         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                 STATE OF TENNESSEE v. BENJAMIN BROWN


                    No. W1999-00327-CCA-R3-CD - Filed August 8, 2002
                                    October 24, 2000


                     Appeal from the Criminal Court for Shelby County
                      Nos. 96-13456, 57, Carolyn Wade Blackett, Judge


Coleman W. Garrett, Memphis, Tennessee, for the Appellant, Benjamin Brown.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kim R.
Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, and Jennifer
Nichols, Assistant District Attorney General, for the Appellee, State of Tennessee.

DAVID G. HAYES , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.



                                    OPINION ON REMAND

       This case is before the court upon remand for reconsideration in light of State v. Godsey, 60
S.W.3d 759 (Tenn. 2001). The Appellant was convicted by a Shelby County jury of one count of
felony murder committed in perpetration of aggravated child abuse, Tennessee Code Annotated §
39-13-202(a)(2) and one count of aggravated child abuse, Tennessee Code Annotated § 39-15-402.

         In the direct appeal to this court, we concluded that the Appellant’s dual convictions for
aggravated child abuse and felony murder in the perpetration of aggravated child abuse violated
constitutional protections against double jeopardy. As such, we affirmed the Appellant’s conviction
for felony murder and vacated his conviction for aggravated child abuse. State v. Benjamin Brown,
No. W1999-00327-CCA-R3-CD, (Tenn. Crim. App. at Jackson, Oct. 24, 2000). Subsequent to the
filing of this opinion, the Supreme Court released its decision in Godsey, holding that dual
convictions for felony murder by aggravated child abuse and aggravated child abuse are permissible.
State v. Godsey, 60 S.W.3d at 778. The court noted that the key issue of dual convictions is whether
the legislature has indicated that cumulative punishment is intended. Id. If the legislature has so
indicated, then the double jeopardy analysis need not proceed any further. Id. Moreover, in Godsey,
our supreme court found that aggravated child abuse is not a lesser included offense of felony
murder. Thus, finding that the legislature intended cumulative punishment for both felony murder
and the underlying felony of aggravated child abuse, it concluded that dual convictions for these
offenses were proper. Id.

        The facts as developed in Godsey are virtually identical to those in the case before us. The
Appellant’s argument with regard to double jeopardy focused upon the fact that the circumstances
leading to both convictions arose form a single incident and a single course of conduct. We agree
that the record supports this assertion. The same proof which established his conviction for
aggravated child abuse is the same proof which established his conviction for the underlying felony,
resulting in his felony murder conviction. Neither offense required proof of a fact not required in
proving the other. We find no distinction in these facts from those presented in Godsey. The injuries
to the victim in Godsey, resulting in dual convictions, arose from a single course of conduct.
Medical proof established that there was no sign of older injuries indicative of previous child abuse.
Id. Thus, in accordance with the holding of Godsey, we find that the Appellant’s convictions for
both felony murder committed in the perpetration of aggravated child abuse and aggravated child
abuse are proper. Accordingly, the judgments of conviction entered by the trial court are affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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