State v. Charles Fowler ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1997 SESSION
December 17, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9608-CC-00363
Appellee, )
) COFFEE COUNTY
VS. )
) HON. JOHN W. ROLLINS,
CHARLES D. FOWLER, ) JUDGE
)
Appellant. ) (Attempted Statutory Rape)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT S. PETERS JOHN KNOX WALKUP
100 First Ave., S.W. Attorney General & Reporter
Winchester, TN 37398
KAREN M. YACUZZ0
Assistant Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
C. MICHAEL LAYNE
District Attorney General
KENNETH J. SHELTON, JR.
Asst. District Attorney General
P.O. Box 147
Manchester, TN 37355
OPINION FILED:____________________
REVERSED AND DISMISSED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on October 12, 1994, on charges of attempt
to purchase a minor child, attempt to commit statutory rape, and patronizing prostitution.
The State later dismissed the charge of patronizing prostitution, and a jury found the
defendant guilty of the remaining two counts. The trial court, however, granted the
defendant’s motion for an acquittal as to attempt to purchase a minor child. Thus, in this
appeal of right, the defendant challenges his remaining conviction for attempted statutory
rape. The defendant contends that the evidence was insufficient to convict him of this
offense. He further challenges the appropriateness of his sentence. The trial court
sentenced him to serve nine months in the county jail and pay a two thousand five
hundred dollar ($2500) fine.
After a review of the record and applicable law, we find that the evidence
was insufficient to convict the defendant of attempted statutory rape. Therefore, we
reverse the judgment of the trial court and dismiss the charge against the defendant.
This case arose from an undercover investigation by the Coffee County
Sheriff’s Department. The department had received several complaints of homosexual
activity, prostitution, and drug use at the rest area along Interstate 24 East in Coffee
County. As a result, on July 6, 1994, Officer Doug Richardson went to the area to
investigate. At the defendant’s trial, Richardson testified that upon his arrival at the rest
area, he walked toward a wooded portion of the area where he encountered the
defendant. He testified that the defendant had approached him and began to talk to him
about underage children. Richardson was wearing a tape recorder and recorded the
entire conversation. The tape was played at trial for the jury.
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During the taped conversation, the defendant told Richardson that he had
been hoping to pick up some hitchhikers but that he had had no luck. He further told
Richardson that he had also been looking for someone young who was willing to run
away from home and go live with him in Florida. The defendant told Richardson, “I like
the young stuff. In fact, I like the underage stuff.” The defendant then went on to tell
Richardson about his career in the military and then bragged about his homosexual
escapades with minors while traveling in various countries.
When the defendant told Richardson he was looking for a young boy,
Richardson told him he might know of a few boys that would be willing to go with the
defendant. He told the defendant that the boys he had in mind were between the ages
of ten and fourteen. The defendant responded that those ages were acceptable so long
as the boys were old enough to ejaculate. Richardson then asked the defendant if he
were willing to pay a “finder’s fee” if Richardson were able to supply a suitable boy. The
defendant said that he would and Richardson told him he knew of a twelve-year-old boy
that wanted to run away from home. The defendant then agreed to meet Richardson and
the boy in forty-five minutes, at which time the defendant would pay Richardson two
hundred dollars ($200).
Richardson then contacted Keith Jared “K.J.” Brewer, a summer intern at
the district attorney’s office. K.J. was nineteen years old at the time, but Richardson
testified that K.J. had looked younger than nineteen. K.J. had dressed in cut-off shorts,
a white T-shirt, and a baseball cap in order to appear younger. He and Richardson then
left to meet the defendant.
When the pair arrived at the designated meeting place, the defendant was
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waiting for them. Richardson introduced the defendant to K.J. and told the defendant
that K.J. was fourteen years old and was willing to do anything that the defendant wanted
him to do. At that time, the defendant said that he only wanted “straight sex” and that he
would not harm the boy. The defendant and Richardson then discussed the boy’s birth
certificate and other information necessary for enrolling him in school or for finding
employment. Following this conversation, the defendant wrote Richardson a check for
two hundred dollars ($200) in exchange for the boy. Richardson immediately placed the
defendant under arrest.
The defendant contends that the evidence was insufficient to sustain his
conviction for attempted statutory rape. He argues that the State failed to present
evidence of an overt act sufficient to support a finding of his attempt to commit statutory
rape.
When an accused challenges the sufficiency of the convicting evidence, we
must review the evidence in the light most favorable to the prosecution in determining
whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to
afford the State the strongest legitimate view of the proof contained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved
by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict
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rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
A defendant challenging the sufficiency of the proof has the burden of
illustrating to this Court why the evidence is insufficient to support the verdict returned by
the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which
may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
In this case, the defendant was convicted of attempted statutory rape.
Statutory rape is defined by the statute as “sexual penetration of a victim by the
defendant or of the defendant by the victim when the victim is at least thirteen (13) but
less than eighteen (18) years of age and the defendant is at least four (4) years older
than the victim.” T.C.A. § 39-13-506(a). Tennessee Code Annotated § 39-12-101
provides that a person commits criminal attempt if he or she:
(1) Intentionally engages in action or causes a result that
would constitute an offense if the circumstances surrounding
the conduct were as the person believes them to be;
(2) Acts 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; or
(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.
The statute further provides that “[c]onduct does not constitute a substantial step under
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subdivision (a)(3) unless the person’s entire course of action is corroborative of the intent
to commit the offense.”
The defendant argues that, under this statute and the Tennessee Supreme
Court’s holding in Dupuy v. State, 325 S.W.2d 238 (Tenn. 1959), his actions were “mere
preparations” to commit statutory rape and therefore did not amount to a “substantial
step.” However, in State v. Reeves, 916 S.W.2d 909, 912-14 (Tenn. 1996), the Supreme
Court abandoned the “mere preparations” test from Dupuy and adopted a less rigid rule
for assessing criminal attempt. To determine whether a defendant’s actions constitute
an attempt, the trier of fact need not distinguish “mere preparation” from the “act itself.”
Instead, there need only be a finding that the defendant’s actions constituted a
“substantial step” toward committing the offense. If a defendant takes a substantial step
with the specific intent to commit the crime, then he or she is guilty of criminal attempt.
Thus, in this case, in order for the defendant to be convicted of attempted
statutory rape, his actions must have constituted a “substantial step” toward committing
this offense. In other words, the defendant must have taken a substantial step toward
“sexual penetration.” From the facts of this case, we simply cannot conclude that the
defendant’s actions sufficiently constituted a substantial step toward sexual penetration.
While the defendant did give Officer Richardson two hundred dollars ($200) in exchange
for K.J. and did express his desire to have “straight sex” with the young man, this
evidence does not amount to a substantial step toward sexual penetration. Tennessee
Code Annotated § 39-13-501 defines sexual penetration as “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 . . . .” We conclude that the defendant’s actions
do not amount to a substantial step toward any of the above definitions of sexual
penetration. Although the defendant’s comments throughout the night to Officer
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Richardson may have indicated a desire by the defendant to engage in a sexual
encounter with the young man, these words, coupled with his action of handing a check
to Richardson, are not enough to sustain a conviction for attempted statutory rape.
Therefore, we reverse and dismiss the defendant’s conviction for attempted statutory
rape.
In addition to the above issue, the defendant argues that he should have
been placed on probation rather than sentenced to incarceration in the local jail. The
defendant was convicted of a Class A misdemeanor, thus, the defendant could have
received a maximum sentence of eleven months, twenty-nine days. The defendant
received only a nine month sentence. In denying the defendant probation, the trial judge
cited the reprehensible conduct of the defendant in seeking out sexual encounters with
minors as well as the defendant’s conviction in Florida for exposure of a sexual organ and
disorderly conduct. The defendant was charged with the Florida offenses a short time
after his arrest on the charges in this case.
We find no abuse of discretion on behalf of the trial judge in sentencing this
defendant. Had the conviction been affirmed, the sentence would have been
appropriate.
For the foregoing reasons, we reverse and dismiss the defendant’s
conviction for attempted statutory rape.
JOHN H. PEAY, Judge
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CONCUR:
WILLIAM M. BARKER, Judge
JERRY L. SMITH, Judge
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