State v. Fowler ( 1999 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
STATE OF TENNESSEE, ) FOR PUBLICATION
) October 25, 1999
Appellant, ) FILED: __________, 1999
) Cecil Crowson, Jr.
v. ) COFFEE COUNTY
Appellate Court Clerk
)
CHARLES D. FOWLER, ) HON. JOHN W. ROLLINS, JUDGE
)
Appellee. ) NO. 01-S-01-9810-CC-00185
DISSENTING OPINION
The criminal attempt statute in issue provides:
(a) A person commits criminal
attempt who, acting with the kind of
culpability otherwise required for
the offense:
. . . .
(3) Acts with intent to complete a
course of action or cause a result
that would constitute the offense,
under the circumstances surrounding
the conduct as the person believes
them to be, and the conduct
constitutes a substantial step
toward the commission of the
offense.
(b) Conduct does not constitute a
substantial step under subdivision
(a)(3) unless the person’s entire
course of action is corroborative of
the intent to commit the offense.
Tenn. Code Ann. § 39-12-101 (1997)(emphasis added).
In determining whether certain conduct constitutes, as a
matter of law, “a substantial step toward the commission of the
offense . . . corroborative of the intent to commit the offense,”
my esteemed colleagues have embraced a construction of the statute
which, in my opinion, is far too expansive. Because I remain
firmly convinced that the statute should be narrowly construed, I
respectfully dissent.
Our criminal attempt statute was discussed recently by
this Court in State v. Reeves, 916 S.W.2d 909 (Tenn. 1996). In
Reeves, a twelve-year-old defendant told a friend that she intended
to poison her teacher's coffee. The following day, one of the
defendant’s friends brought rat poison to school, and the defendant
was observed “leaning over” the teacher's desk. When the teacher
entered the classroom, she found a purse containing rat poison next
to her coffee cup.
The Court, tailoring the opinion to the facts of the
case, stated:
when an actor possesses materials to
be used in the commission of a
crime, at or near the scene of the
crime, and where the possession of
those materials can serve no lawful
purpose of the actor under the
circumstances, the jury is entitled,
but not required, to find that the
actor has taken a “substantial step”
toward the commission of the crime
if such action is strongly
corroborative of the actor’s overall
criminal purpose.
Id. at 914 (emphases added). Thus, it appears that the Court has
eschewed the opportunity to interpret the statutory language of
Tenn. Code Ann. § 39-12-101(a)(3) narrowly, deciding instead to
apply a fairly broad interpretation to the term “substantial step.”
2
Notwithstanding this expansive interpretation, by
statute, the State is still required to prove “substantial step”
conduct. Indeed, my dissent in Reeves was based on my view that
the evidence was insufficient to support a finding of “substantial
step” conduct. In my opinion, the record did not demonstrate that
the twelve-year-old defendant’s possession of poison at school was
“strongly corroborative” of an intent to commit second-degree
murder; nor did her conduct constitute a substantial step toward
the commission of the underlying offense.
This case provides yet another opportunity to demonstrate
the danger inherent in an expansive construction of Tenn. Code Ann.
§ 39-12-101(a)(3). Here, Fowler expressed a willingness to become
sexually involved with a young boy. Aside from this expression,
the only other action the defendant took was to give the undercover
agent a check for $200. Fowler’s conduct may constitute the
indirect solicitation of a crime, but it does not constitute
criminal attempt.
The authorities conclude generally that “as a general
proposition . . . mere criminal solicitation of another to commit
a crime does not constitute an attempt.” Gervin v. State, 212
Tenn. 653, 371 S.W.2d 449, 450 (1963).1 Before a defendant will be
deemed guilty of an attempt to commit the crime solicited, he or
she must both solicit another to commit a crime and perform “some
1
Though the criminal attempt analysis in Gervin has been
superseded by statute, the court’s discussion of the analytical
distinction between solicitation and criminal attempt remains
legally valid.
3
other act toward its perpetration.”2 4 Charles E. Torcia,
Wharton’s Criminal Law § 672 (15th ed. 1996). More specifically,
in State v. Baxley, 633 So. 2d 142, 145 (La. 1994), the Louisiana
Supreme Court reviewed cases from various jurisdictions considering
whether solicitating another to commit a sexual offense supports a
conviction for attempt. The Court found that the view held by the
majority of jurisdictions is that solicitation may not be equated
with an attempt to commit a sexual offense. Id. at 46.
Additionally, the Court found that the majority view “is persuasive
and should be followed.” Id. Likewise, in a case involving
attempted statutory rape, this Court has noted that “[t]he weight
of authority . . . is that mere solicitation is not sufficient [to
constitute criminal attempt].”3 McEwing v. State, 134 Tenn. 649,
185 S.W. 688, 689 (1916).
It is difficult to conceive of an attempted rape which
does not include at least limited physical contact. Conduct short
of physical contact may suggest the actor’s intent and preparation
2
Granted, Fowler was not directly soliciting another to commit
the crime of statutory rape; he was soliciting an officer to
procure a minor to engage in illegal sexual activities which would
constitute statutory rape. However, the principle still applies;
in addition to indirectly soliciting the crime through the officer,
there must be “some other act toward its perpetration,” to
constitute attempt. 4 Charles E. Torcia, Wharton’s Criminal Law §
672 (15th ed. 1996).
3
In McEwing, the Court affirmed the defendant’s conviction for
attempted statutory rape based in part on the physical contact
between the defendant and the victim. Though the “overt act”
analysis applied by the McEwing court has been superseded by
statute, the historical distinction between solicitation and
attempted sexual offenses is a principle that transcends the
varying statutory definitions of the type of conduct that rises to
the level of criminal attempt. See Tenn. Code Ann. § 39-12-101
(1997).
4
to commit a rape; it does not, however, show a substantial step
toward the commission of that crime. Therefore, conduct which
falls short of physical contact does not constitute attempted rape.
In the case before us, the proof is sufficient to
establish the offense of solicitation of a minor.4 But I would
hold that the proof fails miserably to support Fowler’s conviction
of attempted statutory rape as defined in Tenn. Code Ann. §
39-12-101(a)(3).
Accordingly, for the reasons outlined above, I
respectfully dissent from the result reached here by the majority
of my colleagues.
______________________________
ADOLPHO A. BIRCH, JR., Justice
4
Tenn. Code Ann. § 39-13-528 (Supp. 1998)(effective July 1,
1998).
5