State of Tennessee v. Antonio Durham
W2016-02194-CCA-R3-CD
| Tenn. Crim. App. | Dec 14, 2017Background
- Victim (15 at the time) attended a large family party where defendant Antonio Durham (not related) approached her in a bedroom at night.
- Durham allegedly exposed an erect penis (through underwear), left, then returned, pushed the victim onto the bed, kissed her neck, pulled her tights/underwear down to her ankles, and touched her breasts over clothing while she struggled.
- Victim reported the incident immediately; identified Durham in a photo array two days later and testified she was “100 percent sure.”
- Jury convicted Durham of attempted rape (Class C felony) and sexual battery (Class E felony).
- At sentencing the trial court sua sponte merged sexual battery into attempted rape and imposed a 10-year sentence; State appealed the merger, defendant challenged sufficiency of evidence and requested misdemeanor assault as a lesser-included instruction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Durham) | Held |
|---|---|---|---|
| Sufficiency of the evidence to support attempted rape and sexual battery | Victim’s testimony and surrounding facts sufficed for a rational jury to find intent and substantial step toward penetration and unlawful sexual contact | Evidence was insufficient because victim was sole witness, no medical evidence, and she testified defendant did not attempt penetration | Held: Evidence sufficient for both convictions when viewed in the light most favorable to the State |
| Trial court’s failure to instruct jury on Class B misdemeanor assault as lesser-included of attempted rape | Instruction not required; issue waived because defendant failed to make written request; plain error not warranted because assault is not a lesser-included offense of attempted rape | Requested oral instruction; argued assault is a lesser-included offense under Burns part (b) | Held: Waiver applies; on plain-error review, assault is not a lesser-included offense of attempted rape (following Bowles reasoning), so no relief |
| Merger of sexual battery into attempted rape at sentencing | Merger erroneous; two separate statutory offenses with distinct elements; double jeopardy/due process does not bar separate convictions | Trial court properly merged under Barney (single continuous sexual episode) | Held: Trial court committed plain error by merging — dual convictions do not violate double jeopardy because offenses have different elements; case remanded for resentencing |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Burns v. State, 6 S.W.3d 453 (Tenn. 1999) (framework for lesser-included offenses)
- Bowles v. State, 52 S.W.3d 69 (Tenn. 2001) (sexual battery not a lesser-included of attempted rape)
- White v. State, 362 S.W.3d 559 (Tenn. 2012) (overruled Anthony; sufficiency review protects against improper kidnapping convictions)
- Watkins v. State, 362 S.W.3d 530 (Tenn. 2012) (double jeopardy analysis for multiple convictions)
- Anthony v. State, 817 S.W.2d 299 (Tenn. 1991) (original due-process "essentially incidental" kidnapping test)
- Barney v. State, 986 S.W.2d 545 (Tenn. 1999) (previous multi-act sexual-offense due-process test; later abrogated for double jeopardy analysis)