         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 20, 2008 Session

              STATE OF TENNESSEE v. CHAD LEWIS MONETTE

                  Direct Appeal from the Circuit Court for Houston County
                            No. 4678    Robert E. Burch, Judge



                   No. M2006-02462-CCA-R3-CD - Filed September 4, 2008


Following a bench trial in the Houston County Circuit Court, the defendant, Chad Lewis Monette,
was convicted of one count of aggravated sexual battery, a Class B felony, as a lesser-included
offense of rape of a child. He was subsequently sentenced to eight years in the Department of
Correction. On appeal, the defendant contends that his conviction should be reversed because
aggravated sexual battery is not a lesser-included offense of rape of a child. He further challenges
the admission and consideration of certain testimony and exhibits introduced as evidence at trial.
Following review of the record, we conclude that aggravated sexual battery is a lesser-included
offense of rape of a child; thus, no error occurred in the conviction. With regard to the evidentiary
issues, we conclude that the defendant has waived consideration of the issues by his failure to
contemporaneously object at trial, his failure to raise the issues in his motion for new trial, or his
failure to cite to legal authority on appeal. Because the alleged evidentiary issues do not rise to the
level of plain error, we decline review. Accordingly, the judgment of conviction is affirmed

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J.,
and DAVID G. HAYES, SR. J., joined.

Jim Sowell, Dickson, Tennessee, for the appellant, Chad Lewis Monette.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Dan Mitchum Alsobrooks, District Attorney General; and Carey J. Thompson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       In 1994, the defendant and his wife, who were homeless, began living with the victim’s
family and continued to do so “off and on” for several years. Living in the home at the time were
the victim, her parents, and her two sisters. The victim’s mother hired the defendant’s wife to work
as a housekeeper, and, according to the victim, the defendant often babysat the three children.
During their stay, the defendant’s wife began having an affair with the victim’s father, and the
victim’s mother left the home in 1998. The victim and her two sisters went back and forth between
their parents’ two households. During this period, the three referred to the defendant’s wife as
“daddy’s girlfriend.” Testimony established that the defendant’s wife and the victim’s father slept
in the bedroom, and the defendant, who continued living with them, slept on the couch in the living
room.

        According to the victim, the inappropriate conduct by the defendant started when she was
seven or eight years old. She stated that he would touch her “bottom” and that he tried
unsuccessfully to put his “private part” inside her. She testified regarding a specific incident, which
occurred in August of 2003, during which she was in the living room playing video games and the
defendant asked her to lie beside him on the couch. According to the victim, the defendant touched
her vagina and tried unsuccessfully to put his “private part” in her vagina. She informed the
defendant’s wife what had occurred because she “couldn’t take it anymore,” but nothing was done
about the defendant’s conduct.

        Approximately one month later, the victim visited her mother for the weekend and was acting
“withdrawn.” Her mother became concerned and began questioning her, and the victim “opened up”
to her mother about the defendant’s acts. Her mother contacted the authorities, and the victim, along
with her two sisters, was interviewed. The victim, age twelve at the time, was interviewed by David
Hicks and Bonnie Biggs, and she informed them what the defendant had done.

        A Houston Country grand jury subsequently indicted the defendant for four counts of rape
of a child, and a bench trial was held. Because of conflicts in the proof presented, the State elected
to proceed on only one count of aggravated sexual battery. Because jeopardy had attached, the trial
court found the defendant not guilty of three counts of rape of a child but guilty of aggravated sexual
battery, as a lesser-included offense of rape of a child, in Count 4. The court then sentenced the
defendant to a term of eight years, to be served at one hundred percent, in the Department of
Correction. Following the denial of his motion for new trial, the defendant filed a timely notice of
appeal.

                                              Analysis

        On appeal, the defendant raises multiple issues for our review. First, he contends that his
conviction should be reversed because aggravated sexual battery is not a lesser-included offense of
rape of a child. He also raises five evidentiary issues for review.

I. Lesser-included Offense

       First, the defendant contends that his conviction for aggravated sexual battery should be
reversed because it is not a lesser-included offense of the indicted offense of rape of a child.


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Specifically, he contends that the elements of aggravated sexual battery are not included in the
elements of rape of a child and that the mental state of a defendant who commits aggravated sexual
battery is not less culpable than one who commits rape of a child.

         In State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999), our supreme court set forth the current
test for determining if an offense is a lesser-included. Pursuant to Burns, an offense is a lesser-
included offense if:
    (a) all of its statutory elements are included within the statutory elements of the offense
         charged; or
    (b) it fails to meet the definition in part (a) only in the respect that it contains a statutory
         element or elements establishing
         (1) a different mental state indicating a lesser kind of culpability; and/or
         (2) a less serious harm or risk of harm to the same person, property or public interest; or
    (c) it consists of
         (1) facilitation of the offense charged or of an offense that otherwise meets the definition
             of lesser-included in part (a) or (b); or
         (2) an attempt to commit the offense charged or an offense that otherwise meets the
             definition of lesser-included offense in part (a) or (b); or
         (3) solicitation to commit the offense charged or an offense that otherwise meets the
             definition of lesser-included offense in part (a) or (b).
Burns, 6 S.W.3d at 466-67.

        Rape of a child is defined as “the unlawful sexual penetration of a victim” under thirteen
years of age. T.C.A. § 39-13-522(a) (2006). By contrast, aggravated sexual battery requires
unlawful sexual contact with a victim less than thirteen years of age. T.C.A. § 39-13-504(a)(4)
(2006). Unlawful sexual contact includes “the intentional touching of the victim’s, the defendant’s,
or any other person’s intimate parts, or the intentional touching of the clothing covering the
immediate area of the victim’s, the defendant’s, or any other person’s intimate parts, if that
intentional touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” T.C.A. § 39-13-501(6) (2006).

        The defendant’s argument in this case ignores established precedent which has repeatedly
held that, when the victim is less than thirteen years of age, aggravated sexual battery is a lesser-
included offense of rape of a child. In State v. Elkins, our supreme court specifically recognized that
aggravated sexual battery was a lesser-included offense of rape of a child. 83 S.W.3d 706, 713
(Tenn. 2002); see also State v. Evans, 108 S.W.2d 231, 237 (Tenn. 2003); State v. Biggs, 218
S.W.3d 643, 657 (Tenn. Crim. App. 2006). In direct contravention of the defendant’s argument, this
court has held that aggravated sexual battery is a lesser-included offense under part (b)(1) of the
Burns test because a defendant’s “intent to touch a victim’s intimate parts for the purpose of sexual
arousal constitutes a mental state reflecting a lesser degree of culpability than the reckless, knowing,
or intentional commission of sexual penetration for any reason.” State v. Chester Wayne Walters,
No. M2003-03019-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1052 (Tenn. Crim. App. at
Nashville, Nov. 30, 2004). In this case, the victim was under thirteen years of age when the crime


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occurred. Thus, the defendant’s argument is without merit, and his conviction for aggravated sexual
battery, as a lesser-included offense, was proper.

II. Evidentiary Issues

         Next, the defendant raises a myriad of evidentiary issues. First, he alleges that the testimony
of David Hicks, the investigator who interviewed the victim, as well as the memorandum report
prepared of the interview, should have been excluded as hearsay because Hicks had no personal
knowledge of the facts contained in the memorandum. Second, he contends that the court erred in
failing to voir dire the twelve-year-old victim and her nine-year-old sister prior to their testimony at
trial to ensure their understanding of the oath. Third, the defendant alleges that the court erred in
giving consideration to the testimony of the victim’s sister because she was not a credible witness
based upon her failure to accurately recall events. The defendant also challenges the admission of
the tape of the interview with the victim, asserting it was introduced without foundation or
authentication in violation of Tennessee Rule of Evidence 901. Finally, he contends that the court
erred in allowing portions of the cross-examination of the defendant’s wife because it was hearsay.

         On appeal, the State argues that the defendant has waived review of these issues by both his
failure to contemporaneously object at trial and his failure to include the issues in his motion for new
trial. The State further contends that the issues are not proper for plain error review. We agree.

        Review of the record before us indicates that the defendant did not contemporaneously object
to the admission of the challenged testimony or exhibits during trial. In fact, with regard to
memorandum report prepared by Hicks, it was the defendant’s own trial counsel who moved for
admission. Pursuant to the rules of our court, the failure to object contemporaneously to the
admission of evidence constitutes waiver. Tenn. R. App. P. 36(a) (nothing in the rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an error); see
also State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000) (“This court is extremely
hesitant to put a trial court in error where its alleged shortcoming has not been the subject of a
contemporaneous objection”).

        Likewise, the defendant also failed to include any of the challenged issues in his motion for
new trial, in which he challenged only the sufficiency of the convicting evidence. As such, the issues
have not been preserved for appellate review. See Tenn. R. App. P. 3(e) (stating that “in all cases
tried by a jury, no issue presented for review shall be predicated upon error in the admission or
exclusion of evidence, . . . unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived”); see also State v. Martin, 940 S.W.2d 567, 569
(Tenn. 1997) (holding that a defendant relinquishes the right to argue on appeal any issues which
should have been presented in a motion for new trial); State v. Dodson, 780 S.W.2d 778, 780 (Tenn.
Crim. App. 1989).




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        Finally, with regard to the issues regarding the testimony of David Hicks, the testimony of
the victim’s sister, and the cross-examination of the defendant’s wife, the defendant has failed to cite
to any legal authority in support of his contentions. Thus, those issues are waived upon that ground
as well. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).

         Despite waiver by the defendant, we note that “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,” if the appellate court considers such notice “necessary to do
substantial justice.” Tenn. R. Crim. P. 52(b). In conducting a plain error review, a court will reverse
for plain error only if:
         (a) The record . . . clearly establish[es] what occurred in the trial court;
         (b) a clear and unequivocal rule of law [has] been breached;
         (c) a substantial right of the accused [has] been adversely affected;
         (d) the accused did not waive the issue for tactical reasons; and
         (e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994)). The appellate court need not consider all five factors if it determines that
any single factor indicates that relief is not warranted. Id. at 283. Furthermore, for this court to
reverse the judgment of the trial court, the “‘plain error’ must [have been] of such a great magnitude
that it probably changed the outcome of the trial,” and “recognition should be limited to errors that
had an unfair prejudicial impact which undermined the fundamental fairness of the trial court.”
Adkisson, 899 S.W.2d at 642. Moreover, it is the defendant, not the State, who bears the burden of
demonstrating plain error. State v. Gomez, 239 S.W.3d 722, 727 (Tenn. 2007) (Gomez II).

        After review, we cannot conclude that the alleged evidentiary errors complained of by the
defendant rise to the level of plain error. This court has held that “rarely will plain error review
extend to an evidentiary issue.” State v. Ricky E. Scoville, No. M2006-01684-CCA-R3-CD, 2007
Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. at Nashville, Sept. 11, 2007). The defendant has
failed to carry his burden of showing that consideration of the alleged errors are “necessary to do
substantial justice” in this case. Accordingly, we do not extend review.

                                          CONCLUSION

       Based upon the foregoing, the conviction for aggravated sexual battery is affirmed.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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