State of Tennessee v. Glen Howard

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

April 22, 2016 Session, Heard at Nashville

STATE OF TENNESSEE v. GLEN HOWARD

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Hamilton County

No. 275593 Barry A. Steelman, Criminal Court Judge

___________________________________

No. E2014-01510-SC-R11-CD – Filed October 12, 2016

___________________________________

We granted this appeal to consider whether our decision in State v. Burns, 6 S.W.3d 453

(Tenn. 1999), wherein we set forth the test for determining whether a criminal offense

constitutes a lesser-included offense of a charged offense, remains viable following the

2009 amendments to Tennessee Code Annotated section 40-18-110, which codified

Burns parts (a) and (c) but excluded part (b). Having determined that the statute did not

abrogate part (b) of the Burns test, we reverse the Court of Criminal Appeals‘ conclusion

that aggravated sexual battery is not a lesser-included offense of rape of a child because

the legislature did not include it in the 2009 amendments to the statute. Upon further

consideration, we hold that aggravated sexual battery is, in fact, a lesser-included offense

of rape of a child. Lesser-included offenses are to be determined by referring to the

express provisions of the statute, and if not specifically mentioned therein, by further

applying the guidance of Burns part (b). We also conclude, based on the proof in the

record on appeal, that defendant‘s conviction for aggravated sexual battery as a lesser-

included offense of rape of a child was supported by the evidence and should be

reinstated. Accordingly, the judgment of the Court of Criminal Appeals vacating this

conviction is reversed and his conviction stands. The remaining issues decided by the

Court of Criminal Appeals are affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Reversed in Part; Affirmed in Part

ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.

Michael E. Richardson, Chattanooga, Tennessee (on appeal); Raymond T. Faller, District

Public Defender; and Mary Ann Green and Ted Engel, Assistant District Public

Defenders (at trial), for the defendant, Glen Howard.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,

Solicitor General; John H. Bledsoe, Senior Counsel (on appeal); William H. Cox, District

Attorney General; and Charles D. Minor and Amanda Morrison, Assistant District

Attorneys General (at trial), for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

Glen Howard (―defendant‖) was indicted for five counts of rape of a child and one

count of aggravated sexual battery involving two victims that occurred between the dates

of November 1, 2008, and December 31, 2009. J.B. is the mother of the victims in this

case, then-nine-year-old N.J.1 and then-seven-year-old M.J.

J.B. and defendant became acquainted with each other as regular patrons of a local

bar called Rob‘s. They began dating, and around October 2007, defendant invited J.B.

and the victims to move in with him. Defendant performed maintenance services for the

apartment complex in which they resided, and the management provided him with an

apartment and small salary in exchange for his services. The victims shared one bedroom

that was furnished with bunkbeds, while defendant and J.B. shared the other bedroom.

J.B., defendant, and the victims resided in the apartment together for approximately two

years. J.B. worked at Gold Bond, Inc., during this time. In March or April 2008, she was

moved from first shift to third shift. Defendant‘s sexual abuse of the victims began ―a

couple of weeks‖ after J.B.‘s change in her work schedule. On December 14, 2009, N.J.

and M.J. disclosed to J.B. allegations that defendant had been touching them

inappropriately.

Count One of the presentment (rape of a child) charged defendant with vaginal

penetration of N.J., a child more than three (3) years of age but less than thirteen (13)

years of age. N.J. recalled defendant awakening her and instructing her to go to his room.

The lights were off, but the computer was on. Defendant instructed N.J. to undress and

lie down on the bed. He touched the outside of her vagina with his finger. He then tried

to penetrate her vaginally with his penis. When he attempted this, N.J. said, ―It hurt on

the inside.‖ It ―felt very bad, like it was not good.‖ N.J. asked defendant to stop when it

began to hurt, and he did. He arose and donned his robe. She dressed in her nightgown

and left the room. She closed the door as she left, as defendant directed her to do. She

thought he retrieved the towel because he was ―going to do that . . . . Because he did it

every time that he touched [her], like, after he did it, every time.‖ N.J. reentered the

room because she forgot her socks. She saw defendant standing beside the computer, and

1

It is the policy of this Court to identify minor victims of sexual offenses by initials to protect

their privacy. In furtherance of this policy, we also identify the victims‘ mother by her initials.

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she saw ―some lady, she was undressed‖ on the computer. Defendant was rubbing his

penis. She then saw him ―use the towel.‖ She recalled, ―[H]e was doing that with the

stuff and - the white stuff, yeah.‖ She went back to bed quietly.

Count Two of the presentment (rape of a child) charged defendant with oral

penetration of N.J. N.J. recalled another incident that occurred when J.B. was at work

and defendant directed her to put his penis into her mouth. She entered his room wearing

pajamas, and he instructed her to undress. Still wearing her underwear, N.J. sat on the

edge of the bed. Defendant stood in front of her, facing her, and inserted his penis into

her mouth. He ―moved back and forth.‖ N.J. said that it was ―nasty‖ and that ―[i]t didn‘t

taste good.‖ She did not see defendant ejaculate. When defendant was finished, she

donned her pajamas and left the room. Defendant dressed in his robe and lay down on

the bed.

Count Three (rape of a child) charged defendant with digital penetration of N.J.

N.J.‘s testimony was derived from the video of the forensic interview. In the interview,

she recounted that defendant would touch her vagina with his hand. During N.J.‘s

forensic interview, she stated that on one of these occasions, defendant touched her on the

outside and the inside of her vagina. When he touched the outside of her vagina,

defendant moved his hand, but when he touched the inside of her vagina, his hand

remained still.

Count Four (aggravated sexual battery) referred to conduct recalled by N.J. that

occurred one night when she woke up and went into defendant‘s bedroom to watch

television. He was using the computer, and she turned on the television. Defendant was

wearing a black robe, and she was wearing pajamas. Defendant stood up from the

computer desk and instructed N.J. to undress. Defendant directed N.J., who was

unclothed, to lie down on the bed. He fondled the outside of her vagina with his fingers.

He then touched the outside of her vagina with his penis. Defendant retrieved a towel,

ejaculated, and used the towel to clean up. N.J. put her clothes on and observed

defendant place the soiled towel under the bed. When the incident was over, defendant

instructed N.J. not to tell anyone. N.J. went back to bed quietly to avoid waking M.J.

Count Five (rape of a child) involving M.J., also a child more than three (3) years

of age but less than thirteen (13) years of age, charged defendant with digital penetration.

During this incident, which M.J. described as the first time, defendant entered the

victims‘ bedroom and awakened her. He placed his hand inside her pajama pants,

underneath her underwear, and moved his finger around. Defendant then touched her

―inside,‖ and M.J. described that it ―felt different.‖ She told him to stop.

Count Six of the presentment (rape of a child) charged defendant with digital

penetration of M.J. M.J. relayed that one night, defendant awakened her and directed her

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to go to the living room. He instructed her to undress, but she left her shirt on. He told

her to sit on the sofa. Defendant approached M.J., touched her with his finger, and

moved it around ―inside.‖ When defendant was finished, M.J. picked up her clothes and

went to her bedroom to dress.

At trial, the State introduced through each victim the DVD recording of the

forensic interview conducted by the Children‘s Advocacy Center. The State presented

Dr. Karla Lisbeth Garcia, a pediatrician at Children‘s Hospital at Erlanger and the

medical director of the sexual assault center, as an expert in sexual assaults regarding

children. Erlanger Hospital performed medical examinations for the Children‘s

Advocacy Center. Through Dr. Garcia, the reports of the victims‘ medical examinations

were introduced into evidence. Detective John Wright with the Red Bank Police

Department testified about the law enforcement investigation into the allegations against

defendant.

Special Agent Forensic Scientist Mark Eric Dunlap with the Tennessee Bureau of

Investigation (―TBI‖) testified as an expert in serology and DNA analysis. He analyzed

the towel that was referenced by N.J. and concluded that the major contributor of the

non-sperm fraction matched defendant‘s DNA profile. He found additional genetic

markers from a female minor contributor, and ―based on that very limited DNA profile,

[N.J.] cannot be excluded as the female contributor to that profile. [M.J.] and [J.B.] have

been excluded from that . . . minor contributor profile.‖ The State rested its case-in-chief.

Defendant testified on his own behalf and categorically denied all of the

allegations against him. He acknowledged watching ―normal‖ pornography on his

computer and said that because he was not ―savvy on the internet,‖ he had no way of

knowing if the victims had accessed his recent history or internet searches and happened

upon his viewing. He noted that the view from the doorway into his bedroom provided a

direct view of the computer. He posited that paid movie channels (―Home Box Office‖)

could have been a possible source of ―suggestive‖ television or pornography. Defendant

stated that after J.B. and the victims moved out, he found a disc of pictures in a stack of

discs beside the computer. It was in the same area where the victims kept their computer

games. He viewed the disc and found 150-200 sexually explicit images of J.B., her ex-

boyfriend, and a woman whom he did not know.

Defendant attempted to counter the State‘s scientific expert with his own DNA

experts. Dr. Ronald T. Acton questioned Special Agent Dunlap‘s failure to exclude N.J.

as a minor contributor, and Dr. Martin Shapiro challenged Special Agent Dunlap‘s

statistical analysis and provided information about ―transfer‖ DNA. Defendant presented

the testimony of character witnesses Judy Cordell, Brittany Jones, Rhonda Jones, and

Nancy Lane. Ms. Lane also offered testimony regarding a sexual encounter involving

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J.B., J.B.‘s boyfriend, and herself that was briefly witnessed by the victims. She further

testified regarding defendant‘s character. The defense then rested its case.

Upon this evidence, defendant was convicted of four counts of rape of a child

(counts one, two, three, and five); one count of aggravated sexual battery (count four);

and one count of aggravated sexual battery as a lesser-included offense of rape of a child

(count six).

Following a sentencing hearing, the trial court imposed mandatory twenty-five-

year sentences for the child rape convictions and ten-year sentences for the aggravated

sexual battery convictions. The trial court aligned the sentences pertaining to each victim

consecutively, resulting in an effective fifty-year sentence.

On direct appeal, in addition to evidentiary issues, the Court of Criminal Appeals

concluded that aggravated sexual battery is not a lesser-included offense of rape of a

child. State v. Howard, No. E2014-01510-CCA-R3-CD, 2015 WL 4626860, at *15-16

(Tenn. Crim. App. Aug. 4, 2015). Relying on State v. Ortega, No. M2014-01042-CCA-

R3-CD, 2015 WL 1870095, at *10 (Tenn. Crim. App. Apr. 23, 2015), no perm. app.

filed, the court reasoned that the recent amendment to Tennessee Code Annotated section

40-18-110 had effectively abrogated ―part (b)‖ of the Burns test for determining lesser-

included offenses. Howard, 2015 WL 4626860, at *15; see Burns, 6 S.W.3d at 466-67.

Pursuant to this interpretation, the only applicable lesser-included offenses are codified in

Tennessee Code Annotated section 40-18-110(f), (g).

In this Court, defendant filed a Tennessee Rule of Appellate Procedure 11

application for permission to appeal arguing that the court below erred in various

evidentiary rulings. We granted the application, and in addition to the issues defendant

raised, directed the parties to brief and argue the ―question of whether the Court of

Criminal Appeals erred in ruling that aggravated sexual battery is not a lesser-included

offense of rape of a child‖ and to specifically ―discuss whether part (b) of the test set

forth in State v. Burns, 6 S.W.3d [453] (Tenn. 1999), survived the 2009 amendments to

[Tennessee Code Annotated section] 40-18-110.‖

II. Analysis

This case involves not only an issue of statutory construction but also the question

of whether the trial court properly instructed the jury on lesser-included offenses. As

issues involving statutory construction present questions of law, we review such

questions de novo with no presumption of correctness. State v. Dycus, 456 S.W.3d 918,

924 (Tenn. 2015) (citing State v. Springer, 406 S.W.3d 526, 532-33 (Tenn. 2013); State

v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010); State v. Wilson, 132 S.W.3d 340, 341

(Tenn. 2004)); Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009). Whether the trial court

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properly instructed the jury on a certain offense is a mixed question of law and fact,

which also requires de novo review with no presumption of correctness. State v. Thorpe,

463 S.W.3d 851, 859 (Tenn. 2015) (citing State v. Rush, 50 S.W.3d 424, 427 (Tenn.

2001)).

A. State v. Burns

Our resolution of this issue involves two inquiries: (1) did Tennessee Code

Annotated section 40-18-110(g) abrogate part (b) of this Court‘s holding in State v. Burns

regarding the determination of lesser-included offenses, and, if not, (2) is aggravated

sexual battery a lesser-included offense of rape of a child?

1. History of Lesser-Included Offenses

In 1999, this Court issued the Burns opinion, which discussed the rationale behind

the development of lesser-included offense instructions. 6 S.W.3d at 464. A brief

synopsis of that history is useful to our analysis of this issue:

―At common law the jury was permitted to find the defendant guilty of any

lesser offense necessarily included in the offense charged. This rule

originally developed as an aid to the prosecution in cases in which the proof

failed to establish some element of the crime charged. But it has long been

recognized that it can also be beneficial to the defendant because it affords

the jury a less drastic alternative than the choice between conviction of the

offense charged and acquittal. . . . [P]roviding the jury with the ‗third

option‘ of convicting on a lesser[-]included offense ensures that the jury

will accord the defendant the full benefit of the reasonable-doubt standard.‖

Id. (alteration in original) (quoting Beck v. Alabama, 447 U.S. 625, 633-34 (1980)).

In Burns, we reiterated that this provision required a trial court to ―‗instruct the

jury on all lesser-included offenses if the evidence introduced at trial is legally sufficient

to support a conviction for the lesser offense.‘‖ Id. (quoting State v. Langford, 994

S.W.2d 126, 128 (Tenn. 1999)). After reviewing several approaches to defining the

parameters of what constitutes a lesser-included offense, we adopted the following

definition:

An offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory

elements of the offense charged; or

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(b) it fails to meet the definition in part (a) only in the respect that it

contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of

culpability; and/or

(2) a less serious harm or risk of harm to the same person,

property or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense that

otherwise meets the definition of lesser-included offense in

part (a) or (b); or

(2) an attempt to commit the offense charged or an offense

that otherwise meets the definition of lesser-included offense

in part (a) or (b); or

(3) solicitation to commit the offense charged or an offense

that otherwise meets the definition of lesser-included offense

in part (a) or (b).

Id. at 466-67. Notwithstanding this test, an offense is also a lesser-included offense if the

General Assembly expressly designates it as such. See State v. Page, 184 S.W.3d 223,

228 (Tenn. 2006) (citing Rush, 50 S.W.3d at 429 n.4); State v. Elkins, 83 S.W.3d 706,

710-11 (Tenn. 2002); Burns, 6 S.W.3d at 467 n.12 (―We hasten to add that trial courts

should also consider any offenses that presently or in the future are expressly designated

lesser-included offenses.‖). If the trial court determines that any evidence as to a lesser-

included offense exists that reasonable minds could accept and that the evidence, viewed

liberally in the light most favorable to the lesser-included offense, is legally sufficient to

support a conviction, the trial court must so instruct the jury. Burns, 6 S.W.3d at 469.

2. Canons of Statutory Construction

In 2001, the legislature promulgated Tennessee Code Annotated section 40-18-

110(a)-(e), which governs the mechanism by which a party may request an instruction on

a lesser-included offense and the procedure to be utilized by the trial court in determining

whether such an instruction is warranted. In 2009, the statute was amended by adding the

following subsections:

(f) An offense is a lesser[-]included offense if:

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(1) All of its statutory elements are included within the statutory

elements of the offense charged;

(2) The offense is facilitation of the offense charged or of an

offense that otherwise meets the definition of lesser[-

]included offense in subdivision (f)(1);

(3) The offense is an attempt to commit the offense charged or an

offense that otherwise meets the definition of lesser[-

]included offense in subdivision (f)(1); or

(4) The offense is solicitation to commit the offense charged or

an offense that otherwise meets the definition of lesser[-

]included offense in subdivision (f)(1).

(g)(1) Second degree murder is a lesser[-]included offense of first degree

murder as defined in [section] 39-13-202.

(2) Voluntary manslaughter is a lesser[-]included offense of

premeditated first degree murder and second degree murder.

(3) Aggravated sexual battery is a lesser[-]included offense of

aggravated rape.

(4) Sexual battery and sexual battery by an authority figure are

lesser[-]included offenses of rape and aggravated rape.

Tenn. Code Ann. § 40-18-110 (2012).2 Subsection (f) effectively codified parts (a) and

(c) of the Burns test, while subsection (g) clarified, as was the legislature‘s prerogative,

several lesser-included offenses. See, e.g., Rush, 50 S.W.3d 429 at n.4. ―Significantly,

the statutory definition set out in section 40-18-110(f) does not include part (b) of the

Burns test.‖ State v. Fayne, 451 S.W.3d 362, 368 n.5 (Tenn. 2014). Although many

cases have interpreted lesser-included offenses vis-à-vis subsection (f) of the statute, this

Court has not considered a case that has required analysis of whether part (b) of the Burns

test has been superseded by statute. See id. at 369.

2

Effective July 1, 2016, the General Assembly amended Tennessee Code Annotated section 40-

18-110(g)(3) by replacing the former language with, ―Aggravated sexual battery is a lesser[-]included

offense of aggravated rape, aggravated rape of a child, and rape of a child.‖

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However, the Court of Criminal Appeals has construed the General Assembly‘s

omission of Burns part (b) from Code section 40-18-110(f) as an abrogation of the same.

See, e.g., Howard, 2015 WL 4626860, at *15 (relying on Ortega and concluding ―that

aggravated sexual battery is not a lesser[-]included offense of rape of a child as a result of

the amendment to Tennessee Code Annotated [section] 40-18-110 and the explicit

exclusion of part (b) of the [Burns] test‖); Ortega, 2015 WL 1870095, at *11 (concluding

that ―aggravated sexual battery is not, using the test set forth in Tennessee Code

Annotated section 40-18-110(f)(1), a lesser[-]included offense of rape of a child‖).

Pursuant to the special order granting defendant‘s Rule 11 application in this case, the

primary issue on appeal is whether part (b) of the Burns test survived the 2009

amendments to Tennessee Code Annotated section 40-18-110.

When engaging in statutory interpretation, ―well-defined precepts apply.‖ State v.

McNack, 356 S.W.3d 906, 908 (Tenn. 2011). ―The most basic principle of statutory

construction is to ascertain and give effect to the legislative intent without unduly

restricting or expanding a statute‘s coverage beyond its intended scope.‖ Owens v. State,

908 S.W.2d 923, 926 (Tenn. 1995) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn.

1993)); Carter, 279 S.W.3d at 564 (citing State v. Sherman, 266 S.W.3d 395, 401 (Tenn.

2008)). In construing statutes, Tennessee law provides that courts are to avoid a

construction that leads to absurd results. Tennessean v. Metro. Gov’t of Nashville, 485

S.W.3d 857, 872 (Tenn. 2016). ―Furthermore, the ‗common law is not displaced by a

legislative enactment, except to the extent required by the statute itself.‘‖ Wlodarz v.

State, 361 S.W.3d 490, 496 (Tenn. 2012) (quoting Houghton v. Aramark Educ. Res., Inc.,

90 S.W.3d 676, 679 (Tenn. 2002)), abrogated on other grounds, Frazier v. State, ___

S.W.3d ___, 2016 WL 3668035 (Tenn. July 7, 2016). ―When statutory language is clear

and unambiguous, we must apply its plain meaning in its normal and accepted use,

without a forced interpretation that would extend the meaning of the language[,] and . . .

enforce the language without reference to the broader statutory intent, legislative history,

or other sources.‖ Carter, 279 S.W.3d at 564 (citations omitted).

a. Abrogation of Common Law

Had the General Assembly intended to abrogate part (b) of the Burns test as

interpreted by the Court of Criminal Appeals, it is clear that the legislature would have

significantly changed the common law of this state.

The basic right to trial by jury is guaranteed by the United States and Tennessee

Constitutions. U.S. CONST. amend. VI; TENN. CONST. art. I, § 6. ―‗It is well-settled that

a defendant has a constitutional right to a complete and correct charge of the law, so that

each issue of fact raised by the evidence will be submitted to the jury on proper

instructions.‘‖ Thorpe, 463 S.W.3d at 859 (quoting State v. Dorantes, 331 S.W.3d 370,

390 (Tenn. 2011)); see also State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing

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State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). ―This ‗includes the right to jury

instructions on each and every lesser-included offense embraced within the charged

offense(s) and supported by the proof.‘‖ Thorpe, 463 S.W.3d at 859 (quoting State v.

Davis, 266 S.W.3d 896, 902 (Tenn. 2008)). Thus, a trial court has a corresponding duty

to fully instruct the jury on the general principles of law relevant to the issues raised by

the evidence. See Burns, 6 S.W.3d at 464; State v. Harbison, 704 S.W.2d 314, 319

(Tenn. 1986); State v. Elder, 982 S.W.2d 871, 876 (Tenn. Crim. App. 1998).

―Nevertheless, while the General Assembly unquestionably has the constitutional

and legislative authority to change the common law of this state, it must make clear its

intention to do so.‖ Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn. 2002)

(citations omitted). This Court has held that ―[w]ithout some clear indication to the

contrary, we simply will not presume that the legislature intended to change the common

law by implication.‖ Id. ―Additionally, ‗new statutes change pre-existing law only to the

extent expressly declared.‘‖ Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)

(quoting State v. Dodd, 871 S.W.2d 496, 497 (Tenn. Crim. App. 1993)). ―‗If the statute

does not include and cover such a case, it leaves the law as it was before its enactment.‘‖

Olsen v. Sharpe, 235 S.W.2d 11, 12 (Tenn. 1950) (quoting State v. Cooper, 113 S.W.

1048, 1049 (Tenn. 1908)). The statute at issue in this case contains no such language

―expressly‖ declaring that it should operate to render Burns part (b) inapplicable.

Applying this premise, we conclude that the legislature did not intend to alter or abrogate

part (b) of the common law Burns test.3

b. Legislative History

On the face of the statute, the language utilized at first seems clear and

unambiguous. However, ―‗[w]here, as here, the parties derive different interpretations

from the statutory language, an ambiguity exists,‘ Owens, 908 S.W.2d at 926, and it is

proper to look beyond the text to determine the statute‘s meaning.‖ Powers v. State, 343

S.W.3d 36, 50 (Tenn. 2011) (footnote omitted) (citing State v. Sherman, 266 S.W.3d at

401). The Powers court clarified that

3

Moreover, if we were to adopt the Court of Criminal Appeals‘ conclusion that because

aggravated sexual battery is not listed as a specific lesser-included offense of rape of a child in Tennessee

Code Annotated section 40-18-110(g), the legislature intended to exclude it, such conclusion would lead

to an incongruous result. Tennessee‘s statutory scheme containing the criminal code defines hundreds of

criminal offenses, only five of which are specifically listed in subsection (g). Applying the court‘s

reasoning, an offense cannot be a lesser-included offense if it does not fall within the parameters of

subsection (f) and is not one of the enumerated lesser-included offenses in subsection (g). The flaw in

this approach is that now any conviction offense (not just the particular lesser-included offense involved

in this case) that did not meet the criteria for a lesser-included offense under part (f) or part (g) is subject

to reversal on habeas corpus review unless the defendant requested the particular lesser-included offense

at issue. See Demonbreun v. Bell, 226 S.W.3d 321, 326 (Tenn. 2007). To avoid this unintended outcome,

we determine that the legislature did not intend for the Court of Criminal Appeals‘ reasoning to apply.

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[t]his proposition does not mean that an ambiguity exists merely because

the parties proffer different interpretations of a statute. A party cannot

create an ambiguity by presenting a nonsensical or clearly erroneous

interpretation of a statute. Here, because we determine that the

interpretations of the Act articulated by the petitioner and the State are both

reasonable, an ambiguity exists.

Powers, 343 S.W.3d at 50 n.20. We note that the interpretation of the statute rendered by

different panels of the Court of Criminal Appeals also creates an inherent ambiguity in

the language of the statute. See, e.g., Howard, 2015 WL 4626860, at *15; Ortega, 2015

WL 1870095, at *7-9; State v. Stewart, No. M2011-01994-CCA-R3-CD, 2013 WL

3820992, at *37 (Tenn. Crim. App. Jul. 22, 2013) (noting that the legislature ―expressly‖

provided for the determination of lesser-included offenses and excluded aggravated

sexual battery as a lesser-included offense of rape of a child, and further stating, ―[T]he

elements of aggravated sexual battery and rape of a child are not the same and neither is

a lesser[-]included offense of the other . . . .‖) (emphasis added); State v. Harrison, No.

E2008-01082-CCA-R3-CD, 2010 WL 3238309, at *10-11 (Tenn. Crim. App. Aug. 17,

2010) (concluding that the Burns test applied to offenses committed prior to July 1,

2009). But see State v. Isabell, No. W2013-00435-CCA-R3-CD, 2014 WL 3744580, at

*16 (Tenn. Crim. App. July 28, 2014), perm. app. denied (Tenn. Oct. 17, 2014)

(concluding that Tennessee Code Annotated section 40-18-110 ―does not expressly

abrogate Burns part (b)‖).4 We find this proposition applicable to the matter before us.

Reviewing the legislative history of the statute, Representative Kent Coleman, the

sponsor of House Bill 588 (―H.B. 588‖), explained to the House Judiciary Criminal

Practice and Procedure Subcommittee on April 15, 2009, ―This bill clarifies the

instructions that a trial judge has to give the jury regarding lesser offenses to the offense

of which they‘re charged, and there’s some confusion in the law right now. This just

clarifies what those charges would need to be for lesser-included offenses.‖ Hearing on

H.B. 588 Before the H. Judiciary Criminal Practice and Procedure Subcomm., 2009

Leg., 106th Sess. (Tenn. 2009) (statement of Rep. Kent Coleman, Member, H. Judiciary

Criminal Practice and Procedure Subcomm.) (emphasis added). When presenting H.B.

588 to the House Calendar and Rules Committee on April 28, 2009, Representative

Coleman stated, ―This bill basically deals with the judge‘s charge of . . . lesser[-]included

offense[s] in criminal cases. It‘s an effort to clarify which items must be included in

lesser offenses when instructing the jury. It’s an effort to clarify a question that exists

under the current law.‖ Hearing on H.B. 588 Before the H. Calendar and Rules Comm.,

4

We note that pursuant to Supreme Court Rule 4(E)(1), this case was designated as ―Not for

Citation.‖ Accordingly, while this opinion has no precedential value, it is nonetheless illustrative of the

premise that Tennessee Code Annotated section 40-18-110 has been subject to differing interpretations.

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2009 Leg., 106th Sess. (Tenn. 2009) (statement of Rep. Kent Coleman, Member, H.

Judiciary Criminal Practice and Procedure Subcomm.) (emphasis added).

The Senate Judiciary Committee considered Senate Bill 783/ H.B. 588 (―S.B.

783‖) on May 27, 2009. Senator Doug Overbey explained:

Senate Bill 783 is brought to clarify the law regarding what constitutes a

lesser-included offense. This bill specifies that an offense is a lesser-

included offense if, one, all of its statutory elements are included within the

statutory elements of the offense charged, or, two, the offense is a

facilitation, attempt, or solicitation of the offense charged, or of an offense

that otherwise meets the definition described in section one. This bill also

specifies that second degree murder is a lesser-included offense of first

degree murder, if the first degree murder is committed either in the killing

of another committed in the perpetration of or attempt to perpetrate in the

first degree murder, act of terrorism, arson, rape, robbery, various other

offenses, or a killing of another committed as a result of the unlawful

throwing, placing, or discharging of a destructive device or bomb. In other

words, this bill is brought to clear up what is a lesser-included offense.

Hearing on S.B. 783 Before the S. Judiciary Comm., 2009 Leg., 106th Sess. (Tenn. 2009)

(statement of Sen. Doug Overbey, Secretary, S. Judiciary Comm.) (emphasis added).

Addressing the senate on June 8, 2009, Senator Overbey explained that

[u]nder section one of the amendment you have paragraph (f) and

paragraph (g). Paragraph (f) is to clarify by definition what‘s a lesser-

included offense. Apparently, confusion exists under current law, and, so

that, the purpose of codifying it is so that the judges will know exactly what

to charge the jury with regard to a lesser-included offense. Paragraph (g) of

section one makes some specific references as to what are lesser-included

offenses as interpreted by case law. This puts it into statute, again, so

there‘ll be no question about these specific offenses are lesser-included

offenses of the offense charged.

Hearing on S.B. 783 Before the Senate, 2009 Leg., 106th Sess. (Tenn. 2009) (statement

of Sen. Doug Overbey, Secretary, S. Judiciary Comm.) (emphasis added).

After proposed amendments by the state senate, Representative Coleman

addressed the House of Representatives on June 9, 2009:

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This bill deals with lesser charged offenses as far as jury instructions are

concerned. . . . Senate amendment number two adds that in the case of

second degree murder, voluntary manslaughter is a lesser-included offense

of both premeditated first degree murder and second degree murder.

Amendment number two also specifies that aggravated sexual battery is a

lesser-included offense of aggravated rape. Sexual battery and sexual

battery by an authoritative figure is a lesser-included offense in the case of

rape and aggravated rape. It says that second degree murder is a lesser-

included offense in the case of all first degree murders under all

circumstances. This bill is intended to apply only to the offenses that are

included within the bill. Therefore the Burns and Page decisions would

still be applicable in certain cases. But in the cases that are specified in this

bill as amended, the lesser-included offenses would be applicable in those

charges.

Hearing on H.B. 588 Before the House, 2009 Leg., 106th Sess. (Tenn. 2009) (statement

of Rep. Kent Coleman, Member, H. Judiciary Criminal Practice and Procedure

Subcomm.) (emphasis added). The bills passed both houses of the legislature and

became effective as Tennessee Code Annotated section 40-18-110(f) and (g) in July

2009.

As evidenced by the legislative history, S.B. 783/ H.B. 588 was introduced to

alleviate confusion in an area of law. Although it is unclear what question the legislature

sought to answer in passing the statute, what remains clear is that neither the house nor

the senate intended to abrogate Burns in its entirety. To the contrary, Representative

Coleman, the sponsor of the bill, stated unequivocally that Burns would still apply in

certain cases, presumably the ―part (b)‖ cases that would not fall within the purview of

the amended statute. Id. The bill was presented for a vote and was passed after this

statement. Thus, it appears that the legislature intended for part (b) of Burns to survive

the amendments.

3. Constructive Amendment

The State argues that we should not reach this issue because defendant consented

to an amendment of the indictment and as such, the issue should be pretermitted.

Specifically, the State contends that defendant is due no relief from his conviction of

aggravated sexual battery as a lesser-included offense of rape of a child because he

constructively consented to an amendment of the indictment by failing to object to the

trial court‘s instructions to the jury.

During the charge conference, the trial court indicated its intent to instruct the jury

on aggravated sexual battery as a lesser-included offense of rape of a child, and counsel

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for defendant neither assented nor objected. However, ―‗a defendant‘s acquiescence to a

jury instruction based on an incorrect belief that an offense is a lesser[-]included offense

is simply insufficient to transform an erroneous jury instruction into a valid amendment

of an indictment by that defendant‘s consent.‘‖ Demonbreun, 226 S.W.3d at 326

(quoting State v. Stokes, 24 S.W.3d 303, 306 (Tenn. 2000)). Accordingly, we reject the

State‘s contention that defendant consented to amend the indictment in this case.

4. Aggravated Sexual Battery is a Lesser-Included Offense of

Rape of a Child

Having concluded that part (b) of the Burns test continues to be applicable to

determining lesser-included offenses not specifically included in Tennessee Code

Annotated section 40-18-110(f) and (g), we now must determine whether aggravated

sexual battery is a lesser-included offense of rape of a child for offenses occurring prior

to the July 1, 2016 amendment. We hold that it is.

Without analysis of this particular issue, this Court reviewed a conviction for

aggravated sexual battery as a lesser-included offense of rape of a child in Elkins, 83

S.W.3d at 710-11. In that case, the trial court instructed the jury on aggravated sexual

battery as a lesser-included offense, and the jury convicted him of that offense. Id. at

709-10. We reversed and remanded the matter for a new trial because the trial court

failed to instruct the jury on other appropriate lesser offenses, not because the court

instructed on this offense. Id. at 710. We reiterated that aggravated sexual battery is,

indeed, a lesser-included offense of rape of a child in State v. Evans, 108 S.W.3d 231,

237 (Tenn. 2003) (―In [Elkins, 83 S.W.3d at 713], this Court recognized that aggravated

sexual battery is a lesser-included offense of rape of a child . . . .‖).

Indeed, prior to the 2009 amendment to section 40-18-110, several panels of the

Court of Criminal Appeals also affirmed convictions of aggravated sexual battery as a

lesser-included offense of rape of child pursuant to a Burns analysis. See, e.g., State v.

Monette, No. M2006-02462-CCA-R3-CD, 2008 WL 4211602, at *3 (Tenn. Crim. App.

Sept. 4, 2008) (noting that defendant‘s argument ―ignores established precedent which

has repeatedly held that, when the victim is less than thirteen years of age, aggravated

sexual battery is a lesser-included offense of rape of a child‖); State v. Biggs, 218 S.W.3d

643, 657 (Tenn. Crim. App. 2006) (concluding that the trial court properly instructed the

jury on aggravated sexual battery as a lesser-included offense pursuant to the Burns

analysis); State v. Zirker, No. M2003-02546-CCA-R3-CD, 2005 WL 1122646, at *10

(Tenn. Crim. App. May 12, 2005) (―It is clear in Tennessee that aggravated sexual battery

is a lesser-included offense of rape of a child.‖); State v. Walters, No. M2003-03019-

CCA-R3-CD, 2004 WL 2726034, at *8 (Tenn. Crim. App. Nov. 30, 2004) (stating that

―aggravated sexual battery when the victim is less than thirteen . . . [is] [a] lesser[-]

included offense[] of rape of a child‖); State v. Salcido, No. M1999-00501-CCA-R3-CD,

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2001 WL 227357, at *7 (Tenn. Crim. App. Mar. 8, 2001) (concluding, after a thorough

analysis, that ―[a]ggravated sexual battery is, therefore, a lesser-included offense of rape

of a child under part (b) of the Burns test‖).

Although this Court has twice clarified that aggravated sexual battery is a lesser-

included offense of rape of a child, Evans, 108 S.W.3d at 237; Elkins, 83 S.W.3d at 713,

it appears that we have done so without engaging in a thorough analysis of Burns part (b).

Part (b) of the Burns test requires that the elements of the lesser-included offense be

included in the elements of the charged offense, except to the extent that the lesser-

included offense ―contains a statutory element or elements establishing (1) a different

mental state indicating a lesser kind of culpability; and/or (2) a less serious risk of harm

to the person, property or public interest.‖ Burns, 6 S.W.3d at 466-67.

―Rape of a child is the unlawful sexual penetration of a victim by the defendant or

the defendant by a victim, if the victim is more than three (3) years of age but less than

thirteen (13) years of age.‖ Tenn. Code Ann. § 39-13-522(a). ―Sexual penetration‖

means ―sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,

however slight, of any part of a person‘s body or of any object into the genital or anal

openings of the victim‘s, the defendant‘s, or any other person‘s body, but emission of

semen is not required.‖ Id. § 39-13-501(7). As applicable to this case, a defendant

commits the offense of aggravated sexual battery when he or she engages in ―unlawful

sexual contact with a victim‖ and ―[t]he victim is less than thirteen (13) years of age.‖ Id.

§ 39-13-504(a)(4). The statutory definition of ―sexual contact‖ contemplates that the

―intentional touching can be reasonably construed as being for the purpose of sexual

arousal or gratification.‖ Id. § 39-13-501(6).

The primary difference between the two criminal offenses is that rape of a child

requires ―unlawful sexual penetration,‖ while aggravated sexual battery is accomplished

by ―unlawful sexual contact.‖ Because aggravated sexual battery requires that the

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

gratification, which is not an element of child rape, it cannot be considered a lesser-

included offense in this case under Burns part (a). Pursuant to Burns part (b), however,

unlawful sexual contact involves a less serious risk of harm to the person, Burns, 6

S.W.3d at 466-67, and a defendant‘s ―intent to touch a victim‘s intimate parts for the

purpose of sexual arousal constitutes a mental state reflecting a lesser degree of

culpability than the reckless, knowing, or intentional commission of sexual penetration

for any reason,‖ State v. Greer, No. M1998-00789-CCA-R3-CD, 2000 WL 284180, at *7

(Tenn. Crim. App. Mar. 17, 2000). Accordingly, we hold that aggravated sexual battery

is a lesser-included offense under part (b) of the Burns test and that the trial court

properly instructed the jury as to this offense. Defendant is not entitled to relief from his

conviction for aggravated sexual battery as a lesser-included offense of rape of child.

- 15 -

The Court of Criminal Appeals‘ conclusion to the contrary is hereby reversed, and

defendant‘s conviction is reinstated.

B. Evidentiary Issues

Defendant‘s remaining assignments of error involve matters of evidentiary rulings

by the trial court.

1. Standards of Review

Three of the evidentiary issues raised by defendant involve a matter of hearsay.

This Court has recently addressed the confusion5 regarding the appropriate standard of

review to be employed in this setting and stated as follows:

The standard of review for rulings on hearsay evidence has multiple

layers. Initially, the trial court must determine whether the statement is

hearsay. If the statement is hearsay, then the trial court must then

determine whether the hearsay statement fits within one of the exceptions.

To answer these questions, the trial court may need to receive evidence and

hear testimony. When the trial court makes factual findings and credibility

determinations in the course of ruling on an evidentiary motion, these

factual and credibility findings are binding on a reviewing court unless the

evidence in the record preponderates against them. Once the trial court has

made its factual findings, the next questions—whether the facts prove that

the statement (1) was hearsay and (2) fits under one [of] the exceptions to

the hearsay rule—are questions of law subject to de novo review.

If a statement is hearsay, but does not fit one of the exceptions, it is

inadmissible, and the court must exclude the statement. But if a hearsay

statement does fit under one of the exceptions, the trial court may not use

the hearsay rule to suppress the statement. However, the statement may

5

See, e.g., Pylant v. State, 263 S.W.3d 854, 871 n.26 (Tenn. 2008) (maintaining that the

standard of review for hearsay issues is abuse of discretion); State v. Dotson, 254 S.W.3d 378, 392 (Tenn.

2008) (holding that ―questions concerning the admissibility of [hearsay] evidence rest within the sound

discretion of the trial court, and this Court will not interfere in the absence of abuse appearing on the face

of the record‖); Perry v. State, No. W2011-01818-CCA-R3-PC, 2012 WL 2849510, at *3 (Tenn. Crim.

App. July 11, 2012) (stating that standard of review for admissibility of evidence is abuse of discretion).

But see Perry, 2012 WL 2849510, at *7 (Bivins, J., concurring) (applying de novo standard of review to

hearsay issues); State v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (stating that whether a

statement is offered to prove the truth of the matter asserted is ―necessarily . . . a question of law‖ and is

not subject to review under abuse of discretion standard); State v. Schiefelbein, 230 S.W.3d 88, 128

(Tenn. Crim. App. 2007) (holding that appellate review of hearsay issues is de novo with no presumption

of correctness).

- 16 -

otherwise run afoul of another rule of evidence. For example, a trial court

may decline to admit an excited utterance if it finds the utterance lacks

relevance under [Tennessee Rules of Evidence ] 401 & 402 or if it finds the

utterance‘s ―probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.‖ If a trial court excludes otherwise admissible

hearsay on the basis of Rule 401, 402, or 403, this determination is

reviewed for abuse of discretion.

Kendrick v. State, 454 S.W.3d 450, 479-80 (Tenn. 2015) (citations omitted), cert.

denied, 136 S.Ct. 335 (2015).

However, we review a trial court‘s decision regarding the admissibility of

evidence for abuse of discretion. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015)

(citing State v. Parker, 350 S.W.3d 883, 896-97 (Tenn. 2011)). ―‗Reviewing courts will

find an abuse of discretion only when the trial court applied incorrect legal standards,

reached an illogical conclusion, based its decision on a clearly erroneous assessment of

the evidence, or employed reasoning that causes an injustice to the complaining party.‘‖

Id. (quoting Parker, 350 S.W. 3d at 897); State v. Banks, 271 S.W.3d 90, 116 (Tenn.

2008).

1. Nancy Lane‘s Testimony

Defendant contends that the trial court erred in precluding one of his witnesses,

Nancy Lane, from testifying about a conversation she allegedly had with the victims after

they made the allegations against defendant. Ms. Lane, a close friend of the victims‘

mother, testified for the defense. Defendant sought to introduce testimony from Ms.

Lane that she had interacted with the victims at the Red Bank Festival and that, when she

asked them if anyone had ―hurt‖ them, they responded in the negative. The State

interposed an objection, and the following bench conference occurred:

[STATE]: Your Honor, may we approach?

THE COURT: You may.

(Thereupon, a bench conference was held on the record in the

presence of the jury but out of the hearing of the jury and the

following proceedings were had:)

[STATE]: I mean I‘m objecting to her saying whatever she‘s

going to testify to about after this allegation came out.

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I don‘t know what she‘s going to testify to. I don‘t

know what the foundation is for it or how it is even

relevant.

THE COURT: Okay. So you‘ve got a relevance objection?

[STATE]: Yes, sir.

THE COURT: What is she going to say?

[DEFENSE]: She saw the children at the Red Bank festival in April

after this allegation. She asked the children if anyone

had hurt them and they told her no.

THE COURT: What do you say about that, [counsel]?

[STATE]: I mean there‘s lots of context. I mean hurt them means

– I mean, if anyone had hurt them doesn‘t necessarily

mean that someone wants to talk to somebody about

some sort of, you know, being raped by somebody. I

mean that‘s not something that people just commonly

just say, hey, yeah, I was raped last week. You know

what I mean?

THE COURT: That‘s not an evidentiary objection.

[STATE]: I‘m objecting to relevancy because it‘s not relevant.

THE COURT: Well, whether they were hurt or not is relevant. That‘s

the whole issue of the case.

[STATE]: Right. But whether what they told her is not relevant

in this particular matter because it doesn‘t prove or

disprove anything.

THE COURT: Well, the defense thinks it does.

[STATE]: I would also argue that it‘s hearsay, it‘s an out-of-court

statement entered for the truth of the matter asserted.

THE COURT: I think that‘s correct. What do you say about that,

[counsel]?

- 18 -

[DEFENSE]: We‘re not offering it for the truth of the matter

asserted, just that she had contact with the children,

she asked them about it, they said no.

THE COURT: Well, if you‘re not offering it for the truth of the matter

asserted then it‘s not relevant.

[DEFENSE]: Then we‘re offering it for the fact that she had contact

with the children.

THE COURT: Well, that‘s not relevant to the – any issue at hand.

[DEFENSE]: That she‘s seen the children since this happened.

THE COURT: Well, that‘s not really relevant either; so I will sustain

the objection on both counts –

[STATE]: Thank you, Your Honor.

Defendant specifically contends that this testimony should have been admitted as

being indicative of the victims‘ state of mind pursuant to the hearsay exception found in

Tennessee Rule of Evidence 803(3). He also argues that this Court should apply our

holding in State v. Brown and find that this testimony was ―critical to the defense.‖ 29

S.W.3d 427 (Tenn. 2000).

We note, first, that during the bench conference, defendant‘s trial counsel did not

argue an exception to the exclusionary hearsay rule. In addition, trial counsel did not

argue the applicability of this Court‘s Brown decision.6 It is well-settled that a defendant

may not advocate a different or novel position on appeal. State v. Leach, 148 S.W.3d 42,

55 (Tenn. 2004) (citing Johnson v. State, 38 S.W.3d 52, 60 n.8 (Tenn. 2001)); State v.

6

Tangential to his argument with respect to State v. Brown, defendant asserts, as he did in the

Court of Criminal Appeals, that ―[w]hile the [S]tate is technically the ‗party‘ in a criminal case, the

complainant in a criminal case is analogous to a party.‖ (citing Brown, 29 S.W.3d at 435). He relies on a

statement by this Court in Brown that the proffered evidence, which is similar to that at issue in this case,

is similar to evidence that is admissible pursuant to Tennessee Rule of Evidence 803(1.2)(A); Brown, 29

S.W.3d at 435. However, this Court continued to clarify that ―[b]y so stating, we are not suggesting that

the proof in this case should have been admitted as an admission by a party opponent, nor are we holding

that the complaining witness in a criminal case is a party for purposes of Rule 803(1.2)(A).‖ The Court of

Criminal Appeals properly concluded that ―a rape victim is not a ‗party‘ for purposes of the hearsay

exception for party admissions.‖ Howard, 2015 WL 4626860, at *8 (citing State v. Flood, 219 S.W.3d

307, 314 (Tenn. 2007)).

- 19 -

Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994) (stating that a defendant

may not assert one ground for relief in the trial court and then pursue a new or different

theory on appeal). As such, both arguments are waived. Moreover, we note that the

Court of Criminal Appeals thoroughly analyzed this issue and addressed all of

defendant‘s arguments. Howard, 2015 WL 4626860, at *7-10. We agree with its

conclusions.

2. Children‘s Advocacy Center Records

At trial, State‘s witness, Dr. Garcia, was called to testify about the medical

examinations of the victims performed at the Children‘s Advocacy Center by nurse Kathy

Spada at the request of law enforcement. Ms. Spada was not called as a witness at trial;

the reports were entered into evidence during Dr. Garcia‘s testimony. Defendant did not

object to the introduction of the reports themselves into evidence but, rather, challenged

the introduction of the ―subjective findings or anything that may have been said to the

examiner‖ as well as the ―comments that are in the report[s] which are attributed to the

children‖ during the examinations that appear in the reports.

The trial court permitted the reports to be admitted pursuant to Tennessee Rule of

Evidence 803(6) as a record of regularly conducted activity. The trial court concluded

that ―the subjective findings of the examiner are admissible‖ because they were recorded

―for a business purpose and it‘s part of a regularly conducted activity.‖ The Court of

Criminal Appeals agreed with the trial court‘s analysis in this respect, as do we. See, e.g.,

State v. Cannon, 254 S.W.3d 287, 303 (Tenn. 2008) (holding that ―to the extent medical

records may be properly categorized as business records, such records are properly

categorized as nontestimonial‖). We also note for the record that during oral argument

on this issue, counsel for defendant conceded that the reports were admissible pursuant to

the ―business records exception.‖

However, our inquiry does not end there. In his appeal to this Court, defendant

asserts that the trial court erred in admitting the reports, Exhibits 10 and 11, because the

reports contained comments that were attributed to the victims and that the reports were

not generated for the purposes of medical diagnosis or treatment because ―[n]o medicine

appears to have been prescribed[] and the report was subsequently provided to [the]

Hamilton County District Attorney for use at trial.‖ In his brief, defendant disagrees that

the victims‘ statements were admissible under Tennessee Rule of Evidence 803(4)

because ―[t]he report‘s ultimate conclusion is not as to the current physical or mental

health of the children, but whether the examination can confirm or rule out sexual abuse,

a past fact that would need to be proven at trial‖ and, as such, the statements run afoul of

the Confrontation Clause.

- 20 -

Thus, this issue demands consideration of Tennessee Rule of Evidence 805, which

addresses ―hearsay within hearsay.‖ The Rule provides that ―[h]earsay within hearsay is

not excluded under the hearsay rule if each part of the combined statements conforms

with an exception to the hearsay rule provided in these rules or otherwise by law.‖ Tenn.

R. Evid. 805. While the trial court properly concluded that the reports were admissible as

business records, the statements made by the victims contained within the reports must

also satisfy an exception to the hearsay rule to be admissible. Howard, 2015 WL

4626860, at *11 (citing State v. Rucker, 847 S.W.2d 512, 516 (Tenn. Crim. App. 1992),

overruled on other grounds by State v. McLeod, 937 S.W.2d 867, 870 n.2 (Tenn. 1996)).

The trial court applied Tennessee Rule of Evidence 803(4) as the exception

allowing introduction of the victims‘ hearsay statements. Statements made for the

purpose of medical diagnosis and treatment are admissible pursuant to this exception to

the hearsay rule. The Rule provides that ―[s]tatements made for purposes of medical

diagnosis and treatment describing medical history; past or present symptoms, pain, or

sensations; or the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis and treatment‖ are admissible as an exception

to the general exclusion of hearsay testimony. Tenn. R. Evid. 803(4). We have

explained the rationale behind this exception as well as the challenges presented in cases

similar to the case at bar:

Rule 803(4) is based upon the notion that statements made under

conditions prescribed by the rule are presumptively trustworthy. Courts

have reasoned that patients seeking medical assistance are strongly

motivated to be truthful because accurate diagnosis and effective treatment

often depend, in part, upon what patients tell health care providers. United

States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985); United States v. Iron

Shell, 633 F.2d 77, 84 (8th Cir. 1980). ―[T]hus[,] the declarant has a self-

interested motive to tell the truth.‖ State v. Barone, 852 S.W.2d 216, 220

(Tenn. 1993) (citing NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE

§ 803(4).1 at 425 (2d ed. 1990)). Moreover, if physicians or other medical

personnel rely upon the statement in diagnosing and treating the patient,

then the statement should be sufficiently trustworthy to be admissible in a

court of law. Id. at 220; State v. Edwards, 868 S.W.2d 682, 699 (Tenn.

Crim. App. 1993). The patient‘s strong motivation to be truthful constitutes

the basis for similar evidentiary rules in other jurisdictions as we will

discuss below.

This rationale, however, becomes questionable when the patient is a

child because children may not be able to understand the need to be truthful

in the medical setting. Nevertheless, courts must adhere to the evidentiary

rules to ensure, to the extent possible, that only those out-of-court

- 21 -

statements which satisfy the requirements of the rule are admitted into

evidence.

McLeod, 937 S.W.2d at 870 (alterations in original). For these reasons, the McLeod court

held that for a statement by a child declarant to be admissible pursuant to Rule 803(4),

the trial court must hold an evidentiary hearing outside the presence of the jury to

consider all relevant evidence offered pertaining to the making of the statement. Id. at

869.

The trial court in this case followed the requisite protocol and held a jury-out

hearing prior to admitting the reports in question. During the hearing, Dr. Garcia

testified, ―I need to know what went where[,] how many times, [and] associated

symptoms that go along with it, so I can diagnose [the] child appropriately and provide

medical help appropriately.‖ While Dr. Garcia did not personally perform the

examinations, she reviewed every report completed by the center. The trial court found it

―clear‖ that Dr. Garcia‘s testimony established that the physical examinations were ―in

large part, if not totally, for purposes of medical diagnosis and treatment.‖ We agree with

this conclusion. Dr. Garcia also testified during voir dire examination that the center

created reports to document the examinations given. She said, ―Any interaction that we

have with a patient in the course of our daily, daily part of seeing patients, we have to

make a record of that communication and contact and what we did with that patient.‖

Because of the nature of the examination, the reports are stored in a separate file, but the

reports are nonetheless part of Erlanger‘s medical records. The report is not

automatically disseminated to law enforcement or the district attorney‘s office; those

entities must request a release to obtain the reports. Dr. Garcia‘s testimony clearly

reflects that the statements made by the victims were intended for the purpose of medical

diagnosis or treatment. This is consistent with Tennessee jurisprudence. Cannon, 254

S.W.3d at 303 (holding that statements in medical records given for the primary purpose

of medical diagnosis and treatment are nontestimonial); State v. Stinnett, 958 S.W.2d

329, 332-33 (Tenn. 1997) (holding that statements were admissible because the six-year-

old victim was old enough to understand the nature of the medical examination and the

reason therefor, her statement to the physician and her trial testimony were consistent in

all ―pertinent respects,‖ she was examined immediately after the allegations and nearly

four years prior to trial, and there was no indication that the victim was motivated to be

untruthful).

To the extent that defendant implies (as he did at trial) that the statements were

made for the purpose of prosecution and not for medical treatment, this issue is without

merit. The trial court heard this objection and specifically stated that ―none of that‘s been

established here through Dr. Garcia. Dr. Garcia testified that this was a medical

examination[] [and] that she‘s the . . . medical director of the sexual assault center. As

such, she‘s qualified to talk about records of that center, and she‘s talked about the

- 22 -

reasons why these examinations take place . . . .‖ The trial court ruled correctly. We

have repeatedly held that ―‗statements made to a physician identifying a perpetrator who

is a member of the child‘s household may be reasonably pertinent to proper diagnosis and

treatment of emotional and psychological injury.‘‖ Stinnett, 958 S.W.2d at 333 (quoting

State v. Livingston, 907 S.W.2d 392, 397 (Tenn. 1995)); see also Rucker, 847 S.W.2d at

518-20. Moreover, we note that the Confrontation Clause7 is not implicated in this case

because both victims testified at length at trial and were subject to cross-examination

about the statements contained within the reports.

Pursuant to McLeod, the trial court must hold an evidentiary hearing outside the

presence of the jury to consider all relevant evidence offered pertaining to the making of

the statement. McLeod, 937 S.W.2d at 869. The court should consider ―the

circumstances surrounding the making of the statement, which would include the timing

of the statement and its contents.‖ Id. at 871. The inquiry into the circumstances, for

instance, could include, depending on the facts of each case, whether the victim‘s

statement was in response to suggestive or leading questions and/or whether ―any other

factor that may affect trustworthiness, such as a bitter custody battle or family feud.‖ Id.

Defendant offered no such argument at trial; thus, the trial court did not have the

opportunity to rule upon any such circumstance.

The Court of Criminal Appeals, in its review, considered such circumstances as

the age of the victims, the timing of their statements, and the degree of trustworthiness of

the victims‘ statements based upon suggestibility due to their viewing of their mother

engaged in a sexual act with two other people and their potential discovery of a disc

containing ―adult‖ pictures of this act. Howard, 2015 WL 4626860, at *12-13.

However, the victims were not questioned about the possible tainting of their statements

in this regard, and ―[t]he record is devoid of any other type of evidence, such as a family

feud or custody battle, that might affect the trustworthiness of the testimony.‖ Id. at *13.

The trial court correctly ruled that the Children‘s Advocacy Center reports were

admissible pursuant to the business records exception and that the hearsay statements

contained within the reports constituted statements made for the purpose of medical

diagnosis or treatment, a hearsay exception. Tenn. R. Evid. 803(4), (6). The reports were

admissible, and defendant is without relief as to this claim of error.

3. Victims‘ Records

Defendant maintains that the trial court erred in excluding N.J.‘s medical records

wherein she complained, falsely, about a hearing problem four years prior to making the

allegations at issue in this case. The medical records established that when N.J. was six

7

See Crawford v. Washington, 541 U.S. 36 (2004).

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years old, she experienced a two-day earache and a fever. Three months later, she

reported difficulty hearing to her doctor, which was unfounded. Defendant attempted to

introduce N.J.‘s medical records to attack N.J.‘s credibility, but the State filed a motion in

limine to exclude the records. The trial court excluded the records, concluding that a

false report made four years before the incidents in this case was not relevant and that

even if it were, the probative value of the evidence was substantially outweighed by the

danger of unfair prejudice. See Tenn. R. Evid. 401, 403.

We hold that the trial court did not abuse its discretion in excluding the records.

The trial court stated that it did not find that the then-six-year-old victim was dishonest

about her ability to hear and that her ―complaint about an inability to hear on occasion

after she had had an earache within a recent period of time‖ was not ―very probative at all

with regard to her complaining as a ten-year-old of having been sexually assaulted.‖ The

trial court, in the alternative, concluded that the probative value was ―slight‖ and that the

probative value was substantially outweighed by the danger of unfair prejudice. Tenn. R.

Evid. 403. The trial court did not apply an incorrect legal standard, reach an illogical

conclusion, base its decision on a clearly erroneous assessment of the evidence, or

employ reasoning that caused an injustice to the complaining party. See Herron, 461

S.W.3d at 904; Banks, 271 S.W.3d at 116. This issue is without merit.

4. Detective Wright‘s Testimony

During the cross-examination of Detective Wright, defendant sought to elicit

testimony concerning Detective Wright‘s telephone call to the Children‘s Advocacy

Center. The following exchange took place:

Q. So, Officer Wright, I‘ll ask you again, did you call CPS at that time?

A. I did.

Q. Why?

[STATE]: Objection.

....

[DEFENSE]: May we approach, Your Honor?

THE COURT: You may.

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(Thereupon, a bench conference was held on the record in the

presence of the jury but out of the hearing of the jury and the

following proceedings were had:)

STATE: He‘s about to get into hearsay in that document

about – I‘m assuming that you‘re going to ask

that they, you know, some of the information

about she was seen with [defendant] after;

right?

DEFENSE: That would be where we‘re going, yeah.

STATE: Which is actually hearsay within hearsay. The

step-grandfather told the detective who told Ms.

Powell, so I mean, it‘s straight hearsay. He

can‘t ask about that.

THE COURT: So you‘re asking him why he called CPS?

DEFENSE: We‘re asking for the impetus of that particular

action, as part of his investigation, why is he

doing that.

THE COURT: Why did he call CPS, and his answer you want

to elicit would be what?

DEFENSE: That he received information that [defendant]

and [J.B.] were seen together. They were still,

they were still together.

THE COURT: You‘re offering that for the truth of the matter

asserted, aren‘t you?

DEFENSE: Well, Your Honor, I think – I‘m curious, now

we‘ve heard as to why CPS is being called, or

that CPS is called, why, why is this

involvement continuing after this, after this

evening.

THE COURT: Well, but what are you trying to show? Are you

trying to show that he called CPS because Ms.

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Howard and – or [J.B.] and [defendant] were

together?

DEFENSE: Yes, Your Honor.

THE COURT: Well, he doesn‘t know that but for the hearsay.

DEFENSE: We‘re not offering it for the truth.

THE COURT: What?

DEFENSE: We‘re not offering it for the truth of the matter,

Your Honor. We‘re offering it for the

explanation of why he called CPS. At this point

all the jury knows is that he called CPS.

THE COURT: Well, now you‘re –

DEFENSE: The way it‘s being left, he could be calling CPS

because [defendant] is trying to molest the girls

again.

THE COURT: No, he called CPS, as I understand it, he called

CPS because he received a hearsay

statement/report that [defendant] was with

[J.B.]. Do you know how that turned out?

DEFENSE: The – I don‘t know what it –

THE COURT: You don‘t know what happened after?

DEFENSE: No, Your Honor. All I know is what I‘ve

learned from Detective Wright.

THE COURT: No, I think that‘s not admissible. I‘ll sustain the

objection.

STATE: Thank you.

To be clear, Detective Wright was asked to testify about information he received

from the victims‘ grandfather regarding their mother being seen with defendant. In his

brief, defendant advances the state of mind exception to the hearsay rule, arguing that the

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state of mind of the victims‘ mother, presumably that by being around defendant after the

allegations had been made demonstrated that she did not believe the victims, was

relevant. However, this position was not offered by trial counsel; thus, this departure in

strategy requires that we review this issue for plain error only.

As noted above, Tennessee Rule of Evidence 803(3) allows admission of a

hearsay statement if it is ―[a] statement of the declarant‘s then existing state of mind,

emotion, sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health).‖ Because the Advisory Commission Comments to Rule

803(3) clarify that ―only the declarant‘s conduct, not some third party‘s conduct, is

provable by [the state of mind] hearsay exception,‖ this exception is inapplicable to this

scenario. In his brief, defendant specifically argues that ―the excluded testimony . . .

would have gone to the state of mind of the victims‘ [m]other.‖ The declarant‘s, the

victims‘ grandfather, state of mind is not at issue, and this statement cannot be attributed

to demonstrate the mother‘s state of mind. As such, a clear and unequivocal rule of law

has not been breached.

On appeal, defendant also argues that the Brown decision should apply to this

issue. See Brown. 29 S.W.3d at 343. Again, because this position was not advocated

during trial, the argument is subject to plain error review. Aside from citing the Brown

case, defendant sets forth no argument regarding the three factors that this Court must

find before evidence may be received pursuant to Brown. He does not assert that this

evidence was critical to the defense, and under the facts of this case, we cannot say that it

was. The mother testified at trial and acknowledged having called defendant to perform a

repair or adjustment on her washing machine, a time during which she stated that the

victims remained in their bedroom and did not see defendant. Thus, J.B. admitted to

having contact with defendant after the allegations had been made, which was the

purported reason that trial counsel asserted for allowing the testimony of Detective

Wright. In addition, she was subject to cross-examination on any other instances of

contact she may have had with defendant. As such, defendant is not entitled to relief.

III. Conclusion

We conclude that Tennessee Code Annotated section 40-318-110(f) and (g) did

not abrogate part (b) of State v. Burns, 6 S.W.3d 453 (Tenn. 1999), and that analysis of

whether an offense constitutes a lesser-included offense of a charged offense is still

proper under part (b) unless it is specifically encompassed by the statute. Accordingly,

we conclude that defendant‘s conviction of aggravated sexual battery as a lesser-included

offense of rape of a child was proper. The judgment of the Court of Criminal Appeals is

therefore reversed in this regard. The court‘s judgment is, on all remaining issues,

affirmed. Costs of this appeal are taxed to the defendant, Glen Howard, for which

execution may issue if necessary.

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_________________________________

ROGER A. PAGE, JUSTICE

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