State v. Robbie James ( 2000 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE,
AT NASHVILLE
March 20, 2000
Cecil Crowson, Jr.
STATE OF TENNESSEE,
Appellate Court Clerk
Appellee,
V No. M2000-00304-CCA-RM-CD
Davidson County
ROBBIE JAMES,
Appellant.
CONCURRING OPINION
I concur in Judge Riley’s thoughtful opinion. In this separate
opinion, I wish to address aspects of the issue of the lesser-included offenses of
child rape. I agree that, under the “(b)” rubric of Burns, aggravated sexual
battery could be a lesser-included offense of rape of a child; however, in my
view, it is not necessary to analyze the issue under (b) because aggravated
sexual battery and sexual battery are lesser-included offenses under rubric (a).
See State v. Brenda Anne Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999).
In Burns, our supreme court expressed dismay that, under the
statutory elements approach of “Howard, [v. State, 578 S.W.2d 83 (Tenn. 1976)],
technically a defendant [in a rape case] could not get an instruction on sexual
battery, because that offense requires the additional element that the touching
be for the purpose of sexual arousal or gratification.” Burns, 6 S.W.3d at 466.
The court’s observation is based upon the statutory definition of “sexual contact,”
one of the elements of sexual battery. Id.; see Tenn. Code Ann. § 39-13-504(a),
-505(a) (1997). Sexual contact
includes the intentional touching of the victim’s, the defendant’s, or
any other person’s intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim’s, the defendant’s or any
other person’s intimate parts, if that intentional touching can be
reasonably construed as being for the purpose of sexual arousal or
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gratification.
Tenn. Code Ann. § 39-13-501(6) (1997) (emphasis added).
I infer from the supreme court’s mention of the rape-sexual battery
issue that it intended to fashion an analysis formula which would assure that the
sexual battery offenses would be lesser-included offenses of rape. If the
definition of “sexual contact” truly requires in all cases that the touching be for
the purpose of sexual arousal or gratification, then I agree that the sexual battery
offenses require an element in addition to the elements of rape. Under this
understanding of the meaning of “sexual contact,” the majority is correct in
holding that aggravated sexual battery is a lesser-included offense of rape via
Burns’s (b) category. In my view, the risk of harm to the victim is less in the case
of mere sexual contact than it is in the case of penetration.
That said, however, I do not subscribe to this interpretation of
sexual contact which always requires that the touching be for purposes of sexual
arousal or gratification. First, I note that, unlike six of the eight definitions of
sexual terms contained within Code section 39-13-501, subsection (6) does not
say what “sexual contact” means. Compare Tenn. Code Ann. § 39-13-501(1),
(3), (4), (5), (7), (8) (1997) (“means”) with Tenn. Code Ann. § 39-13-501(2), (6)
(1997) (“includes”). As in the case of “intimate parts” in subsection (2), it merely
says what sexual contact includes. See Tenn. Code Ann. § 39-13-501(2)
(1997). More importantly, it makes no sense, in the context of contact that is
sexual, to require that the touching of the actual intimate parts be for the
purpose of sexual arousal or gratification. I conclude that the requirement of a
purpose of sexual arousal or gratification refers only to the second clause in the
definition, the touching of “clothing covering the immediate area” of actual
intimate parts. See Tenn. Code Ann. § 39-13-501(6) (1997). According to the
definition, it is “that . . . touching” which requires the purpose of sexual arousal or
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gratification. Id. (emphasis added). Thus, it is only when the touching is not of
an actual intimate part of the anatomy, but rather of the clothing covering the
intimate part, that the statute requires something more – “the purpose of sexual
arousal or gratification” – to constitute the element of sexual contact.
Under this view of sexual contact and hence the sexual battery
offenses, the sexual battery offenses do not contain an element in addition to the
offending touching of actual intimate parts which, for purposes of rape, is the act
of penetration. In this scenario, I believe the elements of each of the sexual
battery offenses are a subset of the elements of child rape as alleged in the
indictment. Compare Tenn. Code Ann. § 39-13-522(a) (1997) (“Rape of a child
is the unlawful sexual penetration of a victim . . . if the victim is less than thirteen
(13) years of age.”) with Tenn. Code Ann. § 39-13-504(a) (1997) (“Aggravated
sexual battery is unlawful sexual contact with a victim . . . accompanied by any
one of the following circumstances . . . (4) The victim is less than thirteen (13)
years of age.”); Tenn. Code Ann. § 39-13-505(a) (1997) (“Sexual battery is
unlawful sexual contact with a victim . . . accompanied by any one of the
following circumstances . . . (2) the sexual contact is accomplished without the
consent of the victim . . . .”).
In Burns, the supreme court points out that the regimen used to
determine lesser-included offenses is narrower than that used in the Model
Penal Code “in that the statutory elements remain the focus of the inquiry.”
Burns, 6 S.W.3d at 467 (emphasis added). I believe that such a focus in the
present case results in a determination that the sexual battery offenses are
lesser-included offenses of child rape as alleged in the indictment. See State v.
Bolin, 922 S.W.2d 870, 875 (Tenn. 1996) (aggravated sexual battery conviction
held proper as lesser-included offense of aggravated rape alleged in indictment);
State v. Banes, 874 S.W.2d 73, 79 (Tenn. Crim. App. 1993) (aggravated sexual
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battery is lesser-included offense of aggravated rape); State v. Morris, 788
S.W.2d 820, 824 (Tenn. Crim. App. 1990) (aggravated sexual battery is lesser-
included offense of aggravated rape). But see State v. Timothy R. Bowles v.
State, No. 01C01-9711-CR-00547, slip op. at 15 (Tenn. Crim. App., Nashville,
Apr. 20, 1999) (sexual battery is not a lesser included offense of aggravated
rape), perm. app. granted (Tenn. Feb. 22, 2000); State v. Tracy Stewart Mullins,
No. 01C01-9803-CR-00115, slip op. at 3-4 (Tenn. Crim. App., Nashville, Jan. 21,
1999) (sexual battery is not lesser-included offense of aggravated rape).
Having concluded that the sexual battery offenses are lesser-
included offenses of child rape in the present case under the Burns “(a)” rubric, I
concur with the majority that, via Burns, the evidence of record does not justify
the lesser-included offense instruction. See Burns, 6 S.W.3d at 467. In
determining whether a lesser offense should be charged, the trial court must
engage in a two-part inquiry. First, it “must determine whether any evidence
exists that reasonable minds could accept as to the lesser-included offense.” Id.
at 469. Such determination is made by examining the evidence in the light most
favorable to the existence of the lesser-included offense. Id. Then, “the trial
court must determine if the evidence, viewed in this light, is legally sufficient to
support a conviction for the lesser-included offense.” Id.
It follows from the Burns “subset” approach to a statutory elements
analysis for determining the existence of lesser-included offenses that, if a
defendant commits an offense, he or she ipso facto and by definition commits all
lesser included offenses. However, if the application of this truism is alone
sufficient to justify an instruction on a lesser-included offense, there would have
been no need for a justification analysis in Burns, and there would have been no
need for that latter analysis to have two steps. I infer from the presence and
explanation of the Burns two-step justification analysis that, when the trial court
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undertakes the first step to determine if evidence exists by which reasonable
minds could find the commission of the lesser-included offense, it must
determine whether there is evidence of the lesser offense other than the very
same evidence which supports the greater offense.
This interpretation comports with pre-Burns Tennessee law. See,
e.g., State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999) (“Failure to instruct is
not error where the record clearly shows that the defendant was guilty of the
greater offense and the record is devoid of any evidence permitting an inference
of guilt of the lesser offense.”); State v. Vann, 976 S.W.2d 93, 110 (Tenn. 1998),
cert. denied,—S.W.—, 119 S. Ct. 1467 (1999); State v. Trusty, 919 S.W.2d 305
(Tenn. 1996), overruled on other grounds, State v. Dominy, 6 S.W.2d 472, 474 -
75 (Tenn. 1999); State v. King, 718 S.W.2d 241, 245 (Tenn. 1986). Indeed, in
Burns our supreme court relied in part upon Langford and Trusty to support its
formulation of a two-step justification analysis. See Burns, 6 S.W.3d at 469.
These and similar cases support the proposition that there is no justification for
giving the charge on the lesser offense if there is no evidence that reasonable
minds could accept as to the lesser offense, as opposed to the greater.
In the present case, the evidence demonstrates that the defendant
committed child rape, and there is no other evidence that she committed any
lesser offense. My view differs from the majority only in that I would analyze the
question of lesser included offenses under Burns’s (a) rubric.
_______________________________
JAMES CURWOOD WITT, JR., JUDGE
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