Opinion
No. 01C01-9710-CC-00442
January 19, 1999
Humphreys County, Honorable Leonard W. Martin, Judge, (Statutory rape).
AFFIRMED
For the Appellant:
Jim Sowell
For the Appellee:
John Knox Walkup, Attorney General of Tennessee, Timothy Behan Assistant Attorney General of Dan Mitchum Alsobrooks, District Attorney General, and George Sexton, Assistant District Attorney General.
OPINION
The defendant, Billy Joe Stokes, was convicted by a jury in the Humphreys County Circuit Court of two counts of statutory rape, a Class E felony. He was sentenced as a Range I, standard offender to two one-year sentences to be served concurrently in the custody of the Department of Correction. In this appeal as of right, the defendant contends that his convictions should be vacated because he was indicted for rape, not statutory rape. We affirm the judgments of conviction.
The defendant was indicted for two counts of rape. T.C.A. § 39-13-503. The testimony at trial revealed that the two victims, C.M. and P.R., were thirteen and fifteen years old, respectively, at the time of the offenses. At the close of trial, the following colloquy took place between the trial court and the attorneys:
It is the policy of this court to use the initials rather than the names of minor victims of sex crimes.
COURT: Gentlemen, at this time, the Court is presenting you with copies of the Court's proposed charge. . . It includes the principal offense of rape, the lesser included offense of statutory rape.
. . . .
I would ask you to review the charge, and in a moment, after you've had an opportunity to do that, I will ask you whether or not you approve the charge.
. . . .
All right, gentlemen. Mr. Sexton, have you had an opportunity to review the Court's charge?
GENERAL SEXTON: I have, Your Honor.
COURT: And is it satisfactory?
GENERAL SEXTON: Yes, sir.
COURT: Mr. Sowell, have you had an opportunity to review the charge?
MR. SOWELL: Your Honor, I have.
COURT: Is it satisfactory?
MR. SOWELL: It is satisfactory, as far as it goes. We have discussed, back in chambers — And I'm satisfied I know what you're going to say. I have suggested that you charge "attempt," and that is not included here. And, for the record, I would request that you —
COURT: All right. Let the record reflect that Mr. Sowell has approved the charge with the exception that he asked for a charge of attempt to commit rape to be included as a lesser included offense. It was and is the opinion of this Court that the evidence in the case does not warrant the giving of that particular charge.
. . . .
And let the record reflect that, with that exception, you do otherwise approve the charge.
MR. SOWELL: That is correct, Your Honor.
The defendant now contends that his convictions cannot stand because he was indicted for rape, not statutory rape. He argues that this court's decision in State v. Ealey, 959 S.W.2d 605, 610-11 (Tenn.Crim.App. 1997), holds that statutory rape is neither a lesser included offense of rape nor a lesser grade or class of rape. The state contends, also under Ealey, that the indictment was essentially amended to reflect statutory rape when the defendant consented to the trial court's charge on statutory rape. Id. at 612.
In Ealey, the defendant was indicted for two counts of rape of a child. At the close of trial, the defendant requested that the jury be instructed on statutory rape. The trial court agreed, and the jury convicted the defendant of two counts of statutory rape. Although the defendant did not raise the issue on appeal, this court considered the validity of the defendant's convictions in light of the fact that he was indicted for rape of a child, not statutory rape.
This court first concluded that, in accordance with our supreme court's decision in State v. Trusty, 889 S.W.2d 225 (Tenn. 1994), statutory rape is not a lesser grade or class or lesser included offense of rape of a child. Ealey, 959 S.W.2d at 610-11;see also, State v. Woodcock, 922 S.W.2d 904, 913 (Tenn. Crim. App. 1995) (holding that statutory rape is not a lesser included offense of rape). However, this court in Ealey concluded that the convictions were valid because by requesting a charge on statutory rape, the defendant consented to an amendment of the indictment to reflect statutory rape. 959 S.W.2d at 612. See Tenn.R.Crim.P. 7(b) ("[a]n indictment, presentment or information may be amended in all cases with the consent of the defendant.").
We recognize that the facts of the present case are somewhat different from Ealey in that there is no evidence in the record that the defendant in the present case requested a charge to the jury on statutory rape. Nevertheless, we believe thatEaley remains controlling. The defendant expressed approval of the offenses to be charged to the jury, including the offense of statutory rape. In this fashion, he effectively consented to an amendment of the indictment to reflect statutory rape, as was the case in Ealey. Cf. State v. Michael Davenport, No. 03C01-9704-CR-00159, Cumberland County (Tenn.Crim.App. Apr. 2, 1998) (concluding that mere failure to object to an erroneous lesser included offense instruction does not result in an amended indictment).
In consideration of the foregoing and the record as a whole, the judgments of conviction are affirmed. _______________________________ Joseph M. Tipton, Judge
CONCUR: _________________________ Paul G. Summers, Judge _________________________ Joe G. Riley, Judge