         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      June 20, 2006 Session

             STATE OF TENNESSEE v. DAVID MICHAEL CHUBB

                  Direct Appeal from the Criminal Court for Sumner County
                           No. 770-2002 Jane Wheatcraft, Judge


                    No. M2005-01214-CCA-R3-CD - Filed January 29, 2007


Hayes, David G., Judge, separate concurring.


        I join with the majority in concluding that the State’s special instruction submitted to the jury
constituted reversible error. I write separately only to note the following additional reasons for
finding the instruction was error. The special instruction, in its entirety, is as follows:

        The court instructs you that in a sexual abuse case you may convict the defendant on
        the basis of the victim’s testimony alone. Corroboration of the victim’s testimony
        is not necessary.

        First, I know of no requirement that the jury be instructed on an issue which is not the law
of the case. Thus, I find it unnecessary to instruct the jury that “corroboration of the victim’s
testimony [was] not necessary.”

        Second, and of greater concern, I find the trial court’s instruction is a misstatement of the
law. Tennessee Code Annotated section 40-17-121 (2003), which the State relies upon as authority
for the special instruction, provides:

        If the alleged victim of a sexual penetration or sexual contact within the meaning of
        § 39-13-501 is less than thirteen (13) years of age, such victim shall, regardless of
        consent, not be considered to be an accomplice to such sexual penetration or sexual
        contact, and no corroboration of such alleged victim’s testimony shall be required to
        secure a conviction if corroboration is necessary solely because the alleged victim
        consented.

(emphasis added).

       Contrary to the trial court’s instruction, the statute does not state that “the defendant [may
be convicted] on the basis of the victim’s testimony alone.” Rather, the statute provides only that
no corroboration of the victim’s testimony is required to secure a conviction where the victim
becomes an accomplice by virtue of his or her consent to the sexual misconduct. The statute was
intended only to negate the corroboration requirement for an accomplice’s testimony, not to lessen
the proof required to convict.

       For these additional reasons, I find the special instruction constitutes reversible error.




                                                       _____________________________________
                                                       DAVID G. HAYES, Judge




                                                 -2-
