            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                        FILED
                                  AT KNOXVILLE                          July 23, 1999

                                                                   Cecil Crowson, Jr.
                                 MAY 1999 SESSION                  Appellate C ourt
                                                                       Clerk




JERRY W. BURTON,                      )
                                      )    C.C.A. No. 03C01-9809-CR-00340
      Appellant,                      )
                                      )    Johnson County
v.                                    )
                                      )    Honorable Lynn W . Brown, Judge
STATE OF TENNESSEE,                   )
                                      )    (Habeas Corpus)
      Appellee.                       )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Jerry W. Burton, pro se                    Paul G. Summers
#086470                                    Attorney General & Reporter
Northeast Correctional Complex
P. O. Box 5000                             Ellen H. Pollack
Mountain City, TN 37683                    Assistant Attorney General
                                           425 Fifth Avenue North
                                           Nashville, TN 37243




OPINION FILED: ___________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                        OPINION



       The defendant, Jerry W. Burton, has filed a petition for writ of habeas corpus,

alleging that his convictions are void because no elements of the offenses for which he was

convicted occurred in Hawkins County, Tennessee, where he was prosecuted. Based

upon our review of this matter, we affirm the holding of the trial court in dismissing his

petition for writ of habeas corpus.



       The opinion of this Court in Jerry Wesley Burton v. State, [no number in original],

Hawkins County, slip op. at 1 (Tenn. Crim. App., Knoxville, July 9, 1985) set out the history

of prior post-conviction attacks filed by the defendant. According to that opinion, the

defendant entered guilty pleas to the various charges against him and later filed a series

of petitions for post-conviction relief, his third such petition resulting in the 1985 opinion

which upheld the decision of the trial court in dismissing that petition. The charges to

which the defendant entered guilty pleas are set out in Jerry W. Burton v. State, No.

03C01-9704-CR-00122, 1998 WL 135512, at *1 (Tenn. Crim. App., Knoxville, March 26,

1998), perm. app. denied (Tenn. 1998). In the charges against him in Hawkins County,

the defendant entered guilty pleas to the offenses of criminal sexual conduct first degree,

assault with intent to commit murder, kidnapping, and armed robbery and was sentenced

to life imprisonment plus twenty-four years. In his petition, the defendant attacked each

of these convictions, but in his initial brief and his reply brief filed with this Court in support

of his petition, he has argued only that the conviction for criminal sexual conduct first

degree is void because it was prosecuted in the wrong county. However, since the

defendant first attacked all of his convictions on the same basis, we will presume that he

did not intend to waive this argument by not raising it in his two appellate briefs.



       Exhibit B to the petition is a partial transcript of the preliminary hearing for the

charges then pending against him on May 31, 1979, in the Hawkins County General

Sessions Court. Counsel for the co-defendant argued that Hawkins County was not the

appropriate venue for prosecution of the criminal sexual conduct first degree charge


                                                2
against the defendant because all of the elements of that offense occurred in Hamblen

County.



       Exhibits C and D to the petition are handwritten, notarized statements given by the

two victims. The statement of the male victim describes in some detail how the two

defendants held knives to his and the female victim’s throats, as the four of them were in

the male victim’s automobile in Hawkins County. 1 One of the defendants stated that the

victims would be “cut” if they did not cooperate with the two defendants. In her notarized

statement, the female victim said that, shortly after the initial encounter, as the victims and

the defendants were in the male victim’s automobile in Hawkins County, the defendant

known as “Jerry” put a knife to her throat, and both defendants told the victims they would

not be hurt if they cooperated. Thus, while still in Hawkins County, the defendants had

taken control of both victims, putting both in fear and depriving both of their liberty. The

defendants took the victims to Hamblen County, where the female victim was raped, and

then returned the victims to Hawkins County, throwing both off a bridge and into a river.

Later, the defendants were apprehended; and, according to Exhibit A to the petition, the

defendant was found guilty of the offenses of criminal sexual conduct first degree, armed

robbery, kidnapping, and assault with intent to commit murder.



       Based upon these facts and convictions, the defendant claims that he should not

have been prosecuted in Hawkins County since, according to his petition, all of the

elements of criminal sexual conduct first degree occurred in Hamblen County.



       As the State’s brief correctly contends, the Tennessee Rules of Criminal Procedure,

which were in effect at the time of the offenses of which the defendant was convicted, set

out the venue for prosecution of offenses or criminal episodes occurring in more than one

jurisdiction.




       1
        The male victim, at some point, recognized the defendant, Jerry W. Burton, for they had
attended elementary school together. The two defendants had been allowed into the automobile
of the male victim after the defendants approached and asked for a ride, claiming that their car was
broken and they needed a ride to their home.

                                                 3
       Rule 8(a), regarding mandatory joinder of offenses, provides that multiple offenses

shall be joined “if the offenses are based upon the same conduct or arise from the same

criminal episode. . . .” Rule 8(b), regarding permissive joinder, allows offenses to be joined

if they “constitute parts of a common scheme or plan or if they are of the same or similar

character.” Since the two victims were controlled by the defendants from the time that

knives were put to the victims’ throats in Hawkins County until they were thrown from a

bridge in Hawkins County, after the rape had occurred in Hamblen County, the four

offenses were both based “upon the same conduct” and arose “from the same criminal

episode,” allowing them to be joined in a single prosecution.2 Thus, it is clear that the

prosecution of these four offenses properly occurred in a single forum, that being Hawkins

County.



       Rule 18(b), Tennessee Rules of Criminal Procedure, sets out the venue provisions

for prosecution of criminal offenses. It provides, in pertinent part, “If one or more elements

of an offense are committed in one county and one or more elements in another, the

offense may be prosecuted in either county.”



       Criminal sexual conduct first degree, for which the defendant was convicted, is set

out in Chapter 937 of the Public Acts of 1978. Among the elements of the offense are that

the actor use a weapon “to force or coerce the victim to engage in sexual penetration.” If

any of these elements occurred in Hawkins County, the defendant was properly prosecuted

there for this offense.



       Although the defendant has contended that no elements of the offense of criminal

sexual conduct first degree occurred in Hawkins County, this is not the case. As previously

discussed, both victims stated in their affidavits that the defendants put knives to their


       2
         The Advisory Commission Comments to Rule 8 explain the reasons for the
mandatory/permissive provisions of the rule. It is designed, according to the Comments, “to
encourage the disposition in a single trial of multiple offenses arising from the same conduct and
from the same criminal episode, and should therefore promote efficiency and economy.” It is
further intended, according to the Comments, that the rule will stop the practice of “saving back”
one or more charges which are part of the same episode for which a defendant is being
prosecuted. If there is a “saving back” of a charge or charges, they are barred from being
prosecuted after the first trial.

                                                4
throats while still in Hawkins County, where one defendant also told the victims that they

would be cut if they did not cooperate.



       It is apparent from the statement of the female victim that, after the defendants had

put knives to the victims’ throats and threatened to cut them unless they cooperated, force

and coercion continued throughout the episode to control the victims. She stated that the

defendant called “Jerry” hit the male victim with his fist, pulled his hair, and threatened to

kill them both if they did not cooperate. While the victims and the defendants were in

Hamblen County, “Jerry” ripped the clothes off the female victim after she refused to

disrobe. She was then raped by “Mark,” while “Jerry” held and struck the male victim when

she refused to cooperate. According to her statement, “Jerry” also kicked her in the head.



       The facts of this case are similar to those of State v. Davis, 872 S.W.2d 950 (Tenn.

Crim. App.), perm. app. denied (Tenn. 1993), in which a rape victim was kidnapped at

gunpoint from the parking lot of a grocery store in Blount County, Tennessee, and driven

away in her own car by one of her abductors. She was later raped multiple times and then

driven to North Carolina, where she was again raped. The defendants claimed that the

prosecution had not proven that Blount County was the proper venue for prosecuting the

aggravated rape and aggravated robbery charges. In disposing of these contentions, the

Court stated:

                    The record demonstrates that elements of both of the
                offenses of aggravated rape and aggravated robbery first
                occurred in Blount County where force and coercion were used
                by the appellants to obtain entry into the victim’s vehicle and
                take her away. With regard to the offense of aggravated
                robbery, appellant Davis entered the vehicle with a deadly
                weapon. With regard to the offense of aggravated rape, the
                force and coercion began at this point. In addition, appellant
                Davis and appellant Tipton aided and abetted each other and
                used force in beginning this series of offenses in Blount County
                at the Red Food Store. Accordingly, since an element of the
                crimes occurred in Blount County, venue was proper in Blount
                County.

Davis, 872 S.W.2d at 953.



       In this case, the defendant and his co-defendant entered the victims’ automobile in



                                               5
Hawkins County, where each put a knife to the throat of a victim, and one of the

defendants stated that the victims would be cut if they did not cooperate. By this means,

both victims were under the control of the defendants beginning in Hawkins County,

although the rape occurred in Hamblen County. Thus, in Hawkins County, the defendants

first used their knives to threaten the two victims and to force or coerce the female victim

to engage in sexual intercourse. Accordingly, the joinder provisions of Rule 8, Tennessee

Rules of Criminal Procedure aside, the charge of criminal sexual conduct first degree could

have been prosecuted in either Hawkins County where the force and coercion necessary

to accomplish the rape first occurred, or in Hamblen County where the rape actually

occurred.



       It is clear that a multi-county criminal episode such as this, resulting in several

related criminal charges, is precisely that envisioned by Rule 8, Tennessee Rules of

Criminal Procedure, providing that all charges resulting from the incident should be

prosecuted in a single trial and Rule 18, allowing a criminal offense to be prosecuted in

any county in which one of its elements occurred. In fact, if the defendant’s theory were

correct, it seems likely that he would have been faced with prosecutions in both Hawkins

and Hamblen Counties, each trial involving the same witnesses and the same proof. In

such trials, the prosecution could be expected to prove not only the facts necessary for the

charge(s) being prosecuted in that county, but, also, the facts of the crimes occurring in the

other county. Thus, there are both legal and practical reasons that all such charges are

prosecuted in a single trial in one venue.



       Based upon the foregoing, the judgment of the trial court is affirmed.




                                           ________________________________________
                                           ALAN E. GLENN, JUDGE




                                              6
CONCUR:




____________________________________
JAMES CURWOOD WITT, JR., JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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