State of Tennessee v. Glen Howard

We granted this appeal to consider whether our decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), wherein we set forth the test for determining whether a criminal offense constitutes a lesser-included offense of a charged offense, remains viable following the 2009 amendments to Tennessee Code Annotated section 40-18-110, which codified Burns parts (a) and (c) but excluded part (b). Having determined that the statute did not abrogate part (b) of the Burns test, we reverse the Court of Criminal Appeals’ conclusion that aggravated sexual battery is not a lesser-included offense of rape of a child because the legislature did not include it in the 2009 amendments to the statute. Upon further consideration, we hold that aggravated sexual battery is, in fact, a lesser-included offense of rape of a child. Lesser-included offenses are to be determined by referring to the express provisions of the statute, and if not specifically mentioned therein, by further applying the guidance of Burns part (b). We also conclude, based on the proof in the record on appeal, that defendant’s conviction for aggravated sexual battery as a lesser-included offense of rape of a child was supported by the evidence and should be reinstated. Accordingly, the judgment of the Court of Criminal Appeals vacating this conviction is reversed and his conviction stands. The remaining issues decided by the Court of Criminal Appeals are affirmed.