           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                           JULY 1997 SESSION
                                                    September 10, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,               )    C.C.A. NO. 03C01-9701-CR-00004
                                  )
      Appellee                    )    KNOX COUNTY
                                  )
v.                                )    HON. RAY L. JENKINS,
                                  )    JUDGE
STEVEN F. FARR,                   )
                                  )    Rape of a child (2 counts);
      Appellant                   )    aggravated sexual battery (2 counts)




FOR THE APPELLANT                      FOR THE APPELLEE

Julie A. Martin                        John Knox Walkup
P.O. Box 426                           Attorney General & Reporter
Knoxville, TN 37901-0426
                                       Marvin E. Clements, Jr.
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       Randall E. Nichols
                                       District Attorney General

                                       Charme Johnson
                                       Assistant District Attorney General
                                       City-County Bldg.
                                       Knoxville, TN 37901-0426




OPINION FILED


AFFIRMED


JOHN K. BYERS
SENIOR JUDGE
                                     OPINION


      The defendant was convicted of two counts of the rape of a child and two

counts of aggravated sexual battery. He was sentenced to serve 23 years on each

rape conviction and 11 years on each of the aggravated sexual battery convictions

as a Range 1 offender. The sentences were ordered to be served concurrently.

      The defendant raises the following issues on appeal:


      I.      Whether the evidence was sufficient for any rational trier of fact to
      convict defendant beyond a reasonable doubt of each and every element of
      child rape and aggravated sexual battery.

      II.     Whether the trial court erred by denying defendant’s motion to
      dismiss when the state failed to allege the required element of mens
      rea in two of the four counts of the indictment.

       III.  Whether the trial court was justified in sentencing defendant to
       serve almost the maximum sentence for each charge for which he was
       convicted.


       The judgment of the trial court is affirmed.

       The victim in this case lived with her mother and the defendant. The mother

was arrested and incarcerated in May 1993, and the victim and the defendant

remained in the home.

       We need not go into explicit detail concerning the sordid facts in this case. It

is enough to say the state presented sufficient evidence to convict the defendant of

the four offenses if the jury believed the state’s witnesses. The defendant testified

he did not commit the acts alleged in the indictment and testified to by the state’s

witnesses. He and other defense witnesses attacked the credibility of the victim and

other witnesses who testified for the state.

       The jury, by their verdict, and the trial judge, by his approval thereof, have

accredited the state’s witnesses. The defendant asks us to discredit them on

appeal.




                                           -2-
         At trial, the jury resolves conflict in the testimony of witnesses and determines

their credibility. Cabbage v. State, 571 S.W.2d 832 (Tenn. 1978). On appeal, we

weigh the evidence to determine if it is sufficient for a rational trier of fact to find guilt

beyond a reasonable doubt. State v. Evans, 838 S.W.2d 185 (Tenn. 1992). We

have weighed the evidence in this case in the context required and find it is

sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

         The defendant contends the trial judge should have stricken counts 3 and 4

of the indictment because they failed to allege any mens rea requisite for the

offenses of aggravated sexual battery contained therein. The defendant cites no

cases in support of this issue but insists statutory requirements compel a dismissal

of the charges.

         There appears to be two significant cases, which are pending review by the

Supreme Court, dealing with this issue, State v. Hill, C.C.A. No. 01C01-9508-CC-

00207 (Tenn. Crim. App., filed at Nashville, June 29, 1996) and State v. James,

C.C.A. No. 01C01-0601-CR-00016 (Tenn. Crim. App., filed at Nashville, May 27.

1997).

         We adopt and set out herein the reasoning of the Court of Criminal Appeals

in James on the issue:


         An indictment has three (3) purposes in Tennessee; namely, (1) to
         inform the defendant of the precise charges; (2) to enable the trial
         court upon conviction to enter an appropriate judgment and sentence,
         and (3) to protect the defendant against double jeopardy. State v.
         Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated
         in ordinary and concise language so that a person of “common
         understanding” will know what is intended. Warden v. State, 214
         Tenn. 391, 381 S.W.2d 244 (1964).
                 Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn.
         1973) (emphasis supplied), while addressing the sufficiency of an
         indictment charging the offense of murder, our Supreme Court stated
         the following:
                         “While it seems clear that the indictment in Witt
                 was insufficient in that it failed to charge an element, that
                 the murder was committed unlawfully, in either the
                 language of the statute or common law or words of
                 equivalent import, the decision is confusing because of
                 the language, `fatally defective in omitting the charge that
                 the offense was committed feloniously or with malice
                 aforethought; and containing no words of equivalent
                 import.’ It is clear, however, that had the indictment used
                 the words `feloniously’ or `unlawfully’, it would have been
                 sufficient.”

                                             -3-
      By containing the words found in the language of the statutes on
      aggravated rape and aggravated sexual battery, the indictment at
      issue sufficiently apprised James of the offenses charged. The
      charges were stated in ordinary and concise language so that a person
      of common understanding would know what was intended.
              For the above reasons we decline to follow Hill and find this
      indictment was sufficient to charge the offenses of aggravated rape
      and aggravated sexual battery.
                                              C.
              Furthermore, Hill has no application to those counts of the
      indictment charging the offense of aggravated sexual battery. Hill
      dealt only with the charge of aggravated rape.
              Aggravated sexual battery as defined in T.C.A. § 39-13-504 is
      “unlawful sexual contact” with a victim “less than thirteen (13) years of
      age.” T.C.A. § 39-13-501(6) defines “sexual contact” as the
              “. . . intentional touching of the victim’s, the defendant’s
              or any other person’s intimate parts, or the intentional
              touching of the clothing covering the immediate area of
              the victim’s, the defendant’s, or any other person’s
              intimate parts, if that intentional touching can be
              reasonably construed as being for the purpose of sexual
              arousal or gratification (emphasis added).”
      Therefore, the mental element of “intentional” is included in the
      definition of “sexual contact” and is impliedly included within the
      indictment. By statutory definition the only way one can have “sexual
      contact” is by the “intentional touching . . . for the purpose of sexual
      arousal or gratification.” Id.
              We therefore conclude that Hill is distinguishable as to those
      counts charging aggravated sexual battery.


              The defendant claims the trial judge erred in sentencing the defendant

to 23 years on each rape conviction and 11 years on each aggravated sexual

battery conviction. At the time of the offense, the presumptive sentence for the rape

of a child was 15 years, and it was 8 years for aggravated sexual battery.

       The record in this case shows the defendant has a history of previous

convictions including several burglaries and various alcohol-related crimes plus a

conviction for escape. The trial judge applied this enhancing factor to all of the

offenses.

       The record shows the personal injuries inflicted on the victim were great. The

victim had undergone and, at the time of sentencing, was still undergoing extensive

psychological treatment as a result of the trauma inflicted upon her by the

defendant’s conduct.

       The trial court found the enhancing factors that the offenses involved a victim

and were done to gratify the defendant’s desire for pleasure or excitement to be

applicable to the charges of rape. Further, the record shows, and the trial court

                                          -4-
found, the defendant violated a position of trust at the time of the offense, because

he stood in the position of locus parentis to the victim.

        The defendant presented few mitigating factors, if any.

        Previously, the defendant argued the trial court should consider that he had

been an alcoholic and abused child and that he was now attempting to reform his

life.

        We review the sentencing proceeding de novo upon the record with a

presumption of correctness, T.C.A. § 40-35-401, conditioned upon a showing the

trial court has considered all the principles of sentencing and circumstances and

facts in the case. State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). The defendant

must show the sentence is improper. State v. Gregory, 862 S.W.2d 574 (Tenn.

Crim. App. 1993).

        The defendant has failed to show the trial judge’s sentence is not

appropriate. We therefore affirm the sentence in this case.




                                          John K. Byers, Senior Judge

CONCUR:




David H. Welles, Judge




Thomas T. Woodall, Judge




                                           -5-
