                                                           FILED
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE,
                              AT NASHVILLE
                                                March 20, 2000

                                                          Cecil Crowson, Jr.
STATE OF TENNESSEE,
                                                         Appellate Court Clerk
              Appellee,

V                                               No. M2000-00304-CCA-RM-CD
                                                Davidson County
ROBBIE JAMES,
                    Appellant.



                             CONCURRING OPINION



             I concur in Judge Riley’s thoughtful opinion. In this separate

opinion, I wish to address aspects of the issue of the lesser-included offenses of

child rape. I agree that, under the “(b)” rubric of Burns, aggravated sexual

battery could be a lesser-included offense of rape of a child; however, in my

view, it is not necessary to analyze the issue under (b) because aggravated

sexual battery and sexual battery are lesser-included offenses under rubric (a).

See State v. Brenda Anne Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999).



             In Burns, our supreme court expressed dismay that, under the

statutory elements approach of “Howard, [v. State, 578 S.W.2d 83 (Tenn. 1976)],

technically a defendant [in a rape case] could not get an instruction on sexual

battery, because that offense requires the additional element that the touching

be for the purpose of sexual arousal or gratification.” Burns, 6 S.W.3d at 466.

The court’s observation is based upon the statutory definition of “sexual contact,”

one of the elements of sexual battery. Id.; see Tenn. Code Ann. § 39-13-504(a),

-505(a) (1997). Sexual contact

      includes the intentional touching of the victim’s, the defendant’s, or
      any other person’s intimate parts, or the intentional touching of the
      clothing covering the immediate area of the victim’s, the defendant’s or any
      other person’s intimate parts, if that intentional touching can be
      reasonably construed as being for the purpose of sexual arousal or

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      gratification.


Tenn. Code Ann. § 39-13-501(6) (1997) (emphasis added).



               I infer from the supreme court’s mention of the rape-sexual battery

issue that it intended to fashion an analysis formula which would assure that the

sexual battery offenses would be lesser-included offenses of rape. If the

definition of “sexual contact” truly requires in all cases that the touching be for

the purpose of sexual arousal or gratification, then I agree that the sexual battery

offenses require an element in addition to the elements of rape. Under this

understanding of the meaning of “sexual contact,” the majority is correct in

holding that aggravated sexual battery is a lesser-included offense of rape via

Burns’s (b) category. In my view, the risk of harm to the victim is less in the case

of mere sexual contact than it is in the case of penetration.



               That said, however, I do not subscribe to this interpretation of

sexual contact which always requires that the touching be for purposes of sexual

arousal or gratification. First, I note that, unlike six of the eight definitions of

sexual terms contained within Code section 39-13-501, subsection (6) does not

say what “sexual contact” means. Compare Tenn. Code Ann. § 39-13-501(1),

(3), (4), (5), (7), (8) (1997) (“means”) with Tenn. Code Ann. § 39-13-501(2), (6)

(1997) (“includes”). As in the case of “intimate parts” in subsection (2), it merely

says what sexual contact includes. See Tenn. Code Ann. § 39-13-501(2)

(1997). More importantly, it makes no sense, in the context of contact that is

sexual, to require that the touching of the actual intimate parts be for the

purpose of sexual arousal or gratification. I conclude that the requirement of a

purpose of sexual arousal or gratification refers only to the second clause in the

definition, the touching of “clothing covering the immediate area” of actual

intimate parts. See Tenn. Code Ann. § 39-13-501(6) (1997). According to the

definition, it is “that . . . touching” which requires the purpose of sexual arousal or

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gratification. Id. (emphasis added). Thus, it is only when the touching is not of

an actual intimate part of the anatomy, but rather of the clothing covering the

intimate part, that the statute requires something more – “the purpose of sexual

arousal or gratification” – to constitute the element of sexual contact.



                Under this view of sexual contact and hence the sexual battery

offenses, the sexual battery offenses do not contain an element in addition to the

offending touching of actual intimate parts which, for purposes of rape, is the act

of penetration. In this scenario, I believe the elements of each of the sexual

battery offenses are a subset of the elements of child rape as alleged in the

indictment. Compare Tenn. Code Ann. § 39-13-522(a) (1997) (“Rape of a child

is the unlawful sexual penetration of a victim . . . if the victim is less than thirteen

(13) years of age.”) with Tenn. Code Ann. § 39-13-504(a) (1997) (“Aggravated

sexual battery is unlawful sexual contact with a victim . . . accompanied by any

one of the following circumstances . . . (4) The victim is less than thirteen (13)

years of age.”); Tenn. Code Ann. § 39-13-505(a) (1997) (“Sexual battery is

unlawful sexual contact with a victim . . . accompanied by any one of the

following circumstances . . . (2) the sexual contact is accomplished without the

consent of the victim . . . .”).



               In Burns, the supreme court points out that the regimen used to

determine lesser-included offenses is narrower than that used in the Model

Penal Code “in that the statutory elements remain the focus of the inquiry.”

Burns, 6 S.W.3d at 467 (emphasis added). I believe that such a focus in the

present case results in a determination that the sexual battery offenses are

lesser-included offenses of child rape as alleged in the indictment. See State v.

Bolin, 922 S.W.2d 870, 875 (Tenn. 1996) (aggravated sexual battery conviction

held proper as lesser-included offense of aggravated rape alleged in indictment);

State v. Banes, 874 S.W.2d 73, 79 (Tenn. Crim. App. 1993) (aggravated sexual


                                           3
battery is lesser-included offense of aggravated rape); State v. Morris, 788

S.W.2d 820, 824 (Tenn. Crim. App. 1990) (aggravated sexual battery is lesser-

included offense of aggravated rape). But see State v. Timothy R. Bowles v.

State, No. 01C01-9711-CR-00547, slip op. at 15 (Tenn. Crim. App., Nashville,

Apr. 20, 1999) (sexual battery is not a lesser included offense of aggravated

rape), perm. app. granted (Tenn. Feb. 22, 2000); State v. Tracy Stewart Mullins,

No. 01C01-9803-CR-00115, slip op. at 3-4 (Tenn. Crim. App., Nashville, Jan. 21,

1999) (sexual battery is not lesser-included offense of aggravated rape).



              Having concluded that the sexual battery offenses are lesser-

included offenses of child rape in the present case under the Burns “(a)” rubric, I

concur with the majority that, via Burns, the evidence of record does not justify

the lesser-included offense instruction. See Burns, 6 S.W.3d at 467. In

determining whether a lesser offense should be charged, the trial court must

engage in a two-part inquiry. First, it “must determine whether any evidence

exists that reasonable minds could accept as to the lesser-included offense.” Id.

at 469. Such determination is made by examining the evidence in the light most

favorable to the existence of the lesser-included offense. Id. Then, “the trial

court must determine if the evidence, viewed in this light, is legally sufficient to

support a conviction for the lesser-included offense.” Id.



              It follows from the Burns “subset” approach to a statutory elements

analysis for determining the existence of lesser-included offenses that, if a

defendant commits an offense, he or she ipso facto and by definition commits all

lesser included offenses. However, if the application of this truism is alone

sufficient to justify an instruction on a lesser-included offense, there would have

been no need for a justification analysis in Burns, and there would have been no

need for that latter analysis to have two steps. I infer from the presence and

explanation of the Burns two-step justification analysis that, when the trial court


                                          4
undertakes the first step to determine if evidence exists by which reasonable

minds could find the commission of the lesser-included offense, it must

determine whether there is evidence of the lesser offense other than the very

same evidence which supports the greater offense.



              This interpretation comports with pre-Burns Tennessee law. See,

e.g., State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999) (“Failure to instruct is

not error where the record clearly shows that the defendant was guilty of the

greater offense and the record is devoid of any evidence permitting an inference

of guilt of the lesser offense.”); State v. Vann, 976 S.W.2d 93, 110 (Tenn. 1998),

cert. denied,—S.W.—, 119 S.Ct. 1467 (1999); State v. Trusty, 919 S.W.2d 305

(Tenn. 1996), overruled on other grounds, State v. Dominy, 6 S.W.2d 472, 474 -

75 (Tenn. 1999); State v. King, 718 S.W.2d 241, 245 (Tenn. 1986). Indeed, in

Burns our supreme court relied in part upon Langford and Trusty to support its

formulation of a two-step justification analysis. See Burns, 6 S.W.3d at 469.

These and similar cases support the proposition that there is no justification for

giving the charge on the lesser offense if there is no evidence that reasonable

minds could accept as to the lesser offense, as opposed to the greater.



              In the present case, the evidence demonstrates that the defendant

committed child rape, and there is no other evidence that she committed any

lesser offense. My view differs from the majority only in that I would analyze the

question of lesser included offenses under Burns’s (a) rubric.


                                          _______________________________
                                          JAMES CURWOOD WITT, JR., JUDGE




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