         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs May 6, 2008

            STATE OF TENNESSEE v. LARRY DARNNELL PINEX

                     Appeal from the Criminal Court for Davidson County
                        No. 2005-C-2514    Mark J. Fishburn, Judge



                   No. M2007-01211-CCA-R3-CD - Filed November 6, 2008



DAVID G. HAYES, SR.J., dissenting.

       I respectfully dissent from the majority’s holding that the Defendant’s dual convictions of
attempted aggravated rape and attempted aggravated sexual battery implicate principles of double
jeopardy protections. My reasons are two-fold.

        First, the majority’s holding is in conflict with the case law decisions of State v. Elder, 982
S.W.2d 871, 875 n.2 (Tenn. Crim. App. 1998) and Parris v. State, 236 S.W.3d 173, 182 n.5 (Tenn.
Crim. App. 2007), and other unpublished decisions of this court which recognize three distinct
statutory means by which a criminal attempt may be committed, each dependent upon the factual
circumstances presented in the particular case. See, e.g., State v. Hezekiah Cooper, No. W2005-
02481-CCA-R3-CD (Tenn. Crim. App. at Jackson, Dec. 20, 2007); State v. Victor Eugene Tyson,
No. M2006-01652-CCA-R3-CD (Tenn. Crim. App. at Nashville, July 10, 2007). The majority
concludes in both its analysis of the sufficiency of the evidence and within its analysis of double
jeopardy protections that, “the State must only prove that the Defendant took a substantial step
toward those completed crimes [of attempted aggravated rape and attempted aggravated sexual
battery]” citing Tennessee Code Annotated subsection 39-12-101(a)(3) as the relevant definition of
criminal attempt. The decisions of Elder and Parris compel the holding that based upon the
evidence presented in this case, the applicable criminal attempt provision is subsection (a)(2), not
(a)(3). As observed in Elder, 982 S.W.2d at 875 n.2, when a defendant “[a]cts with the intent to
cause a result that is an element of the offense,” i.e., sexual penetration, and “believes the conduct
will cause the result without further conduct,” the attempted crime is chargeable only under
subsection (a)(2) when, as in this case, the defendant’s conduct is thwarted by the physical resistance
of the victim. Subsection (a)(2) involves those attempts where the accused has done everything that
he intended to do but the crime was not completed, i.e., in a homicide prosecution, the bullet missed
the intended victim or, as in this case, the forceful acts of the accused are resisted by the victim.
Subsection (a)(3) is applicable only to attempts where the accused has not yet done all that he intends
to do in the commission of the crime; however, the conduct of the accused “constitutes a substantial
step toward the commission of the offense.” T.C.A. §§ 39-12-101 (a)(3),(b). Although I find the
trial court’s jury instruction with regard to criminal attempt to be incorrect, I find the error harmless
within the sufficiency of evidence context. Nonetheless, I am unable to agree with the majority’s
utilization of subsection (a)(3) within the double jeopardy analysis as discussed infra.

         Second, the majority concludes under the Denton test “that the same evidence was required
to prove both the attempted aggravated rape and the attempted aggravated sexual battery.”
Furthermore, the majority concludes that “it requires speculation to conclude that the Defendant
attempted two discrete acts which could reasonably be viewed as constituting different offenses.”
As observed by the majority, our supreme court in State v. Phillips, 924 S.W.2d 662, 665 (Tenn.
1996), urged consideration of (1) the nature of the act, (2) the area of the victim’s body invaded by
the sexually assaultive behavior, (3) the elapsed time between the discrete conduct, (4) the accused’s
intent, and (5) the cumulative punishment, in determining whether convictions are multiplicitous.
In the light most favorable to the State, the proof established separate acts of conduct supporting the
Defendant’s dual convictions. The Defendant’s act of grabbing the victim’s throat and demanding
that she “bow down” in addition to his attempt to forcibly remove her underwear supports the
conviction for attempted aggravated rape while the Defendant’s action of biting the victim’s breast
supports the conviction for attempted aggravated sexual battery. Thus, the nature of the two acts are
distinguished, the acts occurred at separate times, and involved two separate areas of the victim’s
body. Moreover, the issue of intent is a jury question and the jury could reasonably have inferred
from the proof that the Defendant abandoned his initial intent to rape after being informed by the
victim that he would first “have to kill [her]” and that his biting of the victim’s breast could
“rationally [be] construed as being for the purpose of sexual . . . gratification.” Tenn. Code Ann. 39-
13-501(6). For these reasons, I would affirm the Defendant’s convictions for both attempted
aggravated rape and attempted aggravated sexual battery. In all other respects, I join with the
majority.


                                                        ___________________________________
                                                        DAVID G. HAYES, Senior Judge




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