# FILED

November 8, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

STATE OF TENNESSEE, ( FOR PUBLICATION ( Plaintiff-Appellee, ( Filed: November 8, 1999 ( ( v. ( Lawrence County ( ( Hon. Jim T. Hamilt on, TERRY ALLEN DOMINY, ( Judge ( Defendant-Appellant. ( No. M1995-00001-SC-R11-CD

For Plaintiff-Appellee : For Defendant-Appellant : John Knox Walkup Peter G. Heil Attorney General & Reporter Nashville, Tennessee (Appeal Only) Michael E. Moore Solicitor General Shara Flacy William Bright Gordon W. Smith District Public Defenders Associate Solicitor Gener al Pulaski, Tennessee Nashville, Tennessee James G. White, II District Attorney Gener al Lawrenceburg, Tennessee

O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS REVERSED; CONVICTIONS VACATED; INDICTMENTS DISMISSED. DROWOTA, J. The dispositive issues in this appeal are as foll ows: (1) whether the indictment in this case charging the defendant with aggr avated rape is sufficient t o support a conviction for spousal rape, a “lesser grade” offense under this Court’s1 The defe nda nt rais ed tw o oth er iss ues in this a ppe al: (1) whe ther th e trial c ourt e rred in refus ing to gran t the d efen dan t’s mo tion fo r rec usa l; and (2) w heth er the trial co urt er red in admitti ng into evi dence a tape-recor ded intervi ew between the vict im and the fi eld supervi sor of the Department of Human Servi ces. Becaus e we have reve rsed a nd re manded o n oth er gr ounds,we need not address t hese issues in detail . However, we note t hat the proof in thi s record indi cates that the trial

judge was resi ding in a home owned by the assistan t dist rict at torney who prosecuted this case and was payi ng only the utili ties and cabl e bill s and not monthl y rental.Under such circum stance s, recus al is appro priate. See Sup. C t. R. 10, Code of Judici al Conduct , Canons 2( A) 4(D)(5 ), and 3(E ). We also agree w ith the defen dant that th e trial court er red in allow ing the Sta te to offer into evi dence the enti re tape-recor ded intervi ew of the vi ctim by the Department of Human Services fi eld supervi sor. Whil e the State has the ri ght to “convey the true pi cture of t he prior statement alleged to be inconsistent,” State v. Boyd , 797 S.W .2d 5 89, 5 93-9 4 (Te nn. 1 990 ), this rule does not

form a basis f

or reference to porti ons of the st atement which were not made an issue on cross-exam ination and which are not necessa ry to convey an acc urate picture of the matters discussed on cross-e xamination. The trial judge couldhave either allowed t he State to question t he witness concerni ng her prior statement t

o place her t

estimony on cross-e

xamination i nto context or permitted the State t

o use the tra nscript of the DHS tape to refresh the vi ctim’s r ecollect ion. Nei ther the ta pe no r the tr ans cript, how eve r, sho uld ha ve be en int rodu ced as su bsta ntive evide nce in this case. -2- decision in State v. Trusty , 919 S.W.2d 305 (Tenn. 1996); and (2) if so, should this Court reconsider it decision in Trusty

.

We agree with the Court of Criminal Appeals that, under Trusty , the indictment in this case would be sufficient to suppor t a conviction for the “l esser grade” offense of spousal rape. However, upon careful reconsiderat ion, we overrule Trusty

to the extent that it recognizes “lesser grade” offenses as distinct from lesser-included offenses and permits convi ctions of “lesser grade” offenses that are not lesser-incl uded offenses embraced by the in dictment. In light of our overruling of Trusty , the indictment in this case is not sufficient to support a conviction for spousal rape. Therefore, we vacate the defenda nt’s convictions, dismiss the indictment

s, and remand this case to the trial court for further proceedings consistent with this decision. 1

FACTUAL BACKGROUND The defendant, Terry Allen D ominy vaginally raped hi s wife on three separate occasions with hi s dog. As a result, he was charged with three counts of aggravated rape. Tenn. Code Ann. § 39-13-502 (1991). Defense c ounsel argued that the defendant could not be prosec uted for aggravated rape because he was married to the victim

at the time these offenses al legedly occurred and Tenness ee2 The defendant wa s sentenced to twenty-five years on each count. The senten ces were ordered to r un consecutivel y.

-3- law contains a statutory ex clusion which precludes a prosecution for rape if the perpetrator is the spouse of the victim. Tenn. Code Ann . § 39-13-507 (1991 Repl.). The trial cour

t disagreed. At trial, a certified copy of the parti es’ marriage certificate was introd uced into evidence, and the jur y was instructed on spousal rape as a lesser-includ ed offense of aggravated rape. The jury found the defendant guilty of the charged off enses of aggravated rape. 2

In the Court of Crimina l Appeals, the defendant renewed hi s assertion that the aggravated rape conviction s were invalid due to the s tatutory spousal exclusion. The State conceded that the defendant was marrie d to the victim and that his convictions for aggravated rape could not stand. The Court of Criminal Appeals agreed, stating that “T ennessee’s spousal exclusi on statute provides . . . immunity from both rape and aggravated rape prosecutio n.” The intermediate court, however, modified the defendant’s convictions to spou sal rape. In so holding, the intermediate court acknowledged that spou sal rape is not a lesserincluded offense of the indict ed offense aggravated rape but found the modification appropriate because spousal rape constitut ed a “lesser grade” offense of aggravated rape under th is Court’s decision i n Trusty . Therefore, the Court of Criminal Appe als held that the indictment charging aggravated rape was sufficient to support a conv iction for spousal rape.

In this Court, the State and the defendant agree that the indictment is sufficient under Trusty

to support a conviction of spousal rape as a “lesser grade” offense, but the State and Dominy urge this Court to overr ule Trusty

to the extent that it recognized “less er grade” offenses. The par ties assert that Trusty

is unsupported by Tennessee precedent and unworkable in applicati on. We agree3 Although a husband could not be gu ilt y of rapin g his wife, he could be prosecuted i f he assist ed anothe r in the rape

. See David Raybin, Tennessee Criminal Practice and Pr ocedure, § 28. 114 (1985). -4- and, as stated below, overrul e that portion of Trusty which recognized “less er grade” offenses.

ANALYSIS We begin our analysis of the issues in this appeal with a brief historical overview. The three elem ents of common law rape ar e carnal knowledge of a woman, forcibly and agains t her will. State v. Wilkins , 655 S.W.2d 914, 916 (Tenn. 1983). A review of statutes and case law indic ates that the common law definition of rape was adopted in Tennessee. Id. Although this Court has nev er had occasion to rule on the ma tter, commentators general ly accept the proposition that, at common law, a man could not, as a matter of la w, be convicted of raping his wife. 3 See Lane v. State , 703 A.2d 180, 185-186 (Md. 1997).This spousal exclusion was first i ncorporated into Tennessee’s statutory law in 1978. See Tenn. Code Ann. § 39-3707 (repeal ed 1979) (“A person does not c ommit criminal sexual conduct under §§ 39-3701 -- 39-3706 if the victim is that person’s legal spouse.”). The followi ng year, the General Assembl y limited the exclusi on by allowing prosecution of a spouse in cases where the mar ital relationship had deteriorated. See Tenn. Code Ann. § 39-3709 (renum bered § 39-2-610 in 1982 Repl; repealed 1989) (“A person does not commit rape or sexual battery or assault with intent to commit r

ape or sexual battery under §§ 39-3701 -- 39-3710 if the victim is his or her

legal spouse, unless the coupl e is living apart and one of them has filed for separate mai ntenance or divorce.”). If the couple was living apart and one of them had filed for separ ate maintenance or divorce,the spouse was prosecuted under the general la w.4 Although not pertinent

to thi s appeal because t he offenses occur red in 1993 and 19 94, a 1998 amendment created the of fense of aggra

vated spousal r

ape for conduct

“especial ly cruel , vil e and inhumane to the victim during the comm ission of the offense.” See 1998 Tenn. Pub. Act s ch. 1068, § 1. -5- With the enactment of the Cr iminal Sentencing Reform Act in 1989, the General Assembly abolis hed common law offenses and s tatutorily specified the conduct necessary to support a criminal prosecutio n in Tennessee. State v. Hill , 954 S.W.2d 725, 728 (Tenn. 1997). While retaining the spous al exclusion of prior law, the 1989 Act created the s eparate offenses of spousal rape and spousal sexual battery as exceptions to the exclusion. See Tenn. Code Ann. § 39-13-507 (Supp. 1989). When the present offenses were committed i n 1993 and 1994, the statute provided in pertinent part as follows: Limited spousal exclusion

. -- (a) A person does not c ommit an offense under this part [aggrav ated rape, rape, aggravated sexual battery, sexual battery, or statutory rape] if the vi ctim is the legal spouse of the perpetrator excep t as provided in subsection s (b) and (c) [defining “spousal

sexual battery”]. (b)(1) “Spousal rape”

means the unlawful sexual penetration of one spouse by the other where: (A)The defendant is armed w ith a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon; (B) The defendant causes seri ous bodily injury to the victim; or (C) The spouses are li

ving apart and one (1) of them has filed for separate mai ntenance or divorce. (2)(A) “Spousal rape,”

as defined in subdivision (b)(1)(A) or (B), is a Class C felony. (B) “Spousal rape,” as defined in subdivision (b)(1)(C), shall be punished pursuant to § 39-13-502 [aggravated rape] or § 39-13-503 [rape].
Tenn. Code Ann. § 39-13-507(a) & (b) (1991). This st atute was amended one year after its enactment t o add the above-quoted subdivisi on (b)(1)(C) and its corresponding punishment pr ovision. See1990 Tenn. Pub. Acts ch. 980, § 5. 4

Section 39-13-507 is best des cribed as a hybrid statute.It both maintains the general spousal exclusi on from prosecution and cr eates specific sexual offenses for which only spouses are subject to pros ecution.5 Tenn. Code Ann. § 39-13- 502 provides: (a) Aggravated rape is unl awful sexualpenetrati on of a vict im by the defendant

or the defe ndant by a vict im accompanied by any of the fol lowing ci rcumstances: (1) Force or coe rcion i s used to accompli sh the act and t he defendant i s armed with a weapon or an y articl e used or fashi oned in a manner to l ead the vict im reasonably t o believe i

t to be a weapon; (2)T he de fend ant c aus es bo dily inju ry to th e vict im; (3) The defendan t is ai ded or abette d by one (1) or more other persons; and (A) Force or coercion i s used to accompli sh the act; or (B) Th e def end ant k now s or h as re aso n to k now that th e vict im is mentall

y defecti ve, mentally incapacit ated or physi cally hel pless. (b) Aggravated rape is a Class A felony.

6 Tenn. Code Ann. § 40-13-202 (1997) provi des in pert inent part : “The indi ctment must stat e the facts cons tituting the o ffens e in or dinar y and conc ise lan gua ge, w ithou t prolix ity or r epe tition, in such a mann er as to en able a pe rson of c omm on und erstand ing to kno w wha t is intended , and with that degree o

f certai nty which wil l enable the court, on convicti on, to pronou nce the proper judgme nt. . . .”

7 Tennessee Rule Criminal Procedure 31(c) pr

ovides: “The defendant may be foundguilt y of an offense necessari ly incl uded in the of fense charged or o

f an attempt to commit ei ther the of fense charge d or an o ffense ne cessa rily included therein if the a ttempt is a n offense .”
-6- The defendant in this case was indicted and convicted for aggravated rape. All three counts charged in pertinent part that the defend ant “did unlawfully, forcibly, or coerciv

ely, while armed with a weapon or an article used or fashioned in a manner to lead Sherry Michelle Dominy reas onably to believe it to be a weapon, sexually penetrate Sher ry Michelle Dominy

in violation of T.C.A. § 39-13- 502.” 5 Therefore, the issue in this appeal is whether an in dictment for aggravated rape, an offense to which the s pousal exclusion applies, can support a conviction for spousal rape.

A defendant has a constitutional right to be given notice of the offenses with which he is charged. Hill , 954 S.W.2d at 727. The means by which this notice will be provided is governed by statute, 6 and by rule. 7 In State v. Howard , 578 S.W.2d 83, 85 (Tenn. 1979), this Court adopted the follow ing test for determining whether an offens e is necessarily incl uded in, i.e. , a lesser-included offense of, the charged offense: “an offense is nece ssarily included in another if the elements of the greater off ense, as those elements are s et forth in the8 Prior to the adopti on of the 1989 Act , the Code conta ined a stat ute which addressed the issue of lesser- included offenses in the con text of sex ual offens es. See Tenn. Code Ann. 39-3710(c) (Supp. 1982) ( “A charge of any of fense proscri bed herein shal l incl ude a charge of al l lesser offenses as l esser-incl uded offenses. ”) This statutory pr ovision el iminated the confusion whi ch now often occurs when t rial co urts are at tempting t

o determine whi ch offenses are lesser-i ncluded.

9 Trusty failed to recognize that the “passion” language in the definition of voluntary manslaughter si mply refl ects a less cul pable mental state th an required f or fir st or second degree murde r. See Sentencing Commission Comments to Tenn. Code Ann. § 39- 13-211. Theref ore, voluntary mans laughter is a lesser- included offense o f first and se cond d egree m urder. See State v. Burns , ___ S.W .2d _ _(Te nn. 1 999 ) (filed simu ltane ous ly with this o pinion ) (hold ing th at offe nse is lesser-i ncluded if

(a) all its statutory el ements are incl uded withi n the stat utory element s of the offense charged; or ( b) if i t fai ls to meet t

he defini

tion i n part (a) only in t

he respect that

it cont ains a statutor y element or el

ements establi

shing a dif

ferent mental

state i ndicati ng a lesser ki

nd of culpability ); see also Tenn. Code Ann. § 39-13-201 (1997) (pro viding t hat “[c] riminalhomicide i s the unlawful killing of another person which may be first degree murde r, second degree m urder, voluntary manslaughter, criminally negligent homicide, or vehicular homicide”).

-7- indictment, include, but are not congruent with, all the elements of the lesser.” This definition applied a s tatutory elements approach, w hereby a determination of whether an offense was lesser-included involved a comparison of the statu tory elements of the offense charged in the indictment with th e statutory elements of the offense alleged to lesser-included. Under this test, an offen se is lesserincluded if all its elements are contained within the elements of the offense charged in the indictment.

The idea that “lesser grad e” offenses are distinct from lesser-included offenses was first enunci ated in Trusty . Under Trusty , “lesser grade” offens es were located within the s ame statutory part as the i ndicted offense but contained different or additional el ements than the indicted offense.The holding in Trusty was partially prompted by the fact that some offenses which had traditionally been considered lesser-incl uded at common law were no longer lesser-included when the statutory elements test adopted in Howard was applied to crimin al offenses as redefined by the 1989 Crimi nal Sentencing Reform Act. 8 Of particular concern was whether voluntary m anslaughter is a lesser- included offense of first deg ree murder under the Tennessee cr iminal statutes as amended in 1989. 9 Another basis for the adoption of the “lesser grade” analysis in Trusty

was the language of Tenn. Code Ann. § 40-18-110(a) which provides: “[i]t is the duty of all judges-8-

charging juries in cases of criminal prosecuti ons for any felony wherein two (2) or

more grades

or classes

may be included in the indi ctment, to charge the jury as to all of the law of each offense included in the indictment . . . .” (Emphasis added.) Trusty failed to recognize, howev er, that when § 40-18-110 was enacted in 1877, lesser grade or class w as used to mean only lesser -included offense. See Good v. State , 69 Tenn. 293 (Tenn. 1878). Thus, contrary to the conclusion reache d in Trusty , “lesser grade or class” and “lesser-included offense” are simply synonymous terms descr ibing a single type of offense which is included in th e offense charged in an indictm ent and which may, therefor e, form the basis of a conviction.

Moreover, as explained in detail in State v. Burns , __S.W.2d __ (Tenn. 1999), also released today, th e “lesser-grade” analy sis adopted in Trusty

proved unworkable in application. Under Trusty , trial courts were r equired to instruct on “lesser grade” offenses.Therefore, the defendant in thi s case, indicted for aggravated rape, under the rule announced in Trusty would be conclusively presumed to be on constitution al notice that he was being tr ied for, and could be convicted of, any of the sexual offenses contained in Titl e 39, Part 5 of the Code, including public indecency or indecent exposure, Tenn. C ode Ann. § 39-13-511, prostitution, Tenn. Code Ann. § 39-13-513, rape of a child, Tenn. Code Ann. § 39- 13-522, sexual battery by an authority figure, Tenn Code Ann . § 39-13-527, or solicitation of a minor, Tenn. Code Ann. § 39-13-528. There is simply nothing in the statutory scheme that in dicates the General Assembl y intended such a broad rule.

Therefore, because Trusty’s “lesser grade” holding is not supported by Tennessee law and is unwork able in application, we conc lude that Trusty

must now be overruled to the extent that it recognizes “less er grade” offenses.-9- Having overruled Trusty we must also reverse the Court of Criminal Appeals judgment which modi fied the convictions of aggr avated rape to spousal rape. The State and the defendant agree tha t spousal rape is not a lesserincluded offense of aggravated rape under the te st adopted by this Court in Howard , because spousal rape contains a statutory element not con tained in aggravated rape, namely, that the victim is the legal spouse of the defendant. Moreover, spousal rape i s not a lesser-included of fense of aggravated rape under the test announced today in Burns . Under that test, a lesser-included offense may contain an additional el ement or elements establi shing: (1) a different m ental state indicating a lesser kind of culpability; and/ or (2) a less serious

harm or risk of harm to the same person, pr operty, or public interes t. Id. at ___. The additional element in spousal rape, that the victim is the legal

spouse of the defendant, does not establish either a different mental state indicating a lesser kind of culpa bility, or a less serious harm

or risk of harm to the same person. Having determ ined that spousal rape is not a lesser-included offense of aggravate d rape, it follows that the indictment charging aggravated rape is not suffi cient to support a conviction for spousal r ape.

Our conclusion that an aggrav ated rape indictment cannot be the basis for a spousal rape conviction i s also supported by this C ourt’s decision in McLean v. State , 527 S.W.2d 76 (Tenn. 1975). I n McLean , the petitioner was indic ted under the general law and convicted of the sale of a controlled substance. Although raised for the first ti me on appeal, it was uncontr overted at trial that the peti tioner was a licensed, register ed pharmacist. This Co urt concluded that the general l aw prohibiting the sale, or pos session with intent to sel l, a controlled substance w as not applicable to McLean becaus e there was a statutory exc eption for pharmacists. Id. at 79. In so holding, this Court emphasized that there were specific code provisions relating to the sale of a controlled substance by a-10-

pharmacist without a pres cription, stating: It seems clear to us that the petitioner should properly have been indicted and tried for v iolation of T.C.A. § 52-1431 [now 53-11- 308], and sentenced according to T .C.A. § 52-1435 [now 53-11- 401]. The statute under which he was indicted and convicte d pertains to the public general ly, but the code sections la st cited deal specifically with phar

macists and other regist rants, and prescribe entirely different penalti es and sanctions from those pertaining to the general public. Id. at 80. The McLean Court also rejected the St ate’s argument that the indictment under the general law could support a convic tion for the sale of a controlled substance by a phar macist without a prescr iption, stating: On behalf of the State it is ur ged that the evidence offered at the trial was suffici ent to convict the petitioner of a violation of T.C.A. § 52-1431 [now 53-11-308], that is selling a controlled substan ce falling within Schedule III without a prescription. It is therefore argued that there has been an erro r made simply as to the degree of punishment, and we are urged to reverse the case and remand it for a new trial on punishment on ly. While this might be permissible under some circumstances, we do not believe it appropriate where the petitioner has been indicted and tried under an inap plicable statute. It seems to us that there has been such a material variance between the offense charged and that atte mpted to be shown in evidence as to void the convi ction. Id. at 81 (emphasis added). R ecognizing that “[n]othing is more firmly establi shed in the law than that a defendant can not be charged with one crim e and convicted of another,” this Court r eversed McLean’s conviction. Id. (citation omitted).

As in McLean , the defendant in this case was indicted, tried, and convi cted under an inapplicable statute. Pursuant to Tenn. Code Ann. § 39- 11- 109(a)(1997), “[w]hen the same conduct may be defined unde r both a specific statute and a general statute, the person may be prosecuted under either statute unless the specific statut e precludes prosecution under the general statute .” (Emphasis added.) The spec ific statute in this cas

e, the limited spousal exclusion, Tenn. Code Ann. § 39- 13-507, precludes prosecuti on under the general criminal sexual offense statutes when the vic tim is the legal spouse of the perpetrator. While the s pousal exclusion must be pr oven by a preponderance of-11-

the evidence, see Tenn. Code Ann. § 39-11-202(b) (2) (1997), there was abund ant proof introduced at trial,including a certified c opy of their marriage ce rtificate, to establish that the defendant and the victim were legally married at the time these offenses were committed. In addition, the State conceded i n the Court of Criminal Appeals that the spousal exclus ion applied. Therefore, gi ven the application of the spousal exclusion, under McLean , although the evidence was sufficient to convict the defendant of spousal rape, the conviction cannot be affirmed because the State failed to specific ally indict the defendant for that offense. Furthermor e, the similarity of the allegations in the indictment — that the defendant did unlawfully sexually penet rate the victim whil e “armed with a weapon”— to the definition of spousal rape unde r Tenn. Code Ann. § 39-13-507( b)(1)(A) cannot serve to charge the defendant wi th spousal rape in addition t o aggravated rape. See State v. Jefferson , 529 S.W.2d 674, 678 (Tenn. 1975) (holding that two distinct offenses cannot gener ally be charged in the same count of the indictment). Having s

o concluded, we must rever se the convictions and rem and this case to the trial court for further proceedings.

CONCLUSION For the reasons herein stat ed, we overrule Trusty

to the extent that it requires jury instru ctions on “lesser grade” offenses and permits convi ctions of “lesser grade” offenses.Because the indictment in this case is not suffici ent to support a conviction for s pousal rape, we reverse the judgment of the Court of Criminal Appeals, vac

ate the defendant’s convictions , dismiss the indictm ents, and remand this case to the trial court for further proceedings consistent with this decision.-12- ______________________________________ FRANK F. DROWOTA, I II, JUSTICE

Concur: Anderson, C.J., Birch, Holder, Barker, JJ.