           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                         FILED
                                  AT KNOXVILLE                           March 17, 2000

                                                                       Cecil Crowson, Jr.
                           FEBRUARY 2000 SESSION                      Appellate Court Clerk




STATE OF TENNESSEE,                     )      NO. E1999-00274-CCA-R3-CD
                                        )
             Appellee,                  )
                                        )      BLOUNT COUNTY
V.                                      )
                                        )
                                        )      HON . D. KEL LY TH OM AS, JR.
DOUGLAS BRYAN BORUFF,                   )
                                        )
             Appe llant.                )      (CHILD RAPE )




                           CONCURRING OPINION


             W hile I concur with Judge Riley’s opinion, I write separately to point out

that I disagree with Judge Witt’s concurring opinion wherein he states that

aggravated sexual battery and sexual battery are lesser-included offenses of rape

of a child under the “part (a)” test of State v. Burns, 6 S.W.3d 453 (Tenn . 1999). In

Burns, the suprem e court noted that since sexual battery (and I note also aggravated

sexual battery) requires proof that the unlawful touching be for the purpose of

“sexual arousal or gratification,” Tenn. Code Ann. §§ 39-13-501(6); 39-13-504;

39-13-505 (1997), it contains an additional element that does not exist in rape.

Burns, 6 S.W.3d at 466. Rape of a child, as defined in section 39-13-522, also does

not require proof that the unlawful contact be for sexual arousal or gratification.

Therefore, I feel that under Burns, sexua l battery and a ggrav ated s exual battery

would be a lesser-included offense of rape of a child pursua nt to the “part (b)” test.
             Furthermore, I think it prude nt to no te that in the eve nt the tria l court in

this case had charged aggravated sexual battery or sexual battery as lesser-included

offenses, which would have been error under our ruling in this case, and the jury had

convicted the defendant of either aggravated sexual battery or sexual battery, that

the erroneous instruction to the jury and the resultant con viction of the lesser-

included offense would have been harmless error and would not require a rever sal.

In State v. Bolin, 922 S.W.2d 870, 875 (Tenn. 1996), our supreme court relied upon

State v. Mellons, 557 S.W.2d 497, 499 (Tenn . 1977); Reag an v. State , 155 Tenn.

397, 293 S.W. 755 (1927); and Craig v. S tate, 524 S.W .2d 504, 506 (Tenn. Crim.

App. 1974), and held:


      It is well-s ettled th at whe n a jury is instruc ted as to a lesser-included
      offense of that charge in the indictment, a conviction of the lesser-
      included offense may stand, even if the technical requirements of that
      offense are not present, if the evidence supports the greater offense.

Bolin, 922 S.W.2d at 875.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge




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