# FILED
February 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1997 SESSION
STATE OF TENNESSEE, ) ) APPELLEE, ) ) No. 02-C-01-9610-CC-0 0362 ) ) Henderson County v. ) ) J. Franklin Murchis on, Judge ) ) (Rape and Sexual Ba ttery) DONALD LONG, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: George Morton Goo ge John Knox Walkup District Public Defender Attorney General & Repor ter 227 W. Baltimore Street 500 Charlotte Avenue Jackson, TN 38301 Nashville, TN 37243-0497 Vanessa D. King Elizabeth T. Ryan Assistant Public Defender Assistant Attorney Gener al 227 W. Baltimore Street 450 James Robertson Parkwa y Jackson, TN 38301 Nashville, TN 37243-0493 James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302 Donald H. Allen Assistant District A

ttorney General P.O. Box 2825 Jackson, TN 38302

OPINION FILED: AFFIRMED Joe B. Jones, Pre siding Judge1 It is the policy of this Court not to identify the minor victim s of sexual ab use.
2 

## OPINION

The appellant, David Long ( defendant), was convicted of rape, a Class B felony, and sexual battery, a Class E felony, by a jury of his peer s. T he trial court, finding the defendant was a standard offender, imposed R ange I sentences consistin g of confinement fortwelve (12) years for rape and two (2) years for s exual battery in the Department of Correction. The two sen tences a re to be se rved concu rrently. In this court, the defendant contends: (1) the indictment failed to allege the requisite mens rea, (2) the evidence was insufficientto convict the defendant of rape, (3) the trial court erred by failing to sustain the defendant’s Batso n obj ection when the State of Tennessee per emptorily challenged a
m embero f his race, (4) the trial court erred by denyi ng his motion to suppress an incriminatingstatement given to the pol ice, (5) the jury i nstructions and convictions forrape and sexual battery violated the Double Jeopardy Clause of the Fifth Amendme nt because the events involved a single episode, (6) the trial court erred by failing to instruct the jury
on the lesser included of fe nse of statutory rape, and (7) the trial court erred b

y applying enhancementfactors (4), the victi m was particularly vulnerable because of

age or physical
orment al disability, and ( 15), he breached a position of pri vate trust. After a thoroug h review of the record, the briefs submitted by the parties, and the law gov erning the issues presented for review, it is the opinion of

this court that the

judgment of the trial court should be affirmed. The victim, M.C., 1 and Christine Taylor, the defendant’s stepdaughter, attended karate classes together. Since M.C.’s mother w as working at

night, it was agreed that M.C. could spend the week with C hristine and her family. This arrangement m ade it possible for M.C. to attend karate classes. The victim was thirteen years of age. Christine was a few years younger than M.C. During the early morning hour s of July 21, 1994, the victim was asl eep in the same bed with the defendant’s stepdaughter. The victim awoke w hen the defendant grabbed her buttocks. The defendant whispered in her ear, “Man, oh, man I w ant to fuck you.” As3

she woke up, the defendant rolled h er over onto her back and put hi s hand down her pants. The victim stated she w as afraid to say anything becaus e she though t the defendant might hurt her. She tried toavoid his advances by rolling back onto her stomach and tucking the covers underneath her. The defendant then rolle d her onto her back again and put his hand down her pants. H e unbuttoned and unzipped her shor ts, and put hi s finger in her vagina, moving itback and forth for approximately one minute. The defendant then buttoned and zipped up her shorts. The defendant reached inside the victim’s shirt and began rubbing and squeezing both of her breasts. Christine woke up dur ing the incident. The defendant stopped and laid down on the floor by the bed s o Christinecould not see him. When Christine went back to sleep, the defendant resumed fondling the victim . He laid do wn beside the victim, took out his erect penis, and put her hand on it. He put his hand over hers and made the victim masturbate him. The victim pulled her hand away before he ejaculated. W hile the victim
was frightened, she remained sil ent because she was afraid “he mighthit me or something.”When the def endant heard his wife wake up in another bedroom, he left. Before leaving, the defendant turned to thevictim and said “I see . You want m e to leave you alone.” The next morning the victim tol d Christinewhat had occurred. When a family friend stopped by

the residence to check on the victim, the friend reali zed something was wrong and took the victim to her mother. The victim told her mother abou t the eventsthat had taken place, and the two went to the police station to file a report. M. C. and her m other also went to the hospital so M.C. could be examined. The following day, officers talked to thedefendant regarding the complaint received from M.C. and her mother. The defendant s ubsequently gave the po lice a stat eme n t regarding what had o

ccurred. He told the poli ce:
I walked over to the bed and rubbed Mel issa on the butt. I began to rub her breast through her clothing. I reached down and rubbed her vagina w ith my hand. At this time she had her shorts on. I later put my hand down her panties and s horts. I pl aced my finger in her vagina and beg an to move my finger in and ou t. I did this for about one minute or less.4 I pulled my penis from my shorts and placed Mel issa’s hand on it. I held her hand by the wrist and moved her hand back and fort h o n my penis. She masturbated me for about a minute. I stopped and whispered in her ear, “I’m going to l eave y o u alone.” The defendant disputed parts of his statement d uring the trial. He testified he did not tell the victim “I want to fuckyou,” did not roll the victim onto her back when she turned away from him and tucked the covers ar ound her, and did not dig itally pe netrate the v ictim. The defendant admitted he fondled her breasts and buttocks , and placed her hand on his penis. I.

The defendant contends the trial court did not have jurisdiction in this cau se because the indictments for rape and sexual battery w

ere fatally defective. The defendant argues the indictments were v oid because they did not all ege the requ isite mens rea for the crimes charged. He cites State v. Roger Dale Hill, Sr. , Wayne County No. 01-C-01- 9508-CC-00267, 1996 WL 346941 (Tenn. Crim. App., Nashvill e, June 20, 1996) and State
v. Nathaniel W hite , Sullivan Co. No. 03-C-01-9408-CR-00277, 1995 WL 336977 (Tenn. Crim. App., Knoxvil le, June 7, 1995), in support of his argument. The indictments in this case w ere adequat e . The indictments charged that the defendant “did unlawfully and forci bly sexually penetrate [M.C.],” and “did unlawfully commit sexual battery by using force to

engage in sexual contact with [M.C.].” Like the indictmentsin Hill and White , b oth indictments in the present case used the term “unlawfu lly” rather th an specif ying a ment al state. Howeve r, the supreme court recently held that this language is sufficient for an indictment to pass con stitutional, statuto ry, and common law muster. State v. Hill , 954 S.W.2d 725 (Te nn. 1997). This issue has no merit.5 II.

The defendant contends the evidence presente d at trial was insuffic ient to pr ove beyond a reasonable doubt that he was guilty of rape. The defendant asserts the state did not present sufficient evidence to prove the defendant penetrated the victim using force or coercion. By only presenting testimony from the

victim, without any

corroborating medical
or other independent evidenc e, the defendant argues the state faile d to meet its burden of proof. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984).

A.

When an accused challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence adduced at trial is sufficient "to support the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is

applic able to fi ndings

of g uilt bas ed upon direct evidence, ci rcumstantial evidence, or a combination of direct and circumstantial evidence. Stat e v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convicting evi dence, this court does n ot reweigh
or reevaluate the evidenc e. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim.App.), per . app . denied (Tenn. 1990). Nor may this court s ubstitute its inferen ces for th ose drawn bythe trier of fact from circumstanti al evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert

. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed. 49 (1956). To the contr ary, thi s court is required to afford the State of Tennessee the strongest legitimate view of th e evidence contained in the r ecord as well as all

reasonable and legitimate inferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of the witnesse s, the weight and value to be given the evidence, as well as all factual issues raised by the e vidence are resolv

ed by the trier of fact, not this court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), our supreme court said: "A g uilty verdict by the jury, approved

by6

the trial judge, accre dits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." Since a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the app ellant, has th e burden in this court of illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This court wil l not disturb a verdict of guilt due to the sufficie ncy of the evi dence unless the facts contained i n the record are insuf ficient , as a mat ter of la w, for a rational trier of fact to fin d that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

The offense of rape is defined by statute as “unlaw ful sexual penetration of a victim byt he defendant” when “force or coer cion is used to accomplish the act.” Tenn. Cod e Ann. § 39-13-503(a)(1). Before the defendant could be conv icted of r ape the State of Tennessee was required to prove beyond a reasonable doubt the defendant (a) unlawfully penetrated the victim and (b) used forc e or coercion. The record establ ishes each element of this offense. The victim, M.C., w

as spending the week at the defendant’s house in July of 1994,
so she could go to karate class with the defendant’s stepdaughter, Christine, while M.C.’s mother worked nights. At the time of the offense, M.C. was 13 years old. The defendant was 5 feet, 11 inches tall and 280 pounds when the incident occurred. The victim testified she and C hristine were asleep in bed together on her third night at the de f endant’s residence when s he was awakened by the defendant grabbing her buttocks. The defendant whispered in her ea r “Man, oh, man I want to fuck you.” As she woke up, the defendant rolled her over ont o her back and put his hand down her pants. The victim stated she was afraid to say anything because she thoug ht the defendant might hurt her. Instead, she tried to a void his advances by

rolling ba ck onto her stomach and tucking the covers underneath her.The defendant then rolled her onto her back again and put his hand down her pants. The victim testified that he unbuttoned and unzipped he r7

shorts, a nd put hi s finger in her vagi na, moving it back and forth for approximately one minute. The victim testified she was frightened, but that she did not call out because she was afraid “he might hit me or something.” The next day, the defendant gave a statement to the p olice in which he stated“I .

. . put my hand down her panties and shorts. I placed my finger

in her vagina and beg an to move my finger in an d out. I did this for about one minute or less.” However, the defendant disputed this portion of his s tatement when he testified du ri ng the trial. He testified that he did not tell the vi ctim “I want to fuck y ou,” did not roll the v

ictim onto her backwhen she turned away from him and tucked the covers around her, and that he did not digitally penetrat

e the victim. The defendant c onc eded the statement he gave the police was accurate in stati ng he fondled her breasts and buttoc ks and placed her hand on his penis. At trial the defendant said:

I did walk over to the bed and grab her on the butt, and I did feel her t---s. But as far as putting my hand down her pants, no, I did not because she was wearing a body

suit along with bra and panties with biker t ype shorts and another shirt on over that. So as far as -- and I could not un zip or unbutton them because, like I said, they were like biker s horts.
The defendant testified the reason he to ld the polic e he digitally penetr ated the victim w as because the officer told him what the v ictim’s statement had been and then “stated that I needed to tell him wh at h e knew to be t he truth or Iwas goin g to do some time, and he meant so me serious hard time.” The defendant said the officer promised that if he to ld truth he could go home, go to work Monday, and simply have to sub mit t o counseling. In response, the defendant said “I told him -- what that statement there -- yes, I told him all of that, but that w as after he had told me what her st atement was, which is

the same as that.” As p reviousl y stated, the resolution of conflicting evidence is for the jury, not this court. The jury saw the

witnesses, observed their demeanor, assessed their credibil ity, and concluded th at the defendant raped the v

ictim. There is sufficient evidence to s upport a finding by a rati on a l trier of fact the defendant was guilty of the rape of M.C. beyond a

reasonable doubt. Tenn. R. App. 13(e). This issue has no merit.8 III.

The defendant contends the tria l cou rt erred in overrul ing counsel’s objectio n pursuantto Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed.2d 69 (1986). The defense argues theState of Tennessee used two peremptory challenges to strike AfricanAmerican venire members who knew the defendant. The d efendant is an AfricanAmer ican. The defendant states his equal prot ections rights wer

e violated because the state used its peremptory chal lenges agai ns t the African-American veni re members but not against two Caucasian venire members who al so knew the defendant. Stephen Priddy, a p rospecti ve juror, was called during the selection of an alternate juror. Mr. Priddy was

peremptorily challenged. The trial court advi sed Mr. Priddy he was excused. Defense counsel requested a s idebar conference. The following occurred du ring the sidebar conference.

MS. KING: Your Honor, just to reserve this matter forappeal, we make a Batson Motion. THE COURT: I understand that. That’s o verr uled in this particular

case. I don’t see any pattern in the dir ection that

Mr. Allen has been follo wing, but in any event wi th this particular wit ness, he knows the defendant. That’s enoug h, I thi nk, t o getit by Batson, consideri ng th ere have been no challenges based upon race by Mr. Allen that I could see. And that one -- you have someone that knows the defendant. Isn’t that what he said? MR. ALLEN: Yes, sir, he said he knew the defendant. He had helped him move. THE COURT: All right.Note the objection. MR. ALLEN: He said that he had helped him move. MS. KING: Your Honor, he also sai d that he could be fair and impartial. THE COURT: I understand that. He’s taking a peremptory challenge. There’s a basis for a perempt her e -- not a basis for cause. But I don’t thin k you r Batson objection is go od, but nevertheless, you hav

e made it. It’s in the recor d.
The next mention of this issue appea rs in the motion for a new tr ial. The defendant alleged: “The defendant was denied a trial by a jury of his peers, to-wit: the trial Court erred in failing to sustain Bats on motion.”9 This issue wa s discussed during the hear ing on the motion for a new tr ial. The following colloquy oc curred during the hearing:

MS. KING: My

next point is that there were (sic) a Batson issue in the trial, Your

Honor. If you will recall, Mr. Allen stru ck two blackjurors who prev iously had contact with Mr. Long and who knew him, but he did also leave white juror s on t he jury that knew the defendant, Mr. Long, before trial. I believe the -- that the juries (sic) were rehabilitated, and Mr. Allen still continued to strike those jurors, I believe, pri marily because they had known Mr. Long before trial and because they were of the African persuasion (sic). THE COURT: All right. Do you ca re to be heard on that Mr. Allen. On the striking-- MR. ALLEN: Your Honor, all I would say is that that objection was made at the tim e that the jury was being selected. The Court ruled on it at that point. Ido remember the jurors that were s truck by

the State, indicated that the ( sic) knew the def endant. I think they work ed with him out at Johnso n Controls -- wherever

it was. They had worked wi th him a pretty long time and knew him fairly wel l, a s best I remember. The Court ruled on that at the time of the trial. * * * * THE COURT: On the Batson thing -- the Court looked at those things awful close, andwe routinely -- it looked like if we here headed in that direction of there being a question about it -- I required the Attorney General to state why he was chal lenging a minority -- or w

hatever the situation may be. In this case Mr. Allen -- there was no v

iolation here. He had some grounds for challenging them. There w ere no Batson violations.

Given the state of the record, this c ourt will now c

onsider this issue. The record is devoid of evidence regarding this issue. This court must revert to other parts of the record to determine certain facts, e.g. , the defendant is an African American based upon photographs introduced into evidence.

A.

In Batson v. Kentucky , the United States Sup r eme Court held that the use of peremptory challenges by the state to exclude jurors on the basis of their race vi olates the Equal Protection Clause of the Four teenth Amendment to the U.S. Constitution. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Jones , 789 S.W.2d 545, 548 (Tenn.),10

cert
. denied , 498 U.S. 908, 111 S.Ct. 280, 112 L. Ed.2d 234 (1990). When the accused desires to chal lenge the State of Tennessee’s use of a peremptory challenge to exclude a juror based on race or gender, the accused must bri ng the objection prior to

overtly or tacitly accepting the jur y, and prior to the admini stration of the jury’s oath. State v. Peck , 719 S.W.2d 553, 55 5 (Tenn. Crim. App.), per . app . denied (Tenn. 1986); State v. Pamela F. Boston , Hamilton County No. 03-C-01-9509-CR-00284, 1996 WL 653821 (Tenn. Crim. App., November 8, 1996), per . app . denied (Tenn. June 2, 1997). If th e accused does not raise the Batson issue before the jury is sworn, the accused is deemed to have waived the issue. Boston , supra ; Peck , 719 S.W.2d at 555. See Ford v. Georgia , 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed. 2d 935, 948-49 (1991) (granting st

ate courts the authority to consider Batson issues waived if not raised before the jury is swor

n); State v. Robert Williams , Hamilton County No. 03-C-01-9302-CR00050, 1996 WL 146696 (Tenn. Crim. App., Knoxville, April 2, 1996) ( Batson issue raised forthe first time in the motion for a newtrial deemed waived) ; State v. Paulette Irby and Pete Irby , Cocke County No. 130,1988 WL 60393 (Tenn. C rim. App., Knoxville, June 14, 1988), per . app . denied (Tenn. September 6, 1988) ( Batson issue raised for the first time in the motion for a new trial deemed waived); State v. Johnny W. Philpot , Hamilton County No. 988, 1987 WL 12052 (Tenn. Crim. App., Knoxvill e, June 12, 1987), per . app . denied (Tenn., September 8, 1987) ( Batson issued raised for first time in the motion for new trial deemed waived). To establish a Batson violation, a defendant must first make out a prima facie case of discrimination; simply dismissingAfrican American jurors alone is not unconstitutional. State v. Bell , 759 S.W.2d 651, 653 (Tenn. 1988), cert
. denied , 489 U.S. 1091, 109 S.Ct. 1560, 103 L .Ed.2d 862 (1989). A defendant must: (1) show that the challenged juror is
a member of a “cognizable ra cial group” and the pros ecution used peremptory chal lenges to exclude members of defendant’s race;(2) rely on the fact that peremptory challenges constitute a “jury selection p ractice that permits ‘thos e to discriminate who

are of a mind to discriminate;’” and (3) demonst rate the relevant f acts and circumst ances give rise to an inference that the prosecutor challenged jurors due to their race. Batson , 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. Once a defendant makes out a prima facie case11

of purposeful discrimination, the burden shifts to the state to provide a race- neutral reason forthe exclusion

. Batson , 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88 . This explanation does not have to rise to the level of a justification for a challenge for cause. The trial court must then determine whether the peremptory challenge w as motivated by discr iminatory purpose by examining the “totality of relevant facts.” Bell , 759 S. W.2d a t 653. When reviewing a trial court’s rul ing on a Batson issue, this court “c annot substitute

. . . [its] judgment for that of the trial court or declar e error absent a finding that the trial judge abused his discretion.” State v. Matthew L. Moates , Monroe County No. 03-C-01- 9610-CR-003 83, sl ip op. at 5, 1997 WL 344800 (Tenn. Crim. App., Knoxv ille, June 24, 1997); State v. Melson , 638 S.W.2d 342, 34 7 (Tenn. 1982), cert
. denied , 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). In view of these pr inciples, this court must determine whether the trial cour t erred in failing to sus tain the def endant’s Ba tson objection. B.

Based upon the record before us, there is no showing of discrimi natory purpose by the prosecutor in exerc ising his peremptory

challenges. The defendant is an African American. The state used t wo peremptory challen ges to remove African American venire members who knew the de fendan t, while lea ving two Caucasians on the panel who also had prior contact w ith the defendant. The state used
one peremptory challenge t o strike Ms. Latonia Jos eph, an African American woman who had worked with the defendant for three years. When the state peremptoril y challenged Ms. Joseph , defense counsel did not interpose a Batson objectio n. Subse quently, t wo Caucasian v enire members, Ms. Jean and and Mr. Emory, indicated that they had encountered the defendant before. Ms. Jean believed she had worked with the defendant at some point in the past. She was not sure she worked for the same employer. Mr. Emory had seen the defendant in a super market. Finally, Stephen Priddy, another Afri can American venire member, indicated that he had been friends with the defendant tw o years before charges were brought in this case12

and he had helped the defendant move on on e occasion. Mr. Priddy also acknow ledged he had received information about the detai ls of t he crime at issue “on the st reet.” The assistant district attorney generalexercised another peremptory challenge to remove Mr. Priddy, who was being cons idered as an alternate juro r. At this time, defense counsel made a Batson objection to the removal of Mr. Priddy; defense couns el made no mention of the earlier removal of M s. Joseph. In fact, the defendant made no refere n ce to the removal of Ms. Joseph as a Batson violation until his motion for new trial. Since the defendant did not raise a Batson issue regarding Latonia Joseph until the hearing on the motion for a new trial , the issue of her removal has been waived. Williams , supra ; Irby , supra ; Philpot , supra . The com plaint re garding th e two white p rospecti ve jurors, one who might

have worked with the defendantand one who may have seen him in a supermarket, becom es mo ot. Ms. Joseph was the only person who had definitely worked with the defendant, therefore her removal over t he white prospectiv

e jurors was appropriate. The trial court overruled the defendant’s Batson objection following the state’s challenge to Mr. Priddy. The cour t found the defendant had failed to establish a pr im a f acie case of purposeful discriminati on. Thus, the state was not r equired to pr

ovide a legitimate, nondiscriminatory reason for the peremptory st rike ofMr. Priddy. How ever, the assistant district attorney g eneral did state for the recor d the state’s justification for th e peremptory challenge of Mr. Priddy. The assist ant dis trict attorney general stated Mr. Priddy “said he knew the defendant. H e had helped him to move.” The record further reflects Mr. Priddy was

aware of the defendant’s predicament by talking to people “

on the street.” In addition, the defendant and Mr. Priddy had bee n rather close friends.

C

.

The appellant failed to establish a prima facie case of

exclusion based upon race. State v. Peck , 719 S.W.2d 553, 555-56 (Tenn. Crim. App.), per . app . denied (Tenn. 1986). There is no evidence in the r ecord that therace of Mr. Priddy was a factor in his exclusion. Further, the recor d does no t state wh eth er any other African American venire members13

were on the pane l or w hether any other peremptory challenges were used by the state against African-American v enire members. Even if the trial court h ad foun d a prima facie case of discriminatory purpose existed, the state had a legitimate, nondiscriminatory justification for excludi ng Mr. Priddy. The explanation given

by the District Attorney General was a “neutral, rational and specific objection sufficient to rebut any inference of illegal discrimination.” State v. Weatherspoon , 719 S.W.2d 304, 307 (Tenn . Crim. App.), per . app . denied (Tenn. 1986). Therefore the trial court did not abuse its discretion by overruling the defendant’s Batson objection. This issue has no merit.

IV.

The defendant contends the trial court committed err or of prejudicial dimensions by den ying his motion to suppress an incriminatory statement he gave to Lexington polic e officers. He argues the police officer s failed to give him the Miranda warnings prior to questioning him about the allegati ons made by M.C. See Miranda v. Arizo na , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In his brief, the defendant states: “Additio nally, the Appellant contends that promises were made to sol icit the statement given.” However, the defend ant does not state what “pr omises” were made by I nvestigator Berry man t o induce him to make the incrimi nating statement in questi on. Investigator

Ray Berryman of the Lexingt on Police Department and the defendant testified at the suppression hearing

. The trial court made findings of fact following the introduction of evidence and the argument of cou nsel for the respective parties. Investigator

Berryman testified he talk ed with the victim on the evening of July21, 1994. The next morning, he and Investigator Bruce Rhodes went to the defendan t’s place of employment. Investig ator Berryman asked the defendant if he would accompany them to the Lexington Police Department. He explained to the defendant he wanted to interview him. The defendant voluntarily agreed to accompany the of ficers. While en route to the police station, the defendant askedthe investig ators why they want

ed to interv

iew him. Officer Berryman explained the nature of the all egations to the defendant. The defendant14

was not asked any ques tions prior to their ar

rival at the police s

tation. According to Investi gator Berryman, he gave the defendant the Miranda warnings when they arrived at the poli ce station. The defendant stated he understo od his rights. The investigator

next explained the waiver of rights form and asked the defendant to read the form himself. The defendant stated he understood the contentof the waiver of rights form and he signed the form. Thereafter, the def endant was questioned regarding M.C.’s allegations. The defendant freely and voluntarily gave the incrimin ating st atement herei nab ove set forth. Investigator Berryman testified he made no pr omises to the defendant. The testimony of the defendant conflicts w ith the testimony of

Investigator Berr

yman as to every material fact . The defendant testified Investigators Be rr yman and Rhodes began qu estioning him while en route to the police station.The Miranda warnings wer e not given before the questi oning commenced. The questioning continue d at the police station. He agrees

he ma de a statementto the investigators . He admitted he was not threatened or coerced to make the statement. However, he testifie d he signed the waiver of rights form after

he had given the statement -- the same time he signed the statement he made to the investigators. The trial court made findings of fact after the presentation of evidence and the arguments of counsel. In ruli ng, the court said:

The Motion to Suppre ss is denied. Th e Court makes a f inding, first of all, that Mr. Long w as not arrested before h e went down and made his statement. Also, th at he w as given a full Mi ra nda Warning. He understood it [these rig hts] before he made his stat eme nt. There was no force, coerc ion, fraud, promises or th reats th at were made by Officer Ber ryman to cause Mr. Long to make a statem ent, and that, in s ummary, the statement was made freely and voluntarilyby Mr. Long and is admissible in Court.
When an accused challenges the admi ssibility of a statemen t he made to a law enforcement official, it is the duty of the trial court to conduct an evidentiary hearing, make findings of fact, and determine whether the statement is admissible as evidence during the trial on the merits. Sta te v. Pursley , 550 S.W.2d 949, 952 (Tenn. 1977). In making its findings of fact, the court must assess the credibility of the w itnesses, resolve any

conflicts15

in the evidence adduced during the hearing, and, finally, determine the w eight and value to give the evidence

. State v. Odom , 928 S.W.2d 18, 23 (T enn. 1996). When an issue involving the suppression of

evidence is presented for r eview, the appellate court must aff ord the findin gs of fact ma de by th e trial

court t he weig ht of a

jury verdict. Odom , 928 S.W.2d at 23; State v. Makoka , 885 S.W.2d 366, 371- 72 (Tenn. Cri m. App.), per . app . denied , (Tenn. 1994). In addition, “[t]he party prevailing in the

trial court is entitled to the stron gest legitimate vi ew of the evidence adduced at the suppression hearing as well as all rea sonable and legitimate inferenc es that may bedrawn f rom that evidence.” Odom , 928 S.W.2d at 2 3. Conseq uently, an appellate court must affirm the judgmentof t he trial court unless the evidence contained in the r ecord preponderates against the findings of fact made by the court or a rule of law has been erroneously applied. Odom , 928 S.W.2d at 23; Makoka , 885 S.W.2d at 371-72. This standard of review applies to all issues raised during the suppressio n hearing. It includes the issue of wheth er a law enforcement officer gav e the requisite Miran da warnings p rior to questioning an accused who has been taken i nto custody. State v

. Auc oi n , 756 S.W.2d 705, 708-10 (Tenn. Crim. App. 1988), cert
. denied , 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989). In this case, the trial cou rt obviously did no t believe the defendant. The c ourt resolved the conflicts in the testimony in fa vor of the state. The evidenc e does not preponderate against the findings of fact made by the trial cour t. The defendant’s reliance upon Vandergriff v. State , 409 S.W.2d 370 (Te nn. 1966), and State v. Nakdimen , 735 S.W.2d 799 (Tenn. Crim. App. 1987), is mispl aced. The same
cases were raisedin th e recent case of State v. Cooper , 912 S.W.2d 756 (Tenn . Crim. App. ), per . app . denied (Tenn. 1995). This court addressed these cases and concl uded they did not reflect the state of the law

. The defendant’s contention “that once the process shifts from investigatoryto accusator y, the cons

titutional rights of the Appellant

come into play” is clearly

not the law. As this c

ourt said in Cooper : [T]he appellee’s argument is pr edicated upon a

false premise. The standard enunciated in Escobedo v. Illinois , namely, a shi ft of the process from the investi gatory state to an accusatory stage, often referred to as “focus ,” was abandoned manyyears ago in Miranda v. Ariz ona . Escobedo is no longer16 the law in this juri sdiction. . . . Today, the test for determining w hether the Miranda

warnings s hould have been given by a law enforcement officer in this state is whether there h as been a “custodial interr ogation.”
912 S.W.2d at 766. See Stansbury v. California , 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Recently, the supreme court, citin g Coope r , held that the test advanced by the defendant was clear ly not the applicable tes t. State v. Anderson , 9 37 S.W.2d 851, 854 (Tenn. 1996). The su preme court’s decision in Anderson overruled all prior cases which “hold or indicate that the focus or progress of the investigation factor is relevant to the determination of whether a person is in custody and entitled to Miranda warnings.” 937 S.W.2d at 854. This issue is without merit.

. V.

The defendant contends the trial court violated the Double Jeopardy Clau se of the United States Constitution by fai ling to “instruct th e jury on alternate counts [which] resulted in cumulative punishment” and failing to “merge the s exual battery count and r ape count of the indictment.” The State o f Tennessee contends the “defe ndant was properly convicted of both rape and sex ual battery.”

A.

The United States Constitution grantsthe accused immunity from being placed in jeopardy for the same offense on more than one occasion. The Fifth Amendment provides in part that “no personshall ... be subject for the same offense to be twice put in jeopardy of life or limb. . . .” U. S. Const. amend. V. This clause is applicable to t he states throu gh the Due Process Clau se embodi ed in the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (19 69). The Tennessee Constitution also pr otects an accused from being twice placed in jeopardy for the same offense. Article I, § 10 o f the Tennessee Constitution prov ides17

“[t]hat no person shall, for the same offence, be twice put in jeop ardy of life or limb.” The purpose of the Double Jeo p ardy Clause and the values it protects was aptly stated in Green v. United States :

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and pow er should n ot be allowed to make repeated attempts to convict an indi vidual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as w

ell as enhancing the

possibility

that even thou gh innoce nt he may b e found guilty.
355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 19 9, 204 (1957). In other words, the Double Jeopardy Clauses contai ned in the United States Constitution and Tennessee Constitution “might properly be ca lled a rule design ed to encou rage repose and peace.” Holt v. State , 160 Tenn. 366, 372, 24 S.W .2d 886, 887 (1930). Bo th the United States Constituti on and the Tennessee Constitution pr otect an accused against (a) a second prosecution for the same of fense after the accused has been acquit

ted of the

offe nse, (b) a second prosecution for the same offense after the accused has been convicted of the offense, and (c) multip le punishment s for the same offense. Br own v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977); North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969); State v. Todd , 6 54 S. W. 2d 379, 381 (Tenn. 1983); State v. Cloud , 588 S.W .2d 552, 553 (Tenn. 1979); State v. Nixon , 669 S.W.2d 679, 680- 81 (Tenn. Cri m. App.), p e r . app . denied (Tenn. 1983). However, the Double Jeopardy Cl ause “does not offer a guara nty to the defendant that the State w ill vindicate its societal interest in the enforcement of the criminal laws in one proceeding.” Nixon , 669 S.W.2d at 681. Moreover, there is no bright-lin e test for determining when the Double Jeopardy Clause should be applied. B.

The defendant cites State v. Banes , 874 S.W.2d 73 (Tenn. Crim. App. 1993), per . app . denied (Tenn. 1994), forthe proposition that convi ctions for both sexual batter y and rape violate his double jeopardy rights when resulting from one criminal episode because18

sexual battery constitutes a lesser included offense of rape. However, this court stated in Banes : Under

some ci rc umstances the offense of aggravated r ape and aggravated se xual battery, though lesser included offenses, would suppo rt s eparate charges and separate convictions. The determination requires an anal ysis ofthe al legat ions of the indictment, the proof, and the element s of the offense. Banes , 874 S.W.2d at 79-80 (citatio ns omitted). Multiple convictions predicat ed upon one ep is ode of assaults do not necessarily violatean accused’s protection aga inst double jeopardy. State v. Phillips , 924 S.W.2d 662 (Tenn. 1996). This court has held “discrete acts can justify multiple convictions.” State v. Denton , 938 S.W.2d 373, 38 1 (Tenn. 1996). The primary issue to be c onsidered when determining whether multiple convictions violatedouble jeopardy is leg islative intent. Albernaz v. United S tates , 450 U.S. 333, 344, 101 S.Ct.1137, 1144-45, 67 L.Ed.2d 275, 285 (1981); Denton , 938 S.W.2d at 379; State
v. Phillips , 924 S.W.2d 662 (T enn. 199 6). In det ermining whether th e imposit ion of two convictions

from one criminal episode is proper, the supreme court sai d to look to several factors: (1) a Blockberger analysis of the statutory offe nses; (2) an analysis, guided

by the p rincip les of Duchac , of the evid en ce used to pro ve t he offenses; (3) a consideration of w hether there were mu lti ple victims or discrete acts; and (4) a comparison of the purposes of the respective statutes. None of these steps is determinativ e; rather the results of

each must be weighed and considered in relation to each other. Denton , 938 S.W.2d at 381.
In light of the foregoing principles, this court must determine w hether the imposition of two convictions for the event s occ urring in one criminal episode violated the Fifth Amendm ent’s pro tection s against d ouble jeo pardy.19 C.

In applying the rule of Denton to the present case, it is fir st necessary to determine whether the offenses constitute the same offense under the Blockberger “same elements test.” 2 84 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Sexual battery and rape do no t constitute the same offense under the Blockberger

test because each crime req uires proof of o ne element the other does not. Sexual b attery requires pr

oof of “unlawful sexual contact with a victim by th e def endant.” Tenn. Code Ann. § 39-13-505(a) (1997 Su pp.). Rape requires proof of “unlaw ful sexual penetration of a victim by the defendant or of the defendant by a victim” acco mpanied by “force or coerci on.” Tenn. Code Ann. § 39-13- 503(a)(1) (1997 Supp.). Although sexua l battery is a lesser grade offense of rape, rape requires proof of the addit ional el ement of penetrat ion, wh ich is d efined diffe rently than sexual contact. Tenn. Code Ann. § 39-13-501(6) and (7) (1997 Su pp.). More importantly, under the sec ond prong of Denton , sexual battery and rape fail the “same evidence test” because different evidence is necessaryto prove each offense. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973), cert
. denied , 419 U.S. 877, 95 S.Ct. 141, 42 L.Ed.2d 117 (1974); State v. Black , 524 S.W.2d 913, 919 (Tenn. 1975). Duchac requires an examination of whether the same evidence is used to prove each off ense in determining whether multiple convictions vio late d ouble jeopardy. Duchac , 505 S.W.2d at 239. The evidence used to prove rape in the present case w as the evidence relating to the defendant’s forcible digital penetration of the victim. The evidence used to support the charge of sexual battery relatedto separate and distinct act s of sexual contact committed bythe defendant which did not involve penetration--fondling the victim’s breasts, takin g his penis outand placing the victim’s hand on it,and putting his hand over the victim’s and making her masturbate him. Under Duchac , the evidence used to support the two charges related to two separate and distinct acts by the defendant. Denton next requires an in quiry into whethe r “there were multipl e victims involv ed”
or “several discret

e acts.” 93 8 S.W.2d at 381. Factors that should be examined in determining whether an offense i nvolves several discrete sex acts ar

e: (1) The nature of the act;20 (2) The area of the vict im’s bod y invaded by the sexually assaultive behavior; (3) The time elapsed between the discrete conduct; (4) The accused’s i ntent, in the sense that th e lapse of time mayindicate a newly formed intent to again seek sex ual gratification or inflict

abuse; and (5) The cumulative punishment. Phillips , 924 S.W.2d at 665. In the present case, the defendant had sexual contact w ith the victim that encompassed both fondling and penetration. The r ape occurred when the defendant digitally penetrat ed the vic tim’s vagina. The sex ual battery was commit ted afterwards, when the defendant fondled the victim’s breasts and pu t her hand on his penis. At one point, the defendant stopped touching the vi ctim and laid on the ground because his daught er, who was in bed next to the victim, had awakened. When his daughter fell back asleep, the defendant continu ed his actions against the vic tim. Therefore, the defendant ’s acti ons constituted separate and dis tinct actions of sexual miscond uct supp orting con victions f or both ra pe and se xual batt ery. Finally, this court must determine whether both statutes a t is sue serve the same purpose. Although both cr i mes are codified as sex offenses, they fall within separate classesof felony offenses--rape is a Class B felony and sexual battery is a Class E f elony. In addition, there is no presu mption of alternative sentencing in rape cases. Tenn. Code Ann. § 40-35-102(6). The reason for different felony classes is s o similar conduct is given similar punishment. Sentencing Commission Comments to Tenn. Code Ann. § 40-35-111. Therefore, the legislative i ntent behind the statutes indicat e s the legislature wasaddressing two separate “societal

evils.” In summary, the offenses of rape and sexual bat tery do not const itute th e same offense under the Blockburger analysis; the

same evidence was

not used to prove each crime; the offenses involved separat e, discrete sex acts; and the legislature did not intend forconvictions under the s tatutes for the two offenses to punish the same evil. Therefore, the defe ndant’s convictions for both sexual battery and r ape do not violate do ubl e jeopard y. This issue has no merit.21 VI.

The defendant contends the trial court er red in failing to instr

uct the jury on statutory rape. He concedes that statutory rape is not a lesser

included offense of rape, but argues statutory rape is a lesser grade of the offense of rape. State v. Trusty , 919 S.W.2d 305 (Tenn. 1996). He concludes by saying “the failure to give the instructi ons [on stat utory rape] denied the jury cons ideration of the Appellant’s theor y of the case.” This court has recently held statutory rape is not a le ss er grade of the offense of rape. State v. MichaelLynn Walton , Davidson County No. 01-C-01-9 509-CR-00290, 1997 WL 781705 (Tenn. Crim. App., Nashville, Nove mber 12, 1997). In addition, thi s court has held statutory rape is not a lesser grade of the offense of rape of a chi ld. State v. Michael Lynn Ealey , Greene County No. 03-C-01-9609-CR-00333, 1 997 WL 327337 (Tenn. Crim. App., Knoxville, June 17, 1997). This issue is without merit.

VII.

The defendant contends the sentences imposed by the trial court were excessive. He a rgues the trial court committed error of prejudicial dimensions by usin g tw o enhancement factors: the victim was particularly vulnerable because of age or physical
or mental disability, Tenn. C ode Ann. § 40-35-114(4)(1997 Supp. ) ; and the defendant abused a position of private tr ust, Tenn. Code Ann . § 40-35-114(15)(1997 Supp.), to increase the sentences wi thin the appropriate range.

A.

When an accused challenges the length and manner of service of a sentence, it is the du ty of this court to conduct a de novo review on the record with a presu mption tha t “the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-4 01(d) (1997 Supp.). This presumption i s “conditioned upon the22

affirm ative showing in the rec ord that the trial court considered the sentenci ng principles and all relevant facts and ci rcumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the leg al conclusions reached by the trial court in sentencing t he accused or to the determinations made by the trial court which are predicated upon uncontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App.), per . app . denied (Tenn. 1994); State v. Bonestel , 871 S.W.2d 163, 166 (Te nn. Crim. App. 1993). However, this court is required to give great

weight to the trial court’s determination of controverted facts as the trial court’s determination is based upon the witnesses’ d emeanor and appearance whe n testifying. In conducting a de novo review of a sentence, this court must consider (a) a ny evidence received at

the trial and/or sentencing hearing, (b) the presentence report, (c) the principles

of sentencin g, (d) the arg uments o f counse l relative to sentencing alternatives, (e) the nature and characteristi cs of the offense, (f) any mitigating or enhancing factors, (g) any statements made by the accused in his own behalf, and (h) the accused’s potential or lackof potential for

rehabilitation or treatment . Tenn. Code Ann. §§40-35-103 and -210. State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). When the accused is the appellant, the accused has the burden of establi shing that the sentence imposed by the trial c ourt was erroneous. Sentencin g Commission Comments to Tenn. Code Ann. § 40-35-401; Ashby , 823 S.W.2d 169; Butler , 900 S.W.2d at 311. B.

The trial court found three enhancement factors were applicable to this case. The factors used to enhance the appellant’s s entences were: (a)the defendant has a previous historyof criminal convictions or crim inal beha vi or in addition to those necess ary to establish the appr opriate range, Tenn. Code Ann. § 40-35-114(1) (1997 Supp.); (b) the victim of the offense was particularly vulnerable because of age or p hysical or m ental disabili ty, Tenn. Code Ann. § 40-35-114(4) (1997 Supp.); and (c) the defendant abused a position of public or private tr ust, or used a special ski ll in a manner that s ignifican tly23

facilitated the commission or the ful fillment of the offense, Tenn. Code Ann. § 40-35- 114(15) (1997 Supp.). (1)

The defendant contends thetrial court erroneousl y applied enhancement factor (4), Tenn. Code Ann . § 40-35-114(4) (1997 Su pp.). S ince the legis lature used age

to speci fy the felony clas s and range of punishment for rape, the defendant argues it was inappropriateto use age as an enhancement factor when the vi ctim’s age was six months
over the statutory punishment for rape of a ch il d. The defendant also argues the stat e failed to prove the victim was particularly vulnerable due to

her age. State v. Ada ms , 864 S.W.2d 31, 35 (Ten n. 1993). Age may be used as an enhancement factor when it is not an essential

element of the offense charged in the indictment. Tenn. Code Ann. § 40-35-11 4 ( 1997 Supp.). Further, this court has previously held that even where age is an element of theoffense,
as with the offense of rape of a child, this enhancement factor may be applied when the victim is particularly vulnerable due to age or disability. Adams , 864 S.W.2d at 35; State
v. Williams , 768 S.W.2d 714 (Tenn. Crim. App. 1988 ), per . app . denied (Tenn. 1989). Particular

vulnerability due to age or disability is a factual

issue to beresolved by the tri er of fact when the re cord indi cates that the victim w as “incapable of resisting , summoning help, or testifying against the perpetrator.” Adams , 864 S.W.2d at 35. The state bears the burden of proving the parti cular vulnerabilit y of the victim. Id

. In the present case, the indic tme nt charged the defendant with r ape pursuant to Tenn. Code Ann. § 3 9-13-501 (a)(1) (1997 Supp.), w hich is defined as the unlaw ful penetration of a victim accompanied by force or coercion. Since age is not an element of rape, it may properly be c onsidered as an enhancement factor. Tenn. Code Ann. § 40-35- 114 and 39-13-503(a) (1997 Supp.). This court is o f th e opinion the trial court properly enhanced the defendant’s sentence due to the v ulnerability of the vi ctim based upon the peculiar circumstances pr esented by this case. The victim was thirteen and one-half years of age when the defendant raped her. The defendant, an exceptionally la rge and imposing man, took ad vantage of thevictim in24

the dark of nigh t as she slept. She did not scream or cry for help because s he was frightened, and she was afraid the defendant would physically harm her if she screamed
or verbally sought help. The height and weight of the defendant would have scared most individuals, especial ly children. The supreme court has set forthcertain factors which should be consideredwhen determining whether this enhancement factor should be applied. The factors include (a) whether the victim, due

to age, was particularly unable to resist the cri me or summon help; (b) whether the victim’ s age, thirteen (13), i s entitled to additional weight;and (c) whether the victim’s vulnerabilit y increased the like lihood of her b eing t he target of the offense. State v. Walton , _

__ _ S.W.2d ____ (Tenn. 1997); State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). The facts in this case satisfy each of these factors.
(2)

The d efendant contends the trial court e rroneously applied enhancement factor (15), Tenn. Code Ann. § 40-35-114(15) (1997 Supp.). The defendant contends he had no special relationship with the victim w hich would constitute a position of private trust

. The defendant assertsthe victim was a stranger in his home -- he had not met the victim or her mother before the victim came to stay at his home for a week. Therefore, the defendant argues he did not have a rela tionship with the vict im induci ng or prom oting “rel iability, confidence, or faith” sufficient to justify application of en hancemen t fa ctor (15). State v. Kissinger , 922 S.W.2d 482 (Te nn. 1996). In order to apply factor (15 ), the trial court must fir st find the existence of a position of public or private tr

us t, a nd then determine whether ther e was a breach of that trust. While this enhancement factor is tradi tionally applied in ca

ses where the defen dant i s a parentor relative of the victim, it may also be applied if the defendant is a babysitter, teacher, or coach. Kissinger , 922 S.W.2d at 488. In Kissinger , the supreme court distinguishedbetween the application of thi s enhancement factor to a defendant who w as merelya casual visitor to the victim’s h ome a nd to a defendant who had been entrusted with the car

e of a victim. The court found a posi tion oftrust existed in the latter scenario,25

but not in the former. Kissinger , 922 S.W.2d at 489. In the pres

ent case , the defe ndant and his wife were entrusted as the victim’s caretakers while she was sta ying in their home. The de fendant was aware the

victim would be spending a week in hi s home, and he accepted responsibi lity for her well -being during that time by consenti ng to the extended stay. He violated this private trust by sexually abusing the victim. There was noabuse of discretion by the trial court in applying enhancement factor (15).

________________________________ __ ______________

_ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ JOE G. RILEY, JU DGE