Opinion
No. M2000-00304-CCA-RM-CD.
March 20, 2000.
Appeal from Davidson County, HON. THOMAS H. SHRIVER, JUDGE, (Child Rape), UPON REMAND FROM THE SUPREME COURT OF TENNESSEE .
AFFIRMED
For the Appellant: EDWARD J. GROSS, Parkway Towers, Ste. 1601, Nashville, TN 37219.
For the Appellee: PAUL G. SUMMERS, Attorney General and Reporter, 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
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-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 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 ofState v. Dominy, 6 S.W.3d 472 (Tenn. 1999). Dominy overruledState 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 reexamine 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
Pursuant to Burns, an offense is a lesser included offense if:
all of its statutory elements are included within the statutory elements of the offense charged; or
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
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 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.
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.
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). 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. 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. 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.
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).
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).
Even though the jury had limited options, we are unable to conclude the trial 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
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 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 viaBurns'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 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 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, viaBurns, 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 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