State of Tennessee v. Jeremy Wendell Thorpe

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 13, 2013 Session

STATE OF TENNESSEE v. JEREMY WENDELL THORPE

Appeal from the Criminal Court for Davidson County

No. 2012-B-1224 Monte Watkins, Judge

No. M2012-02676-CCA-R3-CD - Filed September 27, 2013

The defendant, Jeremy Wendell Thorpe, appeals his Davidson County Criminal Court jury

conviction of attempted sexual battery by an authority figure, claiming that the trial court

erred by providing a jury instruction on attempted sexual battery by an authority figure as a

lesser included offense of sexual battery by an authority figure and that the evidence was

insufficient to support his conviction. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH

and R OBERT W. W EDEMEYER, JJ., joined.

Jeffrey A. Devasher (on appeal); and Kristin Neff and Aimee Solway (at trial), Assistant

Public Defenders, for the appellant, Jeremy Wendell Thorpe.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Sharon Reddick and Sarah

Blood, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The defendant’s conviction relates to an act of abuse perpetrated on his

girlfriend’s daughter, K.S.1 At trial, K.S., who was 15 years old at the time of trial, testified

that before the summer of 2010, she lived with her mother, her older brother, and the

defendant, who was her mother’s boyfriend, in an apartment in Hermitage. K.S. recalled that

her mother began dating the defendant when K.S. was in fourth grade, and the defendant

1

In keeping with the policy of this court, we refer to the minor victim by her initials.

moved in with them soon after. She said that the family moved to Nashville in 2009. K.S.

testified that her mother allowed the defendant to handle disciplining the children, which he

did by spanking them and taking away their things. She said that her mother “basically just

went along with whatever he said.”

K.S. recalled that her brother went to live with her grandmother in the summer

of 2010 after an argument with the defendant. K.S. testified that after her brother left, she

felt “[u]nsafe” around the defendant because the defendant had previously touched her in a

way that made her uncomfortable. On one occasion, she said, the defendant hit her on the

buttocks as she lay on her stomach “hunched over a pillow.” On another occasion, the

defendant “slapped” her on the buttocks while she was doing the dishes. She said that she

“didn’t like it at all.” K.S. testified that after her brother moved, the defendant began

touching her more often, rubbing her feet and doing things that “a boyfriend would do.” She

said that the defendant also started kissing her on the cheek but quickly progressed to “trying

to French kiss” her and kissing her on the legs. She said that she told the defendant that his

behavior was “not normal.” K.S. said that if she refused the defendant’s advances, “there

would be a lot of nonsense.” She said that she did not tell her mother about the defendant’s

behavior because her mother had already forced her brother to move out of the house because

of the defendant.

K.S. testified that on August 27, 2010, the defendant sent her sexually

suggestive text messages that eventually culminated in his saying, “I want to kiss on them

thighs when I get back.” The victim testified that she responded, “okay,” because she was

afraid that the defendant would “take like everything, basically” and “tear [her] down

verbally” if she rebuffed him. K.S. said that when the defendant returned home that evening

and saw that she was still wearing pants, the defendant told her that she made “everything

so difficult” and ordered her to change. She said that she initially refused but complied when

the defendant said, “[D]o what I say or else.” K.S. testified that after she changed into shorts,

the defendant came into her room and “kissed like [her] inner thighs.” She said that she sat

on the edge of the bed with her feet on the floor while the defendant kneeled between her

legs “just kissing.” K.S. recalled that the defendant put his hands on the outside of her thighs

while his head was “on [her] inner thighs” as he kissed up to her “bikini line.” K.S. said that

she cried during the encounter.

K.S. testified that she relayed the incident to her grandmother, who told K.S.

to speak to her school counselor on the following Monday. K.S. said that she did as her

grandmother suggested, and her counselor called detectives. After relating the incident to

detectives, K.S. moved directly to Memphis with her grandmother, which she had wanted to

do for a while. K.S. denied manufacturing the story so that she could live with her

grandmother. After the incident, K.S. remained estranged from her mother because K.S.

-2-

believed that her mother “would rather be with him.”

During cross-examination, K.S. admitted that on the day before she revealed

her allegations, her mother and the defendant purchased clothes for K.S. because her mother

believed that the tight clothing that the victim typically wore was inappropriate. She said that

when she initially told her mother that she felt uncomfortable with the defendant’s behavior,

her mother simply told her that she could not move out of the home.

The victim’s mother, B.S.,2 testified that she began dating the defendant when

the victim was 10 and that, while they dated, she gave the defendant authority to discipline

the victim and her brother but that the discipline did not include spanking. She said that the

children’s father had no role in their lives, so the defendant was the only father figure around.

She recalled that the children never liked the defendant and that they “bad-mouthed” the

defendant “all the time” and told her that they “didn’t want to be around him.” Despite this,

B.S. said that she hoped the relationship would improve. B.S. recalled that she asked her son

to move out after they argued, but she could not recall the substance of the argument. She

admitted that the defendant played some role in the argument. B.S. said that when K.S. also

expressed a desire to live with her grandmother, B.S. told her “that she was too young,” and

the defendant “said that absolutely not, she could not go.”

B.S. recalled that after her son moved out, the victim’s relationship with the

defendant improved. She said that the defendant began expressing a desire to take the victim

places and do things with her. She said that she did not initially see anything strange about

the change in the relationship because her own relationship with the victim during that time

was strained. B.S. did not recall arguing with the victim about her clothing on the day that

the victim made her revelation but said that neither she nor the defendant approved of the

victim’s chosen manner of dress. She said that on that day, the defendant told her that the

victim was late for school and that he was driving her to school because he had made her

wash appropriate clothing to wear to school. Later that day, someone from the victim’s

school called and asked B.S. to come to the school. B.S. said that the defendant went with

her to the school, but detectives separated them as soon as they got there.

B.S. testified that after hearing the allegations, she was angry with both the

defendant and the victim. She said that the defendant told her that the victim was lying, and

he became angry when she refused to leave the school with him. She said that the defendant

told her that she “should take his side and . . . just leave with him and not worry about what

happened to” the victim. B.S. testified that she did not move back to Memphis with her

mother and the victim because “everything [she] had was” in Nashville.

2

We refer to this witness by her initials to protect the anonymity of the victim.

-3-

Diane Smith, school counselor at Donelson Middle School, testified that on

August 30, 2010, the victim came into her office and handed her a piece of notebook paper

on which the victim “had written front and back with an orange crayon.” Ms. Smith said

that, in the note, the victim relayed “that something bad was going on in her home with her

mother’s boyfriend and she couldn’t take it anymore and it had to stop.” Ms. Smith asked

the victim to elaborate, and the victim said “that when her brother was away from home that

the boyfriend would ask her to put on some white shorts usually. And he would start kissing

between her legs up in her inner thigh.” She said that the victim was visibly upset when

reporting the incident. Ms. Smith recalled that the victim told Ms. Smith that “she was afraid

that her mother would not believe her and would take the side of the boyfriend.”

Metropolitan Police Department Detective Jason Mayo testified that he

responded to a call from the school resource officer about the victim’s allegations. When he

interviewed K.S., she told him that “she was being sexually harassed by her mom’s

boyfriend.” She added that the defendant had sent her “sexually charged text messages” and

“that he had kissed her on her inner thigh.” She told Detective Mayo that when she refused

the defendant’s advances, “he would take away all of her stuff, her cell phone, her computer,

and even went as far as to take her clothes, her shoes and her clothes away from her at one

point.” She also told the detective that she had not reported the abuse to her mother because

“in the past her mom had taken [the defendant’s] side in some situations and she was scared

to tell her mom at that point.” Detective Mayo said that forensic examination of the victim’s

cellular telephone confirmed that the defendant had sent a text message to the victim that

read, “I want to kiss on them thighs when I get back.” Another message asked if the victim

would change into shorts. Photographs of the text messages were displayed to the jury.

Detective Mayo testified that he interviewed the defendant when the defendant

arrived at the school with B.S. He said that the defendant spoke with them briefly before

refusing to answer questions. At that point, Detective Mayo told the defendant that the

defendant would need to speak to the Department of Children’s Services (“DCS”) about a

safety plan for K.S., and the defendant “said that she could go into DCS custody.” An audio

recording of Detective Mayo’s brief interview with the defendant was played for the jury.

At the conclusion of Detective Mayo’s testimony, the State notified the jury

of its election of offenses. As a basis for count three, the conviction count now under review,

the State elected the defendant’s kissing the victim’s inner thighs near her bikini line.

Following a Momon colloquy, see State v. Momon, 18 S.W.3d 152, 161-62 (Tenn. 1999), the

defendant elected not to testify and chose not to present any proof. The jury failed to reach

a verdict on the first two counts of the indictment, which had charged the defendant with

aggravated sexual battery, but found the defendant guilty of the lesser included offense of

attempted sexual battery by an authority figure in count three.

-4-

The defendant filed a timely but unsuccessful motion for new trial followed by

a timely notice of appeal. In this appeal, the defendant contends that the trial court erred by

providing a jury instruction on the lesser included offense of attempted sexual battery by an

authority figure and that the evidence was insufficient to support his conviction.

I. Jury Instruction

The defendant contends that the trial court erred by providing a jury instruction

on attempted sexual battery by an authority figure as a lesser included offense of sexual

battery by an authority figure. He claims that because the evidence established only a

completed offense, the instruction was not warranted. The State asserts that the trial court

did not err.

At the conclusion of the trial, the defendant made a written request that the trial

court instruct the jury on the offenses of sexual battery and misdemeanor assault as lesser

included offenses of sexual battery by an authority figure as charged in count three. Then,

citing State v. Kenneth Fritz Edwards, No. E2010-01731-CCA-R3-CD (Tenn. Crim. App.,

Knoxville, May 18, 2012), defense counsel argued that “either the jurors believe that he

touched her behind, or they don’t” and asked that the trial court not provide a jury instruction

on attempt with regard to any of the charged offenses. The State agreed that attempt should

not be charged as a lesser included offense in counts one and two but asserted that the proof

supported an instruction on attempted sexual battery by an authority figure, arguing that the

jurors “could reasonably construe . . . based on the totality of the testimony that what he was

doing was an attempt of sexual battery and not ultimately, in their minds, what a sexual

battery would be.” The State observed that the victim “talked about him putting his hands

on the outside of her thighs, she talked about him kissing around her panty line. . . . [The

jury] could potentially construe her testimony . . . as that [the defendant’s] behavior was more

an attempted sexual battery than sexual battery.” The trial court lamented the continuing

confusion regarding instruction on lesser included offenses, commenting that “if we leave

it out [the appellate courts] say we shouldn’t have left it out, if we put it in they say we

shouldn’t have put it in.” The court ultimately agreed that the evidence did not warrant an

attempt instruction in counts one and two but that the evidence justified an instruction on

attempted sexual battery by an authority figure in count three. Consequently, the trial court

provided the following instruction during its general charge:

For you to find the defendant guilty of criminal attempt,

the State must have proven beyond a reasonable doubt the

existence of the following essential elements:

(1) that the defendant intended to commit the specific

offense of Sexual Battery by an Authority Figure.

-5-

and

(2) that the defendant did some act intending to cause an

essential element of Sexual Battery by an Authority Figure to

occur, and at the time believed the act would cause the element

to occur without further action on the defendant’s part.

Tennessee Code Annotated section 40-18-110 provides that “the trial judge

shall instruct the jury as to the law of each offense specifically identified in the request that

is a lesser included offense of the offense charged in the indictment or presentment.” T.C.A.

§ 40-18-110(a) (2006). Before providing an instruction on a lesser included offense,

however, the trial court must determine whether “the record contains any evidence which

reasonable minds could accept as to the lesser included offense.” Id. The trial court must

make this determination by viewing “the evidence liberally in the light most favorable to the

existence of the lesser included offense without making any judgment on the credibility of

evidence” and must “also determine whether the evidence, viewed in this light, is legally

sufficient to support a conviction for the lesser included offense.” Id. (emphasis added)

“The defendant’s objection shall not prevent the district attorney general from requesting

lesser included offense instructions or prevent the judge from instructing on lesser included

offenses.” T.C.A. § 40-18-110(d). “The trial court must provide an instruction on a

lesser-included offense supported by the evidence even if such instruction is not consistent

with the theory of the State or of the defense. The evidence, not the theories of the parties,

controls whether an instruction is required.” State v. Allen, 69 S.W.3d 181, 187-88 (Tenn.

2002). As a result, “the decision to convict on a lesser-included offense” should not “be

taken away from the jury” merely because “the element distinguishing the greater offense

from the lesser offense is uncontroverted.” Id. at 189. This standard of review best preserves

the jury’s role as fact finder. See id. (citing Tenn. Const. art. I, § 19 for the proposition that

“‘the jury shall have a right to determine the law and the facts’”).

In State v. Kevin Fritz Edwards, a panel of this court concluded that “the trial

court should not have instructed the jury on the lesser-included offense of attempted

aggravated sexual battery” when “[t]he evidence at trial presented only two possible

interpretations of the facts – that the defendant either completed the offense of aggravated

sexual battery or he did not.” State v. Kevin Fritz Edwards, No. E2010-01731-CCA-R3-CD,

slip op. at 12 (Tenn. Crim. App., Knoxville, May 18, 2012). In support of its conclusion, the

panel cited a number of cases which held that the trial court either did not err by failing to

provide an instruction on attempt when the evidence established a completed act or where

the reviewing court deemed the omission harmless beyond a reasonable doubt. Id. (citing

State v. Marcum, 109 S.W.3d 300, 304 (Tenn. 2003); State v. Biggs, 218 S.W.3d 643, 658

(Tenn. Crim. App. 2006); State v. Randall Vertis Grainger, No. M2001-02178-CCA-R3-CD

(Tenn. Crim. App., Nashville, Oct. 22, 2002), perm. app. denied (Tenn. Mar. 3, 2003); State

-6-

v. Joseph Hall, No. E2006-02403-CCA-R3-CD (Tenn. Crim. App., Knoxville, Oct. 9, 2007),

perm. app. denied (Tenn. Mar. 10, 2008); Jerome Sawyer v. State, No.

W2005-01813-CCA-R3-PC (Tenn. Crim. App., Jackson, Mar. 15, 2007), perm. app. denied

(Tenn. Aug. 13, 2007)). Although our supreme court has clarified that an instruction on

attempt is “unnecessary where the evidence clearly establishes completion of the criminal

act,” State v. Banks, 271 S.W.3d 90, 125 (Tenn. 2008) (citing State v. Wilson, 211 S.W.3d

714, 721 n.2 (2007); State v. Robinson, 146 S.W.3d at 487 n. 7; Marcum, 109 S.W.3d at

303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001)), we can find no case,

save Kevin Fritz Edwards, that deems the giving of an attempt instruction reversible error

when a completed act is proven. In our view, the opinion in Kevin Fritz Edwards should not

be followed.

First, although the panel noted the appropriate standard of review when

discussing the trial court’s giving of an instruction on attempted sexual battery, the panel did

not adhere to that standard when conducting its analysis. As indicated, when making the

determination whether an instruction on a lesser included offense must be given, the trial

court must examine “the evidence liberally in the light most favorable to the existence of the

lesser included offense.” T.C.A. § 40-18-110(a) (emphasis added). Said another way, the

trial court must begin its review with the notion that the lesser included offense should be

charged and must examine the proof for “any evidence that reasonable minds could accept”

in support of the lesser included offense. Id. The Kevin Fritz Edwards panel failed to do

this. The panel noted that if the jury had chosen to fully accredit the testimony of the victim,

the evidence would have supported a conviction of aggravated sexual battery and that if the

jury had chosen to fully accredit Edwards, it would have acquitted him. The panel therefore

concluded that the trial court erred by providing an instruction on attempted aggravated

sexual battery as a lesser included offense. This conclusion, however, overlooks three

important points. First, the jury, as the sole arbiter of the facts and the credibility of the

witnesses, was free to accredit any portion of any witness’s testimony as it saw fit. See Allen,

69 S.W.3d at 189 (“The jury is not required to believe any evidence offered by the State.”);

see also Tenn. Const. art. I, § 19 (“[T]he jury shall have a right to determine the law and the

facts[.]”). The all or nothing dichotomy set up by the panel was not the only available

interpretation of the facts open to the jury, who saw and heard the witnesses first hand.

Second, Code section 40-18-110 provides that, when determining whether to provide an

instruction on a lesser included offense, the trial judge should not make any determination

about the credibility of the evidence. Third, the appellate court is obliged to review the

aptness of a lesser included offense instruction by considering the evidence in the light most

favorable to the existence of the lesser included offense. See, e.g., State v. Brown, 311

S.W.3d 422, 431 (Tenn. 2010). Essentially, the panel examined the proof in the light most

favorable to each of the parties rather than in the light most favorable to the existence of the

lesser included offense, as is required by statute.

-7-

Moreover, in concluding that the trial court erred by instructing the jury on

attempted aggravated sexual battery as a lesser included offense of aggravated sexual battery,

the Kevin Fritz Edwards panel observed that “there was no evidence presented at trial that

[Edwards] attempted to touch the victim and failed.” Failure to complete a criminal offense

is not, however, an element of criminal attempt. See T.C.A. § 39-12-101. Cf. Allen, 69

S.W.3d at 189 (“In this case, the use of a deadly weapon is an element of the charged offense

of aggravated robbery. The absence, however, of a deadly weapon is not an element of

facilitation of robbery.”). As our supreme court has observed, “the criminal attempt statute

requires that the State prove two material elements: the culpability required for the attempted

crime; and an act or acts in furtherance of the attempted crime.” Wyatt v. State, 24 S.W.3d

319, 323 (Tenn. 2000). The holding in Kevin Fritz Edwards elevates a defendant’s failure

to complete an offense to the status of an element of that offense, an outcome clearly not

contemplated by the legislature, which removed as a defense “that the offense attempted was

actually committed.” T.C.A. § 39-12-101(c).

Because absence of a completed offense is not an element of the offense of

criminal attempt, proof that the defendant in this case actually completed the crime of sexual

battery by an authority figure did not prohibit the giving of a jury instruction on the lesser

included offense of attempted sexual battery by an authority figure so long as evidence

existed that reasonable minds could accept in support of the lesser included offense.

Most importantly, the evidence in the present case, when viewed in the light

most favorable to the existence of the lesser included offense, supported the giving of an

instruction on attempted sexual battery by an authority figure as a lesser included offense of

sexual battery by an authority figure. The text messages sent by the defendant to the victim

declaring that he wanted to “kiss on” her thighs when he returned and asking that she change

into shorts clearly telegraphed his intent to engage in the sexual battery of the victim. We

agree with the prosecutor, however, that the evidence was susceptible to an interpretation that

the defendant’s conduct did not amount to the completed offense of sexual battery. The

victim described the defendant’s “kissing” the inner part of her thighs up to her “bikini line”

as his hands rested on the outside of her thighs. In our view, a reasonable mind could have

concluded that the defendant attempted to commit sexual battery.

Moreover, viewing the evidence, as we must, in the light most favorable to the

existence of the lesser included offense, the evidence was legally sufficient to support the

offense of attempted sexual battery by an authority figure. Thus, the trial court did not err

by providing an instruction on attempted sexual battery by an authority figure.

-8-

II. Sufficiency

Again citing Kevin Fritz Edwards, the defendant contends that the evidence

was insufficient to support his conviction of attempted sexual battery by an authority figure

“because no evidence was presented that the defendant attempted, but did not complete, that

offense.” The State asserts that the evidence was sufficient because failure to complete the

offense “is neither a defense to the prosecution nor a required element of the prosecution.”

We agree with the State.

We review the defendant’s challenge to the sufficiency of the evidence mindful

that our standard of review is whether, after considering the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443

U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003).

“[D]irect and circumstantial evidence should be treated the same when weighing the

sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

Sexual battery by an authority figure, as charged in this case, “is unlawful

sexual contact with a victim by the defendant or the defendant by a victim” where “[t]he

victim was, at the time of the offense, thirteen (13) years of age or older but less then

eighteen (18) years of age,” and “[t]he defendant had, at the time of the offense, parental or

custodial authority over the victim and used the authority to accomplish the sexual contact.”

T.C.A. § 39-13-527(a). “Sexual contact” is “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.” Id. §

39-13-501(6). Additionally, “‘[i]ntimate parts’ includes the primary genital area, groin, inner

thigh, buttock or breast of a human being.” Id. § 39-13-501(2). “A person commits criminal

attempt who, acting with the kind of culpability otherwise required for the offense . . . [a]cts

with intent to cause a result that is an element of the offense, and believes the conduct will

cause the result without further conduct on the person’s part.” Id. § 39-12-101(a)(2).

-9-

As indicated, the evidence established that the defendant expressed a desire,

via text message, to “kiss on” the victim’s thighs and, to facilitate said kissing, asked the

victim to change into shorts. The victim testified that she complied with both requests.

Describing the offense, the victim said that she was seated on the edge of her bed with her

feet on the floor while the defendant kneeled between her legs. She said that he pushed her

shorts up to gain access to her thighs and then “kissed” her inner thighs up to her “bikini

line.” No further description of the offense was given. Although we agree with the parties

that a reasonable jury could have found beyond a reasonable doubt that the defendant

committed the offense of sexual battery by an authority figure, we also conclude that a

reasonable jury could have found beyond a reasonable doubt that the defendant committed

the offense of attempted sexual battery by an authority figure.

The defendant, citing Kevin Fritz Edwards, argues that because the evidence

did not establish that the defendant tried and failed to commit a sexual battery of the victim,

the evidence was insufficient to support his conviction. In reaching its conclusion that the

evidence was insufficient to support Edwards’ conviction, the Kevin Fritz Edwards panel

concluded “that by acquitting him of the aggravated sexual battery charge the jury rejected

[the victim’s] testimony that [Edwards] repeatedly touched her breasts, buttocks, and

vagina.” Kevin Fritz Edwards, slip op. at 13. As we have indicated, however, the jury is free

to accredit any portion of a witness’s testimony when arriving at its verdict. The jury’s

decision to convict on a lesser included offense does not necessarily equate with a wholesale

rejection or adoption of any particular witness’s testimony. Again, despite language to the

contrary, the panel’s decision on the sufficiency of the convicting evidence was colored by

its apparent belief that, to support a conviction of criminal attempt, the State must show that

the defendant tried and failed to complete the offense. Failure to complete the offense,

however, is not an element of criminal attempt.

Both the defendant and the panel in Kevin Fritz Edwards cited State v. Parker,

350 S.W.3d 883 (Tenn. 2011), in support of a finding that proof of a completed crime renders

insufficient the evidence of an attempt. In Parker, our supreme court overruled dicta from

State v. Mellons, 557 S.W.2d 497 (Tenn. 1977), which had been cited for the proposition that

a conviction of a lesser included offense would not be reversed for want of evidence when

the evidence was sufficient to support a conviction of the greater offense. State v. Parker,

350 S.W.3d 883, 907 (Tenn. 2011) (“The proposition for which the majority below relied on

it is, in fact, mere dictum.”). Parker, originally charged with felony murder in the death of

the elderly victim, was convicted of the lesser included offense of second degree murder.

Id. at 888. The supreme court observed that evidence that Parker struck the elderly victim

while attempting to rape her, thereby causing the injury that led to the victim’s death, would

have supported a conviction of felony murder but that the record was devoid of any proof

that Parker knowingly killed the victim, a requirement for a conviction of second degree

-10-

murder. Id. at 909-10. The court observed that “when reviewing a convicted defendant’s

claim that the evidence is not sufficient to support his or her conviction, the review must be

undertaken with respect to the crime of which the defendant was convicted, not the crime

with which he was charged.” Id. at 907 (citing Jackson, 443 U.S. at 324 n.16). The court

held that the fact “[t]hat the proof may support conviction of a different, even a ‘greater,’

offense does not obviate the constitutional requirement that the proof support each and every

element of the offense for which the defendant was actually convicted.” Parker, 350 S.W.3d

at 907. The court reiterated that, using our traditional standard of review for the sufficiency

of the evidence, “[i]f the proof does not adequately support each and every element, the

defendant is entitled to a reversal of the conviction” and concluded that “[t]o sustain a

conviction of a lesser-included offense, the proof must be sufficient to support each and

every element of the conviction offense. To the extent that Mellons and its progeny hold to

the contrary, they are overruled.” Id. at 909.

To determine whether the evidence was sufficient to support the defendant’s

conviction of attempted sexual battery by an authority figure, we must examine the evidence

in the light most favorable to the State. This is in contrast to the standard applicable when

determining whether a lesser included offense should be charged, which does not view the

evidence in favor of either party but in favor of the existence of the lesser included offense.

As so happens, the State in this case requested the instruction on attempted sexual battery by

an authority figure, so our review of the evidence looks similar. As indicated, to establish

the offense of attempted sexual battery by an authority figure, the State was required to show

that the defendant intended to commit the offense of sexual battery by an authority figure and

that he completed some act that he believed would result in the offense without any further

conduct. The State need not have shown that the defendant tried but failed to complete the

offense of sexual battery by an authority figure. Here, the evidence, most strikingly in the

form of the defendant’s text messages to the victim, established that the defendant intended

to commit sexual battery by an authority figure. The defendant’s ordering the victim to

change into shorts, pushing her shorts up, and placing his hands on her thighs can all be

classified as acts in furtherance of that offense.3 In consequence, the evidence was sufficient

to support the defendant’s conviction of attempted sexual battery by an authority figure.

Conclusion

The trial court did not err by instructing the jury on attempted sexual battery

by an authority figure as a lesser included offense of sexual battery by an authority figure,

and the evidence adduced at trial was sufficient to support the defendant’s conviction of

3

Indeed, rare will be the completed crime that does not begin with an intent to commit the crime and

an act in furtherance of that intent.

-11-

attempted sexual battery by an authority figure. Accordingly, the judgment of the trial court

is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

-12-