          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                        JUNE SESSION, 1996                   FILED
                                                                July 23, 1997

                                                          Cecil W. Crowson
STATE OF TENNESSEE,                 )
                                                        Appellate Court Clerk
                                    )      No. 01C01-9509-CR-00317
       Appellee                     )
                                    )      DAVIDSON COUNTY
vs.                                 )
                                    )      Hon. WALTER C. KURTZ, Judge
WILLIAM HENRY BARNEY,               )
                                    )      (Rape of a Child, Aggravated
       Appellant                    )      Sexual Battery, and Sentencing)




                      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.1 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



        1
         As to each occurrence, the victim testified that "[The appellant] would place his hand on
m y penis and start ru bbing, plac e his m outh on m y penis and suc k . . . ."

                                                 2
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.2 See State v.

Phillips, 924 S.W.2d 662, 664 (Tenn. 1996).



            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



        2
         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.

                                               3
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

                                           4
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




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