         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 13, 2001

                STATE OF TENNESSEE v. JEFFREY L. MARCUM

                   Direct Appeal from the Circuit Court for Madison County
                           No. 99-755    Roy B. Morgan, Jr., Judge



                       No. W2000-02698-CCA-R3-CD - January 23, 2002


The appellant, Jeffrey L. Marcum, appeals his convictions by a jury in the Madison County Circuit
Court of one count of rape of a child, one count of aggravated sexual battery, and one count of incest.
In this appeal, the appellant raises the following issues for our consideration: (1) whether the trial
court erred under Tenn. R. Evid. 412 in limiting his cross-examination of the victim concerning her
“sexual history and knowledge;” (2) whether the evidence adduced at trial is sufficient to support
the jury’s “verdict” of guilt; and (3) whether the trial court erred in failing to instruct the jury on the
lesser-included offense of attempt to commit rape of a child. Following a careful review of the
record and the parties’ briefs, we affirm the judgments of the trial court for the offenses of
aggravated sexual battery and incest, but we reverse the judgment for the offense of rape of a child
and remand the case for a new trial on that charge.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed in
                       Part and Reversed and Remanded in Part.

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which JOE G. RILEY, J., and
CORNELIA CLARK , SP. J., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, Stephen P.
Spracher (at trial and on appeal), and J. Colin Morris (at trial), Jackson, Tennessee, for the appellant,
Jeffrey L. Marcum.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; James G. “Jerry” Woodall, District Attorney General; and Jody S. Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                     I. Factual Background
               On October 4, 1999, a Madison County Grand Jury returned a three-count indictment
charging the appellant with rape of a child, aggravated sexual battery, and incest. The indictment
arose from the appellant’s sexual assault upon his ten-year-old stepdaughter, BV, in their Madison
County home in November 1998.1 The appellant’s case proceeded to trial on January 19, 2000. At
trial, BV testified that she was currently eleven years old. She further related to the jury that she and
her younger brother, Brandon, were in the sole care of the appellant on the evening of his offenses.
Specifically, both the appellant and the children were in the living room of their home watching
cartoons on television. BV was seated beside the appellant on the couch, and Brandon was lying on
the floor. BV recalled that, before assaulting her, the appellant ordered Brandon to keep “his head
down” on the floor. The appellant then placed his penis against BV’s “private part” “between [her]
legs.” According to BV, the appellant “tried to” penetrate her “private part.” The appellant also
“touched [her private part] with his hands and mouth” and “[p]ut his hands and mouth on [her]
[breasts].” Finally, the appellant forced BV to perform fellatio upon him. BV recalled that, during
the assault, she asked the appellant to stop, but he ignored her plea. Following the assault, the
appellant instructed her to “tell no one because he would get in trouble.” Notwithstanding the
appellant’s instruction, BV later reported the incident to the appellant’s sister, Teresa Smith. BV
indicated that she was forced to confide in Smith because Smith’s daughter found and read BV’s
written account of the incident.

                 Brandon confirmed at trial that, on the evening of November 25, 1998, he and his
sister were in the sole care of the appellant. Like BV, Brandon testified that the appellant was in the
living room with the children watching cartoons on television. Brandon recalled that they were
watching Rugrats. He also recalled that he was lying alone on the floor “where a big coffee table
was.” He denied remembering anything “out of the ordinary happening.” However, he conceded
that he “pa[id] pretty close attention to cartoons when . . . watching them.” He also conceded that,
on the evening in question, the appellant pushed his head “down on the ground,” instructing him to
“stay down . . . or he was going to whip me.” Brandon remained on the floor watching cartoons until
his mother returned home.

              Teresa Smith, the appellant’s sister, testified that the appellant and his family visited
her home on Thanksgiving in 1998. Following the Thanksgiving celebration, the appellant and his
wife returned home, but BV and Brandon spent the night with the Smiths. On the following
morning, Smith’s two eldest children reported to her that BV had written sexually graphic material
and had drawn pictures in a diary belonging to their younger sibling. Smith testified:
              I talked to [BV] alone probably for 30 minutes or longer. I knew
              from what - - the diary in there that there was something wrong, that
              she wouldn’t have written the things she did had somebody not been
              molesting [BV]. She denied it repeatedly for at least 30 minutes or
              more, and then when I told [BV] that I was going to have to call her
              mother and show her mother the diary, [BV] begged me not to. She
              told me that if I did, her mother would not allow her to see her daddy
              anymore.



          1
           It is the po licy of this court to withhold the identity of m inor victim s of sex ual offenses, referring to them only
by their initials.

                                                               -2-
               Annette Lay, an employee of the Department of Children’s Services, testified that she
interviewed BV concerning allegations that the child had been sexually assaulted by her stepfather.
BV reported to Lay that the appellant had forced her to perform fellatio upon him, had fondled her
breasts, and had touched her “tee-tee” with his “private part.”

                Angela Marcum, BV and Brandon’s mother, confirmed at trial that, in 1998, she
frequently left the children in the appellant’s sole care. She further testified that, after learning of
BV’s allegations, she asked the appellant to leave their home, and she and the appellant decided to
initiate divorce proceedings. On September 1, 1999, the appellant telephoned her and apologized
“for all the heartache and pain [he had] caused.”

                Gus Marcum, the appellant’s brother, testified at trial that he discussed BV’s
allegations with the appellant, and the appellant denied sexually assaulting his stepdaughter.
However, Marcum acknowledged tape-recorded statements that he had made to Angela Marcum
indicating the contrary. Marcum volunteered two alternative explanations for his statements. First,
he claimed that, because he was drunk at the time of his conversation with Ms. Marcum and because
he was attempting to retrieve personal property from Ms. Marcum’s home, he simply told his sister-
in-law whatever she wanted to hear. Second, he claimed that he did not express himself clearly
during his conversation with Ms. Marcum and never intended to suggest that the appellant had
confessed to him.

                The appellant testified on his own behalf. He denied sexually assaulting BV in any
way. In particular, he noted that he had not baby-sat his stepchildren since 1997 because someone
had submitted a complaint to the Department of Children’s Services that he was beating the children.
The appellant further asserted that, following BV’s allegations, he decided to seek a divorce from
Angela Marcum, but Ms. Marcum opposed his decision and, along with the children, would
frequently visit him at his workplace. The appellant claimed that he was ultimately forced to petition
a court for an order of protection against Ms. Marcum.

                Following the parties’ presentation of proof, the trial court instructed the jury on the
offenses of rape of a child, aggravated sexual battery, and incest but declined to provide instructions
on any lesser-included offenses, notwithstanding defense counsel’s request that the jury be instructed
on the offense of attempt to commit rape of a child. The jury found the appellant guilty of all three
offenses included in the indictment, and the trial court imposed an effective sentence of twenty years
incarceration in the Tennessee Department of Correction.

                                            II. Analysis
                                       A. Tenn. R. Evid. 412
                The appellant first contends in this appeal that the trial court erred under Tenn. R.
Evid. 412(c)(4)(ii) in limiting his cross-examination of BV concerning her “sexual history and
knowledge.” Specifically, the appellant contends that “the trial court so limited the defendant’s
ability to explore [BV]’s sexual history and knowledge that the defendant was denied a fair trial.”
The State responds that the appellant has waived this issue by failing to rely upon Tenn. R. Evid. 412
in the trial court. Additionally, the State argues that the appellant’s failure to comply with the

                                                  -3-
procedural requirements of Tenn. R. Evid. 412 precluded the admission of any evidence of other
sexual behavior by BV. Finally, the State notes the appellant’s failure to make an offer of proof
concerning the substance of any evidence excluded by the trial court’s ruling and his consequent
inability to demonstrate the admissibility of the evidence pursuant to Tenn. R. Evid. 412(c)(4)(ii).
The State concludes that “[t]he essence of [the appellant’s] complaint is that he was not allowed to
go on a fishing expedition concerning his then eleven-year-old victim’s sexual history or knowledge
of sexual matters.”

                In relevant part, the record reflects that defense counsel asked on the first day of the
appellant’s trial if he would be permitted to question BV concerning her prior statement to Teresa
Smith that she had been sexually assaulted by her uncle as well as by the appellant. The record
contains no pre-trial motion requesting the admission of the proposed testimony, and defense counsel
did not otherwise specify which rule of evidence, if any, supported the admission of the testimony.
The prosecutor responded, “Your Honor, I don’t think it has a bearing on this incident, and I think
it gets into Rule 412, prior sexual contact or conduct.” The trial court evidently disagreed with the
prosecutor and concluded:
                I think it goes to credibility. . . .

                I believe it could come under 404 where we’re dealing with the
                character evidence, we’re dealing with the character of the victim.
                That’s a possibility, evidence of a pertinent character trait of the
                victim, and I take it in this case accusing others of such conduct over
                and over. . . .

                Gentlemen, here’s what I’m going to do under the circumstances.
                [Defense counsel] can ask the question of this witness as to whether
                or not she has accused others of certain conduct which you’re
                alluding to, and then when she denies that, certainly you could use
                another witness as to rebuttal or impeachment, which is what it would
                be, impeachment of prior inconsistent statements.

                ....

                [Defense Counsel is] dealing with evidence of character or conduct
                of this individual for impeachment purposes . . . and [he is] limited to
                that.

                ....

                Now if you were getting into specific conduct, you understand this,
                under specific conduct under the rules of evidence, we’ve got to have
                an - - I’m of the opinion we’ve got to have a hearing outside the
                presence of the jury to hear what specific instances of conduct you


                                                  -4-
                might be wanting to refer to and what probative value versus
                prejudicial value that might have.
Notwithstanding its ruling, the trial court noted, unavailingly, that argument by counsel concerning
the rules of evidence would be helpful.

                 Following the trial court’s ruling and during his cross-examination of BV, defense
counsel asked the child whether she had ever accused anybody other than the appellant of sexually
assaulting her. BV denied making any other accusations. Accordingly, defense counsel introduced
the testimony of Teresa Smith that, when BV told Smith about the appellant’s offenses, BV also
stated that she had been sexually assaulted in the past by an uncle who had since committed suicide.2

                In addressing the appellant’s complaint on appeal, we first emphasize that it
apparently concerns only the scope of the appellant’s cross-examination of BV and does not
encompass the exclusion of testimony by other witnesses. Cf. State v. Brown, 29 S.W.3d 427
(Tenn.), cert. denied, 531 U.S. 916, 121 S. Ct. 275 (2000). In light of BV’s denial that she had ever
accused anyone other than the appellant of sexually assaulting her, it is unclear what additional
testimony would have been forthcoming from the victim concerning her “sexual history and
knowledge.” As noted by the State, the appellant never made an offer of proof for the purpose of
preserving this issue for appeal. Tenn. R. Evid. 103(a)(2). Moreover, we agree with the State that
the appellant has waived this issue by completely failing in the trial court to cite Tenn. R. Evid. 412
or propound any grounds for admitting BV’s testimony concerning her “sexual history and
knowledge.” Tenn. R. App. P. 36(a). Indeed, the appellant expressed no objection to or
disagreement with the trial court’s ruling concerning the permissible scope of his cross-examination
of BV. Id. Defense counsel explained his inability to provide any argument to the trial court
concerning the application of the rules of evidence by remarking, “This sort of just came up this
morning, to be honest with you.” We note, however, that information concerning BV’s prior
accusation against her uncle was available to defense counsel through the appellant’s own witnesses,
namely Annette Lay and Teresa Smith.

                 Notwithstanding the appellant’s waiver of this issue and because we are remanding
this case on other grounds for a new trial on the charge of rape of a child, we elect to briefly address
the trial court’s ruling for the purpose of providing guidance to both the court and the parties. Again,
the trial court seemingly ruled that the appellant could cross-examine BV concerning her prior
accusation against her uncle for the purpose of demonstrating a character trait pertinent to her
credibility, specifically the “character trait” of “accusing others of [sexual assault] over and over.”
Contrary to the appellant’s claim at the hearing on his motion for new trial and on appeal, the court
did not appear to rely upon Tenn. R. Evid. 412 but instead referred to Tenn. R. Evid. 404(a)(2).


         2
           Although Smith’s testimony concerning B V’s prior accu sation was adm itted as a prior inconsisten t statem ent,
we note that the trial court did not provide a contemporaneous limiting instruction concerning the jury’s consideration
of the stateme nt, no r did th e State requ est a co ntem poraneous limiting instruc tion. N evertheless, the trial court did
instruct the jury imm ediate ly before its deliberations that the prior inconsistent statements of a witness should be
considered solely for the purpose of assessin g the witness’ cre dibility and not as evidence of the facts to which the prior
statem ent relates. Cf. State v . Sm ith, 24 S.W.3d 274, 279 -281 (Ten n. 2000).

                                                            -5-
                 The trial court’s remarks suggest its assumption that the relevance of BV’s prior
accusation lay in its untruthfulness, an assumption in diametric contradiction to the position
subsequently taken by the appellant in his motion for new trial and on appeal. Such an assumption
would certainly explain the trial court’s failure to exclude testimony about the accusation as hearsay,
see, e.g., State v. Steven Lee Whitehead, No. W2000-01062-CCA-R3-CD, 2001 WL 1042164, at
*11 (Tenn. Crim. App. at Jackson, September 7, 2001), and the trial court’s failure to apply Tenn.
R. Evid. 412, see, e.g., State v. Anthony Lynn Wyrick, No. E1999-02206-CCA-R3-CD, 2001 WL
472849, at *16 (Tenn. Crim. App. at Knoxville, May 4, 2001). Inexplicably, however, the trial court
also concluded that testimony about the accusation did not constitute evidence of a specific instance
of conduct. We would respectfully disagree. In other words, assuming that BV’s prior accusation
against her uncle was false, Tenn. R. Evid. 608(b) controlled the cross-examination of BV
concerning the accusation for the purpose of attacking her credibility as a witness. Wyrick, No.
E1999-02206-CCA-R3-CD, 2001 WL 472849, at **24-29. Alternatively, subsection (b) of Tenn.
R. Evid. 404 rather than subsection (a)(2) controlled the admission of the testimony as substantive
evidence. Wyrick, No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at **17-24.

                Of course, the appellant now clarifies that BV’s prior accusation that she was sexually
assaulted by her uncle was relevant because it was true. Yet, if offered in evidence to prove the truth
of the matter asserted, the accusation constituted hearsay. Tenn. R. Evid. 801(c). Nevertheless, the
appellant apparently complains that the trial court should have permitted his cross-examination of
BV concerning the assault itself rather than her accusation. Again, we are only able to speculate due
to the appellant’s failure to make an offer of proof. In any event, testimony by BV describing her
uncle’s sexual assault would indeed constitute evidence of other sexual behavior by the victim within
the meaning of Tenn. R. Evid. 412, see, e.g., Whitehead, No. W2000-01062-CCA-R3-CD, 2001 WL
1042164, at *10, hence the appellant’s argument that BV’s testimony was relevant under Tenn. R.
Evid. 412(c)(4)(ii) to explain her knowledge of sexual matters and, moreover, was necessary to
ensure his right to a fair trial. Cf. State v. Sheline, 955 S.W.2d 42, 47-48 (Tenn. 1997). The
appellant’s argument might possess some merit had he ever presented it to the trial court, much less
complied with the procedural requirements of Tenn. R. Evid. 412, see id. at (d).3


         3
           Prior to July 1, 1999, Tenn. R. Evid. 412 on its face applied only to proceedings in which the defendant was
accused of aggravated rape, rape, aggravated sexual battery, and spousal sexual offenses. Effective July 1, 1999, the
supreme court amended Tenn. R. Evid. 412 by expanding this list of offenses to include incest and rape of a c hild. We
note that the amendment became effective after the date of the appellant’s offenses but before the date of the appellant’s
trial. Significantly, however, the appellant has never argued that the application of Tenn . R. Ev id. 41 2 in h is case w ould
violate ex post facto constitutional provisions; o n the contrary, h e seek s the ap plication of the am end ed ru le. In any
event, we note that courts addressing the application of rape shield laws to prosecutions for offenses committed prior
to the laws’ enactment have dec lined to find any violation o f ex p ost facto constitutional provisions. See, e.g., United
States v. Brooks, 17 M .J. 584, 585-586 (A .C.M.R. 198 3); Turley v . State, 356 So. 2d 1238, 1243-1244 (Ala. Crim. App.
1978); Logan v. State, 442 S.E. 2d 883 , 886 (Ga. Ct. App. 1 994 ); People v. Do rff, 396 N.E .2d 8 27, 8 28-830 (Ill. Ct.
App. 197 9); Finn ey v. State, 385 N.E .2d 4 77, 4 80-481 (Ind. Ct. App. 1 979 ); cf. Carmell v. Texas, 529 U.S. 513, 521-
552, 120 S. Ct. 1620, 1626-1643 (2000), and State v. Bragan, 920 S.W .2d 227, 240-241 (Tenn. C rim. A pp. 1995). We
also note that, at the time of the adoption of Tenn. R. Evid. 412 in 1991, the offense known as rape of a child was
contained in the aggravated rape statute and, therefore, subject to the rule. Only in 1992 d id the legislatu re enact a
                                                                                                                (con tinued...)

                                                             -6-
                In conclusion, we emphasize that, regardless of the rule of evidence upon which the
appellant intended to rely, “the burden of introducing evidence sufficient to support a finding that
the requirements of an evidence rule are satisfied remains on the proponent of evidence.” State v.
Stinnett, 958 S.W.2d 329, 330 n. 5 (Tenn. 1997); Tenn. R. Evid. 104(b). Thus, for example, under
Tenn. R. Evid. 608(b), the appellant was required to establish a “reasonable factual basis” for cross-
examining BV concerning a prior false accusation. Wyrick, No. E1999-02206-CCA-R3-CD, 2001
WL 472849, at *25-26. With respect to Tenn. R. Evid. 404(b), the appellant was required to present
clear and convincing proof of a prior false accusation. State v. Mallard, 40 S.W.3d 473, 486 (Tenn.
2001); Wyrick, No. E1999-02206-CCA-R3-CD, 2001 WL 472849, at *22; Tenn. R. Evid. 404,
Advisory Commission Comments. As to Tenn. R. Evid. 412, the appellant carried, at a minimum,
the burden of proving by a preponderance of the evidence that BV was sexually assaulted by her
uncle. Cf. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999); State v. Stamper, 863 S.W.2d 404, 406
(Tenn. 1993). The record in this case is devoid of evidence establishing either the truth or falsity of
BV’s prior accusation against her uncle.

                                    B. Sufficiency of the Evidence
                The appellant also challenges the sufficiency of the evidence underlying the jury’s
“verdict.” The State disputes the merits of the appellant’s contention with respect to all three
convictions in this case. However, it is unclear from the appellant’s brief whether his challenge
encompasses all three convictions. Indeed, the appellant’s brief contains no argument on this issue
whatsoever, albeit he has included a boilerplate recitation of the standard by which an appellate court
reviews the sufficiency of evidence underlying a jury’s verdict. Accordingly, the appellant has
waived this issue. Tenn. R. App. P. 27(a)(7); Tenn. Ct. of Crim. App. 10(b); see also, e.g., State v.
Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); State v. Charles Ray Allen, No. M1999-
00818-CCA-R3-CD, 2000 WL 1649507, at *4 n.1 (Tenn. Crim. App. at Nashville, November 3,
2000), perm. to appeal denied, (Tenn. 2001). In any event, there is sufficient evidence in the record
from which a rational trier of fact could find beyond a reasonable doubt that the appellant committed
the offenses of rape of a child, aggravated sexual battery, and incest. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982); Tenn.
R. App. P. 13(e).

               Addressing each conviction in turn, we first note that Tenn. Code Ann. § 39-13-
522(a) (1997) defines the rape of a child as the unlawful penetration of a victim by the defendant or
the defendant by a victim when the victim is less than thirteen years of age. The defendant must act
with intent, knowledge, or recklessness. Tenn. Code Ann. § 39-11-301(c) (1997). Sexual
penetration includes “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body or of any object into the genital or anal
openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not
required.” Tenn. Code Ann. § 39-13-501(7) (1997).

         3
           (...continued)
separate statute for the offense of rape of a child. Perhaps for this reason, we have previously indicated in dicta that
Ten n. R. E vid. 4 12 w as applicab le in rap e of a child cases even befo re the 199 9 am end me nt. State v. George Milton
Brooks, No. 02C01-9804-CC -00116, 1998 W L 775649, at *4 n. 4 (Tenn. Crim . App. at Jackson, Nov emb er 6, 1998).

                                                            -7-
                Briefly recapitulating, BV testified at trial that she was currently eleven years old and
that, in November 1998, the appellant forced her to perform fellatio upon him in the living room of
their home while her brother lay on the floor nearby watching television. She further testified that,
immediately prior to the sexual assault, the appellant ordered her younger brother to keep “his head
down” on the floor, thereby preventing him from witnessing the assault. Afterwards, the appellant
ordered BV to tell no one about the assault. BV’s testimony alone supports the jury’s verdict finding
the appellant guilty of rape of a child. See, e.g., Letner v. State, 512 S.W.2d 643, 649 (Tenn. Crim.
App. 1974)(observing that the uncorroborated testimony of a single witness will generally support
a defendant’s conviction); see also State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994).
Still, we note the appellant’s intimation elsewhere in his brief that his conviction of rape of a child
rests instead upon BV’s testimony that the appellant placed his penis against her “private part” and
“tried to” penetrate her “private part.” The appellant’s apparent confusion raises the specter of the
election of offenses requirement.

                 Our supreme court has repeatedly held that, if the prosecution offers proof of multiple
offenses in support of a single charged offense, it must elect the facts upon which it is relying to
establish the charged offense. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001); State v.
Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999).
Despite any confusion on the appellant’s part, we believe that the evidence in this case established
a single instance of penetration as defined by Tenn. Code Ann. § 39-13-501(7), namely the incident
of fellatio. Cf. State v. Lee Lance, No. 03C01-9804-CR-00136, 1999 WL 301457, at **5-6 (Tenn.
Crim. App. at Knoxville, May 14, 1999)(when combined with evidence that the victim had vaginal
lacerations and a torn hymen, testimony that the appellant placed his penis “on” the victim’s
“private” sufficed to establish the offenses of rape of a child and incest). Moreover, to the extent the
evidence established more than a single instance of penetration, counsel’s closing arguments are not
included in the record before this court. Accordingly, we cannot exclude the possibility that the
prosecutor’s closing argument effectively served as an election of offenses. See, e.g., State v.
William Donald Ellis, __ S.W.3d __, No. M1999-783-CCA-R3-CD, 2000 WL 1520006, at *8 n. 2
(Tenn. Crim. App. at Nashville, October 13, 2000), perm. to appeal denied and recommended for
publication, (Tenn. 2001). We note that, immediately prior to closing arguments and outside the
jury’s hearing, the prosecutor remarked to the trial court:
                 The act that we’re relying upon is the actual oral sex that she testified
                 to in order to sustain a conviction for rape of a child, . . . The
                 aggravated sexual battery would, of course, be the touching which she
                 testified that he put his private on her private part and also touched
                 her breast area and put his mouth on her breast area . . . .

                Turning to the appellant’s conviction of aggravated sexual battery, the State was
required to prove the following essential elements beyond a reasonable doubt: (1) unlawful sexual
contact with a victim by the defendant or the defendant by a victim; (2) the victim was less than
thirteen years of age; and (3) the defendant acted either intentionally, knowingly, or recklessly.
Tenn. Code Ann. § 39-13-504(a)(4) (1997); Tenn. Code Ann. § 39-11-301(c). “‘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

                                                  -8-
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.” Tenn. Code Ann. § 39-13-
501(6). Jurors “may use their common knowledge and experience” in determining whether the
touching can reasonably be construed as motivated by a defendant’s desire for sexual arousal or
gratification. State v. Jack Warren Emert, Jr., No. 03C01-9802-CC-00074, 1999 WL 512029, at *2
(Tenn. Crim. App. at Knoxville, July 21, 1999); see also, e.g., State v. Tony Allen Leonard, No.
E1999-00971-CCA-R3-CD, 2000 WL 1772468, at * 3 (Tenn. Crim. App. at Knoxville, December
1, 2000), perm. to appeal denied, (Tenn. 2001).

                Again, BV testified at trial that she was less than thirteen years of age at the time of
the appellant’s offenses. Additionally, as indicated by the prosecutor, BV testified that the appellant
not only forced her to perform fellatio upon him but also placed his penis against her “private part”
“between [her] legs;” “touched [her private part] with his hands and mouth;” and “[p]ut his hands
and mouth on [her] [breasts].” We reiterate that, in the absence of closing arguments from the
record, we will assume that the prosecutor thereby clarified his reliance upon the incident of fellatio
to establish the appellant’s commission of the offense of rape of a child and his reliance upon the
remaining conduct to establish the offense of aggravated sexual battery. As to the multiple incidents
of touching underlying the appellant’s conviction of aggravated sexual battery, our supreme court
has recently held that, “[i]f [an] entire instance of sexual contact occurs quickly and virtually
simultaneously, then only one offense [of sexual battery] has occurred, even if more than one
touching has occurred.” Johnson, 53 S.W.3d at 633 (emphasis added); see also State v. Randall Ray
Mills, No. M2000-01065-CCA-R3-CD, 2001 WL 1246387, at *8 (Tenn. Crim. App. at Nashville,
October 17, 2001). In short, the evidence supports the jury’s finding that the appellant engaged in
a single instance of aggravated sexual battery.

                Finally, in order to obtain a conviction of incest, the State was required to establish
beyond a reasonable doubt that (1) the appellant engaged in sexual penetration with BV as defined
by Tenn. Code Ann. § 39-13-501(7); (2) the appellant knew that BV was his stepchild; and (3) the
appellant acted intentionally, knowingly, or recklessly. Tenn. Code Ann. § 39-15-302(a)(1) (1997);
Tenn. Code Ann. § 39-11-301(c). We have already concluded that the evidence adduced at the
appellant’s trial established his commission of a single act of penetration and the requisite
accompanying mental state. Moreover, the appellant’s own testimony established both his
relationship with BV and his knowledge of the relationship at the time of these offenses. This issue
is without merit.

                                    C. Lesser-Included Offenses
                 The appellant next contends that the trial court erred in denying his request that the
jury be instructed on the lesser-included offense of attempt to commit rape of a child. The State
essentially responds that the appellant has waived any argument concerning the need for an
instruction on attempt to commit rape of a child as a lesser-included offense of rape of a child by
relying in the trial court upon evidence underlying his indictment for aggravated sexual battery. The
State further asserts that the evidence underlying the appellant’s indictment for and subsequent
conviction of rape of a child would not support a conviction of attempt to commit rape of a child.


                                                  -9-
               We preliminarily note that the appellant failed to request instructions on any lesser-
included offenses of the indicted offenses other than attempt to commit rape of a child, and the trial
court declined to instruct the jury on any lesser-included offenses whatsoever. More to the point,
the appellant only challenges in this appeal the trial court’s failure to instruct the jury on attempt to
commit rape of a child. Due to the appellant’s failure to object to the trial court’s refusal to instruct
other lesser-included offenses, we will limit our discussion to the appellant’s challenge in this
appeal. Tenn. R. Crim. P. 52(b).

                As remarked by the State, the appellant relied in the trial court upon evidence
underlying his indictment for aggravated sexual battery to demonstrate the need for an instruction
on attempt to commit rape of a child. Likewise, on appeal, the appellant partially relies on BV’s
testimony that the appellant placed his penis against her “private part” and “tried to” penetrate her
“private part.” It is not entirely clear from the record or the appellant’s brief whether he believes that
the State relied upon this testimony to establish the offense of rape of a child or, alternatively, he
believes that attempt to commit rape of a child is a lesser-included offense of aggravated sexual
battery. We have noted our disagreement with the former view. We also disagree with any
suggestion that attempt to commit rape of a child is a lesser-included offense of aggravated sexual
battery.

                The essential elements of both aggravated sexual battery as charged in the indictment
in this case and rape of a child are set forth in our preceding discussion of the sufficiency of the
evidence adduced at trial, and we need not repeat them here. Both offenses are “nature-of-conduct
offenses,” in that “the offense[s] seek[] principally to proscribe the nature of the defendant’s conduct,
as opposed to the result that the defendant’s conduct achieves.” State v. Mateyko, 53 S.W.3d 666,
673 (Tenn. 2001). As relevant to nature-of-conduct offenses, Tenn. Code Ann. § 39-12-101 (1997)
reads:
                (a) A person commits criminal attempt who, acting with the kind of
                culpability otherwise required for the offense:
                (1) Intentionally engages in action . . . that would constitute an
                offense if the circumstances surrounding the conduct were as the
                person believes them to be; . . . or
                (3) Acts with intent to complete a course of action . . . that would
                constitute the offense, under the circumstances surrounding the
                conduct as the person believes them to be, and the conduct constitutes
                a substantial step toward the commission of the offense.

               In determining whether attempt to commit rape of a child is a lesser-included offense
of aggravated sexual battery, we must apply the following test adopted by our supreme court in State
v. Burns, 6 S.W.3d 453, 466-467 (Tenn. 1999):
               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

                                                  -10-
                         (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
                         offense 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).

                Clearly, the offense of attempt to commit rape of a child is not a lesser-included
offense of aggravated sexual battery pursuant to part (c) of the Burns test. Moreover, all of the
statutory elements of attempt to commit rape of a child are not included within the statutory elements
of aggravated sexual battery if only because the offense of attempt to commit rape of a child requires
a specific intent to engage in conduct constituting rape of a child. Tenn. Code Ann. § 39-12-101,
Sentencing Commission Comments; cf. Mateyko, 53 S.W.3d at 673-677. Finally, this specific intent
element establishes neither a mental state indicating a lesser kind of culpability than that inherent
in the offense of aggravated sexual battery nor a less serious harm or risk of harm than that posed
by the offense of aggravated sexual battery. Accordingly, attempt to commit rape of a child is not
a lesser-included offense of aggravated sexual battery.

                That having been said, the appellant also relies on appeal on the testimony underlying
his indictment for and conviction of rape of a child to demonstrate the need for an instruction on
attempt to commit rape of a child. In this regard, we must reject the State’s claim of waiver, as a
trial court’s duty to charge a jury as to the law of each offense included in an indictment exists
regardless of any request or objection by the appellant and, it necessarily follows, regardless of any
deficiency in the appellant’s argument before the trial court. See, e.g., Burns, 6 S.W.3d at 464; State
v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998); Tenn. Code Ann. § 40-18-110(a) (1997). Under part
(c) of the Burns test, attempt to commit rape of a child is a lesser-included offense of rape of a child.
Accordingly, the trial court was obligated to instruct the jury on attempt to commit rape of a child
if there existed evidence that reasonable minds could accept as to the lesser-included offense, and
this evidence was legally sufficient to support a conviction of the lesser-included offense. Burns,
6 S.W.3d at 469.

                Again, in order to prove the appellant’s commission of the offense of rape of a child,
the State presented BV’s testimony that she was forced to perform fellatio upon the appellant. As
noted by the appellant, BV initially indicated that the appellant “made me put my mouth on his
private part.” (Emphasis added). Subsequently, however, the prosecutor engaged in the following
colloquy with BV:

                                                  -11-
        Prosecutor:     Just to be clear now, you said he put his private part in
                        your mouth. Is that right?
        BV:             Yes, Sir.
        Prosecutor:     Now, that’s - - When you talk about his private part, -
                        -
        BV:             Yes, sir.
        Prosecutor:     - - is that his penis?
        BV:             Yes, sir.
        Prosecutor:     And you put that in your mouth?
        BV:             Yes, sir.

                  We must view the evidence “liberally in the light most favorable to the existence of
the lesser-included offense without making any judgments on the credibility of such evidence.” Id.
We therefore conclude that the evidence required an instruction on the offense of attempt to commit
rape of a child. Specifically, the victim’s testimony on direct examination that she put her “mouth
on [the appellant’s] private part,” when viewed in a light favoring the existence of the lesser-included
offense, would support a finding of guilt of attempt to commit rape of a child. In this regard, we
emphasize that “[w]hether sufficient evidence supports a conviction of the charged offense does not
affect the trial court’s duty to instruct on the lesser offense if evidence also supports a finding of guilt
on the lesser offense.” Id. at 471-472; see also State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001);
State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000). We further note that the failure to commit the
offense attempted is not an essential element of criminal attempt. Tenn. Code Ann. § 39-12-101(c);
cf. Swindle, 30 S.W.3d at 293. Finally, we cannot conclude beyond a reasonable doubt that the trial
court’s error was harmless as the jury was not afforded an opportunity to consider any intermediate
lesser-included offense. Bowles, 52 S.W.3d at 80-81; State v. Ely, 48 S.W.3d 710, 714-715 & 727
(Tenn.), cert. denied, __ U.S. __, 122 S. Ct. 408 (2001).

                                          III. Conclusion
               For the foregoing reasons, we affirm the judgments of the trial court underlying the
appellant’s convictions of aggravated sexual battery and incest, but we reverse the judgment
underlying the appellant’s conviction of rape of a child and remand this case to the trial court for a
new trial on the charge of rape of a child.


                                                          ___________________________________
                                                          NORMA McGEE OGLE, JUDGE




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