State v. Howard

• Decision Date: 12 October 2016
• Docket Number: No. E2014-01510-SC-R11-CD,E2014-01510-SC-R11-CD
• Parties: STATE of Tennessee v. Glen HOWARD
• Court: Tennessee Supreme Court

504 S.W.3d 260

STATE of Tennessee

v.Glen HOWARD

No. E2014-01510-SC-R11-CD

Supreme Court of Tennessee, AT KNOXVILLE.

April 22, 2016 Session, Heard at Nashville

Filed October 12, 2016

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.

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.

OPINION

ROGER A. PAGE, J.

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.

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 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 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...