           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        JANUARY SESSION, 1997
                                                        July 31, 1997

                                                   Cecil W. Crowson
STATE OF TENNESSEE,         )    C.C.A. NO. 01C01-9603-CC-00108
                                                 Appellate Court Clerk
                            )
      Appellee,             )
                            )
                            )    BEDFORD COUNTY
VS.                         )
                            )    HON. CHARLES LEE
JOEY LEE SMITH,             )    JUDGE
                            )
      Appellant.            )    (Direct Appeal/Rape of a Child)




FOR THE APPELLANT:               FOR THE APPELLEE:

ANDREW JACKSON DEARING, III      JOHN KNOX WALKUP
117 South Main Street            Attorney General and Reporter
Suite 101
Shelbyville, TN 37160            MERRILYN FERRIMAN
                                 Assistant Attorney General
                                 500 Charlotte Avenue
                                 Nashville, TN 37243

                                 MIKE MCCOWN
                                 District Attorney General

                                 ROBERT G. CRIGLER
                                 GARY M. JONES
                                 Assistant District Attorney
                                 Bedford County Courthouse
                                 Shelbyville, TN 37160



OPINION FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
                                               OPINION
           Appellant Joey Lee Smith was found guilty by a Bedford County Circuit

Court jury of one count of rape of a child, six counts of aggravated sexual

battery, one count of sexual battery, and two counts of reckless

endangerment. As a Range I standard offender, Appellant received a

sentence of nineteen years imprisonm ent for rape of a child, nine years

imprisonment for the first count of aggravated sexual battery, nine years

imprisonment for the second count of aggravated sexual battery, ten years for

each of the remaining counts of aggravated sexual battery, one year

imprisonment for sexual battery, and one year imprisonment for each count of

reckless endangerment. The trial court ordered the sentences to be served

concurrently for an effective sentence of nineteen years. On appeal, Appellant

alleges that the evidence was insufficient, as a m atter of law, to support his

sexual offense convictions.



           After a review of the record, we affirm the judgment of the trial court

pursuant to Court of Criminal Appeals Rule 20.



           The evidence submitted at trial and accredited by the jury’s verdict

reveals that the male victim of the rape and aggravated sexual batteries was

age eleven at the time of the crimes.1 Appellant, age twenty-five, and the

victim were friends. The victim first met Appellant when Appellant was the

neighborhood paperboy. In 1993, the victim began his own paper route.

Appellant would help the victim with his paper route by driving him through the


1
    It is the policy of this Court to not reveal the name of minor victims of sexual offenses.

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route. Around April 15, 1994, Appellant showed the victim a document which

he claimed was a will and told the victim that he was leaving everything to the

victim when he died. The victim testified that the sexual abuse began in April

and lasted until August. He explained that every instance of misconduct was

the sam e. According to the victim, he and Appellant would go into Appellant’s

bedroom and Appellant would lay down a sheet or a towel. Then Appellant

“would take my clothes off and would start playing with me and take his

clothes off and would stick his thing between my legs.” The victim would lay

on his stomach while Appellant lay on top of him. Appellant would m ove

around until he ejaculated. Appellant testified to a total of six occurrences. In

addition, in July, Appellant required the victim to perform fellatio on him.



      The male victim of the sexual battery stated that he was sixteen when

he spent the night with Appellant in January 1993. Before the victim went to

bed, he saw a gun in Appellant’s hands and then observed the gun on a

dresser pointed in his direction. Appellant got into bed with the victim and

began running his hands up the victim’s leg. Then Appellant grabbed the

victim’s penis and squeezed it, at which point the victim rolled over and away

from Appellant.



      Rape of a child is “the unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if such victim is less than thirteen (13)

years of age.” Tenn. Code Ann. § 39-13-522 (Supp. 1996). Sexual battery is

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

victim accompanied by any of the circum stances listed in § 39-13-503(a).” Of




                                        -3-
the circumstances listed in Section 39-13-503(a) the State relied upon the

circumstance found at subsection (1) in its prosecution of Appellant for sexual

battery, i.e. force or coercion was used to accomplish the act.



      Aggravated sexual battery is defined at Tennessee Code Annotated

Section 39-13-504 (Supp. 1996) as “unlawful sexual contact with a victim by

the defendant or the defendant by a victim accompanied by any of the

following circumstances:

            (1) Force or coercion is used to accomplish the act
            and the defendant is armed with a weapon or any
            article used or fashioned in a manner to lead the
            victim reasonably to believe it to be a weapon;
            (2) The defendant causes bodily injury to the victim;
            (3) The defendant is aided or abetted by one (1) or
            more other persons; and
                   (A) Force or coercion is used to
                   accomplish the act; or
                   (B) The defendant knows or has reason
                   to know that the victim is mentally
                   defective, mentally incapacitated or
                   physically helpless; or
            (4) The victim is less than thirteen (13) years of age.


The State relied upon subsection (4) in its prosecution of Appellant for

aggravated sexual battery.



      In his brief, Appellant alleges that the evidence submitted at trial was

insufficient, as a matter of law, to sustain his convictions. However, he does

not state which conviction of the ten he challenges. He simply states that the

State failed to prove that he acted knowingly. Since a conviction for reckless

endangerment does not require that Appellant act knowingly, we must




                                       -4-
assume that Appellant challenges only his sexual offense convictions on

sufficiency grounds. See Tenn. Code Ann. § 39-13-103.



      Appellant was convicted on one count of rape of a child, six counts of

aggravated sexual battery, and one count of sexual battery. Each of these

statutes prohibits unlawful sexual penetration or unlawful sexual contact.

Therefore, each of the statutes requires a showing that the defendant acted

intentionally or knowingly. See Tenn. Code Ann. § 39-11-301(c) (1991). A

person acts intentionally “with respect to the nature of the conduct or to a

result of the conduct when it is the person’s conscious objective or desire to

engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).

The Sentencing Commission Comments state “[i]ntentional conduct or an

intentional result occurs when the defendant wants to do the act or achieve

the criminal objective.” A person acts knowingly “with respect to the conduct

or to circumstances surrounding the conduct when the person is aware of the

nature of the conduct or that the circumstances exist.” Tenn. Code Ann. § 39-

11-302(b). The Sentencing Commission Comments state “[a] defendant acts

knowingly . . . when he or she is aware of the conduct or is practically certain

that the conduct will cause the result, irrespective of his or her desire that the

conduct or result will occur.”



      The evidence presented at trial revealed that in practically every

instance of misconduct, Appellant would lay a sheet or towel down on the floor

of his bedroom, take off the victim’s clothes, take off his clothes, and then lay

on top of the victim who would be on his stomach. Then Appellant would




                                        -5-
move around until he ejaculated. On one occasion, Appellant forced the

victim to perform fellatio on him. The second victim testified that Appellant got

into bed with him and began running his hand up his leg. Appellant then

squeezed the victim’s penis. Based on the foregoing evidence, it is clear that

Appellant both intentionally and knowingly touched or penetrated the victims in

a sexual manner. Accordingly, we affirm the convictions and sentences

pursuant to Court of Criminal Appeals Rule 20.




                                ____________________________________
                                JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOE G. RILEY, JUDGE




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