1 It is the policy of this Court to identify minor victims of sex crimes by their initials.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs J

anuary 18, 2001 STATE OF TENNESSEE v. ROBERT EA RL SYLER Appeal from the Criminal Court for Sumner County No. 1013-1998 Jane Wheatcraft, Judge

No. M2000-00735-CCA-R3-CD - Filed February 16, 2001

The Defendant was c

harged with ra

pe and convicted

of that offense a

fter a jury trial. In this appeal as of right, the De

fendant contend

s that the trial cou

rt committed reve

rsible error in r

efusing to instruct the jury

on the offense of

statutory ra

pe. We affirm the j udgment of the tr ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D AVID H. W ELLES , J., deli vered the opinion of the court, in which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined. David A. Doyle, Gallatin, Tennessee, for the appellant, Robert Earl Sy ler. Paul G. Summers, Attorney Ge neral and Report

er; Mark E. David

son, Assistant Attor

ney Gener

al; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Bro wn, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION The Defendant, Robe

rt Earl Syle

r, was charge

d with one count

of rape and convicted of that offense by a jury. He was

subsequently

sentenced as a Ra

nge I offe nder toten years incarceration. In this direct appea l, the Defendant contends that the trial court committed reversible error by refusing to instruct the jur y on t he offense of statutory rape. Upon our review of the r ecord and relevant lega

l authority,

we affirm the jud

gment of the tria

l court. On June 28, 1998, C.S., 1 then fourteen years old, spent the night with her f rien d, Sandra Eden. Ms. Eden’s husband and baby were also in the house, as well as the Defendant, Ms. Eden’s half-brother. C. S. went to bed on a pallet in the baby’s room. The Defendant planned to sleep on the couch in the liv

ing room.-2-

C.S. testified that, after she went to bed, the Defendant entered the baby’s room and put his hand over her mouth. He pulled down her shorts and panties. When s he tried to pull her clothes back up, the Defendant hit her in the stomach. The Defendant then had sexual intercourse with C.S., keeping his hand over her mouth. C.S. testified that the Defendant did not touch her elsewhere. The Defendant, who was thirty-six years old at t he time of the incid ent, testified tha

t C.S. came into the living room after Mr. and Ms. Eden had gone to bed. C.S. scratched his back and then touched his leg. The Defendant responded by touching C.S.’s breast. The two then walked into the baby’ s room hold

ing hands . They

laid down t

ogether and had co

nsensual sex. At trial, the Defendant requested the court to instruct the jury on statu

tory rape: a crime with which the Defendant was not charged. The trial court refused to give the requested instruction. The Defendant now argues that he is entitled to a new trial on the basis of this alleged error. The Defendant argues that statutory rape is a lesser included offense of rape and that the trial court was therefore

obligated to

instruct the jury

thereon. Accor

ding to our supre

me court, however, the Defendant is mistaken. In State v. Stokes , 24 S.W.3d. 303, 305-06 (Tenn. 2000), our supreme court specifically held that “statutory rape is not a lesser included offense of rape.” The Defendant contends in his brief that “the re is a good faith argument for a modification of the Supreme Court’s decision in Stokes .” That may be the case; however, this Court is in no position to modify a super ior court’s decisions. See State v. Irick , 906 S.W.2d 440, 443 (Tenn . 1995) (“ ‘[I]t is a controlling principle that inferi or courts must abide the orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the jud icia l process.’”) (citation omitted), see also Thompson v. State , 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997) (holding that the Court of Criminal Ap peals “is bound by the decisions of [the Tennessee] supreme court.”)
We are also unpersuaded by the Defendant’s arg ument that he was entitled to the instruction under State v. Trusty

, 919 S.W.2d 305, 311 (Tenn. 1996), because he was tried before our supreme court overruled that decision in State v. Dominy , 6 S.W.3d 472, 477 (Te nn. 1999). Our supr

eme court has specifically noted that “an instruction on statutory r ape would have al so b een improper under the ‘lesser grade or class’ analysis set forth in . . . State v. Trusty .” Stokes , 24 S.W.3d at 306 fn.3. Under either Trusty or Stokes , then, the Defen dant’s argumen

t has no merit. The trial court did not e

rr when it refuse

d to give the jury

an instruction on a

n offense with which the Defendant was n ot charged, an

d which was not a le

sser included off

ense of the crime

with which he was charged. Accordingly , we affirm the judgment of the trial court.

___________________________________ DAVID H. WELLES, JUDGE