             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                             APRIL 1999 SESSION
                                                      FILED
                                                       August 4, 1999

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                     )           Appellate Court Clerk
                                        )    C.C.A. No. 02C01-9806-CC-00176
      Plaintiff/Appellee,               )
                                        )    Madison County
v.                                      )
                                        )    Honorable Franklin Murchison,
TERRANCE LAVAR FREEMAN,                 )    Judge
                                        )
      Defendant/Appellant.              )    (Statutory Rape, Contributing to the
                                        )    Delinquency of a Minor)



FOR THE APPELLANT:                      FOR THE APPELLEE:

DANIEL J. TAYLOR                        PAUL G. SUMMERS
Assistant Public Defender               Attorney General & Reporter
26th Judicial District
227 West Baltimore Street                   PETER M. COUGHLAN
Jackson, TN 38301                       Assistant Attorney General
                                        425 Fifth Avenue North
                                        2d Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493

                                        JERRY G. WOODALL
                                        District Attorney General
                                        225 Martin Luther King Drive
                                        P. O. Box 2825
                                        Jackson, TN 38302-2825

                                        DONALD H. ALLEN
                                        Assistant District Attorney
                                        P. O. Box 2825
                                        Jackson, TN 38302



OPINION FILED: _________________________________


STATUTORY RAPE CONVICTIONS AFFIRMED;
CONTRIBUTING TO THE DELINQUENCY OF A
MINOR CONVICTION DISMISSED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION


       The appellant, Terrance Lavar Freeman, herein referred to as the “defendant,”

appeals as of right from four convictions of statutory rape and one conviction for

contributing to the delinquency of a minor by a Madison County jury. In three counts, the

trial court imposed a two year sentence on each count as a Range I, Standard Offender,

in the Department of Corrections to run concurrently. In one count, the trial court imposed

a four year sentence, Range II, Multiple Offender. The order of judgment reveals the four

year sentence is to be consecutive to an eight year sentence, in which probation had been

revoked. The defendant presents two appellate issues:


       1.     Whether the evidence is sufficient to support the verdicts of
              guilt.

       2.     Whether the convictions for both statutory rape and
              contributing to the delinquency of a minor violate the double
              jeopardy principles of Article 1, Section 10 of the Tennessee
              Constitution.

       After a review of the entire record, briefs of the parties and appropriate law, we

affirm the trial court’s judgment.



                                FACTUAL BACKGROUND



       Jennifer Smith, age 15, testified she attends Jackson-Central Merry High School.

Ms. Smith met the defendant in December, 1996, while attending a Christmas parade.

While she was dancing, the defendant came up behind her and touched her on the “butt”.

Ms. Smith had seen the defendant once before at a swimming pool, but she had never

talked to him. The defendant gave Ms. Smith his pager number and requested she call him

the next day “and maybe they would get to know each other.” For approximately one

week, Ms. Smith called the defendant every day. In the middle of December 1996, Ms.

Smith was house sitting an apartment of Fonzel Cowell, when the defendant appeared.

The defendant was accompanied by his cousin. While his cousin was in the kitchen, Ms.

Smith and the defendant were on the love seat in the living room. The defendant asked

her to have sex, to which she replied, “no.” After further conversation, Ms. Smith agreed

to have sexual intercourse with the defendant, which she did. Ms. Smith testified she did

                                            2
not know the defendant’s age, nor did the defendant ask her’s.



      About a month later, the defendant came to the same apartment with his cousin.

Ms. Smith, again, agreed to have sexual intercourse with the defendant. The defendant

gave her a beeper, a teddy bear, and some shoes. The beeper was to be used by Ms.

Smith to contact the defendant. After the second sexual encounter, Ms. Smith and her

mother talked to the defendant at a laundromat. Her mother wanted to know “why we was

messing around, and why I didn’t tell her nothing about it?” The defendant told Ms. Smith

he was 19 years old. Ms. Smith was 14 years old at the time. After the laundromat

encounter, Ms. Smith continued to contact the defendant.             Ms. Smith went to the

defendant’s home, where they engaged in sexual intercourse. When confronted by her

mother, Ms. Smith admitted she was with the defendant again. Her mother gave the

defendant back the pager he had given Ms. Smith and told the defendant not to come

around anymore. That very night, the defendant gave the pager back to Ms. Smith.



      In February 1997, Ms. Smith testified she and the defendant met again at his home,

where they had sexual intercourse. Again, Ms. Smith and her mother confronted the

defendant and eventually went to the police. After her mother learned the defendant was

with her again, she sent Ms. Smith to the Health Department for tests. Tests revealed that

Ms. Smith had contracted a sexually transmitted disease, chlamydia. Then, Ms. Smith

admitted she had missed school to see the defendant. She also testified that the

defendant threatened to harm her mother if he were to go to jail. Ms. Smith admitted she

sent a letter, in April 1997, concerning her feelings towards him.



       Mrs. Everlena Smith testified she has two daughters, Jennifer, age 15 and Shenitra.

Jennifer attends the tenth grade and, in 1996-1997, she was 14. Mrs. Smith testified she

called the defendant, on the phone in December 1996 and early January 1997 and had

him meet her at a laundromat. Mrs. Smith had discovered that the defendant and Jennifer

had some contact. Mrs. Smith informed the defendant that she disapproved of her

daughter having sex, because she is not of courting age. Several days later, the defendant

appeared at the Smith’s home. Mrs. Smith told the defendant that he could see her

                                            3
daughter, but they were to have no more sexual involvement, and her daughter was not

to skip school. Mrs. Smith was aware that the defendant was 19 and returned the beeper

he had given Jennifer. The defendant agreed not to have sex with her daughter any

longer.



      When Mrs. Smith learned her daughter and the defendant were continuing to see

each other, she confronted the defendant at his home. The defendant stated that “he has

a right to talk to whoever he wants.” The defendant went to his car and showed Mrs. Smith

that he had a gun. Mrs. Smith left and went straight to the police.



       Donna Turner, a criminal investigator for the Jackson Police Department, testified

she saw the defendant in the interview room of the police department. The defendant had

been charged with three counts of statutory rape and one count of contributing to the

delinquency of a minor. Investigator Turner advised the defendant of his constitutional

rights in a waiver, which the defendant signed. The defendant agreed to give a statement,

which Turner took. In his statement, the defendant admitted he had sex with Jennifer

Smith on four occasions. He stated that he did not force Ms. Smith to have sex with him.

He gave his date of birth as September 8, 1977, making him 19 years old at the time.



       Lafayette McKinnie, in testifying for the defense, stated he is a co-employee of the

defendant and is not the defendant’s cousin. McKinnie testified he went with the defendant

in December 1996 to see Jennifer Smith. They were there for about two hours, watching

movies, and playing cards. Jennifer’s mother was present all of the time. McKinnie was

aware the defendant gave Jennifer a beeper and some shoes. McKinnie testified he and

the defendant visited Jennifer on four occasions. On one occasion, Mrs. Smith appeared

at the defendant’s home, where the defendant and Mrs. Smith exchanged some words.

McKinnie denied seeing the defendant with a gun or hearing him threaten Ms. Smith. The

mother left mad.



       David Argo, the Director of the sexually transmitted disease and HIV unit, testified

for the Jackson-Madison County Health Department. Mr. Argo testified that chlamydia, a

                                            4
bacterial infection, is a sexually transmitted disease that is contacted through sexual

activity. The defendant was examined at the Health Department on August 20, 1997, for

chlamydia or any other sexual diseases, and the test results were negative. Argo testified

that if a person had chlamydia in December 1996, January and February 1997, and took

proper medication, the infection could clear up within forty-eight hours and would not be

present five or six months later.



       The defendant testified that from December 1996 through February 1997 he was

19 years old. The defendant met Jennifer Smith on December 4, 1996, at a Christmas

parade, where they danced. Jennifer Smith told the defendant she was 17 and a senior

at Jackson Central Merry High School. The defendant told Jennifer he was 19, and gave

her his pager number. Jennifer paged the defendant the next day and every day for a

week. On their first encounter, the defendant went to an apartment where Jennifer was

house sitting. The defendant testified that one thing led to another, and the couple had

sexual intercourse. The defendant testified that he had sexual intercourse with Jennifer

a total of four times. One day, Jennifer’s mother called the defendant for a meeting and

asked if her daughter became pregnant, “was I going to be a man and take responsibility

for the child.” The mother did not indicate that the defendant was to stop seeing her

daughter. The defendant considered that he and Jennifer were boyfriend and girlfriend.

The defendant was aware that Jennifer Smith was skipping school, but did not dissuade

her from doing so.



       On the day of their last encounter, the defendant returned home to find Jennifer and

her mother at his house. Mrs. Smith said, “I don’t want you seeing my daughter any more.”

The defendant testified that he responded, “Fine, I don’t care.” The defendant left in his

car and denied he showed a gun to Mrs. Smith. The defendant acknowledged he gave a

statement to Donna Turner, Criminal Investigator. Also, the defendant testified he had a

number of convictions ranging from forgery, theft, reckless endangerment, and felony

evading arrest. The defendant insisted he did not tell Donna Turner that he knew Jennifer

Smith was 14. While serving time in jail after his arrest on these charges, the defendant

had taken only aspirin and Tylenol.

                                            5
       Olvesta Powell, nurse for the Madison County Sheriff’s Department, testified that

the defendant, while an inmate, had been taken to the Health Department for some tests.

Prior to his visit, the defendant had not been given any prescribed antibiotics.



       In rebuttal, Donna Turner testified that in her interview with the defendant, he said

Jennifer was 14 or 15. She stated that the defendant never told her that he thought

Jennifer was 17. If it were so, she testified that she would have put it in his statement.



                                     LEGAL ANALYSIS



       The defendant contends that the testimony of the state witnesses as to their

credibility is such that this evidence is insufficient to support their verdict. The State urges

this Court to affirm the trial court’s judgment.



       When there is a challenge to the sufficiency of the evidence, the state is entitled to

the strongest legitimate view of the proof at trial and all reasonable inferences which might

have been drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v.

Blandon, 926 S.W.2d 953, 958 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). A jury

verdict approved by the trial court accredits the testimony of the witnesses for the state and

resolves any conflicts in the evidence in favor of the state’s theory. State v. Williams, 657

S.W.2d 405, 410 (Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429, 79 L. Ed. 2d

753 (1984). This Court may neither re-weigh nor reevaluate the proof offered at trial and

must not substitute its inference for those drawn by the trier of the fact. Liakas v. State, 199

Tenn. 298, 286 S.W.2d 856, cert. denied, 352 U.S. 845, 77 S. Ct. 39, 1 L. Ed. 2d 49

(1956). The ultimate issue is whether 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Tenn. R. App. P. 13(e). A defendant

challenging the sufficiency of the evidence has the burden of illustrating why the evidence

is insufficient to support the verdicts returned by the trier of fact. State v. Freeman, 943

S.W.2d 25, 29 (Tenn. Crim. App. 1996), perm. app. denied, (Tenn. 1997).



                                               6
       For the State to successfully convict the defendant of statutory rape, it must prove

beyond a reasonable doubt the elements of that criminal offense. Tenn. Code Ann. § 39-

13-506(a) defines the offense:

       Statutory rape is sexual penetration of a victim by the defendant or of the
       defendant by the victim when the victim is at least thirteen (13) but less than
       eighteen (18) years of age and the defendant is at least four (4) years older
       than the victim.


       Since the defendant asserts that the victim, Jennifer Smith, lied about contracting

a sexually transmitted disease from him, and the victim’s mother permitted him to see the

victim, he claims that the evidence does not support his conviction. Further, the defendant

contends he honestly believed the victim was seventeen (17). The trial court granted a

request from the defendant that the defense of ignorance and mistake of fact be charged

to the jury. The evidence in this record overwhelmingly supports that the victim was

fourteen (14) at the time of her sexual activity with the defendant. The defendant admits

his sexual relationship with the victim. Notwithstanding the fact that the defendant did not

have a sexually transmittable disease, the jury resolved the credibility of the witnesses in

favor of the State. We hold that there was sufficient evidence to convict the defendant for

statutory rape.




       Next, the defendant contends that the convictions for both statutory rape and

contributing to the delinquency of a minor involve the same facts and acts, thus violating

the double jeopardy provisions set forth in Article 1, Section 10, of the Tennessee

Constitution. The State concedes that the conviction for contributing to the delinquency

of a minor cannot stand.



       As a result of this conviction, the trial court sentenced the defendant to eleven (11)

months and twenty-nine (29) days in the Madison County jail to run concurrently with the

statutory rape sentences. Count five (5) of the indictment alleges the defendant did

unlawfully and willfully contribute to or encourage the delinquency or unruly behavior of a

minor, to wit, Jennifer Smith, under the age of eighteen (18) years, by aiding or abetting

or encouraging the said Jennifer Smith to engage in delinquent or unruly behavior.

                                             7
       The record reveals the defendant at the conclusion of the State’s case in chief,

moved the trial court for a judgment of acquittal. As grounds, the defendant contended that

the offense of contributing to the delinquency of a minor was unnecessary duplication of

the charge, since the sexual conduct in the counts alleging statutory rape are the same

acts to support the offense of contributing to the delinquency of a minor. The trial court

denied the motion of judgment of acquittal, agreeing the charge of delinquency was

duplication but believed it was something that might be merged, since the jury had not

determined the defendant’s guilt on any offense. Further, the record reveals the defendant

did not raise a double jeopardy question in his motion for a new trial or at the hearing of

the motion for a new trial. The defendant raises this issue for the first time on direct

appeal.



          This issue on double jeopardy is waived upon the failure of the defendant to raise

it in his motion for a new trial. Rule 36(a), T.R.A.P., requires that the alleged error must

be presented to the trial court and, thus, enables the appellate court to adequately review

the record for a proper determination. State v. King, 622 S.W.2d 77, 79 (Tenn. Crim. App.

1981). However, constitutional questions may be raised at any time, which applies only

to fundamental constitution defects in the convicting process not waived or subject to

waiver. State v. Simerly, 612 S.W.21d 196, 197 (Tenn. Crim. App. 1981) (quoting Hill v.

State, 513 S.W.2d 142, 143 (Tenn. Crim. App. 1974)).



       However, we elect to consider the issue of double jeopardy under the principle of

plain error. Rule 52(b) of the Tenn. R. of Crim. P. provides:

       An error which has affected the substantial rights of an accused may be
       noticed at any time, even though not raised in the motion for a new trial or
       assigned as error on appeal, in the discretion of the appellate court where
       necessary to do substantial justice.

       To determine plain error, we must consider the following: (1) the record must clearly

establish what occurred in the trial court; (2) a clear and unequivocal rule of law must have

been breached; (3) a substantial right of the accused must have been adversely affected;

(4) the accused did not waive the issue for tactical reasons; and (5) consideration of the

error is ‘necessary to do substantial justice.’ State v. Adkisson, 899 S.W.2d 626, 641-42


                                              8
(Tenn. Crim. App. 1994). (quoting Tenn. R. Crim. P. 52(b)).



       In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), the Supreme Court established

a four prong analysis to determine whether multiple convictions arising out of the same

facts are proper:

              In sum, resolution of a double jeopardy punishment issue
              under the Tennessee Constitution requires the following: (1) a
              Blockburger analysis of the statutory offenses; (2) an analysis,
              guided by the principles of Duchac, of the evidence used to
              prove the offenses; (3) a consideration of whether there were
              multiple victims or discrete acts; and (4) a comparison of the
              purposes of the respective statutes. None of the steps is
              determinative; rather the results of each must be weighed and
              considered in relation to each other.

       Id. at 381. In this case, the record establishes that the sexual activity formed the

basis for both convictions, statutory rape and contributing to the delinquency of a minor.

Under the proof in this record, clearly three of the four factors indicate a violation of the

Double Jeopardy Clause, therefore, the delinquency conviction must fail.



       We affirm the trial court’s judgments as to the offenses of statutory rape, but reverse

the defendant’s conviction for contributing to the delinquency of a minor and dismiss that

charge.




                                                        ____________________________

                                                        L. T. LAFFERTY, SENIOR JUDGE



CONCUR:




______________________________

JOSEPH M. TIPTON, JUDGE




                                              9
______________________________

DAVID G. HAYES, JUDGE




                                 10
