                     IN THE SUPREME COURT OF TENNESSEE
                                 AT JACKSON
                              April 11, 2000 Session


           STATE OF TENNESSEE v. FREDERICK BEAUREGARD

                 Appeal By Permission from the Court of Criminal Appeals
                          Criminal Court for Hardeman County
                         No. 5990 Jon Kerry Blackwood, Judge



                   No. W1997-00060-SC-R11-CD - Filed November 30, 2000




In this appeal, we consider whether the constitutional principle of either double jeopardy or due
process is violated and therefore bars separate convictions for both rape and incest when the offenses
arise from a single act committed against the same victim. The Court of Criminal Appeals affirmed
the defendant’s convictions for rape and incest. After our review of the record and applicable
authorities, we conclude that the separate convictions for rape and incest did not violate double
jeopardy principles under the United States or Tennessee Constitutions because the offenses require
different elements, different evidence, and have different purposes. We also conclude that the
convictions for rape and incest did not violate due process under the United States or Tennessee
Constitutions because neither offense was “essentially incidental” to the other. Accordingly, we
affirm the judgment of the Court of Criminal Appeals.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                                       Affirmed

E. RILEY ANDERSON, C. J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR.,
JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. FRANK F. DROWOTA, III, J., not
participating.

C. Michael Robbins, Memphis, Tennessee, and Gary F. Antrican, District Public Defender,
Somerville, Tennessee, for the appellant Frederick Beauregard.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross
Dyer, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Jerry Norwood,
Assistant District Attorney, for the appellee, State of Tennessee.
                                                      OPINION

                                                 BACKGROUND

       The defendant, Frederick Beauregard, was charged in a two-count indictment with rape and
incest of his thirteen-year-old daughter, S.J.1 On the day in question, S.J. was visiting her
grandmother’s home, where her father, Beauregard, resided. S.J. was lying down in a bedroom when
Beauregard entered the room and sat down on the bed next to her.

        Beauregard asked S.J. if she knew how to “nut” and whether S.J. had ever had sex. When
Beauregard then began feeling her breasts, S.J. unsuccessfully tried to push Beauregard away.
Beauregard pulled S.J.’s jeans and panties down to her knees and “stuck his penis” in her genital
area. Beauregard stopped when the telephone in the living room rang and he went to answer it.
When Beauregard left the room, S.J. put her clothes back on and used the bedroom telephone to call
a friend of her mother’s and ask the friend to pick her up. S.J. then locked herself in the bathroom
and remained there until she heard a car pull up to the house and the horn blow.

        S.J. was later examined at a hospital by Dr. Ram Madasu. Dr. Madasu found seminal fluid
at the entrance to S.J.’s vagina and completed a sexual assault kit. Sherri Harrell, a forensic
serologist, tested the items from S.J.’s sexual assault kit and found semen and spermatozoa on the
slides. Joe Minor, a forensic scientist, conducted further tests and testified that Beauregard could
not be excluded as the source of the semen. Minor opined that the semen was from Beauregard or
a close relative.

        After considering all the evidence at trial, the jury convicted Beauregard of both rape and
incest. The Court of Criminal Appeals affirmed, holding that the separate convictions for rape and
incest did not violate double jeopardy or due process protections under the United States or
Tennessee Constitutions. We then granted Beauregard’s application for permission to appeal.


                                                     ANALYSIS

                                                 Double Jeopardy

         The double jeopardy clause in the United States Constitution provides that no person “shall
. . . be subject for the same offense to be twice put in jeopardy of life or limb . . .” U.S. Const.
amend V. Similarly, the Tennessee Constitution states that “no person shall, for the same offense,
be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10.


       1
           Due to the age of the victim and the natur e of the offense s, we identify the victim by initials only.




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        The constitutional right against double jeopardy protects against: 1) a second prosecution
after an acquittal; 2) a second prosecution after a conviction; and 3) multiple punishments for the
same offense. See Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 1435, 63 L. Ed. 2d
715 (1980); State v. Denton, 938 S.W.2d 373 (Tenn. 1996). In this case, we must determine whether
convictions for both rape and incest constitute multiple punishments for the “same offense.”

        In State v. Denton, we established a framework for determining whether a defendant has
received multiple punishments for the “same offense.” The reviewing court must consider: (1) the
statutory elements of the offenses;2 (2) the evidence used to prove the offenses;3 (3) whether there
were multiple victims or discrete acts; and (4) the purposes of the respective statutes. Denton, 938
S.W.2d at 381. In applying this analysis in Denton, we concluded that double jeopardy precluded
separate convictions for aggravated assault and attempted voluntary manslaughter where the offenses
were based upon a single act committed against a single victim. Id. at 382.

        In this case, the first component of Denton requires a comparison of the statutory elements
of rape and incest. The offense of rape is defined, in relevant part, as the “unlawful sexual
penetration of a victim” without the victim’s consent and “accompanied by . . . [f]orce or coercion.”
Tenn. Code Ann. § 39-13-503 (1997). The offense of incest is defined, in relevant part, as the
“sexual penetration . . . with a person, knowing such person to be . . . [t]he person’s natural . . .
child.” Tenn. Code Ann. § 39-15-302 (1997).4 A comparison of the statutory elements of rape and
incest demonstrates that the elements are dissimilar. Rape, unlike incest, requires non-consensual
sexual penetration accompanied by force or coercion; incest, unlike rape, requires that the victim be
the natural child of the defendant, regardless of whether the victim consented.

        We next consider the evidence required to establish the offenses of rape and incest. We
recognize that the same evidence was necessary to establish the element of “sexual penetration” that
is essential for both offenses. Since the remaining elements of each offense differ, however, the
evidence required to establish each offense necessarily will differ in these material respects.5 For
example, to establish the incest charge, the State had to prove the family relationship between the


         2
           See Blockburger v. United States, 284 U.S. 29 9, 52 S. Ct. 180, 7 6 L. Ed. 306 (1932) (setting forth a test
which com pares the ele ments of eac h offense for p urposes o f determining w hether two o ffenses are the “sa me”).

         3
            See Duchac v. State, 505 S.W.2d 237 (Tenn. 1973) (setting forth a test which compares the evidence used
to establish each offense for purposes of determining whether two offenses are the “same”).

         4
             In addition to the natural child, incest may also be committed with “[the] natural parent, child, grandpa rent,
grandchild, uncle, aunt, nep hew, niece, step parent, stepc hild, adop tive parent, adoptive child” or a “person’s brother or
sister of the whole or half-blood or by adoption.” Tenn. Code Ann. § 39-15 -302(a)(1) and (2) (1997).

         5
            Indeed, in Denton we noted that the statutory elements of the offenses of aggravated assault and attempted
voluntary manslaughter indicated that the offenses are separate for purposes of double jeopardy, but nonetheless reasoned
that “[b]ecause the evidence . . . consisted of a single attack by [defendant] on the victim, the State necessarily relied on
the same ev idence to e stablish both” charges. Denton, 938 S.W .2d at 832 .

                                                            -3-
defendant and the victim. Conversely, to establish the rape charge, the State had to prove the force
or coercion and the lack of consent. Thus, the evidence at trial underlying the rape and incest
convictions was different and not identical.

        As to the remaining factors under Denton, we observe that this case does involve a single
victim and a single act of sexual penetration. Finally, the legislative purpose of the separate statutory
offenses of rape and incest is similar but distinct. Although both statutes address sexual offenses,
the offense of rape is contained within the “offenses against persons” provisions of the statutory code
and the offense of incest is contained within the “offenses against family” provisions of the statutory
code. The sentencing commission comments following the incest statute indicates that the statute
is intended to “promote family solidarity by prohibiting relationships with anyone with parental
authority which may be abused to sexual ends.” Tenn. Code Ann. § 39-15-302 (1997). As another
state court has observed in this regard:

        [T]he statutes prohibiting incest and criminal sexual penetration achieve different
        policy objectives. The sanction against criminal sexual penetration is to prevent
        forcible, nonconsensual sexual activity and to protect a person’s important interest
        in uncoerced choice of sexual partners. The incest statute, on the other hand, is more
        narrowly directed toward prohibiting sexual relations, whether consensual or not,
        between relatives. . . . Accordingly, there is no double jeopardy impediment to
        convicting and sentencing . . . [a defendant] for both incest and criminal sexual
        penetration arising out of the same act.

Swafford v. State, 810 P.2d 1223, 1235 (N.M. 1991) (internal citation omitted); see also State v.
Calle, 881 P.2d 155, 161 (Wash. 1995) (discussing different purposes served by the offense of rape
and the offense of incest). In our view, the statutory offenses of rape and incest have a related but
separate legislative purpose and achieve contrasting policy objectives.

        Accordingly, application of the Denton analysis to this case reveals that only one factor – that
the offenses involved a single victim and a single act – supports Beauregard’s claim that the rape and
incest convictions were for the “same offense” and barred by double jeopardy principles. The
remaining three Denton factors, however, demonstrate that the offenses are not the same for double
jeopardy purposes: the statutory elements of the offenses are dissimilar; the evidence required to
establish the offenses differs; and the purpose of each statutory offense is separate and distinct. We
therefore conclude that the rape and incest convictions did not constitute the “same offense” and
were not barred by double jeopardy principles.

        Prior to establishing the analytical framework in Denton, we reached the same conclusion
about the offenses of rape and incest. See State v. Brittman, 639 S.W.2d 652 (Tenn. 1982) (rape and
incest were not the same offense under double jeopardy analysis). Our conclusion is also consistent
with a majority of state jurisdictions that have held that convictions for rape and incest arising from
a single act are not barred on double jeopardy grounds. E.g., Smith v. State, 491 A.2d 587 (Md. Ct.
Spec. App. 1985); Fults v. State, 779 S.W.2d 688 (Mo. Ct. App. 1989); Swafford v. State, 810 P.2d


                                                  -4-
1223 (N.M. 1991); Commonwealth v. White, 491 A.2d 252 (Pa. Super. Ct. 1985); Martinez v. State,
662 S.W.2d 393 (Tex. Ct. App. 1983); State v. Calle, 888 P.2d 155 (Wash. 1995); State v. Peyatt,
315 S.E.2d 574 (W. Va. 1983).

        In addition to the double jeopardy argument, Beauregard asserts the related claim that
convictions for rape and incest are precluded under Tenn. Code Ann. § 39-11-109(b) (1991), which
states:

       When the same conduct may be defined under two (2) or more specific statutes, the
       person may be prosecuted under either statute unless one (1) specific statute
       precludes prosecution under another.

(Emphasis added). In discussing this statute in Denton, we observed that the “legislature’s choice
of terminology is indicative of its intent that the State be limited to a single conviction under
circumstances where a single act exposes an accused to prosecution under more than one statute.”
Denton, 938 S.W.2d at 383. We recognized, however, that the legislature’s use of the phrase “may
be prosecuted” is problematic and conflicts with court decisions and rules of court that allow the
prosecution to charge two or more offenses based on the same conduct in one indictment. Id. at 383
n.22.

        In any event, we conclude that neither Tenn. Code Ann. § 39-11-109(b) nor the dicta in
Denton supports Beauregard’s contention under the facts of this case. First, our decision in
Denton cited with approval State v. Brittman, in which this Court held that rape and incest
convictions based on a single act with a single victim were not the “same offense” for double
jeopardy purposes. Brittman, 639 S.W.2d at 654. Moreover, the discussion of Tenn. Code Ann. §
39-11-109(b) in Denton came after we had applied the four-pronged analysis and concluded that
convictions for aggravated assault and attempted voluntary manslaughter that arose out of a single
act against a single victim violated double jeopardy principles. It was under those circumstances that
§ -109(b) provided additional support for our conclusion. In contrast, application of the Denton
analysis in this case reveals that the offense of rape and incest were not the “same offense” for
double jeopardy purposes. Similarly, the rape and incest statutes do not expressly preclude
prosecution or conviction for the other offense. Thus, to construe the statute as broadly as is urged
by Beauregard would supplant the framework in Denton in all cases involving a single victim and
a single act. This we decline to do.

                                            Due Process

        We next consider Beauregard’s argument that the convictions for rape and incest violated due
process principles under the United States Constitution or article I, section 8 of the Tennessee
Constitution. Beauregard relies on State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), in which we
held that dual convictions for kidnapping and robbery violate due process when the detention of the
victim resulting in the kidnapping conviction is incidental to the robbery. We held that courts must
consider:


                                                 -5-
       whether the confinement, movement, or detention is essentially incidental to the
       accompanying felony and is not, therefore, sufficient to support a separate conviction
       for kidnapping . . . . [O]ne method of resolving this question is to ask whether the
       defendant’s conduct “substantially increased [the] risk of harm over and above that
       necessarily present in the crime of robbery itself.”


Id. at 306 (emphasis added) (citation omitted).

        “[D]ue process is flexible and calls for such procedural protections as the particular situation
demands.” Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993) (citation omitted).
“The flexible nature of procedural due process requires an imprecise definition because due process
embodies the concept of fundamental fairness.” Seals v. State, 23 S.W.3d 272, 277 (Tenn. 2000)
(citations omitted).

        Neither the principles of due process nor our decision in Anthony warrant relief under the
facts of this case. In Anthony, we addressed the “particularly anomalous nature of the kidnapping
statute,” in which the offense of kidnapping is inherent in another offense, such as rape or robbery.
That concern is not applicable in this case. The offense of incest can be committed without
committing rape because one may have consensual sex with a person who is within the prohibited
relationships. Likewise, the offense of rape can be committed without committing incest. In short,
neither offense is “necessarily incidental” to the other. Accordingly, Beauregard’s convictions for
both rape and incest were in no way fundamentally unfair and did not violate due process under the
United States or Tennessee Constitutions.

                                          CONCLUSION

         We hold that, under this Court’s test announced in State v. Denton, 938 S.W.2d 373 (Tenn.
1996), Beauregard’s convictions for rape and incest did not violate double jeopardy principles under
the United States Constitution or article I, section 10 of the Tennessee Constitution. We also
conclude that the convictions did not violate due process under the United States Constitution or
article I, section 8 of the Tennessee Constitution. We therefore affirm the judgment of the Court of
Criminal Appeals. It appearing that the defendant is indigent, costs of appeal are taxed to the State
for which execution may issue if necessary.


                                                        ___________________________________
                                                        E. RILEY ANDERSON, CHIEF JUSTICE




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