a)(2) (1997) (especially aggravated burglary) ("victim
suffers serious bodily injury"). The aggravated arson statute stands alone raising
the possibility of a defendant's conviction of the aggravated offense based upon his
own serious bodily injury.
In examining the criminal code, we find no indication that we should
depart from the plain meaning of the definition of "person" and the common,
ordinary usage of the word "any." Thus, we believe "any person" who suffers
serious bodily injury includes the defendant. We are further persuaded by the
wording of the aggravated arson statute itself, which provides that "a person" is
guilty of the crime if certain elements are met, including that "any person" (not "any
4
other person") suffers serious bodily injury. Unlike other criminal code provisions,
the aggravated arson statute does not require injury to a "victim" or "another" as an
element of the crime. Furthermore, this result is consistent with the unique
character of the crime of arson. More so than the other offenses in the criminal
code which are aggravated by some level of bodily injury, arson as a general
proposition creates a dangerous exigency which has the potential to endanger the
criminal himself, in addition to any targeted individual, members of the public, and
rescue personnel.
Thus, we find no flaw with the defendant's conviction of aggravated
arson based upon his own serious bodily injury from the explosion he created. The
judgment of the trial court is affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
DAVID H. WELLES, JUDGE
_______________________________
L.T. LAFFERTY, SPECIAL JUDGE
5