State of Tennessee v. Jeremy Wendell Thorpe, 463 S.W.3d 851

Defendant Jeremy Thorpe lived with the victim (girlfriend’s daughter) and had disciplinary authority while the mother worked; victim was 13 at time of incident relevant to conviction.
Victim reported repeated inappropriate contact: buttocks smacks, foot rubbing, kisses escalating to the Defendant putting his tongue in her mouth and kissing her inner thighs up to her bikini line after ordering her to change into shorts.
Text messages from the Defendant urged the victim to wear shorts and said things like “I wanna kiss on them thighs when I get back” and “Easier to get to them that way.”
A school counselor and MNPD detectives were notified; text records corroborated messages; Defendant denied wrongdoing in recorded interview and did not testify at trial.
Indicted for two counts of aggravated sexual battery and one count of sexual battery by an authority figure; jury convicted on the lesser-included offense of criminal attempt to commit sexual battery by an authority figure; sentenced to 3.5 years.
Tennessee Supreme Court granted permission to appeal to decide (1) whether attempt can be a lesser-included offense of sexual battery by an authority figure and (2) whether the evidence supported the attempt conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether criminal attempt may be instructed as a lesser-included offense of sexual battery by an authority figure	State: Attempt is expressly a lesser-included offense under Tenn. Code Ann. § 40-18-110(f)(3); jury may convict of attempt even if evidence also supports the completed offense	Thorpe: Trial court erred by including attempt because the evidence either showed completion of the offense or no offense at all; attempt instruction is improper when proof supports the completed crime	Held: Instruction proper. Criminal attempt is available as a lesser-included offense where charged offense has intent element and the proof fairly raises the completed offense; overruled contrary appellate authority to the extent it conflicts (e.g., State v. Edwards).
Sufficiency of the evidence for conviction of criminal attempt to commit sexual battery by an authority figure	State: Texts, victim testimony, corroboration, and Defendant’s authority over victim show intent and substantial steps toward sexual battery	Thorpe: Evidence insufficient because either the offense was completed (so attempt improper) or there is no evidence of an unconsummated attempt or substantial step	Held: Evidence sufficient. Jury reasonably could find intent and substantial steps (text messages directing clothing change, explicit messages, physical kissing of inner thighs, and authority relationship).

State v. Burns, 6 S.W.3d 453 (Tenn. 1999) (framework for lesser-included offense analysis)
State v. Ely, 48 S.W.3d 710 (Tenn. 2001) (discussed attempt/solicitation as lesser-included offenses; dictum on completion not controlling)
State v. Marcum, 109 S.W.3d 300 (Tenn. 2003) (omission of attempt instruction not reversible error where only two interpretations existed)
Wyatt v. State, 24 S.W.3d 319 (Tenn. 2000) (elements of criminal attempt require culpability and acts in furtherance)
State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011) (defendant’s right to correct jury instructions; standard for reviewing evidence)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review)