The Tennessee Supreme Court has determined that the state legislature did not remove an existing practice in Tennessee courts established by prior Tennessee case law when it enacted a statute that outlines methods for determining various lesser-included offenses for which a defendant can be convicted.
The issue comes to the Supreme Court via a case in Hamilton County in which Glen Howard was convicted of four counts of rape of a child and two counts of aggravated sexual battery. One of the aggravated sexual battery convictions was as a lesser-included offense of rape of a child, meaning the jury determined that the facts did not support the more serious rape charge but did support a similar, but less serious, aggravated sexual battery charge.
On appeal, the Court of Criminal Appeals determined that aggravated sexual battery was not a lesser-included offense of rape of a child under Tennessee law because a statute passed by the legislature effectively eliminated one method courts had followed in determining appropriate lesser-included offenses in Tennessee. The intermediate court also determined that because aggravated sexual battery was not listed in the statute as a lesser-included offense of rape of a child, Mr. Howard’s conviction for the offense could not stand.
The Supreme Court granted the application for permission to appeal to determine whether the General Assembly intended to eliminate a practice in Tennessee that permitted courts to instruct juries that a defendant could be convicted of a lesser offense if that offense contained the same elements but required a lesser mental state or less risk of harm to others. This practice had come about through a series of court rulings, referred to as “common law,” that supported the practice.
After reviewing the history of the law in the Tennessee legislature, the Supreme Court determined that lawmakers did not intend to remove the common-law practice the courts used to determine lesser-included offenses. The court also noted that, in addition to using the test outlined in the common-law standard, the offenses could be lesser-included and presented to the jury or considered by the judge if they are specifically listed as lesser-included offenses in the statute.
In this case, the court determined that the common-law method the court used was proper and that it rightly concluded that aggravated sexual battery was a lesser-included offense of rape of a child. Therefore, Mr. Howard’s convictions stand.
Read the unanimous opinion in State of Tennessee v. Glen Howard, authored by Justice Roger A. Page.