IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
FOR PUBLICATION
October 25, 1999
Filed: October 25, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLANT, ) COFFEE COUNTY NO. 26,699
)
v. ) Hon. John W. Rollins, Judge
)
CHARLES D. FOWLER, ) No. 01S01-9810-CC-00185
)
APPELLEE. )
FOR APPELLANT: FOR APPELLEE:
PAUL G. SUMMERS ROBERT S. PETERS
Attorney General and Reporter Winchester
MICHAEL E. MOORE
Solicitor General
DARYL J. BRAND
Associate Solicitor General
Nashville
OPINION
COURT OF CRIMINAL APPEALS REVERSED HOLDER, J.
OPINION
We granted this appeal to determine whether payment by a fifty-three-
year-old male for "straight sex" with what he perceived to be a fifteen-year-old
boy could constitute a substantial step toward the commission of statutory rape.
Upon review, we hold that the evidence in this case supported the jury's finding
that the defendant's conduct constituted a substantial step toward the
commission of statutory rape. The decision of the Court of Criminal Appeals is
reversed, and the defendant's conviction for attempted statutory rape is
reinstated.
FACTS
The defendant, Charles D. Fowler, was a fifty-three-year-old truck driver
who had stopped in a rest area along a Tennessee interstate highway. He
approached an undercover police officer in a wooded portion of the rest area,
and they began talking about underage children. The undercover police officer
was "wired" and recorded the ensuing conversation.
The defendant told the officer that the defendant had hoped to pick up a
hitchhiker but that other motorists had picked up the only two he had seen. The
defendant conveyed to the officer that the defendant had a preference for young
boys. The defendant stated, "I like the young stuff. In fact, I like the underage
stuff." He boasted about various sexual escapades he had experienced with
minors.
The defendant told the officer that the defendant was looking for a young
boy who was willing to run away from home and live with him in a house on a
swamp in Florida. The officer indicated that he might know of a few young boys
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who would be willing to go with the defendant. The officer stated that the boys
he had in mind would be between the ages of ten and fourteen. The defendant
replied that the mentioned ages would be acceptable provided the young boys
could either ejaculate or were learning how to ejaculate.
The officer conveyed to the defendant that the officer knew of a twelve-
year-old boy who was interested in running away from home. The defendant
agreed to pay the officer a $200 "finder's fee" for the twelve-year-old boy.
Approximately one hour later, the defendant met the officer in a parking lot to
make the exchange. The officer had what appeared to be a young boy with him.
The officer told the defendant the boy was fourteen years old. The boy,
however, was a nineteen-year-old male dressed as a young boy. The defendant
confirmed that he wanted "straight sex" from the young boy. The defendant
wrote the officer a check for $200. The officer then placed the defendant under
arrest.
A jury convicted the defendant of attempting to purchase a minor and of
attempted statutory rape. He received sentences of three years for the
attempted purchase of a minor conviction and nine months for the attempted
statutory rape conviction. The trial court, however, set aside the verdict and
entered a judgment of acquittal on the charge of attempted purchase of a minor.
The Court of Criminal Appeals, in a split decision, reversed the attempted
statutory rape conviction holding that the defendant's acts did not constitute a
substantial step toward the commission of the crime. W e granted review on this
limited issue.
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ANALYSIS
The issue now before us is whether the evidence of the defendant's
conduct was sufficient to support the jury's conviction of attempted statutory
rape. The State argues that "[t]he officers were not required to permit the
defendant to drive off with the boy or initiate actual penetration." The State
contends that under State v. Reeves, 916 S.W.2d 909 (Tenn. 1996), the jury's
conviction should be affirmed because "only the intervention of the officers in
effecting the arrest stopped the defendant from his intended purpose . . .
committing statutory rape." We agree with the State's assertions.
This Court recently addressed the law on criminal attempt in State v.
Reeves. In Reeves, two female high school students, Coffman and Reeves,
conspired to kill a teacher. They agreed that Coffman would bring rat poison to
school and that they would place the poison in the teacher's drink. The poison
was brought to school the following day. The teacher entered her room and
noticed the two girls "over her desk." When the girls observed the teacher, they
giggled and ran back to their seats. The teacher discovered Coffman's purse
lying next to her coffee cup. Coffman was taken to the principal's office, and the
rat poison was found in her purse. Id. at 910.
This Court recognized that prior to the passage of the 1989 criminal
reform act a finding of criminal attempt required evidence of: "(1) an intent to
commit a specific crime; (2) an overt act toward the commission of that crime;
and (3) a failure to consummate the crime." Id. at 911. The overt act element
required a distinction between conduct that was merely preparatory and conduct
that constituted a "direct movement toward the commission after the
preparations had been made." Id. (quoting State v. Dupuy, 325 S.W.2d 239, 240
(Tenn. 1959)).
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Following the criminal reform legislation of 1989, the law of criminal
attempt was codified at Tenn. Code Ann. § 39-12-101. The statute provides in
pertinent part that:
(a) A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense: . . . (3) Acts with
intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the
conduct as the person believes them to be, and the conduct
constitutes a substantial step toward the commission of the
offense.
Tenn. Code Ann. § 39-12-101(a)(3) (1997). In Reeves, this Court rejected the
argument that the legislature "intended to retain the sharp distinction between
'mere preparation' and the 'act itself'" following the codification of § 39-12-101.
Reeves, 916 S.W.2d at 913. We also held that the mere preparation test was
inconsistent with the current legislative language and the goal of preventing
crimes.
[Requiring an overt act] severely undercuts the objective of
prevention . . . . Once a person secretly places a toxic substance
into a container from which another person is likely to eat or drink,
the damage is done. Here if it had not been for the intervention of
the teacher, she could have been rendered powerless to protect
herself from harm.
Id. at 914. Accordingly, the "mere preparation" test was abandoned.
In the case now before us, the jury convicted the defendant of attempted
statutory rape. Statutory rape is defined as the "sexual penetration of a victim by
the defendant or of the defendant by the victim when the victim is at least
thirteen (13) but less than eighteen (18) years of age and the defendant is at
least four (4) years older than the victim." Tenn. Code Ann. § 39-13-506(a)
(1997). Our focus under § 39-12-101(3) is whether the evidence was sufficient
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to support the jury's finding that the defendant's conduct constituted a
"substantial step" toward the commission of statutory rape in this case.
The record indicates that the defendant was seeking homosexual activity
on the night of his arrest. He stopped at a rest area that had a reputation for
homosexual activity. The defendant approached an undercover officer and
indicated that the defendant had a preference for young males. The defendant
agreed to pay the officer for delivery of a young male. The defendant was not
purchasing a young male out of a benevolent motivation to provide an unhappy
runaway with food and shelter. The defendant's purpose for procuring a young
male was sex. The fifty-three-year-old defendant believed the young male in
question to be fifteen years old. One of the defendant's stated intentions in
purchasing the boy was to have "straight sex" with him. The defendant wrote the
officer a check for $200 with the expectation that the boy would be turned over to
the defendant.
On appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences that may be drawn
therefrom. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Our inquiry is
whether "after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. State v. Clifton, 880 S.W.2d 737, 742
(Tenn. Crim. App. 1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The evidence in this case taken in a light most favorable to the State
overwhelmingly supports the jury's finding that the defendant's conduct
constituted a substantial step toward commission of statutory rape. Requiring
conduct beyond the defendant's conduct in this case would be inconsistent with
both the general goal of crime prevention and our analysis in Reeves. We would
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create a dangerous precedent by requiring that the defendant take delivery of the
boy or actually begin some act that would approach sexual penetration. Once a
pedophile purchases a child and takes the child into his possession, some
damage has likely occurred. Moreover, the child is placed in a position of
imminent danger from which the child may be powerless to protect himself or
herself.
The decision of the Court of Criminal Appeals is reversed. The
defendant's conviction for attempted statutory rape is reinstated. Costs of this
appeal shall be taxed against the defendant for which execution shall issue if
necessary.
JANICE M. HOLDER, JUSTICE
Concurring:
Anderson, C.J.
Drowota, J.
Byers, Sp.J.
Dissenting:
Birch, J.
Barker, J. Not Participating
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