# FILED
April 20, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION TIMOTHY R. BOWLES, * C.C.A. NO. 01C01-9711-CR -00547 APPELLANT, * DAVIDSON COUNTY VS. * Hon. Seth Norma n, Judge STATE OF TENN ESSEE, * (Aggravated Rape, At tempted Rape, Aggravated Burglary (Two Counts), APPELLEE. * Robbery)
For Appellant : For Appellee : Terry J. Canady John Knox Walkup 211 Printer’s Alley Building Attorney General and Repor ter Suite 400 425 Fifth Avenue North Nashville, TN 37201 Nashville, TN 37243-0493 Bill Lane Timothy Behan 3200 West End Avenue Assistant Attorney Gener al Nashville, TN 37203 Criminal Justice Div ision 425 Fifth Avenue North Nashville, TN 37243-0493 Mary Hausman Assistant District A

ttorney General Washington Square, Suite 500 222 2 nd Avenue North Nashville, TN 37201-1407 OPINION FILED: ____________________ AFFIRMED IN PART; REVERSED IN PART NORMA MCGEE OGLE, JUD GE2 OPINION
On June 18, 1997, the appellant, Timothy R. Bowles, was c

onvicted by a jury in the Crimi nal Court for Davidson C ounty of aggravated r

ape, attempted rape, two counts of aggr avated burglary, a nd robbery. The trial c ourt imposed an effective sentence of forty-five years in the Tennessee Depar tment of Correction. In this appeal as of right, the appellant raises the follow ing issues for our consideration:

1. Whether the evidence adduced at trial is sufficient to support the appellant’s conv iction of aggravated rape; 2. With respect to the aggravated rape conviction, whether the trial cour

t erroneously denied the appellant’s request for a j ury instruction on the lesser gra de offe nse of se xual batt ery; 3. With respect to the attempted rape convicti on, whether the trial cour

t erroneously declined to instru ct the j ury on the lesse r grade offense of sexual battery; and 4. With respect to the robbery convic tion, whether the trial court erroneously denied the appellant’s request for a jury in struction on the lesser i ncluded offense of theft.
After th oroughly re viewing the r ecord an d the part ies’ brief s, we reverse the appellant’s robbery convicti on and otherwise affirm the judg ment of the trial court.
I. Factual Background

The proof at the appellant’s trial established that, on March 23, 1996, the appellant was drinki ng alcohol and abusing coc aine throughout the day. That evening, between 11:30 p. m. and midnight, the appellant br oke through the front door of Leland Cutlip’s home at 4107 Hermitage Street in Davidson Coun ty. Mr. Cutlip was in bed w

hen the appellant entered his bedr oom. Mr. Cutlip testified at trial: [The appellant] yanks the cov ers, just pulls them str

aight back, and gets in my face, and looks at me and says, oh,1 At the conc lusion of the State ’s pro of, the trial co urt dis mis sed the c harg e of b urgla ry of M r. Cu tlip’s home. However, the cour t permitted the State

to argue i n closing t hat Mr. Cutl ip’s t estimony con tradic ted th e app ellant ’s claim that h e wa s bre akin g into hom es s olely in s earc h of m one y. 3 you’re a man, huh. Mr. Cutlip further testi

fied that, following this exchange, the appellant “ rolled his eyes up toward the ceiling” and departed. 1

On the same night, the appellant proceeded to his aun t’s home, which was located in the same neighborhood, at 333 Hadley Bend Boulevard. At trial, Ms. Hampton testified that she was awakened shortly before mi dnight when her nephew broke through her front door.She walked to the liv ing room to investigate and observed her nephew stan ding in the front door. She as ked him why he was in her home, and the appellant replied, “Come on, Edn a, come on.” He then pushed Ms. Hampton down the hallway toward her bedroom. He pus hed her onto the bed and attempted unsuccessfully to r emove Ms. Hampton’s nig htshirt and separate her legs. The appellant unfastened his pants, exposing his g enitalia. Ms. Hampton w as “pushing and kicking and screaming, trying to keep him off me ... .” The struggle continued for approximately five or ten minutes.
At some point, however, the appellant abandoned his assault and stated, “Edna, I’ve gone crazy ... I’ve lost my mind.” The appellant then dialed 911 and gave the telephone to Ms. Hampton. Ms. Hampton spoke to the 911 operator, although she was breathl ess and had difficulty speaking . While Ms. Hampton was on the telephone, the appellant left her home.
Ms. Hampton stated at trial that she did not smell alcohol on the appellant, but that he was ac ting unusually. She te

stified that, generally , the appellant was a nice pers on, and that she had loved him as if he were her son. She confirmed on cross-examinati on that the appellant did not touch her genital area or4 penetrate her in any w

ay, but stated that she knew he was attempting to rape her. Specifically, she denied that he was just “scuffling ” with her, explai ning that “he kept trying to get my legs apart and trying to put his body on mine.”

Following the appell ant’s assault, Ms. Hampton’ s voice “would go and come” for months thereafter. She additi onally suffered bruises on both arms and on her shoulder; her right leg was cut; and her right toe was “mashed and bruised.” She had difficulty walki ng for months after the incident.

On March 23, 1996, the appellant also broke into the home belong ing to Mrs. Kathleen Dobbs and her husband. On that date, Mrs. Dobbs and her husband were living at 118 Center Street, in the same neighborhood with Mr. Cutlip and Ms. Hampton. Mrs. Dobbs testified that she was eig hty-two years old at the time of the appe llant’s tr ial. At th e time of these of fenses , her husb and was eig htyfive years old and bedri dden with emphysema and diabetes . By the time of the appellant’s trial, Mr. Dobbs was deceased.

On March 23, 1996, both Mrs.Dobbs and her husband were at home. Mrs. Dobbs testified that she had arisen from her bed sho rtly before midnight in order to give her hus band “breathing treatments.” Her husband slept in an adj oining bedroom. Mrs. Dobbs was dressed in a blouse and slac ks, because she knew she would be caring for her husband that night.

Mrs. Dobbs was sit

ting by the stove i n the kitchen when she heard a sound on the porch. She then heard s omeone kicking the front door. She told her husband that someone was attempting to break into the house. The intruder could not force the front door open and, accor dingly, went to a door located on the side of the porch. At this point, M rs. Dobbs called 911. She t old the operator that someone was breaking into her home and asked that the police “please hurry, please hurry.”2 The State int roduced at trial t he recordings o f both Mrs. Dobbs’

and Ms. Hampton’s 911 call s. 5 She then heard her husband calling and placed the telep hone receiver on a table while she went to her

husband. 2 She then heard glass breaking at the back door.
The appellant

came throug h the back doo r, through the dining

room, into Mr. Do bbs’ bed room. Mrs. Dobbs was st anding in her husba nd’s bed room, ne xt to her husband. The appellant pushed M rs. Dobbs into her bedroom and onto the floor. The appellant pulled her slacks and underwear off , and then unfastened his own pants. The appellant exposed his genitalia and attempted to penetrate Mrs. Dobbs. Mrs. Dobbs testi fied that the appellant touched her i n the genital area with one hand while holding hi s penis in his other hand. S he further stated that the appellant was unsuccessful in achieving penetrati on, “[b]ecause it was j ust flat, I reckon, he just couldn’t do it.”

The appellant ceased his assault upon Mrs. Dobbs and ran into her husband’s bedroom, where Mr. Dobbs was lying in his bed. Mrs. Dobbs followed the appellant and observed him violently push several items, including Mr. Dobbs’ respirator, off of a dresser onto the floor. He then picked up Mr. Dobbs’ pants from the foot of the bed and removed Mr. Dobbs’ billfold , which contained approximately $200.00. Mr

s. Dobbs tes

tified that he r husband ex claimed, “K

athleen, he’ s got my billfold.” The appellant immediat ely left the house. Mrs. Dobbs testified that both she and her husband were “s cared to death.”

Mrs. Dobbs stated that the bac k of her head struck the floor w hen the appellant pushed her onto the floor of her bedroom. Following the assault, she was bleeding profusely from her head, her arm, and her finger. Additionally, she suffered bruises on her hip. Upon the arrival of the police and th e ambulance, Mrs. Dobbs was taken to Tennessee C hristian Medical Center. She testified that she6 spoke with a nurse at the hospital, but could not remember what she told the nurse. She stated that she was “tore up so bad I don’t remember exactly what I told her.” She conceded that she probably told the nurse that she did not think the appellant had penetrated her. She explai ned, “[T]he term of rape to me, I thought that you had to really insert it up, you know, in you.” She then stated that the appellant’s penis did not penetrate her genital area. W hen asked if she thought the appellant’s fingers p enetrat ed her gen ital area , she resp onded, “ Yes, I know t hey was down there ... .”

On cross-examination, M rs. Dobbs testified again that the appellant did not “penetrate” her, if penetration “means to go all the way up in you.” However, she stated that the appellant ins erted the end of his penis into her genital area. She testified that “it was up against my vagina. He could not do anything.” Moreover, she testified that his fingers “was some inside. No t all the way up in me but on the side.” Mrs. Dobbs r

eiterated that she had previ ously denied penetration or being raped, both to the medical personnel at the hospita l and during a preliminary hearing, because she “thought that whenever you was raped or anything that it’d have to go all the w

ay. He’d have to put i

t ... plum all the way up in you.” In conclusion, she testified:

If you’re talking about all the way up in me, no, he didn’t get all the way up in me. He tried to and he got it in and then he had his fingers on there and he tried to put it up in there and he could not. But he didn’t get it all the w ay up.
Mrs. Dobbs testified that, fol lowing this inci dent, she moved from her home, “because I just couldn’t stand to live there. I was just scared so bad.” Dorothy Lannom, Mrs. Dobbs’ daughter-in-law, testified that, after the assau lt, Mr. and Mrs. Dobbs lived in her home. Mrs. Dobbs w ould not leave her bedroom nor would she speak with

her husband for three weeks after the assault. Mr. Dobbs died approximately three months thereafter.3 Officer C ole W oma ck testified that Mr. D obbs a ppeare d to be dis traught a nd was having diffic ulty breathing. 7

Dorothy Lannom additionally testified at trial that she received a call from her mother-in-law j ust after midnight on March 24, 1996. Mrs. Dobbs wa s screaming and crying . She told M rs. Lannom th at a man had br oken into her

home and was attempting to kil l her. Mrs. Lannom and her hus band immediately drove to Mrs. Dobbs’ home. Mrs.Dobbs was “so bloody . She was sitting i n there at her dining room table and blood w as just all over her

head and her arms and her clothes and all.” Mrs. Lannom later observed bruises on Mr s. Dobbs’ legs and on her right rib cage. She further testi fied that the wound to Mrs. D obbs’ head did not fully heal for a long time. Mr. Dobbs was also very

frightened on the night of the offenses. Mrs. Lannom explained that she could tell “[b]y the expression on his face, his eyes, and his mind. It just done something to his mind.”

Danny Duncan, a police officer with the Metropolitan Nashville Police Department, was dispatched to the Dobbs’ home in the early morning hours of March 24, 1996. Officer Duncan testified at trial that, when he arrived at the Dobbs’ residence, Mrs. Dobbs w as bleeding profusely and appeared to be very upset and afraid. Her husband was lying on his bed attached to a respirator. He also appeared very upset and afrai d. 3 Officer Duncan further testified th at Mrs. Dobbs did not tell him that she had been sexually assaulted, only that “she was hu rt real bad.” He stated that elderl y victims are g enerally more reluctant to talk about sexual matters, and “her husband wa s there and he was so upset I think she was try ing to help protect him, so she didn’ t want to go into a lot of details with me.”
Susan Stephens, a detective w ith the Sexual Abuse Unit of the Metropolitan Nashvil le Police Department, testified that she was assigned to investigate the cases of Edna Hampton and Kathleen Dobbs on Mar ch 24, 1996.8 She visited the Dobbs’ r esidence in the aftermath of the appellant ’s offenses. Detective Stephens testified that Mr. Dobbs was “extremely upset and very emotional.” Detective Stephens proceeded to Tenn essee Christian Medical Center, where she spoke with Mrs. Dobbs about the appellant’s assault. At that time, Mrs. Dobbs told the detective that she did not think penetrati on had occurred. The detective testified that she did not press Mrs. Dobbs for details of the assault due to Mrs. Dobbs’ emotional condition. In fact, at the hospital and prior to the preliminary hearing in this case, Detective Stephens did not hav e an opportunity to speak extensively w

ith Mrs. Dobbs about the ass ault. Subsequently, on J uly 24, 1996, she was able to talk wi

th Mrs. Dobbs in detail about the extent of penetration that had occurred. On the basis of thi s later interview , Detective Stephens asked that the grand jury indict the appellant for aggrav ated rape.
Detective Stephens also testified that possible rape victims in Davidson County are generally transport ed to Metropolitan Nashv ille General Hospital, where forensic rape examinations are routinely performed. The se examinations are not

regularly performed at other area medical faciliti es, including Tennessee Christian Medical Center. Nevertheless , because her injuries appear ed to be serious, the ambulance tr ansported Mrs. Dobbs to Tenness ee Christian Medical Center. The detecti ve stated: There was a lot of blood. She had a large laceration in the back of her head that was still bleeding, as a matter of fact, even when I arriv ed at the hospital. She had damage to her arm, and brui sing on her leg. And she had – one of her fingers w as, was very br

uised or bloody. Detective Stephens testifie d that she spoke with medic al personnel at the hospital and understood, from her conversations with the doctors, that the y had only examined Mrs. Dobbs for ev idence of vaginal penile penetration.
Marilee Weingartner, a family nurse practitioner who perf orms forensic9 rape examinations at General Hospital, testified that in order to reach the vag inal opening of a female, an object woul d need to pass through two separate folds of skin. She observed that medi cal personnel commonly do not understand that simply separating the folds of skin leading to the v agina can constitute penetration under Te nnessee law.

Kathy Suttle, a regis

tered nurse, testified that, she was employed at Tennessee Christian Medical Center in March, 1996, and e xamined Mrs. Dobbs following the appellant’ s assault. Ms. Suttle tes tified that Mrs. Dobbs w as emotionally distressed and, other than a housecoat, was wearing no clothing

below the waist. Ms. Suttl e recounted:

She had a bandage on her head and a bandag e on her left arm. Her hands had blood on the m.... her legs had blood on them. She had blood, well, from her waist all around the front of her abdomen, all in her crotch area had blood on it, all the way to about her knees..... Ms. Suttle confirmed that an ex amination of Mrs. Dobbs’ “c rotch area” revealed no cuts, abrasions, scratch es, or other obvious sour ces of the blood covering that area. Moreover, she testified that the pattern of the blood in Mrs . Dobbs’ “crotch area” was not consistent with a theor y that a cut on Mrs. Dobbs’ finger bled on her legs when she was either removi ng or putting on clothi ng. Another nurse wash ed the blood from Mrs. Dobbs bef ore the po lice could photogra ph the bl ood or oth erwise pres erve the evidence.

Ms. Suttle stated that Mrs . Dobbs denied that penetration had occurred during the assault. However, at the time of these events, Ms. Suttle understood penetration to mean “penile pen etration to [the victim’s] vagina.” Ms. Suttle also read to the jury the notes recorded by the ex amining physician. The doctor noted the possibilit y of rape and a conversati on with Detective S tephens concerning the possibil ity of “attempted rape.” The doc tor recorded, “The man was10 bleeding from his hand, fondled her genital area, did not penetrate h er.”

With respect to Mrs. Dobbs’ physi cal injuries, Ms. Sut tle referred to her contemporaneously recorded n otes. She testified:

There were skin tears t o [Mrs. Dobbs’] left arm, a laceration to her rig ht fifth digit, a hematoma to her head which was oozi ng.... And she complained of pain to h er left shoulder. Regarding the wound o n the back of Mrs. Dobbs’ head, Ms. Suttle stated that “the skin was all abraded an d worn and generally looked like raw hambur ger.”
Shelly Betts, a forensic scientist at the Tennessee Bureau of Investigation Crim e Laboratory and a specialist in Se rology and DNA testin g, confirmed that blood found on Mrs. Dob bs’ underwear matched blood samples obtained from the appellant. Additiona lly, blood retrieved from Ms. Hampton’s nightgown matched the appel lant’s blood samples.

The appellant testified on his own behalf. He testif ied that, on March 23, 1996, he spent the day at a club with friends, drinking and “getting high.” He was still high on cocaine when he ran out of money to purchase alcohol and cocai ne and decided to steal money in o rder to continue his carous e. The appellant admitted that he broke into the homes of Mrs. Dobbs and Edna Hampton in or der to steal money. Moreover, he admitted that he cut himself and w as bleeding when he broke into the Dobbs’ home. H owever, he denied that he attempted to rape or sexually assault ei

ther woman.
II. Analy sis A. Sufficien cy of the Ev idence The appellant first challenges the sufficiency of the evidence to support his convictio n of the aggravated rape of M rs. Kathleen Dobbs. In Tennessee, appellate courts accor d considerable weight

to the verdict of a jury

in a11 criminal trial. In es

sence, a jury convi ction removes the presumpti on of the defendant’s innocence and replaces i t with one of guilt, so that the appellant carries the burden of demonstrating to this court why the evidence will not support the jury’s findings. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). The appellant must establish that no “reasonabl e trier of fact” could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e ).

Accordingly, on appeal , the State is entitled to the strongest legitimate view of the evidence a nd all reasonable inferences w hich may be drawn there from. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). In other word s, questions concerning the credibil ity of witnesses and the weight and value to

be given the evidence, as well as

all factual issues raise d by the evidence, are r esolved by the trier of fact, and not the appellate c ourts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990).
The appellant’s argument rests solely upon his contenti on that the State failed to prove sexu al penetration of the victi m beyond a reasonable doubt. The appellant cites in support of his argument the incon sistent statements by Mrs. Dobbs concerning whether or not penetration occur red.
Aggravated rape is the “unlawful sexual pene tration of a victim by the defendant ... accompanied by ... bodily injury to the vic

tim.” Tenn. Code Ann. § 39- 13-502(a)(2) (1997). The l egislature has defined sex ual penetration in the follow ing
manner: “Sexual penetration” means sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body ... into the genital ... openi ngs of the victim’s ... b ody, but emission of semen is not required ... . Tenn. Code Ann. § 39-13-501(7) (1997)(empha sis added).12 We conclude that the record amply supports the jury’s finding of sexual penetration. As not ed earlier, Mrs. Dobbs

testified at trial that both the appellant’s pe nis and his finge rs slightly penetrat ed her genital op ening. Although she conceded that she had previ ously denied that penetrati on had occurred, she explained that she did not under stand at that time the legal de finition of penetration. At the time of her prior incons istent statements, she believ ed that penetration meant full penile penetration of the va gina. See, e.g., State v. Beauregard , No. 02C01- 9712-CC-00457, 1998 WL 217901, at **2-3 (Tenn. Cri m. App. at Jackson, May 5, 1998)(despite victim’ s testimony that “it w ouldn’t go in” and a lack of physical trauma, the jury could hav e concluded that the victi m’s references to the lack of penetration concerned only a lack of vaginal penetration).

This court has previousl y held that “[i]t is the rule of law in Tennessee that contradictory stat

ements by a witness i n connection with the same fact cancel each other.” State v. Ma tthews , 888 S.W.2d 446, 449-450 (Tenn. Crim. App. 1993). However, we furthe r noted that this rule of law is only applicable w

hen the inconsistency is unexplained or when neither version of the witness’ testimony is corroborated by other ev idence. Id. at 450. In this case, Mrs . Dobbs offered an explanation for her prior inconsistency. The jur y found the appellant guilty of aggravated rape, acc rediting her testimony and resolving the confli ct in favor of the State’s theory. Williams , 657 S.W.2d at 410. This argument is without merit.

B. Lesser Included and Lesser Grade Offenses

The appellant also argues that the trial court committed er ror by failing to instruct the jury on several lesser in cluded and lesser grade offenses o f the charged offenses. The trial judg e has a duty to charge the jury as to all the la w of each offense included in the indictment,even absent a request by the defendant. State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997). Moreover, a defendant has a right to have ever

y issue of fact raised by the evidence and material t o his or her13 defense submitted to the jury on p roper instructions. State v. Robinette , No. 03C01- 9611-CR-00430, 1997 WL 671889, at * 3 (Tenn. Crim. App. at Knoxville, Oc tober 29, 1997). Thus, a defendant has a rig ht to a jury instruction on all lesser incl uded offenses and lesser grades or classes of the charged of fenses if the facts are susceptible to an inference of gui lt on any of those offenses. State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996); State v. Cutshaw , 967 S.W.2d 332, 341-342 (Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-18-110 (199 7); Tenn. R. Crim. P. 31(c).

An offense is necessarily i ncluded in another if the elements of the greater offense include, but are not congruent with, al l the elements of the lesser offense. Trusty , 919 S.W.2d at 310. See also State v. Miller , No. 01C01-9703-CC00087, 1998 WL 601241, at *8 (Tenn. Crim. App. at Nashv ille, September 11, 1998). In contrast, whether or not an offense is a lesser g rade or class of the charged offense is determined by reference to the statutory s cheme. Trusty , 919 S.W.2d at 310. Generally, lesser gr ades or classes of the charg ed offense will be codified in the same part of the chapter

. Id. at 311-312. But see State v. Jett , No. 01C01-9707-CR-00236, 1998 WL 598524, at *6 (Tenn. Cr im. App. at Nashville, September 10, 1998)(this court observed that it is “

doubtful” that the Trusty lesser grade analysis w

ould be applicable to offenses contained in Title 39, Chapter 17, Part 3 due to the loose charact erization of offenses in that chapter ).
As to the offense of the aggravated rape of Kathleen Dobbs, the appellant argues that the tr ial court should have al so charged the jury w ith the lesser offense of sexual battery. Sex ual battery is “unlaw

ful sexual contact with a victim by the defendant ... accompanied by ... [f]orc e or coercion ... .” Tenn. C ode Ann. §39- 13-505(a)(1) (1997). Sex ual contact has been defined by the legislature in the following manner:

“Sexual contact includes the intentional touching of the victim’s, the defendant’s, or any other person’s inti mate parts, or the intentional to uching of the clothing cov ering the immediate area of the victi m’s, the defendant’s, or14 any other person’s inti mate 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).

Recently, this court observed that aggrav ated sexual battery i s not a lesser included offense of aggra vated rape “since it r

equires an element that aggravated rape does not : the sexual contact must be for the purpose of sexual arousal or gratification.” State v. Mullins , N o. 01 C0 1- 98 03 -C R- 00 11 5, 19 99WL 22451, at *2 (Tenn. Crim. App. at N ashville, January 21, 1999). See also State v. Long , No. 02C01-9610-CC-00362, 1998 WL 74253, at *13 (Tenn. Crim. App. at Ja ck so n, Fe br ua ry

24 , 1 99 8) (s ex ua l b at

te ry is a l es se r g ra de

of fe ns e of r

ap e) . We note that this conclusion is contrary to other rec

ent opinions of this court. F or example, in State v. Dishman , No. 03C01-9610-CR-00361, 1998 WL 191447, at *10 (Tenn. Crim. App. at Knoxv ille, April 23, 1998), this court stated that agg ravated sexual battery is a

lesser included offense of aggr avated rape and cited State v. Clark , No. 1066, 1988 WL 90448 (Tenn. Crim. App. at Knoxv ille, September 1, 1988). In Clark , we held that the “sexual penetration” element of rape necessarily encompasses “sexual contac t” as defined by the statute. Id. at *2.

We conclude, as in Mullins , that sexual battery is not a lesser included offense of aggravated rape. Our conclusion is guided in part by our supreme court’s observation in the contex t of sentencing that not ever y rape is committed for the purpose of sexual arousal or gratification, but may instead be motivated by a desire to control, intimidate, or simply abuse another human being

. State v. Ada ms , 864 S.W.2d 31, 35 (Ten n. 1993). Nevertheless, sexual battery is a lesser grade offense of aggravated rape. Mullins , No. 01C01-9803-CR-00115, 1999 WL 22451, at *2. Thus, we must determine if the tr ial court committed reve rsible error by fail ing to instruct the jury on the lesser grade offense of sexual battery. In State v. Elder , 982 S.W.2d 871, 877-878 (Tenn. Crim. App. 1998), our court described the analysis that a trial court must employ in compiling for the jur y the appropriate instr

uctions on4 The term bodily injury includes a cut, abrasi on, bruise,burn, or di sfigurement; ph ysicalpain or temp orary illness o r impa irmen t of the fun ction of a b odily mem ber, orga n, or m ental facu lty. State v. Sm ith , 891 S.W .2d 922, 927-928 (Ten n. Crim. App. 1994). 15 lesser offenses:

[B]efore instructing a jur y on a lesser offense, the tri al court must determine whether the evidence, when viewed in the lig ht most favorable to the defe ndan t’s theory of the case, would justify a jury verdict in accord with the defendant’s theory , and would permit a rati onal trier of fact to find the defendant guilty of the lesser offense and not guilty of the greater offe nse. ... If a jury were instructed on a l esser offense even though the evidence did not raise i t or the offense was only r aised by “slight” or “rel atively scant” ev idence, then the instruction would constitute an inv itation to the jury to r

eturn a compromise or otherwise unwarranted verdic

t.

The appellant testified in this case that he did no t sexually assault Mrs. Dobbs at all. Howev

er, he also argued to the j ury that, regardles s of whether or not the jury accredited hi s testimony, the State’s pr oof did not support a finding of penetration and, therefore, a conv iction of rape. The appellant asser ts on appeal that Mrs. Dobbs’ testimony supported instead a convic tion of sexual battery. Yet, the appellant himself concedes that the trial court did charge the jury w

ith the lesser grade o ffense of aggravated

sexual battery. In light of the undisputed evi dence of bodily injury 4 presented at tr ial, we conclude th at the trial court ’s failure to cha rge sexual battery to the jury did not constitute error.

Additionally, as to the c harge of the attempted rape of Edna Hampton, the appellant contends that the tr ial court should have i nstructed the jury on the offense of sexual battery. Sex ual battery is a less

er grade offense of attempted rape. See, e.g., State v. Cleveland , 959 S.W.2d 548, 554 n.5 (Tenn. 1997)(sexual battery is a lesser grade offense of attempted aggravat ed rape). We earlier noted that, in contrast to the offense of rape, s exual battery requ ires “sexual contact ” rather than “sexual penetr ation.” The appellant’s aunt tes tified at trial that the appellant removed his pants, exposing his genitalia, and attempted un successfully16 to remove her nightshir t and separate her legs. M s. Hampton stated that she was wearing no clothing underneath her nightgown. She recalled that the appellant’s genitalia did not touch her, although his penis w as close to her genital area during the struggle. She als

o testified that the appellant did not “sexually touch [her] or penetrate [her] in any w ay.” Nevertheless , Ms. Hampton possessed no doubt that the appellant intended to rape her. In fact, the evidence at tr ial established that, on the same night, the appellant broke into another hom e and raped the female occupant. The appellant denied that a sexual assau lt of any kind occurred. Rather, he contended that he struggled with his aunt in order to silence and subdue her.

In summary, the evidence established that the appellant tou ched Ms. Hampton’s nightgown d uring their strugg le. Again, “sexual contact” does include “the intentional touching ... of the clothing coveri ng the immediate area of the victim’s ... intimate pa rts, if that touching can be reasonably construed as be ing for the purpose of sexual arousal or gratification.” Tenn. C ode Ann. § 39-13-501(6). However, neither the State nor the appellant adduced ev idence that the appellant touched Ms. Hampton’s night gown for the purpose of sex ual arousal or gratific

ation. The appellant explicitly denied that he touched his aunt for th e purpose of sexual arousal or gratificati on. Moreover, as noted ear lier, evidence that the appellant intended to rape Ms. Hampton, w ithout more, does not mandate an instr uction on the lesse r grade of fense o f sexual b attery.

The trial court did instr

uct the jury on the offense of attempted aggravated sexual

battery. Again, sex

ual battery is a less

er grade offense of attempted rape. Moreover, aggravated sexual battery is a lesser

grade offense of attempted aggravated rape. However, aggravated sexual battery is not a lesser grade offen se of rape. Bot h rape and aggravat ed sexual batter y, although contained in the same part of the code, are Class B felonies. Tenn. Co de Ann. § 39-12-1 07(a) (19 97) would r educe ea ch offe nse to a Cl ass C felo ny. Accord ingly,17 neither offense is a lesser gr ade than the other. Cf. Jett , No. 01C01-9707-CR00236, 1998 WL 598524, at *6 (both stalking and har assment are Class A misdeme anors, an d theref ore neith er is a less er grade th an the ot her). Acco rdingly, the trial court erred by

instructing the jury

on the offense of aggravated sex ual battery. Neverthel ess, because the appellant w as convicted of the greater offense, we conclude that any error in this regard was harmless.

Finally, with r

espect to the charged offense of robbery, the appellant argues that the trial co urt should have instruc ted the jury on the lesser included offense of theft of property. We agree that theft is a lesse r included offense of robbery. State v. Sherrod , No. 02C01-9510-CR-00331, 1996 WL 417661, at *3 (Tenn. Crim. App. at Jackson, July 26, 1996). How ever, this determination does not finish our inquiry. We must determine if the evidence adduced at trial would permit a rational trier of fact to find th e defendant guilty of the theft and not g uilty of robbery. Elder , 982 S.W.2d at 877.
A theft occurs when a person , “with intent to depri ve the owner of the property, ... knowin gly obtains or ex ercises control over

the property without

the owner’s effective consent. ” Tenn. Code Ann. § 39-14-103 (1997) . A robbery “is the intentional or knowing

theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. §39-13-401 (1997).
A majority of the panel belie ves that the evidence j ustifies a rational juror having a reasonable doubt about the theft being “ from the person of another by violence or putting the person in fear.” The majority’s view is that the defendant’s knocking items to the floor, grabbing the wallet and leaving the scene--done while Mr. Dobbs remained in bed-- do not constitute overw helming proof that the theft was from the person accomplished by violence or by putting the person in fear. Th us, they conclude that an instr uction on theft should have been g iven.18 However, the author of this opinion believes that the evidence overwhelmingly

establishes the crime of robber y and that there is no cr edible view of the evidence on which the defendant could have been found guilt y of a lesser included offense of theft. State v. Sherrod , N o. 02 C0 1- 95 10 -C R- 00 33 1, 19 96 WL 417611, at *3.

Mrs. Dobbs testified that, after raping her, the appella nt ran into her husband’s room, where her husband was lying on his bed. Mrs. Dobbs foll owed the appellant and observed the appellant first violently push several items to the flo or, including her husband’s r espirator, and then grab her husband’s wallet from the foot of his bed. That Mr. Dobbs was fully aware of the appellant’s actions is demonstrated by Mrs. Dobbs’ testimony that he crie d out to her that the appellant was taking his w

allet. Additionally,Mrs. Dobbs testified that s he and her husband were “scared to death.” Mrs. Dobbs’ daughter -in-law and the polic

e who arrived on the scene immediately follow ing the offenses testified that Mr. Dobbs appeared upset and frightened. On the basi s of this evidence, the author of this opinion believes t he trial co urt prope rly instruc ted the ju ry.

III. Conclusion For the foregoing reasons , we reverse the appel lant’s robbery conv iction and otherwise affirm the judgment of the trial court.

____________________________ Norma McGee Ogle, Judge
CONCUR:

_________________________ John H. Peay, Jud ge

_________________________19 Joseph M. Tipto n, Judge