IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FILED STATE OF TENNESSEE, ) FOR PUBLICATION ) October 25, 1999 Appellant, ) FILED: __________, 1999 ) Cecil Crowson, Jr. v. ) COFFEE COUNTY Appellate Court Clerk ) CHARLES D. FOWLER, ) HON. JOHN W. ROLLINS, JUDGE ) Appellee. ) NO. 01-S-01-9810-CC-00185

DISSENTING OPINION

The criminal attempt statute in issue provides:

(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:

. . . .

(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.

(b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s entire course of action is corroborative of the intent to commit the offense.

Tenn. Code Ann. § 39-12-101 (1997)(emphasis added).

In determining whether certain conduct constitutes, as a

matter of law, “a substantial step toward the commission of the

offense . . . corroborative of the intent to commit the offense,” my esteemed colleagues have embraced a construction of the statute

which, in my opinion, is far too expansive. Because I remain

firmly convinced that the statute should be narrowly construed, I

respectfully dissent.

Our criminal attempt statute was discussed recently by

this Court in State v. Reeves, 916 S.W.2d 909 (Tenn. 1996). In

Reeves, a twelve-year-old defendant told a friend that she intended

to poison her teacher's coffee. The following day, one of the

defendant’s friends brought rat poison to school, and the defendant

was observed “leaning over” the teacher's desk. When the teacher

entered the classroom, she found a purse containing rat poison next

to her coffee cup.

The Court, tailoring the opinion to the facts of the

case, stated:

when an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly corroborative of the actor’s overall criminal purpose.

Id. at 914 (emphases added). Thus, it appears that the Court has

eschewed the opportunity to interpret the statutory language of

Tenn. Code Ann. § 39-12-101(a)(3) narrowly, deciding instead to

apply a fairly broad interpretation to the term “substantial step.”

2 Notwithstanding this expansive interpretation, by

statute, the State is still required to prove “substantial step”

conduct. Indeed, my dissent in Reeves was based on my view that

the evidence was insufficient to support a finding of “substantial

step” conduct. In my opinion, the record did not demonstrate that

the twelve-year-old defendant’s possession of poison at school was

“strongly corroborative” of an intent to commit second-degree

murder; nor did her conduct constitute a substantial step toward

the commission of the underlying offense.

This case provides yet another opportunity to demonstrate

the danger inherent in an expansive construction of Tenn. Code Ann.

§ 39-12-101(a)(3). Here, Fowler expressed a willingness to become

sexually involved with a young boy. Aside from this expression,

the only other action the defendant took was to give the undercover

agent a check for $200. Fowler’s conduct may constitute the

indirect solicitation of a crime, but it does not constitute

criminal attempt.

The authorities conclude generally that “as a general

proposition . . . mere criminal solicitation of another to commit

a crime does not constitute an attempt.” Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449, 450 (1963).1 Before a defendant will be

deemed guilty of an attempt to commit the crime solicited, he or

she must both solicit another to commit a crime and perform “some

1 Though the criminal attempt analysis in Gervin has been superseded by statute, the court’s discussion of the analytical distinction between solicitation and criminal attempt remains legally valid.

3 other act toward its perpetration.”2 4 Charles E. Torcia,

Wharton’s Criminal Law § 672 (15th ed. 1996). More specifically,

in State v. Baxley, 633 So.2d 142, 145 (La. 1994), the Louisiana

Supreme Court reviewed cases from various jurisdictions considering

whether solicitating another to commit a sexual offense supports a

conviction for attempt. The Court found that the view held by the

majority of jurisdictions is that solicitation may not be equated

with an attempt to commit a sexual offense. Id. at 46.

Additionally, the Court found that the majority view “is persuasive

and should be followed.” Id. Likewise, in a case involving

attempted statutory rape, this Court has noted that “[t]he weight

of authority . . . is that mere solicitation is not sufficient [to

constitute criminal attempt].”3 McEwing v. State, 134 Tenn. 649,

185 S.W. 688, 689 (1916).

It is difficult to conceive of an attempted rape which

does not include at least limited physical contact. Conduct short

of physical contact may suggest the actor’s intent and preparation

2 Granted, Fowler was not directly soliciting another to commit the crime of statutory rape; he was soliciting an officer to procure a minor to engage in illegal sexual activities which would constitute statutory rape. However, the principle still applies; in addition to indirectly soliciting the crime through the officer, there must be “some other act toward its perpetration,” to constitute attempt. 4 Charles E. Torcia, Wharton’s Criminal Law § 672 (15th ed. 1996).

3 In McEwing, the Court affirmed the defendant’s conviction for attempted statutory rape based in part on the physical contact between the defendant and the victim. Though the “overt act” analysis applied by the McEwing court has been superseded by statute, the historical distinction between solicitation and attempted sexual offenses is a principle that transcends the varying statutory definitions of the type of conduct that rises to the level of criminal attempt. See Tenn. Code Ann. § 39-12-101 (1997).

4 to commit a rape; it does not, however, show a substantial step

toward the commission of that crime. Therefore, conduct which

falls short of physical contact does not constitute attempted rape.

In the case before us, the proof is sufficient to

establish the offense of solicitation of a minor.4 But I would

hold that the proof fails miserably to support Fowler’s conviction

of attempted statutory rape as defined in Tenn. Code Ann. §

39-12-101(a)(3).

Accordingly, for the reasons outlined above, I

respectfully dissent from the result reached here by the majority

of my colleagues.

______________________________ ADOLPHO A. BIRCH, JR., Justice

4 Tenn. Code Ann. § 39-13-528 (Supp. 1998)(effective July 1, 1998).

5