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State v. Turner10/11/1999
6, 1996). Accordingly, the amended presentment neither charged a different offense nor prejudiced substantial rights of the appellant. This issue is without merit.
C. Motion for Judgment of Acquittal
The appellant additionally contends that, with respect to his conviction of assault of RK, the trial court erroneously denied his motion for a judgment of acquittal at the Conclusion of the State's case. A trial court must grant a motion for a judgment of acquittal if the evidence is insufficient to sustain a conviction of the charged offense. Tenn. R. Crim. P. 29. In making this determination, the trial court may not address the weight of the evidence, but must afford the State the strongest legitimate view of the evidence, including all reasonable inferences which may be drawn from the evidence. State v. Blanton, 926 S.W.2d 953, 957-958 (Tenn. Crim. App. 1996). An appellate court applies the same standard as the trial court when resolving issues predicated upon the grant or denial of a motion for judgment of acquittal. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995).
As previously noted, the trial court did grant the appellant's motion for a judgment of acquittal as to the offense of aggravated sexual battery, charged in Count III of the presentment. However, the court concluded that the evidence was sufficient to support a charge of the lesser included offense of assault. State v. Trusty, 919 S.W.2d 305, 310-311 (Tenn. 1996)(a constitutionally adequate indictment for one offense will additionally provide notice of all lesser grade and lesser included offenses). Accordingly, the trial court charged the jury pursuant to Tenn. Code. Ann. § 39-13-101(a)(3) (1997), which provides:
A person commits assault who: . . . Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.
At trial, the State's proof established that the appellant had been watching pornographic movies and experiencing deviant sexual impulses prior to the offenses. On the morning of the offenses, RK was sleeping in a bed with her mother and the appellant. When she awakened, she discovered that she had been moved from her mother's side of the bed to the appellant's, her underwear had been pulled down to her knees, and the appellant was touching her stomach. Soon thereafter, the appellant went into the living room and raped RK's sister. We agree with the trial court that the evidence was sufficient to sustain a finding by the jury that the appellant assaulted RK within the meaning of Tenn. Code. Ann. § 39-13-101(a)(3).
D. Jury Instruction on the Appellant's Flight
In his next issue, the appellant asserts that the trial court erred when it instructed the jury on flight. The trial court provided the following instruction to the jury in accordance with Tennessee Pattern Instruction Crim. No. 42.18:
The flight of a person accused of a crime is a circumstance which, when considered with all the facts of the case, may justify an inference of guilt. Flight is the voluntary withdrawal of oneself for the purpose of evading arrest or prosecution for the crime charged. Whether the evidence presented proves beyond a reasonable doubt that the defendant fled is a question for your determination.
The law makes no precise distinction as to the manner or the method of flight; it may be open, or it may be a hurried or concealed departure, or it may be a concealment within the jurisdiction. However, it takes both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the community, or a leaving of the community for
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