         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    March 20, 2001 Session

                STATE OF TENNESSEE v. MICHAEL A. MILLER

               Direct Appeal from the Criminal Court for Cumberland County
                             No. 5417    Lillie Ann Sells, Judge



                                  No. E2000-00930-CCA-R3-CD
                                          May 8, 2001

The defendant was convicted in the Cumberland County Criminal Court of aggravated sexual battery
of a seven-year-old boy. Following the trial court’s denial of his motion for a new trial, the
defendant filed an appeal as of right to this court, raising three issues: (1) whether the evidence was
sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated
sexual battery; (2) whether the trial court abused its discretion in denying his motion for a new trial,
based upon newly discovered evidence; and (3) whether the trial court erred in failing to instruct the
jury on lesser-included offenses. Based upon our review, we affirm the judgment of the trial court.


     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY,
JJ., joined.

John B. Nisbet, III; David N. Brady, District Public Defender; and Cynthia Lyons, Assistant District
Public Defender, Cookeville, Tennessee (on appeal) and Anthony Turner, Crossville, Tennessee (at
trial) for the appellant, Michael A. Miller.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        A Cumberland County Criminal Court jury convicted the defendant, twenty-nine-year-old
Michael A. Miller, of aggravated sexual battery of a seven-year-old boy, a Class B felony, and
imposed a $10,000 fine. The trial court sentenced him to nine years, at 100% as a violent offender,
in the Department of Correction. Following the trial court’s denial of his motion for a new trial, the
defendant filed a timely appeal to this court, presenting the following three issues for our review:
                   I.        Whether the evidence was sufficient to find the defendant
                             guilty of aggravated sexual battery beyond a reasonable
                             doubt;

                   II.       Whether the trial court abused its discretion in failing to grant
                             the defendant’s motion for a new trial, based upon newly
                             discovered evidence; and

                   III.      Whether the trial court erred in failing to instruct the jury on
                             lesser-included offenses.

        Based upon our review of the record and of applicable law, we affirm the judgment of the
trial court.

                                                          FACTS

         On March 8, 1999, the Cumberland County Grand Jury indicted the defendant, charging him
with aggravated sexual battery of the seven-year-old victim, C.W.,1 for his actions while visiting in
the victim’s home on the evening of December 22, 1998. Trial was held on November 10, 1999.
The victim’s father, Jerry Lee Watchorn, testified that the defendant, with whom his family had
become acquainted through church, had been a frequent visitor to their home, regularly dropping in
for supper, or to do his laundry. He said that the defendant had offered, “at least six or seven times”
to let their two youngest children, C.W. and his six-year-old brother Darius, spend the night at his
apartment as a reward for doing well in school, but that he had refused, feeling uncomfortable about
having the boys stay with anyone other than family.

         Watchorn testified that on the evening of December 22, 1998, he and his wife had taken their
daughter to Knoxville for medical treatment, leaving the victim and Darius in the care of their older
stepbrother, seventeen-year-old Matthew Erickson (“Matt”). When they returned, the younger
children were in bed, and Matt was watching television. Nothing appeared unusual. Three days
later, however, C.W. told him of what had occurred during their absence, and Watchorn notified the
authorities. Watchorn said that he had never known of either the victim or Darius engaging in any
inappropriate acts with each other.

        The victim testified that the defendant had stopped by his home after his parents and sister
had left the house. Matt told him and Darius to go to bed, and he went upstairs and lay down on his
bunk bed, in the bedroom that he shared with his brothers. After he was in bed, the defendant came
into the room and touched the “front part of [his] privates,” the part of his anatomy that he “used the
bathroom out of.” The victim said that the touching occurred “below” the covers, his pajamas, and
his underwear, and that the defendant had “licked it.” The defendant had continued the touching



       1
           It is the policy of this court to refer to minor victims of sexual abuse o nly by their initials.

                                                             -2-
until he heard Matt coming up the stairs to the bedroom. The victim said that the defendant had told
him not to tell his parents, but that he had eventually told his sister, and then his mother and father.

       On cross-examination, the victim acknowledged that the defendant had played games with
him and his younger brother whenever he came to the house. He said that he had been covered with
a blanket that night, and the defendant had not tried to remove his clothing. The victim had no
memory of having ever walked in on Matt and his girlfriend while they were kissing or touching in
the bedroom.

       Matt testified that the defendant had been in the habit of dropping by their house at least once
a week. He had shown up at about 7:00 on the evening of December 22, 1998, while Matt was home
alone with his two younger brothers. They had all sat and watched movies until about 7:30 p.m.,
when Matt told his brothers to go to bed. Shortly after the boys had gone upstairs, the defendant had
followed them up, stating that he was going to tuck them in. Approximately thirty minutes later,
Matt went upstairs because he could still hear them moving around in the room.

        When Matt entered the bedroom, Darius was in his top bunk, and the defendant and C.W.
were on a foldout bed or mattress on the floor. He testified that “[t]here was a cover over [the
defendant] and my younger brother [C.W.]. [The defendant] popped up and said, ‘Oh God, we are
in trouble.’” Assuming that the defendant was merely referring to the fact that “the boys were still
up and he was up there fooling around with them,” Matt thought nothing of the defendant’s
statement, and lay down on his bed. The defendant “came over,” “hopped in [his] bed with [him],”
and sat down to talk, while C.W. got up and into his bottom bunk. According to Matt, the defendant
“talked about the fact that he had come over to see how we were doing and he kind of made the
comment, you know, that I was kind of a big boy, and then he made the comment about what would
it take to get a guy like me.” After making this remark, which Matt found inappropriate, the
defendant went back to small talk. A minute or two later, he and the defendant got up and went
downstairs, and the defendant left.

        On cross-examination, Matt admitted that he and the defendant had been “pretty good
friends” before the incident, and that they had sometimes discussed “teenaged things” such as
girlfriends. The defendant had often been at their home at bedtime, and there was nothing unusual
about him going upstairs to tuck the boys into bed. Matt testified that the light of the bathroom
adjoining the boys’ bedroom was on as he went upstairs, and the bedroom door was open. The
defendant had been clothed. He had noticed nothing unusual about either the defendant’s or C.W.’s
appearance when they had emerged from the covers.

        Matt acknowledged that, prior to the incident, his younger brothers had, at times, “peek[ed]
around the corner” at him and his girlfriend when they were together in the bedroom, “to see what
[they] were doing.” He denied, however, having ever had sexual relations with his girlfriend in the
bedroom, or having confided to the defendant that the victim had caught him engaging in sexual
activity with her. On redirect, he testified that he had never seen the victim engage in any
inappropriate activity with Darius.


                                                  -3-
         Officer Mark Jeffrey Rosser, a detective lieutenant with the Crossville Police Department,
testified that he had interviewed the defendant as part of his investigation of the case. After being
informed of his rights, and signing a waiver of rights form, the defendant provided the following
written statement, which Officer Rosser read at the request of the State:

               Me and the kids went upstairs. Matt stayed downstairs. Both kids
               were on the bottom bed. I was on the bed beside [C.W.]. My head
               was on his pillow and we were talking about things in general and
               just laughing and telling jokes et cetera. When [C.W.] reached out
               and grabbed his brother’s crotch or private parts, I immediately
               calmed him down and said not to do that. Even Darius did as well.
               I kept telling Darius to get on the top bed. He always sleeps up there.
               He says that he doesn’t anymore. So, he stayed on the bottom with
               [C.W.]. Darius and [C.W.] were picking at each other as they
               normally do. [C.W.] once again grabbed his brother’s private parts.
               I once again told him not to do that, that it was ugly and he shouldn’t
               do that. I suppose by now thirty minutes had passed. I thought it was
               strange that Matt hadn’t been upstairs yet. I knew it was getting late
               and the boys should be asleep. So, I moved to the center of the room
               on the floor. There was a fold out cushion on the bed, so I laid there.
               I remember it being cold on the floor. Within minutes, the boys were
               on the floor with me. They brought blankets and pillows et cetera.
               It was just seconds until Darius was up around my neck and I was
               holding him like I had many times before. Then, [C.W.] said I loved
               Darius more than I did him, so [C.W.] pushed him off and got up
               around my neck and I held him for a minute or two. When Darius got
               back around my neck, then [C.W.] pushed him off again and clamped
               back around my neck. As I was holding him at this time, he began to
               move further down my body closer to my legs, but I still didn’t think
               anything was wrong. He then moved further down and in the process
               he started licking or kissing on my chest. Then, he started to lift my
               shirt. By this point, I knew something was wrong. I thought what is
               he doing and how does he know these things at his age. I then
               immediately pushed him up into the air and put my legs together to
               my chest to get some distance between the both of us. I tried to take
               his attention elsewhere. While he was there, I started playing like it
               was an airplane. At that point, Darius was beside me on the floor and
               said he wanted to ride the airplane. Then, Matt walked in and I said,
               “Oh boys, we are in trouble.” I knew Matt would be mad and I didn’t
               want him to spank them. He does really hard. They were already
               supposed to be in bed. He came in and got on his bed after turning on
               the light in the bedroom. Then, I got on his bed and me and him
               talked about his girlfriend and we joked and cut up just as we had


                                                -4-
                   done many, many times before all in good fun. Then, we went
                   downstairs and I left shortly thereafter. This is all I can remember.2

        At trial, the defendant took the stand in his own behalf, stating that he had visited in the
Watchorn family home once or twice a week, and had tried to build a relationship with “each and
every one of them in the family.” He often played games with the younger boys, or helped them with
their homework. He and Matt had become friends, and had discussed “teen things or whatever,”
things that Matt knew that the defendant would not tell his parents, because “you can tell things to
like big brothers that you can’t tell to your parents or whatever.” The defendant said that it was
during one of these conversations that Matt told him that he thought his younger brothers had
“caught his girlfriend giving oral sex to him.” The defendant stated that during his interactions with
the family, he had noticed that the older children were “authoritative over the other children,” and
that he had once seen Matt spank Darius, “pick[ing] him up off the floor with his hands.”

         The defendant testified that he had gone to the Watchorn home around 7:00 p.m. on
December 22, 1998, after first stopping by the beauty salon where Mrs. Watchorn worked, to tell her
that he would check on the children while she and her husband were in Knoxville with their
daughter. When he arrived at the home, he sat for approximately fifteen minutes watching television
with Matt and the younger boys. Matt sent the younger boys to bed, and he followed approximately
ten minutes later in order to tuck them into bed. In the bedroom, where he found both boys in the
bottom bunk, he lay on the floor beside the bunk bed, with his head on C.W.’s pillow. Placing his
hand on C.W.’s chest, he talked to him about school and “things in general.” As they talked, C.W.
kept “bugging his brother,” twice grabbing at Darius’s crotch. Both times, the defendant told him
to stop, and that it was “ugly.” Realizing that the boys were not going to sleep, the defendant moved
to a foldout futon bed in the middle of the floor. Both boys soon joined him on the futon, with C.W.
on one side and Darius on the other. The defendant described what ensued, as the boys began vying
for his attention:

                            At that point, that is when Darius got up around my neck. Of
                   course, he had done that many times before. Like when I would be
                   sitting there beside him, he would crawl all the way up to get to me
                   and [C.W.] would be sitting over here on this leg. That is just the
                   way they are to me. [C.W.] said, “Oh, you love him more than you
                   do me.” I said, “No, I don’t.” So, I got [C.W.] and I hugged him.
                   This went on for a few minutes or whatever, you know, that little
                   sibling rival [sic]. So, [C.W.] . . . I don’t know. It was like he got
                   agitated, like he was getting upset. So, he gets up on top of me. But
                   even at that point, it is wasn’t [sic] anything offensive, or I didn’t feel
                   that it was offensive because I had no reason to. Then, of course,
                   Darius was laying [sic] there beside me. [C.W.] started to do things


         2
          There are minor varia tions betwee n the statemen t as written and a s it is reprodu ced in the tran script from its
being read to the jury.

                                                             -5-
               that I knew that . . . It was like, “Oh God, this is not what I need to
               do.”

        The defendant said that Matt walked into the room just as he had pushed the victim up and
away from his body into an airplane ride on his shins. He got the victim off him and said, “Oh God,
kids, we are in trouble,” knowing that Matt would be upset that the boys were not in bed. He jumped
up and lay down on Matt’s bed, Matt jumped over him and got into bed, and the boys got up and into
their bed. He and Matt then sat for a while, talking and joking and kidding each other, as they often
did. He explained that his comment about what would it take to get a guy like Matt had been a joke,
made in the context of talk about Matt’s girlfriend and dating. After talking about ten minutes, he
and Matt got up and went downstairs. He left shortly thereafter.

        The defendant stated that he had later run into Mrs. Watchorn and her daughter at the mall,
but that they had refused to speak to him. He called their home and the salon, to have them hang up
on him. He went to their house, where Matt met him at the front door and told him of the victim’s
accusations. The defendant testified that he had never asked that the victim and Darius be allowed
to spend the night at his apartment. Instead, he had volunteered to babysit the boys at their house,
with their older siblings present, so that their parents could have a night alone together.

         On cross-examination, however, the defendant admitted that he had told the younger boys
that they could come spend the night at his apartment as a reward for keeping their room clean, if
their father agreed. He acknowledged that he had said nothing, in his statements to police, of Matt’s
revelation that the victim had caught him and his girlfriend engaging in sexual activity. He said that
he had not thought it relevant. He had not reported Matt’s spanking of Darius to authorities, despite
his belief that it had constituted abuse, because he had not wanted to get involved. He had not told
Matt or his parents of the victim’s grabbing at Darius’s crotch, because in his experience that kind
of behavior was common among children their age. He had not told Matt about the victim’s lifting
of his shirt, and kissing and licking of his chest. When asked if he was testifying that the victim, a
“little boy,” had molested him, he answered “yes.” He denied that he had ever touched the victim’s
penis, or engaged in any other inappropriate contact.

       On redirect, the defendant explained why he had not told the victim’s family of the victim’s
alleged inappropriate behavior that evening:

                       The reason why I didn’t go to Jerry and his wife was because
               I didn’t want them to feel different toward me, or they may have said
               just that I had done this or whatever. That is why I went to my
               family. I said something is going on in this home. Something has
               happened to these children.


      Following deliberations, the jury found the defendant guilty of aggravated sexual battery, and
imposed a $10,000 fine. The trial court sentenced him to nine years in the Department of Correction.


                                                 -6-
The defendant filed a motion for a new trial, based in part on newly discovered evidence. This
evidence consisted of testimony by the defendant’s ten-year-old niece and a school friend that, after
the trial, the victim had laughed at the niece, saying “Ha, ha, ha, ha, your uncle is in jail,” and
testimony by the niece that she had asked the victim, “Is this true?” and that he had answered, “No,
none of this is true.” Finding that the evidence was not material, and would not have changed the
outcome of the trial, the trial court denied the motion. The defendant filed a timely appeal to this
court.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

         The defendant contends that the evidence presented at trial was insufficient as a matter of law
for the jury to find him guilty of aggravated sexual battery beyond a reasonable doubt. Specifically,
he argues that no proof was presented at trial to show that he touched the victim for the purpose of
sexual arousal or gratification, a necessary element to the offense of aggravated sexual battery. In
response, the State argues that the jury, using its common knowledge and experience, could
reasonably infer that the defendant’s fondling and licking of the victim’s penis was for the purpose
of sexual arousal or gratification.

         Our standard of review when the sufficiency of the convicting evidence is challenged on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the offense charged beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992). All questions involving the
credibility of the witnesses in this case, the weight and value to be given the evidence, and all factual
issues are resolved by the jury, as the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987). A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the
burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

        Aggravated sexual battery is defined in Tennessee Code Annotated Section 39-13-504(a) as
“unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied
by any of the following circumstances . . . (4) [t]he victim is less than thirteen (13) years of age.”
“Sexual contact,” as defined in Tennessee Code Annotated Section 39-13-501(6), includes “the
intentional touching of the victim’s . . . intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification[.]” A person “acts intentionally
with respect to the nature of the conduct or to a result of the conduct when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-
11-302(a) (1997).




                                                  -7-
        Taken in the light most favorable to the State, the evidence in this case, in the form of direct
testimony offered by the victim, showed that the defendant touched and licked the victim’s penis.
The victim testified that the defendant began touching him approximately five minutes after entering
the bedroom, where he was alone with his six-year-old brother, and that he continued the touching
until he heard the victim’s older brother coming up the stairs. The victim further testified that the
defendant told him not to tell his parents about the activity. Further evidence offered at trial showed
that the defendant knew that the victim’s parents were out of town for the evening, and that he
offered to go alone to tuck the children into bed while their older brother stayed downstairs to watch
television. Given the nature of the contact, with the defendant fondling and licking the victim’s
penis, and the circumstances surrounding the encounter, with the victim’s parents away from home,
the defendant abruptly breaking off the encounter upon hearing the victim’s older brother coming
up the stairs, and the defendant’s instructions to the victim not to tell his parents what had occurred,
the jury could reasonably construe that the defendant intentionally touched the victim’s penis for the
purpose of sexual arousal or gratification. See State v. Hayes, 899 S.W.2d 175, 180 (Tenn. Crim.
App. 1995) (noting that intent in sexual battery cases is often proved by circumstantial evidence,
including conditions under which the touching occurred); see also State v. Meeks, 876 S.W.2d 121,
131 (Tenn. Crim. App. 1993) (“We recognize that jurors may use their common knowledge and
experience in making reasonable inferences from evidence.”). Thus, we conclude that the evidence
was sufficient for a rational trier of fact to find the defendant guilty of aggravated sexual battery
beyond a reasonable doubt.

                               II. Denial of Motion for New Trial

        Next, the defendant contends that the trial court abused its discretion in denying his motion
for a new trial based on newly discovered evidence that after the trial, the victim taunted the
defendant’s niece at school, saying “Ha, ha, ha, ha, your uncle is in jail,” and “none of this is true.”
The defendant argues that this evidence was material, and would have likely changed the jury’s
verdict if it had been offered at trial. The State disagrees, arguing that the trial court acted within
its discretion in denying the motion, based on its findings that the evidence was not material and
would not have changed the outcome of the trial.

       When a defendant seeks a new trial based on newly discovered evidence, he must show (1)
reasonable diligence in seeking the newly discovered evidence; (2) the materiality of the evidence;
and (3) that the evidence would likely change the result of the trial. See State v. Nichols, 877
S.W.2d 722, 737 (Tenn. 1994) (citing State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983)).
Whether or not to grant a new trial based on newly discovered evidence, however, lies within the
sound discretion of the trial court. See State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App.
1997), perm. to appeal denied (Tenn. 1998) (citing Hawkins v. State, 220 Tenn. 383, 417 S.W.2d
774, 778 (1967)). We review this issue, therefore, for an abuse of discretion.

       At the hearing on his motion for a new trial, the defendant presented the testimony of two
fourth grade classmates who attended the same school as the victim. Lekeshia Martin, the
defendant’s ten-year-old niece, testified that she was in the fourth grade at the same school where


                                                  -8-
the victim, a third grader, “sat below” her in gym during “bus duty.” One day in gym, she said the
victim had teased her, laughing and saying, “Ha, ha, ha, ha, your uncle is in jail,” and “none of this
is true.” On cross-examination, however, Lekeshia revealed that the two statements had occurred
at different times, with the victim laughing and saying “Ha, ha, ha, ha, your uncle is in jail”one day,
and “No, none of this is true,” the following day, after she asked him either, “Is all this true?” or “Is
all that true about my uncle?”

        The defendant’s second witness, nine-year-old Kelly Brumbalough, testified that she was
friends with Lekeshia and had played with the victim. She said that she had overhead the victim
teasing Lekeshia, laughing and saying, “Ha, ha, your uncle is in jail.” She had not heard the victim
speak to Lekeshia again.

          Considering and rejecting the above testimony as grounds for a new trial, the trial court
stated:

                         And the reason the Court finds that it doesn’t even meet the
                 level of material evidence is because the statement by the child that
                 the victim said, “Ha, ha, ha, your uncle is in jail or in prison” really
                 has nothing to do with any material issue in this case.

                          The statement that she said that she asked him, “Is it true?”
                 And he said, “No, it’s not true.” What does that mean? Is what true?
                 This witness didn’t testify about what was true. She said, “Is all of
                 this true?” And he said, “No, none of this is true”and started laughing.

                         I don’t even find that that is material evidence in this case.
                 Even if some Court somewhere does find it to be material, I find that
                 this evidence would not have changed the verdict in this case had the
                 jury heard this testimony and it had been used to contradict or attempt
                 to discredit the victim in this case.

         “When it appears that the newly discovered evidence can have no other effect than to
‘discredit the testimony of a witness at the original trial, contradict a witness’ statements or impeach
a witness,’ the trial court should not order a new trial ‘unless the testimony of the witness who is
sought to be impeached was so important to the issue, and the evidence impeaching the witness so
strong and convincing that a different result at trial would necessarily follow.’” Caldwell, 977
S.W.2d at 117 (quoting State v. Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App. 1985)). We agree
with the trial court that the newly discovered evidence in this case, consisting merely of the
defendant’s niece’s testimony regarding a taunting remark made by the victim to her, followed the
next day by his ambiguous answer to her ambiguous question, was not material, and that it would
not have changed the outcome of the trial. We conclude, therefore, that the trial court did not abuse
its discretion in denying the defendant’s motion for a new trial.



                                                   -9-
                III. Trial Court’s Failure to Instruct Jury on Lesser-included Offenses

         The final issue raised by the defendant is whether the trial court erred in failing to instruct
the jury on the proper lesser-included offenses to aggravated sexual battery. Citing State v. Swindle,
30 S.W.3d 289 (Tenn. 2000), the defendant contends that the trial court committed reversible error
in its failure to instruct the jury on Class B misdemeanor assault, and its failure to instruct on any
other lesser-included offenses.

        The State concedes that, under Swindle, Class B misdemeanor assault is a lesser-included
offense of aggravated sexual battery. It argues, however, that the trial court did not err in failing to
give instructions on Class B misdemeanor assault because the evidence presented at trial did not
support a charge on the lesser offense. We agree.

         In Swindle, our supreme court applied the Burns test3 to conclude that Class B misdemeanor
assault, defined as intentional or knowing physical contact with the person of another that a
reasonable person would regard as extremely offensive or provocative, see Tenn. Code Ann. § 39-
13-101(a)(3) (1997), is a lesser-included offense of aggravated sexual battery.4 Id. at 292. The
Burns court made clear, however, that the inquiry does not end with a determination that an offense
is a lesser-included offense of the charged offense:

                     Whether a lesser-included offense must be charged in jury instruction
                     is a two-part inquiry. First, the trial court must apply the new test to
                     determine whether a particular lesser offense is included in the greater
                     charged offense. If a lesser offense is not included in the offense
                     charged, then an instruction should not be given, regardless of
                     whether evidence supports it. If, however, the trial court concludes
                     that a lesser offense is included in the charged offense, the question

         3
             This test for an alyzing lesser-inclu ded offens es states, in pertine nt part:

                     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 culpa bility;
                                and/or
                                (2) a less serious harm or risk of harm to the same person,
                                property o r public intere st[.]

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

         4
           The Swindle court determined that Class B misdemeanor assa ult met the definition of a lesser-included offense
to aggravated sexual battery under part (b)(2) of the Burns test, concluding that “the element of extremely offensive or
provocative touching establishes a less serious harm to the victim than touching for the purpose of sexual arousal or
gratification.” 30 S.W.3d at 293.

                                                                -10-
               remains whether the evidence justifies a jury instruction on such
               lesser offense.

Burns, 6 S.W.3d at 467. The Burns court went on to provide guidance to a trial court in its
determination of when an instruction on a lesser-included offense is warranted:

               First, the trial court must determine whether any evidence exists that
               reasonable minds could accept as to the lesser-included offense. In
               making this determination, the trial court must view the evidence
               liberally in the light most favorable to the existence of the lesser-
               included offense without making any judgments on the credibility of
               such evidence. Second, 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. at 469. A trial court, thus, is not required to issue jury instructions on lesser-included offenses
when there is no factual basis in the record in support of the lesser offense. Id. at 467.

         In this case, conflicting testimony was offered by the victim and the defendant at trial.
According to the victim, the defendant fondled and licked his penis. According to the defendant, the
victim molested him by kissing and licking his chest, and he did nothing more than push the victim
off his chest with his legs, raising him into an “airplane” ride, as he had done in the past. He
unequivocally denied that he ever touched the victim’s penis. A liberal view of the evidence, in the
light most favorable to the lesser-included offense, fails to show any evidence to support a conviction
of Class B misdemeanor assault, as opposed to aggravated sexual battery. As the State suggests, the
evidence as presented at trial could have led to only one of two possible results: conviction on the
charge of aggravated sexual battery, or an acquittal. Cf. State v. Howard, 926 S.W.2d 579, 586
(Tenn. Crim. App. 1996) (concluding that instruction on assault as lesser-included offense to
aggravated sexual battery was warranted by defendant’s testimony that he may have accidentally
touched the victim’s buttocks and thighs, distinguishing his case from those “‘all or nothing’ line of
cases which do not require an instruction on a lesser included offense.”) We conclude, therefore, that
the trial court did not err in failing to instruct the jury on Class B misdemeanor assault.

                                          CONCLUSION

       Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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