            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE             FILED
                               DECEMBER 1998 SESSION
                                                               April 20, 1999

                                                           Cecil W. Crowson
TIMOTHY R. BOWLES,                      *     C.C.A. NO. 01C01-9711-CR-00547
                                                         Appellate Court Clerk
       APPELLANT,                       *     DAVIDSON COUNTY

VS.                                     *     Hon. Seth Norman, Judge

STATE OF TENNESSEE,                     *     (Aggravated Rape, Attempted Rape,
                                              Aggravated Burglary (Two Counts),
       APPELLEE.                        *     Robbery)



For Appellant:                          For Appellee:

Terry J. Canady                         John Knox Walkup
211 Printer’s Alley Building                   Attorney General and Reporter
Suite 400                               425 Fifth Avenue North
Nashville, TN 37201                     Nashville, TN 37243-0493

Bill Lane                               Timothy Behan
3200 West End Avenue                    Assistant Attorney General
Nashville, TN 37203                     Criminal Justice Division
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        Mary Hausman
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 2nd Avenue North
                                        Nashville, TN 37201-1407


OPINION FILED: ____________________


AFFIRMED IN PART; REVERSED IN PART


NORMA MCGEE OGLE, JUDGE
                                       OPINION



               On June 18, 1997, the appellant, Timothy R. Bowles, was convicted by

a jury in the Criminal Court for Davidson County of aggravated rape, attempted

rape, two counts of aggravated burglary, and robbery. The trial court imposed an

effective sentence of forty-five years in the Tennessee Department of Correction. In

this appeal as of right, the appellant raises the following issues for our

consideration:

               1.    Whether the evidence adduced at trial is sufficient
                     to support the appellant’s conviction of aggravated
                     rape;
               2.    With respect to the aggravated rape conviction,
                     whether the trial court erroneously denied the
                     appellant’s request for a jury instruction on the
                     lesser grade offense of sexual battery;
               3.    With respect to the attempted rape conviction,
                     whether the trial court erroneously declined to
                     instruct the jury on the lesser grade offense of
                     sexual battery; and
               4.    With respect to the robbery conviction, whether the
                     trial court erroneously denied the appellant’s
                     request for a jury instruction on the lesser included
                     offense of theft.


               After thoroughly reviewing the record and the parties’ briefs, we

reverse the appellant’s robbery conviction and otherwise affirm the judgment of the

trial court.



                                I. Factual Background

               The proof at the appellant’s trial established that, on March 23, 1996,

the appellant was drinking alcohol and abusing cocaine throughout the day. That

evening, between 11:30 p.m. and midnight, the appellant broke through the front

door of Leland Cutlip’s home at 4107 Hermitage Street in Davidson County. Mr.

Cutlip was in bed when the appellant entered his bedroom. Mr. Cutlip testified at

trial:

               [The appellant] yanks the covers, just pulls them straight
               back, and gets in my face, and looks at me and says, oh,

                                               2
                   you’re a man, huh.

Mr. Cutlip further testified that, following this exchange, the appellant “rolled his eyes

up toward the ceiling” and departed.1



                   On the same night, the appellant proceeded to his aunt’s home, which

was located in the same neighborhood, at 333 Hadley Bend Boulevard. At trial, Ms.

Hampton testified that she was awakened shortly before midnight when her nephew

broke through her front door. She walked to the living room to investigate and

observed her nephew standing in the front door. She asked him why he was in her

home, and the appellant replied, “Come on, Edna, come on.” He then pushed Ms.

Hampton down the hallway toward her bedroom. He pushed her onto the bed and

attempted unsuccessfully to remove Ms. Hampton’s nightshirt and separate her

legs. The appellant unfastened his pants, exposing his genitalia. Ms. Hampton was

“pushing and kicking and screaming, trying to keep him off me … .” The struggle

continued for approximately five or ten minutes.



                   At some point, however, the appellant abandoned his assault and

stated, “Edna, I’ve gone crazy … I’ve lost my mind.” The appellant then dialed 911

and gave the telephone to Ms. Hampton. Ms. Hampton spoke to the 911 operator,

although she was breathless and had difficulty speaking. While Ms. Hampton was

on the telephone, the appellant left her home.



                   Ms. Hampton stated at trial that she did not smell alcohol on the

appellant, but that he was acting unusually. She testified that, generally, the

appellant was a nice person, and that she had loved him as if he were her son. She

confirmed on cross-examination that the appellant did not touch her genital area or



1
 At the conc lusion of the State ’s pro of, the trial co urt dis mis sed the c harg e of b urgla ry of M r. Cu tlip’s
home. However, the court permitted the State to argue in closing that Mr. Cutlip’s testimony
con tradic ted th e app ellant ’s claim that h e wa s bre akin g into hom es s olely in s earc h of m one y.

                                                               3
penetrate her in any way, but stated that she knew he was attempting to rape her.

Specifically, she denied that he was just “scuffling” with her, explaining that “he kept

trying to get my legs apart and trying to put his body on mine.”



              Following the appellant’s assault, Ms. Hampton’s voice “would go and

come” for months thereafter. She additionally suffered bruises on both arms and on

her shoulder; her right leg was cut; and her right toe was “mashed and bruised.”

She had difficulty walking for months after the incident.



              On March 23, 1996, the appellant also broke into the home belonging

to Mrs. Kathleen Dobbs and her husband. On that date, Mrs. Dobbs and her

husband were living at 118 Center Street, in the same neighborhood with Mr. Cutlip

and Ms. Hampton. Mrs. Dobbs testified that she was eighty-two years old at the

time of the appellant’s trial. At the time of these offenses, her husband was eighty-

five years old and bedridden with emphysema and diabetes. By the time of the

appellant’s trial, Mr. Dobbs was deceased.



              On March 23, 1996, both Mrs. Dobbs and her husband were at home.

Mrs. Dobbs testified that she had arisen from her bed shortly before midnight in

order to give her husband “breathing treatments.” Her husband slept in an adjoining

bedroom. Mrs. Dobbs was dressed in a blouse and slacks, because she knew she

would be caring for her husband that night.



              Mrs. Dobbs was sitting by the stove in the kitchen when she heard a

sound on the porch. She then heard someone kicking the front door. She told her

husband that someone was attempting to break into the house. The intruder could

not force the front door open and, accordingly, went to a door located on the side of

the porch. At this point, Mrs. Dobbs called 911. She told the operator that someone

was breaking into her home and asked that the police “please hurry, please hurry.”

                                               4
She then heard her husband calling and placed the telephone receiver on a table

while she went to her husband.2 She then heard glass breaking at the back door.



                  The appellant came through the back door, through the dining room,

into Mr. Dobbs’ bedroom. Mrs. Dobbs was standing in her husband’s bedroom, next

to her husband. The appellant pushed Mrs. Dobbs into her bedroom and onto the

floor. The appellant pulled her slacks and underwear off, and then unfastened his

own pants. The appellant exposed his genitalia and attempted to penetrate Mrs.

Dobbs. Mrs. Dobbs testified that the appellant touched her in the genital area with

one hand while holding his penis in his other hand. She further stated that the

appellant was unsuccessful in achieving penetration, “[b]ecause it was just flat, I

reckon, he just couldn’t do it.”



                  The appellant ceased his assault upon Mrs. Dobbs and ran into her

husband’s bedroom, where Mr. Dobbs was lying in his bed. Mrs. Dobbs followed

the appellant and observed him violently push several items, including Mr. Dobbs’

respirator, off of a dresser onto the floor. He then picked up Mr. Dobbs’ pants from

the foot of the bed and removed Mr. Dobbs’ billfold, which contained approximately

$200.00. Mrs. Dobbs testified that her husband exclaimed, “Kathleen, he’s got my

billfold.” The appellant immediately left the house. Mrs. Dobbs testified that both

she and her husband were “scared to death.”



                   Mrs. Dobbs stated that the back of her head struck the floor when the

appellant pushed her onto the floor of her bedroom. Following the assault, she was

bleeding profusely from her head, her arm, and her finger. Additionally, she

suffered bruises on her hip. Upon the arrival of the police and the ambulance, Mrs.

Dobbs was taken to Tennessee Christian Medical Center. She testified that she



2
    The State introduced at trial the recordings of both Mrs. Dobbs’ and Ms. Hampton’s 911 calls.

                                                        5
spoke with a nurse at the hospital, but could not remember what she told the nurse.

She stated that she was “tore up so bad I don’t remember exactly what I told her.”

She conceded that she probably told the nurse that she did not think the appellant

had penetrated her. She explained, “[T]he term of rape to me, I thought that you

had to really insert it up, you know, in you.” She then stated that the appellant’s

penis did not penetrate her genital area. When asked if she thought the appellant’s

fingers penetrated her genital area, she responded, “Yes, I know they was down

there … .”



              On cross-examination, Mrs. Dobbs testified again that the appellant

did not “penetrate” her, if penetration “means to go all the way up in you.” However,

she stated that the appellant inserted the end of his penis into her genital area. She

testified that “it was up against my vagina. He could not do anything.” Moreover,

she testified that his fingers “was some inside. Not all the way up in me but on the

side.” Mrs. Dobbs reiterated that she had previously denied penetration or being

raped, both to the medical personnel at the hospital and during a preliminary

hearing, because she “thought that whenever you was raped or anything that it’d

have to go all the way. He’d have to put it … plum all the way up in you.” In

conclusion, she testified:

              If you’re talking about all the way up in me, no, he didn’t
              get all the way up in me. He tried to and he got it in and
              then he had his fingers on there and he tried to put it up
              in there and he could not. But he didn’t get it all the way
              up.



              Mrs. Dobbs testified that, following this incident, she moved from her

home, “because I just couldn’t stand to live there. I was just scared so bad.”

Dorothy Lannom, Mrs. Dobbs’ daughter-in-law, testified that, after the assault, Mr.

and Mrs. Dobbs lived in her home. Mrs. Dobbs would not leave her bedroom nor

would she speak with her husband for three weeks after the assault. Mr. Dobbs

died approximately three months thereafter.

                                               6
                 Dorothy Lannom additionally testified at trial that she received a call

from her mother-in-law just after midnight on March 24, 1996. Mrs. Dobbs was

screaming and crying. She told Mrs. Lannom that a man had broken into her home

and was attempting to kill her. Mrs. Lannom and her husband immediately drove to

Mrs. Dobbs’ home. Mrs. Dobbs was “so bloody. She was sitting in there at her

dining room table and blood was just all over her head and her arms and her clothes

and all.” Mrs. Lannom later observed bruises on Mrs. Dobbs’ legs and on her right

rib cage. She further testified that the wound to Mrs. Dobbs’ head did not fully heal

for a long time. Mr. Dobbs was also very frightened on the night of the offenses.

Mrs. Lannom explained that she could tell “[b]y the expression on his face, his eyes,

and his mind. It just done something to his mind.”



                 Danny Duncan, a police officer with the Metropolitan Nashville Police

Department, was dispatched to the Dobbs’ home in the early morning hours of

March 24, 1996. Officer Duncan testified at trial that, when he arrived at the Dobbs’

residence, Mrs. Dobbs was bleeding profusely and appeared to be very upset and

afraid. Her husband was lying on his bed attached to a respirator. He also

appeared very upset and afraid.3 Officer Duncan further testified that Mrs. Dobbs

did not tell him that she had been sexually assaulted, only that “she was hurt real

bad.” He stated that elderly victims are generally more reluctant to talk about sexual

matters, and “her husband was there and he was so upset I think she was trying to

help protect him, so she didn’t want to go into a lot of details with me.”



                 Susan Stephens, a detective with the Sexual Abuse Unit of the

Metropolitan Nashville Police Department, testified that she was assigned to

investigate the cases of Edna Hampton and Kathleen Dobbs on March 24, 1996.


3
 Officer C ole W oma ck testified that Mr. D obbs a ppeare d to be dis traught a nd was having diffic ulty
breathing.

                                                          7
She visited the Dobbs’ residence in the aftermath of the appellant’s offenses.

Detective Stephens testified that Mr. Dobbs was “extremely upset and very

emotional.” Detective Stephens proceeded to Tennessee Christian Medical Center,

where she spoke with Mrs. Dobbs about the appellant’s assault. At that time, Mrs.

Dobbs told the detective that she did not think penetration had occurred. The

detective testified that she did not press Mrs. Dobbs for details of the assault due to

Mrs. Dobbs’ emotional condition. In fact, at the hospital and prior to the preliminary

hearing in this case, Detective Stephens did not have an opportunity to speak

extensively with Mrs. Dobbs about the assault. Subsequently, on July 24, 1996, she

was able to talk with Mrs. Dobbs in detail about the extent of penetration that had

occurred. On the basis of this later interview, Detective Stephens asked that the

grand jury indict the appellant for aggravated rape.



              Detective Stephens also testified that possible rape victims in

Davidson County are generally transported to Metropolitan Nashville General

Hospital, where forensic rape examinations are routinely performed. These

examinations are not regularly performed at other area medical facilities, including

Tennessee Christian Medical Center. Nevertheless, because her injuries appeared

to be serious, the ambulance transported Mrs. Dobbs to Tennessee Christian

Medical Center. The detective stated:

              There was a lot of blood. She had a large laceration in
              the back of her head that was still bleeding, as a matter
              of fact, even when I arrived at the hospital.

              She had damage to her arm, and bruising on her leg.
              And she had – one of her fingers was, was very bruised
              or bloody.


Detective Stephens testified that she spoke with medical personnel at the hospital

and understood, from her conversations with the doctors, that they had only

examined Mrs. Dobbs for evidence of vaginal penile penetration.



              Marilee Weingartner, a family nurse practitioner who performs forensic

                                              8
rape examinations at General Hospital, testified that in order to reach the vaginal

opening of a female, an object would need to pass through two separate folds of

skin. She observed that medical personnel commonly do not understand that

simply separating the folds of skin leading to the vagina can constitute penetration

under Tennessee law.



             Kathy Suttle, a registered nurse, testified that, she was employed at

Tennessee Christian Medical Center in March, 1996, and examined Mrs. Dobbs

following the appellant’s assault. Ms. Suttle testified that Mrs. Dobbs was

emotionally distressed and, other than a housecoat, was wearing no clothing below

the waist. Ms. Suttle recounted:

             She had a bandage on her head and a bandage on her
             left arm. Her hands had blood on them.… her legs had
             blood on them.

             She had blood, well, from her waist all around the front of
             her abdomen, all in her crotch area had blood on it, all
             the way to about her knees.….

Ms. Suttle confirmed that an examination of Mrs. Dobbs’ “crotch area” revealed no

cuts, abrasions, scratches, or other obvious sources of the blood covering that area.

Moreover, she testified that the pattern of the blood in Mrs. Dobbs’ “crotch area” was

not consistent with a theory that a cut on Mrs. Dobbs’ finger bled on her legs when

she was either removing or putting on clothing. Another nurse washed the blood

from Mrs. Dobbs before the police could photograph the blood or otherwise preserve

the evidence.



             Ms. Suttle stated that Mrs. Dobbs denied that penetration had

occurred during the assault. However, at the time of these events, Ms. Suttle

understood penetration to mean “penile penetration to [the victim’s] vagina.” Ms.

Suttle also read to the jury the notes recorded by the examining physician. The

doctor noted the possibility of rape and a conversation with Detective Stephens

concerning the possibility of “attempted rape.” The doctor recorded, “The man was



                                              9
bleeding from his hand, fondled her genital area, did not penetrate her.”



             With respect to Mrs. Dobbs’ physical injuries, Ms. Suttle referred to her

contemporaneously recorded notes. She testified:

             There were skin tears to [Mrs. Dobbs’] left arm, a
             laceration to her right fifth digit, a hematoma to her head
             which was oozing.… And she complained of pain to her
             left shoulder.

Regarding the wound on the back of Mrs. Dobbs’ head, Ms. Suttle stated that “the

skin was all abraded and worn and generally looked like raw hamburger.”



             Shelly Betts, a forensic scientist at the Tennessee Bureau of

Investigation Crime Laboratory and a specialist in Serology and DNA testing,

confirmed that blood found on Mrs. Dobbs’ underwear matched blood samples

obtained from the appellant. Additionally, blood retrieved from Ms. Hampton’s

nightgown matched the appellant’s blood samples.



             The appellant testified on his own behalf. He testified that, on March

23, 1996, he spent the day at a club with friends, drinking and “getting high.” He

was still high on cocaine when he ran out of money to purchase alcohol and cocaine

and decided to steal money in order to continue his carouse. The appellant

admitted that he broke into the homes of Mrs. Dobbs and Edna Hampton in order to

steal money. Moreover, he admitted that he cut himself and was bleeding when he

broke into the Dobbs’ home. However, he denied that he attempted to rape or

sexually assault either woman.



                                    II. Analysis

A. Sufficiency of the Evidence

             The appellant first challenges the sufficiency of the evidence to

support his conviction of the aggravated rape of Mrs. Kathleen Dobbs. In

Tennessee, appellate courts accord considerable weight to the verdict of a jury in a

                                              10
criminal trial. In essence, a jury conviction removes the presumption of the

defendant’s innocence and replaces it with one of guilt, so that the appellant carries

the burden of demonstrating to this court why the evidence will not support the jury’s

findings. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must

establish that no “reasonable trier of fact” could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).



             Accordingly, on appeal, the State is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn therefrom.

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions

concerning the credibility of witnesses and the weight and value to be given the

evidence, as well as all factual issues raised by the evidence, are resolved by the

trier of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990).



             The appellant’s argument rests solely upon his contention that the

State failed to prove sexual penetration of the victim beyond a reasonable doubt.

The appellant cites in support of his argument the inconsistent statements by Mrs.

Dobbs concerning whether or not penetration occurred.



             Aggravated rape is the “unlawful sexual penetration of a victim by the

defendant … accompanied by … bodily injury to the victim.” Tenn. Code Ann. § 39-

13-502(a)(2) (1997). The legislature has defined sexual penetration in the following

manner:

             “Sexual penetration” means sexual intercourse,
             cunnilingus, fellatio, anal intercourse, or any other
             intrusion, however slight, of any part of a person’s body
             … into the genital … openings of the victim’s … body, but
             emission of semen is not required … .

Tenn. Code Ann. § 39-13-501(7) (1997)(emphasis added).



                                              11
              We conclude that the record amply supports the jury’s finding of

sexual penetration. As noted earlier, Mrs. Dobbs testified at trial that both the

appellant’s penis and his fingers slightly penetrated her genital opening. Although

she conceded that she had previously denied that penetration had occurred, she

explained that she did not understand at that time the legal definition of penetration.

At the time of her prior inconsistent statements, she believed that penetration meant

full penile penetration of the vagina. See, e.g., State v. Beauregard, No. 02C01-

9712-CC-00457, 1998 WL 217901, at **2-3 (Tenn. Crim. App. at Jackson, May 5,

1998)(despite victim’s testimony that “it wouldn’t go in” and a lack of physical

trauma, the jury could have concluded that the victim’s references to the lack of

penetration concerned only a lack of vaginal penetration).



              This court has previously held that “[i]t is the rule of law in Tennessee

that contradictory statements by a witness in connection with the same fact cancel

each other.” State v. Matthews, 888 S.W.2d 446, 449-450 (Tenn. Crim. App. 1993).

However, we further noted that this rule of law is only applicable when the

inconsistency is unexplained or when neither version of the witness’ testimony is

corroborated by other evidence. Id. at 450. In this case, Mrs. Dobbs offered an

explanation for her prior inconsistency. The jury found the appellant guilty of

aggravated rape, accrediting her testimony and resolving the conflict in favor of the

State’s theory. Williams, 657 S.W.2d at 410. This argument is without merit.



B. Lesser Included and Lesser Grade Offenses

              The appellant also argues that the trial court committed error by failing

to instruct the jury on several lesser included and lesser grade offenses of the

charged offenses. The trial judge has a duty to charge the jury as to all the law of

each offense included in the indictment, even absent a request by the defendant.

State v. Cleveland, 959 S.W.2d 548, 553 (Tenn. 1997). Moreover, a defendant has

a right to have every issue of fact raised by the evidence and material to his or her



                                               12
defense submitted to the jury on proper instructions. State v. Robinette, No. 03C01-

9611-CR-00430, 1997 WL 671889, at * 3 (Tenn. Crim. App. at Knoxville, October

29, 1997). Thus, a defendant has a right to a jury instruction on all lesser included

offenses and lesser grades or classes of the charged offenses if the facts are

susceptible to an inference of guilt on any of those offenses. State v. Trusty, 919

S.W.2d 305, 310 (Tenn. 1996); State v. Cutshaw, 967 S.W.2d 332, 341-342 (Tenn.

Crim. App. 1997); Tenn. Code Ann. § 40-18-110 (1997); Tenn. R. Crim. P. 31(c).



              An offense is necessarily included in another if the elements of the

greater offense include, but are not congruent with, all the elements of the lesser

offense. Trusty, 919 S.W.2d at 310. See also State v. Miller, No. 01C01-9703-CC-

00087, 1998 WL 601241, at *8 (Tenn. Crim. App. at Nashville, September 11,

1998). In contrast, whether or not an offense is a lesser grade or class of the

charged offense is determined by reference to the statutory scheme. Trusty, 919

S.W.2d at 310. Generally, lesser grades or classes of the charged offense will be

codified in the same part of the chapter. Id. at 311-312. But see State v. Jett, No.

01C01-9707-CR-00236, 1998 WL 598524, at *6 (Tenn. Crim. App. at Nashville,

September 10, 1998)(this court observed that it is “doubtful” that the Trusty lesser

grade analysis would be applicable to offenses contained in Title 39, Chapter 17,

Part 3 due to the loose characterization of offenses in that chapter).



              As to the offense of the aggravated rape of Kathleen Dobbs, the

appellant argues that the trial court should have also charged the jury with the lesser

offense of sexual battery. Sexual battery is “unlawful sexual contact with a victim by

the defendant … accompanied by … [f]orce or coercion … .” Tenn. Code Ann. §39-

13-505(a)(1) (1997). Sexual contact has been defined by the legislature in the

following manner:

              “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

                                               13
              any other person’s intimate parts, if that intentional
              touching can be reasonably construed as being for the
              purpose of sexual arousal or gratification ....”

Tenn. Code Ann. § 39-13-501(6).


              Recently, this court observed that aggravated sexual battery is not a

lesser included offense of aggravated rape “since it requires an element that

aggravated rape does not: the sexual contact must be for the purpose of sexual

arousal or gratification.” State v. Mullins, No. 01C01-9803-CR-00115, 1999 WL

22451, at *2 (Tenn. Crim. App. at Nashville, January 21, 1999). See also State v.

Long, No. 02C01-9610-CC-00362, 1998 WL 74253, at *13 (Tenn. Crim. App. at

Jackson, February 24, 1998)(sexual battery is a lesser grade offense of rape). We

note that this conclusion is contrary to other recent opinions of this court. For

example, in State v. Dishman, No. 03C01-9610-CR-00361, 1998 WL 191447, at *10

(Tenn. Crim. App. at Knoxville, April 23, 1998), this court stated that aggravated

sexual battery is a lesser included offense of aggravated rape and cited State v.

Clark, No. 1066, 1988 WL 90448 (Tenn. Crim. App. at Knoxville, September 1,

1988). In Clark, we held that the “sexual penetration” element of rape necessarily

encompasses “sexual contact” as defined by the statute. Id. at *2.



              We conclude, as in Mullins, that sexual battery is not a lesser included

offense of aggravated rape. Our conclusion is guided in part by our supreme court’s

observation in the context of sentencing that not every rape is committed for the

purpose of sexual arousal or gratification, but may instead be motivated by a desire

to control, intimidate, or simply abuse another human being. State v. Adams, 864

S.W.2d 31, 35 (Tenn. 1993). Nevertheless, sexual battery is a lesser grade offense

of aggravated rape. Mullins, No. 01C01-9803-CR-00115, 1999 WL 22451, at *2.

Thus, we must determine if the trial court committed reversible error by failing to

instruct the jury on the lesser grade offense of sexual battery. In State v. Elder, 982

S.W.2d 871, 877-878 (Tenn. Crim. App. 1998), our court described the analysis

that a trial court must employ in compiling for the jury the appropriate instructions on

                                               14
lesser offenses:

                  [B]efore instructing a jury on a lesser offense, the trial
                  court must determine whether the evidence, when
                  viewed in the light most favorable to the defendant’s
                  theory of the case, would justify a jury verdict in accord
                  with the defendant’s theory, and would permit a rational
                  trier of fact to find the defendant guilty of the lesser
                  offense and not guilty of the greater offense. … If a jury
                  were instructed on a lesser offense even though the
                  evidence did not raise it or the offense was only raised by
                  “slight” or “relatively scant” evidence, then the instruction
                  would constitute an invitation to the jury to return a
                  compromise or otherwise unwarranted verdict.




                  The appellant testified in this case that he did not sexually assault Mrs.

Dobbs at all. However, he also argued to the jury that, regardless of whether or not

the jury accredited his testimony, the State’s proof did not support a finding of

penetration and, therefore, a conviction of rape. The appellant asserts on appeal

that Mrs. Dobbs’ testimony supported instead a conviction of sexual battery. Yet,

the appellant himself concedes that the trial court did charge the jury with the lesser

grade offense of aggravated sexual battery. In light of the undisputed evidence of

bodily injury4 presented at trial, we conclude that the trial court’s failure to charge

sexual battery to the jury did not constitute error.



                  Additionally, as to the charge of the attempted rape of Edna Hampton,

the appellant contends that the trial court should have instructed the jury on the

offense of sexual battery. Sexual battery is a lesser grade offense of attempted

rape. See, e.g., State v. Cleveland, 959 S.W.2d 548, 554 n.5 (Tenn. 1997)(sexual

battery is a lesser grade offense of attempted aggravated rape). We earlier noted

that, in contrast to the offense of rape, sexual battery requires “sexual contact”

rather than “sexual penetration.” The appellant’s aunt testified at trial that the

appellant removed his pants, exposing his genitalia, and attempted unsuccessfully



4
  The term bodily injury includes a cut, abrasion, bruise, burn, or disfigurement; physical pain or
temp orary illness o r impa irmen t of the fun ction of a b odily mem ber, orga n, or m ental facu lty. State v.
Sm ith, 891 S.W .2d 922, 927-928 (Ten n. Crim. App. 1994).

                                                            15
to remove her nightshirt and separate her legs. Ms. Hampton stated that she was

wearing no clothing underneath her nightgown. She recalled that the appellant’s

genitalia did not touch her, although his penis was close to her genital area during

the struggle. She also testified that the appellant did not “sexually touch [her] or

penetrate [her] in any way.” Nevertheless, Ms. Hampton possessed no doubt that

the appellant intended to rape her. In fact, the evidence at trial established that, on

the same night, the appellant broke into another home and raped the female

occupant. The appellant denied that a sexual assault of any kind occurred. Rather,

he contended that he struggled with his aunt in order to silence and subdue her.



              In summary, the evidence established that the appellant touched Ms.

Hampton’s nightgown during their struggle. Again, “sexual contact” does include

“the intentional touching … of the clothing covering the immediate area of the

victim’s … intimate parts, if that touching can be reasonably construed as being for

the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6).

However, neither the State nor the appellant adduced evidence that the appellant

touched Ms. Hampton’s nightgown for the purpose of sexual arousal or gratification.

The appellant explicitly denied that he touched his aunt for the purpose of sexual

arousal or gratification. Moreover, as noted earlier, evidence that the appellant

intended to rape Ms. Hampton, without more, does not mandate an instruction on

the lesser grade offense of sexual battery.



              The trial court did instruct the jury on the offense of attempted

aggravated sexual battery. Again, sexual battery is a lesser grade offense of

attempted rape. Moreover, aggravated sexual battery is a lesser grade offense of

attempted aggravated rape. However, aggravated sexual battery is not a lesser

grade offense of rape. Both rape and aggravated sexual battery, although

contained in the same part of the code, are Class B felonies. Tenn. Code Ann. §

39-12-107(a) (1997) would reduce each offense to a Class C felony. Accordingly,



                                               16
neither offense is a lesser grade than the other. Cf. Jett, No. 01C01-9707-CR-

00236, 1998 WL 598524, at *6 (both stalking and harassment are Class A

misdemeanors, and therefore neither is a lesser grade than the other). Accordingly,

the trial court erred by instructing the jury on the offense of aggravated sexual

battery. Nevertheless, because the appellant was convicted of the greater offense,

we conclude that any error in this regard was harmless.



              Finally, with respect to the charged offense of robbery, the appellant

argues that the trial court should have instructed the jury on the lesser included

offense of theft of property. We agree that theft is a lesser included offense of

robbery. State v. Sherrod, No. 02C01-9510-CR-00331, 1996 WL 417661, at *3

(Tenn. Crim. App. at Jackson, July 26, 1996). However, this determination does not

finish our inquiry. We must determine if the evidence adduced at trial would permit

a rational trier of fact to find the defendant guilty of the theft and not guilty of

robbery. Elder, 982 S.W.2d at 877.



        A theft occurs when a person, “with intent to deprive the owner of the

property, … knowingly obtains or exercises control over the property without the

owner’s effective consent.” Tenn. Code Ann. § 39-14-103 (1997). A robbery “is the

intentional or knowing theft of property from the person of another by violence or

putting the person in fear.” Tenn. Code Ann. §39-13-401 (1997).



       A majority of the panel believes that the evidence justifies a rational juror

having a reasonable doubt about the theft being “ from the person of another by

violence or putting the person in fear.” The majority’s view is that the defendant’s

knocking items to the floor, grabbing the wallet and leaving the scene--done while

Mr. Dobbs remained in bed--do not constitute overwhelming proof that the theft was

from the person accomplished by violence or by putting the person in fear. Thus,

they conclude that an instruction on theft should have been given.



                                                 17
       However, the author of this opinion believes that the evidence

overwhelmingly establishes the crime of robbery and that there is no credible view of

the evidence on which the defendant could have been found guilty of a lesser

included offense of theft. State v. Sherrod, No. 02C01-9510-CR-00331, 1996 WL

417611, at *3.



       Mrs. Dobbs testified that, after raping her, the appellant ran into her

husband’s room, where her husband was lying on his bed. Mrs. Dobbs followed the

appellant and observed the appellant first violently push several items to the floor,

including her husband’s respirator, and then grab her husband’s wallet from the foot

of his bed. That Mr. Dobbs was fully aware of the appellant’s actions is

demonstrated by Mrs. Dobbs’ testimony that he cried out to her that the appellant

was taking his wallet. Additionally, Mrs. Dobbs testified that she and her husband

were “scared to death.” Mrs. Dobbs’ daughter-in-law and the police who arrived on

the scene immediately following the offenses testified that Mr. Dobbs appeared

upset and frightened. On the basis of this evidence, the author of this opinion

believes the trial court properly instructed the jury.



                                     III. Conclusion

   For the foregoing reasons, we reverse the appellant’s robbery conviction and

otherwise affirm the judgment of the trial court.



                                               ____________________________
                                               Norma McGee Ogle, Judge


CONCUR:


_________________________
John H. Peay, Judge


_________________________

                                                18
Joseph M. Tipton, Judge




                          19
