          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE        FILED
                           OCTOBER 1998 SESSION
                                                     December 3, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9802-CC-00080
      Appellee,                      )
                                     )    RUTHERFORD COUNTY
VS.                                  )
                                     )    HON. J.S. DANIEL,
TROY R. WALLS,                       )    JUDGE
                                     )
      Appellant.                     )    (Sentencing)



FOR THE APPELLANT:                        FOR THE APPELLEE:

GERALD L. MELTON                          JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

JEFFREY S. BURTON                         DARYL J. BRAND
Assistant District Public Defender        Senior Counsel
201 West Main Street, Suite 101           Criminal Justice Division
Murfreesboro, TN 37130                    Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          WILLIAM C. WHITESELL, JR.
                                          District Attorney General

                                          PAUL A. HOLCOMBE, III
                                          Assistant District Attorney General
                                          303 Rutherford Co. Judicial Bldg.
                                          Murfreesboro, TN 37130




OPINION FILED:



CONVICTIONS VACATED; REMANDED



JOE G. RILEY,
JUDGE
                                           OPINION



       A Rutherford County grand jury indicted defendant for aggravated rape, two

counts of aggravated sexual battery, and rape of a child for incidents involving his

young female cousin. A negotiated plea agreement allowed defendant to plead to

one count of rape, a Class B felony, and one count of incest, a Class C felony. The

agreed upon sentences were eight years for rape and three years for incest to be

served consecutively as a Range I, standard offender. The sole issue on appeal is

the trial court’s denial of alternative sentencing. However, plain error dictates that

the convictions be VACATED and the case REMANDED for further proceedings.

The defendant pled guilty to incest which is neither a lesser included nor a lesser

grade of child rape; nor do the acts of the defendant constitute the crime of incest.




                                            FACTS



       Defendant is the first cousin of the female victim, K.W.1 He admitted having

sexual contact with the victim during the spring or early summer of 1991, while she

was visiting his home. Later that summer, defendant sexually penetrated the victim.

At the time, he was fifteen years old; she was five. When defendant was eighteen

and the victim was eight, sexual penetration again occurred.




                                 PROCEDURAL HISTORY



       Pursuant to a negotiated plea agreement, the state dismissed the two counts

of aggravated sexual battery upon defendant’s plea of guilty to the reduced charges

of simple rape as a lesser offense of aggravated rape and incest as a lesser offense

of child rape. Defendant agreed to consecutive eight and three year sentences.


       1
           It is this Court’s policy not to reveal the names of minor victims of sexual abuse.

                                                2
The trial court denied defendant’s application for alternative sentencing, and this

appeal followed.




                                   GUILTY PLEA



       By agreement, defendant pled to and was found guilty of one count of rape

and one count of incest. The agreed upon sentence was effectively 11 years with

the question of alternative sentencing left to the trial court’s discretion.

       Our review of the guilty plea hearing and sentencing hearing reveals no

discussion regarding the elements of the offense of incest. Rather, all parties

apparently operated under the assumptions that: (1) incest was a lesser offense of

child rape; and (2) the facts fit the crime of incest.           Unfortunately, those

assumptions were incorrect.



                                          A.

       Incest is neither a lesser included nor a lesser grade of the offense of rape

of a child. An offense is a lesser included offense “only if the elements of the

included offense are a subset of the elements of the charged offense and only if the

greater offense cannot be committed without also committing the lesser offense.”

State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). An offense is generally

considered a lesser grade offense if it is codified within the same title, chapter and

part of the Code. State v. Cleveland, 959 S.W.2d 548, 553 (Tenn. 1997).

       Rape of a child requires sexual penetration involving a child under 13 years

of age. Tenn. Code Ann. § 39-13-522. The incest statute proscribes sexual

penetration between persons of an enumerated level of kinship, but makes no

reference to age. Tenn. Code Ann. § 39-15-302. Each offense requires proof of

an essential element that the other does not. Under Trusty, neither offense is a

subset of the other. Additionally, as noted above, each offense is codified in a

different chapter and part of the Code. This confirms that each provision protects


                                           3
a different interest. The rape of a child statute protects children under age 13 from

sexual penetration; incest prohibits sexual penetration between particular levels of

family.

          Thus, incest is neither a lesser included nor a lesser grade offense of rape

of a child. See State v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982)(finding that

incest and aggravated rape are two distinct offenses and that a defendant can be

guilty of both as a result of a single act of intercourse).

          This Court has previously vacated an incest conviction based upon a guilty

plea when the indicted charge was rape. See State v. Jimmy D. Johnson, C.C.A.

No. 03C01-9602-CC-00062, Blount County (Tenn. Crim. App. filed October 16,

1997, at Knoxville). Judge Joseph M. Tipton concluded that the defendant was

convicted of an offense with which he was not charged. Id.

          For these reasons, the incest conviction must be set aside. Furthermore,

since the pleas to both rape and incest were entered pursuant to a plea agreement

for an effective 11-year sentence, both convictions must be set aside. The parties

may now proceed pursuant to the original indictment.



                                           B.

          A review of the guilty plea and sentencing hearings demonstrates that the

victim is defendant’s cousin. Contrary to the parties’ assumption, we note that the

incest statute does not include cousins within the proscribed level of kinship. See

Tenn. Code Ann. § 39-15-302(a)(1),(2). Therefore, defendant’s sexual conduct with

K.W., as contemptible as it was, did not violate the incest statute. For this reason,

we are reluctant to conclude that the indictment was impliedly amended by virtue

of the guilty plea.2



                                     SENTENCING




          2
        In State v. Jimmy D. Johnson, supra, Judge Tipton discussed the need for a
written amendment to an indictment.

                                           4
      In view of the need to remand for further proceedings, the issue of alternative

sentencing is pretermitted. Nevertheless, we will briefly address this issue.

      Our review of the sentence imposed by the trial court is de novo with a

presumption that the determinations of the trial court are correct. Tenn. Code Ann.

§ 40-35-401(d); State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The

presumption of correctness which attaches to the trial court’s action is conditioned

upon an affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

      In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant’s criminal record, the

defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

      Probation may be denied based solely upon the circumstances surrounding

the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995);

State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). However, the

circumstances must be especially violent, horrifying, shocking, reprehensible,

offensive or otherwise of an excessive or exaggerated degree; and the nature of the

offense must outweigh all factors favoring probation. Hartley, 818 S.W.2d at 374-

75.

      Although defendant is a Range I, standard offender, he was convicted of

simple rape, a Class B felony, in addition to incest, a Class C felony. A conviction

for a Class B felony negates the presumption that he is a favorable candidate for

alternative sentencing. See Tenn. Code Ann. § 40-25-102(6).

       Given the presumption of correctness of the trial court’s determinations, the

denial of alternative sentencing was appropriate.




                                         5
                                  CONCLUSION



      Since the defendant entered a guilty plea to rape and incest with an agreed

effective 11- year sentence, it is necessary to vacate both convictions and remand

for further proceedings pursuant to the original indictment.




                                               ____________________________
                                                JOE G. RILEY, JUDGE


CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE




____________________________
JOSEPH M. TIPTON, JUDGE




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