              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                               APRIL 1997 SESSION
                                                            FILED
                                                            November 4, 1997

STATE OF TENNESSEE,                )                        Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
                                   )
              Appellee,            )      No. 02C01-9610-CC-00357
                                   )
                                   )       Dyer County
v.                                 )
                                   )       Honorable J. Steven Stafford, Judge
                                   )
WOODY J. DOZIER,                   )       (Aggravated rape; aggravated kidnapping)
                                   )
              Appellant.           )



                                CONCURRING OPINION



              I concur in the results and most of the reasoning of the majority opinion.

However, it indicates on page 23 that the aider and abettor, as those terms are used to

enhance rape to aggravated rape, need not have the same criminal intent as the

defendant. I respectfully disagree.



              I believe that the legislature intended the same meaning for aiding and

abetting in the aggravated rape statute as has been used historically for aiding and

abetting in Tennessee criminal law. This consists of three elements:

                    (1) Presence (actual or constructive), Watson v. State,
              158 Tenn. 212, 12 S.W.2d 375, 377 (1928);

                    (2) Intent that the crime be committed, Presley v. State,
              161 Tenn. 310, 30 S.W.2d 231 (1930); and

                    (3) Participation by which the crime is encouraged,
              procured, assisted or otherwise promoted. Flippen v. State,
              211 Tenn. 507, 365 S.W.2d 895, 899 (1963).

In this sense, I believe that the aider and abettor must act with an awareness of the

principal’s intent for the purpose of having that intent succeed.
              I believe that it is the fact of increased potential for menace and harm

presented by criminals acting in concert that led to aiding and abetting being made an

aggravating enhancer to rape. Thus, for the defendant to be subject to aggravated

rape because Turner aided and abetted him, then Turner must have known of the

defendant’s intent and helped it to succeed. However, I agree with the majority

opinion’s analysis that sustains the aggravated rape conviction. Turner’s actions and

words in and out of the car reflect an awareness of the intended criminal conduct and

action to have the conduct succeed. Therefore, the defendant was aided and abetted

by Turner in the forcible rape.



                                                 __________________________
                                                 Joseph M. Tipton, Judge




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