          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE           FILED
                           FEBRUARY 1999 SESSION
                                                          April 30, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                    )
                                       )
              Appellee,                )   C.C.A. No. 01C01-9805-CR-00202
                                       )
vs.                                    )   Davidson County
                                       )
TINA SWINDLE,                          )   Honorable Seth Norman
                                       )
              Appellant.               )   (Facilitation of Rape of a Child,
                                       )   2 counts; Aggravated Sexual
                                       )   battery, 2 counts)
                                       )

FOR THE APPELLANT:                         FOR THE APPELLEE:

TERRY J. CANADY                            PAUL G. SUMMERS
Suite 400, 211 Printer’s Alley Bldg.       Attorney General & Reporter
Nashville, TN 37201
                                           ELIZABETH B. MARNEY
                                           Assistant Attorney General
                                           425 Fifth Avenue North
                                           2d Floor, Cordell Hull Building
                                           Nashville, TN 37243

                                           LILA STATOM
                                           BILL REED
                                           Asst. District Attorneys General
                                           Washington Sq.Two - Ste. 500
                                           222 Second Avenue, North
                                           Nashville, TN 37201




OPINION FILED: _____________

AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                        OPINION


                The defendant, Tina Swindle, appeals from two of the four convictions

she received after a jury trial in the Davidson County Criminal Court. The defendant

was convicted of the following offenses:

       Count:                         Offense:                              Sentence:

       (1)                         Facilitation of rape of a child           10 years
       (2)                         Facilitation of rape of a child           8 years
       (3)                         Aggravated sexual battery                 8 years
       (4)                         Aggravated sexual battery                 8 years

All of the convictions constitute Class B felonies, and the defendant was sentenced

as a Range I, standard offender. All of these sentences were imposed to run

concurrently. The defendant appeals only from the convictions of aggravated

sexual battery. The single issue on appeal is whether the defendant was denied her

rights to a trial by jury when the trial court failed to instruct the jury as to the offense

of assault. After a review of the record, the briefs of the parties, and the applicable

law, we affirm the judgment of the trial court.



                The charges originated in an indictment that charged the defendant

and Daniel Hall with the commission of various sexual offenses. The victim of all

these offenses is the defendant’s daughter, who was nine years of age at the time

the offenses were committed. The charges against Daniel Hall were severed from

the defendant’s charges.



                The defendant and the victim’s father were divorced, and the

defendant exercised visitation with the victim on alternate weekends. Sometimes

during these visitations, Daniel Hall, the defendant’s boyfriend, was present in the

defendant’s home. On one such occasion, the victim was in bed with the defendant

and Daniel Hall while Hall was performing cunnilingus on the defendant. The victim

testified that the defendant asked Hall, “Why don’t you do it to [the victim] for a little

while?” The victim testified that Hall then moved over and “done it to me.” She said

the defendant assisted Hall by grabbing the victim on the thighs and opening her



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legs. The state elected this episode as the basis for count (1). For count (2), the

state elected a separate episode in which defendant opened the victim’s legs in

order to accommodate Hall’s act of cunnilingus. To establish the aggravated sexual

battery charged in count (3), the state elected an episode in which the defendant

took both of the victim’s hands, put them on Hall’s penis and made the victim “pull

up and down on it.” To establish the aggravated sexual battery charge contained

in count (4), the state elected an episode which was described by the victim as the

defendant placing her hand on the victim’s “front private part and . . . rubbing it up

and down.”



              The defendant offered no proof; however, during the state’s case in

chief, the investigating officer introduced a tape of the defendant’s pretrial

statement. She generally denied involvement in the crimes.



              The defendant contends with respect to counts (3) and (4), the trial

court should have instructed the jury as to the lesser included offense of assault.

On the other hand, the state contends that there was no basis in the proof to

warrant the charge on assault. The state also maintains that, if the failure to give

the assault instruction was error, the error was harmless.



              As used in the present case, aggravated sexual battery “is unlawful

sexual contact with a victim by the defendant or the defendant by a victim [when]

. . . the victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-

504(a)(4) (1997). “‘Sexual contact’ includes the intentional touching of the victim’s,

the defendant’s, or any other person’s intimate parts . . . if that intentional touching

can be reasonably construed as being for the purpose of sexual arousal or

gratification.” Tenn. Code Ann. § 39-13-501(6) (1997).



              Assault is committed by a person who “intentionally or knowingly

causes physical contact with another and a reasonable person would regard the



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contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a)(3)

(1997). An assault defined in section 39-13-101(a)(3) is a Class B misdemeanor.



              The trial court is obliged to instruct the jury on all lesser offenses when

the evidence contains facts that “‘are susceptible of inferring guilt of any lesser

included offense.”’ State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996) (quoting

State v. Wright, 618 S.W.2d 310 (Tenn. Crim. App. 1981)). However, when “the

evidence in a record clearly shows that the defendant was guilty of the greater

offense and is devoid of any evidence permitting an inference of guilt of the lesser

offense, the trial court’s failure to charge on a lesser offense is not error.” State v.

Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994).



              In support of his claim that assault should have been charged, the

defendant relies upon State v. Howard, 926 S.W.2d 579 (Tenn. Crim. App. 1996),

overruled on other grounds, State v. Williams, 977 S.W.2d 101, 106, (Tenn. 1998).

In Howard, “the evidence adduced at trial established that the defendant rubbed the

victim’s buttocks, legs and back . . . [and] tried to place his hands between the

victim’s legs and to force the victim to suck this thumb.” Howard, 926 S.W.2d at

584. Howard claimed the trial court “erred by refusing to instruct the jury on assault,

a lesser included offense of aggravated sexual battery.” Id. at 585. This court held

that assault as defined in code section 39-13-101(a)(3) is “clearly a lesser included

offense” of aggravated sexual battery and that the trial court erred in failing to

instruct on the lesser offense of assault. Id. at 586-87.



              To be sure, Howard is emblematic of a number of Tennessee cases

which have held that assaultive offenses are lesser included offense of various

forms of sexual offenses. See State v. Jeffrey Edward Pitts, No. 01C01-9701-CC-

00003, slip op. at 15, n. 8 (Tenn. Crim. App., Nashville, Mar. 18, 1999) (parties

agreed that, under Howard, assault is a lesser included offense of sexual battery);

Terry Lewis v. Metropolitan General Sessions Ct., No. 01C01-9410-CC-00355, slip



                                           4
op. at 14, (Tenn. Crim. App., Nashville, Feb. 13, 1996) (“Assault and battery was a

lesser included offense of sexual contact.”), perm. app. denied (Tenn. 1997); State

v. Grady E. Shofner, No. 03C01-9403-CR-00113, slip op. at 10 (Tenn. Crim. App.,

Knoxville, June 27, 1995) (“Assault has long been considered a lesser-included

offense of rape and sexual battery in Tennessee.”); State v. Banes, 874 S.W.2d 73,

79 (Tenn. Crim. App. 1993) (under circumstances, jury should have been instructed

that aggravated sexual battery was a lesser included offense of aggravated rape);

Hershel Clark v. State, No. 02C01-9112-CR-00273, slip op. at 6 (Tenn. Crim. App.,

Jackson, June 2, 1993) (“Assault and battery has been held to be a lesser included

offense of rape in this state.”) (citations omitted); State v. Reed, 689 S.W.2d 190,

193-94 (Tenn. Crim. App. 1984) (aggravated assault as alleged in the indictment

was a lesser included offense of aggravated rape); State v. Johnson, 670 S.W. 2d

634, 637 (Tenn. Crim. App. 1984) (holding that the aggravated assault offense

alleged in the indictment was a lesser included offense of aggravated rape).



              We have concluded, however, that later cases have implicitly

overruled Howard. Resolution of this issue hinges on the approach taken to

determining lesser included offenses. In Howard v. State, 578 S.W.2d 83 (Tenn.

1979), the dissent described three approaches: (1) the statutory approach, (2) the

pleadings approach, and (3) the evidentiary approach. Howard, 578 S.W.2d at 86

(Henry, C.J., dissenting). The Howard v. State majority held that “an offense is

necessarily included in another if the elements of the greater offense, as those

elements are set forth in the indictment, include, but are not congruent with, all the

elements of the lesser.” Howard, 578 S.W.2d at 85 (emphasis added). Howard v.

State rejected an evidentiary approach and has been construed to mandate a

pleadings approach in comparing the elements of greater and lesser offenses.

Reed, 689 S.W.2d at 193-94 (aggravated assault “may or may not” be a lesser

included offense of aggravated rape, “depending upon the allegations in the

indictment,” citing Howard v. State) (emphasis added); Johnson, 670 S.W.2d at 637

(aggravated assault included in offense of aggravated rape, based upon allegations



                                          5
in the indictment); but see State v. Gregory Coulson, No. 01C01-9709-CR-00397,

slip op. at 3-4 (Tenn. Crim. App., Nashville, Sept. 15, 1998) (commenting that

Howard v. State took the statutory approach to element analysis).           Under a

pleadings approach, “a lesser offense may be included in the greater if the

language in the charging instrument . . . sets forth the elements of the lesser

offense even though under the statutory definitions it would be possible to commit

the greater offense without committing the lesser.” Coulson, slip op. at 4 (italics in

original). Under the statutory approach the elements contained in the proscriptive

statutes are analyzed in the abstract.



              For purposes of the present case, the earlier meanderings of our

appellate courts were brought to a halt by our supreme court in State v. Cleveland,

959 S.W.2d 548 (Tenn. 1998). In Cleveland, the court, apparently taking the

statutory approach, analyzed in the abstract the respective statutory elements of

aggravated assault and aggravated rape to determine that the latter is not a lesser

included offense of the former. Cleveland, 959 S.W.2d at 553. Further, the court

said that “of the remaining offenses charged by the trial court, attempted rape,

aggravated sexual battery, attempted aggravated sexual battery, sexual battery, and

attempted sexual battery are lesser grades or classes of the offenses [sic] of

attempted aggravated rape . . . [and f]or the same reasons described . . . [in the

analysis of statutory elements], assault is neither a lesser grade of offense or [sic]

a lesser included offense” of aggravated rape. Cleveland, 959 S.W.2d at 554, n.

5. Although it may be argued that Cleveland did not eliminate assault as a lesser

included offense of aggravated sexual battery,1 we note that Judge Wade, the

author of this court’s opinion in Howard has recently opined, based on Cleveland,


       1
               Cleveland and Howard may be viewed as harmonious. Footnote 5
in Cleveland does not necessarily reject the Howard holding because Cleveland
includes aggravated sexual battery in the listing of “lesser grades or classes” of
offenses of attempted aggravated rape and does not purport to say that the
former is a lesser included offense of the latter. Therefore, the fact that assault
is neither a lesser grade nor lesser included offense of attempted aggravated
rape does not necessarily exclude it as a lesser included offense of aggravated
sexual battery. Howard says that section 39-13-101(a)(3) assault is a lesser
included offense of aggravated sexual battery.

                                          6
that “assault is neither a lesser grade nor a lesser included offense of sexual

battery.” State v. Edward L. Davis, No. 02C01-9712-CC-00480, slip op. at 10

(Tenn. Crim. App., Jackson, Mar. 19, 1999). In light of these recent developments,

we conclude that assault is not a lesser included offense of the offense of

aggravated sexual battery.



              Even if assault were a lesser included offense of aggravated sexual

battery, the record reflects no basis for instructing the jury as to the misdemeanor

offense of assault. In the present case, the record is devoid of any evidence to

support an inference that the defendant committed assault. In State v. Howard, this

court observed that the evidence did not “establish that the touching was clearly of

a sexual nature, as is the case in the ‘all or nothing’ line of cases which do not

require instruction on a lesser included offense.” Howard, 926 S.W.2d at 586. In

other words, Howard did not deny touching the victim; rather, he averred that any

touching was devoid of sexual meaning.



              Despite the defendant’s equivocal acknowledgment in her pretrial

statement that Hall possibly manipulated the defendant’s hand while the defendant

was unconscious, the jury was left with two options: they could accredit her pretrial

statement that she neither intentionally nor knowingly committed an offense against

her daughter, or they could accredit the testimony of the victim that the defendant

intentionally committed the crimes. See State v. Sylvester Smith, No. 02C01-9202-

CR-00028, slip op. at 4 (Tenn. Crim. App., Jackson, July 15, 1992). Based on the

description of the offenses in the evidence, any unlawful contact was clearly

unlawful sexual contact -- from the inception and throughout the activity. See Tenn.

Code Ann. § 39-13-501(6), -504(a) (1997).



              As in Hershel Clark, “no evidence was offered that the attack was a

simple assault devoid of sexual intent.” See Hershel Clark, slip op. at 7. Had

assault been a lesser included offense of aggravated sexual battery, the trial court



                                         7
would not have been required to instruct the jury as to such a lesser offense

because the defendant “did not, either through [her] own testimony, or through

argument place this issue before the jury.” Id. The proof “clearly shows that the

defendant was guilty of the greater offense and is devoid of any evidence permitting

an inference of guilt of the lesser offense.” Stephenson, 878 S.W.2d at 550.



             Having concluded that no error was committed, we need not address

the state’s argument that any error was harmless.



             The judgment of the trial court is affirmed.



                                          ________________________________
                                          JAMES CURWOOD WITT, JR., Judge



CONCUR:




____________________________
DAVID G. HAYES, Judge




____________________________
JOHN EVERETT W ILLIAMS, Judge




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