# FILED April 1, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MARCH SESSION , 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709- CC-00341 ) Appellee, ) ) ) HENRY COUNTY VS. ) ) HON. JULI AN P. GUINN JAMES ROBERT FIELDS, ) JUDGE ) Appe llant. ) (Direct Appeal -

Class B Misdemeanor ) Assault)

FOR THE APPELLANT : FOR THE APPELLEE : TERRY J. LEONARD JOHN KNOX WALKUP 9 North Co urt Square Attorney Generaland Reporter P. O. Box 957 Camden, TN 38320 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 ROBERT RADFORD Distri ct Attorney General 24th Judicial Dist rict P. O. Box 686 Huntingdon, TN 38344
OPINION FILED ________________________ REVERSED AND DISMISSED JERRY L . SMI TH, J UDGE1 The reco rd ind icate s tha t A.D . was four teen years old on Aug ust 5 , 199 6. It is th e polic y of this Court to p rotect the id entity of child se x abus e victims to the exte nt the circu msta nces p erm it.
-2- 

## OPINION

In November of 1996 , a Henry Coun ty grand jury indicted Appellant J ames Robert Fields for one count of statutor y rape. On Februar

y 26, 1997, a H e nry Coun ty jury acquitted Appe llant of th e statu tory rap e cha rge an d con victed h im of Class B misdemeanor assault. After a sentencing hearing on March 10, 1997, the tr ialcou rtimp osed a six-month s entence, with ninety day s of conti nuous confinementfollowed by three months of supervised pr

obation. Appellant challenges both his convict ion and his sentence, raisi ng the following i ssues: 1) whether t he evidence i s suffi cient to support hi s convict ion; and 2) whether t he trialcourt imposed an excessive sentence. After a review o f the record , we revers e th e ju dgme nt of the t rial cour t and dismiss the conv iction for ass ault.

FACTS

A.D. 1 testi fied that

she f irst met Appel lant and Lucas Br adley Taylor

on August 5, 1996, whi le she was drinkingbeerand smok ingmari jua na at thehome of Kevi n Hil t. A. D. eventually left Hilt’ s home and travele d with Appell ant and Taylor to Taylor’s residenc e. W h en th ey arriv ed at Taylor’ s residence, Taylor went inside and Appel lant and A.D. remained in t he car. A.D. testif ied Appellant then a sked her for s ex, and she sa id noth ing in response. Appellant then lifted-3-

up A.D.’s shirt, unfastened her bra, unzi pped her pants, and put his f inger in he r vagina.

A .D. test ified that

when Taylor returned, Appellant asked him to go back in the resi dence. When Taylor went back i n the residence, Appellant unzipped A.D.’s pants again and put his fi nger back in her vagina. A. D. testi fied that she did not sa y anything during this occurre nce.

A.D. testified th at Ap pel lan t t hen d rove toa motel a nd pa id f or a roo m. Appellant

then asked A.D. for sex and becam e angry and left when she declined. A.D. the n had s ex with T aylor.

Lu cas B radley Tayl or testified that on August 5, 1996, he and Appellant went looking for marij uana. Their se arch eventuall y led them to the home of Kevin Hilt, where they met A .D. Ap pellan t then d rove T aylor a nd A.D . to Ta ylor’s residence in order to o btain som e cond oms. Taylor tes tified that on th e way to his residenc e, Appe llant t old A.D. th at “you di dn’t come along on t his ride for nothing and your going to give u p some thing.”
Taylor testified tha t w hen h e was unab le to find any co ndom s at his residence, he got back in Appel lant’s car and Appellant t hen drove to an establi shment where Taylor could purchase condoms. During this time, Tayl or saw that Ap pellan t had p laced his ha nd do wn A. D.’s pants. Taylor test ified t hat A.D. did n ot say or d o anythin g while A ppellant h ad his ha nd dow n her pa nts.2 This issue was not raised by

the parties. The general r ule is that appell ate courts wi ll not consider i ssues that are not raised by the par ties; however, pl ain error is an appropriate consi deration f or an app ellate cour t whethe r proper ly assigned or not. State v. Walton , 958 S.W .2d 724, 7 27 (Te nn. 1997 ). -4- Taylor testified that short ly after these events, he entered an establi shment and purchased some condoms. Taylor t hen got back in Appel lant’s vehicle, and Appellant

began driving to a m otel. Durin g this time, A ppella nt aga in plac ed his hand down A.D.’s pants. Taylor testif ied that A. D. did not say ordo anything while Ap pellant ha d his han d down her pan ts.
Taylor testified that Ap pellant then drove to a motel and sec ured a ro om. Appellant

then asked A.D . for sex, and A.D. de clined. Appellant b ecame angry and left, an d A.D. th en had sex with T aylor.

Detective William Vandiver of the Henry County Sheriff’s D epa rtment testif ied that Ap pel lan t ha d ma de a written statement i n which he admitted that he had dr ive n A.D. and T aylor to a place where Taylor could purchase condoms, thathe had placed his hand on A.D.’s l eg while he was driving hi s vehicle, that he took A.D. and Tayl or to a mo teland pai d fo r a r oom, and tha t he aske d A.D., “Do you think yo u might give m e a dose o f that?”

ANALY SIS
Appellant

cl aims that theevidence i s insuff icient to support h is convi ction forClass B misdemeanor assault and that the trial cou rt erron eous ly imposed a longer sentence than he deserves . However, we need n ot address these i ssues because we hold that Appellant’ s conviction mustbe reversed because he was convicted of

a crime for which he was not char ged. 2An error affecting “the substantial rights of an accused m ay be noticed at any time . . . where necessary to do substant ial j ustice.” Tenn. R. Crim. P. 52(b). This i s the case here.
3 It is true that

a defendant who affirmativel y requests a

particular jury

instruction on an offe nse not charged in t he indictment, erroneously beli eving that the offense is a lesser i ncluded offense of the charge d crim e, is deem ed to hav e cons ented to a n am endm ent of the in dictme nt. State v. Davenport , 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). However,there is no indication in the record that Appellant affirmatively requested a jury instruction on the offense of Class B misdem eanor assault. W ith the record completely

silent as to Appell ant’s position on char ging the j ury as to this off ense, we cannot pr

esume that Appellan t reques ted an ins truction an d thereb y consen ted to an a men dme nt of the ind ictmen t. -5- The law is wel l-establ ished in Ten nessee that an i ndictment or presentmentmust providenotice of the offens e charged, an adequate basis f or the entry of

a proper

judgmen t, and suitable protec tion against dou ble jeopardy. State v. Clevel and , 959 S.W .2d 548 , 552 (T enn. 19 97); State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996); State v. Byrd , 820 S.W .2d 739, 741 (Tenn. 199 1). “As a result, a defendant cannot l egally be convicted of an offense which is not charged in the i ndictment or which is not a lesser of

fense embr aced in the indictme nt.” Cleveland , 959 S.W .2d at 552 ; see also Trusty , 919 S.W.2d at 310. Because Appellant wa s indicted for statutory rape and not for Class B misdemea no r assault, Appellant’ s conviction must be reversed unl ess Class B misdemeanor assault is eit her a lesser grade or class or l esser included offense of statutory ra pe as a lleged in th e indictm ent. 3

“A lesser ‘grade or cl ass ’ o f offense is establishe d by the legislature and is determined simply by looking at the offenses s et forth in a statutory chapt er and part.” Cleveland , 959 S.W.2d at 553. H ere, C lass B misd eme anor a ssau lt is not a less er grade or cl ass of stat utory rape. The legisl ature has i ncluded Class B m isdemeano r assa ult am ong th e “ass aultive o ffense s” set fo rth in Tennessee Code Annotat ed sections 39-1 3-101 throug h -110, while statuto ry rape is among the “sexual offenses” l isted in Tenness ee C ode Annotated sections39-1 3-501 through - 527. Th erefo re, Cla ss B m isdem eano r assa ult is-6-

clearly not a less er grade or class o f statutory rap e. See, e.g. , id. (holding t hat aggra vated assa ult is not a l esser grade or c lass of at tempted aggravated rape because aggravated assault is among the “assa ul tive of fenses” whil e aggravated rape is amo ng the “sexua l offenses”).

The remai ning question is whether Class B misdemeanor assault is a lesse r inc lud ed of

fen se o f st

atu tor y rape as ch arg ed i n th e in dic tme nt
. “Generally, an offense qualifi es as a lesser inc luded o ffense on ly if the elem ents of the incl uded offense are a subset of t he elements of t he charged offe nse and only if the g reater of fense cannot be commit ted without

also committi ng the lesser offense.” Trusty , 919 S.W.2d at 310 (ci ting Schmuck v. United States , 489 U.S. 705, 716, 109 S.Ct . 1443, 1450–51, 103 L.Ed.2d 73 4 (1 989)). “ In other words, the lesser

offense maynot re quire p roof of a ny elem ent no t includ ed in the greater offens e as charge d in the indictme nt.” Id. at 311.

It is clear that under the test set forth by Trusty , Class B misdemeanor
assa ult is no t a less er includ ed offense of statutor

y rape as charged i n the indictment. The indict ment in this case alleges: That [Appe llant] . . . did know ingly or intent ionall y have sexualpenetrati on of [A.D.], a fourteen ( 14) year old female, and at t he time [Appell ant] was at least four (4) year

s older than [A .D.], an d did th ereby com mit the offense of STA TUT ORY RAP E, in violation of T.C.A . 39-13-5 06(a) . . . . This indict ment includes al l of the elements of the crime of

statutor

y rape as defined b y statute. See Tenn. Code Ann. § 39-13-506(a) (1997). The offense of Class B misdemeanor assault occurs when a per son “[i] ntentional ly or know ingly causes physicalcontact wi th another and a reasonable pers on would regard the contact

as extremely

offensi ve or provocat ive.” Tenn. Code Ann. § 39--7-

13-101(a)(3)(199 7). By its very natur e, this offense i s one that can only be committed when the vict im has notconsented to t he physical c ontact. See, e.g. , State v. McKnight , 900 S.W.2d 36, 49 (Tenn. Crim. App. 1994) (holdi ng that the consent of the vic tim is a defense to t he crime of assault). On the other hand, t he offense of statutory

rape “contemplates circumstances in which the sexu al relati ons are adm ittedly cons ensua l.” Sta te v. Eal ey , 959 S.W.2d 605, 611 (Tenn. Crim. App. 1997). In f act, if the sexual penetrati on was n ot con sens ual, the crime committed woul d be the offense of rape. See Tenn. Code Ann. § 39- 13-503(a)(2)(1997) . Be cause statutor y rape is commit

ted when the sexual penetrati on is consensual and Class B mis dem eano r assa ult is committed when the physical contact i s nonconsensual, it is clear that

the offens e of statu tory rape
can be committed without al so committing t he offense of Class B misdemeanor
assau lt. Therefore, t

o use the words o f Trusty , Class B misd eme anor a ssau lt is not a lesser in cluded off ense of statut ory rape because statutor y rape (th e greater offense ) ca n be commi tt ed witho ut a lso commi tting Class B misdemeanor assault (the lesse r offense).

In conclusion, Appellant was convicted an d sentenced for an offense for which he was never charged. Under our law, such a conviction may not stand. The judgm ent of the tria l court i s reversed and Appellant’s convi ction for Class B misd emea nor ass ault is dism issed.

____________________________________ JERRY L . SMI TH, J UDGE4 The H onorab le Joe B. J ones d ied May 1 , 1998, an d did not pa rticipate in this o pinion. W e acknowledge his f

aithful service t

o the Tennessee Court of Criminal Appeal s, both as our colleague a nd as our Presidi ng Judge. -8- CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE 4

___________________________________ GARY R. WADE, JUDGE