Opinion
No. 01C01-9509-CR-00317.
July 23, 1997.
DAVIDSON COUNTY, HON. WALTER C. KURTZ, JUDGE, (Rape of a Child, Aggravated Sexual Battery, and Sentencing).
AFFIRMED
FOR THE APPELLANT
Karl Dean, District Public Defender, Jeffrey A. DeVasher, Assistant Public Defender, Joan A. Lawson, Assistant Public Defender, Jerrilyn Manning, Assistant Public Defender.
FOR THE APPELLEE
John Knox Walkup, Attorney General and Reporter, Sarah M. Branch, Assistant Attorney General, Victor S. Johnson, III, District Attorney General, William R. Reed, Assistant District Attorney General.
Opinion
The Appellant, William H. Barney, appeals as of right his convictions and sentences for aggravated sexual battery and rape of a child. He argues on appeal that:
(1) His indictment insufficiently alleged the elements of the offenses aggravated sexual battery and rape of a child.
The Appellant filed his brief in this case on November 21, 1995. On August 7, 1996, the Appellant filed supplemental authority pursuant to Tennessee Rules of Appellate Procedure 27(d) and 36(a) alleging that the indictment was insufficient.
(2) His constitutional due process rights were violated when the trial court allowed separate convictions for aggravated sexual battery to stand when the unlawful sexual contacts were essentially incidental to rape of a child.
(3) The trial court erred in imposing excessive sentences.
(4) The trial court erred in imposing consecutive sentences.
Following a careful review of the record on appeal, we conclude that no reversible error appears with respect to the Appellant's convictions and sentences.
Factual Background
In July 1992, the Appellant moved in with the B family to take care of the three B boys while their father worked nights and evenings. The Appellant, at the time a forty-seven-year old man, took a special interest in ten-year old K. The Appellant spent a lot of time with K, watching television, taking him to Opryland, and going to the movies. In November, that same year, the Appellant left the B family and moved away from Tennessee and K's father hired a live-in nanny to care for K and his other sons.
It is this Court's policy to refer to child sex victims and their families by initials only.
In May of 1993, the Appellant unexpectedly returned to the B residence. He asked the nanny if he could come in and visit K. When the nanny asked K if he wanted to see the Appellant, K became upset and refused to see him. The nanny asked K why he was upset, and in response, K told her that the Appellant had molested him.
According to K's testimony at trial, during the period from July to November, 1992, on at least five specific occasions, the Appellant entered K's bedroom after K had gone to bed. In the bedroom, the Appellant first pulled down K's pajama pants, then rubbed K's penis with his hand, and finally fellated him. K also specifically remembers at least four occasions when the Appellant anally penetrated him and at least two other occasions when the Appellant performed anilingus on him.
After K told the Nanny that he had been molested by the Appellant, she called K's father, who asked her to immediately call the police. When the police arrived, the Appellant was still at the B residence. The police officers asked K to tell them what had happened with regard to the Appellant, and after taking a statement from K, the police arrested the Appellant. In police custody, the Appellant admitted to the penis rubbing, the fellatio, and one attempted incident of anal sex.
Based on the foregoing evidence, the Appellant was found guilty by a jury of his peers of eleven counts of rape of a child and seven counts of aggravated sexual battery. He was sentenced to seventeen and one-half years for each count of rape of a child and ten years for each count of aggravated sexual battery. The trial court ordered the eleven counts of rape of a child partially concurrent and partially consecutive to one another for a total sentence of seventy years. The trial court ordered the aggravated sexual battery counts concurrent to one another, but consecutive to the rape of a child sentences. The Appellant received an aggregate sentence of eighty years imprisonment.
I. The Indictment
The Appellant first argues that his indictment did not allege the mens rea of the offenses aggravated sexual battery and rape of a child. This issue is without merit.
The Appellant, in making this argument, relies upon this Court's holding in State v. Roger Dale Hill, Sr., C.C.A. No. 01C01-9508-CC-00267 (Tenn.Crim.App., Nashville, June 20, 1996) perm. to app. granted (Tenn., Jan. 6, 1997). In Hill, a panel of this Court found an indictment, which alleged that the defendant "unlawfully sexually penetrated" his less than thirteen-year old victim, fatally defective because it did not explicitly allege that the defendant sexually penetrated the victim intentionally, knowingly, or recklessly. Here, the Appellant argues that his indictments for rape of a child and aggravated sexual battery are fatally defective because they do not explicitly state the requisite mens rea of the offenses; namely that they were committed intentionally, knowingly, or recklessly.
To protect individual's due process rights, the United States and Tennessee constitutions guarantee that all criminally accused shall be informed of "the nature and cause of [any] accusation." U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The Tennessee Legislature, to supplement and clarify the constitutional provisions, has provided that an indictment must "state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended." Tenn. Code Ann. § 40-13-202 (1990). To survive constitutional scrutiny, an indictment (1) must notify the defendant of the specific charges, (2) it must enable the trial court upon conviction to enter an appropriate judgment and sentence, and (3) it must protect the defendant against double jeopardy. State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996).
To satisfy the notice requirement, as enumerated in Trusty, "[t]he indictment must contain factual allegations relating to every essential element of the offense. Id. (citing State v. Morgan, 598 S.W.2d 796, 797 (Tenn.Crim.App. 1979)) (emphasis added); see State v. Marshall, 870 S.W.2d 532, 537 (Tenn.Crim.App. 1993). The factual allegations must also relate to the element of scienter. Marshall, 870 S.W.2d at 537. In providing the factual allegations, it is not necessary that the indictment trace the language of the statute. Indeed, the indictment will be sufficient if the elements of the offenses "are necessarily implied from the [factual] allegations made." Id. at 538 (citing Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932)).
This Court, in Marshall, also stated that "reference to a criminal statute should not suffice in terms of replacing the necessary factual allegations." In making that statement, this Court relied upon McCracken v. State, 489 S.W.2d 48 (Tenn.Crim.App. 1972) and Cole v. State, 512 S.W.2d 598 (Tenn.Crim.App. 1974). Upon a close reading, however, McCracken and Cole only stand for the proposition that when a factually sufficient indictment, by clerical error, quotes a different code provision than what was intended, the trial court may treat the reference to the statute as surplusage. Cole, 512 S.W.2d at 601-02; McCracken, 489 S.W.2d at 51.
Here, the Appellant was indicted for seven counts of aggravated sexual battery and fourteen counts of rape of a child pursuant to Tennessee Code Annotated, sections 39-13-504 and 39-13-522. With respect to the seven counts of aggravated sexual battery, all seven indictments stated:
THE GRAND JURORS of Davidson County, Tennessee, duly impanelled and sworn, upon their oath, present that:
WILLIAM HENRY BARNEY
on a day between July 1, 1992, and November 30, 1992, in Davidson County, Tennessee and before the finding of this indictment, did engage in unlawful sexual contact with [K.B., the victim], a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-522, and against the peace and dignity of the State of Tennessee.
The indictment traced the definition of aggravated sexual battery as it is provided in the Tennessee Code. See Tenn. Code Ann. § 39-13-522. That definition, and thus also the indictment, does not explicitly state the crime's requisite mens rea. The Code, however, provides the mens rea in its definition of "sexual contact." See Tenn. Code Ann. § 39-13-501(6) (1991). It provides that sexual contact is the
[I]ntentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.
Tenn. Code Ann. § 39-13-501(6) (emphasis added). The crime of aggravated sexual battery, as stated in the indictments, therefore, by implication, provide the requisite element of that crime; namely, that it has to be intentional. See State v. John James, C.C.A. No. 01C01-9601-CR-00016 (Tenn.Crim.App., Nashville, Mar. 27, 1997); State v. Larry Steve Wilson, C.C.A. No. 03C01-9511-CC-00355 (Tenn.Crim.App., Knoxville, Mar. 27, 1997); State v. Milton S. Jones, C.C.A. No. 02C01-9503-CR-00061 (Tenn.Crim.App., Jackson, Mar. 7, 1997); State v. Burrell, C.C.A. No. 03C01-9404-CR-00157 (Tenn.Crim.App., Knoxville, Feb. 11, 1997).
Moreover, as a general rule, it is sufficient if the indictment states the offense charged in the words of the statute, or with words which are the equivalent to the words contained in the statute. State v. Phillip Ray Griffis and Melissa Faith Rogers, C.A.A. No. 01C01-9506-CC-00201 (Tenn.Crim.App., Nashville, Apr. 30, 1997) (citing Coke v. State, 345 S.W.2d 673, 674 (Tenn. 1961); State v. Overton, 245 S.W.2d 188, 189 (Tenn. 1951); Stanfield v. State, 181 S.W.2d 617, 618 (Tenn. 1944); Jordan v. State, 3 S.W.2d 159, 160 (Tenn. 1928); State v. Tate, 912 S.W.2d 785, 789 (Tenn.Crim.App. 1995)).
The Appellant was also indicted for fourteen counts of rape of a child. Indictments one through seven provided:
THE GRAND JURORS of Davidson County, Tennessee, duly impanelled and sworn, upon their oath, present that:
WILLIAM HENRY BARNEY
on a day between July 1, 1992, and November 30, 1992, in Davidson County, Tennessee and before the finding of this indictment, did engage in unlawful sexual penetration of [K.B., the victim], a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-522, and against the peace and dignity of the State of Tennessee.
The indictments for counts eight through fourteen provided:
THE GRAND JURORS of Davidson County, Tennessee, duly impanelled and sworn, upon their oath, present that:
WILLIAM HENRY BARNEY
on a day between July 1, 1992, and November 30, 1992, in Davidson County, Tennessee and before the finding of this indictment, did cause [K.B., the victim], a child less than thirteen (13) years of age, to engage in unlawful sexual penetration of William Henry Barney, in violation of Tennessee Code Annotated § 39-13-522, and against the peace and dignity of the State of Tennessee.
Sexual penetration is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body. . . ." Tenn. Code Ann. § 39-13-501(7) (1991). We recognize that this definition does not explicitly provide a requisite mens rea for sexual penetration. See Milton S. Jones, C.C.A. No. 02C01-9503-CR-00061. However, according to the indictments' language, it is alleged that the Appellant engaged in sexual penetration, as previously defined, with the victim, a child less than thirteen (13) years of age, and that the Appellant did cause the victim to sexually penetrate him. Upon only a cursory reading of the indictment, any person of normal intelligence would realize that the only sound implication of the factual allegations is that these acts were at least reckless, if not knowing or intentional. We conclude that the necessary mens rea is implicitly included in the charging instrument, and therefore the indictments are sufficient. To the extent that Hill held otherwise, a majority of this panel respectfully disagrees.
II. The Due Process Claim
The Appellant contends that his constitutional due process rights were violated when the trial court allowed separate convictions for aggravated sexual battery to stand when the unlawful sexual contacts were essentially incidental to rape of a child. This issue is without merit.
The Appellant was convicted of five counts of aggravated sexual battery for rubbing K's penis with his hand before performing fellatio. The Appellant now claims that the rubbing of K's penis was essentially incidental to the fellatio, and that, therefore, the aggravated sexual battery convictions cannot stand separate from the rape of a child convictions.
The test formulated to resolve whether such convictions violate due process was established in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In Anthony, our Supreme Court stated that the question to be posed is whether a crime is "essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for [that crime], or whether [the crime] is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to support such a conviction." Id. at 306 (emphasis added).
Our Supreme Court further stated that this question could be resolved by inquiring into whether the incidental crime "'substantially increased [the] risk of harm over and above that necessarily present in the [principal crime] itself.'" Id. (quoting State v. Rollins, 605 S.W.2d 828, 830 (Tenn.Crim.App. 1980)). However, our Supreme Court never suggested that the risk of harm factor was a necessary element of the Anthony essentially incidental test.
Here, the Appellant's rubbing of K's penis was not essentially incidental to the fellatio. There is no evidence that indicates that the Appellant touched K's penis with the sole purpose of facilitating the fellatio. Instead, the evidence indicates that the Appellant first rubbed K's penis and then performed the fellatio. The unlawful sexual contact was a separate and independent act from the fellatio, significant enough to warrant independent prosecution.
The Appellant's proposition also conflicts with this Court's previous decisions in similar cases. State v. Peacock, 638 S.W.2d 837 (Tenn.Crim.App. 1982) (upholding two counts of aggravated rape when the appellant first forced his victim to perform fellatio and then had sexual intercourse with her); State v. Anderson, C.C.A. No. 22 (Tenn.Crim.App., Knoxville, Nov. 9, 1990) (upholding two counts of aggravated rape when the appellant first penetrated his victim's vagina with his finger to dilate it and then penetrated it with his penis); State v. Phillips, C.C.A. No. 02C01-9307-CC-00160 (Tenn. Crim. App., Jackson, Oct. 26, 1994) (upholding three rape convictions when the appellant penetrated his victim's vagina with a plastic object, performed cunnilingus, and then had sexual intercourse with her).
Appellant's reliance on State v. Bost, C.C.A. No. 01C01-9112-CR-00373 (Tenn.Crim.App. Nashville, Sept. 3, 1992), is misplaced. In Bost, this Court reversed an aggravated sexual battery conviction resulting from the appellant fondling his victim's breasts when he raped her by sexual intercourse. We reversed that conviction because "[t]he fondling occurred concomitantly with the vaginal rape, and the evidence here shows it to have been part and parcel of that bestial act." Id.
Again, the Appellant's rubbing of K's penis was a separate and independent act from the fellatio. There is no evidence that indicates that the Appellant only touched K's penis while performing the fellatio. This issue is without merit.
III. Sentencing
a. The Excessive Sentencing Claim
The Appellant argues that the trial court erred by imposing excessive sentences. This issue is without merit.
When an Appellant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1990). The burden of showing that the sentence is improper is upon the appealing party. Id. Sentencing Commission Comments. This presumption, however, is conditioned upon an affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A portion of the Sentencing Reform Act of 1989, codified at Tennessee Code Annotated § 40-35-210, requires a sentencing court to consider the following:
(1) The evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [the e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his own behalf about sentencing.
Tenn. Code Ann. § 40-35-210(b) (Supp. 1995).
The Act also provides that the minimum sentence within the range is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as is appropriate for the mitigating factors. Id. § 40-35-210(c),(d),(e).
"The sentencing commission specifically did not designate any particular numeric value for the enhancement and mitigating factors . . . [because it would] remove the judicial discretion necessary to make individualized sentencing determinations." Id. Sentencing Commission Comments; see State v. Shropshire, 874 S.W.2d 634, 642 (Tenn.Crim.App. 1993). The weight afforded to any enhancing or mitigating factor is within the trial judge's sole discretion as long as it does not violate the Sentencing Reform Act and is supported by the record. Shropshire, 874 S.W.2d at 642.
Here, the trial judge specifically applied the enhancement factor "abuse of public or private trust." Tenn. Code Ann. § 40-35-114(15) (Supp. 1995). The record reveals that the trial judge also considered the number of offenses committed, the period of time over which these offenses were committed, and that the Appellant posed a danger to other children due to his diagnosed pedophilia. The Appellant contends that the sentences were excessive because the trial court failed to apply three mitigating factors that would have reduced the sentences. These factors were: (1) that the Appellant's conduct neither caused nor threatened serious bodily injury; (2) that the Appellant was suffering from a mental or physical condition that significantly reduced his culpability for the offense; and (3) that the Appellant has no prior criminal record. See Tenn. Code Ann. § 40-35-113 (1990).
First, we concede that no serious bodily injury resulted from the Appellant's criminal conduct. However, considering the psychological trauma sustained by the victim in this case, the trial court was justified in failing to give much weight to this mitigating factor. See State v. Carpenter, C.C.A. No. 03C01-9108-CR-00268 (Tenn.Crim.App., Knoxville, Jan. 23, 1992). Second, the trial judge considered the Appellant's mental and physical condition, but came to the conclusion that it was not an appropriate mitigating factor. The trial judge found that even though the Appellant was diagnosed with pedophilia and an adjustment disorder, he had a functioning intellect and could distinguish between right and wrong and he simply chose "to act on his impulses and gratify himself with a child." Finally, as to the Appellant's contention that the trial judge failed to consider that he did not have a prior criminal record under Tennessee Code Annotated § 40-35-113(13), the trial judge correctly did not consider this as a mitigating factor due to the Appellant's extensive criminal activity in this case. See State v. Scales, C.C.A. No. 01C01-9310-CR-00353 (Tenn.Crim.App., Nashville, July 28, 1994). We find no abuse of the trial court's discretion.
b. The Consecutive Sentencing Claim
Finally, the Appellant contends that the trial court erred in imposing partial consecutive sentences. This issue is without merit.
A defendant convicted of more than one criminal offense may be given consecutive sentences if the trial court finds by a preponderance of the evidence that:
The defendant is convicted of two or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and the victim . . ., the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim. . . .
Tenn. Code Ann. § 40-35-115(b)(5) (1990). Moreover, a consecutive sentence is appropriate if the trial court finds that it is necessary to protect the public from further criminal conduct from the defendant. Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976); see also State v. Taylor, 739 S.W.2d 227 (Tenn. 1987) (adding the child sex offender element to the Gray formula).
Here, the Appellant was convicted of eighteen statutory offenses involving the sexual abuse of a minor. The Appellant, when Mr. B was at work, was placed in a position of trust as to young K and took advantage of the child's vulnerability. The Appellant sexually abused K two to three times a week for approximately five months. The Appellant masturbated, fellated, sodomized, and performed anilingus on K. As a result of these heinous crimes, K has been in therapy for over two years with a social worker and is about to enroll in therapy with a psychiatrist to help him cope with trust and regular heterosexual relationships. Moreover, Dr. Royeka Farooque testified at the sentencing hearing that the Appellant is dangerous to children because he suffers from pedophilia, and because of this syndrome he is attracted to children for sexual gratification. We find no error with regard to the consecutive sentences imposed by the trial court.
Accordingly, all the Appellant's convictions and sentences are affirmed.
__________________________ WILLIAM M. BARKER, JUDGE
CONCUR BY:
(See separate dissenting opinion)
JOHN H. PEAY, JUDGE
(See Separate Concurring Opinion)
DAVID G. HAYES, JUDGE
SEPARATE CONCURRING OPINION
While I concur in the results, I do so for reasons other than those reached by the majority. Accordingly, I write separately addressing the issues of (1) sufficiency of the indictment, and (2) the appellant's due process claims.
First, the majority finds the indictment to be valid, relying upon State v. Marshall, 870 S.W.2d 532, 537 (Tenn.Crim.App. 1993). I also find the indictment valid, however, I find Marshall inapplicable to this case. In Marshall, this court held that the mens rea is an essential element of an offense and, therefore, must be included in the indictment. Id. at 537. Moreover, if the requisite mens rea is implicit in the allegations contained in the indictment, the indictment is adequate. Id. The majority, apparently applying this rational, concludes that the requisite mental states of aggravated sexual battery and rape of a child are "implicitly included in the charging instrument." I respectfully disagree. I would adhere to this court's position in State v. Dison, No. 03C01-9602-CC-00051, (Tenn.Crim.App. at Knoxville, Jan. 31, 1997), in which we held that, when the statute defining the offense charged does not include a specific mental state, it is a general intent crime and does not require the allegation of a specific mental state in the charging instrument. Neither crime of aggravated sexual battery nor rape of a child defines the mental state within the statutory definition of the offenses. This is consistent with the legislative intent because there is no one mental state: either intent, knowledge, or recklessness will suffice to establish the culpable mental state. Tenn. Code Ann. § 39-11-301(c). The majority, by concluding that "intentional" is the requisite mental state for aggravated sexual battery, has improperly placed upon the State a higher burden of proof than is statutorily required. See Tenn. Code Ann. § 39-13-504. Accordingly, I would find that the mental state, in the instant offenses, is not an essential element of these offenses and, therefore, need not be alleged in the indictment.
Second, the appellant contends that his five convictions for aggravated sexual battery should merge with his five convictions for rape of a child. More specifically, the appellant argues that his conduct, which involved rubbing the victim's penis in each instance, was necessarily incidental to the offense of rape and must be viewed as part and parcel of one crime. Admittedly, the appellant's conduct, which furnished the factual basis for the convictions for aggravated sexual battery, immediately preceded the act of rape. The majority analyzes the issue presented under due process principles addressed in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). I find, however, that the issue before us, more appropriately, implicates principles of double jeopardy. Typically, Anthony claims involve factually unrelated offenses, the underlying issue being whether one offense is incidental to the other, e.g. whether kidnapping is incidental to the rape. This is not the situation before us. The question we must resolve is whether the appellant's conduct constitutes, as he claims, only one crime which stems from an indivisible course of conduct, i.e. rape of a child or, as the State claims, two separate and distinct offenses of aggravated sexual battery and rape. If, as the appellant asserts, the conduct constitutes but one offense, then the double jeopardy protection against multiple punishment for the same offense would bar separate punishment for the unlawful sexual contact. See State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996).
As to each occurrence, the victim testified that "[The appellant] would place his hand on my penis and start rubbing, place his mouth on my penis and suck. . . ."
The appellant concedes that his separate convictions for aggravated sexual battery and rape of a child will withstand double jeopardy scrutiny under a Blockburger analysis.
To determine whether the touching of the victim's penis was a necessary act for the completion of the rape or whether the touching was an act discrete and separate from the subsequent rape requires consideration of the following: (1) whether the act was merely committed in preparation or facilitation of the subsequent rape; (2) whether the accused sustained a separate and distinct intent for each act; and (3) whether the legislature intended to proscribe punishment for each separate act. Phillips, 924 S.W.2d at 665. Often times, in cases involving sex offenses, determining whether the act was "prepatory" or "facilitatory" is not easily ascertained. The problem for the trial judge is further compounded by the fact that there is little uniformity on this subject. Generally, if the sexual contact would be considered a part of the rape, e.g., the removal of clothing, the application of lubricant, etc., then the contact is merely "prepatory" and cannot be the basis of a separate conviction. However, the mere probability that an unlawful contact may occur in the same criminal episode as a rape does not render it "prepatory" nor does it insulate the unlawful touching from separate punishment. If the contact was clearly not a part of the rape, but a part of a separate course of conduct, it can be held a separate offense. See People v. Slobodion, 191 P.2d 1, 5 (Cal. 1948).
Furthermore, a distinction exists between sexual contact designed to arouse and that contact solely intended to facilitate the rape. Contact intended to arouse is capable of producing its own attendant fear, humiliation, pain, and damage to the victim. See Phillips, 924 S.W.2d at 665. Each contact requires a purposeful act on the part of the perpetrator committed to seek sexual gratification or inflict abuse. Id. Finally, the statutes at issue serve different purposes. While, as applicable to the instant case, both statutes protect small children, rape of a child is a crime of violence and addresses solely those evils associated with sexual penetration. See Ryion, No. 01C01-9511-CC-00365. Aggravated sexual battery, on the other hand, involves sexual gratification and seeks to punish the prurient impulses of the perpetrator. Id. Clearly, the legislature sought to punish the two as distinct harms for which protection through the criminal law is appropriate. Tenn. Code Ann. § 39-11-101.
Simply because two or more sexual offenses are committed in close proximity to the other does not mean that they may not form the basis for separate convictions. See State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996) (Discrete acts can justify multiple convictions.); Phillips, 924 S.W.2d at 662. Clearly, an offender should not be rewarded, under the pretense of double jeopardy or other constitutionally afforded protections, for repeated acts of deviant behavior upon his victim. The proof in the record establishes that the appellant harbored multiple criminal objectives of aggravated sexual battery and rape and that the sexual contact was not simply prepatory to the rape. The trial judge, in the instant case, observed:
. . . [I]f the facts in this case were that [the appellant] touched a sex organ in order to get the sexual organ to his mouth . . . that was obviously necessary to commit the act. . . .[T]he testimony is that he appears to have began rubbing up and down. Now, that would indicate a separate act of masturbation unrelated to just moving the sex organ to where he could put his mouth on it.
I agree. The unlawful touching of the victim's penis was not merely prepatory to or a means of facilitating the subsequent oral penetration. It was unnecessary for the appellant to "masturbate" the victim in order for him to accomplish the act of fellatio. Thus, the appellant's conduct of "rubbing up and down" constitutes a separate and distinct act from that of rape. For the foregoing reasons, I would affirm the appellant's five convictions for aggravated sexual battery.
____________________________________ DAVID G. HAYES, Judge
DISSENT
I respectfully disagree with the majority's holding that the counts of the indictment alleging rape of a child are constitutionally adequate. The indictment does not meet constitutional muster because it fails to allege the defendant's mens rea, an essential element of the crime. The author of the lead opinion states, "Upon only a cursory reading of the indictment, any person of normal intelligence would realize that the only sound implication of the factual allegations is that these acts were at least reckless, if not knowing or intentional." I contend that the only sound implication of the factual allegations is that these acts were perpetrated without the victim's consent and that they say nothing about the defendant's mens rea.
To begin, I remind my brethren on the Court that one of the stated objectives of our criminal code is to "Give fair warning of what conduct is prohibited, and guide the exercise of official discretion in law enforcement, by defining the act and the culpable mental state which together constitute an offense." T.C.A. § 39-11-101(2) (1991 Repl.) (emphasis added). See also T.C.A. § 39-11-301(b) (1991 Repl.) ("A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a mental element.") The act which is prohibited by the rape of a child statute is unlawful sexual penetration. T.C.A. § 39-13-522(a) (Supp. 1996). The culpable mental state which must have been possessed by the defendant at the time he committed the unlawful sexual penetration is intent, knowledge or recklessness. T.C.A.
§ 39-11-301(c) (1991 Repl). Thus, the factual allegations which must be set forth in an indictment charging rape of a child are that the defendant committed unlawful sexual penetration with intent, knowledge or recklessness.
As noted by the majority, the term "sexual penetration" is legislatively defined as including "any . . . intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body . . ." T.C.A. § 39-13-501(7) (1991 Repl). Unlike the term "sexual contact," T.C.A. § 39-13-501(6), the definition of sexual penetration contains no requirement that the intrusion be intentional. Nor does it require that the penetration be for the purpose of sexual arousal or gratification as does the definition of sexual contact. Id. Thus, as further noted by the majority, the definition of sexual penetration does not include any description of the necessary mens rea. Indeed, one panel of this Court has previously held, "a reference to sexual penetration, as statutorily defined, does not imply the mens rea." State v. Milton S. Jones, Jr, No. 02C01-9503-CR-00061, Shelby County (Tenn.Crim.App. filed Mar. 7, 1997, at Jackson). Rather, the definition of sexual penetration is aimed at describing particular acts, and is broad enough to include completely accidental and totally innocent intrusions: for instance, a mother bathing her infant may find one of her fingers accidentally intruding into the baby's anal opening as she lifts him from the bathwater. Such an intrusion, "however slight," would meet the statutory definition of sexual penetration. The definition also includes intentional intrusions that are clearly lawful. For example, a nurse taking a child's temperature rectally would satisfy the statutory definition of sexual penetration. While there is no question that our legislature did not intend these acts to constitute rape of a child, the plain meaning of the defining statute does encompass them within the rubric of "sexual penetration."
How, then, are we to distinguish between innocent and criminal acts of sexual penetration? The child rape statute proscribes "unlawful" sexual penetration. T.C.A. § 39-13-522(a) (Supp. 1996). Clearly, then, our legislature intended this word to differentiate between child molestation and, for instance, legitimate medical treatment. The differentiation is not based, however, on the defendant's mental state: as seen in the examples above, sexual penetration can occur intentionally, knowingly or recklessly and still be perfectly innocent. Thus, construing the term "unlawful" to imply the requisite state of mind held by the defendant does nothing to distinguish innocent from criminal activity.
I suggest the term "unlawful" should be construed to mean "without consent." Cf. State v. Jones, 889 S.W.2d 225, 227 (Tenn.Crim.App. 1994) ("the term 'unlawful' may generally refer to non-consensual acts"). That is, the crime of rape of a child is committed when the defendant, acting intentionally, knowingly or recklessly, sexually penetrates the child without consent. This meaning would differentiate between innocent and unlawful activity. Because children under the age of thirteen should be conclusively presumed incapable of giving consent to any sexual activity, the actions of a defendant engaging in sexual intercourse with a child would clearly be unlawful. In the temperature-taking scenario, however, the activity would not be unlawful because the child's parent would have consented to the innocent penetration on behalf of the child. This interpretation of the word "unlawful" is bolstered by an examination of the crime of statutory rape: the word "unlawful" is not used. I suggest that it is not used because statutory rape is committed with the child's consent. Thus, the issue of consent — but not the defendant's mens rea — is removed from the elements of the crime by deletion of the term "unlawful."
Another avenue for addressing the consent issue with respect to children under the age of thirteen is to make the defense of consent unavailable where the offense involves such minors. See, e.g., State v. Jones, 889 S.W.2d 225, 227 (Tenn.Crim.App. 1994) ("consent is never a defense to a sex offense when the victim is less than thirteen years of age.")
I would further adopt, if necessary, a conclusive presumption that parents cannot consent on behalf of their children to, for instance, sexual intercourse.
"Statutory rape is 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." T.C.A. § 39-13-506(a) (Supp. 1996).
Victims of statutory rape must be at least thirteen. T.C.A. § 39-13-506(a) (Supp. 1996).
Thus, the term "unlawful" is insufficient to imply the defendant's mens rea. Rather, it describes the victim's state of mind: unwilling or incapable of consenting. And, as set forth above, the term "sexual penetration" is also insufficient to imply the defendant's mens rea. Accordingly, the charge of "unlawful sexual penetration" is sufficient only to allege a nonconsensual intrusion by the defendant into the victim's genital or anal openings (or vice versa). It is not sufficient to allege that the intrusion was made intentionally, knowingly, or recklessly. Therefore, the only sound implication of the factual allegations in the indictment sub judice is that these acts were performed without the victim's consent. A cursory — or even a thorough — reading of the indictment implies nothing about the defendant's state of mind at the time he committed the acts. Because the defendant's mens rea is an essential element of the offense of rape of a child, it must be alleged in the indictment. It has not been alleged in the indictment sub judice. Accordingly, I would hold the indictment in the instant case constitutionally inadequate insofar as it attempts to charge the defendant with rape of a child.
In all other respects, I concur with the majority's opinion.
____________________________________ JOHN H. PEAY, Judge