        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                      DECEMB ER SESSION, 1997        March 23, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9706-CR-00232
                           )
      Appellee,            )
                           )
                           )    UNION COUNTY
VS.                        )
                           )    HON. LEE ASBURY
ROBERT H. McCURDY,         )    JUDGE
                           )
      Appe llant.          )    (Aggravated Sexual Ba ttery)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF UNION COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

CHARLIE ALLEN                   JOHN KNOX WALKUP
P.O. Box 5027                   Attorney General and Reporter
Oneida, TN 37841
                                TIMOTHY F. BEHAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                WILLIAM PAUL PHILLIPS
                                District Attorney General

                                E. SHAYNE SEXTON
                                Assistant District Attorney General
                                P.O. Box 323
                                Jacksboro, TN 37757



OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
                                            OPINION

          The Defe ndan t, Rob ert H. M cCur dy, app eals a s of righ t pursu ant to R ule

3 of the Tennessee Rules of Appe llate Proce dure. He was convicted by a Union

Coun ty jury of two counts of aggravated sexual battery and two counts of

contributing to the delinquency of a minor.                    He was sentenced as a standard,

Range I offender to consecutive sentences of eight years for each count of

aggravated sexual battery. The sentences for contributing to the delinquency of

a minor were ordered to run concurrently with the aggravated sexual battery

sentences. The De fendant raises three issues in this ap peal: (1) That the trial

court erred by failing to properly charge the jury regarding possible sentences or

to charge the jury that the Defendant would be required to serve one hundred

percent of his sentence s for aggravated sexual battery; (2) that the trial cou rt

erred by ruling that Ten nessee C ode Ann otated section 4 0-35-201 is

unco nstitutio nal; and (3) that the trial court erred by ordering the aggravated

sexual battery sentences to be served cons ecutively. We affirm the De fenda nt’s

convictions. We reverse the trial court’s finding that the sentences should be

served consecutively and remand for the entry of an order consis tent with this

opinion.



          On Septe mbe r 29, 19 95, in M aynar dville, Tennessee, N.M., age 9, and

C.M., age 11 1 , were walking together after school. They were heading to a

quarry to play when the Defendant, who was fifty-eight years old, called to them

from his auto repair garage.                 N.M. lived just up the road from the garage in



1
    It is the policy of this Court to refrain from using the full names of victims of child sex abuse.

                                                      -2-
W elch’s trailer court and knew the Defendant as a family friend. C.M. did not

know the Defendant. The girls went o ver to the D efenda nt to talk. C.M. asked

him if he would buy them a pack of cigarettes. He agreed and took them to a

convenience store in “Halls”, rather than the Pilot store in Maynardville because

N.M.’s mother worked there. They returne d to the garag e for a couple o f hours

and smoked cigarettes. The Defendant did not smoke. N.M. told her mother that

they had gone to the Defendant’s garage but not that he bought them cigarettes.



      The girls went back to the garage the next day, which was a Saturd ay.

They smoked cigarettes and drank wine coole rs. Th e girls asked to do odd jobs

to earn some money and the Defendant let them sweep the garage and clean out

his refrigerator.   He gave each girl $20. He also offered them $100 as a

Christmas prese nt if they w ould install insulation in the garage. The Defendant

also lived in a room in the gara ge.



      On Saturday or S unday, the Defendant began asking questions of a sexual

nature, stating that a past girlfriend was a hooker. He asked the girls whether

they had had sex and whether they had pubic hair. N.M. became somewhat

scared, but the two girls returned on Sunday. They smoked and drank wine

coolers. The girls went to the garage on Mond ay after sch ool. The Defendant

asked the girls whether they knew how to “jack off” and told them they were going

to learn. He locked the doors and laid on the bed in his living quarters. C.M.

noticed a shotgun by the bed.          The Defendant pulled down his pants, first

demonstrated, then had the girls massage his penis and testicles. C.M. first

asked if they could wear socks on their hands and the Defendant provided socks

from a bag on the floor.     The girls “switched” at some point between who

                                          -3-
masturbated the Defendant’s penis and his testicles. They stopped after they

saw “white stuff” come out of the Defendant’s penis. The Defendant threatened

the girls, stating that he would go to jail, the girls would go to juvenile and their

mothers would go to jail, and that he would come back and kill them. After this,

the girls went to their respective homes, but neither told their families.



      The girls returned the following Thursday to get a notepad that N.M. had

left at the garage. They asked the Defendant to get some cigarettes and he

complied. However, he locked the girls in the garage while he went to the store.

C.M.’s mother and brother, Eric, arrived at the garage looking for her and banged

on the do or. Th e girls re main ed quiet becaus e they w ere sc ared. A s C.M ’s

mother was leaving, the Defendant pulled up. He unlocked the door, w ent in, to ld

the girls to hide the wine coolers and cigarettes, and then the girls came out of

the garage. An other one of C .M.’s brothers, David, and her sister-in-law also

arrived.   C.M.’s brother David smelled alcohol and cigarettes on her breath.

They left and the girls admitted to the cigarettes and wine coolers. David and

C.M.’s mother returned to the gara ge abo ut twenty m inutes late r and as ked to

look around. David found cigarettes hidden under the bed covers.



      The Defendant admitted that he had bought cigarettes and Mountain Dews

for the girls, but denied buying them any wine coolers. The Defendant denied

that he engaged in any conversation of a sexual nature or any acts of a sexual

nature. He testified that he locked the girls in the garage because they asked

him to. The jury convicted the Defendant of two counts of contributing to the

delinquenc y of a minor an d two coun ts of aggravated sexual battery.




                                         -4-
      As his first issue, the Defendant contends that the trial court erred by

refusing to charge the portion of Tennessee Code Annotated section 40-35-201

regarding release eligibility percentages. The Defendant requested that the trial

court charge the jury and that counsel be permitted to argue in his closing

statement that, if convicte d, he wo uld have to serve one hundred percent (100%)

of his sentences for aggravated sexual battery and seventy-five percent (75%)

of his sentences for contributing to the delinquency of a mino r. See Tenn. Code

Ann. § 40-35-501(i)(2)(H). The trial court refused to charge the jury regarding

Tennessee Code An notated section 40-35-201(b), which states:



   (b)(1) In all contested criminal cases, excep t for capital crimes wh ich are
   governed by the proced ures containe d in §§ 39-13 -204 and 3 9-13-205,
   upon the motion o f either party, filed with the c ourt prior to the selection of
   the jury, the cou rt shall charge the possible penalties for the offense
   charged and all lesser included offenses.

          (2)(A) (i) When a charge as to possible penalties has been requested
   pursuant to subdivision (b)(1), the judge shall also include in the
   instructions for the jury to weigh and consider the meaning of a sentence
   of imprisonment for the offense charged and any lesser included offenses.
   Such instruction shall includ e an ap proxima te calculation of the minimum
   number of years a person senten ced to im prisonm ent for the offense
   charged and lesser included offenses must serve before reaching such
   person 's earlies t releas e eligib ility date. S uch c alcula tion sh all include
   such factors as the relea se eligibility percentage e stablished by §
   40-35-501, maxim um an d minim um se ntence reduction credits authorized
   by § 41-21-236 and the go verno r's power to reduce prison overcrowding
   pursuant to title 41, chapter 1, part 5, if applicable.


       Our supreme court has determined that, rather than a constitu tional right,

a jury charge concerning the range of punishm ent is a statuto ry right that a

Defendant may invo ke. State v. Cook, 816 S.W .2d 322 , 326 (T enn. 19 91). The

court’s holding was based on a prior wording of Tennessee Code Annotated

section 40-35-201(b) regarding the range of punishment, before it was amended

in 1994 as part of a truth in se ntencing initiative. Tha t amen dmen t resulted in its

                                          -5-
current form, which co ntains a p rovision req uiring trial cou rts to charge release

eligibility percentages. According to Cook, any error by the trial court in refusing

to instruc t the jury is gove rned b y Rule 52(a) of the Tennessee Rules of Criminal

Procedu re and Rule 36(b) of the Ten ness ee Ru les of A ppella te Pro cedu re. Ru le

52(a) provides that “[n]o judgment of conviction shall be reversed on appeal

except for errors which affirmatively appear to have affected the result of the trial

on the me rits.”   Tenn . R. Crim . P. 52(a).      R ule 36(b ) states tha t: “[a] final

judgment from which relief is available and otherwise appropriate shall not be set

aside unless, co nside ring the whole record , error in volving a sub stantia l right

more proba bly than not affected the judgment or would result in prejudice to the

judicial process.” Te nn. R. App . P. 36(b).



       Our supreme court has sanctioned the statutory right of a defendant to

request that the jury b e informed of the range of punishment applicable to a

crime: “Apparently the Legislature desired to give those charged with crimes the

option of making certain that the jury knew the punitive consequences of guilty

verdicts in the ca ses u nder c onsid eration , and th is court respects the right of the

Legislature to do so.” Cook, 816 S.W.2d at 326-27.



       On this basis, we must conclude that the trial court erred by re fusing to

grant the statutory right to charge the jury as the Defendant requested. However,

we conclude that this error by the trial court did not affect the judgment in a way

that prejudiced the judicial process. Apparently, no lesser included offenses were

charged and the jury was instructed only on aggravated sexual battery and

contributing to the delinque ncy of a m inor. In Cook, the jury was informed of the

wrong sentence ranges when lesser inc luded o ffenses w ere availa ble. Id. at 324.

                                           -6-
The defendant argued that the jury could have exercised discretion and convicted

him of the lesser included offenses . Id. The S tate co ntend ed tha t errors in

instruction as to sentencing did not constitute reversible error because such

matters were irrelevant to the determination of guilt or innocence. Id. at 325. The

supreme court found this to be reversible error. Id. at 327. Here, the jury was

prope rly instructed regarding the sentence ranges for the charged offe nses.

Howeve r, the jury was only presented with the option to convict the Defendant of

the charged offenses or to acquit him.             There was strong evidence of the

Defe ndan t’s guilt and there is noth ing in th e reco rd that s ugge sts the jury’s

knowledge of the release eligibility dates for the offenses would have compelled

them to conside r acquittal. See State v. W inford L ee Pip kin, C.C.A. No. 01C01-

9605-CR-00210, Davidson County (Tenn. Crim. App., Nashville, Dec. 4, 1997 ).

As a result, we cannot conclude that the failure of the trial court to charge the jury

that the Defendant was required to serve his en tire sen tence affirma tively

affected the res ults of th e trial su ch tha t prejud ice to the judicial process

occurred.



       As his next issue, the Defendant argues that the trial court erred by ruling

that Tennessee Code Annotated section 40-35-201 is unconstitutional. During

the hearing on the motion for new trial, defense counsel argued that the trial court

was require d to ins truct the jury that the De fenda nt was requir ed to serve his

entire senten ce. The trial judg e ruled that “I do n’t think the Le gislatu re can tell

the Cour t what to do. An d I will put in the record in this case, to the extent they

are attempting to do th at, that th at is un cons titutiona l in the opinio n of the C ourt.”




                                             -7-
         W e recognize that the question of the constitutionality of Tennessee Code

Annotated section 40-35-201, as amended, remains an unsettle d issue in this

Court.    See State v. Jerry Ray Cooper, C.C.A . No. 01C01-9504-CC-00150,

Linco ln County (Tenn. Crim. App., Nashville, Nov. 17, 1997)(principal opinion

with two con curring o pinions); State v. Dwjuan L. Bradford, C.C.A. No. 01C01-

9607-CR-00294, Davidson County (Tenn. Crim. App ., Nashville, Sept. 30, 19 97);

State v. Curtis Lee Ma jors, C.C.A. No. 01C01-9602-CR-00076, Davidson Coun ty

(Tenn. Crim. A pp., Nas hville, July 30, 1 997); State v. Howard E. King, C.C.A. No.

02C01-9601-CR-00032, Shelby C ounty (T enn. C rim. App ., Jackso n, Oct. 22,

1996) perm. to appeal granted, (Tenn ., Mar. 10, 1 997); see also Farris v. Sta te,

535 S.W .2d 608 (Te nn. 1976).



         However, we can not join the trial court’s co nclusion that the sta tute is

unconstitutional on the grounds that it violates the separation of powers doctrine.

Some functions of the three departm ents of sta te govern men t are ne cess arily

overlapping and interdependent.        We believe this is particularly true in our

criminal justice syste m. See, e.g., Lavon v. State, 586 S.W.2d 112, 115 (Tenn.

1979); Unde rwood v . State, 529 S.W .2d 45, 47 (Tenn . 1975); Wo ods v. Sta te,

130 Tenn. 100, 169 S.W. 558 (1914).         We find Cook to be instructive on this

issue:


   The Legislature, in its wisdom, certainly has the right and p ower to direct
   the judicial process. Th ey have said that w here a defen dant w ants h is
   trial jury to know the range of possible punishments resulting from
   convictions that he is entitled to have that information conveyed to the jury.
   To deny this defendant that statutory right constitutes prejudice to the
   judicial process, rendering the error reversible under Rule 36(b) T.R.A.P.




                                          -8-
Cook, 816 S.W.2d at 327. With this considered, we conclude that section 40-35-

201 is not unc onstitutional based on a violation of the doctrine of separation of

powers.



      In his final issue , the Defe ndant a rgues th at the trial court erred by

imposing consecutive sentences for aggravated sexual battery.             When an

accused challenges the length, range, or the manner of service of a sentence,

this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35 -401( d). Th is pres ump tion is "conditioned up on the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W .2d 166, 169

(Tenn. 19 91).



      In conducting a de novo review of a sentence, this court must consider: (a)

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

presentence report; (c) the principles of sentencing 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 defe ndant made on his own behalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; 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 principles set out under the sentencing law, and

                                         -9-
that the trial court's findings of fact are adequately supported by the record, then

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

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



      At the sentencing hearing in this case, the State a rgued for con secutive

sentences because the Defendant committed two child sex abuse offenses

pursuant to the following:

   (b) The court may order sentences to run consecutively if the court finds
   by a prep ondera nce of the evidenc e that:
   ...
   The defendant is convicted of two (2) or more statutory offenses involving
   sexual abuse of a minor with consideration of the aggravating
   circumstances arising from the relationship between the defendant and
   victim or victims , the tim e spa n of de fenda nt's undetected sexual activity,
   the nature a nd sco pe of the s exual ac ts and the extent of the residual,
   physical and mental damage to the victim or victims.


Tenn. Code Ann. § 40-35 -115( b)(5).        T he trial c ourt imposed conse cutive

sentences without e xplanation. The State concedes that the trial court did not

com ply with the sentencing guidelines, which merits a de novo review without the

presumption of correctn ess. Ne vertheles s, the State argues that the record

suppo rts the imposition of consecutive sentences based on subsection 115(b)(5).

The State po ints out tha t the victims were no t just mino rs, but very young girls,

that the Defe ndant e ncoura ged the m with alcohol and cigarettes, and that he

threatened to kill them.



      Howeve r, although the c onduct of this fifty-eight year old man was

reprehensible, and while not disregarding the seriousness of crime s of this

nature, we believe the circumstances in this case militate against the application

of subsection 1 15(b)(5). There was no significant time span of undetected sexual



                                         -10-
activity, the nature of the criminal conduct was nonaggravated, and the extent of

residual damage to the victim caused by the conduct was not demonstrated by

evidence presented at trial. The Defendant correctly notes that cases in which

consecu tive sentencing has been upheld, the nature of the sexual abuse has

gene rally been more severe, physical and mental damage was shown through

testimony presented in court, and the acts took place over long periods of time,

such as over se veral mo nths or ye ars. See, e.g ., State v. Woodcock, 922

S.W.2d 904 (Tenn . Crim. A pp. 199 5); State v. Hallock, 875 S.W.2d 285 (Tenn.

Crim. App. 19 93); State v. Hunter, 926 S.W .2d 744 (Te nn. Crim. Ap p. 1995);

State v. Taylor, 739 S.W.2d 227 (T enn. 19 87). In contrast, the case sub judice

consisted of one act with two victims that wa s the re sult of c ontac t with the girls

within a week.     The State elicited no testimony regarding how the incident

affected the victims. This is akin to State v. Hayes, 899 S.W.2d 175 (Tenn. Crim.

App. 1995), in which two acts of sexual battery occurred over a two-month period

and in which this Court found consecutive sentencing unsupported by the

evidence.



      Given all of the circumstances presented in this case, concurrent

sentences for the ag grava ted se xual ba ttery co nviction s are a pprop riate in

relation to the severity of the offenses and are the least severe measures

necessa ry to dete r the de fenda nt's future criminal conduct, to protect society and

to deter other s who are sim ilarly situa ted an d ma y be like ly to com mit sim ilar

offense s. See Tenn . Code Ann. §§ 40-35-1 02 and -103.




                                         -11-
      Therefore, we mod ify the sentences to reflect that they be served

concurren tly, and rem and to the trial court for en try of an ord er cons istent with

this opinion. In all other respects, the judgment is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                         -12-
