# FILED
April 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9805-CR-00202 ) vs. ) Davidson County ) TINA SWINDLE, ) Honorable Seth Norman ) Appellant. ) (Facilitation of Rape of a Child, ) 2 counts; A

ggravated Sexual ) battery, 2 counts) ) FOR THE APPELLANT: FOR THE APPELLEE: TERRY J. CANADY PAUL G. SUMMERS Suite 400, 211 Printer’s Alley Bldg. Attorney General & Reporter Nashville, TN 37201 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Av enue North 2d Floor, Cord ell Hull Building Nashville , TN 37243 LILA STATOM BILL REED Asst. Di strict Attorneys Gener al Washington Sq.Two - Ste. 500 222 Second Avenue, North Nashvi lle, TN 37201

OPINION FILED: _____________ AFFIRMED
JAMES CURWOOD

WITT, JR., JUDGE2 OPINION
The defendant, Tina Swindle, appeals fro m two ofthe four convictions she received after a jury trial in the Davids

on County Criminal Cou rt. The defendant was convicted of the follow ing offenses: Count : Offense : Sentence : (1) Facilitation of rape of a child 10 years (2) Facilitation of rape of a child 8 years (3) Aggravated sexual battery 8 years (4) Aggravated sexual battery 8 y ears All of the convictions consti tute Class B felonies, and the defendant was sentenced
as a Range I, standard o ffender. Al l of these sentences were i mposed to run
concurre ntly. The defenda nt appe als only from the convic tions of aggravated sexual battery. The single issue on appeal i s whether the defendant was d enied her rightsto a trial by jury when the trial court failed to instruct the jury as to the offense of assault. After a review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

Th e charges originated i n an indictment that charged t he defendant and Daniel Hal l wi th the commission of various sexual offenses. The victim of all these offenses is the defenda nt’s daughter, who was nine years of age at the time the offenses were committed. The charg es against Daniel Hall were severed from the defendant’s charges.

Th e def endant and the victim’s father were divorced, and t he defendant exercised visi tation with the victim on alternate weekends. Someti mes during these visitations, Daniel Hall, the defendant’s boyfriend, was pr esent in the defendant’s home. On one such occasion, the victim w as in bed with the defendant and Daniel Hall while Hall was performing cunnilingus on the defendant. The victim testified that the defendant asked Hall, “Why don’t you do it to [the victim] for a little while?” The victim testified that Hall then moved over and “done it to me.” She said the defend ant assis ted Hall b y g rab bing the victim on the thighs and opening her3

legs. The state elected this episode as the basis for count (1). For count (2), the state elect ed a separate episode in which defendant opene d the victim’s legs in order to accommodate Hall’s act of cunniling us. To establish the aggr avated sexual battery charged in count (3), the state elected an episode in w hich the defendant took both of the victim’s hands, put them on Hall’s penis and made the victim “pull up and down on it.” To establish the ag gravated sexual batt ery charge contained in count (4), thestate elected an episode wh ich was described by the victim as the defendant placing her handon the victim’s “front pri vate part and . . . rubbing it up and down.”

The defendant offered no proof; however, during the state’s case in chief, the investigating officer introduced a tape of the defendant ’s pre trial statement. She generally denied involvement in the crimes.

The defendant contends with respect to counts (3) and (4), the trial court should have instructed t he jury as to the lesser included offe nse of assault. On the other hand, the state contends that there was no basis in the proof to warrant the charge on assault. The state also maintains that, if the failure to give the assault instruction was error, the error was harmless.

As used in the present case, aggr avated sexual battery “is unlawful sexual contact wi th a vi ctim by th e defendant or the defendant by a vic tim [when]

. . . the vic

tim is less than t hirteen (13) years of ag e.” Tenn. Code Ann. § 39-13- 504(a)(4) (1997). “‘Sexual cont act’ includes theintentional touching of the victim’s, the defendant’s, or any other person’s intimate parts . . . if that i ntentional touching
can be reasonably construed as being for th e purpo se of sexual arousal or gratification.” Tenn. Code A nn. § 39-13-501(6) (1997).

Assault is committed by a person who “intentionally or knowingly
causes physical contact with anot her and a reasonable person w ould regard the4

contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a)(3) (1997). An assault defined in section 39-13-101(a)(3) is a Class B misdemeanor.

The trial court is obliged to instruct the jury on all lesser offenses when the evidence contains f act s that “‘are susceptible of inferring guilt of any lesser included offense.”’ State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 19 96) (quoting State v. Wright , 618 S.W.2d 310 (Tenn. Crim. Ap p. 198 1)). However, w hen “the evidence in a record clearly shows that the

defenda nt was guilty of the greater offense and is devoid of any evidence permittin g an inference of guilt of the lesser offense, the trial court’s failure to charge on a lesser offense is not error.” State v. Stephenson , 878 S.W.2d 530, 55 0 (Tenn. 1994).

In su pport of his claim that assault should have been charged, th e defendant relies upon State v. Howard , 926 S.W.2d 579 (Te nn. Crim. App. 1996), overruled on other grounds , State v. Willia ms , 977 S.W.2d 101, 10 6, (Tenn. 1998). In Howard , “the evidence adduced at trial establish ed that the defendant rubbed the victim’s butt ocks, legs and back . . . [and] tried to place his hands between the victi m’s legs and to force the victim to suck this thumb.” Howard , 9 26 S. W. 2d a t 584. Howard claimed

the trial court “err

ed by refusing to instru ct the jury on assault,
a lesser included offense of aggravated sexual battery.” Id . at 585. This court held that assault as defined in code section39-13-101(a)(3) is “ clearly a lesser i ncluded offense” of aggrava ted sexu al b attery and that the trial court erred in failing

to instruct on the lesser offense of ass ault. Id . at 586-87.

To be sure, Howard is embl ematic o f a number of Tennessee cases which have held that assaultiv e offenses are lesser included offense of v arious forms of sexual offenses. See State v. Jeffrey Edward Pitts , No. 01C01-9701-CC00003, slip op. at 15, n. 8 (Ten n. Crim. App., Nashvil le, Mar. 18, 1999) (parti es agreed that, under Howard , assault is a lesser included offense of sexual battery); Terry Lewis v. Metropolitan Genera l Sessions Ct. , No. 01C01-9410-CC-00355, slip5

op. at 14, (Tenn. Crim. App., Nash ville, Feb. 13, 1996)

(“Assault and battery was a lesser included offense of sexual contact.” ), perm . app . denied (Tenn. 1997); State
v. Grady E. Shofner , No. 03C01-9403-CR-00113, sli p op. at 10 (Tenn. Crim. App., Knoxville, June 27, 1 995) (“ Assault has long been consi dered a lesser-included offense of rape and sexual battery in Tennessee.”); State v. Banes , 874 S.W.2d 73, 79 (Tenn. Crim. App. 1993) (under circumstances, j ury should have been instructed that aggravated sexual batterywas a lesser included offense of aggravated rape); Hershel Clark v. State , No. 02C01-9112-CR-00273, slip op. at 6 (Tenn. Crim. App., Jackson, June 2, 1993) (“Assault and battery has been held to be a lesser included offense of rape in this state.”) (c itations omitted); State v. Reed , 689 S.W.2d 190, 193-94 (Tenn. Crim. Ap p. 1984 ) (aggravated ass ault as alleged in the ind ictment
was a lesser included offense of aggr avated rape); State v. Johnson , 670 S.W. 2d 634, 637 (Tenn. Crim. App. 1984) (hol ding that the aggravated assault offense alleged in the indictment was a lesser included offense of aggravated rape).

We have c oncluded, however, that later cases have implicitly overruled Howard . Reso lu tion of this issue hinges on the approach taken to determining lesser included offenses. In Howard v. Stat e , 578 S.W.2d 83 (Tenn. 1979), the dissent

described three approaches: (1) the s tatutory approach, (2) the pleadings approach, and (3) the evidentiary approach. Howard , 578 S.W.2d at 86 (Henry, C.J., dissenting). The Howard v. State majority held that “an offense is necessarily included in another i f the elements of the greater offense, as those elements are set forth in the indictment , include, but are not congruent with, all the elements of the lesser.” Howard , 578 S.W.2d at 85 (emphasis added). Howard v. State rej ected an evidentiary approa ch and has been construed to mandate a pleadings approach in comparing the el ements of greater and lesser offenses. Reed , 689 S.W.2d at 193-94 (aggravated assault “may or may not” be a less e r included offense of aggravated rape, “ depending upon the allegations in the indictment ,” citing Howard v. State ) (emphasis added); Johnson , 670 S.W.2d at 637 (aggravatedassault included in offense of aggravated rape, based u pon allegations1 Cleveland and Howard may be viewed as har monious. Footnote 5 in Cleveland does not necessarily r eject the Howard holding because Cleveland includes aggravated

sexual battery in the listing of “lesser grades or classes” of offenses of attempted aggravated rape and does not purport to say t hat the former is a lesser included offense of the latter. Therefore, the fact that assault is neither a lesser g rade nor lesser included offense of attempted aggravated rape does not necessarily exclude it as a lesser

included offense of aggravated sexual battery. Howard says that section 39-13- 101(a)(3) assault is a lesser included offens e of aggra vated sexu al batte ry. 6 in the indictment); but see State v. GregoryCoulson , No. 01C01-9709-CR-00397, slip op. at 3-4 (Tenn. Crim. App., Nashv ille, Sept. 15, 1998) (commenti ng that Howard v. State took the statutory approac h to element analys is). Under a pleadings approach, “a le sser off ense may be included in the greater if the language

in the charging inst rument . . . sets forth the element s of the lesser offense even though under the statut ory definitions it w

ould be possible to commit the greater offense without committing the lesser.” Coulson , slip op. at 4 (italics in original). Under

the statutory approac h the ele ments co ntained in the pro scriptive statutes are analyzed i n the abstract.

F or purposes of the present case, the earlier meanderin gs of ou r appellate courts we re brought to a halt by our supreme

court in State v. Cleveland , 959 S.W.2d 548 (Tenn. 1 998 ). In Cleveland , the court, apparently ta king the statutory approach, analyzed in the abstract the r espective statutory elements of aggravated assault and aggravated rape to determine that the latter is not a lesser included offense of the former. Cleveland , 959 S.W.2d at 553. Furthe r, the court said that “of the remaining offenses charg ed by the trial court, attempted rape , aggravated sexual battery, attempted aggravated sexual batt ery, sexual battery , and attempted sexual battery are lesser grade s or c lasses of the offenses [sic] of attempted aggravated rape . . . [and f]or the same reasons de scrib ed . . . [in the analysis of statutory elements], assault is neither a lesser grade of offense or [sic]
a lesser included offense ” of agg ravated rape. Cleveland , 959 S.W.2d at 554, n. 5. Although it may be ar gued that Cleveland did noteliminate assault as a lesser included offense of aggravated sexual battery , 1 we note that Judge Wade, the author of this court’s opinion in Howard has recently opined, based on Cleveland ,7

that “assault is neither a lesser grade nor a les ser included offense of sexual bat tery.” State v. Edward L. Davis , No. 02C01-9712-CC-00480, slip op. at 1 0 (Tenn. Crim. App., Jackson, Mar. 19, 1999) . In light of these recent developments,
we conclude that assault is not a lesser included offense of the offense of aggravated sexual bat tery.

Even if assault were a lesser included offense of aggravated sexual battery, the record reflects no basis for instructing the jur y as to the misdemeanor offense of assau lt. In the present c ase, the record is d evoid of a ny evid ence to support an inference that the defendant committed ass ault. In State v. Howard , this court observed that

the evidence did not

“establish that the touching was clearly of
a sexual nature, as is the case i n the ‘all or nothing’ line of cases which do not require instruction on a lesser included offense.” Howard , 926 S.W.2d at 586. In other words, Howar

d did not deny touching the victim; rather, he av

erred that any touching was devoid of sexual mean ing.

Despite the defendant’s e qu ivocal acknowledg ment in her pretrial statement that Hall possibly manipulated the defendant’s hand while the defendant
was unconscious, the

jury was left w

ith two options: they could accredit her pretr ial statement that she neither intentionally nor knowingly committed an offense against her daughter, or they could accredit the testimony of the victi m that the defendant intentionally committed the crimes. See State v. Sylvester Smith , No. 02C01-9202- CR-00028, slip op. at 4 (Tenn. Crim. App., Jackson, July 15, 1992). Based on the description of the offenses in the evidence, any unlawful contact was clearly unlawful sexual contact -- from th e incepti on and th roughout the activi ty. See Tenn. Code Ann. § 39-13-501(6), -504(a) (1997).

As in Hershel Clark , “no eviden ce w as offered that the attack was a simple assault devoid of sexual i nten t.” See Hershel Clark , slip op. at 7. Had assault been a lesser included offense of agg ravated sexual battery, the trial court8

would not have been required to instruct the jury as to such a l esser offense because the defendant “did no t, eit her through [her ] own testimony, or t hrough arg ument pla ce this issue before the jury.” Id . The proof “clearly show s that the defendant was guilty of the greater offense and is devoid of any evidence permittin g an inference of guilt of the lesser offe nse.” Stephenson , 878 S.W.2d at 550.

Having concluded that no error was committed, w e need not address the state’s argument that any error was harmless.

The judgment of the trial court i s affirmed.

________________________________ JAMES CURW OOD WIT T, JR., Judge

CONCUR:

____________________________ DAVID G. HAYES, Jud ge

____________________________ JOHN EVERETT W ILLIAMS, Judge