                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                    January 7, 2003 Session

                STATE OF TENNESSEE v. DARRYL LEE ELKINS

                  Appeal by permission from the Court of Criminal Appeals
                            Criminal Court for Sullivan County
                            No. S41,530    R. Jerry Beck, Judge



                      No. E2001-01245-SC-R11-CD - Filed April 29, 2003



ADOLPHO A. BIRCH, JR., J., concurring and dissenting.


        I join the majority in affirming the defendant’s conviction for rape of a child. As to the
conviction for attempted rape of a child, however, I view the evidence as insufficient to establish two
essential elements of that offense: that the defendant took a “substantial step” toward the
commission of this offense; and that he had the requisite “intent to sexually penetrate” the victim.
Therefore, I must respectfully dissent.

        Under the criminal attempt statute, it is an essential element that the defendant’s conduct
“constitute a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12-
101(a)(3) (1997). The majority agrees that the term “substantial step” connotes a step beyond that
of the intent to commit a crime, but with each opinion interpreting “substantial step,” the majority
has attenuated (if not eliminated) the interpretation of the term so as to make any act a “substantial
step” toward the commission of the offense.

         In State v. Reeves, the general purpose of the attempt statute (to prevent the consummation
of inchoate crimes), led this Court to impose criminal responsibility upon a defendant where there
was evidence of an expressed intent to commit a crime along with evidence of preparation. State
v. Reeves, 916 S.W.2d 909, 913-14 (Tenn. 1996). In Reeves, a twelve year old girl was convicted
of attempted second degree murder because she agreed to put rat poison in her teacher’s drink and
brought rat poison to school the following day. In rejecting an “overt act” requirement to establish
a “substantial step” toward the commission of the crime, the Court specifically noted that under such
a rigid requirement, “no criminal responsibility would have attached unless the poison had actually
been placed in the teacher’s cup.” Id. at 914. Thus, it reasoned, the preventative goal of the law of
attempt would be thwarted were an “overt act” required in that case. As a result, the Court
effectively extended criminal attempt to include the possession of materials with which a defendant
could commit the intended crime.
        In State v. Fowler, a majority of the Court again extended the reach of the criminal attempt
statute. In Fowler, the defendant expressed an intent to procure a young boy to live with him and
perform sexual acts. An hour later, he paid $200 for what he thought was a fourteen-year-old boy.
This Court found that requiring additional conduct to establish a “substantial step” toward the
commission of the offense would be inconsistent with the “general goal of crime prevention.” State
v. Fowler, 3 S.W.3d 916, 922 (Tenn. 1999). Thereby, the Court once again extended criminal
attempt to encompass indirect criminal solicitations.

        I believe that a more workable definition of “substantial step” would include proof of the
defendant’s intent, under the circumstances as he believed them, to engage in a course of conduct
planned to culminate in the commission of a crime. Thus, in the case under submission, the evidence
that the defendant “bounced” on the victim fully clothed is not evidence indicative of a “substantial
step” toward the commission of rape of a child. The defendant never removed the victim’s clothing
or his own, or did he attempt penetration. In my view, this evidence falls far short of demonstrating
a “substantial step” toward the commission of rape of a child. Clearly, an assault such as we have
here, even if sexual in nature, should not constitute a “substantial step” toward rape. This is
especially true since assault is itself a crime.

        Accordingly, because of my view that the majority has attenuated the evidence necessary to
prove a “substantial step” to the degree that almost any behavior now may qualify as a “substantial
step,” I would reverse the conviction for attempted rape of a child.

        Additionally, I agree with Justice Holder in her unwillingness to join the majority’s statement
that Rule 404(b) permits the introduction of “evidence of subsequent acts to establish one’s intent
during a prior act in appropriate cases.” I, however, would have gone even farther to say that Rule
404(b) does not permit the introduction of such evidence. Therefore, excluding this evidence of
intent, there was no proof that the defendant intended to sexually penetrate the victim when he
“bounced” on him.

       For the foregoing reasons, I respectfully dissent from the majority’s opinion as it addresses
the conviction for attempted rape of a child. I concur in the defendant’s conviction for rape.



                                                       _______________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE




                                                 -2-
