State v. Wilkins
655 S.W.2d 914
Tenn.
1983
Check Treatment

*1 Tennessee, Appellant, STATE of Anthony WILKINS, Appellee. Tennessee,

Supreme Court

at Knoxville.

July 1983.

Opinion On Petition to Rehear *2 must be force or coercion and

complished by of will without the consent omission, de- Because of this the victim. that the statute fails to fendant insists prohibited of the conduct reasonable notice consensual proscribes and that thereby adults, or private by in activity undertaken one where relationship, marital within a Uhl, Gen., Atty. E. Asst. William Wayne We personal injury. partner suffers Leech, Jr., Atty. Reporter, M. Gen. and chal- the words of the held that recently Nashville, for to sufficiently precise “are lenged provision prohibited on notice put an individual Knoxville, Moncier, Martha Herbert S. Thomas, 635 activities.” State Black, Maryville, appellee. for S.L. reaffirm our 114, (Tenn.1982). We that, as in Thomas and conclude holding OPINION defendant, aggravated applied to rape statute is constitutional. challenges In this the state em requirement warning The fair prohibits trial court’s dismissal of the in the due clause bodied criminally an individual holding count of an indictment defend- states from a for conduct which judge responsible ant. The trial held that the defini- reasonably “could not intelligence tion of T.C.A. § enact by an proscribed” understand to be (now 39-2-603) vague is so it vio- Harris, 347 U.S. ment. United States lates the due clauses of our federal Const, 812, 808, 74 S.Ct. and state constitutions. amend. Const, McDonald, 534 a lso See State Y; 1, art. 8. The propriety 650, (Tenn.1976), cert. denied of this ruling is sole issue for 200, 1733, L.Ed.2d 425 U.S. review. reh. denied Aggravated rape was first made a dis- Fox, (1976); L.Ed.2d 826 Paine tinct offense in statutory Tennessee (1938); Maloney, State The of- chapter Public Act 1979. S.W. fense was codified as T.C.A. proc due requirements statute meets 1980 the with original replaced statute was prohib ess, however, if reasonable notice Act present version. Ch. Pub. statutory and the given ited conduct is 1980. Defendant under the was indicted judi for sufficiently distinct boundaries are portion of the statute which provides Hinsley, cial administration. “[ajggravated rape pene- is unlawful sexual due The one accompanied by any tration of another ess prohibition (2) the following circumstances: ... a statute which every invalidate does not to the vic- personal injury defendant causes have been could reviewing court believes 39-2-603(a)(2). Rape tim.” T.C.A. § Many greater precision. with drafted 39-2- separate made a offense vague- some inherent statutes will have inju- penetration personal Sexual English words most ness ‘[i]n ry are defined in T.C.A. 39-2-602. uncertainties.... there lurk phrases it neces- Defendant insists that find lawyers may Even trained dictionaries, treatis- unconstitutionally legal consult sary to may they before objection es, judicial opinions to the statute overbroad. may what statutes certainty say any on its failure to premised specify forbid. compel ac- must be necessary it is resort law. Therefore law for definition the common preci- Absolute acts.” Ste- description of the crime and a legislation drafting prohibitory sion added). (emphasis at 543 phens not since could then required prosecution evaded schemes and devices. easily was defined At common (Tenn. State v. *3 wom knowledge of a “the unlawful carnal 1972). and forcibly age years the of ten an over whether determining In a statute or, ex consent, otherwise her as without appropriate violates due force, against and forcibly, or pressed, by interpretation given the stat consider the a female will, knowledge of her or such highest wright the state court. Wain by ute either with age years, of ten child under the 190, 192, Stone, 75 v. 414 her consent.” or without the elements of 461. The three p. (1973). interpreta 38 L.Ed.2d 179 Judicial § force, and com knowledge, crime are carnal the court can by supreme tion state without the consent mission of the act pro of what sufficiently clear notice 8, p. of the victim. C.J.S. against § the will the due by satisfy scribed a statute to 471; Am.Jur.2d, Rape, pp. 65 Locke, ess notice requirement. statutory and case review of the Our 46 L.Ed.2d “ common law definition indicates that the (1975). ‘That is not uncertain in Tennessee. See adopted has been rape litigation can by orderly processes 39-2-604(a)(l); T.C.A. 39-3701 T.C.A. definite and certain sufficiently be rendered 1977); (repealed (repealed ” judicial decision.’ Dona purposes State, 1980); v. King 220, 213 County, than v. McMinn 187 Tenn. State, v. (1962); Bowmer S.W.2d “ Also, use of S.W.2d ‘[t]he (1928); Bloodworth glossary is neces experience common v. State, (1872); Wyatt v. 65 Tenn. 614 legis sary practical to meet the demands of State, Tenn. 394 ” lation.’ mind, con we foregoing With the challenged portion clude that it a upheld making We have a statute no adequate gives ‘unlawfully sexually criminal offense to The statute proscribed. tice of the conduct State, molest or fondle’ a child. Sissom is unlawful “[ajggravated states that In 210 Tenn. one of accompanied by penetration” sexual was we concluded that due Sissom circumstances. aggravating the enumerated in- satisfied where a normal would commonly the term We think conduct as recognize tend and defendant’s legisla adopted by was understood Similarly, a molesting fondling. sexual 39-2-604(a)(l) as defined in T.C.A. has proscription against of crimes nature employed in historically law and at common State, repeatedly upheld. Fisher been is, 39-2- by T.C.A. § our state. (1955) (fella- proscribed 604(a)(1) legislature statute); Stephens proscribed by tio force and accomplished State, (Tenn.Cr.App.1973) against the consent or without proscribed); Locke (sodomy 39-2-603(a)(2) pro victim. T.C.A. aff’d sub (Tenn.Cr.App.1973), thus necessari rape scribes nom. Rose rape, being the definition ly incorporates (1975) (cunnilingus pro- of of the same form but an observed scribed). Stephens In court fense. “is a against the term crime nature defendant con- The indictment euphemism particular for the acts that inter- “sexual accomplished that he charged sodomy stitute the offense at course” (penetration) with the victim ex- ceedings opinions consistent with the “force and “against coercion” and her will.” pressed herein. Costs are assessed The elements of the offense of were addition,

thus charged. defendant was alleged by the indictment to have caused FONES, C.J., and “personal injury” to the victim his acts. DROWOTA, JJ., concur. Therefore, the indictment clearly set out the elements of the offense TO REHEAR ON PETITION T.C.A. 39-2-603(a)(2). We cannot but conclude that the cognizant normal adult is the acts with which defendant petition asking has been filed charged rape. By constitutes reference to the court the issue of costs to reconsider crime is clearly ap and to assess the costs incident to the aggravated rape. Under the circumstances peal against appellee, *4 of this case defendant cannot be heard to Generally, appeal costs of an are Wilkins. complain of lack of reasonable notice that paid by losing party. See Tennes the acts of which he squarely is accused fell Procedure, Appellate see Rules Of Rule within the rape proscription. 40(a). That was our intention in this case. States, In Oliver v. (9th United 230 F. 971 Accordingly, judgment entered in this Cir.1916), cert. denied 241 case will be that costs modified show the defendant chal- adjudged against incident to the are lenged a federal statute proscribing assault the appellee, Wilkins. with intent to commit rape. Rape was made a crime punishable by death in anoth-

er code section but was not defined in the FONES, C.J., code. The court upheld the noting DROWOTA, JJ., concur. that “by giving a crime a name known .. .

to common law a crime is clearly not less

ascertained than it by using would be

definition as found in the treatises of the

common law.” Oliver at legisla- 973. The ‘may define, as well using term

of a known and meaning, determinate as by

an express enumeration of particulars

included in that term. is certain necessary reference, made cer- tain.’ Oliver at 973. See generally 1 p. 463. See also

Flaherty, 128 Me. 146 A. 7 LUSK, Plaintiff-Appellee, Grover Inasmuch as defendant forcible sexual intercourse against CONSOLIDATED ALUMINUM victim, of the we do not reach the over- CORPORATION, argument breadth that defendant advances Defendant-Appellant. but which is not by the facts of Young case. See Supreme Court of Tennessee. The sexual penetra- tion with which defendant is clearly accused

was not a consensual undertaking between

adults or within a marriage. judgment re- trial court

versed and the cause pro- remanded for