# FILED
March 20, 2000 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT NASHVILLE

STATE OF TENNESSEE , ) No. M2000-00304-CCA-RM-CD ) Appellee, ) DAVIDSON COUNTY ) VS. ) HON. THOMAS H. SHR IVER , ) JUDGE ) ROBBIE JAMES , ) ) (Child Rape) Appellant. ) UPON REMAND FROM THE SUPREME COURT OF TENNESSEE

FOR THE APPELLANT: FOR THE APPELLEE: EDWARD J. GROSS PAUL G. SUMMERS Parkway Towers, Ste. 1601 Attorney General and Reporter Nashville, TN 37219 ELLEN H. POLLACK Assistant Attorney General 450 James Robertson Parkwa y Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney Gener al WILLIAM R. REED Assistant District A

ttorney General Washington Sq., Ste. 500 222-2nd Avenue, N. Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED
JOE G. RILEY,2

JUDGE O P I N I O N
This case is before this Cour t u pon reman d from the Supreme Court o f Tennessee. The defendant was convicted of child rape and sen tenced to fifteen years in the Department of Correction. Originally, we concluded the tri al c ourt
comm itted reve rsible error by fail ing to charge aggravated chil d abuse as a lesser offe nse of child rape. The order of the Supreme Court remands to this C ourt fo r reconsideration in light of State v. Dominy , 6 S.W.3d 472 (Tenn. 1999). W e now conclude the trial court did not commit revers ible error and AFFIRM the judgment of the trial court.

FACTS

Defendantand her husband were u nable to have children and sought adoption. A two and three-year -old brother and sister were placed in their home in December

1991, in contemplation of adopti on. On October 22, 1992, a worker at the children’s day care facility found bl ood on cleansing tissue used by the three-year-old female. Upon further examination blood was discovered on the child’s inner thighs. These findings were reported to the Department of Human Servic es which in turn contacted the Metropolitan Pol ice Department. An inves tigation was begun.

When questioned as to how the child could have been injured, the defendant did not give definitive answer s to either the day care wor ker or theinterview ing detective. Defendant stated that the child had fallen a m onth earlier and had blood on her panties. She later conceded to the detective that she may hav e penetrated the child’s vagina with her finger while disci plining her on that morning

.

The child was evaluated at Our K ids Center which evaluates c hildren suspected of being sexually abused. The examination revealed that the three-year-3

old female had an “acute hyme nal vaginal tear” with b ruising and bleeding. The
injury was caused by

some type of penetration and w ould have been “painful” to the child at the time of its occurrence.

For reasons not apparent in the record, the defendant wa s not indicted until August 1994. In April 1995, defendant was evaluated by a clinical psychol ogist. The psychological records contained defendant’s explanation as to the occurr ence. Defendantstated that she was trying to dress thechild on this particul ar morning, and the chil d wa s crying and uncooperative. The defendant explained that, wi thout thinking, she tried to quieten t h e child by thrusting her middle finger into the child’s vagina. Defendant’s family his tory indicated she di d not have a healthy model for parenting and disciplining.

At trial the defendant testified that on the morning in questi on the chil d continued to cry while t h e defendant was attempting to dr ess her. After the defen d ant spanked the child, the defendant w as, in her own words, “ totally out of control” when she “stuck [her] fi nger in [the child’s] vagi na. ” The defe ndant stated that she “was under a lot of stress, and I just lost it.” Defendant related that she “couldn’t think,” and her actions w ere notintentional. She stressed that she was not attempting to harm the child in any way, and there was absolutely no sexual motive in her actions.

JURY CHARGE

The jury was charged as to th e indicted offense of child r ape and th e lesse r offense of misdemeanor child abuse. Durin g deliberations the jury as ked the trial court if it co uld reach a verdict of guilty on one of the charges and recomm end consideration of mitigating circumstances for the sentence. The trial court advise d4

the ju ry that sentencing was not th eir function. The jury subsequently returnedit s verdict of guilty of chi ld rape.

THIS COURT’S ORIGINAL OPINION

In our original opinion, thi s Court rejecteddefendant’s contentions that (1) the evidence was insufficient to support her conviction; (2) her sentence constituted cr uel and unusual punishment; (3) ther e was an abuse of

prosecutorial discretion; and (4) she was denied the right to a spee dy trial. However, w

e found plain error in the t rial court’s failure to charge aggravated ch ild ab use as a lesser offense. Thus, we remanded for a new trial.

DOMINY

The order of remand asks us t o reconsider our opinion i n light of St ate v
. Dominy , 6 S.W.3d 472 (Tenn. 1999). Dominy overruled State v. Trusty , 919 S.W.2d 305 (Tenn. 1996), to the extent that it r ecognized “lesser grade” offenses as distinct from lesser in clu ded offenses and permitted convi ctions of “lesser grade” offenses that were not lesser include d offenses embraced by the indi ctment. 6 S.W.3d at 473- 74. This Court relied upon Trusty in finding aggravated child abuse to be a lesser offense of child rape. Sinc e Trusty was subsequently overruled by Dominy , we must re-examine the i ssue of lesser offenses.
Dominy incorporates

the test set

forth in State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999), in determining lesser included offenses. 6 S.W.3d at 477. We must, therefore, determine under Burns whether the trial court erred in failing to char ge any lesser included offenses other than misdemeanor chil d abuse.

BURNS5 Pursuant to Burns , an offense is a lesser i ncluded offense if: (a) all of its statutory elements are i ncluded within the statutory elements of the off ense charged; or (b) it fails to meet the definiti on in part (a) only in the respect that it contains a statutory el ement or elements establishing (1) a different mental state i ndicating a lesse r kind of culpability; and/or (2) a le ss seri ous harm or risk of har m to the same person, property o rpublic interest; or (c) it consists of (1) facilitation of

the offense charged or of an offens e that otherwise meets the definition of lesser-included offense in part (a) or (b); or (2) an attempt to commit the of f e nse charged or an offense that o therw ise meets the definition of lesserincluded offense in part (a) or (b); or (3) solicitation to commi t the o ffense charged or an offense that otherwise meets the definition of lesserincluded offense in part (a) or (b). Burns , 6 S.W.3d at 466-67.

Based upon the above test, we conclude that aggravated child abuse does not meet either part (a), part (b) or part (c) of the Burns test as it relates to chi ld rape. However, we note that Burns also recognizes that some offenses are expre ss ly d esig nated lesser included offenses b y statute. Id. at 467, n. 12. In fact, Burns specif icallymentions the statutory pro vision of Tenn. Code Ann. § 39- 15-40 1(d ) which providesthat misdemeanor child abuse is a lesser included offense of any kind of homicide, statutory assault, or sexual offense if the vic tim is a child and the evide nce s upports the charge. Id. Thus, according to Burns , misdemeanor child abuse is a lesser include d offense of child rape.

The aggravated child abuse statute, Tenn. Code Ann. § 39-15- 402, does not contain a comparable provision making it a lesser included off ense of any kind of1 It may also be that aggravated sexual battery meets

part (a) of Burns as noted in the concurring opinion. Resolution of this issue is unnecessary for the disposition o f this appeal. 6 homicide, statutory assault or sex ual offense involving a chi ld. Since aggravated child abuse is not expressly des ignated by statute as a lesser included offense and

does not meetpart (a), part (b) or part (c) of the Burnstest, we conclude aggravated child abuse is not a lesser included offense of child r ape.

AGGRAVATED SEXUAL BATTERY

We must now dete rmine, pursuant to Burns , whether the trial court should have charged any other lesser i ncluded off enses. Child rape requires “ unlawful sexual penetration” of a child less than thirteen years of age. Tenn. Code Ann. § 39- 13-522(a). Aggravated sexual battery r equires “unlawfulsexual contact” with a child less than thirteen years of age. T enn. Code Ann. § 39-13-504(a)(4). T hus, aggra vated sexual battery establishes a less serious harm or risk of har m to th e victim under part (b) of the Burns test and is a lesser included off ense of child rape. 1

We must now determine whether the trial court erred i n f a iling to charge aggravated sexual battery. Burns establishes a two-part analysis. Firstly, evidence
m ust exist that reasonable min ds could accept as to the less er included offense

. Burns , 6 S.W.3d at 469. Evidence must be viewed liberally in the light most favorable to the existence of the lesser included offen se. Id . Secondly, theevidence must be legally sufficient to support a conv iction for the lesser i ncluded o ffense. Id. We conclude the trial court d id not err in failing to charge aggravated sexual batter y.

Child rape has tw o e ssential elements: (1) unlawful sexual penetration;and (2) a victim less than thi rtee n (13) years of age. Tenn. Code Ann. § 39-13-522(a).2 The statute in effect at the time of tr ial authorized ju

ry instructions on p

ossible punishmentfor the charged offenses if requested prior to jury selection. See Tenn. Code Ann. § 4 0-35-201(b)(1997). Such comments are forbidden in all trials occurring after May 18, 1998. See 1998 Public Acts, Chapter 1041, §§ 2, 3; Tenn. Code Ann. § 40-35-201(b) (Supp. 1999).
3 The one hundred perc ent (100%) statute

for aggravated

sexual battery di

d not apply to an offense committed prior to July 1, 1995. See Tenn. Code Ann. § 40-35-501(i)(1),(2)(H).
7 It is undispute d the child wa s less than thirteen (13) years of age. It is further undisputed, eve n acco rding to the defendant’s own tes timony, that the defendant digitally penetrated the child’s vagi na. Under these circumstanc es when all elements of the greater offense are undisputed, the trial c ourt di d not err in failing to c harge aggravated sexual battery as a lesser included offense.

CONCLUSION

We are constrained to note that we f ind this result harsh under the unique facts and circums tances of t his case. Although the jury found the defendant guilty of child rape, the jury wa s obviously concern ed about punishment and desired to recommend leniency in s entencing. Possible punishm ent was not charged to the jurysince counsel failed to make such a request pri or to jury selection. 2 An entire sentence for child rape must be s erved undiminished by any s entence reduction credits. Tenn. Code Ann. § 39-13-523(b) . This was not required of aggravated sexual battery at the time of this offense. 3 When the jury during its d eliberations asked the trial court about sentenc ing, they were told not

to consider

sentencing for fear that their verdict mi ght be set aside by an appellate court. Although the jury was given misdemeanor child abuse as a lesser offense, there was a huge gulf between the only charged offenses of Cl ass A felony child rape and misdemeanor child abuse. T h is scenario is uncomfortabl y close to an “all or nothing” decision that was condemned by Burns . 6 S.W.3d at 466.

Even though the jury had limit ed options, we are unable to conc lude the trial8

c ourt erred in failing to char ge aggravated sexual battery s ince all elements of th e greater offense were undi sputed. In summary, we do not read Burns as requiring instructions

on lesser

included offenses when the evidence undisputedly shows guilt of a higher offense.
We, therefore, AFFIRM the judgment of the trial c ourt.

JOE G. RILEY, JUDGE

CONCUR:

JAMES CURWOOD WIT T, JR. JUDGE

JOE H. WALKER III, SPE CIAL JUDGE