        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 11, 2015

              STATE OF TENNESSEE v. JOHN J. ORTEGA, JR.

              Appeal from the Circuit Court for Montgomery County
                    No. 41100543     Michael R. Jones, Judge




                No. M2014-01042-CCA-R3-CD – Filed April 23, 2015


Defendant, John J. Ortega, Jr., was indicted by the Montgomery County Grand Jury for
two counts of rape of a child. After a jury trial, Defendant was found guilty of
aggravated sexual battery which was charged as a lesser included offense in Count One.
He was found not guilty in Count 2. As a result, he was sentenced to nine years of
incarceration. Defendant appeals, arguing that aggravated sexual battery is not a lesser
included offense of rape of a child. Defendant did not object to the jury instructions at
trial. However, we have determined that aggravated sexual battery is no longer a lesser
included offense of rape of a child under Tennessee Code Annotated section 40-18-110
as amended. Therefore, the trial court‟s instructions were in error. However, we
determine that the evidence is sufficient to support a conviction of the lesser included
offense of child abuse. Consequently, we modify Defendant‟s conviction for aggravated
sexual battery to child abuse and remand the matter to the trial court for entry of a
corrected judgment and a new sentencing hearing.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                      Affirmed as Modified and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

James O. Martin III, Nashville, Tennessee (at motion for new trial and on appeal) and
Debra A. Wall and James R. Potter, Clarksville, Tennessee (at trial) for the appellant,
John J. Ortega, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
John W. Carney, District Attorney General; and C. Daniel Brollier, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                                 OPINION

                                           Factual Background

       This is Defendant‟s direct appeal from his Montgomery County conviction of
aggravated sexual battery. In June of 2011, Defendant was indicted by the Montgomery
County Grand Jury for two counts of rape of a child after a five-year-old neighbor, A.S.,1
alleged Defendant “lick[ed]” and “pinch[ed]” her vagina.

       At trial, the following facts were presented. Defendant lived in a duplex next door
to the victim‟s mother and stepfather in Clarksville. The victim‟s mother had two
children of her own, A.S. and a son. The couple also had an infant daughter together. At
the time of the incident, the victim‟s stepfather was on probation for statutory rape. Next
door, Defendant lived with his fiancée and her ten-year-old daughter. Though the
couples lived next door to each other, they did not routinely socialize together.

        On the afternoon of March 11, 2011, the victim‟s stepfather helped Defendant
work on a car. After they finished the work on the car, all four adults shared some
alcoholic beverages together at Defendant‟s home. After a while, the victim‟s stepfather
felt “tipsy” and decided to lie down in his van, parked in the driveway. The women
decided to go to McDonald‟s to get something to eat, leaving the children in the house
alone, asleep in their bedrooms. Defendant was at his house. The ten-year-old was left
in charge of the other children.

        A.S. and her brother shared a bedroom with bunk beds. The lower bunk had a
full-size bed. A.S. slept on the upper bunk, a twin-size bed. When A.S. went to bed, she
had on a t-shirt, underwear, and blue jeans. The infant was asleep in another room.

       The ten-year-old became concerned when the infant started crying. She started to
make the baby a bottle. She noticed that Defendant was in the house behind her while
she was making the bottle, but when she finished, Defendant was not there. The ten-
year-old went back to her house to look for Defendant. She was unable to locate
Defendant, so she woke up the victim‟s stepfather from where he was sleeping in the van.

       The victim‟s stepfather entered the house and heard “a small little screaming”
coming from the children‟s bedroom. The victim‟s stepfather claimed that he opened the
bedroom door and saw Defendant standing on the lower bunk bed and reaching over into
the upper bunk bed. The Defendant had his left hand over the mouth of A.S. and his right
hand between her legs. A.S.‟s pants and underwear were pulled completely off one of
      1
          It is the policy of this Court to refer to minor victims of sexual crimes by their initials.

                                                       -2-
her legs and down to the knee on the other leg. The ten-year-old saw Defendant standing
on the lower bunk bed and A.S. sitting on the upper bunk bed, crying. 2 Defendant
explained that he was helping A.S. take off her pants. Defendant left the room and the
house shortly thereafter.

       When the victim‟s mother got home, she was notified about the incident. She took
the child into the bathroom to examine her for injuries. A.S. had what looked “like little
cuts all around, almost . . . like bloody spider webs” all around the area of her vagina.
A.S. told her mother that Defendant pinched her and that it “really hurt.”

        At trial, A.S., who was then seven years old, testified that Defendant came into her
room and told her to be quiet before he licked and pinched her privates. Defendant asked
her to pull her pants down. When she refused, Defendant pulled them down. A.S. stated
that as Defendant was licking and pinching her vagina, he asked her whether her Mom or
Dad did that to her before. A.S. stated that Defendant covered her mouth when she tried
to scream and only stopped when her stepfather walked into the room. A.S. denied that
she told another adult shortly after the incident that her mother was present and saw half
of what happened to her that night.

       No one called the police. The victim‟s mother administered Monistat cream at the
suggestion of Defendant‟s fiancée, an emergency medical technician. Several hours later,
the victim‟s mother and aunt took A.S. to Gateway Hospital. Once at the hospital, the
victim‟s mother reported that A.S. might have a yeast infection or a urinary tract infection
(“UTI”) and that she was complaining of itching with urination. At trial, the victim‟s
mother stated that she told the hospital about a possible infection only because it was
suggested by Defendant‟s fiancée.

       There was no urinalysis performed on A.S. at Gateway Hospital. When she made
allegations against Defendant, A.S. was taken to Meharry Hospital, affiliated with Our
Kids, a center that provides assistance to victims of sexual abuse. A urinalysis was not
performed at Meharry. A.S. was interviewed at Our Kids clinic by licensed clinical
social worker Sandra Gonzalez. A.S. reported that a male neighbor came into her room
and hurt her with his fingernails. A.S. described that the man covered her mouth and
licked her private area.
        2
         At trial, the ten-year-old admitted on cross-examination that merely three days after the incident
she reported a different version of the events. For instance, the ten-year-old originally reported that the
victim‟s stepfather was on the computer in his own home when this occurred; that she had observed
Defendant the entire time and that all he did was try to get A.S. to go back to bed by going to her room to
calm her down and lift her back up on to the bed; and that the victim‟s stepfather told his daughter to shut
up and go back to bed. Later, when testifying at trial, the ten-year-old maintained that this version of the
events was a lie perpetrated for the benefit of the Defendant.

                                                    -3-
       During examination of the victim at the hospital, nurses observed blood in the
child‟s underwear as well as on the outside of her external labia. Sue Ross, a pediatric
nurse practitioner, testified as an expert in the field of child sexual abuse. According to
Ms. Ross, the examination of A.S. revealed a number of injuries to the external labia as
well as some internal injuries, including “bruising” on the hymen and area around the
hymen. There was also a “partial thickness” tear to the hymen that would have been
caused by something “penetrative in nature.” In her opinion, the injuries occurred within
seventy-two hours of the examination. The injuries were consistent with the report of
being hurt with fingernails. Ms. Ross also opined that a urinalysis would have been
reasonable upon complaints of itching and burning during urination.

       Fingernail scrapings and a DNA sample were taken from both the victim‟s
stepfather and Defendant. Forensic analysis of Defendant‟s fingernail scraping revealed
the DNA profile to be a mixture of DNA from the Defendant and a partial match to A.S.
Forensic analysis of the fingernail scrapings from the victim‟s stepfather revealed only
his DNA. The forensic scientist, Michael Turbeville, testified that he could not surmise
from what part of A.S.‟s body the DNA originated.

        Tina Slaven, a detective with the Clarksville Police Department, was assigned to
investigate the complaint made by A.S. against Defendant. She contacted Defendant the
morning after the incident. Defendant prepared a written statement in which he asserted
that the victim‟s stepfather was in the room with A.S. and that the only thing he did in the
bedroom was change the clothes of the child and put her to bed.

        Defendant‟s fiancée testified on behalf of Defendant. She acknowledged that she
married Defendant after the allegations surfaced but that the couple was going through a
divorce at the time of trial. She recalled A.S. complaining about burning during
urination. She was present when the victim‟s mother looked at A.S.‟s private area and
noticed that it was red and that the child was scratching at herself. She testified that the
victim‟s mother told her the child had had an infection for two to three weeks and even
had some bleeding that started two or three days prior to the incident. Defendant‟s
fiancée even claimed that the victim‟s mother had confided in her that A.S. made sexual
assault allegations against the victim‟s stepfather several months prior to the incident.
Defendant‟s fiancée admitted on cross-examination that she did not tell the investigator
any of the things that she testified to at trial. On the night of the incident, Defendant‟s
fiancée witnessed A.S. crying and complaining of pain and bleeding. She also heard A.S.
state that Defendant was the perpetrator.

       Defendant testified at trial that he helped the victim‟s stepfather work on a car the
afternoon of the incident. They were drinking, and, eventually, the victim‟s stepfather
                                            -4-
passed out in his van. While the women were gone to get food, the victim‟s mother
called and asked him to check on the victim‟s stepfather. Defendant and the ten-year old
woke the victim‟s stepfather. They followed him into his house where he started using a
computer. Defendant explained that the baby was crying, and A.S. came out of her room
asking for help, so the victim‟s stepfather asked for help because he was drunk.
Defendant went to A.S.‟s room and helped her change into her pajamas. The child was
not wearing underwear at the time. Defendant looked through a pile of laundry for
underwear, found a pair, and helped A.S. put them on before helping her get back into
bed. The ten-year old had fixed a bottle for the baby and entered the room while
Defendant was helping get A.S. dressed. A.S. slipped as she was climbing into the bed.
Defendant caught her. A.S. was asking for her mother. At that point, the victim‟s
stepfather entered the room and asked for the source of the noise. Defendant left the
room with the ten-year old. The victim‟s stepfather left the room, telling A.S. to “shut
the hell up.” Defendant went back to his own house and was watching television when
the ten-year old came in to tell him that he was needed next door. Once he arrived, he
was asked about what he did to A.S. Defendant explained that he may have hurt her arm
when he caught her as she slipped off the bed. Defendant did not know until the next
morning that he was being accused of raping the child.

       At the conclusion of the jury trial, Defendant was found guilty of aggravated
sexual battery in Count One and not guilty in Count Two. Count One related to the
“digital vaginal penetration” of A.S. As a result, Defendant was sentenced to nine years
in incarceration.

        Defendant filed a motion for new trial and supplemental motion for new trial. In
the supplemental motion for new trial, Defendant argued that his conviction for
aggravated sexual battery should be vacated because aggravated sexual battery is not a
lesser included offense of rape of a child. To support his argument, Defendant relied on
State v. Dallas Jay Stewart, No. M2011-01994-CCA-R3-CD, 2013 WL 3820992 (Tenn.
Crim. App. Jul. 22, 2013), no Tenn. R. App. P. 11 application filed, an unreported
opinion from this Court. The trial court denied the motion for new trial. This appeal
followed.

                                         Analysis

       On appeal, Defendant complains that the trial court improperly instructed the jury
that aggravated sexual battery was a lesser included offense of rape of a child. To
support his argument, Defendant relies on the same argument utilized at the hearing on
the motion for new trial, citing Dallas Jay Stewart. Additionally, Defendant cites State v.



                                            -5-
David Michael Blevins, No. E2013-01976-CCA-R3-CD (Tenn. Crim. App. May 23,
2014), perm. app. denied (Tenn. Nov. 20, 2014).3

        The basic right to trial by jury is guaranteed by the United States and Tennessee
Constitutions. U.S. Const. Amend. VI; Tenn. Const. Art. I, § 6. Therefore, “a defendant
has a right to a correct and complete charge of the law, so that each issue of fact raised by
the evidence will be submitted to the jury on proper instructions.” State v. Garrison, 40
S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)).
Accordingly, trial courts have a duty “to give a complete charge of the law applicable to
the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986) (citing State v.
Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). A charge is prejudicial error “if it fails
to fairly submit the legal issues or if it misleads the jury as to the applicable law.” State
v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Erroneous jury instructions require a
reversal, unless the error is harmless beyond a reasonable doubt. See Welch v. State, 836
S.W.2d 586 (Tenn. Crim. App. 1992). Whether the trial court properly instructed the jury
on a certain offense is mixed question of law and fact. State v. Thorpe, __ S.W.3d __,
M2012-02676-SC-R11-CD, 2015 WL 1546392, at *5 (Tenn. Apr. 6, 2015); State v.
Rush, 50 S.W.3d 424, 427 (Tenn. 2001). Accordingly, the standard of review is de novo
with no presumption of correctness.

                                  Failure to Object to Instruction

       The State argues that Defendant waived the issue by failing to object to the
instruction at trial and is not entitled to review in this Court because he cannot establish
plain error.


       We note that David Michael Blevins was designated by the Tennessee Supreme Court as “NOT
       3

FOR CITATION.” According to Tennessee Supreme Court Rule 4(E):

       (1) If an application for permission to appeal is hereafter denied by this Court with a “Not
       for Citation” designation, the opinion of the intermediate appellate court has no
       precedential value.

       (2) An opinion so designated shall not be published in any official reporter nor cited by
       any judge in any trial or appellate court decision, or by any litigant in any brief, or other
       material presented to any court, except when the opinion is the basis for a claim of res
       judicata, collateral estoppel, law of the case, or to establish a split of authority, or when
       the opinion is relevant to a criminal, post-conviction or habeas corpus action involving
       the same defendant.

None of the situations described in Rule 4(E)(2) apply herein. Thus, we are unable to consider David
Michael Blevins as authority on appeal as it has no precedential value.

                                                   -6-
       Tennessee Rule of Criminal Procedure 30(b) states that after the trial court
instructs the jury regarding the relevant law, the parties must be given an opportunity to
object to the contents of the instructions. Rule 30(b) states that “counsel‟s failure to
object does not prejudice the right of a party to assign the basis of the objection as error
in a motion for a new trial.” While a defendant must object to an omitted jury instruction
to preserve the issue on appeal, the Tennessee Supreme Court, interpreting Rule 30(b) of
the Tennessee Rules of Criminal Procedure in a case involving a defendant who did not
object at trial to the inclusion of what he perceived to be an erroneous lesser included
offense instruction, has held that a defendant‟s right to challenge the inclusion of an
erroneous jury instruction is not waived by his failure to make an objection at trial. State
v. Lynn, 924 S.W.2d 892, 898-99 (Tenn. 1996). The defendant may still raise the issue in
a motion for new trial. Lynn, 924 S.W.2d at 899.

       Although the Rules of Criminal Procedure do not prohibit relief in the absence of
an objection, Tennessee Code Annotated section 40-18-110(d), which was in effect at the
time of Defendant‟s trial in July of 2013, states:

       Prior to instructing the jury on the law, the trial judge shall give the parties
       an opportunity to object to the proposed lesser included offense
       instructions. If the defendant fails to object to a lesser included offense
       instruction, the inclusion of that lesser included offense instruction may not
       be presented as a ground for relief either in a motion for a new trial or on
       appeal. Where the defendant objects to an instruction on a lesser included
       offense and the judge does not instruct the jury on that offense, the
       objection shall constitute a waiver of any objection in the motion for a new
       trial or on appeal concerning the failure to instruct on that lesser included
       offense. The defendant‟s objection shall not prevent the district attorney
       general from requesting lesser included offense instructions or prevent the
       judge from instructing on lesser included offenses . . . .

T.C.A. § 40-18-110(d) (emphasis added); see State v. Burns, 6 S.W.3d 453, 469 (Tenn.
1999).

       After reading Tennessee Rule of Criminal Procedure 30(b) and Tennessee Code
Annotated section 40-18-110(d) together, there appears to be a conflict between the rule
and the statute—the rule which permits a defendant who had failed to object to raise the
erroneous inclusion of a lesser included offense instruction as a basis for relief in a
motion for new trial and the statute which prohibits a defendant who had failed to object
from raising either in a motion for new trial or on appeal the erroneous inclusion of the
proposed lesser included offense instruction. To resolve the conflict, we look to
Midsouth Pavers, Inc. v. Arnco Const., Inc., 771 S.W.2d 420, 422 (Tenn. Ct. App. 1989).
                                             -7-
In Midsouth Pavers, Inc, our court of appeals held that statutes in conflict with rules of
procedure should be given effect to the fullest extent possible. It is well established that a
specific provision relating to a particular subject takes precedence over a general
provision applicable to a multitude of subjects. State v. Black, 897 S.W.2d 680, 683
(Tenn. 1995). “„The special provision [is] deemed an exception, and the general
provision [is] construed to operate on all the subjects introduced therein except the
particular one which is the subject of the special provision.‟” State ex rel. v. Safley, 112
S.W.2d 831, 833 (Tenn. 1938) (quoting Board of Park Comm’rs v. City of Nashville, 185
S.W. 694, 698 (Tenn. 1916)). Therefore, the apparent conflict between Tennessee Rule
of Criminal Procedure 30(b) and Tennessee Code Annotated section 40-18-110(d) should
be resolved in favor of the statute, as the rule relates to jury instructions in general while
the statute is specifically directed to lesser included offense instructions. Because we
determine that Tennessee Code Annotated section 40-18-110(d) controls, and because
Defendant herein did not object at trial to the inclusion of the charge on aggravated
sexual battery as a lesser included offense of rape of a child, raising the issue for the first
time in his motion for a new trial, the issue ordinarily would be waived and cannot be
presented as a ground for appeal absent plain error.

       Though not cited by either party, this Court‟s opinion in State v. Mario C. Gray
a/k/a Ricky Fletcher, No. M2006-00398-CCA-R3-CD, 2007 WL 4547970 (Tenn. Crim.
App. Dec. 17, 2007), perm. app. denied (Tenn. Apr. 28, 2008), is instructive. In Mario
C. Gray, the defendant was indicted for aggravated robbery and attempted first degree
murder. At trial, he was convicted of aggravated robbery and felony reckless
endangerment. On appeal, the defendant argued that felony reckless endangerment was
not a lesser included offense of attempted first degree murder. The defendant failed to
object to the jury charge at trial. Id. at *10.

        In its analysis of the issue, this Court relied in part upon Tennessee Code
Annotated section 40-18-110(d), State v. Davenport, 980 S.W.2d 407 (Tenn. Crim. App.
1998), and Demonbreun v. Bell, 226 S.W.3d 321 (Tenn. 2007). Notably, in Demonbreun,
the defendant was charged with attempted first degree murder and was ultimately
convicted of aggravated assault because the trial court charged the jury with aggravated
assault as a lesser included offense. Seeking habeas relief, the defendant in Demonbreun
argued that his conviction was void because the indictment failed to notify him of the
charges against him, namely aggravated assault, because aggravated assault was not a
lesser included offense of attempted first degree murder. However, defense counsel had
requested the instruction at trial. Initially, this Court granted habeas relief, determining
that, because aggravated assault was not a lesser included offense of attempted first
degree murder at the time of the defendant‟s conviction, the defendant could not legally
be convicted of an offense that was not charged in the indictment. Wayford Demonbreun
v. Ricky Bell, No. M2005-01741-CCA-R3-HC, 2006 WL 197106 (Tenn. Crim. App. Jan.
                                              -8-
26, 2006), perm. app. granted (Tenn. Aug. 21, 2006). Thus, the conviction for
aggravated assault was void on its face because the trial court lacked the authority to
render a judgment. Id. at *5. The Tennessee Supreme Court granted permission to
appeal and determined that the court would:

      continue to follow the rule set forth in Davenport, 980 S.W.2d at 409, and
      reaffirmed in [State v.] Stokes, 24 S.W.3d [303,] 306 [(Tenn. 2000)], that
      we will not presume consent to an amendment to an indictment merely
      from the defendant‟s silent acquiescence to a jury instruction based on an
      incorrect belief that an offense is a lesser included offense. However, we
      find nothing in Stokes to prevent the court from finding an effective
      amendment to an indictment where the defendant actively seeks the jury
      instruction on the uncharged offense. A defendant should not be able to
      “„complain about convictions on an offense which, without his own
      counsel‟s intervention, would not have been charged to the jury.‟” [State
      v.] Ealey, 959 S.W.2d [605,] 612 [(Tenn. Crim. App. 1997)] (quoting [State
      v. Robert W.] Bentley, [No. 02C01-9601-CR-00038], 1996 WL 594076, at
      *2 [(Tenn. Crim. App. Oct. 17, 1996]). This is particularly true in light of
      Tennessee Rule of Appellate Procedure 36(a), which states in pertinent
      part: “Nothing in this rule shall be construed as requiring relief be granted
      to a party responsible for an error or who failed to take whatever action was
      reasonably available to prevent or nullify the harmful effect of an error.”

Demonbreun, 226 S.W.3d at 326.

      Following that reasoning, in Mario C. Gray, this Court determined:

              where a statute is susceptible to two interpretations, one in harmony
      with, and the other in violation of, constitutional provisions, it is the duty of
      the courts to interpret the statute so as to bring it within constitutional
      limitation. Ellenburg v. State, 215 Tenn. 153, 384 S.W.2d 29, 31 (Tenn.
      1964) (citing Exum v. Griffis Newbern Co., 144 Tenn. 239, 230 S.W. 601,
      603 (Tenn. 1921)). Bearing this tenet in mind, we hold that T.C.A. § 40-
      18-110(d) provides for a waiver of a defendant‟s right to challenge only a
      lesser included offense instruction, since a truly lesser included offense is
      already embraced in the principal charge. This was the case in [State v.]
      Christopher S. Love [No. M2005-01731-CCA-R3-CD, 2006 WL 2843437
      (Tenn. Crim. App. Oct. 5, 2006)]. The statute however does not create a
      waiver through a mere failure of a defendant to object and by implication
      an amendment to the indictment to allege any offense the trial court cares to
      inject into the prosecution.
                                             -9-
               T.C.A. § 40-18-110(d) does not provide for a waiver of appellate
       review where a defendant fails to object to an offense that is not a lesser
       included offense of the principal charge already in the indictment. A
       fortiori a defendant‟s mere failure to object to a proposed jury instruction
       which includes an offense that is not a lesser included offense, will likewise
       not constitute implicit consent to an amendment to the indictment.

Mario C. Gray, 2007 WL 4547970, at *13-14 (Emphasis in original).

        Applying the logic of Mario C. Gray to the case herein, if Defendant is correct in
his assertion that aggravated sexual battery is not a lesser included offense of rape of a
child, then the trial court‟s instructions were in error, and Defendant‟s silence does “not
constitute implicit consent to an amendment to the indictment.” Id. According to Mario
C. Gray, in this situation, Defendant would be entitled to relief despite his failure to
object to the instructions at trial. Thus, we disagree with the State‟s argument that
Defendant has waived the issue.

       Aggravated Sexual Battery as a Lesser Included Offense of Rape of a Child

       In order to determine whether aggravated sexual battery is a lesser included
offense of rape of a child, we look to the process utilized by courts to determine whether
an offense is a lesser included offense of the offense charged in the indictment. Prior to
the enactment of Tennessee Code Annotated section 40-18-110 in July of 2009, the
Tennessee Supreme Court adopted a process for determining if the evidence presented
during a trial justified a jury instruction on a lesser included offense. Burns, 6 S.W.3d at
469. Under Burns, an offense is a lesser included offense of an indicted offense if:

       (a) all of its statutory elements are included within the statutory elements of
           the offense charged; or

       (b) it fails to meet the definition in part (a) only in the respect that it
           contains a statutory 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; or

       (c) it consists of
                                            -10-
                 (1) facilitation of the offense charged . . . ; or

                 (2) an attempt to commit the offense charged . . .; or

                 (3) solicitation to commit the offense charged.

Id. at 466-67.

        Under the test set forth in Burns and the application of that test by the courts of
this state, it was clear that aggravated sexual battery was a lesser included offense of rape
of a child under part (b)(2). It failed to meet the definition of a lesser included offense
under part (a) because it contained an additional element establishing a less serious harm
or risk of harm to the victim. See, e.g., State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Elkins, 83 S.W.3d 706, 713 (Tenn. 2002).

        Ten years after Burns, Tennessee Code Annotated section 40-18-110 was
amended by adding subsections (f) and (g). With this amendment, the Legislature
codified in large part the test articulated in Burns. See Jeremy Wendell Thorpe, 2015 WL
1546392, at *8. Subsection (f)(1) corresponds to part (a) of the Burns test set forth above
and defines a lesser included offense as one in which all the statutory elements are
“included within the statutory elements of the offense charged[.]” Subsections (f)(2)-(4)
correspond to part (c) of the test set forth in Burns and define lesser included offenses as
facilitation, attempt, or solicitation to commit the indicted offense. Subsection (g)
enumerates specific offenses as lesser included offenses of certain homicide and sexual
offenses. Specifically, the statute provides as follows:

       (f) An offense is a lesser included offense if:

       (1) All of its statutory elements are included within the statutory elements
       of the offense charged;

       (2) The offense is facilitation of the offense charged or of an offense that
       otherwise meets the definition of lesser included offense in subdivision
       (f)(1);

       (3) The offense is an attempt to commit the offense charged or an offense
       that otherwise meets the definition of lesser included offense in subdivision
       (f)(1); or



                                                 -11-
      (4) The offense is solicitation to commit the offense charged or an offense
      that otherwise meets the definition of lesser included offense in subdivision
      (f)(1).

      (g)(1) Second degree murder is a lesser included offense of first degree
      murder as defined in § 39-13-202.

      (2) Voluntary manslaughter is a lesser included offense of premeditated
      first degree murder and second degree murder.

      (3) Aggravated sexual battery is a lesser included offense of aggravated
      rape.

      (4) Sexual battery and sexual battery by an authority figure are lesser
      included offenses of rape and aggravated rape.

T.C.A. § 40-18-110.

        At first glance, it may appear that Tennessee Code Annotated section 40-18-110
was intended as a codification of the Burns test. However, it does not contain a section
corresponding to part (b) of the Burns test, which addresses different mental states and
less serious harm or risk of harm. This omission raises the question of whether part (b) of
Burns still exists after the amendment of the statute. This question was approached by
the supreme court recently in State v. Fayne, 451 S.W.3d 362 (Tenn. 2014). While the
court provided a great deal of instruction with regard to the statute‟s application post-
Burns, it declined to answer the question of whether part (b) of the Burns test has been
abrogated by the statute as it was not necessary for the resolution of the issues presented
in that case. See Fayne, 451 S.W.3d at 368 n.5. The posture of this case requires that we
face the abrogation question straight on.

       We must presume that the General Assembly intended each word in Tennessee
Code Annotated section 40-18-110 to have a specific purpose and meaning. See
Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 44 (Tenn. 2013) (citing
State v. Hawk, 170 S.W.3d 547, 551 (Tenn. 2005)). If the statutory language is clear and
unambiguous, we apply its plain meaning, understood in its normal and accepted usage,
without a forced interpretation. Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013)
(quoting Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009)). In other words, if part (b) of




                                           -12-
the Burns test was left out of the statutory language, we must presume that it was an
intentional act on the part of the Legislature.4

       “The power to define what shall constitute a criminal offense and to assess
punishment for a particular crime is vested in the legislature.” State v. Burdin, 924
S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992);
Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558,
559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that
the Legislature cannot delegate the authority to create crimes to counties or
municipalities); cf. State v. Watkins, 362 S.W.3d 530, 542 (Tenn. 2012) (citing Brown v.
Ohio, 432 U.S. 161, 165 (1977) and quoting Whalen v. U.S., 445 U.S. 684, 689 (1980))
(“The Double Jeopardy Clause does not limit the legislative authority to define criminal
offenses and to prescribe punishments . . . . because „within our federal constitutional
framework the legislative power, including the power to define criminal offenses and to
prescribe the punishments to be imposed upon those found guilty of them, resides wholly

        4
           On the other hand, if we were to determine the statutory language was ambiguous, we could
decipher legislative intent in other ways, including consideration of the broader statutory scheme,
legislative history, and other sources. Thurmond v. Mid-Cumberland Infectious Disease Consultants,
PLC, 433 S.W.3d 512, 517 (Tenn. 2014) (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn.
2012)). Tennessee Code Annotated section 40-18-110 was amended in 2009 by Public Chapter 439.
When we look at the legislative history, as explained by Senator Doug Overbey during the Senate session
on June 8, 2009, “the purpose of House Bill 588 [the proposed legislation] is to put in statute what
constitutes a lesser included offense.” Hearing on S.B. 783, 106th General Assembly, Senate Sess.
(Tenn. June 8, 2009). An amendment to the bill, filed by Senator Mae Beavers and agreed to by the
District Attorneys and the Administrative Office of the Courts, added subsection (g), setting forth specific
lesser included offenses and was designed to “clarif[y] what is already current practice in court in regards
to lesser offenses.” Id. Senator Overbey explained that:

        Under section 1 of the amendment you have paragraph (f) and paragraph (g), paragraph
        (f) is to clarify by definition what‟s a lesser included offense. Apparently confusion
        exists under current law, so that the purpose of codifying is so that the judges will know
        exactly what to charge the jury with regard to a lesser included offense. Paragraph (g) of
        section 1 makes some specific references as to what are lesser included offenses as
        interpreted by case law. This puts it into statute, again, so there will be no question about
        these specific offenses are lesser included offenses of the offense charged.

Id. The next day, during the House Session, Representative Kent Coleman explained that the “bill [was]
intended to apply only to the offenses that are included within the bill; therefore, the Burns and Page
decisions would still be applicable in certain cases. But in the cases that are specified in this bill as
amended, the lesser included offenses would be applicable in those charges.” Hearing on H.B. 588, 106th
Gen. Assembly, House Session (Tenn. June 9, 2009). The bill passed and the statute was enacted that
year. While it is evident from listening to the discussion on the matter that the statute was designed to
clarify the law with regard to lesser included offenses, we find the explanations given during that
discussion do little to resolve the issue squarely before this Court.

                                                    -13-
with the Congress.‟”). Thus, the Legislature certainly has the authority to designate what
is a crime in Tennessee and, by implication, what is a lesser included offense of a given
crime.

       Defendant cites Dallas Jay Stewart to support his argument that aggravated sexual
battery is not a lesser included offense of rape of a child post-amendment of Tennessee
Code Annotated section 40-18-110. See 2013 WL 3820992 at *37. The panel in Dallas
Jay Stewart examined whether aggravated sexual battery was a lesser included offense of
rape of a child in the context of a double jeopardy analysis. Specifically, this Court
looked to whether multiple convictions for aggravated sexual battery and rape of a child
occurring on the same date should be merged, using a plain error analysis because the
issue was not raised by either party at trial. This Court utilized the following reasoning to
determine if double jeopardy was violated:

               Blockburger [v. United States, 284 U.S. 299 (1932),] also requires
       consideration of whether one offense is a lesser included offense of the
       other. [State v.] Watkins, 362 S.W.3d [530,] 557 [(Tenn. 2012)]. Lesser
       included offenses are defined by Tennessee Code Annotated section 40-18-
       110(f) and (g) (2012). The statute does not classify aggravated sexual
       battery as a lesser included offense of rape of a child. See T.C.A. § 40-18-
       110(f), (g). Tennessee Code Annotated section 40-18-110(g)(3) provides,
       “Sexual battery and sexual battery by an authority figure are lesser included
       offenses of rape and aggravated rape.” Similarly, Code section 40-18-
       110(g)(4) (2012) provides, “[a]ggravated sexual battery is a lesser included
       offense of aggravated rape.” Thus, neither of these statutory provisions
       directly addresses whether aggravated sexual battery involving a child is a
       lesser included offense of rape of a child. We note that the offense that is
       now rape of a child was previously a category of aggravated rape but was
       recodified in a separate subsection of the Code, albeit before the enactment
       of Code section 40-18-110(g). See T.C.A. §§ 39-13-502 (2010), Sent‟g
       Comm‟n Cmts.; 39-13-522 (rape of a child). We likewise note that both
       aggravated rape and rape of a child involve the same conduct—unlawful
       sexual penetration of a victim. In the case of aggravated rape, there are
       various alternatives that qualify unlawful sexual penetration of a victim as
       aggravated rape. See id. § 39-13-502. In the case of rape of a child, the
       qualifier is that the unlawful sexual penetration occurs to a child. See id. §
       39-13-522. Nevertheless, Code section 40-18-110(f) and (g) took effect on
       July 1, 2009, and the offenses in this case occurred after that date, on July
       22 and 29, 2009. The legislature expressly provided the means for
       determining lesser included offenses, and it excluded aggravated sexual
       battery as a lesser included offense of rape of a child. We are obligated to
                                            -14-
        follow its pronouncements. Cf. State v. David Lynn Harrison, No. E2008-
        01082-CCA-R3-CD[, 2010 WL 3238309, at *10] (Tenn. Crim. App. Aug.
        17, 2010) (applying law as it existed at the time of the offense, not the
        subsequent statutory enactment, to determine whether an offense was a
        lesser included offense of another).

Id. While this Court did not address the propriety of jury instructions charging
aggravated sexual battery as a lesser included offense of rape of a child—the issue
presented in the case herein—we find this reasoning persuasive.5

        The Legislature crafted Tennessee Code Annotated section 40-18-110 to set forth
the test for determining whether an offense is a lesser included offense. In section (g)(3),
the statute specifically designates aggravated sexual battery as a lesser included offense
of aggravated rape. The statute makes no mention of aggravated sexual battery as a
lesser included offense of rape of a child. Further, as explained below, aggravated sexual
battery does not satisfy the test set forth in Tennessee Code Annotated section 40-18-
110(f)(1), as all of its statutory elements are not included within the statutory elements of
the offense charged.

       “Rape of a child is the unlawful sexual penetration of a victim by the defendant or
the defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.” T.C.A. § 39-13-522(a). “Sexual penetration” is defined as
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person‟s body or of any object into the genital or anal
        5
            We acknowledge that several cases that have reached this Court after the amendment of
Tennessee Code Annotated section 40-18-110 have upheld convictions for aggravated sexual battery as a
lesser included offense of rape of a child. See, e.g., State v. Allen Cornelius Bond, W2014-00069-CCA-
R3-CD, 2015 WL 1454520, at *9 (Tenn. Crim. App. Mar. 27, 2015) (evaluating the sufficiency of the
evidence without addressing whether aggravated sexual battery is a lesser included offense); State v.
James Prindle, No. W2012-02285-CCA-R3-CD, 2014 WL 683879, at *20 (Tenn. Crim. App. Feb. 19,
2014) (acknowledging the holding in Dallas Jay Stewart, but upholding conviction for aggravated sexual
battery as a lesser included offense of rape of a child where there was no double jeopardy argument made
by the defendant and the defendant specifically requested the instruction); State v. Donald West Allen, Jr.,
No. E2012-12773-CCA-R3-CD, 2013 WL 5300659, at *1 (Tenn. Crim. App. Sept. 18, 2013) (evaluating
issue of sufficiency of the evidence for conviction for aggravated sexual battery as a lesser included
offense of rape of a child); State v. Jerome R. Flanigan, No. E2012-01852-CCA-R3-CD, 2013 WL
3964795, at *1 (Tenn. Crim. App. Jul. 31, 2013), perm. app. denied (Tenn. Dec. 10, 2013); State v.
Kenneth Moore, No. M2013-02022-CCA-R3-CD, 2014 WL 3015518, at *1 (Tenn. Crim. App. Jul. 2,
2014); State v. Gerald Branden Fitzpatrick, No. M2012-00186-CCA-R3-CD, 2013 WL 2152506, at *1
(Tenn. Crim. App. May 20, 2013), perm. app. denied (Tenn. Nov. 18, 2013); State v. Steven D. Pippin,
No. E2012-00307-CCA-R3-CD, 2012 WL 6115065, at *3 (Tenn. Crim. App. Dec. 10, 2012), perm. app.
denied (Tenn. Apr. 9, 2013). None of these cases directly raised the claim that aggravated sexual battery
is not a lesser included offense of rape of a child.

                                                   -15-
openings of the victim‟s, the defendant‟s, or any other person‟s body, but emission of
semen is not required.” T.C.A. § 39-13-501(7). “Aggravated sexual battery is unlawful
sexual contact with a victim by the defendant or the defendant by the victim” when the
victim “is less than thirteen (13) years of age.” T.C.A. § 39-13-504(a)(4). “„Sexual
contact‟ includes the intentional touching of the victim‟s [or] the defendant‟s . . . intimate
parts, or the intentional touching of the clothing covering the immediate area of the . . .
intimate parts, if that intentional touching can be reasonably construed as being for the
purpose of sexual arousal or gratification.” T.C.A. § 39-13-501(6). Rape of a child and
aggravated sexual battery differ in that rape of a child requires penetration and
aggravated sexual battery requires sexual contact for the purpose of sexual arousal or
gratification. See State v. Kenneth Moses, No. E2014-01013-CCA-R3-CD, 2015 WL
1306850, at *4 (Tenn. Crim. App. Mar. 20, 2015). In other words, aggravated sexual
battery is not, using the test set forth in Tennessee Code Annotated section 40-18-
110(f)(1), a lesser included offense of rape of a child.

        As a result of our determination that aggravated sexual battery is not a lesser
included offense of rape of a child under Tennessee Code Annotated section 40-18-110
as amended, Defendant‟s conviction is improper because the charge of aggravated sexual
battery operated as a constructive amendment of the indictment. However, Tennessee
Code Annotated section 39-15-401(f) specifically provides that child abuse may be a
lesser included offense of “any kind of . . . sexual offense, if the victim is a child and the
evidence supports a charge under this section.” Child abuse was charged as a lesser
included offense to the jury in this case, and we find the record contains sufficient
evidence to support such a conviction beyond a reasonable doubt. See State v. Swift, 308
S.W.3d. 827, 831-32 (Tenn. 2010).

       At first glance, one might wonder how, in light of our analysis herein of the statute
defining lesser included offenses, we could come to the conclusion that child abuse is a
proper lesser included offense of rape of a child. As noted above, the specific provision
relating to a particular subject takes precedence over a general provision applicable to a
multitude of subjects. Black, 897 S.W.2d at 683. A specific statutory provision,
Tennessee Code Annotated section 39-15-401(f), setting forth child abuse as a lesser
included offense of “any kind of . . . sexual offense” is, without argument, a specific
statutory provision. Thus, child abuse is a proper lesser included offense of rape of a
child. Moreover, after reviewing the evidence presented at trial, we determine that the
proof supports a conviction of child abuse as defined in Tennessee Code Annotated
section 39-15-401(a), a Class D felony. In other words, there was ample proof that
Defendant “knowingly, other than by accidental means, treat[ed the victim] . . . in such a
manner as to inflict injury . . .,” and the victim was under the age of eight at the time of
the incident. Id. The victim stated that her vagina was “pinched” by Defendant. The
medical examination revealed a number of injuries to the external labia as well as some
                                             -16-
internal injuries, including “bruising” on the hymen and the area around the hymen,
consistent with the victim‟s report of being hurt with fingernails. Consequently, we
modify the conviction in this case to child abuse and remand the matter to the trial court
for entry of a corrected judgment to reflect a conviction for the Class D felony of child
abuse and for a new sentencing hearing.

        For the sake of clarity in an area that has become somewhat cloudy, we believe
that Tennessee Code Annotated section 40-18-110, with its exclusion of part (b) of the
Burns test, significantly reduces the number of lesser included offenses a trial court will
be required to charge. We note that the lesser included offenses specifically enumerated
in subsection (g) differ from the greater offense in that they involve a different mental
state or involve a less serious harm or risk of harm to the victim. Thus, only those limited
offenses, specifically designated by the Legislature, survive the abrogation of part (b) of
the Burns test. Certainly, if the proof fairly raises evidence of an offense that contains all
the statutory elements within the indicted offense—which will also logically include
criteria elements such as value and weight, if disputed—the lesser included offense
should be charged by the trial judge. See T.C.A. § 40-18-110(f)(1). If the proof fairly
raises evidence of facilitation, attempt, and/or solicitation to commit the indicted offense
or its lesser included offense, such lesser included offense should be charged by the trial
judge. See id. at (f)(2)-(4). Further, if the Legislature has created a specific statute that
designates a lesser included offense for the indicted offense (such as in this case), the
statutory lesser included offense(s) should be charged by the trial judge if fairly raised by
the proof at trial.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is modified. We impose
a conviction of the lesser included offense of child abuse. The matter is remanded for
entry of a corrected judgment and a sentencing hearing on the child abuse conviction.


                                                    ___________________________
                                                    TIMOTHY L. EASTER, JUDGE




                                             -17-
