       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE           FILED
                      FEBRUARY SESS ION, 1997     October 21, 1997

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk

STATE OF TENNESSEE,          )      C.C.A. NO. 03C01-9606-CC-00222
                             )
         Appellee,           )
                             )      BLOUNT COUNTY
                             )
V.                           )
                             )      HON . D. KEL LY TH OM AS, JR.,
CHRISTOPHER ALLEN BERNSTEIN, )      JUDGE
                             )
         Appe llant.         )      (RAPE)




FOR THE APPELLANT:                   FOR THE APPELLEE:

ROBERT M. COHEN                      JOHN KNOX WALKUP
Attorney at Law                      Attorney General & Reporter
303 High Street
Maryville, TN 37804                  TIMO THY F . BEHAN
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     MICHAEL L. FLYNN
                                     District Attorney General

                                     KIRK E. ANDREWS
                                     Assistant District Attorney General
                                     363 C ourt Stree t
                                     Maryville, TN 37804-5906


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                OPINION

       The Defendant, Christopher Allen Bernstein, appeals as of right pursuant

to Rule 3 of the Tennessee Rules of Appellate Procedure. The B lount Co unty

Grand Jury returned an indictment charging Defendant with rape. Pursuant to a

plea agreem ent, he pled gu ilty to the charge and received an agreed sentence

of eight (8) years as a Range I Standard Offender.            As part of the plea

agreem ent, Defendant was afforded a sentencing hearin g for the trial co urt to

determine the manner of service of the sentence.           The trial court ordered

Defendant to serve the entire sentence in the Depa rtmen t of Co rrection . In this

appe al, Defendant raises two issues: (1) He ar gues that the convic tion sh ould

be reversed and the charges dismissed because the indictment fails to allege the

mens rea, and (2) he argues the trial court erred in ordering him to serve his

entire sentence in the Department of Correction. We affirm the judgment of the

trial court.



       The record reflects that the Defendant committed the offense of rape on

or about June 30, 1995. He was residing with his mother and father at the time.

Since it is the policy of this court to not mention the names of minor victims of

sexual abuse crimes, we will refer to the victim as T H. TH w as thirteen (13) yea rs

old at the time of the offense and had be en residin g with her mothe r prior to

moving in with the Defendant and his family. Defendant w as twenty-eight (28)

years old at the tim e of the offe nse. TH ’s IQ had b een e valuated as low as 46

and experts had d etermined that her men tal age was ap proximately six years

old. Defendant had known TH’s family for several years. They bega n datin g in



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May 1995. Although the Defendant admitted that he realized TH was “slow” and

was taking some special academic classes, he claimed not to know that she was

men tally retarded. Due to the fact that TH’s mother did not want her to reside at

home, the Defe ndant’s p arents inv ited TH to live with the D efenda nt’s family. In

approxim ately June of 1995, Defendant and TH began having sexual relations

which included sexual intercourse and digital penetration. TH became pregnant

and evidently gave birth to a ch ild in January 1996. It is not clear from the record

whether or not Defendant was the father of this child.



                           I. SUFFICIENCY OF INDICTMENT



      Defendant argue s that th e indic tmen t is fatally defective and insufficient for

failing to allege any mens rea. He relies upon a decision of a p anel of this court

which held that the indictment in that case was invalid for failing to allege a mens

rea where the defendant was charged and convicted of aggrava ted rape . See

State v. Rog er Da le Hill, No. 01C01-9508-CC-00267, Wayne County (Tenn.

Crim. A pp., Nas hville, June 20, 199 6), perm. to appeal granted (Tenn . 1997).



      The indictment in the case sub judice alleges in p art that the D efenda nt:

      [O]n or about June, 1995, in Blount County, Tennessee, and before
      the finding of this indictme nt, did unla wfully sexu ally penetra te [TH],
      knowing at the time or having reason to know at the time that the
      said [TH] was, m entally defective, mentally incapacitated or
      physic ally helpless in violation of Tennessee Code Annotated § 39-
      13-503 , . . . .

      It is well-settled that the purpose of the indictmen t is to give notice to the

defendant of the crime he must d efend a t trial. State v. Hughes, 212 Tenn. 644,

647, 371 S.W.2d 445, 447 (1962). An indictment or presentment must provide


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notice of the offense charged, an adequate basis for the entry of proper judgment

and suitable p rotection a gainst do uble jeop ardy. State v. T rusty, 919 S.W.2d

305, 309 (T enn. 19 96); State v. B yrd, 820 S.W .2d 739 , 741 (T enn. 19 91). A

lawful accusation is an essential jurisdictional element, thus, a prosecution

cannot proceed without an indictment that sufficiently informs the accused of the

essential eleme nts of the o ffense. State v. Perkinson, 867 S.W.2d 1, 5 (Tenn.

Crim. App. 1992 ); State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App.

1979).



         Tennessee Code Annotated section 39-13-503 states in part that rape:

         is the unlawful sexual penetration of a victim by the defendant or of
         the defendan t by a victim accom panied by a ny of the following
         circumstances . . . [that] defendant knows or has reason to know
         that the victim is mentally defective, mentally incapacitated or
         physically helpless.


         Tennessee Code Annota ted sectio n 39-11 -301(c) s tates that “[i]f the

definition of an o ffense within th is title do es no t plainly dispense with a mental

eleme nt, intent, knowledge or recklessness suffice s to es tablish the cu lpable

mental state.” Th e rape s tatute and applicab le definitions neither require nor

“plainly dispense” with the requirement of a culpable mental state, and thus, the

terms of Tenne ssee Co de Anno tated section 39 -11-301(c) apply. In order to

sufficiently allege elements of the offense, the indictment must allege or

“nece ssarily imply” that the Defendant’s sexual penetration of TH was done either

intentiona lly, knowing ly or reckles sly.



         In State v. Marshall, 870 S .W .2d 53 2, 538 (Ten n. Crim . App. 1 993), th is

court found tha t an indictm ent was not fatally de tective if the ele ments of the


                                             -4-
offense are necessarily implied from the allegations made. A recent decision of

this court held that “[i]f an offense is alleged in such a way that the defendant

cannot fail to be appris ed of th e elements of the o ffense , the ind ictme nt is

sufficient, notwithstanding the fact that an elem ent may not be sp ecifica lly

alleged.” See State v. John Haw s Burr ell, No. 02C01-9404-CR-00157, slip op.

at 31, Anderson County (Tenn. Crim. App., Knoxville, Feb. 11, 1997)(Rule 11

application filed, April 10, 1997). We hold that the mens rea of “kno wingly” is

nece ssarily implied in the language of the indictment in the case sub judice by the

allegations that D efend ant en gage d in the sexual penetration of TH, “knowing at

the time or ha ving reas on to kno w at the tim e that the s aid [TH ] was, men tally

defective, mentally incapacitated, or physically helpless.” See State v. Gus sie

W illis Vann, No. 03C0 1-9602-C C-00066 , McMin n Cou nty (Ten n. Crim. A pp.,

Knoxville, Ju ne 10, 1 997). T his issue is without m erit.



                       II. MANNER OF SERVICE OF SENTENCE



      Defendant argues that the trial court erred by se ntencing him to serve his

eight-year sentence in the Tennessee Department of Correction. Defendant

asserts that the trial court should h ave sen tenced Defen dant to C omm unity

Corrections or some other type of alternative sentencing. When an accused

challe nges the len gth, ran ge or m anne r of serv ice of a sente nce, th is court has

a duty to conduct a de novo review of the sentence with a presumption that the

determinations mad e by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d). This presumption is “conditioned upon the affirmative showing in the

record that the trial court considered the sentencing princip les and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

                                          -5-
       In conducting a de novo review of a senten ce, this court mu st consider:

(a) the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of

potential for rehab ilitation or treatm ent. Tenn. Code Ann. § 40-35-102, -103 and

-210; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial c ourt’s finding s of fac t are ad equa tely supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       From our review of the re cord, it is apparent the trial court considered the

purposes of the sentencing laws, the presentence report, and the exhibits and

testimony of the sentencing hearing. Since the Defendant received the minimum

sentence of eight (8) years for a conviction of rape, th e trial co urt did not address

any enhancement or mitigating factors as they might pe rtain to the le ngth of the

senten ce.



       Defen dant, convicted of a Class B felony, is not presumed to be a

favora ble candidate for altern ative sentencing. T enn. Cod e Ann. § 40 -35-102(6).

The trial court properly considered various mitigating an d enhanc ement fac tors

                                           -6-
to determine whether Defendant was suitable for any alternative sentencing. The

trial court found the followin g mitigatin g factors: (1) The Defendant cooperated

with the State, (2) this conviction was Defendant’s first felony conviction, and (3)

Defen dant pled guilty.



      The trial court found the following enhancement factors to be applic able in

arriving at the app ropriate sentence: (1) The offense involved a victim and was

committed by the Defendant to gratify his desire for pleasure or excitement, and

(2) the Defe ndant a bused a position of private trus t (though it appears the trial

court placed little weight on this). Furthermore, in reviewing the sentencing

considerations of Tennessee Code A nnotated se ction 40-35-10 3, the trial court

found that in this case confinement was necessary to avoid depreciating the

seriousness of the offense. Th e trial court specifically found tha t there was no

evidence in the record that there was a need to restrain Defendant because of

prior criminal co nduct, the re was n o eviden ce of dete rrence to justify

confinement, and there was no evidence that measures less restrictive than

confinement had be en previo us app lied unsu ccessfu lly. See Tenn. Code Ann.

§ 40-35 -103.



      However, the trial court placed great weight upon the lack of potential for

rehabilitation in determining that the entire sentence should be served in the

Department of Correction. Specifically, there was proof at the sentencing hearing

that following the Defendant’s arrest, the victim was placed in protective custody

of the De partm ent of H uma n Ser vices a t a facility in Knox County. Several weeks

later, the Defendant went to this facility and was found with the victim in a vehic le

in the parking lot. There was conflict in the testimony as to why Defendant was

                                         -7-
there, but the trial court found that the Defe ndan t had g one th ere afte r telling h is

father tha t they were going to G eorgia to get ma rried.



         The trial court he ard the te stimon y of the De fendant, the De fenda nt’s

mother, and the law enforcement officer who investigated the crime. He also had

the benefit of the pre-sentence report. From our review of the entire record, we

are unable to hold that the trial court com mitted er ror by orde ring Defe ndant to

serve his entire sentence in the Department of Correction. This issue is without

merit.



         We affirm the ju dgme nt of the trial co urt.




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                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




                              -9-
