         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON

                       Remanded by Supreme Court March 4, 2002



            STATE OF TENNESSEE v. STEVEN LEE WHITEHEAD



                      Appeal from the Circuit Court for Madison County

                            No. 99-152      Roy B. Morgan, Jr., Judge




                    No. W2002-00484-CCA-RM-CD - Filed June 27, 2002




NORMA MCGEE OGLE, J., dissenting.



               Because I have no difficulty concluding that the trial court’s failure to instruct the jury

on sexual battery constitutes harmless error according to the standard enunciated in State v. Allen,

69 S.W.3d 181, 191 (Tenn. 2002), I must respectfully dissent from the majority’s reversal of the

appellant’s convictions of rape. As acknowledged by the majority, our supreme court emphasized
in Allen that, “[w]hen a lesser-included offense instruction is improperly omitted, . . . the harmless

error inquiry is the same as for other constitutional errors” and entails an examination of both the

evidence adduced at trial and the defendant’s theory of defense. Id. As also acknowledged by the

majority, RB unequivocally testified at trial that the appellant’s sexual assault upon her included

three separate acts of sexual penetration, and her testimony was uncontradicted with the exception

of the appellant’s statements to the police denying any sexual activity whatsoever between himself

and RB. In other words, the appellant’s defense in this case did not hinge upon the nature of the

sexual activity between himself and RB but rather upon whether any sexual activity occurred.

Accordingly, with respect to the evidence underlying each count of rape, the appellant was either

guilty of the charged offense or entirely innocent. Under these circumstances, the trial court’s failure

to instruct the jury on sexual battery should not afford the appellant relief.



                I note with interest the majority’s quotation of the following language from Allen,

69 S.W.3d at 189: “The jury is not required to believe any evidence offered by the State. . . . We

therefore cannot agree that the decision to convict on a lesser-included offense may be taken away

from the jury whenever proof supporting the element distinguishing the greater offense from the

lesser offense is uncontroverted.” I also note that the majority extracted this language from that

portion of the supreme court’s decision addressing the issue of when a trial court should instruct a

jury on lesser-included offenses and not from that portion of the opinion addressing the issue of

when a trial court’s failure to do so constitutes harmless error. In short, I believe that the majority

has overlooked a critical distinction between those two issues, and I cannot join in the result thereby

achieved.

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NORMA McGEE OGLE, JUDGE




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