         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           MARCH SESSION , 1998                  FILED
                                                              May 5, 1998
STATE OF TENNESSEE,   )              C.C.A. NO. 02C01-9712-CC-00457
                      )                                    Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk
    Appellee,         )
                      )
                      )              HARDEMAN COUNTY
VS.                   )
                      )              HON. JON KERRY BLACKWOOD
FREDERICK BEAUREGARD, )              JUDGE
                      )
    Appe llant.       )              (Direct Appe al - Rape an d Incest)




FOR THE APPELLANT:                   FOR THE APPELLEE:

GARY F. ANTRICAN                     JOHN KNOX WALKUP
Assistant District Public Defender   Attorney General and Reporter
P. O. Box 700
Somerville, TN 38068                 DOUGLAS D. HIMES
                                     Assistant Attorney General
                                     425 Fifth Avenu e North
                                     Nashville, TN. 37243-0493

                                     ELIZABETH RICE
                                     District Attorney General

                                     JERRY NORWOOD
                                     Assistant District Attorney
                                     302 Market Street
                                     Somerville, TN 38068




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                 OPINION
          On May 20, 1997, a Hardeman County jury convicted Appellant, Frederick

Beauregard, of rape and incest. After a sentencing hearing, the trial court ordered

Appellant to serve nine years at one hundred percent pursuant to Tennessee

Code Annotated § 40-35-501(I)(1)&(2). The trial court also sentenced Appellant

to three years as a standa rd Ran ge I offend er for the inc est conv iction; the

sentence for incest was ordered to run concurrently with the sentence for rape.

Appellant appeals from these convictions, raising three issues:


      1) whether the evidence presented at trial was sufficient to establish sexual
penetra tion;
      2) whether the convictions for both rape and incest arising out of a single
incident violate Appellant’s right to due process of law; and
      3) whether the c onvictions for rape and incest upon the same prohibited
conduct violate the double jeopardy clauses of the United States and Tennessee
constitutions.


          After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                                      FACTS

          The evidence presented at trial revealed that S.J.1 is the daughter of Susan

Stanley and Frederick Beauregard. S.J. was born on January 25, 1982, and lives

with her mother and her maternal grandmother in Hickory Valley, Hardeman

County, Tennessee.



          On December 23, 1995, when S.J. was thirteen years of age, she asked

her mother for permission for visit her paternal grandmother, Sarah Beauregard.



          1
           It is the policy of this Court to protect the identity of child sex abuse victims to the extent circumstances
permit.




                                                          -2-
Ms. Stanley gave S.J. permission to do so. S.J.’s uncle, Willie Jones, and her

cousin, Elvis Morgan, drove her to her grandmother’s house.



      S.J. arrived at her grandmother’s house around dark, only to learn that her

grandm other ha d gone to the hospital. S.J. stayed and watched television, and

then went into a room she identified as “Trudy’s room” to make phone ca lls.

W hile S.J. wa s lying on the bed in “Trudy’s room,” Appellant entered the

bedroom. Appe llant asked S.J. if she knew how to “nut” and whether she had

ever had sex. Appellant then began feeling S.J.’s breasts. S.J. attempted to push

Appellant away, but was unable to do so. Appellant took off S.J.’s clothing,

pushing her jeans and panties down to her knees. S.J. testified that Appellant

then “stuck his penis in” her genital area. Appellant was unsuccessful in inserting

his penis fully into S.J.’s vagina. The telephon e rang a nd App ellant got u p to

answe r the pho ne. S.J. ra n into the b athroom and refu sed to co me ou t.



      S.J. called Teresa Golden, a friend of S.J.’s mother’s, who came and

picked her up from the house. Ms. Golden testified that when S.J. got into the car

she was ‘hollering and crying.” S.J. kept repeating over and over that she wished

that she were d ead. Ms. G olden took S .J. back to her house and called S.J .’s

mother. Wh ile Ms. G olden was o n the p hone with S.J .’s mo ther, S .J. finally

explained that “Frederick made me have sex with him .” Ms. Golden drove S.J. to

Hickory Valley where they met S.J.’s mother. The three then proceeded to the

hospital.



      At Boliver Community Hospital, Dr. Ram Madasu treated S.J.. Dr. Madasu

testified that he examined S.J. but was unab le to perform a full pelvic exa m. Dr.

                                        -3-
Madasu found seminal fluid at the fourch ette hair, or th e entran ce to the vagina.

He also prepare d a sexu al assau lt kit.



       Sherri Harrell, a forensic sero logist from the Tennessee Bureau of

Investigation, analyzed the samples from the sexual assault kit performed on

S.J.. Tests revealed that both spermatozoa and semen were on the vaginal slide

and swab w hich Dr. M adasu took from S.J.’s body. Joe Minor, also a scientist

with the Tennessee Bureau of Investigation, compared the samples from S .J.’s

sexual assault kit and a blood sample given by Appellant. Minor’s testing

revealed a “very strong association” between the semen taken from S.J.’s genital

area and Appellant’s blood sample. Minor testified that Appellant could not be

ruled out as th e source of the semen. Minor testified that in his opinion, the

semen found in S.J.’s genital area was from Appellant or another close relative

of S.J..



                        SUFFICIENCY OF THE EVIDENCE




       Appellant initially concedes that the record suppo rts a finding that Appellant

sexua lly assaulted S.J.. However Appellant contends that the evidence did not

prove beyond a reasonable doubt that he penetrated S.J., and hence that he

committed rape. We do not agree. Wh en an appellant challenges the sufficiency

of the evide nce, this C ourt is oblige d to review that ch alleng e acc ording to certa in

well-settled principles. A verdict of gu ilty by the jury, approved by the trial judge,

accred its the testimony of the S tate’s witnesses and resolves all conflicts in the

testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.

1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accu sed is

                                            -4-
origina lly cloaked with a pres umptio n of innoc ence, a jury verdict removes th is

presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with A ppellant to

demo nstrate the insufficiency of the con victing evide nce. Id. On appeal, “the

[S]tate is entitle d to the strong est legitima te view of the eviden ce as well as all

reasonable and legitima te inferenc es that m ay be dra wn there from.” Id. (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of

the evidence is contested on appea l, the relevant question for the reviewing cou rt

is whether any rational trier of fact could have found the accused guilty of every

element of the offense beyond a reason able do ubt. Harris , 839 S.W.2d 54, 75;

Jackson v. Virgin ia, 443 U.S . 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). In conducting our eva luation of the c onvictin g evide nce, th is Cou rt is

precluded from reweighing or recons idering the evidenc e. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. A pp. 199 6); State v. Mathews, 805 S.W.2d 776,

779 (Tenn. Crim . App. 1990 ). Moreover, this Co urt may not substitute its own

inferences “for those drawn by the trier of fact from circums tantial evide nce.”Id.

at 779. Finally, the Tennessee Rules of Appellate Procedure, Rule 13(e)

provides, “findings of guilt in criminal actions w hether by the trial cou rt or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyond a reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at

780.



       Rape is defined at Tennessee Code Annotated § 39-13 -503 in applic able

part as:


                  1. The unlawful sexual penetration of a victim by the
defendant..., accompanied by

                                          -5-
                    2. Force or coerc ion used to accom plish the a ct.

Tennessee Code An notated § 39-13-501 (7) defines “sexual penetration” as:

      sexual intercourse, cunnilingus, fellatio, anal intercourse,
      or any othe r intrusion, h oweve r slight, of any part of a
      perso n’s body or of any object into the genital or anal
      openings of the victim’s, the defendant’s, or any other
      person ’s body, bu t emissio n of sem en is not re quired.

In Mc Do nald v. Sta te, 512 S.W.2d 636 (Tenn. Crim. App. 1974) the Tennessee

Supre me C ourt ado pted the rule that



      There is ‘carnal knowledge’ or ‘sexual intercourse’ in a
      legal sense if there is the slightest penetration of the
      sexual organ o f the female by the sexual organ of the
      male. It is not necessary that the vagina be entered or that
      the hymen be ruptured; the en tering o f the vulv a or lab ia
      is sufficient.


State v. McD onald, 512 S.W.2d 636, 639 (Tenn. Crim. App . 1974) (quoting State

v. Bowman, 232 N.C. 374, 61 S.E.2d 107, 108 (N.C.1950) (citing State v. Monds,

130 N.C. 69 7, 41 S.E .789; State v. Hargra ve, 65 N.C . 466; State v. Storkey, 63

N.C. 7; Burdick: Law of Crime, Section 477; 44 Am Jur., Rape, Section 3; 52 C.J.

Rape, sections 23, 24.)). When viewed in the light most favorable to the State,

the reco rd clearly es tablishes that App ellant sexu ally penetra ted S.J..



      At trial, S.J. testified that Appellant penetrated her. The relevant testimony

was elicited as follows:



      A: He asked me -- he started asking me some questions,
      do I know how to nut, and have I ever had sex and then he
      started feeling on me and stuff....First he started feeling
      my bre asts and stuff.

      Q: And the n what did you do or say?


                                    -6-
      A: I tried to put his hand off me, wanted to put his h and off.

      Q: Oka y. Now, th en, wha t happe ned ne xt?

      A: He s tarted takin g my clo thes an d stuff off.

      Q: And did he ge t your clothe s off or part o f the way o ff?

      A: Yes, sir.

      Q: And I take it you’re still on the bed?

      A: Yes sir.

      Q: And so he was --started taking you clothes off, and
      then what happened?

      A: Then he stuck his penis in me.

      Q: Okay. Then what happened then?

      A: It wouldn’t go in. So the phone kept on ringing and then
      he ans wered it.

       Q: All right. Then what were you doing while this was
       going on.

       A: I was putting my clothes back on.

       Q: When he was trying to put his penis in, what were you
       doing?

       A: I tried to -- I told him to stop ‘cause he was hurting me.



       In addition, Dr. Madasu testified that he fou nd se men in S.J.’s genital area,

spec ifically in the area of the fourchette, the fold of skin at the base of the vaginal

opening. Given that on ly slight p enetra tion of th e vulva or labia constitutes sexual

penetration, this eviden ce is sufficie nt to susta in a findin g beyo nd a re ason able

doubt that Ap pellant sexually pen etrated his dau ghter.



       Appellant maintains that S.J.’s statement that “it wouldn’t go in” ta ken in

conjunction with a lack of physical trauma indicates no penetration occurred.

                                          -7-
Howeve r, the jury could have concluded that S.J.’s reference to the lack of

penetration concerned only a lack of vaginal penetration. In any event, any

contradictions in the testimony are for the jury to resolve . Barge v. State, 575

S.W .2d 292, 295 (Tenn. Crim . App. P. 1978 ).



       This issu e is withou t merit.



                                   DUE PROCESS




       Appellant also contends that his convictions for rape and incest violate due

process in that in this instance the crime of incest was “es sentially incid ental” to

the crime of rape u nder State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). Under

the rule of State v. Anthony, the relevant inquiry is whether the act on which the

incest conviction is based is essentially incidental to the accompanying rape and

is not, therefore, sufficient to support a separate conviction for incest, or whether

it is significant enough, in and of itself, to warrant independent prosecution and

is, therefore, sufficient to support such a convictio n. Id. at 306. In the matter sub

judice , Appe llant’s act in having intercourse with his daughter is sufficient proof

to support a prosecution for incest separate from the rape prosecution. The fact

that the child he raped was his daughter is in no way essentially incidental to the

rape itself. T his issue is without m erit.




                                DOUBLE JEOPARDY

       Appellant also argues that conviction for the crimes of rape and incest

when based upon a single sexual act violate the constitutional prohibition against

                                              -8-
double jeopardy. In State v. Powe ll, 1994 Te nn. Crim. Ap p. Lexis 78, this Co urt

held that convictions for rape and in cest arising out of one sexual act do not

violate double jeopardy. However after the Pow ell decision , in 1996 th e

Tennessee Supr eme Cour t revisited the sta ndard for dete rminin g dou ble

jeopardy in State v. Denton, 938 S.W.2d 373 (Tenn. 1996). Since Denton, neither

this Court nor the Supreme Court has applied the law of double jeopardy as set

out in Denton to the crimes of incest and rape. Due to the intervening change in

our understand ing of double jeo pardy, we mus t apply th e ana lysis se t out in

Denton, to determine whether Appellant’s constitutional rights have been

violated.



         In State v. Denton, the Ten nesse e Supr eme C ourt held that:



         resolution of a double jeopardy punishment issue under
         the Tennes see Con stitution requires the following : (1) A
         Blockberger analysis of the statutory offenses; (2) an
         analysis, guided by the princ iples of Duchac, of the
         evidence used to prove the offenses;2 (3) a consideration
         of whether there were multiple victims or discrete acts; and
         (4) a comparison of the purposes of the re spective
         statutes. None of these steps is determinative; rather the
         results of each mus t be we ighed and c onsid ered in
         relation to each o ther.

State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996). In its discussion of the new

factors for determining double jeopardy violations, the Supreme Court used

convictions for both aggravated rape and incest as an exam ple of how under its

holding a sing le act u pon a solitary v ictim m ight co nstitutio nally result in multip le

convictions. Id. at 381. In s o doing the Sup reme C ourt note d that the elem ents




         2
         Duchac v. State, 505 S.W .2d 237 (Tenn. 1 973); utilized the so-called “s ame evide nce test” in do uble
jeopardy analysis.

                                                       -9-
of the two crimes were distinct and that the statutes served different purposes:



       one protects children under the age of thirteen years from
       sexual penetration and the other prohibits marriage or
       sexual intercourse between persons related within the
       prohibited degrees.


State v. Denton, 938 S.W.2d at 381 (quoting State v. Brittman, 639 S.W. 2d 652

(Tenn. 1982)). We find that under the Denton analysis, only factor (3) aids

Appe llant. Certainly the statutory elements of the two crimes are distinct: rape

requires force or coercion, while incest requires intercours e by pe ople w ithin

prohibited degrees of kinship. The evidence used to prove each crime varies, and

as the Su prem e Cou rt stated in Denton (quoted above) the purpose of the

respective statutes is different. The conclusion to be drawn from the Denton

analys is is that conviction for both of these crimes arising from a single sexual

act doe s not imp licate dou ble jeopa rdy conc erns. Th is issue is w ithout me rit.



       Therefore, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
GARY R. WADE, JUDGE




                                         -10-
