     IN THE SUPREME COURT OF TENNESSEE
                AT NASHVILLE
                                                             FILED
                                                             November 8, 1999
STATE OF TENNESSEE,                      (        FOR
PUBLICATION                                                 Cecil Crowson, Jr.
                                         (                 Appellate Court Clerk
  Plaintiff-Appellee,             (      Filed:
November 8, 1999
                                         (
                                         (
v.                                       (        Lawrence County
                                         (
                                         (        Hon. Jim T. Hamilton,
TERRY ALLEN DOMINY,                      (        Judge
                                         (
     Defendant-Appellant.                (        No. M1995-00001-SC-R11-CD



For Plaintiff-Appellee:                  For Defendant-Appellant:

John Knox Walkup                               Peter G. Heil
Attorney General & Reporter              Nashville, Tennessee
                                               (Appeal Only)
Michael E. Moore
Solicitor General                              Shara Flacy
                                               William Bright
Gordon W. Smith                                District Public Defenders
Associate Solicitor General              Pulaski, Tennessee
Nashville, Tennessee
James G. White, II
District Attorney General
Lawrenceburg, Tennessee




                                      OPINION




TRIAL COURT AND
COURT OF CRIMINAL APPEALS
REVERSED; CONVICTIONS VACATED;
INDICTMENTS DISMISSED.                                  DROWOTA, J.
      The dispositive issues in this appeal are as follows: (1) whether the
indictment in this case charging the defendant with aggravated rape is sufficient to

support a conviction for spousal rape, a “lesser grade” offense under this Court’s
decision in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996); and (2) if so, should this

Court reconsider it decision in Trusty.



         We agree with the Court of Criminal Appeals that, under Trusty, the

indictment in this case would be sufficient to support a conviction for the “lesser

grade” offense of spousal rape. However, upon careful reconsideration, we
overrule Trusty to the extent that it recognizes “lesser grade” offenses as distinct

from lesser-included offenses and permits convictions of “lesser grade” offenses

that are not lesser-included offenses embraced by the indictment. In light of our
overruling of Trusty, the indictment in this case is not sufficient to support a

conviction for spousal rape. Therefore, we vacate the defendant’s convictions,

dismiss the indictments, and remand this case to the trial court for further
proceedings consistent with this decision.1


                                     FACTUAL BACKGROUND

         The defendant, Terry Allen Dominy vaginally raped his wife on three
separate occasions with his dog. As a result, he was charged with three counts of
aggravated rape. Tenn. Code Ann. § 39-13-502 (1991). Defense counsel argued

that the defendant could not be prosecuted for aggravated rape because he was
married to the victim at the time these offenses allegedly occurred and Tennessee

   1
     The defe nda nt rais ed tw o oth er iss ues in this a ppe al: (1) whe ther th e trial c ourt e rred in
refus ing to gran t the d efen dan t’s mo tion fo r rec usa l; and (2) w heth er the trial co urt er red in
admitting into evidence a tape-recorded interview between the victim and the field supervisor of the
Department of Human Services. Because we have reversed and remanded on other grounds, we
need not address these issues in detail. However, we note that the proof in this record indicates
that the trial judge was residing in a home owned by the assistant district attorney who prosecuted
this case and was paying only the utilities and cable bills and not monthly rental. Under such
circum stance s, recus al is appro priate. See Sup. C t. R. 10, Code of Judicial Conduct, Canons 2(A)
4(D)(5 ), and 3(E ). We also agree w ith the defen dant that th e trial court er red in allow ing the Sta te
to offer into evidence the entire tape-recorded interview of the victim by the Department of Human
Services field supervisor. While the State has the right to “convey the true picture of the prior
statement alleged to be inconsistent,” State v. Boyd, 797 S.W .2d 5 89, 5 93-9 4 (Te nn. 1 990 ), this
rule does not form a basis for reference to portions of the statement which were not made an issue
on cross-exam ination and which are not necessa ry to convey an acc urate picture of the matters
discussed on cross-examination. The trial judge could have either allowed the State to question the
witness concerning her prior statement to place her testimony on cross-examination into context or
permitted the State to use the transcript of the DHS tape to refresh the victim’s recollection. Neither
the ta pe no r the tr ans cript, how eve r, sho uld ha ve be en int rodu ced as su bsta ntive evide nce in this
case.

                                                     -2-
law contains a statutory exclusion which precludes a prosecution for rape if the

perpetrator is the spouse of the victim. Tenn. Code Ann. § 39-13-507 (1991

Repl.). The trial court disagreed. At trial, a certified copy of the parties’ marriage
certificate was introduced into evidence, and the jury was instructed on spousal

rape as a lesser-included offense of aggravated rape. The jury found the

defendant guilty of the charged offenses of aggravated rape.2



       In the Court of Criminal Appeals, the defendant renewed his assertion that

the aggravated rape convictions were invalid due to the statutory spousal
exclusion. The State conceded that the defendant was married to the victim and

that his convictions for aggravated rape could not stand. The Court of Criminal

Appeals agreed, stating that “Tennessee’s spousal exclusion statute provides . . .
immunity from both rape and aggravated rape prosecution.” The intermediate
court, however, modified the defendant’s convictions to spousal rape. In so

holding, the intermediate court acknowledged that spousal rape is not a lesser-

included offense of the indicted offense aggravated rape but found the
modification appropriate because spousal rape constituted a “lesser grade”
offense of aggravated rape under this Court’s decision in Trusty. Therefore, the

Court of Criminal Appeals held that the indictment charging aggravated rape was
sufficient to support a conviction for spousal rape.


       In this Court, the State and the defendant agree that the indictment is
sufficient under Trusty to support a conviction of spousal rape as a “lesser grade”

offense, but the State and Dominy urge this Court to overrule Trusty to the extent

that it recognized “lesser grade” offenses. The parties assert that Trusty is

unsupported by Tennessee precedent and unworkable in application. We agree


   2
    The defendant wa s sentenced to twenty-five years on each count. The senten ces were
ordered to run consecutively.


                                              -3-
and, as stated below, overrule that portion of Trusty which recognized “lesser

grade” offenses.




                                           ANALYSIS

        We begin our analysis of the issues in this appeal with a brief historical
overview. The three elements of common law rape are carnal knowledge of a

woman, forcibly and against her will. State v. Wilkins, 655 S.W.2d 914, 916

(Tenn. 1983). A review of statutes and case law indicates that the common law
definition of rape was adopted in Tennessee. Id. Although this Court has never

had occasion to rule on the matter, commentators generally accept the proposition

that, at common law, a man could not, as a matter of law, be convicted of raping
his wife.3 See Lane v. State, 703 A.2d 180, 185-186 (Md. 1997). This spousal

exclusion was first incorporated into Tennessee’s statutory law in 1978. See

Tenn. Code Ann. § 39-3707 (repealed 1979) (“A person does not commit criminal

sexual conduct under §§ 39-3701 -- 39-3706 if the victim is that person’s legal
spouse.”). The following year, the General Assembly limited the exclusion by
allowing prosecution of a spouse in cases where the marital relationship had

deteriorated. See Tenn. Code Ann. § 39-3709 (renumbered § 39-2-610 in 1982

Repl; repealed 1989) (“A person does not commit rape or sexual battery or assault
with intent to commit rape or sexual battery under §§ 39-3701 -- 39-3710 if the

victim is his or her legal spouse, unless the couple is living apart and one of them
has filed for separate maintenance or divorce.”). If the couple was living apart and
one of them had filed for separate maintenance or divorce, the spouse was

prosecuted under the general law.




   3
    Although a husband could not be guilty of raping his wife, he could be prosecuted if he assisted
anothe r in the rape . See David Raybin, Tennessee Criminal Practice and Procedure, § 28.114
(1985).

                                                -4-
        With the enactment of the Criminal Sentencing Reform Act in 1989, the

General Assembly abolished common law offenses and statutorily specified the

conduct necessary to support a criminal prosecution in Tennessee. State v. Hill,

954 S.W.2d 725, 728 (Tenn. 1997). While retaining the spousal exclusion of prior

law, the 1989 Act created the separate offenses of spousal rape and spousal

sexual battery as exceptions to the exclusion. See Tenn. Code Ann. § 39-13-507

(Supp. 1989). When the present offenses were committed in 1993 and 1994, the

statute provided in pertinent part as follows:

        Limited spousal exclusion. -- (a) A person does not commit an
        offense under this part [aggravated rape, rape, aggravated sexual
        battery, sexual battery, or statutory rape] if the victim is the legal
        spouse of the perpetrator except as provided in subsections (b) and
        (c) [defining “spousal sexual battery”].
        (b)(1) “Spousal rape” means the unlawful sexual penetration of one
        spouse by the other where:
                (A)The defendant is armed with a weapon or any
                article used or fashioned in a manner to lead the victim
                to reasonably believe it to be a weapon;
                (B) The defendant causes serious bodily injury to the
                victim; or
                (C) The spouses are living apart and one (1) of them
                has filed for separate maintenance or divorce.
                (2)(A) “Spousal rape,” as defined in subdivision (b)(1)(A) or
                (B), is a Class C felony.
                (B) “Spousal rape,” as defined in subdivision (b)(1)(C),
                shall be punished pursuant to § 39-13-502 [aggravated
                rape] or § 39-13-503 [rape].


Tenn. Code Ann. § 39-13-507(a) & (b) (1991). This statute was amended one

year after its enactment to add the above-quoted subdivision (b)(1)(C) and its
corresponding punishment provision. See 1990 Tenn. Pub. Acts ch. 980, § 5.4



        Section 39-13-507 is best described as a hybrid statute. It both maintains

the general spousal exclusion from prosecution and creates specific sexual
offenses for which only spouses are subject to prosecution.



   4
     Although not pertinent to this appeal because the offenses occurred in 1993 and 1994, a 1998
amendment created the offense of aggravated spousal rape for conduct “especially cruel, vile and
inhumane to the victim during the comm ission of the offense.” See 1998 Tenn. Pub. Acts ch. 1068,
§ 1.

                                               -5-
          The defendant in this case was indicted and convicted for aggravated rape.

All three counts charged in pertinent part that the defendant “did unlawfully,

forcibly, or coercively, while armed with a weapon or an article used or fashioned
in a manner to lead Sherry Michelle Dominy reasonably to believe it to be a

weapon, sexually penetrate Sherry Michelle Dominy in violation of T.C.A. § 39-13-

502.”5 Therefore, the issue in this appeal is whether an indictment for aggravated
rape, an offense to which the spousal exclusion applies, can support a conviction

for spousal rape.



          A defendant has a constitutional right to be given notice of the offenses

with which he is charged. Hill, 954 S.W.2d at 727. The means by which this

notice will be provided is governed by statute,6 and by rule.7 In State v. Howard,
578 S.W.2d 83, 85 (Tenn. 1979), this Court adopted the following test for
determining whether an offense is necessarily included in, i.e., a lesser-included

offense of, the charged offense: “an offense is necessarily included in another if

the elements of the greater offense, as those elements are set forth in the



   5
       Tenn. Code Ann. § 39-13-502 provides:

                  (a) Aggravated rape is unlawful sexual penetration of a victim by
                  the defendant or the defendant by a victim accompanied by any of
                  the following circumstances:
                    (1) Force or coercion is used to accomplish the act and the
                  defendant is armed with a weapon or any article used or fashioned
                  in a manner to lead the victim reasonably to believe it to be a
                  weapon;
                    (2)T he de fend ant c aus es bo dily inju ry to th e vict im;
                    (3) The defendant is aided or abetted by one (1) or more other
                  persons; and
                      (A) Force or coercion is used to accomplish the act; or
                      (B) Th e def end ant k now s or h as re aso n to k now that th e vict im
                  is mentally defective, mentally incapacitated or physically helpless.
                  (b) Aggravated rape is a Class A felony.

   6
     Tenn. Code Ann. § 40-13-202 (1997) provides in pertinent part: “The indictment must state the
facts cons tituting the o ffens e in or dinar y and conc ise lan gua ge, w ithou t prolix ity or r epe tition, in
such a mann er as to en able a pe rson of c omm on und erstand ing to kno w wha t is intended , and with
that degree of certainty which will enable the court, on conviction, to pronounce the proper
judgme nt. . . .”

   7
    Tennessee Rule Criminal Procedure 31(c) provides: “The defendant may be found guilty of an
offense necessarily included in the offense charged or of an attempt to commit either the offense
charge d or an o ffense ne cessa rily included therein if the a ttempt is a n offense .”

                                                       -6-
indictment, include, but are not congruent with, all the elements of the lesser.”

This definition applied a statutory elements approach, whereby a determination of

whether an offense was lesser-included involved a comparison of the statutory
elements of the offense charged in the indictment with the statutory elements of

the offense alleged to lesser-included. Under this test, an offense is lesser-

included if all its elements are contained within the elements of the offense
charged in the indictment.



         The idea that “lesser grade” offenses are distinct from lesser-included
offenses was first enunciated in Trusty. Under Trusty, “lesser grade” offenses

were located within the same statutory part as the indicted offense but contained

different or additional elements than the indicted offense. The holding in Trusty

was partially prompted by the fact that some offenses which had traditionally been
considered lesser-included at common law were no longer lesser-included when

the statutory elements test adopted in Howard was applied to criminal offenses as

redefined by the 1989 Criminal Sentencing Reform Act.8                           Of particular concern
was whether voluntary manslaughter is a lesser-included offense of first degree
murder under the Tennessee criminal statutes as amended in 1989.9 Another

basis for the adoption of the “lesser grade” analysis in Trusty was the language of

Tenn. Code Ann. § 40-18-110(a) which provides: “[i]t is the duty of all judges


   8
     Prior to the adoption of the 1989 Act, the Code contained a statute which addressed the issue
of lesser- included offenses in the con text of sex ual offens es. See Tenn. Code Ann. 39-3710(c)
(Supp. 1982) (“A charge of any offense proscribed herein shall include a charge of all lesser
offenses as lesser-included offenses.”) This statutory provision eliminated the confusion which now
often occurs when trial courts are attempting to determine which offenses are lesser-included.

   9
    Trusty failed to recognize that the “passion” language in the definition of voluntary
manslaughter simply reflects a less culpable mental state than required for first or second degree
murde r. See Sentencing Commission Comments to Tenn. Code Ann. § 39-13-211. Therefore,
voluntary mans laughter is a lesser- included offense o f first and se cond d egree m urder. See State
v. Burns, ___ S.W .2d _ _(Te nn. 1 999 ) (filed simu ltane ous ly with this o pinion ) (hold ing th at offe nse is
lesser-included if (a) all its statutory elements are included within the statutory elements of the
offense charged; or (b) if it fails to meet the definition in part (a) only in the respect that it contains a
statutory element or elements establishing a different mental state indicating a lesser kind of
culpability ); see also Tenn. Code Ann. § 39-13-201 (1997) (providing that “[c]riminal homicide is the
unlawful killing of another person which may be first degree murde r, second degree m urder,
voluntary manslaughter, criminally negligent homicide, or vehicular homicide”).


                                                       -7-
charging juries in cases of criminal prosecutions for any felony wherein two (2) or

more grades or classes may be included in the indictment, to charge the jury as to

all of the law of each offense included in the indictment . . . .” (Emphasis added.)
Trusty failed to recognize, however, that when § 40-18-110 was enacted in 1877,

lesser grade or class was used to mean only lesser-included offense. See Good

v. State, 69 Tenn. 293 (Tenn. 1878). Thus, contrary to the conclusion reached in
Trusty, “lesser grade or class” and “lesser-included offense” are simply

synonymous terms describing a single type of offense which is included in the

offense charged in an indictment and which may, therefore, form the basis of a
conviction.



        Moreover, as explained in detail in State v. Burns, __S.W.2d __ (Tenn.

1999), also released today, the “lesser-grade” analysis adopted in Trusty proved

unworkable in application. Under Trusty, trial courts were required to instruct on

“lesser grade” offenses. Therefore, the defendant in this case, indicted for

aggravated rape, under the rule announced in Trusty would be conclusively
presumed to be on constitutional notice that he was being tried for, and could be
convicted of, any of the sexual offenses contained in Title 39, Part 5 of the Code,

including public indecency or indecent exposure, Tenn. Code Ann. § 39-13-511,
prostitution, Tenn. Code Ann. § 39-13-513, rape of a child, Tenn. Code Ann. § 39-
13-522, sexual battery by an authority figure, Tenn Code Ann. § 39-13-527, or

solicitation of a minor, Tenn. Code Ann. § 39-13-528. There is simply nothing in
the statutory scheme that indicates the General Assembly intended such a broad
rule.



        Therefore, because Trusty’s “lesser grade” holding is not supported by

Tennessee law and is unworkable in application, we conclude that Trusty must

now be overruled to the extent that it recognizes “lesser grade” offenses.


                                         -8-
       Having overruled Trusty we must also reverse the Court of Criminal

Appeals judgment which modified the convictions of aggravated rape to spousal

rape. The State and the defendant agree that spousal rape is not a lesser-
included offense of aggravated rape under the test adopted by this Court in

Howard, because spousal rape contains a statutory element not contained in

aggravated rape, namely, that the victim is the legal spouse of the defendant.
Moreover, spousal rape is not a lesser-included offense of aggravated rape under

the test announced today in Burns. Under that test, a lesser-included offense

may contain an additional element or elements establishing: (1) a different mental
state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of

harm to the same person, property, or public interest. Id. at ___. The additional

element in spousal rape, that the victim is the legal spouse of the defendant, does
not establish either a different mental state indicating a lesser kind of culpability,
or a less serious harm or risk of harm to the same person. Having determined

that spousal rape is not a lesser-included offense of aggravated rape, it follows

that the indictment charging aggravated rape is not sufficient to support a
conviction for spousal rape.


       Our conclusion that an aggravated rape indictment cannot be the basis for
a spousal rape conviction is also supported by this Court’s decision in McLean v.

State, 527 S.W.2d 76 (Tenn. 1975). In McLean, the petitioner was indicted under

the general law and convicted of the sale of a controlled substance. Although
raised for the first time on appeal, it was uncontroverted at trial that the petitioner
was a licensed, registered pharmacist. This Court concluded that the general law

prohibiting the sale, or possession with intent to sell, a controlled substance was

not applicable to McLean because there was a statutory exception for
pharmacists. Id. at 79. In so holding, this Court emphasized that there were

specific code provisions relating to the sale of a controlled substance by a


                                          -9-
pharmacist without a prescription, stating:

             It seems clear to us that the petitioner should properly have
      been indicted and tried for violation of T.C.A. § 52-1431 [now 53-11-
      308], and sentenced according to T.C.A. § 52-1435 [now 53-11-
      401]. The statute under which he was indicted and convicted
      pertains to the public generally, but the code sections last cited deal
      specifically with pharmacists and other registrants, and prescribe
      entirely different penalties and sanctions from those pertaining to the
      general public.

Id. at 80. The McLean Court also rejected the State’s argument that the

indictment under the general law could support a conviction for the sale of a
controlled substance by a pharmacist without a prescription, stating:

              On behalf of the State it is urged that the evidence offered at
      the trial was sufficient to convict the petitioner of a violation of T.C.A.
      § 52-1431 [now 53-11-308], that is selling a controlled substance
      falling within Schedule III without a prescription. It is therefore
      argued that there has been an error made simply as to the degree of
      punishment, and we are urged to reverse the case and remand it for
      a new trial on punishment only. While this might be permissible
      under some circumstances, we do not believe it appropriate where
      the petitioner has been indicted and tried under an inapplicable
      statute. It seems to us that there has been such a material variance
      between the offense charged and that attempted to be shown in
      evidence as to void the conviction.

Id. at 81 (emphasis added). Recognizing that “[n]othing is more firmly established
in the law than that a defendant cannot be charged with one crime and convicted
of another,” this Court reversed McLean’s conviction. Id. (citation omitted).



      As in McLean, the defendant in this case was indicted, tried, and convicted
under an inapplicable statute. Pursuant to Tenn. Code Ann. § 39-11-

109(a)(1997), “[w]hen the same conduct may be defined under both a specific
statute and a general statute, the person may be prosecuted under either statute
unless the specific statute precludes prosecution under the general statute.”

(Emphasis added.) The specific statute in this case, the limited spousal

exclusion, Tenn. Code Ann. § 39-13-507, precludes prosecution under the
general criminal sexual offense statutes when the victim is the legal spouse of the
perpetrator. While the spousal exclusion must be proven by a preponderance of



                                         -10-
the evidence, see Tenn. Code Ann. § 39-11-202(b)(2) (1997), there was abundant

proof introduced at trial, including a certified copy of their marriage certificate, to

establish that the defendant and the victim were legally married at the time these
offenses were committed. In addition, the State conceded in the Court of Criminal

Appeals that the spousal exclusion applied. Therefore, given the application of

the spousal exclusion, under McLean, although the evidence was sufficient to

convict the defendant of spousal rape, the conviction cannot be affirmed because

the State failed to specifically indict the defendant for that offense. Furthermore,

the similarity of the allegations in the indictment — that the defendant did
unlawfully sexually penetrate the victim while “armed with a weapon”— to the

definition of spousal rape under Tenn. Code Ann. § 39-13-507(b)(1)(A) cannot

serve to charge the defendant with spousal rape in addition to aggravated rape.
See State v. Jefferson, 529 S.W.2d 674, 678 (Tenn. 1975) (holding that two

distinct offenses cannot generally be charged in the same count of the

indictment). Having so concluded, we must reverse the convictions and remand

this case to the trial court for further proceedings.


                                    CONCLUSION

       For the reasons herein stated, we overrule Trusty to the extent that it
requires jury instructions on “lesser grade” offenses and permits convictions of
“lesser grade” offenses. Because the indictment in this case is not sufficient to

support a conviction for spousal rape, we reverse the judgment of the Court of
Criminal Appeals, vacate the defendant’s convictions, dismiss the indictments,
and remand this case to the trial court for further proceedings consistent with this

decision.




                                          -11-
                             ______________________________________
                             FRANK F. DROWOTA, III,
                             JUSTICE


Concur:
Anderson, C.J.,
Birch, Holder, Barker, JJ.




                                 -12-
