         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     April 18, 2006 Session

              STATE OF TENNESSEE v. CHARLES L. WILLIAMS

                     Appeal from the Criminal Court for Davidson County
                        No. 2003-D-3000       Monte Watkins, Judge



                   No. M2005-00836-CCA-R3-CD - Filed November 29, 2006



JOSEPH M. TIPTON , J., concurring and dissenting.

        I concur in the results and most of the reasoning in the majority opinion. In this regard, I
view the prosecutor’s improper statements to be a matter of serious concern. I disagree, however,
with the opinion’s conclusion that the trial court erred by instructing the jury as to a reckless mental
state regarding rape of a child.

         As the opinion notes, this court has held that sexual penetration relates to both nature of the
conduct and result of the conduct mental state element. See State v. Chester Wayne Walters, No.
M2003-03019-CCA-R3-CD, White County, slip op. at 14 (Tenn. Crim. App. Nov. 30, 2004), perm.
app.denied (Tenn. Mar. 21, 2005). In fact, the majority opinion provides the statutory definition of
reckless, which includes application to the result of conduct, and then states that unlawful sexual
penetration, “a nature of conduct and result of conduct element, may be satisfied only by the culpable
mental states of ‘intentional’ or ‘knowing’ -- and not by a mens rea of ‘reckless.’” I think this
conclusion actually contradicts the statutory definition of reckless. In any event, I would hold that
the trial court did not err in instructing the jury regarding all three mental states applying to rape of
a child. I am authorized to say that Judge Williams joins in this opinion.



                                                        ____________________________________
                                                        JOSEPH M. TIPTON, JUDGE
