         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 18, 2001

               STATE OF TENNESSEE v. DARRYL LEE ELKINS

                      Appeal from the Criminal Court for Sullivan County
                             No. S41,530   R. Jerry Beck, Judge



                                  No. E2001-01245-CCA-R3-CD
                                         March 27, 2002



JOSEPH M. TIPTON, J., concurring and dissenting.

       I concur in the majority opinion regarding the child rape conviction. I respectfully disagree
regarding the attempted rape conviction. I believe the evidence is insufficient to convict the
defendant of any offense above a Class B misdemeanor assault.

        I have two areas of concern: (1) the defendant’s conduct and the inferences derived therefrom
and (2) the defendant’s future conduct and the inferences derived therefrom. As for the conduct at
issue, as described by the victim, I do not believe that the defendant, fully clothed, getting on top of
the prone victim and “abouncing” on him carries an inference beyond a reasonable doubt that sexual
contact, or an attempt at sexual contact, or an attempt to rape the victim occurred so as to justify a
finding that a sexual offense was committed.

        The majority opinion concludes that the jury could infer that the defendant was lying prone
on top of the victim. However, I view this inference to be no more likely than the inference that the
defendant was on his knees and sitting on his feet and the victim’s legs while leaning forward and
“abouncing” or that he was actually sitting on the victim “abouncing.” In any event, I believe that
any sexual connotation given to the defendant’s conduct – as described by the victim – requires a
level of speculation that precludes a finding beyond a reasonable doubt.

         As for the defendant’s intent, the only remaining evidence available to the jury was the
defendant’s conduct two weeks later when the defendant raped the victim. Again, I do not believe
that this evidence justifies an inference beyond a reasonable doubt that the defendant had the intent
to rape the victim two weeks earlier. It is one thing to infer from recent past conduct, when the
mental state was clear, that a similar intent existed for future conduct. It is quite another to infer
from future conduct a similar intent for past conduct that, in many ways, was dissimilar to the future
conduct. I note that in United States v. Boyd, 595 F.2d 120, 126 (3d Cir. 1978), the court stated,
“The logic of showing prior intent or knowledge by proof of subsequent activity escapes us.” I
acknowledge that certain courts have admitted subsequent criminal conduct as relevant to proving
the mens rea for past conduct in certain circumstances. See, e.g., United States v. Hadaway, 681
F.2d 214, 217-18 (4th Cir. 1982) (holding that a series of similar offenses subsequent to the offense
on trial were relevant to the defendant’s intent because thinking “in a particular illegal way over a
period of time is evidence that one’s thought patterns had already been so developed and were so
operating on another previous occasion”). However, I do not believe that the facts provided by the
victim regarding the rape, a single event, justify a finding beyond a reasonable doubt that the
defendant intended to rape the victim two weeks before.

       I believe that the only offense proven by the victim’s testimony is assault by knowingly
causing physical contact with the victim which a reasonable person would regard as extremely
offensive or provocative. See Tenn. Code Ann. § 39-13-101(a)(3). Thus, I would reduce the
conviction to one for that offense and would impose the maximum sentence of six months in jail to
be served consecutively with the sentence for rape of a child.



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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