           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                              AT KNOXVILLE                      July 20, 1999

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



STATE OF TENNESSEE,                *    No. 03C01-9810-CC-00360

      Appellee                     *    BLEDSOE COUNTY

V.                                 *    Hon. J. Curtis Smith, Judge

ROBERT S. VASSER                   *    (Aggravated Sexual Battery)

      Appellant.                   *


For Appellant                           For Appellee

B. Jeffery Harmon                       Paul G. Summers
Assistant Public Defender               Attorney General and Reporter
P.O. Box 220                            425 Fifth Avenue North
Jasper, TN 37347                        Nashville, TN 37243-0493

                                        Ellen H. Pollack
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        Will Dunn
                                        Assistant District Attorney General
                                        First American National Bank
                                        Dayton, TN 37321


OPINION FILED:



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                              OPINION

                  The appellant, Robert S. Vasser, was convicted in the Circuit Court of

Bledsoe County of the aggravated sexual battery of two young girls, ages eight and

ten. The trial court imposed concurrent sentences of eight years and nine months in

the Tennessee Department of Correction. The sole issue raised on appeal is

whether the trial court erred by instructing the jury pursuant to Tenn. Code. Ann. §

40-35-201 (Repealed, May 18, 1998), the “truth in sentencing” statute. Following a

thorough review of the record and the parties’ briefs, we affirm the judgment of the

trial court.



                                       Factual Background

                  On November 25, 1996, a Bledsoe County Grand Jury indicted the

appellant for one count of rape of SM and one count of aggravated sexual battery of

her sister, SB.1 The appellant’s case proceeded to trial on December 9, 1997. At

trial, the proof established that the appellant and his girlfriend were renting a

recreational vehicle (RV) from the victims’ parents at the time of the offenses. The

appellant and his girlfriend lived in the RV, which was parked adjacent to the victims’

home. They ate meals with the victims’ family and assisted with household chores,

including occasionally babysitting the children. Both SM and SB testified at trial that,

on one evening as they lay in bed, the appellant entered their bedroom and hugged

each of them. As the appellant hugged the children, he placed his hand inside their

underwear and touched their genitalia. The appellant testified at trial and denied

touching the children aside from hugging them.



                   As to the charge of rape of SM, the trial court instructed the jury on the



        1
            Pursuant to this Court’s policy, the minor victims will be referred to only by their
initials.

                                                   2
lesser offenses of aggravated sexual battery and attempt to commit aggravated

sexual battery. As to the charge of the aggravated sexual battery of SB, the trial

court instructed the jury on the lesser offense of attempted aggravated sexual

battery. Additionally, the trial court delivered the following instruction to the jury:

              The jury will not attempt to fix any sentence. However,
              you may weigh and consider the meaning of a sentence
              of imprisonment. The range of punishment for the
              crimes herein involved are as follows:

              Rape of a child is a Class A felony which is punishable
              upon conviction by confinement in the Department of
              Corrections for a term of years of not less than 15 nor
              more than 25 which term shall be served in its entirety. . .

              Aggravated sexual battery is a Class B felony which is
              punishable upon conviction by confinement in the
              Department of Corrections for a term of years of not less
              than eight nor more than twelve which term shall be
              served in its entirety. . . .

              Criminal attempt to commit aggravated sexual battery is
              a Class C felony which is punishable upon conviction by
              confinement in the Department of Corrections for a term
              of years not less than three nor more than six years. . . .

              You are further informed that the minimum number of
              years a person sentenced to imprisonment for these
              offenses must serve before reaching the earliest release
              eligibility date is:

              On rape of a child and aggravated sexual battery. A
              person convicted of these offenses shall serve the entire
              sentence imposed by the court undiminished by any
              sentence reduction credits such person may be eligible
              for or earn. A person convicted of these offenses shall
              not be eligible for parole or release prior to service of the
              entire sentences imposed by the court.

              Criminal attempt to commit aggravated sexual battery,
              the minimum number of years a person is sentenced
              during imprisonment for this offense must serve, before
              reaching earliest release eligibility date is 36% of three
              years.

              Whether a defendant is actually released from
              incarceration on the date when first eligible for release is
              a discretionary decision made by the Board of Parole
              and is based on many factors. The Board of Parole has
              the authority to require a defendant to serve the entire
              sentence imposed by the Court.

                                             3
As noted earlier, the jury convicted the appellant of two counts of aggravated sexual

battery.



                                       Analysis

              The appellant contends that the trial court erred by instructing the jury

on the release eligibility dates applicable to the charged offenses and the lesser

offenses. The appellant argues that the instruction in this case is distinguishable

from the instruction in State v. King, 973 S.W.2d 586 (Tenn. 1998), and therefore

violated the appellant’s rights under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and Article I, Section 8 of the

Tennessee Constitution.



              Initially, we note that, in a motion dated December 9, 1997, the

appellant asked the trial court pursuant to the truth in sentencing statute “to charge

the jury on the possible penalties for the offense charged and all lesser included

offenses.” However, the language requested by the defense attorney omitted

information concerning the release eligibility percentages of aggravated sexual

battery and attempt to commit aggravated sexual battery. At the close of the State’s

proof, defense counsel explicitly objected to any instruction concerning the release

eligibility percentage of attempt to commit aggravated sexual battery.



              We conclude that the trial court’s instruction, delivered in accordance

with Tenn. Code. Ann. § 40-35-201(b)(2), was consistent with principles of due

process. In King, 973 S.W.2d at 586, our supreme court stated that deference

should be given to the legislature’s determination that the sentencing information set

forth in Tenn. Code Ann. § 40-35-201(b)(2) is relevant. Id. at 591. Noting that the

jury had been properly instructed on the State’s burden of proof and instructed that it


                                           4
could not fix punishment for the offense, the court concluded that no due process

violation had occurred. Id. at 592.



               Similarly, the jury in this case was properly instructed that the State

must prove each element of the charged offense beyond a reasonable doubt. The

jury was also instructed that it was not to attempt to fix punishment for the offense.

We have no reason to suspect that the jury failed to heed the instructions of the trial

court. Id. See also State v. Bankston, No. 03C01-9608-CR-00302, 1999 WL 49897,

at *16 (Tenn. Crim. App. at Knoxville, February 4, 1999); State v. Green, No. 01C01-

9706-CR-00223, 1998 WL 708915, at *27 (Tenn. Crim. App. at Nashville, October

12, 1998), perm. to appeal denied, (Tenn. 1999); State v. Nichols, No. 01C01-9704-

CR-00158, 1998 WL 468638, at **13-14 (Tenn. Crim. App. at Nashville, August 12,

1998), perm. to appeal granted, (Tenn. 1999); State v. Nelson, No. 01C01-9707-

CR-00237, 1998 WL 557558, at **4-5 (Tenn. Crim. App. at Nashville, August 27,

1998).



               We acknowledge that the trial court in this case did not instruct the

jury, as the trial court did in King, that it was providing the release eligibility

percentages for the jury’s information only. We further acknowledge that, in contrast

to the cases cited above, some members of this court have held that a jury

instruction on release eligibility percentages which permits the jury to “weigh and

consider the meaning of a sentence of imprisonment,” and does not contain the “for

your information only” language included in King, violates due process. State v.

Weiskopf, No. 02C01-9611-CR-00381, 1998 WL 840000, at **3-4 (Tenn. Crim. App.

at Jackson, December 4, 1998). See also Nichols, No. 01C01-9704-CR-00158,

1998 WL 468638, at *15 (Wade, J., concurring); Nelson, No. 01C01-9707-CR-

00237, 1998 WL 557558, at *5 (Wade, J., concurring). This issue has been a


                                              5
divisive one for this court. Green, No. 01C01-9706-CR-00223, 1998 WL 708915, at

*25.



              Without deciding this dispute, which is currently before our supreme

court, we conclude that any error was harmless. We agree with the State that the

only possible prejudice to the appellant was the jury’s failure to find the appellant

guilty of attempt to commit aggravated sexual battery with respect to both counts of

the indictment. However, the record is devoid of any evidence of this lesser offense.

Rather, the proof at trial either supported a conclusion that the petitioner committed

aggravated sexual battery or supported a conclusion that the appellant is entirely

innocent. The appellant’s contention is without merit.



                                    III. Conclusion

              For the foregoing reasons, we affirm the judgment of the trial court.




                                                         Norma McGee Ogle, Judge




CONCUR:



Gary R. Wade, Presiding Judge



Cornelia A. Clark, Special Judge




                                           6
