IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 6, 2008

STATE OF TENNESSEE v. LARRY DARNNELL PINEX

 Appeal from the Criminal Court for Davidson County

No. 2005-C-2514 Mark J. Fishburn, Judge

No. M2007-01211-CCA-R3-CD - Filed November 6, 2008

DAVID G. HAYES, SR.J., dissenting. 

I respectfully dissent from the majority’s holding that the Defendant’s dual convictions of

attempted aggravated rape and attempted aggravated sexual battery implicate principles of double

jeopardy protections. My reasons are two-fold.

First, the majority’s holding is in conflict with the case law decisions of State v. Elder, 982

S.W.2d 871, 875 n.2 (Tenn. Crim. App. 1998) and Parris v. State, 236 S.W.3d 173, 182 n.5 (Tenn.

Crim. App. 2007), and other unpublished decisions of this court which recognize three distinct

statutory means by which a criminal attempt may be committed, each dependent upon the factual

circumstances presented in the particular case. See, e.g., State v. Hezekiah Cooper, No. W2005-

02481-CCA-R3-CD (Tenn. Crim. App. at Jackson, Dec. 20, 2007); State v. Victor Eugene Tyson,

No. M2006-01652-CCA-R3-CD (Tenn. Crim. App. at Nashville, July 10, 2007). The majority

concludes in both its analysis of the sufficiency of the evidence and within its analysis of double

jeopardy protections that, “the State must only prove that the Defendant took a substantial step

toward those completed crimes [of attempted aggravated rape and attempted aggravated sexual

battery]” citing Tennessee Code Annotated subsection 39-12-101(a)(3) as the relevant definition of

criminal attempt. The decisions of Elder and Parris compel the holding that based upon the

evidence presented in this case, the applicable criminal attempt provision is subsection (a)(2), not

(a)(3). As observed in Elder, 982 S.W.2d at 875 n.2, when a defendant “[a]cts with the intent to

cause a result that is an element of the offense,” i.e., sexual penetration, and “believes the conduct

will cause the result without further conduct,” the attempted crime is chargeable only under

subsection (a)(2) when, as in this case, the defendant’s conduct is thwarted by the physical resistance

of the victim. Subsection (a)(2) involves those attempts where the accused has done everything that

he intended to do but the crime was not completed, i.e., in a homicide prosecution, the bullet missed

the intended victim or, as in this case, the forceful acts of the accused are resisted by the victim.

Subsection (a)(3) is applicable only to attempts where the accused has not yet done all that he intends

to do in the commission of the crime; however, the conduct of the accused “constitutes a substantial

step toward the commission of the offense.” T.C.A. §§ 39-12-101 (a)(3),(b). Although I find the
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trial court’s jury instruction with regard to criminal attempt to be incorrect, I find the error harmless

within the sufficiency of evidence context. Nonetheless, I am unable to agree with the majority’s

utilization of subsection (a)(3) within the double jeopardy analysis as discussed infra.

Second, the majority concludes under the Denton test “that the same evidence was required

to prove both the attempted aggravated rape and the attempted aggravated sexual battery.”

Furthermore, the majority concludes that “it requires speculation to conclude that the Defendant

attempted two discrete acts which could reasonably be viewed as constituting different offenses.”

As observed by the majority, our supreme court in State v. Phillips, 924 S.W.2d 662, 665 (Tenn.

1996), urged consideration of (1) the nature of the act, (2) the area of the victim’s body invaded by

the sexually assaultive behavior, (3) the elapsed time between the discrete conduct, (4) the accused’s

intent, and (5) the cumulative punishment, in determining whether convictions are multiplicitous.

In the light most favorable to the State, the proof established separate acts of conduct supporting the

Defendant’s dual convictions. The Defendant’s act of grabbing the victim’s throat and demanding

that she “bow down” in addition to his attempt to forcibly remove her underwear supports the

conviction for attempted aggravated rape while the Defendant’s action of biting the victim’s breast

supports the conviction for attempted aggravated sexual battery. Thus, the nature of the two acts are

distinguished, the acts occurred at separate times, and involved two separate areas of the victim’s

body. Moreover, the issue of intent is a jury question and the jury could reasonably have inferred

from the proof that the Defendant abandoned his initial intent to rape after being informed by the

victim that he would first “have to kill [her]” and that his biting of the victim’s breast could

“rationally [be] construed as being for the purpose of sexual . . . gratification.” Tenn. Code Ann. 39-

13-501(6). For these reasons, I would affirm the Defendant’s convictions for both attempted

aggravated rape and attempted aggravated sexual battery. In all other respects, I join with the

majority.

___________________________________ 

DAVID G. HAYES, Senior Judge