### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 13, 2001

STATE OF TENNESSEE v. JEFFREY L. MARCUM

Direct Appeal from the Circuit Court for Madison County No. 99-755 Roy B. Morgan, Jr., Judge

No. W2000-02698-CCA-R3-CD - January 23, 2002

The appellant, Jeffrey L. Marcum, appeals his convictions by a jury in the

Madison County Circu

it Courtof one co

unt of ra pe of a child, one c ount of ag gravate d sexual b attery, and one c ount of inc est. In this appeal, the appellant raises the following issues for our consideration: (1) whether the trial
court erred u nder Te nn. R. Evid. 412 in

limiting his cross-examination of the victim concerning her “sexual history and knowledge;” (2) whether the evidence adduced at tri al is sufficient to support the jury’s “verdict” of guilt; and (3) whether the trial court erred in failing to instruct the jury on the l esser-included

offense of attempt to commit rape of a child. Following a caref ul revi ew of th e record and t he parti es’ brie fs, we a ffirm the judgments of the tri al court for the o ffense s o f aggravated

sexual battery and incest, but we reverse the judgment for the offense of rape of a child and remand the case for a new trial on that charge.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

s of the C ircuit Court are A ffirmed in Part and Reversed and Remanded in Part.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J OE G. R ILEY , J., and C ORNELI A C LARK , S P

. J., joined.

Cliffo r d K. McGow n, Jr., Wa verly, Te nnessee (on appe al); Geo

rge Mort on Googe, Stephen P. Spracher (at trial and

on appeal), and J. Colin Morris (at trial), J ackson, Tenness ee, for the appe llant, Jeffre y L. Marcum.

Paul G. S u mmers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney Genera l; James G. “

Jerry” Woodall, District A ttorney G eneral ; and Jody S . Pickens, Assi s tant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factua

l Background On October 4, 1999, a Madison County Grand Jury returned a three-count indictment charging the appellant with rape of a child, aggravated sexual battery, and incest. The indictment

arose from the appellant’s sexualassault u pon his ten -year- oldstepdaughter, BV, in their Madison1 It is the po licy o f this court to wit hhold the iden tity of m inor victim s of sex ual o ffen ses, refe rring to them only by their initials.

-2- County home in November 1998. 1 The appellant’s case proceede d to trial on January 19, 2000. At trial, BV testifi ed that she was cu rrently eleven years old. She further related to the jury that she and her younger brother, Brandon, were in the sole car e of the appellant

on the eve

ning of hisoffense s. Specifically, both the app ellant and the children were in the living room of their home watching
cartoons on television. BV was seated besidethe appellant on the couch, and Brandon was lying on the floor. BV

recalled that, before assaulting her, the appellant ordered Brandon to keep “his head down” on the floor. The appe llant then placed h is penis a gainst BV’ s “priva

te part” “between [her] legs.” Accord

ing to BV, the appell ant “tried to ” penetr ate her “privat e part.”The appe

llant also “touc hed [her private part] with his hands and mouth” and “[p]ut his hands a nd mouth on [her ] [breasts].” Finally, the appellant forced BV to perform fellatio upon him. BV recalled that, during the assault, sh e as ked the appellant to stop, but he ignored her plea. Following the assault, the appellant instruc ted her t o “tell no one because he would get in trouble.” Notwithstanding the appellant ’s instruction, BV later reported the incident to the appellant’s sister, Teresa Smith. B V indi cated that she was forced to confide in Smith because Smith’s daughter found and r ead BV’ s written a ccount of the incid ent.

Brandon confirmed at trial that, on the evening of November 25, 1998, h e and his sister were in the sole care of the appe llant. Like BV, Brandon testified that the appellant was in the living room with the children watching cartoons on television. Brandon reca ll ed that they were watching Rugrats. He also recalled th at he wa s lying alo ne on the f loor “where a bi g coffe e table was.” He denied remembering anything “out of the or dinary happening.” However, he conceded that he “pa[ id] prett

y close a ttention to

cartoons when. . . watching them. ” He also conced ed that,

on the evening in question, the appellant pushed his head “down on the ground,” instructing him to “stay down . . . or he was going to whip me.” Brandon remained on the floor wa tching ca rtoons unt il his mother returned home.

Teresa Smith, the appellant’s sister, testifiedthat the appellant and his family visited her home on Thanksgiving in 1998. Following the Thanksgiving celebration, the appellant and his wife returned home, but BV and B rando n spent the night with the Smiths. On the following morning, Smith’s two eldest children reporte d to her th at BV had w ritten se xuallygraphic material and had drawn pictures in a diary belonging to their younger sibling. Smith testified:

I talked to

[BV] alo ne proba

bly for 30

minutes or longe r. I knew from what - - the diary in there that there was something wrong, that she wouldn’t have writtenthe things she did had somebody not been molesting [BV]. She deni ed it repeatedly for at least 30 minutes or
more, and then when I to ld [BV] that I was going to have to call her mother and show her mother thediary, [BV] begged me not to. She told me that if I did, her mother would not allow her to see her daddy anymore.-3- Annette Lay, an empl oyee of the Department of Children’s Services, testified that she interviewed

BV concerning allegations that the child had been sexually assaulted by her stepfather. BV reported to Lay that the appellant had forced he r to perform fellatio uponhim, had fondled her breasts, and had touched her “tee-tee” with his “private part.”

Angela Marcum, BV and Bra

ndon’s moth er, confirmed at trial that, in 1998, she freque ntly left the children in the appellant’s sole car e. She fu rther te stified th at, after learning of BV’s allegati ons, she a sked the a ppellant to leave their home , and she

and the a ppellant decided to initiate divorce procee dings. On September 1, 1999, the appellant telephoned her and apologized “for all the heartache and pain [he had] caused.”

Gus Marc um, the appellant’s brother, testified at trial that he discussed BV’s allegations with the appellant, and the appellant denied sexually a ssaulting his stepdaughter. However, Marcum acknowledged tape-rec orded statements that he had made to Angela Marcum indicating the contr

ary. Mar cum volunt

eered t wo alter native e xplanati ons for hi s stateme nts. First, he claimed that, because he was drunk at the time of

his conve rsation w ith Ms. Mar

cum and because he was attempting to retrieve personal property from Ms. Marcum’s home
, he simply told his sisterin-law whateve

r she wa nted to he ar. Seco nd, he cla ime d that he did not e

xpress himself cle arly during his convers ation with Ms. Marcum and nev er inten ded to sugg est that th e appell ant ha d confess ed to him.

The appella

nt testified on his own behalf. He denied sexually assaulting BV in any way. In particular, he noted that he had not baby-sat his stepchildren since 1997 because someone had submitted a complaint to the Department of Children’s Services that he was beating the children. The appellant

further asserted that, following BV’s allegations, he decided to seek a divorce from Angela Marcum, but Ms. Mar

cum opposed his deci sion and, a long with th

e childr en, would freque ntly visit him at his workplace. The appellant claimed that he was ultimately forced to petition a court f or an ord er of pr otection against M s. Marcu

m.
Following the parties’ presentation of proof, the trial court instructed the jury on the offenses of rape of a child, aggravated sexual battery, and incest but dec lined to provide instructions

on any lesser-included off enses, notwithsta

ndin g defense counsel’s request that the jury be instructed

on the offe

nse of at tempt to co mmit rape

of a chil d. The jur

y found the

appella nt guilty of all three offenses included in the indictment, and the trial court imposed an effective sentence of twenty years incarceration in the Tennessee Depa rtment of Correction.

II. Analysis A. Tenn. R. Evid. 412 The appella

nt first c ontends in

this appe al th at the tri a l court e rred und er Tenn . R. Evid. 412(c)(

4)(ii) in limitin g his cros s-examination of BV concerning her “sexual history and k nowledge.” Specifically, the appellant contends that “the trial court so limited the defenda n t’ s ability to explore [BV]’s sexual history and knowledge that the defendant was denied a f air trial.” The State responds that the appellant has waived this issue by failing to rely upon Tenn. R. Evid. 412 in the trial court. Additionally, the State argues that the appellant’s failure to comply wi th the-4-

procedural requirements of Tenn. R. Evid. 412 precluded the admission of an y evidence of other sexual behavior

by BV. Fina

lly, the Sta

te notes the a ppellant’s failure to make an offer of proof concerning the substance of any evidence excluded by the trial court’s ruling and his con seque nt inability to demonstrate the admissibility of the evidence pursuant to Tenn. R. Evid. 412(c)(4)(ii). The State concludes that

“[t]he essence of [the a ppellant ’s] complain

t is that he

was not a llowed to go on a fishi ng exped

ition conc erning hi s then ele ven-yea r-old victim’s sexual history or knowledge of sexual matters.”

In relevant part, the record ref lects that defense counsel asked on the first day of the appellant’s trial if he would be permitted to question BV concerning her prio

r stateme nt to Tere sa Smiththat she h ad been

sexually assaulte d by her uncle as w ell a s b y the appellant. The record contai ns no pre-trial motion requesting the admission of the proposed testimony, a nd defense counse

l didnot otherwise specify which rule of evidence, if a ny, supported the admission of the testimony. The prosecutor responded, “Your Honor, I don’t think it has a be aring on this incident, and I think it gets into Rule 412, prior sexual contact or conduct.” The trial court evidently disagreed with the prosecutor and concluded:

I think it goes to credibility. . . .

I believe it could come under 404 where we’r e dealing with the character evidenc e, we’r

e deali ng with the char

acter o f the vic tim. That’s a possibili

t y, evidence of a pertinent character trait of the victim, and I take it in this case accusing others of such conduct over and over. . . .

Gentleme n, he re’s wha

t I’m going

to do unde

r the cir cumstanc es. [Defen se counsel] can

ask the question of this witness as to whether

or not she has accused others of certain conduc t which you’re alluding to, and the

n when she denies th at, cer tainly you

could use another witness as to rebuttal or im peachme nt, which is what it would be, impea chment of prior inc onsistent s tatement s.

. . . . [Defen se Counse l is] dealing with evidence of character or conduct of this individual for impeachment purposes . . . and [he is] limited to that.

. . . .

Now if you we

re getting into spec ific con duct, you understa nd this, under specific conduct under the rules of evidence, we ’ve got to have

an - - I’m of the opinion we’ve got to have a hear ing outside th e presenceof the jur

y to hear what spe cific instances of conduct you2 Although Smith’ s t est imony con cern ing B V’s prior accu sation wa s adm itted as a prior inco nsisten t statem ent,

we note t hat t he tr ial court

did not provide a cont emporaneous l imit ing i nstr ucti on concerni ng the j ury’s consi deration of the state me nt, no r did th e State requ est a co ntem por ane ous limiting instruc tion. N eve rthele ss, the trial c our t did inst ruct the jury imm ediate ly before it s del iber ati ons t hat t he pri or inc onsis tent

st atement s of awitne ss s hould be considered sol ely f

or the purpose of

assessin g the witn ess’ cre dibility and not a s evi dence of the f acts to whic h the pr ior
statem ent re lates. Cf. State v . Sm ith , 24 S.W.3d 274, 279 -281 (Ten n. 2000).

-5- might be wanting to refer to and wh a t probative value versus prejudicial value that might have. Notwithstanding its ruling, the trial court noted, unavailingly, that argument by counsel concerning the rule s of evide

nce woul d be helpf

ul.

Following the trial court’s ruling and during his cross-examination of BV, defense counsel asked the child whether she had ever accused anybody other than the a

ppellant of sexua lly assaulting her. BV denied making any other ac cusation s. Accordingly, defense counsel introduced the testimony of Teresa Smith that, when BV told Smith about the appe llant’s of fenses, BV also stated that she had been sexually assaulted in the past by an uncle who had since committed suicide. 2

In address ing the ap

pellant’ s complain

t o n appeal, we first

emphasiz e that it appare ntly concerns only the scope of the appellant’s cross- examination of BV and does not

encom pass the exclusion of testimony by other witnesses. Cf. State v. Brown , 29 S.W.3 d 42 7 (Tenn.), cert. denied , 531 U.S. 916, 121 S. Ct. 275 (2000). In light of BV’s denial that she had ever accused anyone other than the appellant of sexual ly assaulting her, it is unclear what additional testi mony would have been forthcoming from the victim concerning her “sexual history an d knowledge.” As noted by the State, the appellant never made an offer of proof for the purpose of preserving this issue for appeal. Tenn. R. Evid. 103(a)(2). Moreove r, we agree with the State that the appellant

has waived this issue by completely failing in the trial court to cite Tenn. R. Evid. 412

or propound any grounds for admitting BV’s testimony concerning her “sexual history and knowledge.” Tenn. R. A pp. P. 36(a

). Indeed, the app ell ant expressed no objection to or disagreement

with the trial court’s ruling concerning the permissible scope of his cross-examination of BV. Id. Defens e counse l explained his ina

bility to pr

ovide any argumen t to the tri al c our t concerning the application of the rule s of evide nce by re marking, “This sor

t of just ca

me up this morning, to be honest with you.” We note, however, that information conce rning B V’s prior accusation against her uncle was available to defense counsel through th

e appell ant’s own

witnesse s, namely Annette Lay and Teresa Smith.

Notwithstanding the appellant’s waiver of this issue and because we are remanding this case on other grounds for a new trial on the charge of rape of a c hild, we elect to b

riefly a ddress the trial court’s ruling for the purpose of providing guidance to both the court and the parties. Again, the trial court seemingly ruled that the appellant could cr oss-examine BV concerning her prior accusation against her uncle for the purpose of demonstrating a c har acter trait

pertinent to her credibility, specific ally the “character trait” of “ accusing others of [sexual assault] over and over.” Contrary to the appellant’s claim at the hearing on his motion for new trial and on appeal, the court did not appear to rely upon Tenn. R. Evid. 412 but instead referred to Te nn. R. Evid. 404(a)(2).3 Prior to J uly 1, 1999, Tenn. R. Evid. 412 on it s face appl ied only to proceedi ngs in which the def endant was accused of aggravated rape, rape, aggravat ed sexua l bat

ter y, and s pousal sexualoffens es. Effec ti ve Jul y 1, 1999, the

s up re me cour t a mended Ten n. R. Evid. 412 by expandi ng thi s l ist of off enses to i nclude inces t and r ape of a ch i l d. We
note that the amendment became ef fective after the date of the appellant’s offenses but before the date of the appellant’s trial. Signi fic antl y, however , t he appel lant

has neve r argue d that

the app lication of T enn . R. Ev id. 41 2 in h is case w ould vio late ex p ost fac to co nstitutio nal p rov isions; o n the con trary, h e seek s the ap plicatio n of the am end ed ru le . In an y event, we note t

hat c ourts addres sing the appli cati on of ra pe shi eld l aws to pr osecutions for of fense s committ ed pri or to the laws’ enact ment hav e dec lined to find any viola tion o f ex p ost fac to co nstitutio nal p rov isions. See, e.g. , United States v. Brooks
, 17 M .J. 584, 585-586 (A .C.M.R. 198 3); Tu rley v . State , 356 So. 2d 1238, 1243- 1244 (Ala. Crim. App. 1978); Logan v. State , 442 S. E. 2d 883 , 886 (Ga . Ct. A pp. 1 994 ); People v. Do rff , 396 N.E .2d 8 27, 8 28- 830 (Ill. Ct. App. 197 9); Finn ey v . State , 385 N.E .2d 4 77, 4 80- 481 (Ind . Ct. A pp. 1 979 ); cf. Carmell v. Texas , 529 U.S. 513, 521- 552, 120 S. Ct . 1620, 1626-1643 (2000), and State v. Bragan
, 92 0 S

. W. 2d 22 7, 24 0- 24 1 ( Te nn

. Cr i m. Ap p. 19 95 )

. We also note t

hat, at t he ti me of the a dopti on of Tenn. R. Evid. 412 in 1 991, t he of fense known as rape of a chi ld was contained in the aggra vated rape s tatut e and, ther efore, s ubject t o the rule

. Only in 19 92 d id the legislatu re en act a (con tinue d...)

-6- The trial court’s remark s suggest its assumpti on that the releva nce of BV ’s prio r
ac cusation lay in its untruthfulness, an assumption in diametric contradiction to the position subseque ntly taken by the appellant in his motion for new trial and on appeal. Such an assumption would certainly explain the trial court’s failure to excludetestimony about the accusation as hearsay,

see , e.g. , State v. Steven Lee Whitehead , No. W2000-01062-CCA-R3-CD, 2001 WL 1042164, at *11 (Tenn. Crim. App. at Jackson, September 7, 2001), and the trial court’s failure to apply Tenn. R. Evid. 412, see, e.g. , State v. Anthony Lynn Wyrick , No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at *16 (Tenn. Crim. App. at Knoxville, May 4, 2001). Inexplicably, however, the trial court also concluded

that testimony about the accusation did not constitute evidence of a specific instance of conduct. We would

respectfully disagree. In other words, assuming that BV’s prior accusation against her uncle was false, Tenn. R. Evid. 608(b) controlled the cross-ex amination of BV concerning the accusation for the purpose of attacking her credibility as a witness. Wyrick , No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at **24-29. Alternatively, subsection (b) of Tenn. R. Evid. 404 rather than subsection (a)(2) controlled the a dmission of the testimony as substantive evidence. Wyrick , No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at **17-24.

Of course, the appe

llant now c larif

ies that BV’s prior accusation th at she wa s sexuall y assaultedby her uncle was r elevant because it was tru e. Yet, if

offere d in evidenc e to prove the truth of the matter asserted, the accusation constituted hearsa y. Tenn. R. Evid. 801(c). Nevertheless, the appellant apparently complains that the trial court should have permitted his cross-examination of BV concer

ning the a ssault itse

lf rathe r than he r accus ation. Ag ain, we a

re only a ble to specul ate due to the appellant’s failure to make an offer of proof. In any event, testimony by BV describing her uncle’s sexual a ssault would in deed consti tute evid ence of other se xual beha vior by the

victim with

in the meaning of Tenn. R. Evid. 412, see, e.g. , Whitehead , No. W2000-01062-CCA-R3-CD, 2001 WL 1042164, at

*10, hence the appellant’s argument that BV’s testimonywas rele vant unde r Tenn. R. Evid. 412(c)(4)(ii) to explain her knowledge of sexua l matters and, moreover, was ne cessary to

ensure his right to a fair tria l. Cf. State v. Sheline , 955 S.W.2d 42, 47-48 (Tenn. 1997). The appellant’s argument might possess some merit hadhe ever pr esented it to the tr ial cour t, much le ss complied with the procedural requirements of Tenn. R. Evid. 412, see id. at (d). 33 (.. .continued)

s epa rate stat

ute for t he offense of r ape of a chil d. Perhaps f or this reason, we have previ ously indi cated i n dict a tha t Ten n. R. E vid. 4 12 w as ap plicab le in rap e of a child cases e ven befo re the 199 9 am end me nt. Stat e v. Geor ge Milt on Brooks
, No. 02C01-9804-CC -00116, 1998 W L 775649, at *4 n. 4 (Tenn. Crim . App. at Jackson, Nov emb er 6, 1998).

-7- In conclusion, we empha size tha t, regar dless of th

e rule of evidence upon which the appellant intended to rely, “the burde n of intro ducing ev

idence s ufficie

nt to suppor

t a finding that the requirements of an evidence rule a re satisfied remains on

the proponent of evidence.” State v. Stinnett
, 958 S.W.2d 329, 330 n. 5 (Tenn. 1997); Te nn. R. Evid. 104(b). T

hus, for example, under Tenn. R. Evid. 608(b), the appellant was require d to establish a “rea sonable f

actual b asis” fo

r crossexamining BV concerning a prior false accusa tion. Wyrick , No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at

*25-26. With respect to Tenn. R. Evid. 404(b), the appellant was required to present clear and convincing proof of a prior false accusation. State v. Mallard , 40 S.W.3d 473, 486 (Tenn. 2001); Wyrick , No. E1 9 99-02206-CCA-R3-CD, 2001 WL 472849, at *22; Tenn. R. Evid. 404, Advisory Commission Comments. As to Tenn. R. Evid. 412, the appellant carrie d, at a min

imum, the burden of proving by a preponderance of the evidence that BV was sexually assaulted by her uncle. Cf. State v. Edison , 9 S.W.3d 75, 77 (Tenn. 1 999); State v. Stamper , 863 S.W.2d 404, 406 (Tenn. 1993). Th

e recor d in this ca se is devo id of evide nce esta blishing e ither the truth or f alsityof BV’s prior accusation against her uncle.

B. Sufficiency of the Evidence The appellant also challenges the sufficiency of the e vidence underlying the jury’s “verdict.” The State disputes the merits of the appellant’s contention with respec t to all thre e convictions in this cas e. However, it is u nclear from the a

ppellant ’ s brief whether his challenge encompasses all three

convicti ons. Indeed, the appellant’s brief contains no argument on this issue whatsoever, albeit he has included a boilerplate recitation of the standard by which an appellate court reviews th e sufficiency of evidence underlying a jur y’s verdict. Accordingly, the appellant has waivedthis issue. Tenn. R. App. P. 27 (a)(7) ; Tenn. Ct. of Crim. App. 10(b ); see also, e.g.
, State v. Killebrew
, 760 S.W.2d 228, 231 (Tenn. Cr im. App. 19 88); State v. Charles Ray Allen , No. M1999- 00818-CCA-R3-C D, 200 0 WL 1649507, at *4 n.1 (Tenn. Crim. App. at Nashville, November 3, 2000), perm. to appeal denied
, (Tenn. 2001). In any event, there is sufficient evide nce in the record from which a rational trier of fact could find beyond a re asonable doubt that the appellant committed the offenses of rape of a child, aggra vatedsexual battery, and incest. Jackson v . Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789(1979); State v. Tu ggle , 639 S .W.2d 913, 914 (Tenn.1982); Tenn. R. App. P. 13(e).

Addressing each co nvicti on in tu rn, we first note that Tenn. Code Ann. § 39-13- 522(a) (1997) defines the rape of a child as the unlawful pe netration of a victim by the defendant or the defendant by a victim when the victim

is less than thirteen years of age. The defenda nt must act withintent, knowledge, or recklessness. Tenn. Code Ann. § 39-11-301(c ) (1997). Sex ual penetration includes“sexual intercourse, cu

nnilingus, fellatio , anal inter course, or any other intrusion, however slight, of any part of a person’s body or o f any object into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7) (1997)

.-8- Briefly recapitulating, BV testified at trial that she was currently eleven years old and that, in November 1998, the appellant forced her to pe rform fellatio upon him in the living room of their home while her brother lay on the floor nearby watching televisio n. She fur ther test ified tha t, immediate

ly prior to the sexual assault, the appellant ordered her younger brother to keep “his head down” on the flo or, ther

eby prev enting him f

rom witne ssing the a ssault. Af terwar ds, the appellant ordered BV to tell no one about the assault. BV’s testimony alone supports the jury’s verdict finding the appella

nt guilty of rape of a child. See, e.g.
, Letner v . State , 512 S.W.2d 643, 649 ( Tenn. Crim. App. 1974)(observing that the uncorroborated

testimony of a single witness will generally support

a defenda nt’s conviction); see also State v. McKnight , 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994). Still, we note

the appellant’s intimation elsewhere in his brief that his conviction of rape of a chil d
rests instead upon BV’s testimony thatthe appellant placed his penis against her “private part” a nd “triedto” pene

trate her “private part.” The appellant’s a pparent confusion raises the specter of the election of offe nses req uiremen t.

Our supreme court has repeatedly held that, if the prosecution of fers pr oof of mul

tiple offenses in support of a single charged offense, i t must ele ct the fa cts upon w

hich it is r

elying to establish the charged offense. State v. Johnson , 53 S.W.3d 628, 630 (Ten n. 2001); Sta te v. Kendrick
, 38 S.W.3d 5 66, 568 (T enn. 2001 ); State v. Brown , 992 S.W.2d 389, 391 (Tenn. 1999). Despite any confusion on the appellant’s part, we believe that the evidence in this case established

a single instance of penetration as defined by Tenn. Code Ann. § 39-13-501(7), namely the incident of fellatio. Cf. State v. Lee Lance , No. 03C01-9804-CR-00136, 1999 WL 301457, at **5-6 (Tenn. Crim. App. at Knoxville, May 14, 1999)(when combined with evidence that the victim had vaginal lacerations and a tor

n hymen, te stimony tha

t the appe

lla nt placed his penis “on” the victim’s “private” sufficed to establish the offenses of rape of a child and incest). Moreover, to the extent the evidence established more than a single instance of penetration, counsel’s closing arguments are not includ ed in the record before this court. Accordingly, we cannot exclude the possibility that the prosecutor’s closing argument effectively served as an e lection of of

fense s. See, e.g.
, State v. William Donald Ellis
, __ S.W.3d __, No. M1999-783-CCA-R3-CD, 2000 WL 1520006, at *8 n. 2 (Tenn. Crim. A pp . at Nashville, October 13, 2000), perm. to appeal denied and recommended for publication
, (Tenn. 2 001). We note that , immediat

ely prior to closing

argumen ts and outs ide the jury’s he aring, the prosec utor rema rked to th e trial c ourt: The act that we’re relying upon is the actual oral sex that she testified
to in order to sustain a conv iction for ra pe of a child, . . . The aggravated

sexual battery wou ld, of

course, be the touching which she te stified that he put his private on her private part and also touche d her breast area and put his mouth on her brea st area . . . .
Turning to the app ellant’sconvicti o n of aggravated sexual battery, the State was required to prove the following essential elements beyond a reasonable doubt: (1) unlawful sexual
contact with a victim by the defendant or the defendant by a victim; (2) the victim was less than th irteen years of

age; and (3) the d efenda nt acted either in tentiona lly, knowingly, or reckless ly

. Tenn. Code Ann. § 39 -13 -504(a) (4) (199 7); Tenn. Code Ann. § 39-11-3 01(c). “ ‘Sexual c ontact’ includes the intentional touching o f the vic tim’s, the defenda nt’s, or a ny other p erson’sintimate parts, or the inte

ntional tou ching of t

he clothi ng cover

ing the imme

diate ar ea of the vic tim’s, the-9-

defenda nt’s, or any other person’s intimate p arts, if t hat inten tional touc

hing can b e reaso nably construedas being f

or the pur pose of se

xual arousal o r gratification.” Tenn. Code Ann. § 39-13- 501(6 ). Jurors “ may use their commo n knowled ge and experience” in de termining whether th e touching can reasonably be cons trued as motivated by a defendant’s desire for sexua l arousal or gratification. State v. Jack Warren Emert, Jr.
, No. 03C01-9802-CC-00074, 1999 WL 512029, at *2 (Tenn. Crim. App. at Knoxvi lle, July 2 1, 1999); see also
, e.g. , State v. Tony Allen Leonard , No. E1999-00971-CCA-R3-CD, 2000 WL 17 72468, at * 3 (Tenn. Crim. App. at

Knoxville, December 1, 2000), perm. to appeal denied , (Tenn. 2001).

Again, BV testified at trial that she was less than thirteen years of age at the time of the appellant’s offenses. Additionally, as indicated by the prosecutor, BV testified that the appellant
notonly forc ed her to

perform fellatio upon him but also placed his penis against her “privat e part” “between [her] legs;” “tou ched [he r private part] with his hand s and mouth ;” and “[ p]ut his hands and mouth on [her] [breasts].” We reiter ate that, in the abs ence of c losing arguments from the record, we will assume that the prosecutor thereby clarified his relia nce upon the incid ent of fe llatio to establish the appellant’s commission of the offense of rape of a child and hi s relianc e upon the remaining conduct t

o establish the offense

of aggra vated se xual batt ery. As to the multipl e incide

nts of touching underlying the appellant’s conviction of aggravated sexua l battery, our supreme court has re cently held that , “[i]f [ an] enti re instan ce of se xual contact

occurs q uickly and virtuall

y simultaneously, then only one offense [of sexual battery] ha s occurred, even if more than one touching has occurred.” Johnson , 53 S.W.3d at 633 (emph asis adde d); see also State v. Randall Ray Mills
, No. M2000-01065-CCA-R3-CD, 2001 WL 1246387, at *8 (Tenn. Crim. App. at Nashville, October 17, 2001). In short, the evidence supports the jury’s finding that the appella nt engaged in a single instance of aggravated sexual batter y.
Finally, in order to obtain a convictionof incest, the State was require d to estab lish beyond a reaso nable

doubt that (1) the appellant engaged in sexual penetration with BV as defined by Tenn. Code Ann. § 39-13-501(7); (2) the appellant knew that BV was his stepchild; and (3) the appellant acted intentionally, knowingly, or recklessly. Tenn. Code Ann. § 39-15-302(a)(1) (1997); Tenn. Code Ann. § 39-11-301(c). We have alre ady concluded that the evidence adduce d at the appellant’s trial est

ablished his commiss ion of a si ngle act o f penetration and

the requ isite accompanying mental state. Moreover, the appellant’s own testimony established bo th h is relation ship with BV and his knowledge of the relationship at the time of these offenses. This issue is without me

rit.

C. Lesser-Included Offenses The appellant next contends that the trial court erred in denying his request that the jury be instru cted on th

e lesser -inclu ded offense of attempt to commit r ape of a child. The

State essentia lly responds that the appellant has waived any argument conc ern ing the need for an instruction on at tempt to co mmit r ape of a child as a lesser-included off ense of rape of a child by relying in the trial court upon evidence underlying his indictment for aggravated sexual battery. The Statefurther asserts that the evidence unde rlyi ng the appellant’s indictment for and subsequent conviction of rape of a child would not support a conviction of attempt to commit rape of a child.-10- We preliminarily note that the appellant failed to request instructions on any lesserincluded offenses of the indictedoffenses other than attempt to commit rape of a child, and the trial court decline d to instruct the jury o n any less er-inc luded off enses wh atsoeve

r. More t o the point
, the appellant only challenges in this appeal the trial court’s failure to instruct the jury on attemp t to commit rape of a child. Due to the appellant’s failure to object to the trial court’s refusal to instruct other lesser-included offenses, we wi ll limit ou r discuss ion to the a ppellant ’s challe

nge in this appeal. Tenn. R. Crim. P. 52(b).

As remarked by the State, the appellant relied in the trial court upon evidence underlying his indictment for aggrava ted sexua l battery to demonst

rate the need for an instruction

on attempt to c ommit rape of a child. Likewise, on appeal, the appellant partially relies on BV’ s testimony that the appellant placed his penis against her “private par t” and “tried to” penetrate her “privat e part.” It is not entirely clear from the recor d or the appellant’s brief whether he believes that the State relied upon this testimony to establish the offense of rape of a child or, alternatively, he believes that atte

mpt t o commit

rape of a child is a lesser-included offe nse of aggravated sexual battery. We have noted ou r disagreement with the former view. We a lso disagree with any suggestion that attempt

to commit rape of a child is a lesser-included offense of a ggravated sexual battery.

The essentia l element s of both

aggravated sexual battery as char ged in the indictment in this case and rape of a child ar e set forth i n our preceding discussion of the sufficiency of the evidence adduced at

trial, and we nee d not repe at them he re. Both offenses are “nature-of

-conduct offenses,” in that “the offense[s] seek[] principa lly to proscribe the nature of the defe ndant’s con duct,

as opposed to

the result that the defendant’s conduct achieves.” State v. Mateyko , 53 S.W.3d 666, 673 (Tenn. 2001). As relevant to nature-of-conduct offe nses, Tenn. Code Ann. § 39-12-101 (1997) reads: (a) A pe

rson comm

its criminal attempt who, acting with the kind of culpability otherwise required for the offense: (1) Intention ally engage s i n action . . . that would constitute an offense if the circumstances surrounding the co nduct were as the person believes them to be; . . . or (3) Acts with intent to co mplete a co urse of a ction . . . t

hat would constitute the offe nse, unde

r th e circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.

In determining whether attempt to commit rapeof a child is a l esser- included

offense of aggravated sexual battery, we must apply the following test adopted by our supreme court in State v. Burns , 6 S.W.3d 453, 466-467 (Tenn. 1999):

An offense is a lesser-included offense if: (a) all of i ts s tatutory elements are included within the statutory elements of the offense charged; or (b) it fails to m

eet the d efinition in part (a ) only in the respect that

it contains a statutory element or elements establishing-11- (1) a different mental state indicating a lesser kindof culpability; and/or ( 2) a less serious harm or risk of harm to the sam e person, property or public interest; or (c) it consists of (1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (2) an attempt to commit the of fe nse charged or an offense that othe

rwise me ets the definition of lesser-included offense in part (a) or (b); or (3) solicitation to commit the offense charged or an offense tha t ot herwise meets the definition of lesser-included offense in part (a) or (b).

Clearly, the off

ense of at tempt to commit rape of a child is not a lesser-included offense of aggravated sexual ba

ttery purs uant to part (c) of the Burns test. Moreover, all of the statutory elementsof attempt to commit rape of a chil d are not included within the

statutory elements of aggravated

sexual battery if only because the offense of attempt to commit rape of a child requires

a specific intent to engage in conduct constituting rape of a child. Tenn. Code Ann. § 39-12-101, Sentencing Commission Co mments; cf. Mateyko , 5 3 S.W.3d at 673 -677. Finally, this specific intent element establi sh es neither a mental state indicating a lesser kind of culpability than that inherent in the offe

nse of ag gravate d sexual b attery n or a less serious h arm or ri sk of harm than that

posed by the offense of aggravated sexua l battery. Accordingly, attempt to commit rape of a child is not a lesser-included offense of aggra vated sexual battery.

That having been said, the appellant also relies on appeal on the testimony underlying his indictment for and conviction of rape of a child to demonstrate the need for an instruction on attempt to commit rape of a child. In this regard, we must reject the State’s clai m of waive r, as a trial court’s duty to charge a jury as to the law of eac h offense included in an i ndi ctment ex ists regard less of any request or objection by the appellant and, it necessarily follows, regardless of a ny deficiency in the appellant’s argument before the trial court. See, e.g.
, Burns , 6 S.W.3d at 464; State

v. Bolden , 979 S.W.2d 587, 593 (Tenn. 1998); Tenn. Code Ann. § 40-18-110(a) (1997). Under part (c) of the Burns test, attempt to commit rape of a child is a lesser-included offense of rape of a child. Accordingly, the trial court was obligated to instruct the jury on attempt to commit ra

pe of a child if there e xisted evidence t

hat rea sonable m

inds could

accept as to the lesser-included offense , and this evidenc e was leg ally sufficie nt to support a conviction of the lesser-included offense. Burns
, 6 S.W.3d a

t 469.

Again, in order

to prove the appellant’s commission of the offense of rape of a child, the State presented BV’s testimony that she was forced to perform fellatio upon the appellant. As noted by the appellant, BV initially indicated that the appellant “made me p ut my mouth on his private part.” (Emphasis added). Subsequently, however, the prosecutor

engaged in the following colloquy with BV:-12-

Prosecutor: Just

to be clear now, you said he put his private part in your mouth . Is that r

ight? BV: Yes, Sir. Prosecutor: Now, that’s - - When you talk about his private part, -

- BV: Yes, sir. Prosecutor: - - is that

his penis? BV: Yes, sir. Prosecutor: And you put that in your mouth? BV: Yes, sir.

We must view the evidenc e “liber ally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence.” Id. We theref ore conc lude that the evide nce req uired an instructi on on the o ffense of attempt to commit rape of a child. Specifically, the victim ’s testimo ny on dire ct examin ation tha t she put he

r “mouth

on [the app ellant’s ] private part, ” w hen viewed in a light favoring the existence of the lesser- included offen se, would support a finding of guilt of attempt to commit rape of a child. In this regard, w e emphasize that “[w]hether sufficient evidence supports a conviction of

the charged offense does not affect the trial court’s duty to instruct on the lesser offense if evidence also supports a f inding of guilt

on the lesser offense.” I d. at 4 71-472; see also State v. Bowles , 52 S.W.3d 69, 80 (Tenn. 2001); Statev. Swindle , 30 S.W.3d 289, 293 (Tenn. 2 000). We further note that the failu re to com mit the offense attempte d is not an essential element of criminal attempt. Tenn. Code Ann. § 39-12-101(c); cf. Swindle , 30 S.W.3d at 293. Finally, we cannot concludebeyond a reasonable doubt that the trial court’s error w as harmle ss as the ju ry was no t afford

ed an opp ortunity

to consider

any inter mediate lesser-included

offense. Bowles , 52 S.W.3d at 80-81; State v. El y , 48 S.W.3d 710, 714-715 & 727 (Tenn.), cert. denied , __ U.S. __, 122 S. Ct. 408 (2001).

III. Conclusion For the foregoing reasons, we affirm the judgments of the trial court underlying the appellant’s convictions of aggravated sexual battery and ince st, but we reverse the judgment underlying the appe

llant’s c onviction

of rape of a chil d and remand this c aseto the trial court for a new trial on the charge of rape of a child.

___________________________________

NORMA McGEE OGLE, JUDGE