FILED

April 1, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709-CC-00341

)

Appellee, )

)

) HENRY COUNTY

VS. )

) HON. JULIAN P. GUINN

JAMES ROBERT FIELDS, ) JUDGE

)

Appellant. ) (Direct Appeal - Class B Misdemeanor

) Assault)

FOR THE APPELLANT: FOR THE APPELLEE:

TERRY J. LEONARD JOHN KNOX WALKUP

9 North Court Square Attorney General and Reporter

P. O. Box 957

Camden, TN 38320 PETER M. COUGHLAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

ROBERT RADFORD

District Attorney General

24th Judicial District

P. O. Box 686

Huntingdon, TN 38344

OPINION FILED ________________________

REVERSED AND DISMISSED

JERRY L. SMITH, JUDGE
1

The reco rd ind icate s that A.D. was fourteen years old on August 5, 1996. 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.

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OPINION

In November of 1996, a Henry County grand jury indicted Appellant James

Robert Fields for one count of statutory rape. On February 26, 1997, a Henry

County jury acquitted Appellant of the statutory rape charge and convicted him

of Class B misdemeanor assault. After a sentencing hearing on March 10, 1997,

the trial court imposed a six-month sentence, with ninety days of continuous

confinement followed by three months of supervised probation. Appellant

challenges both his conviction and his sentence, raising the following issues:

1) whether the evidence is sufficient to support his conviction; and

2) whether the trial court imposed an excessive sentence.

After a review of the record, we reverse the judgment of the trial court and

dismiss the conviction for assault.

FACTS

A.D.1

 testified that she first met Appellant and Lucas Bradley Taylor on

August 5, 1996, while she was drinking beer and smoking marijuana at the home

of Kevin Hilt. A.D. eventually left Hilt’s home and traveled with Appellant and

Taylor to Taylor’s residence. When they arrived at Taylor’s residence, Taylor

went inside and Appellant and A.D. remained in the car. A.D. testified Appellant

then asked her for sex, and she said nothing in response. Appellant then lifted
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up A.D.’s shirt, unfastened her bra, unzipped her pants, and put his finger in her

vagina. 

A.D. testified that when Taylor returned, Appellant asked him to go back

in the residence. When Taylor went back in the residence, Appellant unzipped

A.D.’s pants again and put his finger back in her vagina. A.D. testified that she

did not say anything during this occurrence. 

A.D. testified that Appellant then drove to a motel and paid for a room.

Appellant then asked A.D. for sex and became angry and left when she declined.

A.D. then had sex with Taylor. 

Lucas Bradley Taylor testified that on August 5, 1996, he and Appellant

went looking for marijuana. Their search eventually led them to the home of

Kevin Hilt, where they met A.D. Appellant then drove Taylor and A.D. to Taylor’s

residence in order to obtain som e condoms. Taylor testified that on the way to

his residence, Appellant told A.D. that “you didn’t come along on this ride for

nothing and your going to give up something.” 

Taylor testified that when he was unable to find any condom s at his

residence, he got back in Appellant’s car and Appellant then drove to an

establishment where Taylor could purchase condoms. During this time, Taylor

saw that Appellant had placed his hand down A.D.’s pants. Taylor testified that

A.D. did not say or do anything while Appellant had his hand down her pants. 
2

This issue was not raised by the parties. The general rule is that appellate courts will not

consider issues that are not raised by the parties; however, plain error is an appropriate consideration for

an app ellate court whethe r properly assigned or not. State v. Walton, 958 S.W .2d 724, 7 27 (Te nn. 1997 ). 

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Taylor testified that shortly after these events, he entered an establishment

and purchased some condoms. Taylor then got back in Appellant’s vehicle, and

Appellant began driving to a m otel. During this time, Appellant again placed his

hand down A.D.’s pants. Taylor testified that A.D. did not say or do anything

while Appellant had his hand down her pants. 

Taylor testified that Appellant then drove to a motel and secured a room.

Appellant then asked A.D. for sex, and A.D. declined. Appellant became angry

and left, and A.D. then had sex with Taylor. 

Detective William Vandiver of the Henry County Sheriff’s Department

testified that Appellant had made a written statement in which he admitted that

he had driven A.D. and Taylor to a place where Taylor could purchase condoms,

that he had placed his hand on A.D.’s leg while he was driving his vehicle, that

he took A.D. and Taylor to a motel and paid for a room, and that he asked A.D.,

“Do you think you might give me a dose of that?” 

ANALYSIS

Appellant claims that the evidence is insufficient to support his conviction

for Class B misdemeanor assault and that the trial court erroneously imposed a

longer sentence than he deserves. However, we need not address these issues

because we hold that Appellant’s conviction must be reversed because he was

convicted of a crime for which he was not charged.2
An error affecting “the substantial rights of an accused m ay be noticed at any time . . . where necessary

to do substantial justice.” Tenn. R. Crim. P. 52(b). This is the case here.

3

It is true that a defendant who affirmatively requests a particular jury instruction on an offense not

charged in the indictment, erroneously believing that the offense is a lesser included 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 Appellant’s position on charging the jury as to this offense, we cannot presume 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.

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The law is well-established in Tennessee that an indictment or

presentment must provide notice of the offense charged, an adequate basis for

the entry of a proper judgment, and suitable protection against double jeopardy.

State v. Cleveland, 959 S.W .2d 548, 552 (Tenn. 1997); State v. Trusty, 919

S.W.2d 305, 309 (Tenn. 1996); State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991).

“As a result, a defendant cannot legally be convicted of an offense which is not

charged in the indictment or which is not a lesser offense embraced in the

indictment.” Cleveland, 959 S.W.2d at 552; see also Trusty, 919 S.W.2d at 310.

Because Appellant was indicted for statutory rape and not for Class B

misdemeanor assault, Appellant’s conviction must be reversed unless Class B

misdemeanor assault is either a lesser grade or class or lesser included offense

of statutory rape as alleged in the indictment.3

“A lesser ‘grade or class’ of offense is established by the legislature and

is determined simply by looking at the offenses set forth in a statutory chapter

and part.” Cleveland, 959 S.W.2d at 553. Here, Class B misdemeanor assault

is not a lesser grade or class of statutory rape. The legislature has included

Class B misdemeanor assault among the “assaultive offenses” set forth in

Tennessee Code Annotated sections 39-13-101 through -110, while statutory

rape is among the “sexual offenses” listed in Tennessee Code Annotated

sections 39-13-501 through -527. Therefore, Class B misdemeanor assault is
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clearly not a lesser grade or class of statutory rape. See, e.g., id. (holding that

aggravated assault is not a lesser grade or class of attempted aggravated rape

because aggravated assault is among the “assaultive offenses” while aggravated

rape is among the “sexual offenses”).

The remaining question is whether Class B misdemeanor assault is a

lesser included offense of statutory rape as charged in the indictment.

“Generally, an offense qualifies as a lesser included offense only if the elements

of the included offense are a subset of the elements of the charged offense and

only if the greater offense cannot be committed without also committing the

lesser offense.” Trusty, 919 S.W.2d at 310 (citing Schmuck v. United States, 489

U.S. 705, 716, 109 S.Ct. 1443, 1450–51, 103 L.Ed.2d 734 (1989)). “In other

words, the lesser offense may not require proof of any elem ent not included in

the greater offense as charged in the indictment.” Id. at 311.

It is clear that under the test set forth by Trusty, Class B misdemeanor

assault is not a lesser included offense of statutory rape as charged in the

indictment. The indictment in this case alleges:

That [Appellant] . . . did knowingly or intentionally have sexual penetration

of [A.D.], a fourteen (14) year old female, and at the time [Appellant] was

at least four (4) years older than [A.D.], and did thereby commit the offense

of STATUTORY RAPE, in violation of T.C.A. 39-13-506(a) . . . .

This indictment includes all of the elements of the crime of statutory rape as

defined by statute. See Tenn. Code Ann. § 39-13-506(a) (1997). The offense

of Class B misdemeanor assault occurs when a person “[i]ntentionally or

knowingly causes physical contact with another and a reasonable person would

regard the contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-
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13-101(a)(3) (1997). By its very nature, this offense is one that can only be

committed when the victim has not consented to the physical contact. See, e.g.,

State v. McKnight, 900 S.W.2d 36, 49 (Tenn. Crim. App. 1994) (holding that the

consent of the victim is a defense to the crime of assault). On the other hand, the

offense of statutory rape “contemplates circumstances in which the sexual

relations are adm ittedly consensual.” State v. Ealey, 959 S.W.2d 605, 611

(Tenn. Crim. App. 1997). In fact, if the sexual penetration was not consensual,

the crime committed would be the offense of rape. See Tenn. Code Ann. § 39-

13-503(a)(2) (1997). Because statutory rape is committed when the sexual

penetration is consensual and Class B misdemeanor assault is committed when

the physical contact is nonconsensual, it is clear that the offense of statutory rape

can be committed without also committing the offense of Class B misdemeanor

assault. Therefore, to use the words of Trusty, Class B misdemeanor assault is

not a lesser included offense of statutory rape because statutory rape (the

greater offense) can be committed without also committingClass B misdemeanor

assault (the lesser offense).

In conclusion, Appellant was convicted and sentenced for an offense for

which he was never charged. Under our law, such a conviction may not stand.

The judgment of the trial court is reversed and Appellant’s conviction for Class

B misdemeanor assault is dismissed. 

____________________________________

JERRY L. SMITH, JUDGE
4

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 faithful service to the Tennessee Court of Criminal Appeals, both as our colleague and

as our Presiding Judge.

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CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE4

___________________________________

GARY R. WADE, JUDGE