                                                                                         05/21/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 17, 2019

         STATE OF TENNESSEE v. BENJAMIN KEITH FRANKLIN

                   Appeal from the Circuit Court for Rhea County
                     No. 2017-CR-26 Justin C. Angel, Judge
                     ___________________________________

                           No. E2019-01047-CCA-R3-CD
                       ___________________________________


The Defendant, Benjamin Keith Franklin, was convicted by the Rhea County Circuit Court
jury of sexual battery by an authority figure, a Class C felony, and was sentenced to four
years and six months in the Tennessee Department of Correction. On appeal, he argues
that his conviction violates principles of double jeopardy and the evidence is insufficient
to sustain his conviction. After review, we affirm the judgment of the trial court.

    Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and Norma McGee OGLE, JJ., joined.

Larry G. Roddy, Dayton, Tennessee, for the appellant, Benjamin Keith Franklin.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior
Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W.
Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                         FACTS

       The Defendant was indicted for two counts of rape, one count of statutory rape by
an authority figure, one count of aggravated statutory rape, one count of incest, and one
count of sexual battery by an authority figure as a result of allegations of inappropriate
sexual contact with his then sixteen-year-old daughter, the victim.
       The victim testified that in January 2017, she lived with her father – the Defendant,
her mother, and her brother in a house in Rhea County. The Defendant had a disability for
which he took Neurontin or gabapentin for back pain. The Defendant sometimes gave her
some of his pills to help with her own back pain. The victim had gone to a doctor and had
an x-ray, but that did not reveal any cause for her pain.

        The victim testified that she went horseback riding on Saturday, January 21st, and
was experiencing back pain. She told the Defendant about her pain and, when they got
home, he gave her one of his Neurontin pills. He gave her a full pill instead of a half-pill
like he usually gave her. The pill made her feel dizzy, and she could not stand. That night,
she was laying on her bed in her room still feeling dizzy. She was talking on the phone
with a friend when the Defendant came into her room with an electric razor and told her to
get off the phone. The Defendant said to her “this is what he did with my mother,” and
then slid off her pants and started shaving her pubic hair. The Defendant told her that incest
was common in Germany and that it would “bring a relationship closer[.]” He also told
her that parents in countries overseas would perform sex acts with their children in order
to teach them about sex and make a stronger family bond. After the Defendant shaved her,
he left her room without touching her anywhere else.

        The victim testified that the Defendant came into her room again the next morning
and gave her another whole Neurontin pill, as well as one of her mother’s Percocet pills.
The two pills combined made it so that she could not stand up or move freely. The
Defendant came back into her room that evening and gave her yet another Neurontin pill.
The Defendant told her that he was going to perform a procedure to fix her back. He tried
to put the victim’s mother’s lacy bra on her and asked her to put on thong underwear also
belonging to her mother. When the victim refused to wear the thong, the Defendant
undressed her completely. He squeezed the victim’s bare breasts, saying he was checking
for breast cancer. The victim could not “really do anything with the effects of the
medication[.]”

        The victim recalled that after squeezing her breasts, the Defendant moved her
around and then she “felt his fingers in [her] backside.” The Defendant told her that he
was checking her coccyx, which was something he did for her mother. He told her that
“some girls like it.” The Defendant then laid down in her bed and asked her to sleep with
him. She said that she “told him no, and it took everything [she] had to crawl into [her]
Papasan chair and lay there for the night.” After asking her a second time, the Defendant
left her room. The victim reiterated that “[w]ith the medication, I couldn’t move, I couldn’t
fight off anything.” The victim said that she was taking Prozac for anxiety and depression
at the time of the incidents and that was also in her system.



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        The victim testified that she did not immediately tell her mother because she was
scared of the Defendant. She elaborated that he had beat her with a belt before, beyond
just a “whooping,” and that her mother was likewise fearful of him. However, she told a
friend at school the next day who told a school counselor. After speaking with the
counselor herself, she told her mother the following day. The victim’s mother confronted
the Defendant and then took the victim and her brother out of the home. The victim went
to the Children’s Advocacy Center where she reported what had happened and they made
a diagram detailing where on her body the Defendant touched her. They also conducted a
physical examination.

       David Hester, a pharmacist, testified that Neurontin is the brand name and
gabapentin the generic for a medication prescribed for nerve pain. It raises the threshold
for pain, and the main side-effects are drowsiness or dizziness. He said that Percocet is a
combination of oxycodone, an opiate, and acetaminophen, and is used for moderate to
severe pain. He said that Prozac is an anti-anxiety medication, and it can cause drowsiness.

       Lisa Milam, a forensic social worker at Our Kids Center, met with the victim on
February 14, 2017. She obtained a medical history from the victim in which the victim
reported breast and genital touching, as well as anal penetration.

       Heidi Dennis, a pediatric nurse practitioner at Our Kids Center, performed a
physical examination of the victim. The exam revealed no evidence of trauma. However,
Nurse Dennis stated that it would be very unlikely to find physical evidence of breast
fondling, and physical evidence of anal penetration would be unlikely after 72 hours.
Nurse Dennis said that she had never heard of a maneuver to check the coccyx bone for an
injury by inserting a finger in the anus. She elaborated that the appropriate way to check
for a broken bone was an x-ray and that any sort of physical manipulations could cause
further damage.

        The victim’s mother and wife of the Defendant testified that around the timeframe
of the incident, she had recently had a knee replacement and was taking Percocet for pain.
She said that her and the Defendant’s sexual relationship was “[n]onexistent” at the time
and that she had rebuffed his advances that weekend. She stated that the Defendant had
rubbed her back in the past but had never given her any sort of medical examination to
check her coccyx bone, noting that he had a “combat life saver certificate” but did not have
a medical degree. The victim’s mother recalled that the victim told her that the Defendant
had “touched [her] on the top” and “touched [her] on the bottom” the Tuesday after the
incident, and she immediately confronted the Defendant. The Defendant denied the
allegations, but the victim’s mother contacted the authorities.



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        On cross-examination, the victim’s mother surmised that the victim did not
immediately report what the Defendant had done to her “because she was terrified. She
[had] seen what he was capable of doing[,]” recalling that the victim had walked in on the
Defendant “beating” her. The victim’s mother admitted that at the time of trial she was
living in Arkansas with a man named Brian who was also a veteran and had been a friend
of the Defendant’s while in the military. The victim’s mother acknowledged that at the
time of the incident, the victim’s brother’s bedroom was next to the victim’s bedroom, but
she noted that the victim’s brother took medication for sleep that made it extremely difficult
to wake him.

        Officer Rocky Potter, an investigator with the Rhea County Sheriff’s Department,
testified that the Defendant voluntarily came in to give a statement on February 3, 2017.
In his statement, the Defendant admitted to performing a procedure on the victim’s back
and checking her coccyx, which the Defendant described as “a little doggy tail shaped bone
at the end of the vertebra.” He said that to check the victim’s coccyx, he placed his thumb
at her anal opening and pushed, but she jumped in pain and he immediately stopped. The
Defendant said that he may have accidentally touched the lower part of the victim’s breasts
along the rib cage when working on her back but denied grabbing her breasts.

       Officer Chris Hall, another investigator with the Rhea County Sheriff’s Department,
served as a witness to the Defendant’s statement.

       The Defendant testified that he was a “100% disabled veteran” and recounted his
military service and work history for the jury. Turning to the weekend of the alleged
incidents, the Defendant claimed that on Saturday, he and the victim walked to some
nearby abandoned house trailers and then rode back in his truck. They did not ride horses
that day. He said that the victim’s back was hurting throughout the day, so when they got
home, he reluctantly agreed to “work on [her] back.” He had worked on many people’s
backs before, including his wife’s and children’s, and the procedure he performed relieved
pressure on the discs. He believed he knew a proper procedure for manipulating back
muscles from his first responder training and combat life-saving course that taught
anatomy. He was familiar with the coccyx bone because he had broken his before by
jumping off a roof onto his children’s trampoline. The Defendant admitted to giving the
victim one of his Neurontin pills that Saturday. He then clarified that he actually gave her
three Neurontin pills on Saturday but not to be taken all at once. He did not give her
Percocet.

       The Defendant recalled that he performed the procedure in the victim’s bedroom so
she could immediately go to sleep. He said that the door to her bedroom was never closed,
there was a motion-sensor light right outside her door, and the victim’s brother passed by
her room several times walking to and from the bathroom. The victim was wearing a sports
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bra, underwear, and shorts. She never took off her clothes, nor did he remove her clothing.
However, when he examined the victim’s coccyx bone, her shorts “were pulled down just
far enough to expose the end of the spinal area.” He touched her tailbone and “[s]he lurched
forward” and said “[o]w,” so he stopped. He said that no portion of his finger went inside
the victim’s body. The Defendant stated that he did not grab the victim’s breasts, but that
the “tops of [his] fingers” might have accidentally “brushed the bottom of her breast area”
during the procedure. The Defendant denied asking the victim to sleep with him
afterwards, claiming that the victim asked if he wanted to sleep in her bed because she was
going to sleep in her Papasan chair.

       The Defendant denied shaving the victim’s private area with an electric razor as she
described. He owned “about 20 electric razors” but had bought the victim her own set of
razors so she would not use his, which he walked in and handed to her. The Defendant
said that he did not work on the victim’s back at all on Sunday. He claimed that he only
discussed incest with the victim in the context of a paper the victim was writing about
South American cultures. He said that he had never been arrested and had never beat his
wife. He did not ask the victim to put on her mother’s lacy underwear. He hypothesized
that the victim was motivated to tell lies about him because of the victim’s mother’s
extramarital relationship with the Defendant’s friend. The Defendant stated that he
voluntarily went to the sheriff’s department and made a statement because he wanted to
“go ahead and clear it up.” He was allowed to leave after giving the statement.

       On cross-examination, the Defendant admitted that he referred to the shorts the
victim was wearing when he performed the procedure as “those damn booty shorts”
because they were extremely short. He then elaborated that he had her change because the
shorts were inappropriate, and he stood in the corner and faced the wall while she did so.
He admitted to running his finger down the victim’s tailbone between her cheeks just above
the anal opening to check her coccyx, despite her having a recent x-ray that showed no
fractures. The Defendant continued to deny shaving the victim’s private area but admitted
to shaving the victim’s mother’s private area many times. Lastly, contrary to the victim’s
mother’s characterization of her and the Defendant’s sexual relationship as “nonexistent,”
the Defendant said that they had sex twice on the Sunday the weekend of the alleged
incidents, and he had refused her advances during the week leading up to that day.

       Following the conclusion of the proof, the jury convicted the Defendant of sexual
battery by an authority figure and found him not guilty on the other charges.

                                       ANALYSIS

                                   I. Double Jeopardy

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        The Defendant argues that his conviction for sexual battery by an authority figure
violates principles of double jeopardy because the jury found him not guilty of that offense
as a lesser-included offense of the rape charges and “[t]he alleged offenses in all 6 counts
of the indictment occurred on the same date, to the same victim and based on the same
facts.”

       The Double Jeopardy Clause of 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, Article I, section 10 of the Tennessee Constitution
provides “[t]hat no person shall, for the same offence, be twice put in jeopardy of life or
limb.” Our supreme court has recognized that the Double Jeopardy Clause provides three
separate protections: (1) protection against a second prosecution for the same offense after
acquittal; (2) protection against a second prosecution for the same offense after conviction;
and (3) protection against multiple punishments for the same offense. State v. Watkins,
362 S.W.3d 530, 541 (Tenn. 2012).

        The Defendant’s conviction for sexual battery by an authority figure does not violate
any of the aforementioned protections provided by the Double Jeopardy Clause. He was
not prosecuted for sexual battery by an authority figure after being acquitted of the offense;
he was not prosecuted for sexual battery by an authority figure a second time after being
convicted of the offense; and he was not punished multiple times for the same offense. The
Defendant simply cannot show that he was punished twice for the same conduct. The
Defendant’s argument could more appropriately be coined as a complaint about
inconsistent jury verdicts. However, inconsistent jury verdicts are not a basis for relief.
See State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015). Moreover, contrary to the Defendant’s
assertion that all the charges were based on the same facts, in its closing argument, the
State pointed out that the various rape and incest charges were based on the Defendant’s
“putting his finger in her rear,” and the sexual battery by an authority figure charge was
based on “the hands to the breasts.” Therefore, the Defendant was found not guilty of a
touching regarding one part of the victim’s body and guilty of a touching regarding another
part of the victim’s body. The Defendant is not entitled to relief.

                                      II. Sufficiency

       The Defendant also challenges the sufficiency of the convicting evidence. He
provides no argument for this assertion other than that “no rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.”

      When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
                                            -6-
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme
court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(1963)). “A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant
has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       A criminal offense may be established entirely by circumstantial evidence. State v.
Majors, 318 S.W.3d 850, 857 (Tenn. 2010). In addition, the State does not have the duty
to exclude every other reasonable hypothesis except that of the defendant’s guilt in order
to obtain a conviction based solely on circumstantial evidence. See State v. Dorantes, 331
S.W.3d 370, 380-81 (Tenn. 2011) (adopting the federal standard of review for cases in
which the evidence is entirely circumstantial). The jury as the trier of fact must evaluate
the credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, the inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331
S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

                                             -7-
       Relevant here, sexual battery by an authority figure is the “unlawful sexual contact
with a victim by the defendant . . . [when] . . . [t]he victim was, at the time of the offense,
thirteen (13) years of age or older but less than eighteen (18) years of age [and][t]he
defendant had, at the time of the offense, parental or custodial authority over the victim
and used such authority to accomplish the sexual contact.” Tenn. Code Ann. § 39-13-
527(a)(1)(B). “‘Sexual contact’ includes the intentional touching of the victim’s . . .
intimate parts, or the intentional touching of the clothing covering the immediate area of
the victim’s . . . intimate parts, if that touching can be reasonably construed as being for
the purpose of sexual arousal or gratification.” See id. § 39-13-501(6). “‘Intimate parts’
includes . . . the primary genital area, groin, inner thigh, buttock or breast of a human
being.” Id. § 39-13-501(2).

        In its closing argument, the State elected the allegation of the Defendant’s grabbing
the victim’s breasts for the charge of sexual battery by an authority figure. In the light
most favorable to the State, the evidence shows that the night before the touching, the
Defendant shaved the victim’s pubic hair and talked about how parents in countries
overseas performed sex acts with their children in order to teach them about sex and make
a stronger family bond. The next day, after giving her two Neurontin pills and a Percocet,
the Defendant tried to put the victim’s mother’s lacy bra on the victim and asked her to put
on thong underwear also belonging to her mother. When the victim refused to wear the
thong, the Defendant undressed her completely. The Defendant then squeezed the victim’s
bare breasts, claiming he was checking for breast cancer. The victim was sixteen-years-
old at the time of the incident, and she testified that she did not immediately tell her mother
because she was scared of the Defendant. From this proof, we conclude that a rational trier
of fact could find that the Defendant intentionally touched the victim’s intimate parts in a
manner that could reasonably be construed as being for the purpose of sexual arousal or
gratification and that he used his parental authority over the victim to accomplish the sexual
contact.

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


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                                        _________________________________________
                                        ALAN E. GLENN, JUDGE




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