Emanuel Q. Tolbert v. State of Arkansas

ar02-315

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

EMANUEL Q. TOLBERT

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-315

MARCH 5, 2003

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR00-1122]

HONORABLE WILLARD PROCTOR, JR., CIRCUIT JUDGE

AFFIRMED

Appellant Emanuel Tolbert was convicted by a jury of rape and violation of a minor in the first degree. Tolbert was sentenced to fifteen years' imprisonment for the rape charge and four years' imprisonment for violation of a minor, with the sentences to be served concurrently. On appeal, Tolbert argues that: (1) the evidence was insufficient to prove the charge of rape; (2) the trial court erred in not permitting him to inquire of the victims' attorney, Mark Leveritt, that the victims were planning to file a civil action; (3) the trial court erred in not permitting him to inquire into K.C.'s status in juvenile detention because she might have been in custody on a crime of dishonesty; (4) the trial court erred in admitting 404(b) evidence of other alleged occurrences involving him and other girls; (5) the trial court erred in finding his confession to be voluntary; (6) the trial court erred in not giving his proffered jury instruction on the State's burden of proving that a confession is voluntary; (7) the trial court erred in not giving his proffered jury instruction on the lesser-included offense of violation of a minor in the second degree as to the rape count. We affirm on all points.

At trial, D.W. testified that she was a tenth-grade student at Hall High School in January and February of 2000. She stated that she was placed in in-school suspension on approximately January 6, 2000, and that this was the first time that she met Tolbert, who was the teacher for in-school suspension. According to D.W., Tolbert instructed her to sit near his desk at the front of the classroom, and he initiated a conversation with her about sex. D.W. testified that Tolbert asked her whether she had ever had oral sex and told her that he was good at it. D.W. testified that Tolbert then exposed his penis to her in the classroom. Although there were other students present, D.W. stated that they were not paying attention. According to D.W.'s testimony, Tolbert told her that he wanted to have a relationship with her, and he gave her his home phone and pager numbers. D.W. stated that Tolbert called her almost every night for approximately two weeks and that they talked further about sex.

During one conversation, D.W. testified that Tolbert asked her to call one of her friends so that they could have a three-way conversation. D.W. testified that she called her friend K.C. and that they all made a decision to get together and have sex. D.W. stated that she had semester tests during the week of January 11-14 and that school got out at 1:00 p.m. on those days. According to D.W., she discussed with Tolbert that they would leave the school together at 1:00 p.m. after she finished her test and they would pick up K.C., who attended Forest Heights Middle School. D.W. testified that she and Tolbert went to pick up K.C., but that the secretary would not let Tolbert check K.C. out of school because he was not authorized to do so. D.W. stated that they went to a pay phone to call K.C. and that Tolbert told K.C. to be waiting outside the school. After they picked up K.C., D.W. testified that they went to Tolbert's apartment, where he had oral and vaginal sex with both of the girls. According to D.W., she told Tolbert that she was fifteen years old the first day that they met. D.W. testified that she did not tell anyone about the incident until three or four weekslater, when she told the school security guard. D.W. stated that the security guard took her to the principal, who reported the incident to the police.

K.C. testified that she was thirteen years old and in the eighth-grade at Forest Heights Middle School in January 2000. She stated that she turned fourteen years old on February 4, 2000. K.C. testified that D.W. and Tolbert picked her up at school in January 2000 and that they went to Tolbert's apartment. According to K.C., Tolbert then had oral and vaginal sex with both her and D.W. Tolbert also gave a statement to police, in which he admitted to having sexual intercourse with D.W. and K.C. at his apartment, although he denied having oral sex with either girl.

For his first point on appeal, Tolbert challenges the sufficiency of the evidence supporting his conviction for rape. When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Substantial evidence, whether direct or circumstantial, is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Id.

Tolbert contends that the State failed to prove that K.C. was under the age of fourteen at the time of the rape and that there was insufficient evidence of sexual intercourse or deviate sexual activity. According to the statute in effect at the time of the offense, a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997). "Deviate sexual activity" is defined "as any act of sexual gratification involving: the penetration, however slight, of the anus or mouth of one person by the penis of another person; or the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person[.]"Ark. Code Ann. § 5-14-101(1) (Repl. 1997). "Sexual intercourse" is defined as the penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(9) (Repl. 1997). The testimony of a rape victim alone constitutes substantial evidence to support a conviction for rape. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000).

Here, K.C. testified at trial that she had vaginal and oral sex with Tolbert in January 2000, when she was thirteen years of age. K.C. testified that she did not turn fourteen until February 4, 2000. D.W. also testified that she and K.C. had sex with Tolbert in January 2000. Tolbert argues that K.C. gave inconsistent dates of the incident in her statements to police and points to testimony that he contends shows that the incident occurred after she turned fourteen. However, any discrepancies in the evidence are for the factfinder to resolve, and appellate courts defer to the jury's resolution of conflicting testimony. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993). K.C.'s testimony at trial that she was thirteen years old at the time of the act constitutes substantial evidence in this regard.

Tolbert also argues that there was insufficient evidence of sexual intercourse or deviate sexual activity with K.C. However, Tolbert did not make this specific argument in his directed-verdict motion. A party cannot change the grounds for an objection on appeal, but is bound by the scope and nature of the objections and arguments presented at trial. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996). As a result, Tolbert's argument is not preserved for our review. Even if we were to address Tolbert's argument, it has no merit. Not only did K.C. and D.W. testify that Tolbert had vaginal and oral sex with K.C., but Tolbert himself admitted that he had vaginal intercourse with K.C. Thus, substantial evidence supports Tolbert's conviction for rape.

For his second point on appeal, Tolbert argues that the trial court erred in not permitting him to inquire of the victims' attorney, Mark Leveritt, that the victims were planning to file a civil actionin this case, which went to their credibility as witnesses by showing bias. At trial, Tolbert called attorney Mark Leveritt as a witness and asked whether the victims in this case had retained his services. Leveritt stated that the victims had retained him, but when Tolbert asked whether they had retained him to file a civil lawsuit, Leveritt declined to answer and asserted the attorney-client privilege. When Tolbert asked Leveritt if he was "defending" the victims "in this matter," the State objected, and the trial court ruled that it was an improper question. However, at no time did Tolbert object to Leveritt's assertion of the attorney-client privilege or ask the trial court to compel Leveritt to testify.

Tolbert now argues on appeal that the subject matter of Leveritt's representation was relevant to show bias on the part of the victims and that he was denied his right to compulsory process under the Sixth Amendment to the United States Constitution. Tolbert did not raise these arguments to the trial court. This court does not consider arguments that are raised for the first time on appeal. Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001). Even constitutional arguments cannot be raised for the first time on appeal. Id. Thus, we do not address Tolbert's argument on this point.

Tolbert argues in his third point on appeal that the trial court erred in not permitting appellant to inquire into K.C.'s status in juvenile detention as of the time of trial because she might have been in custody on a crime of dishonesty. During his cross-examination of K.C., Tolbert asked where she was living in July 2000. K.C. then testified that she was at juvenile detention. The State immediately objected, and Tolbert responded that K.C.'s credibility was relevant to the case and that she might have been in detention on a crime of dishonesty or false statement. The trial court then asked the nature of the charge, and Tolbert replied that he did not know. The court stated that it would not let Tolbert go on a fishing expedition and granted the State's request to strike K.C.'s response and admonish the jury.

Tolbert argues that the trial court erred because if K.C. was in juvenile detention on a crime of dishonesty, he would be allowed to ask about it under Ark. R. Evid. 609(d) (2002). Rule 609(d) states that evidence of juvenile adjudications is generally not admissible; however, the court may allow evidence of a juvenile adjudication of a witness, other than the accused, if conviction of the offense would be admissible to attack the credibility of an adult, and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. Arkansas Rule of Evidence 609(a) provides that evidence that a witness has been convicted of a crime shall be admitted if (1) the crime was punishable by imprisonment of more than one year, and the court determines that the probative value outweighs its prejudicial effect, or (2) the crime involved dishonesty or false statement, regardless of the punishment.

The State contends that Tolbert's argument is procedurally barred because he did not make a proffer of K.C.'s anticipated response or offer any evidence to the trial court that K.C. was in fact adjudicated delinquent for a crime involving dishonesty. According to Ark. R. Evid. 103(a)(1) (2002), a claim of error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by offer or was apparent from the context in which the questions were asked. The failure of a defendant to proffer to the trial court the anticipated evidence bars consideration of the matter on appeal. Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000).

Tolbert admits that he did not make a proffer of K.C.'s anticipated testimony to the trial court, but argues that he did not have access to this information and that the State should have furnished this information as part of its discovery obligation to provide the criminal record of all the witnesses it intends to call. However, as the State argues, no claim of a discovery violation was made to the trial court by Tolbert, and this court will not address an argument for the first time onappeal. Napier v. State, supra. As Tolbert concedes in his argument, the trial court could not determine whether evidence of K.C.'s juvenile adjudication would be properly admissible under Ark. R. Evid. 609 without knowledge of the specifics of the adjudication. Similarly, this court is unable to determine whether the trial court abused its discretion in excluding the evidence without this knowledge. Thus, Tolbert's failure to proffer what he anticipated K.C.'s testimony to be bars consideration of his argument on appeal. Goff v. State, supra.

For his fourth point on appeal, Tolbert contends that the trial court erred in admitting 404(b) evidence of other alleged occurrences involving him and other girls. Tolbert was originally charged in a three-count felony information with raping K.C., violating D.W. in the first degree, and raping M.G. Prior to trial, the trial court granted Tolbert's motion to sever the count pertaining to M.G. At trial, in addition to the testimony of K.C. and D.W., the State presented the testimony of M.G., who testified that she was a student of Tolbert's and that he had engaged in sexual activity with her after he initiated contact via a series of sexually-oriented notes. The State also called two other students, T.C. and T.P., who testified that Tolbert wrote notes to them in which he solicited oral sex. Tolbert's objection to their testimony under Ark. R. Evid. 404(b) was overruled by the trial court.

Under Rule 404(b), although "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith[, i]t may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). The list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list, but rather represents examples of the types of circumstances where evidence of other crimes or acts would be relevant and admissible. Id. A trial court's ruling on the admission of evidence under Rule 404(b) is entitled to great weight and will not be reversed absent an abuse of discretion. Id. A "pedophile exception" to Rule 404(b) also has been recognized, which permits the admission of evidence of other sexual acts with children, when it tends to show a proclivity toward a specific act with a person or class of persons with whom the accused has had an intimate relationship. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002); Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). The testimony of other rape victims is relevant in a criminal trial for the rape of an underage victim to show motive, intent, or plan. Butler, supra (citing Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995)). The rationale for the pedophile exception is that such evidence helps to prove the depraved sexual instinct of the accused. Butler, supra.

In his argument, Tolbert recognizes that the pedophile exception is no longer applied only to prior acts with the same child or other children in the same household. See, e.g., Butler, supra (allowing testimony of other victims who were sexually abused by defendant while he was a minister in charge of a Christian school where the victims were students); Berger, supra (admitting testimony of two other victims who did not reside in same household as defendant); Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998) (admitting testimony of child who was abused when spending the night at defendant's house); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994) (allowing testimony by other victims who were abused when defendant was their babysitter). Tolbert contends that the purpose of the pedophile exception has been exceeded in these cases, and he urges this court not to apply the exception to this case. Even if this court were to agree with Tolbert's argument, we do not have the authority to overrule cases decided by the Arkansas Supreme Court. Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999). However, we do not find it necessary to apply the pedophile exception in this case, as the evidence presented by M.G., T.C., and T.P. is independently relevant under Rule 404(b) to show Tolbert's motive, intent, and plan to develop a trusting relationship with these girls as their teacher in order to instigate a sexualrelationship. The independent relevance of this evidence is demonstrated by the similarities with which Tolbert approached and interacted with these students. According to the testimony of M.G., who was seventeen years old at the time of the incident in November 1999, Tolbert called her up to his desk in in-school suspension and instigated a conversation about sex. M.G. testified that she and Tolbert then wrote sexual notes back and forth, and she stated that Tolbert asked her about oral sex. M.G. also stated that Tolbert exposed himself to her in class and that he gave her his home and pager numbers for her to call him. M.G. testified that she invited Tolbert to her house, where he performed oral and vaginal sex on her. M.G. testified that she trusted Tolbert when she met him in in-school suspension and that she had a close, special relationship with him.

T.C. testified that she was sixteen in January 2000 and that she was also a student of Tolbert's in his in-school suspension class. T.C. stated that he called her up to his desk and gave her a note, in which he asked her if she was having sex and if he could perform oral sex on her. T.C. also testified that Tolbert gave her his phone number, but she stated that she never called him or followed up on the note.

T.P. testified that she was fifteen years old when Tolbert was her teacher in in-school suspension. According to T.P., Tolbert called her up to his desk and gave her a note that he had written, in which he asked her if she was a virgin and if she had ever had oral sex. T.P. also testified that Tolbert gave her two phone numbers on a piece of paper. T.P. stated that she did not respond to Tolbert's note and that she threw the phone numbers away.

There are striking similarities between the testimonies of D.W., M.G., T.C., and T.P., as to how Tolbert approached them when he was their teacher and attempted to initiate a sexual relationship. We find that this testimony is relevant to show Tolbert's intent, motive, and plan todevelop a sexual relationship with his female students, especially because Tolbert denied having any kind of sexual contact with the victims. See Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995) (defendant's prior crimes of kidnapping, battery, and rape were sufficiently similar to the crime of felony murder committed in the course of an attempt to commit rape and kidnapping, and thus, this evidence was properly admitted to prove defendant's intent, where both crimes involved female convenience store clerks, both crimes were committed after midnight after the defendant had made several trips to the store during the day of the attack, and both crimes involved sexual implications and physical struggles); Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992) (testimony of four young girls was admissible in defendant's trial for the rape of two other girls to show motive, intent, or plan, where defendant denied having sexual contact with the victims); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991) (the defendant's prior conviction for first-degree sexual abuse, which occurred during the same time frame as the charged offense, was admissible as probative of motive, intent, or plan); Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002) (evidence of a prior robbery committed against an elderly victim was relevant to prove defendant's intent to rob the elderly victim in this case).

Tolbert argues that this evidence was unfairly prejudicial and that this can be demonstrated by the fact that the count of violating M.G. in the first degree was severed by the trial court. However, as the State contends, a defendant has an absolute right to a severance of offenses joined solely on the ground that they are of the same or similar character. Ark. R. Crim. P. 22.2(a) (2002). The fact that the severance was granted was not a judicial determination that this evidence was more prejudicial than probative under Rule 404. See Butler, supra (where charges of first-degree violation of a minor involving two different victims were severed from the rape charge, but the two other victims were allowed to testify under Rule 404(b) at the trial on the rape charge); Munson v. State,331 Ark. 41, 959 S.W.2d 391 (1998) (stating that factors used in deciding whether to sever offenses are not controlling over the issue of whether the evidence is admissible under Rule 404(b)). Given the similarities between the testimony of the victims in this case and that of M.G., T.C., and T.P., the trial court did not abuse its discretion in finding this evidence to be independently relevant under Rule 404(b).

For his fifth point on appeal, Tolbert argues that the trial court erred in finding his confession to be voluntary. This court reviews a trial court's decision denying a defendant's motion to suppress a confession by making an independent review of the totality of the circumstances, and this ruling will only be reversed if it is clearly against the preponderance of the evidence. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002). Conflicts in testimony at a suppression hearing about the circumstances surrounding a defendant's in-custody statement are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he is the person most interested in the outcome of the proceedings. Id.

Custodial statements are presumed to be involuntary, and the burden is on the State to prove that the statement was given voluntarily and was knowingly and intelligently made. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). This court makes an independent review of the totality of the circumstances surrounding the confession to determine whether the defendant knowingly, voluntarily, and intelligently waived his constitutional rights. Id. There are two separate components in determining the validity of a defendant's waiver. First, the reviewing court examines the voluntariness of the statement, by looking at whether the statements were the product of a free and deliberate choice rather than intimidation, coercion, or deception. Howell, supra. The court also considers the following factors: age, education, and intelligence of the accused, lack of advice of his constitutional rights, length of detention, the repeated or prolonged nature of the questioning,or the use of physical punishment. Id. Second, the court examines whether the waiver was knowingly and intelligently made. Id. This examination focuses on whether the waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id.

At the pretrial hearing on Tolbert's motion to suppress his confession, Detective Cassandra Williams testified that she, along with Detective Deborah Carter, interviewed Tolbert after he had been arrested. According to Williams, before asking him any questions, she advised Tolbert that he was a suspect in a rape and a violation of a minor. Williams testified that she then advised Tolbert of his Miranda rights by reading each right to him from a standard form used by the police department. She testified that Tolbert acknowledged that he understood those rights, and he agreed to waive his rights. In the presence of both detectives, Tolbert signed the form indicating that he understood each of his rights and then signed a waiver of those rights. Williams stated that Tolbert remained calm and relaxed throughout the interview, and she testified that he did not appear to be under the influence of any intoxicant. Williams testified that Tolbert acknowledged that he was a college graduate, could read and write, and understand their questions. Williams testified that at no time did Tolbert assert his right to remain silent or his right to counsel. Williams denied using any threats or promises of leniency to obtain Tolbert's confession. After Tolbert agreed to give a statement, Williams testified that she talked to him for a few minutes and then went to get a tape recorder to tape his statement. From the time that Williams and Carter came into the room until Tolbert finished giving his statement, Tolbert was detained for approximately one hour. Carter also testified at the hearing and corroborated Williams's account of the circumstances surrounding Tolbert's confession.

Tolbert argued at the pretrial hearing, as he now argues on appeal, that he was not advisedof the charges against him and that he was pressured into signing the Miranda rights form and waiver without having the opportunity to read it. Tolbert claims that the detectives made promises of leniency in order to get him to waive his rights and give a statement. Tolbert also argues that he asserted his right to counsel and to remain silent. However, Williams and Carter testified that Tolbert was advised of the charges against him, and they denied making any such promises of leniency. Both detectives also denied that Tolbert at any time invoked his right to remain silent or to counsel. Rather, Williams testified that Tolbert's statement was freely and voluntarily given from start to finish. Conflicts in testimony at a suppression hearing are for the trial judge to resolve, and we defer to the trial court in matters of credibility. Howell v. State, supra.

Here, the trial court found that Tolbert understood his rights and that he voluntarily waived his rights and gave a statement. Although Tolbert argues that the reading and waiver of his rights were not recorded, the transcript of his confession reveals that he was again informed of the charges against him and was advised that he was previously read his rights and had signed that he understood them on the tape. Also on the tape, Williams read the waiver of rights again and asked Tolbert if he had signed the waiver and was willing to give a statement, to which Tolbert replied affirmatively. Under the totality of the circumstances, the preponderance of the evidence indicates that Tolbert knowingly, voluntarily, and intelligently waived his constitutional rights. Thus, the trial court's decision to deny Tolbert's motion to suppress his confession is not clearly against the preponderance of the evidence.

Tolbert argues in his sixth point on appeal that the trial court erred in not giving his proffered jury instruction on the State's burden of proving before the jury that a confession is voluntary. Tolbert admits that Arkansas has no model jury instruction with respect to the weight to be given a statement of the accused, but he argues that the accused has a due process right to have the juryindependently review the voluntariness of a confession. However, Tolbert's argument has no merit, as this court has previously held that a trial court is not required to resubmit the issue of voluntariness of a confession to a jury after it has previously resolved the issue in a Denno hearing. Hunter v. State, 8 Ark. App. 283, 653 S.W.2d 159 (1983) (citing Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982)). Arkansas does not have a model jury instruction on the subject because the weight and credibility of the testimony surrounding a confession are matters to be argued by counsel. Id. Although the court in Hunter noted that a trial court is free to submit the issue to a jury if it feels it is appropriate, the court stated that the trial court did not err in refusing to give the instruction. Id. Thus, under Hunter, supra, the trial court did not err in not giving the proffered jury instruction in the present case.

In his last point on appeal, Tolbert contends that the trial court erred in not giving his proffered jury instruction on the lesser-included offense of violation of a minor in the second degree as to the rape count. Two conditions must be satisfied before a defendant is entitled to an instruction on a lesser-included offense: (1) the proffered instruction must truly cover the lesser included offense, and (2) there must be a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). However, it must first be determined whether violation of a minor in the second degree is a lesser-included offense of rape. In McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), the court held that the determination of when an offense is included in another offense depends on whether it meets one of the three alternative tests set out in Ark. Code Ann. § 5-1-110(b) (Repl. 1997). This section provides in pertinent part:

(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:

(1) It is established by proof of the same or less than all of the elements required to establishthe commission of the offense charged; or

(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

As stated earlier, Ark. Code Ann. § 5-14-103(a)(4) provides that one commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. A person commits the offense of violation of a minor in the second degree if he engages in sexual contact with another person not his spouse, who is more than thirteen years of age and less than eighteen years of age, and the actor is an employee in the minor's school or school district. Ark. Code Ann. § 5-14-121(a) (Repl. 1997) (repealed). Thus, the elements of the crime of rape are proof of sexual intercourse or deviate sexual activity and proof of the victim's age. The elements of second-degree violation of a minor are proof of sexual contact, that the victim is between thirteen and eighteen years old, and that the defendant is an employee of the victim's school district.

The offense of violating a minor in the second degree requires proof of additional elements not required in a prosecution for rape under section 5-14-103(a)(4): sexual contact, as opposed to sexual intercourse or deviate sexual activity; a different age of the victim; the defendant's status as a school employee. Thus, violating a minor in the second degree is not a lesser-included offense of rape, as it cannot be established by the same or less than all of the elements of rape. Nor does it satisfy any of the other alternative tests found in section 5-1-110(b) for being a lesser-included offense.

Tolbert argues that the key difference between the two offenses is whether there was sexual contact or sexual intercourse, and he states that the only distinction is that sexual intercourserequires proof of penetration beyond sexual contact. Therefore, he contends that under the facts of this case, where the victim is between thirteen and eighteen years old and he is a teacher, second-degree violation of a minor has to be a lesser-included offense of rape. Even assuming that Tolbert's argument pertaining to the distinction between sexual contact and sexual intercourse is correct, he ignores the fact that second-degree violation of a minor requires proof of an additional element not found in the definition of rape-- that he is an employee of the school district. Because second-degree violation of a minor is not a lesser-included offense of rape in this case, the trial court did not err by rejecting Tolbert's proffered instruction. We affirm.

Affirmed.

Crabtree and Baker, JJ., agree.