State v. James Fields

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH SESSION , 1998 FILED April 1, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9709-CC-00341 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN JAMES ROBERT FIELDS, ) JUDGE ) Appe llant. ) (Direct Appeal - Class B Misdemeanor ) Assault)

FOR THE APPELLANT: FOR THE APPELLEE:

TERRY J. LEONARD JOHN KNOX WALKUP 9 North Co urt Square Attorney General and Reporter P. O. Box 957 Camden, TN 38320 PETER M. COUGHLAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

ROBERT RADFORD District Attorney General 24th Judicial District P. O. Box 686 Huntingdon, TN 38344

OPINION FILED ________________________

REVERSED AND DISMISSED

JERRY L. SMITH, JUDGE

OPINION

In November of 1996 , a Henry Coun ty grand jury indicted Appellant James Robert Fields for one count of statutory rape. On February 26, 1997, a Henry Coun ty jury acquitted Appe llant of th e statu tory rap e cha rge an d con victed h im of Class B misdemeanor assault. After a sentencing hearing on March 10, 1997, the trial court imposed a six-month sentence, with ninety days of continuous confinement followed by three months of supervised probation. Appellant challenges both his conviction and his sentence, raising the following issues:

1) whether the evidence is sufficient to support his conviction; and

2) whether the trial court imposed an excessive sentence. After a review o f the record , we revers e the judgment of the trial court and dismiss the conv iction for ass ault.

FACTS

A.D.1 testified that she first met Appellant and Lucas Bradley Taylor on August 5, 1996, while she was drinking beer and smoking marijuana at the home of Kevin Hilt. A.D. eventually left Hilt’s home and traveled with Appellant and Taylor to Taylor’s residenc e. W hen they arrived at Taylor’s residence, Taylor went inside and Appellant and A.D. remained in the car. A.D. testified Appellant then a sked her for s ex, and she sa id noth ing in response. Appellant then lifted

1 The reco rd ind icate s tha t A.D . was four teen years old on Aug ust 5 , 199 6. It is th e polic y of this Court to p rotect the id entity of child se x abus e victims to the exte nt the circu msta nces p erm it.

-2-up A.D.’s shirt, unfastened her bra, unzipped her pants, and put his finger in her vagina.

A.D. testified that when Taylor returned, Appellant asked him to go back in the residence. When Taylor went back in the residence, Appellant unzipped A.D.’s pants again and put his finger back in her vagina. A.D. testified that she did not sa y anything during this occurre nce.

A.D. testified that Appellant then drove to a motel and paid for a room. Appellant then asked A.D. for sex and becam e angry and left when she declined. A.D. the n had s ex with T aylor.

Lucas Bradley Taylor testified that on August 5, 1996, he and Appellant went looking for marijuana. Their search eventually led them to the home of Kevin Hilt, where they met A .D. Ap pellan t then d rove T aylor a nd A.D . to Ta ylor’s residence in order to o btain som e cond oms. Taylor tes tified that on th e way to his residenc e, Appellant told A.D. that “you didn’t come along on this ride for nothing and your going to give u p some thing.”

Taylor testified that when h e was unab le to find any co ndom s at his residence, he got back in Appellant’s car and Appellant then drove to an establishment where Taylor could purchase condoms. During this time, Taylor saw that Ap pellan t had p laced his ha nd do wn A. D.’s pants. Taylor testified that A.D. did n ot say or d o anythin g while A ppellant h ad his ha nd dow n her pa nts.

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Taylor testified that shortly after these events, he entered an establishment and purchased some condoms. Taylor then got back in Appellant’s vehicle, and Appellant began driving to a m otel. Durin g this time, A ppella nt aga in plac ed his hand down A.D.’s pants. Taylor testified that A.D. did not say or do anything while Ap pellant ha d his han d down her pan ts.

Taylor testified that Ap pellant then drove to a motel and secured a room. Appellant then asked A.D . for sex, and A.D. de clined. Appellant b ecame angry and left, an d A.D. th en had sex with T aylor.

Detective William Vandiver of the Henry County Sheriff’s Department testified that Appellant had made a written statement in which he admitted that he had driven A.D. and T aylor to a place where Taylor could purchase condoms, that he had placed his hand on A.D.’s leg while he was driving his vehicle, that he took A.D. and Taylor to a motel and paid for a room, and tha t he aske d A.D., “Do you think yo u might give m e a dose o f that?”

ANALY SIS

Appellant claims that the evidence is insufficient to support his conviction for Class B misdemeanor assault and that the trial cou rt erron eous ly imposed a longer sentence than he deserves. However, we need not address these issues because we hold that Appellant’s conviction must be reversed because he was convicted of a crime for which he was not charged.2

2 This issue was not raised by the parties. The general rule is that appellate courts will not consider issues that are not raised by the parties; however, plain error is an appropriate consideration for an app ellate cour t whethe r proper ly assigned or not. State v. Walton, 958 S.W .2d 724, 7 27 (Te nn. 1997 ).

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The law is well-established in Tennessee that an indictment or presentment must provide notice of the offense charged, an adequate basis for the entry of a proper judgmen t, and suitable protec tion against dou ble jeopardy. State v. Cleveland, 959 S.W .2d 548 , 552 (T enn. 19 97); State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996); State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 199 1). “As a result, a defendant cannot legally be convicted of an offense which is not charged in the indictment or which is not a lesser offense embraced in the indictme nt.” Cleveland, 959 S.W .2d at 552 ; see also Trusty, 919 S.W.2d at 310. Because Appellant wa s indicted for statutory rape and not for Class B misdemeanor assault, Appellant’s conviction must be reversed unless Class B misdemeanor assault is either a lesser grade or class or lesser included offense of statutory ra pe as a lleged in th e indictm ent. 3

“A lesser ‘grade or class’ of offense is establishe d by the legislature and is determined simply by looking at the offenses s et forth in a statutory chapter and part.” Cleveland, 959 S.W.2d at 553. H ere, C lass B misd eme anor a ssau lt is not a lesser grade or class of statutory rape. The legislature has included Class B misdemeanor assa ult am ong th e “ass aultive o ffense s” set fo rth in Tennessee Code Annotated sections 39-1 3-101 throug h -110, while statuto ry rape is among the “sexual offenses” listed in Tennessee Code Annotated sections 39-13-501 through -527. Therefore, Cla ss B m isdem eano r assa ult is

An error affecting “the substantial rights of an accused m ay be noticed at any time . . . where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b). This is the case here.

3 It is true that a defendant who affirmatively requests a particular jury instruction on an offense not charged in the indictment, erroneously believing that the offense is a lesser included offense of the charge d crim e, is deem ed to hav e cons ented to a n am endm ent of the in dictme nt. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). However, there is no indication in the record that Appellant affirmatively requested a jury instruction on the offense of Class B misdem eanor assault. W ith the record completely silent as to Appellant’s position on charging the jury as to this offense, we cannot presume that Appellan t reques ted an ins truction an d thereb y consen ted to an a men dme nt of the ind ictmen t.

-5-clearly not a less er grade or class o f statutory rap e. See, e.g., id. (holding that aggra vated assa ult is not a lesser grade or class of attempted aggravated rape because aggravated assault is among the “assaultive offenses” while aggravated rape is amo ng the “sexua l offenses”).

The remaining question is whether Class B misdemeanor assault is a lesser included offense of statutory rape as charged in the indictment. “Generally, an offense qualifies as a lesser inc luded o ffense on ly if the elem ents 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.” Trusty, 919 S.W.2d at 310 (citing Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450–51, 103 L.Ed.2d 734 (1989)). “In other words, the lesser offense may not require p roof of a ny elem ent no t includ ed in the greater offens e as charge d in the indictme nt.” Id. at 311.

It is clear that under the test set forth by Trusty, Class B misdemeanor assa ult is not a lesser included offense of statutory rape as charged in the indictment. The indictment in this case alleges:

That [Appe llant] . . . did know ingly or intentionally have sexual penetration of [A.D.], a fourteen (14) year old female, and at the time [Appellant] was at least four (4) years older than [A .D.], an d did th ereby com mit the offense of STA TUT ORY RAP E, in violation of T.C.A . 39-13-5 06(a) . . . .

This indictment includes all of the elements of the crime of statutory rape as defined by statute. See Tenn. Code Ann. § 39-13-506(a) (1997). The offense of Class B misdemeanor assault occurs when a person “[i]ntentionally or know ingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.” Tenn. Code Ann. § 39-

-6-13-101(a)(3) (1997). By its very nature, this offense is one that can only be committed when the victim has not consented to the physical c ontact. See, e.g., State v. McKnight, 900 S.W.2d 36, 49 (Tenn. Crim. App. 1994) (holding that the consent of the vic tim is a defense to the crime of assault). On the other hand, the offense of statutory rape “contemplates circumstances in which the sexual relations are adm ittedly cons ensua l.” State v. Ealey, 959 S.W.2d 605, 611 (Tenn. Crim. App. 1997). In fact, if the sexual penetration was n ot con sens ual, the crime committed would be the offense of rape. See Tenn. Code Ann. § 39-13-503(a)(2) (1997). Because statutory rape is committed when the sexual penetration is consensual and Class B mis dem eano r assa ult is committed when the physical contact is nonconsensual, it is clear that the offense of statutory rape can be committed without also committing the offense of Class B misdemeanor assau lt. Therefore, to use the words o f Trusty, Class B misd eme anor a ssau lt is not a lesser in cluded offense of statutory rape because statutory rape (the greater offense) can be committed without also committing Class B misdemeanor assault (the lesse r offense).

In conclusion, Appellant was convicted and sentenced for an offense for which he was never charged. Under our law, such a conviction may not stand. The judgm ent of the tria l court is reversed and Appellant’s conviction for Class B misd emea nor ass ault is dism issed.

____________________________________ JERRY L. SMITH, JUDGE

-7-CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE 4

___________________________________ GARY R. WADE, JUDGE

4 The H onorab le Joe B. J ones d ied May 1 , 1998, an d did not pa rticipate in this o pinion. W e acknowledge his faithful service to the Tennessee Court of Criminal Appeals, both as our colleague and as our Presiding Judge.

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