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Aggravated Sexual Battery No Longer a Lesser Included of Rape of a Child

The crime of 'sexual battery' in Tennessee differs from the crime of 'rape' in that sexual battery only requires 'sexual contact' and rape requires 'sexual penetration.' These terms are defined by statute. 'Sexual contact' requires that the contact be for the purpose of 'sexual gratification.' 'Sexual penetration' does not require such a purpose. Even though sexual battery requires proof of a fact (a purpose of sexual gratification) that rape does not, it was for a number of years considered a lesser included offense of rape, under case law developed to define lesser included offenses. However, in 2009, the state legislature enacted a statute defining lesser included offenses. The Court of Criminal Appeals has interpreted this statute as departing significantly from prior law. In the recent case of State v Ortega, M2014-01042-CCA-R3-CD (Tenn.Crim.App. 4-23-2015), the Court of Criminal Appeals reversed and dismissed a conviction of aggravated sexual battery (as a lesser included offense), concluding it has not been a lesser included offense of rape of a child since July 2009.

Election of Offenses Properly Made

In a criminal trial, where evidence is presented of multiple separate acts, any of which could satisfy the elements of a particular charge, the State is required to clarify for the jury which particular acts the State is relying upon to prove the necessary elements of a charge. This is called election of offenses. Its purpose is to help ensure a unanimous verdict on specific criminal conduct. Otherwise, there is potential for jurors to agree on guilt without agreeing on what facts establish the guilt. The election of offenses can be made simply within the prosecutor's closing argument, explaining which facts the State is relying upon for a particular charge. In the recent case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals determined from the appellate record that an election had properly been made.

Election of Offenses Properly Made

In a criminal trial, where evidence is presented of multiple separate acts, any of which could satisfy the elements of a particular charge, the State is required to clarify for the jury which particular acts the State is relying upon to prove the necessary elements of a charge. This is called election of offenses. Its purpose is to help ensure a unanimous verdict on specific criminal conduct. Otherwise, there is potential for jurors to agree on guilt without agreeing on what facts establish the guilt. The election of offenses can be made simply within the prosecutor's closing argument, explaining which facts the State is relying upon for a particular charge. In the recent case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals determined from the appellate record that an election had properly been made.

Evidence Sufficient to Support Sexual Battery Conviction

Sufficiency of the evidence of a criminal conviction can be and often is reviewed on direct appeal of that conviction. However, the appellate court does not reevaluate what facts should have been believed or rejected by a jury. It is the function of the jury to make factual determinations from the evidence presented. An appellate court will consider the facts in a light most favorable to the jury verdict, and only review whether there were facts presented upon which the verdict could be based. In the recent Tennessee case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals reviewed the facts presented at trial to determine whether the evidence was sufficient for the Defendant's conviction of sexual battery by an authority figure. The Court ultimately concluded that it was.

Evidence Sufficient to Support Sexual Battery Conviction

Sufficiency of the evidence of a criminal conviction can be and often is reviewed on direct appeal of that conviction. However, the appellate court does not reevaluate what facts should have been believed or rejected by a jury. It is the function of the jury to make factual determinations from the evidence presented. An appellate court will consider the facts in a light most favorable to the jury verdict, and only review whether there were facts presented upon which the verdict could be based. In the recent Tennessee case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals reviewed the facts presented at trial to determine whether the evidence was sufficient for the Defendant's conviction of sexual battery by an authority figure. The Court ultimately concluded that it was.

Evidence Sufficient to Convict of Sexual Battery by an Authority Figure

The Tennessee crime of sexual battery by an authority figure involves unlawful sexual contact with a person age thirteen through seventeen, accomplished by using legal, professional, or occupational status placing the offender in a position of trust, supervisory, or legal authority over the victim. Tennessee Code Annotated, Section 39-13-527. On appeal of the Defendant's conviction for this crime in the recent case of State v. Beu, E2012-00176-CCA-R3-CD (Tenn.Crim.App. 12-20-2012), the Defendant argued that a Defendant should not be convicted of sexual battery without some physical evidence corroborating the testimonial evidence. The Court of Criminal Appeals rejected that argument.

Evidence Sufficient to Convict of Sexual Battery by an Authority Figure

The Tennessee crime of sexual battery by an authority figure involves unlawful sexual contact with a person age thirteen through seventeen, accomplished by using legal, professional, or occupational status placing the offender in a position of trust, supervisory, or legal authority over the victim. Tennessee Code Annotated, Section 39-13-527. On appeal of the Defendant's conviction for this crime in the recent case of State v. Beu, E2012-00176-CCA-R3-CD (Tenn.Crim.App. 12-20-2012), the Defendant argued that a Defendant should not be convicted of sexual battery without some physical evidence corroborating the testimonial evidence. The Court of Criminal Appeals rejected that argument.

Post-Trial Request for DNA Testing Must Meet Statutory Criteria

DNA evidence can be critical evidence in a criminal case. In recent decades, advances in biomedical technology has led to the capability to ascertain information from biological evidence which could not be ascertained before. So, when collected and preserved, Tennessee law allows for post-trial testing of available DNA evidence if the results could have been helpful to the accused at the trial stage, but was not tested or could not be tested then. Of course, DNA testing is not cheap or easy. So certain statutory criteria must be met to qualify for post-trial testing. As the Tennessee Court of Criminal Appeals noted in the recent case of Tolley v. State, W2011-01816-CCA-MR3-PC (Tenn.Crim.App. 10-25-2012), the request must specify what evidence exists which could be further tested and lead to exculpatory results.

Post-Trial Request for DNA Testing Must Meet Statutory Criteria

DNA evidence can be critical evidence in a criminal case. In recent decades, advances in biomedical technology has led to the capability to ascertain information from biological evidence which could not be ascertained before. So, when collected and preserved, Tennessee law allows for post-trial testing of available DNA evidence if the results could have been helpful to the accused at the trial stage, but was not tested or could not be tested then. Of course, DNA testing is not cheap or easy. So certain statutory criteria must be met to qualify for post-trial testing. As the Tennessee Court of Criminal Appeals noted in the recent case of Tolley v. State, W2011-01816-CCA-MR3-PC (Tenn.Crim.App. 10-25-2012), the request must specify what evidence exists which could be further tested and lead to exculpatory results.

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