State v. Burgin

DAUGHTREY, Judge,

concurring.

I continue to believe that the events described in the Court’s opinion, however unfortunate, involved only a single episode and grew out of a single assault. If this view is correct, the defendant is properly subject to a single penalty for his offense.

The great majority of my colleagues on the Court disagree with this view, however. In several unreported cases they have repeatedly held that different kinds of forced sexual intimacy, although part of the same general assault and punishable under the same statutory definition of penetration, T.C.A. § 39-2-602(11), nevertheless constitute separate crimes punishable by separate and even consecutive penalties. See also State v. Peacock, 638 S.W.2d 837 (Tenn.Cr.App.1982). Until our Supreme Court holds otherwise, this appears to be the prevailing rule in Tennessee, and although I do not agree with this interpretation of our sexual offenses law, I have no alternative but to concur in the judgment in this case.