# FILED
December 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9802-CC-00080 Appellee, ) ) RUTHERFORD COUNTY VS. ) ) HON. J.S. DANIEL, TROY R. WAL LS, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT : GERALD L. M ELTON District Public Defender JEFFREY S. BURTON Assistant District P ublic Defender 201 West Main Street, Suite 101 Murfreesboro, TN 37130 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DARYL J. BRAND Senior Counsel Criminal Justice Div

ision Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM C. WHITESELL, JR. District Attorney General PAUL A . HOLCOMBE, III Assistant

District Attorney

General 303 Rutherfo rd Co. Judicial Bld g. Murfreesboro, TN 37130

OPINION FI LED:

CONVICTIONS VA

CATED; REMA

NDED
JOE G. RILEY, JUDGE1 It is this Court’s policy not to reveal the names of minor victims of sexual abuse. 2 OPINION

ARutherford County grand jury indicted defendant for aggrav ated rape, two counts of aggravated sexual battery, and rape of a child for incidents involving his young female cousin. A negotiated plea agreement allowed defendant to pl ead to
one count of rape, a Class B felony , and one count of incest, a Class C felony. The agreed upon sentences wer e eight years for rape an d three years for incest to be served consecutively as a Ra nge I, standard offender. The sole issue on appeal is the trial court’s denial of alternati ve sentencing. However, plain er ror dictates that the convictions be VACA TED and the case REMANDED for further proceedings. The defendant pled guilty to incest which is neither a lesser included nor a less e r grade of child rape; nor do the acts of the defendant constitute the crime of incest.

FACTS

Defendantis the first cousin of the female vi ct im , K .W. 1 He admitted having sexual contact with the victim during the spring or early summer of 1991, while she
was visiting his home.Later that summer, defendant sexually penetrated the victim. At the time, he was fifteen year s old; she was five. When defendant was eighteen and the victim was ei ght, sexual penetration again occurred.

PROCEDURAL HISTORY

Pursuantto a negotiated plea agreement , the state dismissedthe two counts of aggravatedsexual battery upon defendant’s plea of guilty to the reduced charges of simple rape as a lesser offense of aggravated rape and incest as a lesser offense of child rape. Defendant agreed to consecutive eight and three year sentences.3

The trial court de nied defendant’s application for alterna tive sentencing, and this appeal followed.

GUILTY PLEA
By agreement, defendant pled to and wa s found guilty of one count of rape and one count of incest. The agreed upon sentence was effectively 11 y ears with the question of alternativ e sentencing left to the trial court’s discretion. Our review of the guilty ple a hearing and sen tencing h eari ng reveals no discussion regarding the elements o f the offense of incest. Rath er, all parties apparently operated under the assumptions that : (1) incest was a lesser offense of child rape; and (2) the facts fit the c rime of incest. Unfortunately, those assumptions were incorr ect.

A. Incest is neither

a lesser included nor a l esser grade of the offense of rape of a child. An of fense is a lesser included offense “only if the elements of the included offense are asubset of the elements of the charged offense and only if the greater offense cannot be committed without al so committing the lesser offense.” State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996). An offens e is generally considered a lesser grade offense if it is codified withi n the same title, chapter and part of the Code. State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997). Rape of a child requires sexual penetration involving a child under 13 years of age . Tenn. Cod e Ann. § 39-13-522. The incest st atute proscribes sexual penetration between persons of an enumerated level of ki nship, but makes no referen ce to age. Tenn. Code Ann. § 39-15-302. Each offense requires proof of
an essential element that the other does not. U nder Trusty , neither offense is a subsetof the other. Additional ly , as noted above, each offense is codi fied in a different chapter and part of the Code. This confirms tha t each provision protects2 In State v. Jimmy D. Johnson , supra , Judge Tipton discussed the need for a

written amendmen

t to an indictment. 4 a different interest. The rape of a child statute protect s children under age 13 from sexual penetration; incest prohibi ts sexual penetration betw een particular levels

of family. Thus, incest is neither a lesser included nor a lesser grade offense of rape of a child. See State v. Brittman , 639 S.W.2d 652, 654 (Tenn. 1982)(finding that incest and aggravated

rape are two distinct offenses and that a defendant can be guilty of both as a result of a single act of intercourse). This Court has previously vacated an incest conviction ba sed upon a guilty plea when the indicted char ge wasrape. See State v. Jimmy D. Johns on , C.C.A. No. 03C01-9602-CC-00062, Blount County (T e nn. Crim. App. filed October 16, 1997, at Knoxville). Judge Joseph M. Tipton co nclu ded that the defendant was convicted of an offense with w hich he was not charged

. Id

. For these reasons, the incest co nviction must be s et aside . Furthermore, since the pleas to both rape and inces t were enteredpursuant to a plea agreement foran effective 11-year sentence, both convictions must be set aside. The parties may now proceed pursuant to the original indictment.

B. Areview of the guilty plea and sentencing hearin gs d emonstrates that the victim is defendant’s cousin. Contr ary tothe parties’ assumption, w e note that the incest statute doesnot include cousins within the proscri bed level of kinship. See Tenn. Code Ann. § 39-15-302(a)(1) ,(2). There fore, defendant’s sexual conduct w ith K.W., as contemptible as it was, did not violate the inces t statute. For this reas

on, we are reluctan t to con clude that the indictment w as impliedly amended by v irtue of the guilty plea. 2

SENTENCING5 In view of the need to remand for further proceed ings, the issue of alternat ive sentencing is pretermit ted. Nevertheless, w

e will briefly addr

ess this issue. Ourr eview of the sentence imposed by the trial court is de novo with a presumption that the determinations of the trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The presumption of correctness which at taches to the trial court’s action is conditioned upon an affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991). In determining whether to grant or deny pr

obation , a trial court should consider the circumsta nces of the offense, the defendant’s criminal record, the defendant’s social history and pr esent condition, the need for deterrence, and the best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Black , 924 S.W.2d 912, 91 7 (Tenn. Crim. App. 1995). Probation may be denied based solely uponthe circumstances surroun ding the offense. State v. Bingha m , 910 S .W.2d 448, 456 (Te nn. Crim. App. 1995); State v. Hartley , 818 S.W.2d 37 0 , 374 (Tenn. Crim. App. 1991). H owever, the circumstances

must be especially v iolen t, h orrifying, shocking , reprehensible, offen sive or

otherwise of an excess ive or exagger ated degree; and the nature of the offense must outweigh all factors favoring probation. Hartley , 818 S.W.2d at 374- 75. Although defendant is a Range I, standard offender , he was convicted of simple rape, a Class B felony, in additi on to ince st, a Class C felony. A conviction fora Class B felony negates the presumption that he is a fav orabl e candidat e for alternative sentencing

. See Tenn. Code Ann. § 40-25-102(6). Given the presumption of correctness of the trial court’s deter minations, the denial of alternative sentenc ing was appropriate.6 CONCLUSION

Since the defendant entered a guilty plea to rape and incest with an agreed effect ive 11- year sentence, it is necessary to v acate both convictions and remand for further proceedings pursu ant to the original indi ctment.

____________________________ JOE G. RILEY, JUDGE
CONCUR:

____________________________ PAUL G. SUMM ERS, JUDGE

____________________________ JOSEPH M. TIPTON, JUDG E