                                                                     FILED
                                                                     March 17, 2000

                                                                   Cecil Crowson, Jr.
                                                                  Appellate Court Clerk

           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE


STATE OF TENNESSEE,
          Appellee,

V.                                       No. E1999-00274-CCA-R3-CD

DOUGLAS BRYAN BORUFF,
         Appellant.


                          CONCURRING OPINION



             I fully concur with Judge Riley’s opinion. The only purpose for this

separate opinion is to note my belief that, in this case, aggravated sexual battery

and sexual battery are lesser-included offenses of rape of a child under part (a)

of State v. Burns, 6 S.w.3d 453, 466-67 (Tenn. 1999), see Tenn. Code Ann. § §

39-13-504, -505 (1997), and that under the scheme of the Burns test for

determining lesser-included offenses, the application of part (a) should be

determined before analyzing part (b). I agree that, pursuant to the Burns test for

determining whether the proof justifies an instruction on a lesser-included

offense, the proof in the present case did not warrant an instruction on

aggravated sexual battery. Neither did it warrant an instruction on sexual

battery.



                                  ___________________________________
                                  JAMES CURWOOD WITT, JR., JUDGE




                                         1
