                 IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE




                                                       FILED
                                      FOR PUBLICATION
                                                     October 25, 1999
                                      Filed: October 25, 1999
                                                    Cecil Crowson, Jr.
                                                  Appellate Court Clerk



STATE OF TENNESSEE,              )
                                 )
      APPELLANT,                 )    COFFEE COUNTY NO. 26,699
                                 )
v.                               )    Hon. John W. Rollins, Judge
                                 )
CHARLES D. FOWLER,               )    No. 01S01-9810-CC-00185
                                 )
      APPELLEE.                  )




FOR APPELLANT:                        FOR APPELLEE:

PAUL G. SUMMERS                       ROBERT S. PETERS
Attorney General and Reporter         Winchester

MICHAEL E. MOORE
Solicitor General

DARYL J. BRAND
Associate Solicitor General
Nashville




                              OPINION



COURT OF CRIMINAL APPEALS REVERSED                        HOLDER, J.
                                    OPINION



      We granted this appeal to determine whether payment by a fifty-three-

year-old male for "straight sex" with what he perceived to be a fifteen-year-old

boy could constitute a substantial step toward the commission of statutory rape.

Upon review, we hold that the evidence in this case supported the jury's finding

that the defendant's conduct constituted a substantial step toward the

commission of statutory rape. The decision of the Court of Criminal Appeals is

reversed, and the defendant's conviction for attempted statutory rape is

reinstated.



                                      FACTS



       The defendant, Charles D. Fowler, was a fifty-three-year-old truck driver

who had stopped in a rest area along a Tennessee interstate highway. He

approached an undercover police officer in a wooded portion of the rest area,

and they began talking about underage children. The undercover police officer

was "wired" and recorded the ensuing conversation.



       The defendant told the officer that the defendant had hoped to pick up a

hitchhiker but that other motorists had picked up the only two he had seen. The

defendant conveyed to the officer that the defendant had a preference for young

boys. The defendant stated, "I like the young stuff. In fact, I like the underage

stuff." He boasted about various sexual escapades he had experienced with

minors.



       The defendant told the officer that the defendant was looking for a young

boy who was willing to run away from home and live with him in a house on a

swamp in Florida. The officer indicated that he might know of a few young boys


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who would be willing to go with the defendant. The officer stated that the boys

he had in mind would be between the ages of ten and fourteen. The defendant

replied that the mentioned ages would be acceptable provided the young boys

could either ejaculate or were learning how to ejaculate.



          The officer conveyed to the defendant that the officer knew of a twelve-

year-old boy who was interested in running away from home. The defendant

agreed to pay the officer a $200 "finder's fee" for the twelve-year-old boy.

Approximately one hour later, the defendant met the officer in a parking lot to

make the exchange. The officer had what appeared to be a young boy with him.

The officer told the defendant the boy was fourteen years old. The boy,

however, was a nineteen-year-old male dressed as a young boy. The defendant

confirmed that he wanted "straight sex" from the young boy. The defendant

wrote the officer a check for $200. The officer then placed the defendant under

arrest.



          A jury convicted the defendant of attempting to purchase a minor and of

attempted statutory rape. He received sentences of three years for the

attempted purchase of a minor conviction and nine months for the attempted

statutory rape conviction. The trial court, however, set aside the verdict and

entered a judgment of acquittal on the charge of attempted purchase of a minor.

The Court of Criminal Appeals, in a split decision, reversed the attempted

statutory rape conviction holding that the defendant's acts did not constitute a

substantial step toward the commission of the crime. W e granted review on this

limited issue.




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                                    ANALYSIS



       The issue now before us is whether the evidence of the defendant's

conduct was sufficient to support the jury's conviction of attempted statutory

rape. The State argues that "[t]he officers were not required to permit the

defendant to drive off with the boy or initiate actual penetration." The State

contends that under State v. Reeves, 916 S.W.2d 909 (Tenn. 1996), the jury's

conviction should be affirmed because "only the intervention of the officers in

effecting the arrest stopped the defendant from his intended purpose . . .

committing statutory rape." We agree with the State's assertions.



       This Court recently addressed the law on criminal attempt in State v.

Reeves. In Reeves, two female high school students, Coffman and Reeves,

conspired to kill a teacher. They agreed that Coffman would bring rat poison to

school and that they would place the poison in the teacher's drink. The poison

was brought to school the following day. The teacher entered her room and

noticed the two girls "over her desk." When the girls observed the teacher, they

giggled and ran back to their seats. The teacher discovered Coffman's purse

lying next to her coffee cup. Coffman was taken to the principal's office, and the

rat poison was found in her purse. Id. at 910.



      This Court recognized that prior to the passage of the 1989 criminal

reform act a finding of criminal attempt required evidence of: "(1) an intent to

commit a specific crime; (2) an overt act toward the commission of that crime;

and (3) a failure to consummate the crime." Id. at 911. The overt act element

required a distinction between conduct that was merely preparatory and conduct

that constituted a "direct movement toward the commission after the

preparations had been made." Id. (quoting State v. Dupuy, 325 S.W.2d 239, 240

(Tenn. 1959)).


                                         4
       Following the criminal reform legislation of 1989, the law of criminal

attempt was codified at Tenn. Code Ann. § 39-12-101. The statute provides in

pertinent part that:



       (a) A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense: . . . (3) Acts with
       intent to complete a course of action or cause a result that would
       constitute the offense, under the circumstances surrounding the
       conduct as the person believes them to be, and the conduct
       constitutes a substantial step toward the commission of the
       offense.



Tenn. Code Ann. § 39-12-101(a)(3) (1997). In Reeves, this Court rejected the

argument that the legislature "intended to retain the sharp distinction between

'mere preparation' and the 'act itself'" following the codification of § 39-12-101.

Reeves, 916 S.W.2d at 913. We also held that the mere preparation test was

inconsistent with the current legislative language and the goal of preventing

crimes.



       [Requiring an overt act] severely undercuts the objective of
       prevention . . . . Once a person secretly places a toxic substance
       into a container from which another person is likely to eat or drink,
       the damage is done. Here if it had not been for the intervention of
       the teacher, she could have been rendered powerless to protect
       herself from harm.



Id. at 914. Accordingly, the "mere preparation" test was abandoned.



       In the case now before us, the jury convicted the defendant of attempted

statutory rape. Statutory rape is defined as the "sexual penetration of a victim by

the defendant or of the defendant by the victim when the victim is at least

thirteen (13) but less than eighteen (18) years of age and the defendant is at

least four (4) years older than the victim." Tenn. Code Ann. § 39-13-506(a)

(1997). Our focus under § 39-12-101(3) is whether the evidence was sufficient



                                          5
to support the jury's finding that the defendant's conduct constituted a

"substantial step" toward the commission of statutory rape in this case.



      The record indicates that the defendant was seeking homosexual activity

on the night of his arrest. He stopped at a rest area that had a reputation for

homosexual activity. The defendant approached an undercover officer and

indicated that the defendant had a preference for young males. The defendant

agreed to pay the officer for delivery of a young male. The defendant was not

purchasing a young male out of a benevolent motivation to provide an unhappy

runaway with food and shelter. The defendant's purpose for procuring a young

male was sex. The fifty-three-year-old defendant believed the young male in

question to be fifteen years old. One of the defendant's stated intentions in

purchasing the boy was to have "straight sex" with him. The defendant wrote the

officer a check for $200 with the expectation that the boy would be turned over to

the defendant.



       On appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences that may be drawn

therefrom. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Our inquiry is

whether "after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. State v. Clifton, 880 S.W.2d 737, 742

(Tenn. Crim. App. 1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).



      The evidence in this case taken in a light most favorable to the State

overwhelmingly supports the jury's finding that the defendant's conduct

constituted a substantial step toward commission of statutory rape. Requiring

conduct beyond the defendant's conduct in this case would be inconsistent with

both the general goal of crime prevention and our analysis in Reeves. We would


                                         6
create a dangerous precedent by requiring that the defendant take delivery of the

boy or actually begin some act that would approach sexual penetration. Once a

pedophile purchases a child and takes the child into his possession, some

damage has likely occurred. Moreover, the child is placed in a position of

imminent danger from which the child may be powerless to protect himself or

herself.



       The decision of the Court of Criminal Appeals is reversed. The

defendant's conviction for attempted statutory rape is reinstated. Costs of this

appeal shall be taxed against the defendant for which execution shall issue if

necessary.




                                         JANICE M. HOLDER, JUSTICE



Concurring:

Anderson, C.J.
Drowota, J.
Byers, Sp.J.

Dissenting:

Birch, J.


Barker, J. Not Participating




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