## Facts

- Glen Howard was charged with child-sex offenses involving two minors, N.J. and M.J., for conduct alleged to have occurred between November 2008 and December 2009.
- Howard became acquainted with the children’s mother and later allowed her and the children to live with him.
- The alleged abuse occurred while the mother was away from home due to work, and the children later disclosed the conduct to her.
- Howard was indicted on five counts of rape of a child and one count of aggravated sexual battery.
- A jury convicted Howard of four counts of rape of a child and one count of aggravated sexual battery returned as a lesser-included offense of rape of a child.
- The Court of Criminal Appeals vacated the aggravated sexual battery conviction, concluding it was not a lesser-included offense of rape of a child after the 2009 amendments to Tenn. Code Ann. § 40-18-110.
- The Tennessee Supreme Court granted review to determine the effect of the 2009 amendments on the lesser-included-offense analysis and the continued validity of State v. Burns.

## Issues

1. Whether the 2009 amendments to Tenn. Code Ann. § 40-18-110 eliminated (by omission) Burns part (b) as a method for identifying lesser-included offenses.
2. Whether aggravated sexual battery qualifies as a lesser-included offense of rape of a child under Tennessee law after the 2009 amendments.
3. Whether the evidence supported reinstating the jury’s conviction for aggravated sexual battery returned as a lesser-included offense.

## Decision

- The Tennessee Supreme Court held that the 2009 amendments to Tenn. Code Ann. § 40-18-110 did not abrogate Burns part (b).
- The court held aggravated sexual battery is a lesser-included offense of rape of a child under Burns part (b).
- The court reinstated Howard’s aggravated sexual battery conviction, finding it supported by the proof in the record.
- The court reversed the Court of Criminal Appeals in part (as to vacating the aggravated sexual battery conviction) and affirmed the remainder of that court’s judgment.

## Legal Principles

- When a statute codifies portions of a judicial test but is silent on another portion, legislative silence does not, without clear intent, repeal the remaining judicial rule; implied repeal is disfavored.
- Under Tenn. Code Ann. § 40-18-110, courts determine lesser-included offenses by consulting the statute and, if the offense is not specifically addressed, applying Burns part (b) for further guidance.
- Under Burns part (b), an offense may be lesser-included when it involves a less serious risk of harm or otherwise constitutes a lesser form of the charged offense, even if not strictly included under a narrow elements-only comparison.
- Aggravated sexual battery may be instructed and convicted as a lesser-included offense of rape of a child when the proof supports the lesser offense.

## Conclusion

The Tennessee Supreme Court ruled that the 2009 amendments to Tenn. Code Ann. § 40-18-110 did not eliminate Burns part (b), confirmed aggravated sexual battery as a lesser-included offense of rape of a child, and reinstated the jury’s aggravated sexual battery conviction.


State v. Howard, 504 S.W.3d 260 (Tenn. 2016)