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State v. Burns11/8/1999
le is where the State has charged rape and proves sexual battery, but the evidence does not support a finding of penetration, a necessary element of rape. Under Howard, technically a defendant could not get an instruction on sexual battery, because that offense requires the additional element that the touching be for the purpose of sexual arousal or gratification. Such a scenario forces a jury into an "all or nothing" decision that, unfortunately, is likely to be resolved against the defendant, who is clearly guilty of "something."
A number of jurisdictions have resolved this dilemma by adopting either verbatim or modified versions of the American Law Institute's Model Penal Code definition of "lesser-included" offenses. See Model Penal Code § 1.07(4) (1980). Under the Model Penal Code definition, an offense is "included" when
(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
We interpret the first part of the definition to be consistent with Howard's statutory elements test. The second part of the definition, attempt or solicitation, applies to situations in which the defendant attempted to commit or solicited another to commit the crime charged or a lesser-included offense, but the proof fails to show that the crime was completed. We interpret the third part of the definition, lesser injury or risk of injury or lesser culpability, to include offenses that are still logically related to the charged offense in terms of the character and nature of the offense but in which the injury or risk of injury, damage, or culpability is of a lesser degree than that required for the greater offense.
Based on our interpretation of its terms, we find that the Model Penal Code approach, as hereinafter modified, is logical and consistent with the structure of our own criminal code. The Tennessee criminal code is structured to define offenses and assign degrees of punishment by determining the completion of the crime, the culpability of the individual criminal actor, and the degree of perceived harm to the victim or society as a whole. The crime carried to completion, the more responsible party, and the more serious offenses merit harsher penalties. In a general sense, the various criminal offenses can be visualized as "layers," with the most serious, culpable versions of each type of crime at the top, meriting the most severe punishment. Correspondingly, underneath are the less serious versions in decreasing order of seriousness and culpability and with consequently less serious punishment. We find that the following definition of "lesser-included" offenses adapts well to the structure of our Code, and we therefore adopt it for use in our trial courts:
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitati
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