IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 17, 2004 Session

STATE OF TENNESSEE v. WELTHA WOMACK

 Appeal from the Criminal Court for Knox County

No. 69868 Richard Baumgartner, Judge

No. E2003-02332-CCA-R3-CD - Filed January 4, 2005

The Appellant, Weltha Womack, was convicted by a Knox County jury of one count of aggravated

rape, a class A felony, and two counts of misdemeanor assault, resulting in an effective fifteen-year

sentence. On appeal, Womack raises the following issues for our review: (1) the voluntariness of

his statements to the police; (2) whether the trial court erred by permitting the State to amend the

presentment on the morning of trial; (3) whether the trial court properly instructed the jury with

regard to the requisite mental state for aggravated rape; and (4) whether the prosecutor’s comments

constituted prosecutorial misconduct in its closing argument. After review, we find merit with

regard to issues (1) and (3) with respect to Womack’s conviction for aggravated rape. Accordingly,

the judgment of conviction for aggravated rape is reversed, and this case is remanded for a new trial

consistent with this opinion. 

Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded

DAVID G. HAYES,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR., and

ALAN E. GLENN, JJ., joined.

Mark E. Stephens, District Public Defender; and John Halstead, Assistant Public Defender,

Knoxville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C.

Cherry, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Leland Price,

Assistant District Attorney General, for the Appellee, State of Tennessee.
 In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the 1

victims by their initials. State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn. Crim. App. 1989).

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OPINION

Factual Background

Around July 1999, the victim, A.W., reported to the Department of Children Services in 1

Montgomery County that she had recently been sexuallymolested by her grandfather, the Appellant,

while visiting him in Knoxville. The victim further reported that her grandfather had first molested

her when she was four years old. At the time the report was filed, the sixteen-year-old victim lived

with her parents in Clarksville where her father was stationed at Fort Campbell. The seventy-yearold Appellant is the fraternal grandfather of the victim. The victim’s complaint was forwarded to

the Knoxville Police Department for investigation.

The Appellant was contacted by Investigator Ron Neal of the Knoxville Police Department

and voluntarily came in for questioning. During the first interview, conducted on September 9,

1999, the Appellant initially denied any wrongdoing. However, during the course of the interview,

he did admit touching the victim’s breast in June of 1999 while she was in the bathroom. The

Appellant stated that the victim had had a bladder problem when she was a young child and that he

had touched her in the vaginal area to check for wetness. The Appellant returned on September 24,

1999, for a second interview. During this interview, the Appellant admitted that he “may have . .

. tickled her on her . . . [vagina] once, maybe twice.” However, during both interviews, he

consistently denied that any of his actions were done for a sexual purpose.

On January 27, 2000, a Knox County grand jury returned a five-count presentment against

the Appellant charging him as follows: 

Count One: rape of a child, alleging sexual penetration of the victim on “diverse

[sic] days” between “the ___ day of July 1986 and the ___ day of July 1990,” in

violation of Tennessee Code Annotated section 39-13-522;

Count Two: rape of a child, alleging sexual penetration of the victim on “diverse

[sic] days” between “the ___ day of July 1986 and the ___ day of July 1990," in

violation of Tennessee Code Annotated section 39-13-522; 

Count Three: aggravated sexual battery, occurring on “diverse [sic] days” between

“the ___ day of July 1994 and the ___ day of July 1995,” in violation of Tennessee

Code Annotated section 39-13-504;
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Count Four: sexual battery, occurring on “diverse [sic] days” between “the ___ day

of January 1996 and the ___ day of December 1996," in violation of Tennessee Code

Annotated section 39-13-505; and

Count Five: sexual battery, that occurred on or about the ___ day of June 1999, in

violation of Tennessee Code Annotated section 39-13-505.

On the morning of trial, the State orally moved to amend counts one and two, which both

alleged rape of a child in violation of Tennessee Code Annotated section 39-13-522, to the crime of

aggravated rape. Over objection, the trial court granted the motion permitting amendment of counts

one and two to reflect charges of aggravated rape in violation of Tennessee Code Annotated sections

39-2-603 and 39-13-502.

At trial, the proof established that the victim, A.W., whose date of birth is July 27, 1982,

lived with her parents and older sister in Knoxville as a small child. While there, the victim

regularly stayed at the home of her grandparents while her parents worked. Oftentimes the victim’s

grandfather, the Appellant, would take the victim to school. The victim related that during her visits

to the Appellant’s house, he would play with her clitoris and insert his finger into her vagina. She

stated this first occurred when she was four years old and continued until the family moved to

Germany when she was eight. The victim specifically remembered two occasions on which she was

sexually abused:

A. . . . I believe he was taking me to school and he, again, you know, reached his

hand down into my pants and fondled my vagina and just — I remember we were at

the gas station, and we were on — I think on the way to drop me off at school,

because we’re — we’re going [sic] that area.

Q. Do you remember which school?

A. It was Pond Gap Elementary.

Q. Do you remember what grade you were in?

A. I believe I was probably in the second grade, second or third.

Q. And you say he touched you?

A. Yes, sir.

Q. Can you describe specifically what happened?
These facts form the basis for count one which was amended to charge aggravated rape.

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These facts form the basis for count two which was amended to charge aggravated rape.

3

These facts form the basis for count five.

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A. He placed his hand on my vagina and continued to play with my clitoris, and he

inserted his finger into my vagina.2

With regard to the second occasion, the victim recalled:

A. I remember sitting on his lap in his house, close to the kitchen. My grandmother

had just gone out to take out the clothing that she had washed . . . She hung her

clothes out on the clothesline outside, and she would go out the door towards —

around the kitchen and he — he waited for her to leave, and he told me to sit on . .

. his lap . . . And he placed his hands in my pants again. . . .

Q. He asked if you liked it, asked you to come sit on his lap. Then what happened?

A. He — he put his hand inside of my pants and — 

Q. Once he did that what did he do?

A. And he — he — I’m sorry. He played with my clitoris and inserted his finger

into my vagina.3

The victim further stated that in 1999 she and her family returned to Knoxville for a family

member’s wedding. During this visit she stayed at the Appellant’s home. She related that, while

she was in the bathroom, the Appellant came up behind her, fondled her breasts for three to four

seconds, and told her that her breasts were becoming developed and were nice. The victim pushed

the Appellant away and told him “no.” 

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The victim verified that she had a pronounced bladder control problem as a youth and that

it was not unusual for her family to bring her clean clothes to school. This problem was confirmed

by the victim’s mother who testified at trial. The State also called Detective Ron Neal who

introduced the Appellant’s statements from the two interviews.

At the close of the State’s proof, the trial court granted the Appellant’s motion for a judgment

of acquittal with regard to count three, which alleged aggravated sexual battery, and count four,

alleging sexual battery. Based upon the proof presented, the jury returned a verdict finding the

Appellant guilty of misdemeanor assault under count one, guilty of aggravated rape under count two,

and guilty of misdemeanor assault under count five. The Appellant was later sentenced to fifteen

years for the aggravated rape conviction, to be served concurrentlywith the two six-month sentences
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for the assault convictions. The Appellant’s motion for new trial was denied, with this appeal

following. 

Analysis

I. Admissibility of Statement

As his first issue, the Appellant contends that portions of his second statement to the police

were obtained involuntarily and, thus, should not have been admitted at trial.

The findings of fact made by the trial court at a hearing on a motion to suppress are binding

upon this court unless the evidence contained in the record preponderates against them. State v.

Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is best able to assess the

credibility of witnesses, determine the weight and value to be afforded the evidence, and resolve any

conflicts in the evidence. Id. (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). However,

this court is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776,

779 (Tenn. 1998). The application of the law to the facts found by the trial court is a question of law

that this court reviews de novo. State v. Daniels, 12 S.W.3d 420, 423 (Tenn. 2000). 

The proof on this issue established that the Appellant agreed to meet with Detective Ron

Neal of the Knoxville Police Department at the police station to discuss the Department of Children

Services complaint that had been filed by the victim. The first interview lasted approximately one

hour. At this meeting, the Appellant was advised of his rights and was told that he could leave at

any time he wished. He was further advised that his statements and responses would be given to the

Child Protection Investigative Team and that the district attorney general would then make the

decision of whether to prosecute the case. The first interview was not recorded. At this interview,

the Appellant denied any criminal wrongdoing.

Just prior to the second interview, the Appellant was given a polygraph test. After

completion of the test, the Appellant was advised by Detective Neal that he had failed. The

Appellant, however, persisted in his denial of any criminal conduct. He readily admitted that he had

touched the victim on many occasions but only because she had a serious bladder control problem

and that she would nevertell him or his wife when she had “wet” on herself. Approximately midway

into this thirty-five-minute interview, the following colloquy transpired:

[Detective]: Our job is to take [the complaint] to court.

[Appellant]: Okay.

[Detective]: It’s [A.W.’s] job to get . . . take it to counseling, okay?

[Appellant]: Okay.
The Appellant also complains of certain so-called minimization techniques utilized by the Detective such as:

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(1) asserting the reliability of the polygraph test and the similarity in his statements to the victim to convince the

Appellant he would be convicted; (2) informing the Appellant he would not be arrested that day no matter what was said;

(3) discussing the availability of counseling; (4) asking the Appellant’s opinion on a second chance for someone who

committed a crime of this nature; and (5) telling the Appellant that what he did may have been totally innocent. We agree

with the trial court that these techniques employed by the Detective were not in error. 

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[Detective]: Uh . . . I . . . what I’m hoping we can do . . . uh . . . is put a closure to this

for [A.W.] and you.

[Appellant]: Do what, sir?

[Detective]: To close it out for you and [A.W.].

[Appellant]: Okay.

[Detective]: And . . . it would be nice if we could do it without a lawyer . . . a court

battle.

Almost immediately thereafter, the Appellant responded:

[Appellant]: . . . I may have uh . . . tickled her on her . . . upper part there . . . uh . .

. that . . .

[Detective]: What do you mean by “tickled her?”

[Appellant]: Maybe just rub my finger on it, you know. . . .

[Detective]: I understand that. Uh . . . so you’re saying now that you might have

tickled the top of her vagina . . . on her pants . . . just not inside.

[Appellant]: Maybe to her that was penetration. . . .

The Appellant argues that the statement by Detective Neal, in addition to the prior

“minimization techniques” employed by the Detective, led to the above inculpating statements.

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He contends that the Detective’s statement “to close it out for you and [A.W.]” can only be

interpreted as an implied promise to keep the case out of court. As such, he contends that the

inculpating statements which followed were improperly induced. We agree. 

Confessions that are involuntary, i.e., the product of coercion, whether it be physical or

psychological, are not admissible. Rogers v. Richmond, 365 U.S. 534, 540, 81 S. Ct. 735, 739

(1961). The test for voluntariness under the Tennessee Constitution is broader and more protective

of individual rights than the test of voluntariness under the United States Constitution. State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). For a confession to be admissible, it must be “free
 We note that two Tennessee Supreme Court justices filed separate dissenting opinions in this case finding that 6

the confession was not voluntarily given. 

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and voluntary; that is, [it] must not be extracted by any sort of threats or violence, nor obtained by

any direct or implied promises, however slight, nor by the exertion of any improper influence . . . .”

State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (quoting Bram v. United States, 168 U.S. 532,

542-43, 18 S. Ct. 183, 187 (1897)). 

In determining the admissibility of a confession, the particular circumstances of each case

must be examined as a whole. Smith, 933 S.W.2d at 455; see also State v. Phillips, 30 S.W.3d 372,

377 (Tenn. Crim. App. 2000). A defendant’s subjective perception alone is not sufficient to justify

a conclusion of involuntariness in the constitutional sense. Smith, 933 S.W.2d at 455 (citations

omitted). Rather, “coercive police activity is a necessary predicate to finding that a confession is not

voluntary. . . .” Id. (citations omitted). 

However, an officer’s promise of leniency does not render a subsequent confession

involuntary per se, for “[t]he critical question is ‘whether the behavior of the state’s law enforcement

officials was such as to overbear petitioner’s will to resist and bring about confessions not freely selfdetermined. . . .’” Id. at 455-56. Accordingly, we must determine whether the Appellant’s statement

was “compelled” or induced by a promise of leniency under the totality of the circumstances

surrounding the statement. 

In Smith, the Tennessee Supreme Court concluded that a social worker’s statement to the

defendant, that the district attorney might forego prosecution if the defendant were truthful and

received counseling, was equivocal and could not reasonably be interpreted as a promise that no

prosecution would follow. Id. at 456. The court further concluded that a statement that the

defendant would be prosecuted if he chose not to admit to unlawful conduct was insufficient to

render his subsequent statement involuntary. Id. Under all the circumstances, the court concluded

that the defendant’s statements were not “compelled” in violation of the state or federal constitution.

Id. However, the court noted that the interrogator’s remarks were “on the line, but did not cross it.”

Id. at 458. The court expressed “the strongest disapproval of any practice whereby state agents

encourage suspects to seek counseling for the purpose of eliciting incriminating statements for use

in a subsequent prosecution.” Id. 

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In Phillips, the defendant drove himself to the Department of Human Services for an

interview regarding the alleged sexual abuse of his stepdaughters. Phillips, 30 S.W.3d at 374. The

investigators interrogated the defendant for about one hour, and, although he repeatedly and

steadfastly denied any sexual misconduct for much of the interview, the defendant finally admitted

to sexually abusing one of his stepdaughters. Id. This court reviewed a thirty-six page transcript of

the interrogation of the defendant which revealed: (1) misrepresentations by an investigator; (2)

numerous steadfast denials by the defendant; (3) statements that law enforcement officials would be

involved if the defendant did not confess to sexually abusing his stepdaughter; and (4) promises for

treatment for the defendant and his stepdaughter only if he fully confessed to the crimes. Id. at 377.
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The promises and inducements were made repeatedly by the investigators prior to the defendant’s

confessions. Id. The court concluded that “[t]he actions of the interrogators were much more

coercive than those found in Smith, and unlike Smith, crossed the line.” Id. 

In this case, the record establishes that the Appellant voluntarily appeared for both relatively

lengthy interviews. Detective Neal testified that, on both occasions, he explained to the Appellant

that he was free to leave at any time and that no matter what was said, the Appellant would not be

arrested. Neal also testified that he explained the process of these types of investigations, including

that no arrests would be made until after the case was presented to the Child Protection Investigative

Team and the district attorney, who would then make the decision whether to prosecute the case.

Additionally, Neal stated that he informed the Appellant of his Miranda rights, which the Appellant

acknowledged. 

During argument at the motion to suppress hearing, the State admitted that the statement in

question “is approaching the line of saying, ‘Well, we’re not – we’re not going to prosecute,’ . . .

You know, honestly, to be quiet candid, I’d rather them not talk about keeping lawyers out and

everything like that. I’d rather that not have been said, but it was said . . . .” However, the State

argued that Detective Neal’s statement was not an unambiguous promise not to prosecute. The State

contends that the Appellant knew that Neal could not fulfill such a promise because the entire

process, including the fact that Detective Neal did not make the decision to prosecute, was explained

to the Appellant. The trial court concluded that, although it would have preferred that Neal’s

statement not have been made, it was not an unambiguous quid pro quo offer which rendered the

statement involuntary. 

After review of the challenged statement, we find that, under the totality of the circumstances,

the statement by Detective Neal could only be reasonably interpreted by the Appellant as a promise

to avoid prosecution in exchange for his confession. While both the State and the trial court relied

upon the explanation Neal gave to the Appellant at the start of the interview, that the district attorney

made the decision to prosecute the case, certain statements made during the course of the interview

tend to contradict this position. On page 13 of the interview, Neal states: “This is going to be a uh

. . . long drawn out procedure. Because I have enough to go to court with it.” (emphasis added).

On page 15 of the interview, immediately prior to the statements in question, when the Appellant

raised the possibility of counseling, Neal responded: “Our job is to take it to court.” Thus, in the

context of the statement by Neal about avoiding a court battle, these statements, spoken only a few

moments earlier, could clearly reinforce the belief that Neal had the authority to keep the case from

a courtroom. Additionally, we would note that almost immediately after this statement was made

by Neal, the Appellant ceased his repeated denials of touching the victim for sexual purposes and

admitted he might have tickled her vagina once or twice. There is no issue of credibility in this case,

as it only involves application of the facts to the law. Although we believe the police conduct falls

between Phillips and Smith, we find that the improper inducement is more aligned with the

circumstances in Phillips than in Smith. We conclude that the Appellant’s inculpatory statements

which followed were secured by an implied promise and, as such, were involuntarily given. Thus,
Rule 7(b), Tennessee Rules of Criminal Procedure, provides that no amendment may be made to an indictment,

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without the defendant’s consent, if an additional offense is charged and if any substantial right of the defendant is

prejudiced.

The presentment charges that the Appellant “recklessly” sexually penetrated the victim. As discussed infra,

8

this is error. Nonetheless, the error does not require invalidation of the instrument. See State v. Hill, 954 S.W.2d 725,

729 (Tenn. 1997).

As noted above, the two open-dated counts of the presentment charge the same offense and allege the same

9

time frame for the commission of the offenses. At the close of the proof in the case, the State elected two separate

occurrences of aggravated rape, which it submitted to the jury under these respective counts. Although not raised as

error, we know of no authority which would allow this procedure. Indeed, this practice in certain cases would effectively

circumvent Tennessee Rules of Criminal Procedure 8(b) and 13(a), and Tennessee Rules of Evidence 404(b). Our

supreme court has characterized the practice of permitting the admission of multiple acts of sexual misconduct into

evidence from a single open-dated indictment as a “special rule.” State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994).

The rule further provides, “the State must elect at the close of its proof-in-chief as to the particular incident for which

a conviction is being sought.” Id. (emphasis added). We would acknowledge the use of multi-count, open-dated

indictments for separate statutory crimes or for separate defendants. Again, because this issue has not been raised or

briefed, we leave its resolution for another day.

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any inculpatory statements made by the Appellant after Detective Neal’s statement that he hoped “to

close it out for you and [A.W.]” were improperly admitted. 

II. Amendment of the Presentment

Second, the Appellant asserts that the trial court erred in granting the State’s request to

amend counts one and two of the presentment on the morning of trial from rape of a child to

aggravated rape, to reflect the statute which was in effect at the time the offenses were committed.

The Appellant asserts that it was error to permit the amendment because it resulted in the charging

of a different offense due to different applicable mental states, a violation ofRule 7 of the Tennessee

Rules of Criminal Procedure.

7

Counts one and two of the presentment contain identical language with each alleging: “On

or about the ____ day of July, 1986, and on diverse [sic] days between that date, and the ____ day

of July, 1990, [the Appellant] . . . did unlawfully and recklessly sexually penetrate [A.W.], a child

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less than thirteen (13) years of age, by placing his finger in the vagina of [A.W.], in violation of

T.C.A. 39-13-522. . . .” On the morning of trial, the State apparently realized that rape of a child, 9

as defined by Tennessee Code Annotated section 39-13-522, was not enacted until 1992, well after

the dates alleged in the presentment. The State then moved to amend the offense in each count to

that of aggravated rape. The State posited that because the elements of rape of a child and

aggravated rape of a victim less than thirteen years of age, as defined by Tennessee Code Annotated

section 39-13-502, were the same, no prejudice would occur. The State, however, acknowledged

that during the four-year time frame alleged in counts one and two, two different statutory offenses

of aggravated rape were in effect. First, from July 1986 until November 1, 1989, Tennessee Code

Annotated section 39-2-603 governed the charge of aggravated rape, which was defined as an

“unlawful sexual penetration of another accompanied by any of the following circumstances: . . . (4)
We note that the Sentencing Commission Comments to Tennessee Code Annotated section 39-13-502 state

10

that the former “subdivision (a)(4), concerning rape of a child less than thirteen years of age, has been moved to § 39-13-

522.”

This issue is further compounded by the dilemma of determining which statute was operative on the date the 11

crime of aggravated rape was committed. The victim testified that she was “approximately seven” on the date she was

sexually penetrated. The victim would have turned seven on July 27, 1989, and accordingly, remained seven until July

26, 1990. Based upon this proof, the crime could have been committed under Tennessee Code Annotated sections 39-2-

603 or 39-13-502.

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The victim is less than thirteen years old.” From November 1989 until the end of the period covered

in the presentment, Tennessee Code Annotated section 39-13-502 defined aggravated rape as the

“unlawful sexual penetration of a victim by the defendant or the defendant by the victim

accompanied by any of the following circumstances: . . . (4) The victim is less than thirteen (13)

years of age.” The current section of the code, which was enacted in 1992, Tennessee Code 10

Annotated section 39-13-522, defines the offense of rape of a child as “the unlawful sexual

penetration of a victim by the defendant or the defendant by a victim, if such victim is less than

thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522 (2003). 

It is uncontested that each of the three statutes in question prohibited the unlawful sexual

penetration of a victim less than thirteen years of age. The Appellant does not question the similarity

of these elements. Rather, he argues that the pre-1989 aggravated rape offense, Tennessee Code

Annotated section 39-2-603, was a general intent crime, whereas the mental states of intentional,

knowing, or reckless applied to the crime of aggravated rape after November 1, 1989. Tenn. Code

Ann. § 39-11-301(c) (2003). The trial court instructed the jury only under the provisions of

Tennessee Code Annotated section 39-13-502. The Appellant contends that under this charge, the

jury was instructed that the mental states of intentionally, knowingly, or recklessly were applicable

to the elements of aggravated rape. Thus, the Appellant argues that under this instruction, the jury

was permitted to find him guilty of aggravated rape based upon a finding that he recklessly

penetrated the victim. As such, he argues that the two crimes of aggravated rape constitute

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different offenses, as the pre-1989 common law crime did not permit a conviction based upon the

mental state of recklessness.

We would agree that the pre-November 1, 1989 offense of aggravated rape was a crime

originating from common law. State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983). Although the

crime before us is aggravated rape, our supreme court has recognized that this offense is but an

aggravated form of the common law offense of rape. Id. Rape was a general intent crime at

common law for which a culpable mental state was necessary but easily inferable from the conduct

which comprised the offense. Dykes v. Compton, 978 S.W.2d 528, 530 (Tenn. 1998). The Model

Penal Code, from which our current statutory culpable mental states are derived, discarded the

language of general and specific intent in favor of “intentionally,” “knowingly,” “recklessly,” and

“criminal negligence.” Tenn. Code Ann. § 39-11-301, Sentencing Commission Comments. In

general, however, “intentional” corresponds loosely with the common law concept of specific intent,

while “knowingly” corresponds looselywith the concept of general intent. State v. James Dison, No.
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03C01-9602-CC-00051 (Tenn. Crim. App. at Knoxville, Jan. 31, 1997) (citing United States v.

Bailey, 444 U.S. 394, 405, 100 S. Ct. 624, 632 (1980)). 

Accordingly, we agree with the Appellant that prior to November 1, 1989, a defendant could

not be convicted of aggravated rape based upon a “reckless” sexual penetration of the victim. This,

however, is precisely the rule today as under our current criminal code that no defendant may be

convicted of aggravated rape based upon a “reckless” sexual penetration of the victim. Thus, the

error in this case is not attributable to an improper amendment of the presentment, rather it stems

from an improper charge to the jury. 

III. Improper Instruction with Regard to Mental State of “Recklessness”

This appropriately raises the Appellant’s third issue of whether the trial court committed error

“when the jury was instructed that they could find Appellant guilty of aggravated rape if he acted

recklessly.” We begin our analysis with a review of the statutory provisions relevant to this issue.

Because the definitions of all sexual offenses under part 5 of our criminal code do not contain

a mental element, the mental elements of intent, knowledge, or recklessness will suffice to establish

the culpable mental state. Tenn. Code Ann. § 39-11-301(c). However, sex offenses may have more

than one mental state. See State v. Parker, 887 S.W.2d 825, 827 (Tenn. Crim. App. 1994). It is the

obligation of the trial judge to instruct the jury with regard to the applicable mental state “as the

definition of the offense requires, with respect to each element of the offense.” Tenn. Code Ann. §

39-11-301(a)(1) (emphasis added). 

Furthermore, our criminal code directs that no person may be convicted of a criminal offense

unless “[t]he conduct, circumstances surrounding the conduct, or a result of the conduct described

in the definition of the offense[ ]” be proven beyond a reasonable doubt. Tenn. Code Ann. § 39-11-

201(a)(1) (2003). Thus, our code specifically defines three types of possible elements of which one

or more may be found in the definition of any criminal offense. The type or types of elements

defined in the offense determines which applicable portion of the mental state definitions of

“intentional,” “knowing,” “reckless,” or “criminal negligence” should be charged to the jury. The

first element, conduct, involves the nature of the proscribed act or the manner in which the defendant

acts, e.g., the physical act of committing an assault, or the physical restraint of another person

(kidnapping). The second element, circumstances surrounding the conduct, refers to a situation

which relates to the actor’s culpability, e.g., lack of victim’s consent or stolen status of property. The

result of the defendant’s conduct constitutes the final element; in other words, the accused’s conduct

must at least be a physical cause of the harmful result, e.g., causing the death of another. State v.

Jennie Bain Ducker, No. 01C01-9704-CC-00143 (Tenn. Crim. App. at Nashville, Mar. 25, 1999),

aff’d on other grounds, 27 S.W.3d 889 (Tenn. 2000). Generally, an offense may be classified as a

result-of-conduct offense when the result of the conduct is the only element contained in the offense.

Ducker, 27 S.W.3d at 896. An example of a result-of-conduct offense is second degree murder,

which is defined as a “knowing killing of another.” Id. The “nature of the conduct” that causes
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death or the manner in which one is killed is inconsequential under the second degree murder statute.

Id. 

As previously noted the trial judge instructed the jury that to find the defendant guilty of

aggravated rape, they were required to find in relevant part “(1) that the defendant had unlawful

sexual penetration of [the victim] . . .” and “(3) that the defendant acted either intentionally,

knowingly, or recklessly.”

The Appellant argues that this instruction was error because aggravated rape is a nature of

conduct crime, and the charge as given would permit conviction upon a finding of reckless

penetration. The crime of aggravated rape requires by definition sexual penetration of the victim.

Thus, it is the nature of the proscribed conduct, i.e. sexual penetration, which constitutes the crime.

Accordingly, we conclude that aggravated rape as charged is a nature of conduct crime. See State

v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD (Tenn. Crim. App. at Nashville, July 20,

2004) (holding that unlawful sexual penetration of the victim is both nature of conduct and result

of conduct); State v. Jeffrey L. Marcus, No. W2000-02698-CCA-R3-CD (Tenn. Crim. App. at

Jackson, Jan. 23, 2002), rev’d on other grounds, 109 S.W.3d 300 (Tenn. 2003) (holding the offenses

of aggravated sexual battery and rape of a child are nature-of-conduct offenses, in that the offenses

seek principally to proscribe the nature of the defendant’s conduct); Ducker, 01C01-9704-CC-00143

(noting that nature of the conduct involves the physical act and that result of the conduct is the

harmful result).

Based upon the statutory definitions of the following mental states, it is apparent that

“intentional” refers to the nature of the conduct or to a result of the conduct, “knowing” refers to the

nature of the conduct, circumstances surrounding the conduct, and the result of the conduct, and

“reckless” refers to the result of the conduct or to the circumstances surrounding the conduct. Tenn.

Code Ann. § 39-11-302(a),(b) and (c). Accordingly, in this case, which involves a nature of conduct

crime, it was error to charge the mental state definition of “reckless” with respect to the element of

sexual penetration. Generally, only the culpable mental states of “intentional” and “knowing” are

applicable to nature of conduct crimes. State v. Deji A. Ogundiya, No. M2002-03099-CCA-R3-CD

(Tenn. Crim. App. at Nashville, Feb. 19, 2004). 

In instructing the jury, the trial judge must limit its charge of the applicable mental state to

the element or elements of the offense charged. As demonstrated in this case, the submission of all

three mental states to each of the elements of the crime altered the State’s burden of proof, thus

permitting a conviction based upon reckless sexual penetration.

The defendant has a constitutional right to a correct and complete charge of the law. A

charge should be considered prejudicially erroneous if it fails to fairly submit the legal issues or if

it misleads the jury as to the applicable law. State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)

(citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995)). An erroneous jury

instruction, which misstates the applicable conduct element of an offense and lessens the State’s

burden of proof, is subject to constitutional harmless error analysis. State v. Page, 81 S.W.3d 781,
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789 (Tenn. Crim. App. 2002). As in Page, the mens rea of the Appellant was, in large part, a central

issue at trial. Id. at 789. The Appellant does not deny that he touched the victim’s genital area,

rather he denies that the touching was for any sexual purpose. In view of this fact and the erroneous

admission of the Appellant’s involuntary statements, we are unable to conclude that the jury

instruction error was harmless beyond a reasonable doubt. Tenn. R. Crim. P. 52(a). Accordingly,

we reverse and remand for a new trial.

IV. Prosecutorial Misconduct

Last, the Appellant asserts that the State committed reversible error in their closing

arguments. Specifically, he asserts that the State “lauded the victim’s courage in coming forward

with the charges, thus bolstering her integrity and credibility, and the State said the jury had to show

the same courage as the victim by convicting Appellant,” resulting in violations of his rights to due

process and a fair trial. See State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (setting forth

categories of improper argument). 

The State correctly argues that the Appellant has waived this issue by his failure to lodge a

contemporaneous objection at trial or to raise the issue in his motion for new trial. Typically these

omissions result in a waiver on appeal of any complaint concerning the prosecutor’s comments.

Tenn. R. Crim. P. 37(e) and 36(a); State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App. 1999);

State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Little, 854 S.W.2d 643, 651

(Tenn. Crim. App. 1992). Thus, if this court is to review the Appellant’s claim of prosecutorial

misconduct, we must do so utilizing plain error review pursuant to Tenn. R. Crim. P. 52(b) which

provides: “An error which has affected the substantial rights of an accused may be noticed at any

time, even though not raised in the motion for new trial or assigned as error on appeal, in the

discretion of the appellate court where necessary to do substantial justice.” 

This court has, in its discretion, from time to time reviewed allegations of prosecutorial

misconduct as “plain error” even in the absence of a contemporaneous objection. See State v.

Marshall, 870 S.W.2d 532 (Tenn. Crim. App. 1993); State v. Butler, 795 S.W.2d 680 (Tenn. Crim.

App. 1990); Anglin v. State, 553 S.W.2d 616 (Tenn. Crim. App. 1977). In this case, however, we

do not elect to exercise our discretion to review under plain error as it is not necessary to do

substantial justice as the case is being reversed on other grounds. 
Because no issue was raised with regard to the Appellant’s two misdemeanor convictions in the motion for

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a new trial nor specifically addressed in his brief, we conclude that the misdemeanor convictions are not encompassed

within the Appellant’s challenges on appeal. Moreover, we conclude that the trial errors were either harmless or did not

implicate these convictions.

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CONCLUSION

Based upon the foregoing, the case is remanded to the Knox County Criminal Court for a

new trial with respect to the Appellant’s conviction for aggravated rape consistent with this

opinion. 

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___________________________________ 

DAVID G. HAYES, JUDGE