        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        MARCH SESSION , 1998           FILED
                                                      April 1, 1999
STATE OF TENNESSEE,        )    C.C.A. NO. 02C01-9709-CC-00341
                           )                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
      Appellee,            )
                           )
                           )    HENRY COUNTY
VS.                        )
                           )    HON. JULIAN P. GUINN
JAMES ROBERT FIELDS,       )    JUDGE
                           )
      Appe llant.          )    (Direct Appeal - Class B Misdemeanor
                           )    Assault)




FOR THE APPELLANT:              FOR THE APPELLEE:

TERRY J. LEONARD                JOHN KNOX WALKUP
9 North Co urt Square           Attorney General and Reporter
P. O. Box 957
Camden, TN 38320                PETER M. COUGHLAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243-0493

                                ROBERT RADFORD
                                District Attorney General
                                24th Judicial District
                                P. O. Box 686
                                Huntingdon, TN 38344



OPINION FILED ________________________

REVERSED AND DISMISSED

JERRY L. SMITH, JUDGE
                                                OPINION


         In November of 1996 , a Henry Coun ty grand jury indicted Appellant James

Robert Fields for one count of statutory rape. On February 26, 1997, a Henry

Coun ty jury acquitted Appe llant of th e statu tory rap e cha rge an d con victed h im

of Class B misdemeanor assault. After a sentencing hearing on March 10, 1997,

the trial court imposed a six-month sentence, with ninety days of continuous

confinement followed by three months of supervised probation.                                         Appellant

challenges both his conviction and his sentence, raising the following issues:

         1) whether the evidence is sufficient to support his conviction; and

         2) whether the trial court imposed an excessive sentence.

After a review o f the record , we revers e the judgment of the trial court and

dismiss the conv iction for ass ault.



                                                    FACTS




         A.D.1 testified that she first met Appellant and Lucas Bradley Taylor on

August 5, 1996, while she was drinking beer and smoking marijuana at the home

of Kevin Hilt. A.D. eventually left Hilt’s home and traveled with Appellant and

Taylor to Taylor’s residenc e. W hen they arrived at Taylor’s residence, Taylor

went inside and Appellant and A.D. remained in the car. A.D. testified Appellant

then a sked her for s ex, and she sa id noth ing in response. Appellant then lifted




         1
         The reco rd ind icate s tha t A.D . was four teen years old on Aug ust 5 , 199 6. It is th e polic y of this
Court to p rotect the id entity of child se x abus e victims to the exte nt the circu msta nces p erm it.




                                                        -2-
up A.D.’s shirt, unfastened her bra, unzipped her pants, and put his finger in her

vagina.




       A.D. testified that when Taylor returned, Appellant asked him to go back

in the residence. When Taylor went back in the residence, Appellant unzipped

A.D.’s pants again and put his finger back in her vagina. A.D. testified that she

did not sa y anything during this occurre nce.



       A.D. testified that Appellant then drove to a motel and paid for a room.

Appellant then asked A.D. for sex and becam e angry and left when she declined.

A.D. the n had s ex with T aylor.



       Lucas Bradley Taylor testified that on August 5, 1996, he and Appellant

went looking for marijuana. Their search eventually led them to the home of

Kevin Hilt, where they met A .D. Ap pellan t then d rove T aylor a nd A.D . to Ta ylor’s

residence in order to o btain som e cond oms. Taylor tes tified that on th e way to

his residenc e, Appellant told A.D. that “you didn’t come along on this ride for

nothing and your going to give u p some thing.”



       Taylor testified that when h e was unab le to find any co ndom s at his

residence, he got back in Appellant’s car and Appellant then drove to an

establishment where Taylor could purchase condoms. During this time, Taylor

saw that Ap pellan t had p laced his ha nd do wn A. D.’s pants. Taylor testified that

A.D. did n ot say or d o anythin g while A ppellant h ad his ha nd dow n her pa nts.




                                          -3-
        Taylor testified that shortly after these events, he entered an establishment

and purchased some condoms. Taylor then got back in Appellant’s vehicle, and

Appellant began driving to a m otel. Durin g this time, A ppella nt aga in plac ed his

hand down A.D.’s pants. Taylor testified that A.D. did not say or do anything

while Ap pellant ha d his han d down her pan ts.



        Taylor testified that Ap pellant then drove to a motel and secured a room.

Appellant then asked A.D . for sex, and A.D. de clined. Appellant b ecame angry

and left, an d A.D. th en had sex with T aylor.



        Detective William Vandiver of the Henry County Sheriff’s Department

testified that Appellant had made a written statement in which he admitted that

he had driven A.D. and T aylor to a place where Taylor could purchase condoms,

that he had placed his hand on A.D.’s leg while he was driving his vehicle, that

he took A.D. and Taylor to a motel and paid for a room, and tha t he aske d A.D.,

“Do you think yo u might give m e a dose o f that?”



                                              ANALY SIS




        Appellant claims that the evidence is insufficient to support his conviction

for Class B misdemeanor assault and that the trial cou rt erron eous ly imposed a

longer sentence than he deserves. However, we need not address these issues

because we hold that Appellant’s conviction must be reversed because he was

convicted of a crime for which he was not charged.2


        2
          This issue was not raised by the parties. The general rule is that appellate courts will not
consider issues that are not raised by the parties; however, plain error is an appropriate consideration for
an app ellate cour t whethe r proper ly assigned or not. State v. Walton, 958 S.W .2d 724, 7 27 (Te nn. 1997 ).

                                                    -4-
        The law is well-established in Tennessee that an indictment or

presentment must provide notice of the offense charged, an adequate basis for

the entry of a proper judgmen t, and suitable protec tion against dou ble jeopardy.

State v. Cleveland, 959 S.W .2d 548 , 552 (T enn. 19 97); State v. Trusty , 919

S.W.2d 305, 309 (Tenn. 1996); State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 199 1).

“As a result, a defendant cannot legally be convicted of an offense which is not

charged in the indictment or which is not a lesser offense embraced in the

indictme nt.” Cleveland, 959 S.W .2d at 552 ; see also Trusty, 919 S.W.2d at 310.

Because Appellant wa s indicted for statutory rape and not for Class B

misdemeanor assault, Appellant’s conviction must be reversed unless Class B

misdemeanor assault is either a lesser grade or class or lesser included offense

of statutory ra pe as a lleged in th e indictm ent. 3



        “A lesser ‘grade or class’ of offense is establishe d by the legislature and

is determined simply by looking at the offenses s et forth in a statutory chapter

and part.” Cleveland, 959 S.W.2d at 553. H ere, C lass B misd eme anor a ssau lt

is not a lesser grade or class of statutory rape. The legislature has included

Class B misdemeanor assa ult am ong th e “ass aultive o ffense s” set fo rth in

Tennessee Code Annotated sections 39-1 3-101 throug h -110, while statuto ry

rape is among the “sexual offenses” listed in Tennessee Code Annotated

sections 39-13-501 through -527. Therefore, Cla ss B m isdem eano r assa ult is



An error affecting “the substantial rights of an accused m ay be noticed at any time . . . where necessary
to do substantial justice.” Tenn. R. Crim. P. 52(b). This is the case here.

         3
           It is true that a defendant who affirmatively requests a particular jury instruction on an offense not
charged in the indictment, erroneously believing that the offense is a lesser included offense of the
charge d crim e, is deem ed to hav e cons ented to a n am endm ent of the in dictme nt. State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). However, there is no indication in the record that Appellant
affirmatively requested a jury instruction on the offense of Class B misdem eanor assault. W ith the record
completely silent as to Appellant’s position on charging the jury as to this offense, we cannot presume that
Appellan t reques ted an ins truction an d thereb y consen ted to an a men dme nt of the ind ictmen t.

                                                    -5-
clearly not a less er grade or class o f statutory rap e. See, e.g., id. (holding that

aggra vated assa ult is not a lesser grade or class of attempted aggravated rape

because aggravated assault is among the “assaultive offenses” while aggravated

rape is amo ng the “sexua l offenses”).



      The remaining question is whether Class B misdemeanor assault is a

lesser included offense of statutory rape as charged in the indictment.

“Generally, an offense qualifies as a lesser inc luded o ffense on ly if the elem ents

of the included offense are a subset of the elements of the charged offense and

only if the greater offense cannot be committed without also committing the

lesser offense.” Trusty, 919 S.W.2d at 310 (citing Schmuck v. United States, 489

U.S. 705, 716, 109 S.Ct. 1443, 1450–51, 103 L.Ed.2d 734 (1989)). “In other

words, the lesser offense may not require p roof of a ny elem ent no t includ ed in

the greater offens e as charge d in the indictme nt.” Id. at 311.



      It is clear that under the test set forth by Trusty, Class B misdemeanor

assa ult is not a lesser included offense of statutory rape as charged in the

indictment. The indictment in this case alleges:

      That [Appe llant] . . . did know ingly or intentionally have sexual penetration
      of [A.D.], a fourteen (14) year old female, and at the time [Appellant] was
      at least four (4) years older than [A .D.], an d did th ereby com mit the offense
      of STA TUT ORY RAP E, in violation of T.C.A . 39-13-5 06(a) . . . .

This indictment includes all of the elements of the crime of statutory rape as

defined by statute. See Tenn. Code Ann. § 39-13-506(a) (1997). The offense

of Class B misdemeanor assault occurs when a person “[i]ntentionally or

know ingly causes physical contact with another and a reasonable person would

regard the contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-


                                          -6-
13-101(a)(3) (1997). By its very nature, this offense is one that can only be

committed when the victim has not consented to the physical c ontact. See, e.g.,

State v. McKnight, 900 S.W.2d 36, 49 (Tenn. Crim. App. 1994) (holding that the

consent of the vic tim is a defense to the crime of assault). On the other hand, the

offense of statutory rape “contemplates circumstances in which the sexual

relations are adm ittedly cons ensua l.” State v. Ealey, 959 S.W.2d 605, 611

(Tenn. Crim. App. 1997). In fact, if the sexual penetration was n ot con sens ual,

the crime committed would be the offense of rape. See Tenn. Code Ann. § 39-

13-503(a)(2) (1997). Because statutory rape is committed when the sexual

penetration is consensual and Class B mis dem eano r assa ult is committed when

the physical contact is nonconsensual, it is clear that the offense of statutory rape

can be committed without also committing the offense of Class B misdemeanor

assau lt. Therefore, to use the words o f Trusty, Class B misd eme anor a ssau lt is

not a lesser in cluded offense of statutory rape because statutory rape (the

greater offense) can be committed without also committing Class B misdemeanor

assault (the lesse r offense).



      In conclusion, Appellant was convicted and sentenced for an offense for

which he was never charged. Under our law, such a conviction may not stand.

The judgm ent of the tria l court is reversed and Appellant’s conviction for Class

B misd emea nor ass ault is dism issed.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE




                                          -7-
CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE 4


___________________________________
GARY R. WADE, JUDGE




        4
         The H onorab le Joe B. J ones d ied May 1 , 1998, an d did not pa rticipate in this o pinion. W e
acknowledge his faithful service to the Tennessee Court of Criminal Appeals, both as our colleague and
as our Presiding Judge.

                                                  -8-
