          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE          FILED
                                                     March 20, 2000
STATE OF TENNESSEE,              )    No. M2000-00304-CCA-RM-CD
                                                Cecil Crowson, Jr.
                                 )
                                              Appellate Court Clerk
            Appellee,            )    DAVIDSON COUNTY
                                 )
VS.                              )    HON. THOMAS H. SHRIVER,
                                 )    JUDGE
                                 )
ROBBIE JAMES,                    )
                                 )    (Child Rape)
            Appellant.           )

      UPON REMAND FROM THE SUPREME COURT OF TENNESSEE




FOR THE APPELLANT:                    FOR THE APPELLEE:

EDWARD J. GROSS                       PAUL G. SUMMERS
Parkway Towers, Ste. 1601             Attorney General and Reporter
Nashville, TN 37219
                                      ELLEN H. POLLACK
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      VICTOR S. JOHNSON, III
                                      District Attorney General

                                      WILLIAM R. REED
                                      Assistant District Attorney General
                                      Washington Sq., Ste. 500
                                      222-2nd Avenue, N.
                                      Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION


       This case is before this Court upon remand from the Supreme Court of

Tennessee. The defendant was convicted of child rape and sentenced to fifteen

years in the Department of Correction. Originally, we concluded the trial court

committed reversible error by failing to charge aggravated child abuse as a lesser

offense of child rape. The order of the Supreme Court remands to this Court for

reconsideration in light of State v. Dominy, 6 S.W.3d 472 (Tenn. 1999). We now

conclude the trial court did not commit reversible error and AFFIRM the judgment of

the trial court.



                                       FACTS



       Defendant and her husband were unable to have children and sought

adoption. A two and three-year-old brother and sister were placed in their home in

December 1991, in contemplation of adoption. On October 22, 1992, a worker at the

children’s day care facility found blood on cleansing tissue used by the three-year-old

female. Upon further examination blood was discovered on the child’s inner thighs.

These findings were reported to the Department of Human Services which in turn

contacted the Metropolitan Police Department. An investigation was begun.



       When questioned as to how the child could have been injured, the defendant

did not give definitive answers to either the day care worker or the interviewing

detective. Defendant stated that the child had fallen a month earlier and had blood

on her panties. She later conceded to the detective that she may have penetrated

the child’s vagina with her finger while disciplining her on that morning.



       The child was evaluated at Our Kids Center which evaluates children

suspected of being sexually abused. The examination revealed that the three-year-


                                          2
old female had an “acute hymenal vaginal tear” with bruising and bleeding. The



injury was caused by some type of penetration and would have been “painful” to the

child at the time of its occurrence.



       For reasons not apparent in the record, the defendant was not indicted until

August 1994. In April 1995, defendant was evaluated by a clinical psychologist. The

psychological records contained defendant’s explanation as to the occurrence.

Defendant stated that she was trying to dress the child on this particular morning, and

the child was crying and uncooperative. The defendant explained that, without

thinking, she tried to quieten the child by thrusting her middle finger into the child’s

vagina. Defendant’s family history indicated she did not have a healthy model for

parenting and disciplining.



       At trial the defendant testified that on the morning in question the child

continued to cry while the defendant was attempting to dress her.             After the

defendant spanked the child, the defendant was, in her own words, “totally out of

control” when she “stuck [her] finger in [the child’s] vagina.” The defendant stated

that she “was under a lot of stress, and I just lost it.” Defendant related that she

“couldn’t think,” and her actions were not intentional. She stressed that she was not

attempting to harm the child in any way, and there was absolutely no sexual motive

in her actions.



                                   JURY CHARGE



       The jury was charged as to the indicted offense of child rape and the lesser

offense of misdemeanor child abuse. During deliberations the jury asked the trial

court if it could reach a verdict of guilty on one of the charges and recommend

consideration of mitigating circumstances for the sentence. The trial court advised


                                           3
the jury that sentencing was not their function. The jury subsequently returned its

verdict of guilty of child rape.



                        THIS COURT’S ORIGINAL OPINION



       In our original opinion, this Court rejected defendant’s contentions that (1) the

evidence was insufficient to support her conviction; (2) her sentence constituted cruel

and unusual punishment; (3) there was an abuse of prosecutorial discretion; and (4)

she was denied the right to a speedy trial. However, we found plain error in the trial

court’s failure to charge aggravated child abuse as a lesser offense. Thus, we

remanded for a new trial.



                                       DOMINY



       The order of remand asks us to reconsider our opinion in light of State v.

Dominy, 6 S.W.3d 472 (Tenn. 1999). Dominy overruled State v. Trusty, 919 S.W.2d

305 (Tenn. 1996), to the extent that it recognized “lesser grade” offenses as distinct

from lesser included offenses and permitted convictions of “lesser grade” offenses

that were not lesser included offenses embraced by the indictment. 6 S.W.3d at

473-74. This Court relied upon Trusty in finding aggravated child abuse to be a

lesser offense of child rape. Since Trusty was subsequently overruled by Dominy,

we must re-examine the issue of lesser offenses.



       Dominy incorporates the test set forth in State v. Burns, 6 S.W.3d 453, 466-67

(Tenn. 1999), in determining lesser included offenses. 6 S.W.3d at 477. We must,

therefore, determine under Burns whether the trial court erred in failing to charge any

lesser included offenses other than misdemeanor child abuse.



                                       BURNS


                                           4
       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 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).

Burns, 6 S.W.3d at 466-67.



       Based upon the above test, we conclude that aggravated child abuse does not

meet either part (a), part (b) or part (c) of the Burns test as it relates to child rape.

However, we note that Burns also recognizes that some offenses are expressly

designated lesser included offenses by statute. Id. at 467, n. 12. In fact, Burns

specifically mentions the statutory provision of Tenn. Code Ann. § 39-15-401(d)

which provides that misdemeanor child abuse is a lesser included offense of any kind

of homicide, statutory assault, or sexual offense if the victim is a child and the

evidence supports the charge. Id. Thus, according to Burns, misdemeanor child

abuse is a lesser included offense of child rape.



       The aggravated child abuse statute, Tenn. Code Ann. § 39-15-402, does not

contain a comparable provision making it a lesser included offense of any kind of


                                            5
homicide, statutory assault or sexual offense involving a child. Since aggravated

child abuse is not expressly designated by statute as a lesser included offense and




does not meet part (a), part (b) or part (c) of the Burns test, we conclude aggravated

child abuse is not a lesser included offense of child rape.



                          AGGRAVATED SEXUAL BATTERY



       We must now determine, pursuant to Burns, whether the trial court should

have charged any other lesser included offenses. Child rape requires “unlawful

sexual penetration” of a child less than thirteen years of age. Tenn. Code Ann. § 39-

13-522(a). Aggravated sexual battery requires “unlawful sexual contact” with a child

less than thirteen years of age.         Tenn. Code Ann. § 39-13-504(a)(4).             Thus,

aggravated sexual battery establishes a less serious harm or risk of harm to the

victim under part (b) of the Burns test and is a lesser included offense of child rape.1



       We must now determine whether the trial court erred in failing to charge

aggravated sexual battery. Burns establishes a two-part analysis. Firstly, evidence

must exist that reasonable minds could accept as to the lesser included offense.

Burns, 6 S.W.3d at 469. Evidence must be viewed liberally in the light most favorable

to the existence of the lesser included offense. Id. Secondly, the evidence must be

legally sufficient to support a conviction for the lesser included offense. Id. We

conclude the trial court did not err in failing to charge aggravated sexual battery.



       Child rape has two essential elements: (1) unlawful sexual penetration; and

(2) a victim less than thirteen (13) years of age. Tenn. Code Ann. § 39-13-522(a).



       1
        It may also be that aggravated sexual battery meets part (a) of Burns as noted in the
concurring opinion. Resolution of this issue is unnecessary for the disposition of this appeal.

                                              6
It is undisputed the child was less than thirteen (13) years of age. It is further

undisputed, even according to the defendant’s own testimony, that the defendant

digitally penetrated the child’s vagina. Under these circumstances when all elements

of the greater offense are undisputed, the trial court did not err in failing to charge

aggravated sexual battery as a lesser included offense.



                                     CONCLUSION



       We are constrained to note that we find this result harsh under the unique

facts and circumstances of this case. Although the jury found the defendant guilty

of child rape, the jury was obviously concerned about punishment and desired to

recommend leniency in sentencing. Possible punishment was not charged to the

jury since counsel failed to make such a request prior to jury selection.2 An entire

sentence for child rape must be served undiminished by any sentence reduction

credits. Tenn. Code Ann. § 39-13-523(b). This was not required of aggravated

sexual battery at the time of this offense.3 When the jury during its deliberations

asked the trial court about sentencing, they were told not to consider sentencing for

fear that their verdict might be set aside by an appellate court. Although the jury was

given misdemeanor child abuse as a lesser offense, there was a huge gulf between

the only charged offenses of Class A felony child rape and misdemeanor child abuse.

This scenario is uncomfortably close to an “all or nothing” decision that was

condemned by Burns. 6 S.W.3d at 466.



       Even though the jury had limited options, we are unable to conclude the trial


       2
       The statute in effect at the time of trial authorized jury instructions on possible
punishment for the charged offenses if requested prior to jury selection. See Tenn. Code Ann.
§ 40-35-201(b)(1997). Such comments are forbidden in all trials occurring after May 18,
1998. See 1998 Public Acts, Chapter 1041, §§ 2, 3; Tenn. Code Ann. § 40-35-201(b) (Supp.
1999).
       3
         The one hundred percent (100%) statute for aggravated sexual battery did not apply
to an offense committed prior to July 1, 1995. See Tenn. Code Ann. § 40-35-501(i)(1),(2)(H).


                                             7
court erred in failing to charge aggravated sexual battery since all elements of the

greater offense were undisputed. In summary, we do not read Burns as requiring

instructions on lesser included offenses when the evidence undisputedly shows guilt

of a higher offense.



      We, therefore, AFFIRM the judgment of the trial court.




                                         JOE G. RILEY, JUDGE




CONCUR:




JAMES CURWOOD WITT, JR. JUDGE




JOE H. WALKER III, SPECIAL JUDGE




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