        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 14, 2015


 STATE OF TENNESSEE v. CHRISTOPHER SCOTTIE ITZOL-DELEON

                 Appeal from the Criminal Court for Davidson County
                    No. 2012-D-3022    Mark J. Fishburn, Judge




                 No. M2014-02380-CCA-R3-CD – Filed March 28, 2016
                          _____________________________

Easter, J., dissenting.

       Defendant argues on appeal that dual convictions for attempted aggravated sexual
battery in Count 1 and rape of a child in Count 3, both stemming from the Lemonade
Mouth incident, violate due process because they a part of a ―single continuous criminal
episode.‖ Defendant asks this Court to utilize the five-factor test adopted by the supreme
court in State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999). The State, on the other
hand, argues that the analysis in Barney is no longer controlling law because the supreme
court relied on cases which have since been abrogated. Because I believe the issue is
more properly one of double jeopardy, I respectfully dissent.

        The majority relies upon the five-factor test adopted in Barney, a test taken from
the California case of People v. Madera, 282 Cal. Rptr. 674 (1991), to determine that the
dual convictions for rape of a child and aggravated sexual battery violate due process.
The majority does not perform a separate double jeopardy analysis. In so doing, the
majority recognizes that State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and its progeny
were abrogated by State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), and that Barney
relied upon those cases to conduct a due process analysis of dual convictions for sexual
offenses. However, the majority goes on to conclude that White did not abrogate Barney
absent some further pronouncement by the supreme court. I disagree. Although Barney
has not yet been expressly overruled, it has been effectively abrogated by White and
criticized by State v. Watkins, 362 S.W.3d. 551, 552 n.34 (Tenn. 2012). Nonetheless, I
would find the dual convictions would survive even if the test pronounced in Barney was
still viable. Finally, I find that analysis of the issue does not implicate due process
concerns but rather is more appropriately analyzed under double jeopardy principles.
       Starting with Anthony, the Tennessee Supreme Court chose to utilize the due
process clause of Article 1, section 8 of the Tennessee Constitution1 to address dual
convictions for kidnapping and certain other felonies which included a certain degree of
removal or confinement of the victim by the perpetrator. 817 S.W.2d at 306. The
supreme court explained that a double jeopardy analysis was ―inadequate‖ to resolve the
issue and instead relied upon due process. Id.

       Several years after Anthony, the supreme court adopted another test, set forth in
State v. Dixon, 957 S.W.2d 532 (Tenn. 1997). This two-part test addressed (1) whether
the removal or confinement of a kidnapping victim was beyond that necessary to
consummate an accompanying offense, and (2) whether the removal or confinement
prevented the victim from summoning help, lessened the defendant‘s risk of detection, or
created a significant danger or increased the victim‘s risk of harm. 957 S.W.2d at 535.
In State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008), the Dixon test was officially
recognized as a replacement test for the ―essentially incidental‖ analysis that had been
provided in Anthony. However, appellate courts were still required to perform a separate
due process analysis for kidnapping convictions accompanied by another offense. See
Dixon, 957 S.W.2d at 535-36; Anthony, 817 S.W.2d at 306-07.

       In White, the supreme court eliminated the separate due process analysis, stating as
follows: ―[t]o be clear, Anthony and the entire line of cases including a separate due
process analysis in appellate review are expressly overruled.‖ White, 362 S.W.3d at 578.
To support this reasoning, the court noted that a fundamental component of due process
is the prohibition against a conviction without sufficient proof of the elements of the
charged offense and that the question of sufficiency of the proof lies with the jury. Id. at
577. To facilitate this determination of sufficiency, a specific jury instruction was crafted
to assist the jury. Id. This decision allowing the jury to make the due process analysis
was based in part of the factually intensive nature of the determination of ―‗[w]hether the
movement or confinement of the victim is merely incidental to and necessary for another
crime.‘‖ Id. (quoting State v. Salamon, 949 A.2d 1092, 1120 (Conn. 2008)).

       While White, admittedly, specifically discussed the due process issue as relative to
dual convictions of kidnapping and an accompanying felony, I would conclude that the
holding of the decision in White also invalidates the test set forth in Barney as applied to



        1
         The due process clause of the Tennessee Constitution provides: ―[t]hat no man shall be taken or
imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the
land.‖

                                                   -2-
dual convictions for sexual offenses.2 Applying the foregoing to the case under
consideration herein, I would conclude that because Anthony has been expressly
overruled, the test adopted in Barney did not survive because it is likewise based on the
due process analysis rejected in White which has been interpreted as requiring the proof
of an additional element, whether it be the essentially incidental language or the
application of a five-factor test. I would decline to merge the convictions because each
statute punishes different criminal behavior. In my view, the test taken from Madera and
adopted in Barney is nothing more than an Anthony-like test for sex offenses. Stated
another way, Barney is to sex offenses what Anthony was to kidnapping offenses. White
tells us that a due process analysis is no longer necessary and is the function of a properly
instructed jury. Of course, I recognize that there is presently no offense specific
instruction for sexual offenses that a trial court can include in a jury charge so that the
jury can properly determine whether punishment for multiple sex offenses offend due
process, and we, as an intermediate court, are certainly not in the position to craft one.

        Still, when the challenged convictions herein are analyzed using the test set forth
in Barney, it is impossible to determine whether the convictions violate the principles of
due process without making a determination as to the underlying facts of the case—a
function that was taken away from this Court‘s consideration and placed in the hands of
the jury upon the abrogation of Anthony. It seems more appropriate for the jury, who is
entrusted with assessing the evidence, to make any such determination. If, somehow, the
test in Barney survived abrogation, I am not convinced by the majority‘s analysis that a
conviction for both rape and attempted aggravated sexual battery are prohibited under the
facts as presented at trial. The jury who heard the facts certainly felt the evidence
supported both – and so do I.

       The victim first testified that she felt Defendant‘s ―bare penis on [her] back,‖
located ―above her butt‖ on the ―outside of her butt cheeks,‖ where she could feel it
―moving . . . like up and down like he was shaking it kind of.‖ The victim described that
this happened before she felt Defendant‘s penis ―moving between [her] thighs.‖ She told
her mother that Defendant‘s penis went ―a little bit inside her.‖ In other words, the
attempted aggravated sexual battery involved a different location of her body than the
rape. While the victim described the incident as one event, it is not clear from the
movement described—feeling the penis on her back and buttocks versus the penetration
between her thighs—whether the action was continuous. I agree with the majority that
there was no intervening event between the touching of the back/buttocks and the
penetration of the labia. Additionally, there was no movement or repositioning in

        2
          Interestingly, the statute relied upon in Madera to prohibit multiple punishments is entitled
―Offenses punishable in different ways by different provisions; double jeopardy; denial of probation,‖
making no mention of due process. See Cal. Penal Code § 654. However, the Tennessee Supreme Court
stated ―our review of the Madera opinion results in our conclusion that the same analysis would support a
due process challenge.‖ Barney, 986 S.W.2d at 548 n.2.
                                                   -3-
between acts and there is no evidence of intent (as described by conduct and statements
of Defendant). However, the contact with the back and buttocks versus the contact with
the thighs and penetration of the labia suggests, to me, that the acts were distinct. See,
e.g., State v. Roger Glenn Dile, No. M2008-00389-CCA-R3-CD, 2009 WL 3031257, at
*15 (Tenn. Crim. App. Sept. 24, 2009), perm. app. denied (Tenn. Mar. 15, 2010)
(determining digital penetration of vagina and rubbing the area around anus supported
separate convictions for aggravated sexual battery and rape of a child); State v. Randall
Scott, No. 01C01-9708-CR-00334, 1999 WL 547460, at *16-17 (Tenn. Crim. App. July
28, 1999) (upholding dual convictions for rape and aggravated sexual battery where
vaginal touching and anal penetration occurred during one incident), aff’d in part, rev’d
in part by State v. Scott, 33 S.W.3d 746 (Tenn. 2000). I am unable to determine from the
record whether the contact with the victim‘s back/buttocks was preparatory to the rape or
merely incidental. It should be noted, however, that in order for the jury to find
Defendant guilty of attempted aggravated sexual battery in Count 1, the jury necessarily
determined that the touching of the back/buttocks had to be ―for the purpose of sexual
arousal or gratification.‖ A reasonable finder of fact could easily conclude that the
contact of Defendant‘s penis on the back/buttocks of the victim was for sexual arousal or
gratification. The evidence, when viewed in the light most favorable to the State,
supports such a finding.

       Count 3 did not require a finding ―for purpose of sexual arousal or gratification‖
but did require a finding of ―penetration.‖ This determination supports dual convictions.
Therefore, even if Barney remains the applicable law, I would uphold the separate
convictions for attempted aggravated sexual battery and rape of a child in Counts 1 and 3.

       More importantly, I would determine that the issue is one more properly analyzed
under principles of double jeopardy. See, e.g., State v. Teats, 468 S.W.3d 495, 509
(Tenn. 2015) (Kirby, J., concurring), and State v. Alston, 465 S.W.3d 555, 567 (Tenn.
2015) (Bivins, J., concurring) (both determining that permissibility of dual convictions is
more appropriately resolved with a double jeopardy analysis than a due process analysis).
Lending support to this conclusion is Watkins, released by our supreme court the same
day as White. In Watkins, the court addressed the issue of ―whether separate convictions
under different statutes constitute the same offense and violate the double jeopardy
protection against imposing multiple punishments.‖ Id. at 538-39.3 The court overruled
State v. Denton, 938 S.W.2d 373 (Tenn. 1996), and abandoned the test adopted therein,
which included as one of the factors an analysis of the evidence supporting each
conviction pursuant to Duchac v. State, 505 S.W.2d 237 (Tenn. 1973). In its place, the
court adopted the same elements test enunciated in Blockburger v. United States, 284

       3
         The majority makes a point that the Barney court rejected the reasoning of Anthony outside of a
kidnapping context in a due process analysis. While Watkins involved review of multiple convictions in
the context of double jeopardy analysis, it did not involve a kidnapping offense.
                                                     -4-
U.S. 299, 304 (1932), as the test for determining whether multiple convictions under
different statutes constitute the same offense for purposes of the Double Jeopardy Clause
of the Tennessee Constitution. Watkins, 362 S.W.3d at 538-39. The court pointed out the
inconsistent application of the now-defunct Denton analysis, citing to Barney. The court
noted that while Barney used the ―different evidence‖ language of Denton and Duchac, it
did not ―focus[] upon the circumstances of the case,‖ but rather ―focused on the statutory
elements of the offenses‖ in analyzing double jeopardy principles, as directed in
Blockburger.4 Id. at 550-51. State v. Feaster, 466 S.W.3d 80, 82 (Tenn. 2015), allows
retroactive application of Watkins to crimes that were committed prior to the decision in
Watkins. Additionally, Watkins has been applied to sex crimes. See State v. Hogg, 448
S.W.3d 877 (Tenn. 2014) (determining multiple convictions for especially aggravated
sexual exploitation of a minor and aggravated statutory rape do not violate double
jeopardy where separate video clips were taken during one continuing course of conduct).

       Defendant herein was convicted of violating two different and distinct statutes—
attempted aggravated sexual battery and rape of a child—described in Watkins as a
multiple description claim. While the alleged statutory violations definitely come from
the same act or transaction and could potentially result in a double jeopardy violation, an
analysis of the relevant statutes reveals that the legislature intended to create separately
punishable offenses. Here, each offense contains a statutory element not contained in the
other. Rape of a child requires penetration; attempted aggravated sexual battery does not.
Attempted aggravated sexual battery requires that the contact be for the purpose of sexual
arousal or gratification; rape of a child does not. Additionally, neither offense is a lesser
included of the other. See State v. John J. Ortega, Jr., No. M2014-01042-CCA-R3-CD,
2015 WL 1870095, at *10 (Tenn. Crim. App. Apr. 23, 2015), no perm. app. filed. Thus,
the legislature is presumed to have intended to allow the offenses to be punished
separately. See Watkins, 362 S.W.3d at 542. Applying the Watkins test, I would
conclude that Defendant‘s convictions of rape of a child and attempted aggravated sexual
battery are not the same offenses for purposes of double jeopardy. I would uphold the
separate convictions for rape of a child and attempted aggravated sexual battery in
Counts 1 and 3.

       With regard to Defendant‘s sentence, I agree with the majority that Defendant was
improperly sentenced under the amendment to Tennessee Code Annotated section 39-13-
522 as the record did not establish the individual dates of the offenses. However, I would
take notice of the trial court‘s extensive findings with regard to consecutive sentencing, in
which the trial court commented that ―there is evidence before the Court to support



       4
         However, the Barney court focused on the underlying facts supporting the conviction in
conducting its due process analysis.

                                             -5-
consecutive sentencing‖ under Tennessee Code Annotated section 40-35-115(b)(5)5 but
chose not to order consecutive sentences because of Defendant‘s social history.
However, the trial court sentenced Defendant to an effective sentence of forty years—a
much longer sentence than is even possible under the appropriate statute—and clearly
stated that he

        certainly [did not] think that the minimum sentence [was] appropriate, one,
        because of the enhancement factors . . . already noted; two, because it is
        not just a couple of time things, it was multiple times for which he . . . was
        convicted, no telling how many more times above and beyond that. So
        despite his otherwise . . . close to glowing social and family history and
        work history, you cannot ignore the numerous, numerous occasions that
        these types of events occurred.

(Emphasis added).

        As the supreme court stated in State v. King,

        The determination as to whether the appellate court should conduct a de
        novo review or remand for reconsideration [with regard to consecutive
        sentencing and denial of judicial diversion] is within the discretion of the
        reviewing court. Relevant considerations include the adequacy of the
        record, the fact-intensive nature of the inquiry, and the ability of the court
        to request supplementation of the record.

432 S.W.3d 316, 328 (Tenn. 2014); see State v. Pollard, 432 S.W.3d 851, 864 (Tenn.
2013) (noting that ―the better course is to remand to the trial court‖ due to the fact-
intensive nature of the inquiry). While an adequate record exists from which this Court
could perform a de novo review, I would find the fact-intensive nature of the inquiry is
something best left for the trial judge to determine in this case. Consequently, I would
remand for a new sentencing hearing at which the trial court could sentence Defendant
within the appropriate range as well as make a determination as to consecutive
sentencing.

                                                                 ___________________________
                                                                 TIMOTHY L. EASTER, JUDGE


        5
           Tennessee Code Annotated section 40-35-115(b)(5) allows for consecutive sentencing upon
conviction for ―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 time span of defendant‘s undetected sexual activity, the nature and scope of the sexual acts and the
extent of the residual, physical and mental damage to the victim or victims.‖
                                                    -6-
