
    STATE of Tennessee, Appellant, v. Charles D. FOWLER, Appellee.
    Supreme Court of Tennessee, at Nashville.
    Oct. 25, 1999.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Daryl J. Brand, Associate Solicitor General, Nashville, for Appellant.
    Robert S. Peters, Winchester, for Appel-lee.
   OPINION

HOLDER, Justice.

We granted this appeal to determine whether payment by a fifty-three-year-old male for “straight sex” with what he perceived to be a fifteen-year-old boy could constitute a substantial step toward the commission of statutory rape. Upon review, we hold that the evidence in this case supported the jury’s finding that the defendant’s conduct constituted a substantial step toward the commission of statutory rape. The decision of the Court of Criminal Appeals is reversed, and the defendant’s conviction for attempted statutory rape is reinstated.

FACTS

The defendant, Charles D. Fowler, was a fifty-three-year-old truck driver who had stopped in a rest area along a Tennessee interstate highway. He approached an undercover police officer in a wooded portion of the rest area, and they began talking about underage children. The undercover police officer was “wired” and recorded the ensuing conversation.

The defendant told the officer that the defendant had hoped to pick up a hitchhiker but that other motorists had picked up the only two he had seen. The defendant conveyed to the officer that the defendant had a preference for young boys. The defendant stated, “I like the young stuff. In fact, I like the underage stuff.” He boasted about various sexual escapades he had experienced with minors.

The defendant told the officer that the defendant was looking for a young boy who was willing to run away from home and live with him in a house on a swamp in Florida. The officer indicated that he might know of a few young boys who would be willing to go with the defendant. The officer stated that the boys he had in mind would be between the ages of ten and fourteen. The defendant replied that the mentioned ages would be acceptable provided the young boys could either ejaculate or were learning how to ejaculate.

The officer conveyed to the defendant that the officer knew of a twelve-year-old boy who was interested in running away from home. The defendant agreed to pay the officer a $200 “finder’s fee” for the twelve-year-old boy. Approximately one hour later, the defendant met the officer in a parking lot to make the exchange. The officer had what appeared to be a young boy with him. The officer told the defendant the boy was fourteen years old. The boy, however, was a nineteen-year-old male dressed as a young boy. The defendant confirmed that he wanted “straight sex” from the young boy. The defendant wrote the officer a check for $200. The officer then placed the defendant under arrest.

A jury convicted the defendant of attempting to purchase a minor and of attempted statutory rape. He received sentences of three years for the attempted purchase of a minor conviction and nine months for the attempted statutory rape conviction. The trial court, however, set aside the verdict and entered a judgment of acquittal on the charge of attempted purchase of a minor. The Court of Criminal Appeals, in a split decision, reversed the attempted statutory rape conviction holding that the defendant’s acts did not constitute a substantial step toward the commission of the crime. We granted review on this limited issue.

ANALYSIS

The issue now before us is whether the evidence of the defendant’s conduct was sufficient to support the jury’s conviction of attempted statutory rape. The State argues that “[t]he officers were not required to permit the defendant to drive off with the boy or initiate actual penetration.” The State contends that under State v. Reeves, 916 S.W.2d 909 (Tenn.1996), the jury’s conviction should be affirmed because “only the intervention of the officers in effecting the arrest stopped the defendant from his intended purpose ... committing statutory rape.” We agree with the State’s assertions.

This Court recently addressed the law on criminal attempt in State v. Reeves. In Reeves, two female high school students, Coffman and Reeves, conspired to kill a teacher. They agreed that Coffman would bring rat poison to school and that they would place the poison in the teacher’s drink. The poison was brought to school the following day. The teacher entered her room and noticed the two girls “over her desk.” When the girls observed the teacher, they giggled and ran back to their seats. The teacher discovered Coffman’s purse lying next to her coffee cup. Coff-man was taken to the principal’s office, and the rat poison was found in her purse. Id. at 910.

This Court recognized that prior to the passage of the 1989 criminal reform act a finding of criminal attempt required evidence of: “(1) an intent to commit a specific crime; (2) an overt act toward the commission of that crime; and (3) a failure to consummate the crime.” Id. at 911. The overt act element required a distinction between conduct that was merely preparatory and conduct that constituted a “direct movement toward the commission after the preparations had been made.” Id. (quoting Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238, 240 (1959)).

Following the criminal reform legislation of 1989, the law of criminal attempt was codified at TenmCode Ann. § 39-12-101. The statute provides in pertinent part that:

(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.

Tenn.Code Ann. § 39-12-101(a)(3) (1997). In Reeves, this Court rejected the argument that the legislature “intended to retain the sharp distinction between ‘mere preparation’ and the ‘act itself ” following the codification of § 39-12-101. Reeves, 916 S.W.2d at 913. We also held that the mere preparation test was inconsistent with the current legislative language and the goal of preventing crimes.

[Requiring an overt act] severely undercuts the objective of prevention.... Once a person secretly places a toxic substance into a container from which another person is likely to eat or drink, the damage is done. Here if it had not been for the intervention of the teacher, she could have been rendered powerless to protect herself from harm.

Id. at 914. Accordingly, the “mere preparation” test was abandoned.

In the ease now before us, the jury convicted the defendant of attempted statutory rape. Statutory rape is defined as the “sexual penetration of a victim by the defendant or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least four (4) years older than the victim.” Tenn.Code Ann. § 39-13-506(a) (1997). Our focus under § 39-12-101(a)(3) is whether the evidence was sufficient to support the jury’s finding that the defendant’s conduct constituted a “substantial step” toward the commission of statutory rape in this case.

The record indicates that the defendant was seeking homosexual activity on the night of his arrest. He stopped at a rest area that had a reputation for homosexual activity. The defendant approached an undercover officer and indicated that the defendant had a preference for young males. The defendant agreed to pay the officer for delivery of a young male. The defendant was not purchasing a young male out of a benevolent motivation to provide an unhappy runaway with food and shelter. The defendant’s purpose for procuring a young male was sex. The fifty-three-year-old defendant believed the young male in question to be fifteen years old. One of the defendant’s stated intentions in purchasing the boy was to have “straight sex” with him. The defendant wrote the officer a check for $200 with the expectation that the boy would be turned over to the defendant.

On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences that may be drawn therefrom. State v. Evans, 838 S.W.2d 185, 191 (Tenn.1992). Our inquiry is whether “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Clifton, 880 S.W.2d 737, 742 (Tenn.Crim.App.1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

The evidence in this case taken in a light most favorable to the State overwhelmingly supports the jury’s finding that the defendant’s conduct constituted a substantial step toward commission of statutory rape. Requiring conduct beyond the defendant’s conduct in this case would be inconsistent with both the general goal of crime prevention and our analysis in Reeves. We would create a dangerous precedent by requiring that the defendant take delivery of the boy or actually begin some act that would approach sexual penetration. Once a pedophile purchases a child and takes the child into his possession, some damage has likely occurred. Moreover, the child is placed in a position of imminent danger from which the child may be powerless to protect himself or herself.

The decision of the Court of Criminal Appeals is reversed. The defendant’s conviction for attempted statutory rape is reinstated. Costs of this appeal shall be taxed against the defendant for which execution shall issue if necessary.

ANDERSON, C.J., DROWOTA, J., BYERS, Sp.J., concur.

BIRCH, J., dissents.

BARKER, J., Not Participating.

BIRCH, Justice,

dissenting.

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:
(8) 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)(em-phasis 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.”

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). 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 other act toward its perpetration.” 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 soliciting 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 146. 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].” 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 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. 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. 
      
      . 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.
     
      
      . Granted, Fowler was not directly soliciting another to commit the crime of statutoiy 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. Torcía, Wharton’s Criminal Law § 672 (15th ed.1996).
     
      
      . 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 Aim. § 39-12-101 (1997).
     
      
      . Tenn.Code Ann. § 39-13-528 (Supp.l998)(effective July 1, 1998).
     