State v. Barney

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE
FILED
February 1, 1999

Cecil W. Crowson
STATE OF TENNESSEE ) FOR PUBLICATION
) Appellate Court Clerk
) FILED: FEBRUARY 1, 1999
Appellee )
) DAVIDSON COUNTY
v. )
) HON. WALTER C. KURTZ,
WILLIAM HENRY BARNEY ) JUDGE
)
Appellant ) NO. 01-S-01-9802-CR-00033

For Appellant: For Appellee:

KARL DEAN JOHN KNOX WALKUP
Public Defender Attorney General and Reporter

JEFFREY A. DEVASHER MICHAEL E. MOORE
Assistant Public Defender Solicitor General

JERRILYN MANNING GORDON W. SMITH
Assistant Public Defender Associate Solicitor General
Nashville, TN
JOAN A. LAWSON
Assistant Public Defender VICTOR S. JOHNSON, III
Nashville, TN District Attorney General

WILLIAM R. REED
Assistant District Attorney General
Nashville, TN

OPINION

AFFIRMED BIRCH, J.
 The defendant, William Henry Barney, was convicted of

eleven counts of rape of a child and seven counts of aggravated

sexual battery. He is currently serving a total effective sentence

of eighty years. Upon the Court of Criminal Appeals’s affirmance

of these judgments, the defendant filed an application for

permission to appeal to this Court. We granted the application in

order to determine whether the language of the indictment was

sufficient under State v. Hill, 954 S.W.2d 725 (Tenn. 1997), and to

determine whether the multiple convictions for rape of a child and

aggravated sexual battery violate the constitutional principles of

due process or double jeopardy. We conclude that the indictment is

sufficient under Hill. In addition, we conclude that, under the

facts and circumstances of this case, multiple convictions for rape

of a child and aggravated sexual battery are justified and do not

violate the constitutional principles of due process or double

jeopardy.

I

The salient facts presented at trial showed that in July

1992, the defendant, a forty-seven-year-old man, moved in with the

victim’s family as a nanny for the victim and his two older

brothers. The defendant took a special interest in the ten-year-

old victim. In November 1992, the defendant quit the nanny job and

left the state. In May 1993, he returned unexpectedly and asked

the family’s new nanny whether he could visit with the victim. The

victim became upset and refused to see the defendant. When the

nanny asked the victim why he was upset, the victim told her that

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the defendant had “molested” him previously. The nanny called the

victim’s father, who told her to call the police. After the

defendant gave a statement implicating himself in the alleged

sexual conduct, investigators arrested him.

At trial, the victim testified that, on at least five

occasions, the defendant entered the victim’s bedroom, rubbed the

victim’s penis with his hand, and then performed fellatio on the

victim. The victim also recalled at least four occasions when the

defendant anally penetrated him and at least two occasions when the

defendant performed anilingus on him.

At the conclusion of the proof, the State elected to

submit six discrete sexual encounters to the jury. Five of these

occurred in the victim’s bedroom at the victim’s home: the first

in July 1992 when the defendant fondled and anally penetrated the

victim; the second in August 1992 when the defendant fondled,

performed fellatio, anally penetrated, and performed anilingus on

the victim; the third in September 1992 when the defendant fondled,

performed fellatio, anally penetrated, and performed anilingus on

the victim; the fourth in October 1992 when the defendant fondled,

performed fellatio, and anally penetrated the victim; and the fifth

in November 1992 when the defendant fondled, performed fellatio,

and anally penetrated the victim. The sixth encounter occurred in

the victim’s living room when the defendant performed fellatio on

the victim.

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 II

The defendant contends that the indictment in this case

is fatally deficient because it failed to allege a specific

culpable mental state for the offenses of rape of a child and

aggravated sexual battery. Of the fourteen counts of the

indictment charging rape of a child, seven of the counts alleged

that

WILLIAM HENRY BARNEY on a day
between July 1, 1992, and November
30, 1992, in Davidson County,
Tennessee and before the finding of
this indictment, did engage in
unlawful sexual penetration of
[K.B.],1 a child less than thirteen
(13) years of age, in violation of
Tennessee Code Annotated §39-13-522,
and against the peace and dignity of
the State of Tennessee.

Seven other counts alleged that

WILLIAM HENRY BARNEY on a day
between July 1, 1992, and November
30, 1992, in Davidson County,
Tennessee and before the finding of
this indictment, did cause [K.B.], a
child less than thirteen (13) years
of age, to engage in unlawful sexual
penetration of William Henry Barney,
in violation of Tennessee Code
Annotated §39-13-522, and against
the peace and dignity of the State
of Tennessee.

There were also seven counts charging aggravated sexual battery.

Each of those counts alleged that

1
Due to the age of the victim and the nature of the offenses,
we identify the victim by initial only.

4
 WILLIAM HENRY BARNEY on a day
between July 1, 1992, and November
30, 1992, in Davidson County,
Tennessee and before the finding of
this indictment, did engage in
unlawful sexual contact with [K.B.],
a child less than thirteen (13)
years of age, in violation of
Tennessee Code Annotated §39-13-504,
and against the peace and dignity of
the State of Tennessee.

In State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997), this

Court held that where the language of an indictment alleging

aggravated rape as “unlawfully sexually penetrat[ing]” a person

under the age of thirteen met the constitutional and statutory

requirements of notice and form, and where a culpable mental state

could be logically inferred from such language, the indictment was

valid. State v. Stokes, 954 S.W.2d 729 (Tenn. 1997), extended the

rationale of Hill to an indictment charging rape of a child. Under

the Hill analysis, we find that the counts of the indictment

charging rape of a child were constitutionally valid and sufficient

to vest the trial court with jurisdiction.

More recently, the Hill analysis was extended to an

indictment charging aggravated sexual battery. See Ruff v. State,

978 S.W.2d 95 (Tenn. 1998). We find that the language recited

above for the charges of aggravated sexual battery is substantially

identical to the language upheld as constitutionally and

statutorily sufficient in Ruff. Those charges were likewise valid

and sufficient to vest the trial court with jurisdiction.

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 III

Next, the defendant urges that his act of rubbing the

victim’s penis was “essentially incidental” to the fellatio and

that the two acts (rubbing and fellatio) thus constitute but a

single crime for which a single punishment is appropriate. He

contends, then, that due process principles prohibit separate

convictions for five of the counts of aggravated sexual battery and

five of the counts of rape of a child. For its part, the State

insists that the rubbing and the fellatio were discrete acts for

which separate punishments are appropriate.

The “essentially incidental” test for determining whether

due process principles support separate convictions for two or more

felonies arising from one particular course of conduct was

developed in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). In

Anthony, this Court determined that because the detention of the

victim was essentially incidental to the commission of the robbery,

due process principles prohibited a separate conviction for

kidnapping. Id. at 307. We have since refined the Anthony test in

several cases, including State v. Dixon, 957 S.W.2d 532 (Tenn.

1997), in which we held that separate convictions for attempted

sexual assault and kidnapping were constitutionally valid because

the defendant’s conduct “exceeded that restraint necessary to

consummate the act of attempted sexual battery,” lessened the risk

of detection, and substantially increased the risk of harm to the

victim. Id. at 535.

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 In State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996), we

noted that “[w]hile our decision in Anthony addressed the

particularly anomalous nature of the kidnapping statute, it is

conceivable that the principle of Anthony could apply to

circumstances involving offenses other than kidnapping.” Upon

reflection, we find that the “essentially incidental” test, as

developed in Anthony and its progeny, is not helpful in the context

of sexual offenses because each separate sexual act “is capable of

producing its own attendant fear, humiliation, pain, and damage to

the victim.” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996).

For determining whether two or more sexual acts may be

the subject of separate convictions, we find the test articulated

in People v. Madera, 282 Cal. Rptr. 674 (Ct. App. 1991), to be

instructive. In Madera, the court upheld dual convictions for a

defendant who rubbed a young boy’s penis and then engaged in

fellatio.2 The defendant contended that the touching was merely

incidental and preparatory to the commission of the fellatio and

argued that the rubbing was a part of the fellatio. The court

reasoned that Madera’s intent was the critical consideration.

Specifically, the pivotal question was “whether [Madera’s] touching

of [the victim’s] penis was to commit a separate base criminal act

or to facilitate the oral copulations . . . that shortly followed.”

2
The Madera court did not specifically answer the dual
conviction question under a due process challenge. Instead, the
defendant in Madera argued that a particular California code
section concerning dual punishment prohibited his being punished
twice for one felonious episode. Despite the focus on this
California code section, our review of the Madera opinion results
in our conclusion that the same analysis would support a due
process challenge.

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Id. at 679. The court held that if the act in question directly

facilitates or is merely incidental to the accompanying sexual

conduct (such as, for example, applying lubricant to the area of

intended copulation), convictions for both acts would be barred.

Id. at 680. If, however, the act in question is “preparatory” only

in the sense that it is intended to sexually arouse either the

victim or the perpetrator, separate convictions are not barred.

Id.; accord People v. Scott, 85 P.2d 1040 (Cal. 1994).

We suggest that several factors may be relevant in

determining whether conduct is directly facilitative, and thus

incidental, or merely prepatory in the sense of intending to arouse

the victim or perpetrator. These factors are:

1. temporal proximity--the greater
the interval between the acts, the
more likely the acts are separate;

2. spatial proximity--movement or
re-positioning tends to suggest
separate acts;

3. occurrence of an intervening
event--an interruption tends to
suggest separate acts;

4. sequence of the acts--serial
penetration of different orifices as
distinguished from repeated
penetrations of the same orifice
tends to suggest separate offenses;
and

5. the defendant’s intent as
evidenced by conduct and statements.

Considering these factors in light of the facts of this

case, the victim testified that the defendant entered the victim’s

bedroom, rubbed the victim’s penis with his hand, and then

8
performed fellatio on the victim. After a thorough review of the

evidence, we conclude that the evidence supports the jury’s verdict

of separate convictions for the rubbing and the fellatio. Thus, we

find no due process violation.

IV

The defendant insists also that dual convictions for both

aggravated sexual battery and rape of a child violate the double

jeopardy provisions of the Constitutions of the United States and

of Tennessee. Article I, § 10 of the Tennessee Constitution

provides that “no person shall, for the same offence, be twice put

in jeopardy of life or limb.” In Denton, we articulated the test

for determining whether two offenses are the “same” for double

jeopardy purposes under the State Constitution. Crucial to this

analysis is legislative intent. The factors to be considered are:

1. an analysis of the statutory
offenses under Blockburger v. United
States3 to determine “whether each
provision requires proof of an
additional fact which the other does
not”;4

2. an analysis, guided by the
principles of Duchac v. State,5 of
whether the same evidence is
required to prove each offense;

3. a consideration of whether there
were multiple victims or discrete
acts; and

3
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
4
Id. at 304, 52 S. Ct. at 182, 76 L. Ed at 309.
5
505 S.W.2d 237 (Tenn. 1973).

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 4. a comparison of the purposes of
the respective statutes.

“None of these steps is determinative; rather the results of each

must be weighed and considered in relation to each other.” Denton,

938 S.W.2d at 381.

We addressed this issue in relation to multiple sex

offenses in Phillips, where we noted that the following factors may

be significant:

1. the nature of the act;

2. the area of the victim’s body
invaded by the sexually assaultive
behavior;

3. the time elapsed between the
discrete conduct;

4. the accused’s intent, in the
sense that the lapse of time may
indicate a newly formed intent to
again seek sexual gratification or
inflict abuse; and

5. the cumulative punishment.

“[T]he presence and absence of any one factor or a combination of

them other than the nature of the act is not determinative of the

issue.” 924 S.W.2d at 665.

The defendant in Phillips committed three acts of

penetration within the course of three hours: penetration of the

victim's vagina by an inanimate object; cunnilingus; and penile

penetration of the vagina. We noted:

“[A]lthough separate acts of
intercourse may be so related as to

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 constitute one criminal offense,
generally rape is not a continuous
offense, but each act of intercourse
constitutes a distinct and separate
offense.” Moreover, each of the
above-described acts is separately
defined in Tenn. Code Ann. §
39-13-501(7) as a discrete type of
sexual penetration subsumed by Tenn.
Code Ann. § 39-13-502, the
aggravated rape statute. Each act,
in our opinion, is capable of
producing its own attendant fear,
humiliation, pain, and damage to the
victim. Each type of penetration
requires a purposeful act on the
part of the perpetrator.

Id. at 664-665 (footnote omitted)(quoting 75 C.J.S. Rape § 4 (1952

& Supp. 1995)). Our conclusion was that Phillips committed three

separate offenses.

Applying the Denton and Phillips criteria to this case,

we find the following facts significant: first, the offense of

aggravated sexual battery requires an intentional touching of a

victim’s intimate parts for the purpose of sexual arousal or

gratification. Tenn. Code Ann. §§ 39-13-501, -504 (1991). Rape of

a child requires sexual penetration of the victim, and the mental

state required may range from intentional to knowing or reckless.

Tenn. Code Ann. §§ 39-13-501, -13-522, -11-301(c) (1991 & Supp.

1992). Thus, each of the offenses requires proof of an additional

fact that the other does not, and the offenses are not the same

under Blockburger. Second, to prove aggravated sexual battery the

State must present evidence that the defendant intentionally

touched the intimate parts of the child victim and that such

touching was for the purpose of sexual gratification. Tenn. Code

Ann. §§ 39-13-501, -504. In contrast, rape of a child can be

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proven solely by evidence of sexual penetration, regardless of the

motivation for the act. Tenn. Code Ann. §§ 39-13-501, -522. Thus,

different evidence is required to prove each offense, so the

offenses are not the same under Duchac. Third, the nature and type

of the contact in each instance was different, i.e., a touching of

the penis with the hand as opposed to a touching of the penis (and

the concomitant penetration) with the mouth. Fourth, the acts,

although close in time, were not performed simultaneously.

Finally, we believe the cumulative punishment in this case, eighty

years, is not excessive considering the frequency and pervasiveness

of the abuse of this victim.

Like the acts committed against the victim in Phillips,

we believe that each act was “capable of producing its own

attendant fear, humiliation, pain, and damage to the victim.”

Phillips, 924 S.W.2d at 665. Furthermore, each act required a

different body position and engaged different body parts,

evidencing a separate intent on the part of the defendant. Id. We

conclude that under the principles of Denton and Phillips, the acts

of aggravated sexual battery and rape of a child were discrete acts

that justified separate convictions. We conclude, therefore, that

double jeopardy principles are not violated through the imposition

of multiple convictions in the case under submission.

V

To summarize, we conclude that the language of the

indictment in this case was sufficient to vest the trial court with

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jurisdiction over the offenses. We conclude, also, that separate

convictions for aggravated sexual battery and rape of a child were

constitutionally justified under the facts presented at trial.

Accordingly, the judgment of the Court of Criminal Appeals is

affirmed. Costs shall be assessed against the defendant.

______________________________
ADOLPHO A. BIRCH, JR., Justice

CONCUR:
Anderson, C.J.
Drowota, Holder, JJ.

Barker, J., not participating

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