         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE           FILED
                      JANUARY 1998 SESSION          March 23, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk



STATE OF TENNESSEE,      )
                         )
         Appellee,       )       C.C.A. No. 03C01-9708-CC-00344
                         )
v.                       )       Sevier County
                         )
HAROLD LEON SUTTON, JR., )       Hon. Rex Henry Ogle, Judge
                         )
         Appellant.      )       (Aggravated Sexual Battery)




FOR THE APPELLANT:               FOR THE APPELLEE:

EDWARD C. MILLER (appeal)        JOHN KNOX WALKUP
District Public Defender         Attorney General & Reporter
P.O. Box 416
Dandridge, TN 37725              SANDY C. PATRICK
                                 Assistant Attorney General
ALAN FELTES (trial)              450 James Robertson Pkwy.
Attorney at Law                  Nashville, TN 37243-0493
159 W. Main St.
Sevierville, TN                   ALFRED C. SCHMUTZER, JR.
                                  Dist. Attorney General

                                  STEVEN R. HAWKINS
                                  Asst. Dist. Attorney General
                                  Sevier County Courthouse
                                  Sevierville, TN




OPINION FILED: _____________


AFFIRMED


CURWOOD WITT, JUDGE
                                      OPINION

               The defendant, Harold Leon Sutton, Jr., appeals from his conviction

of the crime of aggravated sexual battery. Sutton was found guilty by a jury of his

peers in the Sevier County Criminal Court. He is presently serving a nine year

sentence in the Department of Correction. In this direct appeal, he asks this court

to grant relief on two issues:

       1.      Whether the indictment was fatally deficient because it did not
               allege a culpable mens rea, thereby depriving the trial court of
               jurisdiction.

       2.      Whether the sentence imposed is supported by the record.

Following a review of the record and briefs of the parties, we affirm the judgment of

the trial court.



                                           I

               The defendant's conviction stems from an incident in which the

defendant took the hand of a six-year-old child and used it to touch his genitals.

The indictment returned by the Sevier County Grand Jury charged that on a

specified date he "did unlawfully, and feloniously have sexual contact by a victim,

to wit: [name of victim], a child less than thirteen (13) years of age, with defendant's

intimate parts, contrary to Tennessee Code Annotated 39-13-504 . . . ."



               Sutton claims, based upon State v. Roger Dale Hill, Sr., No. 01C01-

9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996), that the indictment

is defective because it fails to allege a culpable mens rea.            Following the

defendant's submission of his brief to this court, the supreme court reversed this

court's decision in Roger Dale Hill. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997).

Accordingly, our resolution of this issue is guided by the supreme court's

pronouncement in Hill.



               The Sentencing Reform Act of 1989 requires a culpable mental state

in order to establish an offense unless the statutory definition of the crime "plainly

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dispenses with a mental element." Tenn. Code Ann. § 39-11-301(b) (1997). The

question raised in Hill is whether a charging instrument which charges a crime that

by its statutory terms does not expressly require or plainly dispense with a culpable

mental state is sufficient without explicitly alleging a culpable mens rea. Hill, 954

S.W.2d at 726.     The supreme court said that such a charging instrument is

nevertheless sufficient to support prosecution where

       (1)    the language of the indictment is sufficient to meet the
       constitutional requirements of notice to the accused of the charge
       against which the accused must defend, adequate basis for entry of
       a proper judgment, and protection from double jeopardy;

       (2)  the form of the indictment meets the requirements of Tenn.
       Code Ann. § 40-13-202; and

       (3)    the mental state can be logically inferred from the conduct
       alleged.

Hill, 954 S.W.2d at 726-27.



              Our task is to determine whether the indictment in the case at bar

meets the Hill requirements for the crime of aggravated sexual battery, which "is

unlawful sexual contact with a victim by the defendant or the defendant by a victim

accompanied by any of the following circumstances: . . . The victim is less than

thirteen (13) years of age." Tenn. Code Ann. § 39-13-504(a)(4) (1997). "Sexual

contact" is defined elsewhere in the Criminal Code as including "the intentional

touching of the victim'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(7) (1997).



              The indictment in this case closely follows the statutory language

describing the crime. It complies with the statutory form by stating 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, and with that degree of certainty which will enable the court,

on conviction, to pronounce the proper judgment . . . ." See Hill, 954 S.W.2d at 728;

Tenn. Code Ann. § 40-13-202 (1997). Further, it is adequate to protect the


                                          3
defendant from double jeopardy.



              Evaluation of the requisite mental state requires more analysis. The

crime of aggravated sexual battery involving a child less than thirteen years of age

has two elements: (1) sexual contact, and (2) a victim less than thirteen years old.

Tenn. Code Ann. § 39-13-504(a) (4). This court has previously observed that the

mens rea for sexual contact is intentional, as provided in the definition of sexual

contact found in Code section 39-13-501(6) (1997), and the mens rea for the

victim's age is intentional, knowing, or reckless, as defined by Code section 39-11-

301(c).1 See, e.g., Roger Lee Kimmel v. State, No. 02C01-9701-CR-00006, slip

op. at 7 (Tenn. Crim. App., Jackson, Jan. 12, 1998) (Wade, J., concurring), appl. for

perm. app. filed (Tenn., Feb. 24, 1998); State v. Howard, 926 S.W.2d 579 (Tenn.

Crim. App. 1996); State v. Parker, 887 S.W.2d 825 (Tenn. Crim. App. 1994).



              We find the language of the indictment adequately supplies the mens

rea. This court has held that use of the phrase "sexual contact" does "necessarily

imply an intentional touching" of the victim. State v. Milton S. Jones, Jr., No. 02C01-

9503-CR-00061, slip op. at 5 (Tenn. Crim. App., Jackson, March 7, 1997), appl. for

perm. app. filed (Tenn. May 6, 1997); see also State v. John James, No. 01C01-

9601-CR-00016, slip op. at 19-20 (Tenn. Crim. App., Nashville, March 27, 1997).

Inclusion of the words "sexual contact" in the indictment necessarily implies an

intentional mens rea for this element of the crime. Milton S. Jones, Jr., slip op. at

5; John James, slip op. at 19. But see Roger Lee Kimmel, slip op. at 4("The phrase

'sexual contact' infers no mental state."). As to the second element of the crime,

Code section 39-11-301(c) supplies the necessary mens rea of intentional, knowing

or reckless. See State v. James Dison, No. 03C01-9602-CC-00051, slip op. at 12-

18 (Tenn. Crim. App., Knoxville, Jan. 31, 1997) (Jones, P.J., and Dender, Sp.J.,

concurring), perm. app. denied (Tenn. 1997).

       1
          Code section 39-11-301(c) provides, "If the definition of an offense within
this title does not plainly dispense with a mental element, intent, knowledge or
recklessness suffices to establish the culpable mental state." Tenn. Code Ann.
§39-11-301(c) (1997).

                                          4
              We find the indictment sufficient.



                                          II

              In his second issue, Sutton challenges the propriety of the trial court's

sentencing determination. He claims the court failed to consider the principles of

sentencing on the record, erroneously applied non-statutory enhancement factors,

failed to apply a mitigating factor, and failed to rely on a presentence report. The

state defends the trial court's findings and sentencing determination.



              In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption

that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1997). This presumption is "conditioned upon the 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). In conducting

our de novo review, we must consider the evidence at sentencing, the presentence

report, the sentencing principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics of the offense, any mitigating and

enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code

Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal,

the appellant has the burden of showing the sentence imposed is improper. Tenn.

Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby, 823

S.W.2d at 169.



              In the case at bar, the defendant fails to carry that burden. The record

reflects that the court followed the statutory procedure, although it could have been

more elaborative in announcing its consideration of the principles of sentencing on

the record or in a sentencing order. We find no fault with the trial court's failure to

rely on a presentence report. Defense counsel made the following statement at the

sentencing hearing, "I never formally requested a presentence report. We'll waive



                                          5
it." (emphasis added) We do not condone this shortcut in sentencing, as it is

contrary to the statutory procedure. See Tenn. Code Ann. §§40-35-205(a), 40-35-

210(b), (g) (1997). Notwithstanding, we decline the defendant's request for relief

on this basis, as he created his own predicament both by failing to object at the

appropriate time, and by inviting the court to do the very thing of which he now

complaints. See Tenn. R. App. P. 36(a); State v. Richard Douglas Lowery, No.

03C01-9604-CC-00146, slip op. at 6-8 (Tenn. Crim. App., Knoxville, May 19, 1997);

appl. for perm. app. filed (Tenn., July 17, 1997).2



              Further, we find no fault with the court's application of one

enhancement factor. The court applied factor (15), abuse of a position of private

trust. See Tenn. Code Ann. § 40-35-114(15) (1997). The defendant conceded the

applicability of this factor at the sentencing hearing. He claims the court erred in

applying a non-statutory enhancement factor based upon the court's comments,

"The court thinks that he should be enhanced somewhat because he is the father

of this child. He committed this act upon his own child." The next sentence spoken

by the court (which the defendant has omitted from his argument on this issue) is,

"He used that relationship as a means of committing this crime and therefore the

Court sentences Mr. Sutton to nine years." Taken in context, the challenged


       2
        The present case and Richard Douglas Lowery come to this court from
the same district. These cases, as well as other cases from that district reviewed
by this court indicate a custom of utilizing a "Specific Data Report" in lieu of a
presentence report. The present case is similar to Richard Douglas Lowery in
that the record "evinces a waiver . . . pressed to the point of estoppel." Richard
Douglas Lowery, slip op. at 7. We stated in Richard Douglas Lowery,

       We do not encourage trial counsel and trial courts to embark upon
       sentencing hearings in the absence of presentence reports. We
       view the legislature’s mandate as expressed in Tennessee Code
       Annotated § § 40-35-205(a) and 210 (b), (g) to be well reasoned.
       Certainly, the use of the presentence report better enables the trial
       court to carry out the purposes of the sentencing law, and
       moreover, the presence of the report in the record is necessary for
       de novo appellate review.

Richard Douglas Lowery, slip op. at 8. In the present case, we reach the same
result in Richard Douglas Lowery because of the waiver-qua-estoppel and also
because the sentencing hearing in the present case was held before the opinion
in Richard Douglas Lowery was filed. However, we will be less inclined in the
future to allow what amounts to a stipulated departure from a statutory mandate.

                                          6
statement is nothing more than the court's discussion of the applicability of factor

(15); it is not evidence that the court applied a non-statutory enhancement factor.



              Likewise, we find no fault with the trial court's decision not to apply

mitigating factor (1), that the defendant's conduct neither caused nor threatened

serious bodily injury. See Tenn. Code Ann. § 40-35-113(1) (1997). We infer from

the facts in evidence that the victim has suffered psychological trauma as a causal

result of the defendant's actions. This court has observed that the phrase "serious

bodily injury" in mitigating factor (1) includes psychological injury. See, e.g., State

v. James Cordell Johnson, No. 02C01-9604-CC-00127, slip op. at 12 (Tenn. Crim.

App., Jackson, Dec. 3, 1997) (psychological injury), appl. for perm. app. filed (Tenn.,

Jan. 28, 1998); State v. Smith, 910 S.W.2d 457, 461 (Tenn. Crim. App. 1995)

(pregnancy and psychological injury).          The defendant has not overcome the

presumptive correctness of the trial court’s election not to apply mitigating factor (1).



              Finding no deficiency in the indictment nor shortcoming in the

sentencing procedure, we affirm the judgment of the trial court.




                                                    ____________________________
                                                    CURWOOD WITT, JUDGE




CONCUR:



______________________________
GARY R. WADE, JUDGE



_______________________________
JOSEPH M. TIPTON, JUDGE




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