*1 Tennessee, Appellant, STATE of FOWLER, Appellee. D.
Charles Summers, Paul Attorney G. and General Moore, Reporter, Michael E. Solicitor Gen- Tennessee, Supreme eral, Brand, Daryl J. Associate Solicitor at Nashville. General, Nashville, Appellant. Oct. Peters, Winchester, Robert Appel- S.
lee.
OPINION HOLDER, Justice. granted appeal
We to determine payment whether fifty-three-year-old male for “straight per- sex” with what he fifteen-year-old ceived to be a boy could a substantial toward the statutory rape. Upon commission of view, we hold that the evidence this case supported jury’s finding that the de- fendant’s conduct constituted a substantial step toward the commission of statutory rape. The decision of the Court of Crimi- reversed, Appeals nal and the defen- dant’s attempted statutory conviction for rape is reinstated.
FACTS defendant, Fowler, Charles D. fifty-three-year-old truck driver who had stopped in along a rest area a Tennessee highway. approached interstate He an un- police portion dercover officer a wooded area, they began of the rest talking underage about children. The undercover police officer was “wired” and recorded the ensuing conversation.
The defendant told the officer that the
hoped
pick up
defendant had
a hitchhik-
picked up
er but that other motorists had
only
two he had seen. The defendant
conveyed to the officer that the defendant
preference
boys.
had a
for young
stated,
“I like the
stuff.
fact,
underage
like the
stuff.” He
escapades
boasted about various sexual
he
experienced
had
with minors.
*2
9H
jury’s
the
conviction
the
the
to
The
told
officer that
sufficient
defendant
boy
looking
young
defendant was
attempted statutory rape. The State
of
home
willing
away
who was
to run
from
not re-
argues that
officers were
“[t]he
in
swamp
in house
and live with him a
on a
to
permit
drive off
the defendant
quired
he
The officer
that
Florida.
indicated
penetration.”
or initiate actual
boy
with the
boys
who
might
young
know of
few
v.
that under State
The State contends
with
defendant.
willing
go
would be
the
(Tenn.1996),
Reeves,
the
juryA at- at 910. convicted the defendant tempting purchase and of at- minor prior that recognized This Court tempted statutory rape. He received sen- criminal reform act passage years tences of three for the attempt required finding of criminal evi purchase of a minor and nine conviction “(1) specif of: an intent to commit a dence rape attempted statutory months (2) crime; an act toward com ic overt however, court, conviction. The trial set crime; of that and failure to mission judgment aside verdict entered at The the crime.” Id. consummate acquittal charge required a distinction overt act element The purchase of a minor. Court of Crimi- decision, merely Appeals, split nal in a reversed that was prepara between attempted statutory conviction rape and conduct that constituted a “direct tory holding not that the defendant’s acts did the commission after movement toward toward the a substantial been Id. preparations had made.” granted commission of the crime. We State, 624, Dupuy v. 204 Tenn. (quoting on limited issue. view this (1959)).
ANALYSIS Following legislation the criminal reform was of criminal law before us whether the issue now at 39-12-101. evidence of the defendant’s conduct codified TenmCode provides pertinent The statute part night stopped of his He arrest. at a rest that: reputation area that had a for homosexual
(a)
activity.
A
person
approached
commits
who, acting with the
undercover officer and
culpability
kind
indicated
*3
required
preference
otherwise
for the
...
defendant had a
young
offense:
(3)
complete
Acts with
agreed
pay
intent
a course males. The defendant
of action or cause a result
delivery
that would officer for
of young
male. The
offense,
constitute the
under the circum- defendant
not purchasing
young
was
surrounding
stances
the conduct as the male out
aof
benevolent motivation to
be,
person believes them to
provide
unhappy runaway
an
with food
conduct
step
constitutes
substantial
and shelter. The
defendant’s
toward the commission of the offense. procuring a young male was sex. The
fifty-three-year-old defendant believed the
39-12-101(a)(3) (1997).
§
question
in
years
male
to be fifteen
Reeves,
In
rejected
argu-
this Court
old. One of the defendant’s stated inten-
legislature
ment
“intended to re-
in purchasing
boy
tions
was to have
sharp
tain the
distinction between ‘mere
”
“straight sex” with him. The defendant
preparation’ and
‘act
following
itself
wrote the officer a check for
Reeves,
§
$200
the codification of
39-12-101.
expectation
boy
that the
would be turned
BIRCH, J., dissents. crime, a at used the commission of or BARKER, J., Not Participating. crime, of near the scene the where possession of those can the materials BIRCH, Justice, dissenting. lawful of the actor serve no attempt The criminal statute in issue circumstances, jury is en- under the the provides: titled, required, but not to find the (a) A person commits criminal step” a actor has taken “substantial to- who, the acting culpability kind of the crime ward commission of if required otherwise for the offense: action is corroborative strongly such of purpose.
the actor’s overall criminal added). Thus, Acts with intent a course complete (emphases at it Id. cause a of action or result that would that the eschewed the appears Court has offense, circum- opportunity interpret statutory constitute under the lan- surrounding as the stances the conduct 39-12- guage Tenn.Code be, 101(a)(3) person believes them and the narrowly, deciding ap- instead to step conduct constitutes a substantial ply fairly interpretation broad step.” toward commission term “substantial offense. (b) does Conduct not constitute sub- inter- Notwithstanding expansive this (a)(3) step under un- stantial subdivision statute, still pretation, by is State person’s
less the entire course of action prove step” conduct. quired “substantial corroborative of to commit the intent Indeed, on my dissent in Reeves was based offense. that the was insufficient my view evidence step” finding of “substantial (1997)(em- 39-12-101 my In the record did opinion, conduct. added). phasis twelve-year-old not demonstrate that the determining conduct whether certain possession poison at school defendant’s constitutes, law, a matter “a as substan- of an intent “strongly corroborative” step tial toward commission of murder; nor did second-degree to commit ... intent to offense corroborative of the step her conduct constitute substantial offense,” commit col- my esteemed underlying toward commission of have embraced leagues a construction offense. which, my is far too opinion, the statute opportu- I expansive. firmly provides yet Because con- This case remain narrowly danger the statute inherent in nity vinced that should be to demonstrate the construed, respectfully expansive dissent. construction of Tenn.Code 39-12-101(a)(3). Here,
§Ann. statutory rape, Fowler ex- this noted that Court has pressed willingness sexually- to become weight authority ... “[t]he is that mere young boy. involved with a Aside from solicitation is not sufficient [to expression, only other State, action the attempt].”3 McEwing defendant took was to give (1916). undercover 649, 688, 134 Tenn. 185 S.W. agent a check for Fowler’s $200. It is difficult to conceive of an may constitute the indirect solicitation of a rape which does not include at least limit- crime, but it does not constitute criminal physical ed contact. short of Conduct attempt. physical may suggest contact the actor’s generally authorities conclude that “as preparation rape; intent and to commit a general proposition ... mere criminal not, however, it does show substantial solicitation of another to commit a crime toward commission of that crime. attempt.” does not constitute an Gervin v. Therefore, conduct which falls short of State, 212 Tenn. 450 physical contact does not constitute at- (1963).1 Before defendant will be tempted rape. deemed guilty of an to commit the us, proof In the case before is suffi- solicited, crime he or she must both solicit cient to establish the offense of solicitation *5 perform to commit a crime and of a minor.4 But I would hold that the perpetration.”2 “some other act toward its proof miserably fails Fowler’s Torcia, 4 Charles E. Wharton’s Criminal conviction statutory rape as (15th ed.1996). § specifi Law 672 More § defined 39-12- 142, 145 cally, Baxley, in State v. 633 So.2d 101(a)(3). (La.1994), Supreme the Louisiana Court jurisdictions reviewed cases from various Accordingly, for the outlined reasons considering soliciting whether another to above, respectfully re- dissent from the commit a supports sexual offense a convic by sult majority my reached here attempt. tion for found that colleagues. majority jurisdic view held may tions is that solicitation not equat an attempt
ed with to commit a sexual Additionally,
offense. Id. at 146. that majority
Court found view “is
persuasive and should be followed.” Id.
Likewise, in involving attempted a case Though analysis McEwing,
1. the criminal 3. the Court affirmed the defen- statute, superseded by Gervin has been attempted statutory rape dant's conviction for analytical court’s discussion distinction part physical based in contact between between solicitation criminal Though the defendant and the victim. legally mains valid. analysis applied by McEwing "overt act” statute, superseded by court has been Granted, directly soliciting Fowler was not historical distinction between solicitation and statutoiy another to commit the crime of principle sexual offenses is a rape; soliciting procure he was an officer varying statutory transcends the definitions of engage illegal minor to sexual activities type of conduct that rises to the level of statutory rape. which would constitute How- attempt. See Tenn.Code Aim. 39- ever, principle applies; in still addition to (1997). 12-101 indirectly soliciting through the crime the of- ficer, there must be "some other act toward perpetration,” attempt. its to constitute 4. Tenn.Code 39-13-528 Torcía, 1, 1998). E. Criminal Law Charles Wharton’s (Supp.l998)(effective July (15th ed.1996). § 672