1 It is the policy of this co urt to refer to a ch ild victim of a sexual o ffense by his or her initials.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs J anuary 8, 2002 STATE OF TENN ESSEE v. MICHAEL E LVIS GREEN Direct Appeal from the Circuit Court for Har deman County No. 6368 Jon Kerry Blackwood, Judge

No. W2001-00455-CCA-R3-CD - Filed March 8, 2002

A Hardeman County jury found the defe ndant guil

ty of rape. Four issues are raised on appea l: (1) whether there was sufficient evidence to support the conviction; (2) whether the trial court erred in denying the defe

ndant a continuance; (3) whether evidence of the defenda nt’s escape from jail was improper ly admitted; and (4) whether the trial court should have char ged the jury as to sexual battery, statutory rape, and Class B misdemeanor assault a s lesser-included offenses of rape. W e affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERETT W ILL IAMS , JJ., joined. Scottie O. Wilkes, Memphis, Tennessee, for the appellant, Michael Elvis Green.
P aul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General ; Elizabe th T. Rice, District Attorney General; and James W. Freeland, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION
The victim, S.T., who was 13 years old at the time of the offense, testified the defendant entered her home and rap ed her. 1 She stated she resided in an apartment in Bolivar with her grandmother; her gra

ndmother ’s husband, Cornel Robinson; a

nd a nine- year-o ld cousin. According to the victim , in the ea

rly afte rnoon of A

pril 15, 1999, she received a phone call from a male who would not give his name. She said she refused to speak to him.2 Lill ie Boden test ifi ed her name was Lilli e Boden Bro wn ; how eve r, othe r witn esses re pea tedly referr ed to her
as Lillie B ode n du ring their testim ony . T he in dictm ent li sti ng her as a wit ness i ndicated her name was “Lillie Mae Bowden,” while the tr anscript shows her name as “Lill ie Boden.”

-2- That evening, her grandmother spent the night elsewhere. The victim said she was awakened at 11:00 p.m. by a

telephone call from a man who identified himself as Demetrius, her cousin. She said the calle r ID indic ated the

calloriginated from the home of Lillie Boden, a relative who lived nearby. 2 The call er aske d her toopen the d oor to the apartme nt so he could use the restroom. The victim testifie d she comp lied with the requ est

and found the defendant, whom she did not know, at the door. She stated the defendant pushed her inside the apartment a nd threw her on the couch. She said the defendant attempted to put on a condom, but it fell to the floor when she pushed him. According to the victim, the defenda nt tore of f her box er short s and forced her to have intercourse

. She testified she told the defendant “No, no, no” and screa med for Cornel Robinson. Robinson and the victim’s young cousin were both sleeping; neither of them woke during the offense. According to the victim , Ro binson had been drinking bef

ore he w ent to slee

p and was , theref

ore, dif ficult to awaken.
The victim sta

ted the de fendant threate ned to tak e her to his van and put a gun on her if she didnot stop screaming. She said the defendant fled from the apartment when she screamed louder. She estimated the defendant was in the apartment approximately f ive to ten minutes.
The victim testified she called the hospital and then the police, who arrived within ten minutes. The victim testified the defendant telephoned her again a fter the police arrived and asked her not to call the police. She informed him she had a lready c alled the

m. She den

ied spea king with the defendant prior to the date of the incident. Sergean t Eddie Henson testified he arrived at the victim’s apartment at 1:02 a.m. He found the victim standing in front o f the apa rtment hol ding a tel ephone. Accord ing to Hen son, the vi ctim handedhim

the phone after she said, “This is him.” Henson stated a man on the other e nd of the telephone asked if

Joe Joneswas t

here, a nd hung up when Henson identified himself as a police officer. Henson said he answered the phone when it rang a gain abo ut a minute

la ter. Henson testified the caller, who identified himsel f as Mark Murphy, sounded like the same man. Henson stated the calle

r told him he was looking for Joe Jones, whom he claimed to have dropped off a t the victim’s apartment. Henson said the caller mentioned he heard a r umor that the victim accused Joe Jones of sexual assault. Henson said the two calls were rec eived at 1:06 and 1:07 a.m. Henson a

lso testified Cornel Robinson was awakened by the victim about 20 minutes after Henson arrived at the apartment. Henson stated Robinson appeared “groggy.”3 Th e def end ant w as co nvic ted o f felon y esc ape prior to his trial o n the rape char ge. -3- A registered nurse testified she collected samples, including a vaginal swab, from thevictim as part of a

rape kit . She said

the victim

was “fr ightened and crying.” She a

lso stated the victim

was no tbleeding and had no abrasions or bruises. TBI forensic scie ntist Constance Howard

testifie d DNA from sperm collected from the vaginal swab matc hed the defendant’s DNA.
Officer Patrick J o rdan testified he examined the caller ID a t the victim’s apartment. It recorded a telephone call from the Lillie Boden residence at 11:30 p.m. and two c alls fromthe Earl e Neely residence at 1:06 and 1:07 a.m. Office r Jordan stated he found an unopened condom under a window in the victim’s living room.
Earle Neely, th

e defendant’s ste

pfather , testifie d the def

endant w as resid

ing with him

in nearby Whiteville on the date of the offense. Neely stated he was not familiar with anyone named Mark Murphy or Joe Jones.
Lillie Boden tes tified tha

t betwee n 11:00 p.m a

nd 12:00 a .m. on the evening of the offense, she allowed the defendant to use her telephone. She stated the defendant walked toward the victim’s home after he finished using her telephone.
Frances Turner, a jailer at the Hardeman County Jail, testified the defendant ran out of the jail while she was booking him. Turner stated the defendant was re turned to the ja

il by a police officer 30 to 45 minutes later. 3
The 22-year-old defendant testified he had been

speaking with the victim every other day for a period of two weeks before the incident, but he had never seen her befor e that night. He said the victim indicated she wanted to “hook up” with him. He stated he was at home when he received a phone call fro m the vic tim , who asked him to come to her home around midnight after her grandmother

left for work. The defendant said the victim called him aga in after her g randm other left, and he traveled to Bolivar.
He testified he called the victim twice for directions to her home af ter he arrived

in Bolivar. The defenda

nt denied using Lillie

Bo den’s teleph one. He testified the victim was standing at the door of the apartment when he arrived. He stated the y entered the apartment, where they sa t on the couch and h a d a conve

rsation a bout having sex. Ac cording t o the def endant, h e and the victim proceeded

to have consensual sex using a condom. The defendant testified his encounter with the victim lasted less than seven m in utes, after which he immediately left the apartment. He sa id he briefly greeted Lillie Boden as he walked to his car. He testified he then went straight home, took a shower, and went to sleep. He denied telephoning the victim’s apa rtment after

the incid ent. He also testifie d he walk

ed out of t

he Hard eman Coun

ty Jail while he w as being b ooked be cause officers were laughing at him.-4-

Captain Bill Irons of the Bolivar Police Department testified that following the defendant’s arrest, the defendant denied having sex with the victim. The jury found the defendant guilty of rape.

I. SUFFICIENCY OF THE EVIDENCE
The defendant argues the evidenc e presented by the state was insufficient to prove he forced the victim to have sex. We do not agree.
A. Standard of Review
In Tennessee, great weig

ht is given to the result reached by the jury in a cr

iminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 ( Tenn. 199 4). On ap peal, the state is e ntitled to t

he strong est

legitimate view of the evide nce and all reas onable in

ferenc es which

may be draw n theref

rom. Id. ; Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).
The relevant question for an appellate court is whether , after viewing the evidence in the light most favora ble to the prosecu tion, any rationa l trier of fact could have f

ound the e ssential e

lements of the crime or crimes bey ond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. A brams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony are matters entrus ted exclusively

to the jury as the trier s of fact. State v. She ffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). B. Analysis
The defenda

nt was ch arged

with rape

under tha

t portion o f the stat

ute pr ohibiting the “unlawful sexual penetrati on ” of the victim by “f orce or coercion.” Tenn. Code Ann. § 39- 13- 503(a)(1). In the instant

case, both the victim and the defendant testified they had sexual intercourse. Therefore, the

pivotal iss ue for the jury

was whet her the intercou

rse was f orced or consensu al. The vict imtestified the defendant was a strange r who entered her home and penetra ted her by force , while the defendant testified the victim consented to sex. The victim testified the defendant gained entry to her home by posing a s a relative in a phone call made just prior to the incident. The caller ID in the victim’s apartment showed a call was receive d from Li llie Boden’s home at 11:30 p.m., and Boden te stified the defendant made a call fr om her hom

e at appr oximately that time. The defendant deniedmaking s uch a ca

ll. The sta

te’s pro of also e stablishe d two phone calls were placed from the defe ndant’s r esidenc e shortly

after the offense by

a caller who knew the victim had alleged a sexual assault. The defendant also denied having made thos e phone c alls, although he admitted going home immediately following his e ncounter with the victim. The jury, as wasits prerogative,-5-

believ ed the v ictim and disbelieved the defendant. We are without authority to re-weigh the evidence presented to the jury . The proof was sufficient to support the jury ’s verdict.

II. CONTINUANCE
The defendant

complain s the tria

l court e rred by failing to gran t a contin uance in order to allow counsel to interview a potential witness, who might establish that the victim and the defendant had a “friendly

relationship.” The record shows the defenda nt filed a written motion on the date of trial request

ing a co ntinuanc e to allow defense counsel to interview the witness, who alleg edly was in M innesota . Neit

her the m otion nor t

he reco rd indica tes what e

fforts w ere mad

e by counsel t o locate or interview the witness prior to the filing of th e m ot io n. Mo st im po rt an tl y, the record does notcontain a transcript of a he aring nor the trial court’s ruling on the motion. The trial transcript indicates the trial court gave the parties the opportunity to address preliminary

matters prior to the start of the trial, and defense counsel made no mention of the motion.
It is the requesting party ’s responsibility to bring a motion to the attention of the trial cou rt. Tenn. R. App. P. 36 (a); State v. H all , 8 S.W.3d 593, 603 (Tenn. 1999). Further more, it isthe duty of the appellant to provide a record which convey s a fair, accurate and complete account of what transpiredwith regard

to the issues which form

the basisof the ap

peal. Te nn. R. App. P. 24(b); State v. Taylor , 992 S.W.2d 941, 944 (Tenn. 1999). The issue has been waived.

III. PROOF OF ESCAPE
The defendant contends proof of his escape from the Hardeman County Jail was improper ly admitted. The defendant maintains theprobative value of the evidence is outweighed by the dang er of unfair prejudice. We do not agree

. Proof of an escape or attempted escape fr om custody after be

ing charged

is releva nt to show guilt, c onsciousness of g uilt, or guilty knowledge. State v. Burton , 751 S.W. 2d 440, 450 (Tenn. Crim. App. 1988); see also State v. Zagorski , 701 S.W.2d 808, 8 13 (T enn. 1985) . We concur with the trial court that the proof of thedefendant’s escape from the jail during booking is ind icative o f the def

endant’ s consciousness of guilt, a nd that the

probativ e value o f th i s evidenc e was not

outweig hed by the dang er of unf

air pre judice to the defe ndant. This issue

is without merit.

IV. LESSER-I NCLUDED O FFENS ES
Defendant

contends the trial court instruc ted th e jury only as to the indicted charge of rape and erred in failing to charge the jury a s t o sexual b attery, statutory rape, a nd Class B misdemeanor assault as lesser-included offenses.-6-

We initially note the defendant ha s failedto include the jury instructi ons in the a

ppellate record. As previously stated, it is the duty of the accused to provide a proper r eco rd of what transpiredwith r egard

to the issue s raised

on appea l. Tenn. R. App. P. 24(

b); see Taylor , 992 S.W.2d at 944. However, the tr ial t ranscr ipt i ndica tes th e tria l cour t advi sed th at it would charge the jury only

as to rape, and the state does not allege w aiver. We will address this issue.
The trial court has a du ty to instruct the jur y on any lesser-included offenses of the charg ed offe

nse when such instruction is supported by the evidenc e, regardless of whether the defendant has requested such an instruction. State v. Bowles , 52 S.W.3d 69, 74 (Tenn. 2001); State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999). The standard for an appellate court’s r eview of a trial c ourt’ s charge to the jury reg arding lesser-included offense s is de novo with no presumption of correctness. Bowles , 52 S.W.3d at 74.
In Burns , our stat

e suprem e court s tated an

offense is a lesse r-includ ed offe nse if: (a) all of its s tatutory

elementsare inc luded with in the stat

utory elements of t he offense charged; or (b) it fails to m

eet the d efinit ion in par

t (a) only in the re spect tha

t it contains a statu tory elem ent or eleme nts es tabli shin g (1) a diffe

rent m ental st at e i nd ic at in g a le ss er ki nd of cu lp ab il it y; 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 off ense tha t otherwi se meets the defini tion of les ser-included offense in part (a) or (b); or (2) an attempt to com mit the offense charged or an of fense that otherwis e meets the

definitio n of lesse

r-in cl uded offense in part (a) or (b); or (3) solicitation to commit the offen se cha rged or an offense that otherwis e meets the definition of lesser-included of fe nse in part (a) or (b).
6 S.W.3d at 466-67.
If an offense is found to be a lesser-included off ense, the c ourt m

ust ne xtdetermine whether the evidence justified a jury instruction on the offense. Bowles , 52 S.W.3d a t 75. This second step requires the reviewing court to determine (1) whe ther t here is evidenc e that “r easonab le minds” could accept to establish the lesser-included offense, a nd (2) whether the evi dence is “lega lly sufficie nt” to support a conviction for the lesser-included offense. State v. El y , 48 S.W.3d 710, 722 (Tenn. 2001); Burns , 6 S.W.3d at 469. If the evidence justifies an instruction, the fai lure t o charge the offense is error eve n though the evidence was also sufficient to support the g reater offense. Burns , 6 S.W.3d at 472.-7-

The evidence, not the theories of the parties, determines whetheran instruction on a lesserincluded offense should be given. State v. Allen , ___ S.W.3d ___, ___, No. E1998-00416-SC-R11- CD, slip op. at 5 (Tenn. Feb. 22, 2002, at Knoxville). Furthermore, the de cision to convict on a lesser-included

offense should not b e taken f

rom the jur

y simply because the element distinguishing the greater offense f

rom the lesser offense is “uncontroverted.” Id . at ___, slip op. at 6-7.
A. Sexual Ba

ttery a nd Assault Rape by force

or coercion has two elements: (1) unlawful sexual penetration, and (2) force or coercion used to accomplish the act. Tenn. Code Ann. § 39-13-503( a)(1). Sexual penet ration incl udes sex ual intercourse along with various other sex acts which ca use an intrusion, however slight, into the body. Tenn. Code Ann. § 39-13-501(7). However, the statutory definition of rape does not manda

te that an y of the actsbe committed for the purpose of sexual arousal or gratification. See id

. The offense of sexual battery includes “unlawful sexual contact” accompanied by “force or coercion.” See Tenn. Code Ann. § 39-13-505(a)(1). The statutory definition of s exual contact includes intentional touching of a victim’s intimate parts which can bereasonably construed as being for the purpose of sexual arousal or gratifica tion. See Tenn. Code Ann. § 39-13-501(6).
In Bowles , our state supreme court conclud ed that sex ua l b at te ry was a lesser-included offense of aggravated r

ape under Burns part (b). 52 S.W.3d at 77. The Bowles court reasoned that while sexual battery require s the act to be done for sexual arousal or gra tification, an e lement no t found in the offense of aggr avated rape, “the statuto ry scheme treats rape as a more serious blameworthy

offense than sexual battery .” Id . Thus, it found sexual battery to be a lesser-included offense of aggr

avated rape. Id

. We assume that

if sexual battery is a lesser- included offense of aggravated ra pe under Burns part (b), then sexual battery is also a lesser-included offense of rape
. Likewise, the hold

ings of the sta

te supre me court could ar guably indicate that ClassB misdemeanor

assault, defined

by Tennesse e Code An

notated s ection 39 -13-101( a)(3) a s an assa ult caused by intentional or knowing phy sical contact which a reasona ble per son would regard as extremely offensive or provocative, is also a lesser-included of fense of rape. I

n Statev. Sw indle , the T enn essee Sup

reme Cour

t found Cla ss B misde

meanor a ssault to be

a lesser -include d offens e of aggravated sexual battery under part (b) of Burns . 30 S.W.3d 289, 293 (Tenn. 2000). It follows that it wo uld also be a lesser-included offense of sexual battery ; and since, as we have previous l y stat ed, sexual battery is a lesse r-included offense of rape under Burns part (b), it is arguable that Class B misdemeanor assault is a lesser-included offe nse of rape. We are uncertain whe ther Burns dictates such a result; however, we need not re solve this issue in this appeal.
Even if sexual battery and Class B misdeme anor assault should have been charg ed as lesserincluded offenses, the failure to charg e t hem was harmless error. Harmless error re lating to the-8-

failure to charge lesser-included off enses must be shown “beyond a reasonable doubt.” State v. El y , 48 S.W.3d 710, 727 (Tenn. 2001). Har mless error may be shown where the jury convicts on the highest offense to the exclusion of the immediately lesser offe nse, necessarily

rejecting other lesser offense s. State v. Will

iams , 977 S.W.2d 101, 106 (Tenn. 1998) . Here, no lesser offenses were ch arged. N evertheless, harmless error is not limited to the Williams rejecti on of an in termedia te lesser offense; the proper inquiry is “whether

it appears bey ond a reasonable doubt that the e rror did not affect the outcome of the trial.” Allen , ___ S.W.3d at ___, slip op. at 9.
In makin g the de termi natio n regard ing harmless error, this court must examine the entire record, including the evidence at trial, the theory of the

defense and the verdict. Id . Here, both the victim and defendant testified there was sexual penetration. The re was no evidence that the defendant’s ac ti on co ns ti tu te d m er e c on ta ct as op po se d t o p en et ra ti on . T he de fe ns e t he or y w as base d entirely u pon the alleged consen t of the victim. The c ircumsta ntial evid ence wa s strong ly corroborative of the victim’s testimony and was inconsistent

withthe defendant’s testimony . The ju ry, by its verdict, acc

redited the victim’s testimony and rejected the defendant’s testimony and his theory of de

fense.
Ac co rd in gl y, we conclude bey ond a reasonable doubt that thefailu re to ch arge sexual battery and Class B misdeme anor ass ault did no t affect the outc ome of the trial and was, at most, ha

rmless error. B. Statuto ry Rape
The defendant argues the trial cour t erred by not instructing the jury on statutory rape. The Tennessee Supreme Court, applying the Burns analysis, has held statutory rape is not a lesserincluded offense of rape. State v. Stokes , 24 S.W.3d 303, 305-06 (Tenn. 2000). Therefore, the trial court did not er r infailing

to charg e the jur

y a s to statutory rape a s a lesser-included offense of rape

.

CONCLUSION
Accord ingly , we aff

irm the jud

gment of the trial court.

JOE G. RILEY, JUDGE