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State v. Cooke12/28/1999
lawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of four different circumstances, with the relevant circumstance here being the victim is less than thirteen years of age. Tenn. Code Ann. § 39-13-504. Sexual contact is defined as "the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification." Tenn. Code Ann. § 39-13-501(6). Based on the testimony of the victim, who was eleven years old at the time of the offense, a rational trier of fact could easily find the elements of aggravated sexual battery beyond a reasonable doubt.
In count two of the indictment, the Defendant was charged with assault, in that he unlawfully, intentionally, and knowingly caused physical contact with M.J. in an extremely offensive or provocative manner, in violation of Tenn. Code Ann. § 39-13-101. This incident was alleged to have occurred on February 22, 1995, which is the date the Defendant was removed from the federal courtroom with M.J. The only element of assault applicable to this case is the intentional or knowing physical contact with another which a reasonable person would regard as extremely offensive or provocative. Tenn. Code Ann. § 39-13-101. Here, four different witnesses testified about the Defendant's conduct with M.J. in the courtroom, describing it as "unnatural" and "inappropriate." They each testified that the Defendant was sitting close to M.J. with his arm around the child. One said that the Defendant was nuzzling M.J.'s neck and that it looked like he was kissing the child. Another testified that the Defendant and the child were playing with each other's hair. Obviously, physical contact took place in the courtroom, and a reasonable person could conclude that the contact was offensive or provocative; thus the evidence was sufficient to sustain the conviction for assault.
Count three of the indictment alleges that the Defendant "on or about February 22, 1995, in Madison County, Tennessee, and prior to the finding of this indictment, did unlawfully, willfully, intentionally, knowingly, and/or recklessly contribute to or encourage the delinquency or unruly behavior of a minor . . ., [M.J.], a child under eighteen (18) years of age, by engaging in sexual contact and/or penetration with the said [M.J.]." Tennessee Code Annotated § 37-1-156 makes it a crime for any adult to contribute to or encourage the delinquency or unruly behavior of a child, "whether by aiding or abetting or encouraging the child in the commission of an act of delinquency or unruly conduct or by participating as a principal with the child in an act of delinquency."
Since the statute is aimed at the behavior of the adult, the minor does not actually have to commit an act of delinquency for the adult to contribute to the minor's delinquency. See Lovvorn v. State, 389 S.W.2d 252, 253-56 (Tenn. 1965); Birdsell v. State, 330 S.W.2d 1, 4-6 (Tenn. 1959). Convictions for contributing to the delinquency of a minor involving much less sexual contact than is present here have been upheld as sufficient. See Birdsell, 330 S.W.2d at 4-5 (upholding conviction of contributing where Defendant took pictures of a nude minor); Lang v. State, 457 S.W.2d 882, 884 (Tenn. Crim. App. 1970) (upholding conviction of contributing where Defendant showed minor comic books depicting males and females engaged in various forms of intercourse and sexual activity). Similarly, a rational jury could conclude that this De
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