IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
March 20, 2000
STATE OF TENNESSEE, ) No. M2000-00304-CCA-RM-CD
Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellee, ) DAVIDSON COUNTY
)
VS. ) HON. THOMAS H. SHRIVER,
) JUDGE
)
ROBBIE JAMES, )
) (Child Rape)
Appellant. )
UPON REMAND FROM THE SUPREME COURT OF TENNESSEE
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD J. GROSS PAUL G. SUMMERS
Parkway Towers, Ste. 1601 Attorney General and Reporter
Nashville, TN 37219
ELLEN H. POLLACK
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
WILLIAM R. REED
Assistant District Attorney General
Washington Sq., Ste. 500
222-2nd Avenue, N.
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
This case is before this Court upon remand from the Supreme Court of
Tennessee. The defendant was convicted of child rape and sentenced to fifteen
years in the Department of Correction. Originally, we concluded the trial court
committed reversible error by failing to charge aggravated child abuse as a lesser
offense of child rape. The order of the Supreme Court remands to this Court for
reconsideration in light of State v. Dominy, 6 S.W.3d 472 (Tenn. 1999). We now
conclude the trial court did not commit reversible error and AFFIRM the judgment of
the trial court.
FACTS
Defendant and her husband were unable to have children and sought
adoption. A two and three-year-old brother and sister were placed in their home in
December 1991, in contemplation of adoption. On October 22, 1992, a worker at the
children’s day care facility found blood on cleansing tissue used by the three-year-old
female. Upon further examination blood was discovered on the child’s inner thighs.
These findings were reported to the Department of Human Services which in turn
contacted the Metropolitan Police Department. An investigation was begun.
When questioned as to how the child could have been injured, the defendant
did not give definitive answers to either the day care worker or the interviewing
detective. Defendant stated that the child had fallen a month earlier and had blood
on her panties. She later conceded to the detective that she may have penetrated
the child’s vagina with her finger while disciplining her on that morning.
The child was evaluated at Our Kids Center which evaluates children
suspected of being sexually abused. The examination revealed that the three-year-
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old female had an “acute hymenal vaginal tear” with bruising and bleeding. The
injury was caused by some type of penetration and would have been “painful” to the
child at the time of its occurrence.
For reasons not apparent in the record, the defendant was not indicted until
August 1994. In April 1995, defendant was evaluated by a clinical psychologist. The
psychological records contained defendant’s explanation as to the occurrence.
Defendant stated that she was trying to dress the child on this particular morning, and
the child was crying and uncooperative. The defendant explained that, without
thinking, she tried to quieten the child by thrusting her middle finger into the child’s
vagina. Defendant’s family history indicated she did not have a healthy model for
parenting and disciplining.
At trial the defendant testified that on the morning in question the child
continued to cry while the defendant was attempting to dress her. After the
defendant spanked the child, the defendant was, in her own words, “totally out of
control” when she “stuck [her] finger in [the child’s] vagina.” The defendant stated
that she “was under a lot of stress, and I just lost it.” Defendant related that she
“couldn’t think,” and her actions were not intentional. She stressed that she was not
attempting to harm the child in any way, and there was absolutely no sexual motive
in her actions.
JURY CHARGE
The jury was charged as to the indicted offense of child rape and the lesser
offense of misdemeanor child abuse. During deliberations the jury asked the trial
court if it could reach a verdict of guilty on one of the charges and recommend
consideration of mitigating circumstances for the sentence. The trial court advised
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the jury that sentencing was not their function. The jury subsequently returned its
verdict of guilty of child rape.
THIS COURT’S ORIGINAL OPINION
In our original opinion, this Court rejected defendant’s contentions that (1) the
evidence was insufficient to support her conviction; (2) her sentence constituted cruel
and unusual punishment; (3) there was an abuse of prosecutorial discretion; and (4)
she was denied the right to a speedy trial. However, we found plain error in the trial
court’s failure to charge aggravated child abuse as a lesser offense. Thus, we
remanded for a new trial.
DOMINY
The order of remand asks us to reconsider our opinion in light of State v.
Dominy, 6 S.W.3d 472 (Tenn. 1999). Dominy overruled State v. Trusty, 919 S.W.2d
305 (Tenn. 1996), to the extent that it recognized “lesser grade” offenses as distinct
from lesser included offenses and permitted convictions of “lesser grade” offenses
that were not lesser included offenses embraced by the indictment. 6 S.W.3d at
473-74. This Court relied upon Trusty in finding aggravated child abuse to be a
lesser offense of child rape. Since Trusty was subsequently overruled by Dominy,
we must re-examine the issue of lesser offenses.
Dominy incorporates the test set forth in State v. Burns, 6 S.W.3d 453, 466-67
(Tenn. 1999), in determining lesser included offenses. 6 S.W.3d at 477. We must,
therefore, determine under Burns whether the trial court erred in failing to charge any
lesser included offenses other than misdemeanor child abuse.
BURNS
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Pursuant to Burns, an offense is a lesser included offense if:
(a) all of its statutory elements are included within the
statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect
that it contains a statutory element or elements
establishing
(1) a different mental state indicating a lesser kind of
culpability; and/or
(2) a less serious harm or risk of harm to
the same person, property or public
interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that
otherwise meets the definition of lesser-included offense
in part (a) or (b); or
(2) an attempt to commit the offense charged or an
offense that otherwise meets the definition of lesser-
included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an
offense that otherwise meets the definition of lesser-
included offense in part (a) or (b).
Burns, 6 S.W.3d at 466-67.
Based upon the above test, we conclude that aggravated child abuse does not
meet either part (a), part (b) or part (c) of the Burns test as it relates to child rape.
However, we note that Burns also recognizes that some offenses are expressly
designated lesser included offenses by statute. Id. at 467, n. 12. In fact, Burns
specifically mentions the statutory provision of Tenn. Code Ann. § 39-15-401(d)
which provides that misdemeanor child abuse is a lesser included offense of any kind
of homicide, statutory assault, or sexual offense if the victim is a child and the
evidence supports the charge. Id. Thus, according to Burns, misdemeanor child
abuse is a lesser included offense of child rape.
The aggravated child abuse statute, Tenn. Code Ann. § 39-15-402, does not
contain a comparable provision making it a lesser included offense of any kind of
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homicide, statutory assault or sexual offense involving a child. Since aggravated
child abuse is not expressly designated by statute as a lesser included offense and
does not meet part (a), part (b) or part (c) of the Burns test, we conclude aggravated
child abuse is not a lesser included offense of child rape.
AGGRAVATED SEXUAL BATTERY
We must now determine, pursuant to Burns, whether the trial court should
have charged any other lesser included offenses. Child rape requires “unlawful
sexual penetration” of a child less than thirteen years of age. Tenn. Code Ann. § 39-
13-522(a). Aggravated sexual battery requires “unlawful sexual contact” with a child
less than thirteen years of age. Tenn. Code Ann. § 39-13-504(a)(4). Thus,
aggravated sexual battery establishes a less serious harm or risk of harm to the
victim under part (b) of the Burns test and is a lesser included offense of child rape.1
We must now determine whether the trial court erred in failing to charge
aggravated sexual battery. Burns establishes a two-part analysis. Firstly, evidence
must exist that reasonable minds could accept as to the lesser included offense.
Burns, 6 S.W.3d at 469. Evidence must be viewed liberally in the light most favorable
to the existence of the lesser included offense. Id. Secondly, the evidence must be
legally sufficient to support a conviction for the lesser included offense. Id. We
conclude the trial court did not err in failing to charge aggravated sexual battery.
Child rape has two essential elements: (1) unlawful sexual penetration; and
(2) a victim less than thirteen (13) years of age. Tenn. Code Ann. § 39-13-522(a).
1
It may also be that aggravated sexual battery meets part (a) of Burns as noted in the
concurring opinion. Resolution of this issue is unnecessary for the disposition of this appeal.
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It is undisputed the child was less than thirteen (13) years of age. It is further
undisputed, even according to the defendant’s own testimony, that the defendant
digitally penetrated the child’s vagina. Under these circumstances when all elements
of the greater offense are undisputed, the trial court did not err in failing to charge
aggravated sexual battery as a lesser included offense.
CONCLUSION
We are constrained to note that we find this result harsh under the unique
facts and circumstances of this case. Although the jury found the defendant guilty
of child rape, the jury was obviously concerned about punishment and desired to
recommend leniency in sentencing. Possible punishment was not charged to the
jury since counsel failed to make such a request prior to jury selection.2 An entire
sentence for child rape must be served undiminished by any sentence reduction
credits. Tenn. Code Ann. § 39-13-523(b). This was not required of aggravated
sexual battery at the time of this offense.3 When the jury during its deliberations
asked the trial court about sentencing, they were told not to consider sentencing for
fear that their verdict might be set aside by an appellate court. Although the jury was
given misdemeanor child abuse as a lesser offense, there was a huge gulf between
the only charged offenses of Class A felony child rape and misdemeanor child abuse.
This scenario is uncomfortably close to an “all or nothing” decision that was
condemned by Burns. 6 S.W.3d at 466.
Even though the jury had limited options, we are unable to conclude the trial
2
The statute in effect at the time of trial authorized jury instructions on possible
punishment for the charged offenses if requested prior to jury selection. See Tenn. Code Ann.
§ 40-35-201(b)(1997). Such comments are forbidden in all trials occurring after May 18,
1998. See 1998 Public Acts, Chapter 1041, §§ 2, 3; Tenn. Code Ann. § 40-35-201(b) (Supp.
1999).
3
The one hundred percent (100%) statute for aggravated sexual battery did not apply
to an offense committed prior to July 1, 1995. See Tenn. Code Ann. § 40-35-501(i)(1),(2)(H).
7
court erred in failing to charge aggravated sexual battery since all elements of the
greater offense were undisputed. In summary, we do not read Burns as requiring
instructions on lesser included offenses when the evidence undisputedly shows guilt
of a higher offense.
We, therefore, AFFIRM the judgment of the trial court.
JOE G. RILEY, JUDGE
CONCUR:
JAMES CURWOOD WITT, JR. JUDGE
JOE H. WALKER III, SPECIAL JUDGE
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