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Posted by: Tanja Trezise on Mar 13, 2012

Court: TN Court of Criminal Appeals

Attorneys 1: Martha J. Yoakum, District Public Defender; Tina L. Sloan (on appeal) and Charles A. Herman (at trial), Assistant Public Defenders, for the appellant, Denny Merrill Phillips.

Attorneys 2: Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William Paul Phillips, District Attorney General; and Scarlett W. Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

The defendant, Denny Merrill Phillips, was convicted of one count of solicitation to commit rape in violation of Tennessee Code Annotated section 39-13-528(a)(3), a Class C felony, on the grounds that he followed the victim into a public men’s room and verbally requested that the victim perform fellatio on him. The defendant challenges the sufficiency of the evidence to support his conviction, arguing that the State failed to present any facts or evidence from which the jury could have reasonably concluded that the sexual penetration solicited by the defendant would have occurred without the victim’s consent. We note that a jury, when determining whether the sexual act being solicited is to be accomplished with or without consent, may consider the totality of a defendant’s conduct - not just the particular words used by the defendant. However, in this case, even viewing the defendant’s conduct in its entirety, we cannot conclude that the evidence presented was sufficient to establish that the sexual act being solicited by the defendant would have been accomplished absent the victim’s consent. A verbal request for sex or an offer to pay for sex, without more, is simply not a solicitation to commit rape as it lacks proof of the non-consent element which is required. We agree that the evidence presented was sufficient to support a conviction for solicitation to commit statutory rape. However, because our supreme court has established that statutory rape is not a lesser included offense of rape, see State v. Stokes, 24 S.W.3d 303, 305-06 (Tenn. 2000), the defendant’s conviction cannot be amended to reflect that charge. Accordingly, the judgment of conviction must be reversed.