### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 18, 2003

STATE OF TENN ESSEE v. FLOYD PERROW
Direct Appeal from the Circuit Court for Montgom ery County No. 40000431 Michael R. Jones, Judge

No. M2003-00319-CCA-R3-CD - F iled January 28, 2004

A Montgomery

County jury

convicted the Defendant, Floy d Perrow, of aggra

vated burglar

y, two count s of aggr avated rape, and agg ravated assault. The trial court merged the two convictions of aggravated

rape and sentenc ed the De fendant to an ag greg ate thirt

y- six and a ha

lf y ears in priso n. On appeal, the Defendant contends that: (1) insufficient evidenc e exists in the recor d to suppor

t his convicti ons; and (2) the trial court imposed a

n excessiv e sentence beca use it should ha

ve merg ed all of the Defendant’s convictions into a single conviction. The S tate also appeals, contending that the trial court e

rr ed by m erging the two agg ravated rape convictions. After thoroug hly reviewing

the record, we conclude

that suff icient ev idence e xists to support the Defendant’s convictions and that the trial court did not err by fa iling to merge all of the convictions into a single convic tion. However, we conc lude that the trial court er red by mergin g the tw o aggrav ated ra pe convictions. Accord ingly , we rev erse thisjudgmen t by the trial court, and we reinstate the two agg ravated rape convictions. We remand the case to the trial court for re- sentencing on those two convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed in Part, Affirmed in Part

R OBERT W. W EDEMEYER , J., d elivered the opinion of the court, in which J OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined.
Gregory D. Smith, Clarksville, Tennes see, (on appeal) , and Russe

ll Church, Assistant

District Pu

blic Defender, Clarksville, Tennessee, (at tria l and on appeal), for the appellant, Floy d Perrow.

Paul G. Summer s, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; Da vid H. Fi nd le y, As si st an t A tt or ne y Ge ne ra l; Jo hn We sl ey C ar ne y, Jr., District Attorney Genera l; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Te nnessee. Opinion I. Facts1 It i s the policy of th is Court to use i nit ials of a rape v icti m rather than t he vict im’s name.

2 W hil e we recogni ze that aggravat ed assaul t is not a l esser- incl uded offen se of at tempted f

irst degree murd er, State v. Brown , No. M1999-00691- CCA-R3-CD, 2000 WL 262936 (Tenn. Crim. App., at Nas hvi ll e, Mar. 9, 2000), perm. app. denie d (Tenn. Sept. 10, 2001 ), the parti es agreed to an amendment to Count Four of the indictment to ad d the c harge of agg ravate d assa ult and neither p arty raises this issue o n app eal.
-2- This case involves the rape and severe beating of L. M. 1 (“victim ”), a se venty -nine y

ear old woman, by an intruder w ho broke into her Clark sville home on the night of May 27, 2000. The Montgomery

County Grand Jury

indicted the Defendant, Floy d Perrow, for

one count of

aggravated bu rg la ry, one coun

t of agg ravate d rape by

vagina l penetrat ion, one count of aggrava ted rape by cunniling us, and one count of attempted first degree mur der. A jur y convicted the D efendant of aggravated

burgla ry , two coun

ts of ag grava

ted rape , and ag grava

ted assa ult as a le sser-included offense of attempted first degree murder. 2 The trial court merged the two counts of ag gravated rape and impose d an ag greg ate thirt y- six and a ha

lf y ear sen

tence. T he Defe ndant now

appeals

. The following evidence was present ed at the Defendant ’s trial in the Montg omery

County Circuit Court. Derek Crow, an officer with the Clarksville Police Depar tment, testified that he was dispatched to 3 Covington Street in Clarksville on the morning of May 28, 2000, to investigate a possible burglary and rape. He stated that, when he arr ived at the rear of the house, he noticed that the glass on the screen door had been pushed in and the screen was ly ing on the back porch. Officer Crow reported that, when he opened the screen door, he discovered that the door to the house was also open and

noticed t h a t the bottom

of the doo

r frame was cove

red by freshly cut gra ss, as if
someone with grass on his shoes had kicked the door in. He explained that he believed the intruder ga in ed access into the victim’s house by first ripping the screen off of the scr een door and then kicking the door in with a grass-cover ed shoe.

Officer Crow testified that, as he entered the house, he identified himself as a police officer and then heard

someone screaming in one of the rooms. The off icer stated that, instead

of waiting for back-up police officers to arrive, “ I went ahead and beg an clea

ring the residence to see if any one was inside an d [to ] see why the per son was still screaming.” He reported that, as he entered a hallway to ward a bedro om, he saw the victim lying on he r back at the front door, and, at first, he thought she was dead because “she was completely covered in blood.” The officer explained that,
once he approached the victim and identified himself as a police of ficer, the victim started screaming and moaning for help. He testified that “[s]he didn’t really believe at firs t, . . . that I was a police officer and I reiterate d to her that I was a police of ficer, [that] I was going

to help her.” Officer

Crow reported that the victim had her feet pinned against the fro n t door, “trying to keep anybody

from coming through the front door and she was beg ging me to help her and she just kept saying , ‘I need
some water, I

need some

water.’” He stated that the victim was wearing a nig htgown that “was complete ly open exposing her entirebody,” so he grabb ed a blan

ket off a chair a nd cover ed her w ith it. The officer reported that he then c alled for an ambulance to assist the victim, and, once the emergency

medical technicians arrived, they cut the bloody nightg own off the victim. He explained that, after he called for the ambulance, he finished clearing the house to make sure the intruder was no longer in the house.-3-

Officer Crow stated that, as he was clearing the house , he noticed that the back bedroom had “large amounts of blood” on the bed and the pillows. The offi cer sta ted that he questio ned the vi ctim at the crime scene about the identity of her attacker, but the victim could not provide the attacker ’s
name. He explai ne d that “[the victim] . . . referred to [the attacker] as her grass boy , and I didn’t understandthat. And she sa id it’s the . . . tall slender black man that cuts my grass.” Officer Crow testified that, when he asked her how she knew the attacker was her “g

rass boy,” the victim replied “that she could see through the light that was coming through the bedroom window, that it was the
man that cuts her grass.” The office r explained that the victim told him that her sister would know her “grass boy ’s” name. He reported that the ambulance took the victim to the hospital about fifteen to thirty minutes after it arr ived at the house. Officer Crow stated that he secure d the crime scene until the Major Crimes Unit of the Clarksville Police Department arrived.
Virgini a Heflin, t he victim’ s sister, t

estified that she li ved “up”the road from the v

ictim in Clarksvil le at

the time the victim was attacked. Heflin stated that, in April or May of 2000, she hired
a man to take care of her

yard and ide

ntified the Defendant as the y ardman. Heflin stated that, when the victim injured her shoulder, she recommended that the victim hire the Defendant to work in her yard also. On cross-examination, Heflin explained that the Defendant first worked at the trailer park that she managed, and then she hired him to do odd jobs in her y ard. She stated, “I would just g et him to do little things, you know, and I would pay

him and he

would go home.” H eflin

testified that she did not know how many times the Def endant mowed the victim’s ya rd before the attack.

The victim testified that she was seventy- nine at the time she was attacked in May of 2000. She explained that, on January 31, 2000, she fell on the icy steps a t her home and broke her shoulder. The victim stated that, after the fall, she was unab le to per

form many

daily tasks, an d that bec ause of this injury, in combination with her existing arthritis, her sister said “that she didn’t think I ought to be driving a mowe r an d doing all those things.” The victim explained that her sister
r ecommend ed “[the Defendant] and said that he had mowed her gr ass and he was mowing other folks’ grass every

where around and work[ing] for people.” She identifie d the Defendant as the man that she h ired to mow

her gr ass.
The victim testified thatshe went to bed at about 10:00 p.m. or 10:30 p.m. on May 27, 2000. She stated that

she was soundasleep and then instantly a woke when the back door was “broke ope n.” The victim expla

ined, “I t was just a very ha

rd noise and I [knew] the back end of the house was coming down.” She stated:

I wished I had time to have d one so mething, but . . . something happened so fast. .

. . I h eard the man coming through the ha ll–fast. And the next thing I knew, he lunged through the door and I

[saw] who it was and then he was over me and choking
me and had his big hands around my throat and I thought he w ould never tur n me loose . . . .

The victi m testifie d that the Defend ant attac

ked her a nd lunge d at her s o fast that she did not have time to react. She stated that she was wearing an old nightgown that buttoned down the front and-4-

her briefs, or “step-ins.” The victim explained that, “[a]t the time he was choking me, I could not breathe. Something happened that he turned me [loose].” She stated that the Defe ndant sta rte d stripping her and “when I got my bre ath back and I started saying , ‘why

are you doing

this?’ And he started hitting me, banging me aga in. He said . . . ‘shut up, b***h.’” The victim reported that the Defendant

slapped her hard every

time she asked, “why

are you doing this? Over and over again, the slapping would go on.” She explained that the Defendant stripped her

nightgown and her briefs off “real fast” and

threw them on the

floor. She

explained

that the D efenda

nt “was ju st grab

bing my
arms and he was grabbing e verywhe re–you know, he was just taking over my body with every kind of hand he could.”

The victi m testifie d that:
[The Defendant] starting having sex with me, and then he would go in the other

way quitea while and then he went down–my body with his mouth and his teeth, I don’t know wha

t kind of se

x would y ou call th at? Anyway . . . I just don’t know why he did that, now, but that’s what he did.

She stated that

the Defendant

penetrated her vagina with his penis and that he performed oral sex on her as well. Sh

e st a ted that th

e Defe ndant’s m

outh and teeth touch

ed her va gina. T he victim explained that the Defendant “kept knocking me out so hard . . . I guess I recognized we had gotten
on the floor and I wasn’t in the position he

wanted me , so he ke

pt a knock

ing–we nt to beating

me on the head then.” She stated that she did not know how she got on the floor, “[b]ut he was screaming at me and me screaming back a t him to put me back on the bed, the floor wa s hurting me so bad. ‘Will y

ou please put me bac

k on the be d?’ He said, ‘shut up, b***h, I want y ou on your belly.” She testified that the Defendant told her t h at he was going to stay

all night with her. The victim reported that the Defendant “kept knocking and then be at me and then a little later, I didn’t know what [any]body

was doing.” The victim stated that “I think he was beating me to death, I think he was trying

to rape a dead person.” She reporte d that, aft er the Defendant knocked her
unconsc ious, “I just couldn’t hardly guarantee wha

t wen t on [f

or] a few hours . . . .”The victi m stated that she awoke on the floor and the Defenda ntwas penetrating her

vagina again with his pen

is. She explained that the Defendant then thrust into her “about six hard times, before he got up and he left just as nice as he could down the hall.”

The victi m testifie d that:

I was laying the

re a long time, listening to see if he was going to come back. I was scared he might come back, if he thoug ht I was eve n still alive . I tho

ught he left me for dead for sure, so I la

id right still a long

time and li stened a

nd he didn ’t come back, so–I started

to crawl. I couldn’t g et up on my feet an d legs ha

d no use a t all in them, why–I

don’t know? . . . I

was takin g one elbow that I had use of it, and moved this hip one way a

nd then the other and

I wa s going

backwa rds. So, I got around the foot of my bed in the bedr

oom and the phone wa s p ulled out, my phone in the bedroom was pulled out. . . . And then I thought, I ’ve got to stay alive until I can ge

t back down the hall now, so I had to get back down the hall to the living room the
sameway and w

hen I got down ther

e, I couldn’t reach u p and ge t the phone , so I got-5-

it by the wire and pulled it down on my stool . . . .

The victim sta

ted that sh e waited until daylight so she c ould read the numbers on the phone and then called9-1-1. She explained that the police officer came to her house a short time after she called the police. The victim testified that she was on the floor by the front door when

the officer arrived

at her house , and then

the ambul ance ar

rived an d took her

to the hosp ital.
On cross-examination, the victim stated that she turned out

all the lig

hts when s he went to bed, “becau se [t here we re] pl enty of li ghts s hini ng thro ugh my c urtains f rom those businesses out there . . . .” She explained that, due to all of the light coming through her windows from the nea rby businesse s, “I could ge

t up to the bathroomwithout ev en turnin g a lig ht on in the

night.” The victi m stated that ther

e were two conve

nience s tores loc ated nea

r her be droom wind

ows. She te stified th at, while the Defendant had worked in her y ard, he had

notyet mowed it beca

use mowing was not y et
ne ce ss ar y. The victim explained that she told the Defendant when she hired him that “I don’t allow anybody in my house tha

t works f or me and

he did n’t say any

thing.” She stated that, after the Defendant

worked for her

awhile, she allowed the Defendant to use her phone to call his sister, “[b]ut I wish I hadn’t be cause it was against my rules.” The victim explained that she thought the Defendant

broke into her house at around midnight, though she did not know for ce rtain. She stated that she wears eye glasses all the time, though she does not wear them to bed. She explained that she could coo

k breakf ast withou

t her gl asses, but she could not read the news paper w ithout them

. The victim

testified that, even without her glasses, she saw a “ glimpse of” the Defendant as he came into the room. She stated that she could not remember the Defenda nt’s name on the morn ing following her attack, but she knew her attacker was the Defe ndant. The victim explained that she instantly recognized theDefendant when he lunged through the door a nd attacked her. On re-direct examination, th e v ic ti m e xp la in ed th at th e D ef en da nt br ok e h er eye socket when he beat her on the head.

Dr. William Driv er Shippe n, Jr., a phy sician with Clarksv ill e Emergenc y Phy sicians at Gateway Medical Center, was declared an e xpert in the field of emergency medicine by the trial court. Dr . S hi pp en te st if ie d t ha t h e e xa mi ne d t he vi ct im on Ma y 2 8, 2000 , after she had been phy sically

and sexually

assaulted. He stated that the victim told him that “she had been assaulted by someone, [who] had apparently broken into her home and had hit her in the face and the upper part of the bod

y a nd she ha d been se xually assaulte d by

that same person.” The doctor reported that the victim sta

ted that her assa

ilant penetr ated her vaginally with his penis and later stated that he performed

oral sex on her. Dr. Shippen testified that the victim “had marked bruising and swelling to the left side of

her head and face and then bruising from the anterior, front part of the neck, and
some on the upper front part of the chest and both for e arms. . . . The left ey e socket was swollen shut.” He stated that “X-ray s and a cat scan revealed what is ca lled a blow-out fracture of th e [ eye socket].”

Dr. Shippen te stified th at he als o conduc ted a sexua l assault e xamination, which re

vealed t h at “[t]here were so me superficial tears of the soft tissue around the skin and the soft tissue around the outside part of the vaginal opening, and bruises to the inside aspect of both thighs.” He stated that-6-

he didnot dis cover any

semen during his examination of the victim, though he explained that penetration can occur

without the semen being released. Dr. Shippen testified that the victim had bruises on almost seventy-five pe rcent of the left

side of her

face, which was consistent with injuries inflicted with a clo sed fist. He stated that the victim

also had severe bruising around her ne ck, “with
an apparent

darker area of bruising ove r the lary nx, the voic e box area ,” which was cons istent with injuries inflicted by choking the neck. The doctor explained that the bruises on the victim’s hands and forearms were consistent with “fen ding off a blow” or being held down by an attacker. Dr. Shippen explained that he be lieved th at most

people would become unconscious from the injuries sustained by t

he victim because “[t]hey would sustain a concussion, the force transmitted to the head and face would r ender the br ain mo menta rily depr ived o f bloo d supp ly and let the pe rson go unconscious for an indefinite period of time.”

Erin William Kellett, a homicide detective with the Clarksville Police Department, testified that he investigated

the rape of the victim that occurred during the night of Ma y 27, 2000, and the early morning hours of May 28, 2000. Detective Kellett stated that he talked with the victim’s sister, Virgini a Helflin, about the

name of the man who mowed the victim’s grass. He stated that Helflin gavehim the Defendant ’s name a nd told him th at “he li ved or stay ed up in L

ong’s Mo bile Home Park, somewhere around in that area.” De tective Kellett testified that he and other officers checked that location but were unable to locate the Defenda nt. He stated that, at 5:30 p.m. on May 28, 2000, he received a call from his lieutenant, who stated that the De fendant had been p ick ed up and was being taken to the police station . Detec tive Kell ett explained that he went to the

police sta

tion to interview the Defendant because he suspec ted that the Defendant was involved in the rape of the victim.

The detectiv e stated

that he r ead the D efenda

nt his Miranda

rights and had the Defendant initial the “rights waiver” form at 6:22 p.m. on May 28, 2000. Detective Kellett repo rted t hat the Defendant

waived h is rightsand ag

reed to answer questions. The detective stated that he told the Defendant

about the allegations of rape ag ainst him and then asked the Defendant for his side of the story. Detec tive Kellett explained:

Basi ca ll y, he stated that he needed a place to stay and that he used to cu t grass fo r [the victi m], so he went over there and entered the residence and had sex with her. . . . He stated that he kicked in the back door, went into her r oom and ha

d sex with th e l ad y.
The detective stated that the Defendant told him that he hit the victim one time and had sex with the victim on the flo or. Dete

ctive Ke llett reported that, when

he asked the Defe ndant whe

ther the victim fought with him, he replied, “Yes, she tried to fight back.” T he detective stated that theDefendant told him that the

victim had

underwe ar on at t

he time he

attacke d her but could not r emember whether she had on any othe

r clothes. The detective explained that he then asked the Defendant why he picked the victim’s house, and the Defendant replied, “because she was an old lady.”Detective Kellett stated that he wrote the narrative of his interview with the De fendant at about 7:11 p.m. on May 28, 2000. The detective explained that he allowed the Defenda ntto read the narrative to make-7-

sure it was an accurate account of wha t happened. The detective reported that “I had him sign at the end of the statement and then I wrote a statement down there, stating that this statement was written by me, and then he signed it and then he put his initials at the end of each a nswer that I wrote down.” The State then entered the Defendant’s state ment to police into evidence.

Detective Kellett stated that, af ter he g ave a sta

tement, the Defendant was taken to Gateway Hospital. He reported that the crime scene investig ators were unable to raise any latent prints of

the Defendant

at the victim’s home, though they found a shoe print on the door. On cross-examination, Detective Kellett st

ated tha t the Clar ksville Poli ce Depa

rtment did

not have v

ideo cam eras se t up to record interviews with sus pects, so he did not tape the interview with the Defendant, nor did he make
an audio recording. The detective state d that the Defendant told him that he was living under a bridge, and po lice r ecover ed pers onal b elongi ngs from someone u

nder tha t bridge . Detec tive Kell ett explained that he r

ead the D efenda

nt his r ights and asked him if he understood them, and the Defendant

told him that he understood. The detective stated that he did not have much experience working with mentally retarde d people. He explained that the Defendant “appeared to unde rstand what we were talking about .” Detect ive Kellett stated that, during the interview, he just let the Defendant

talk and “then I would interject eve ry now and then.”

The detective acknowledged tha t the Defend ant signed his nam e “Floyd Perr

ow” on one part of the statement and “Perrow Floy d” on another part, and stated that he did not notice the different signa tures at the time t he Defenda nt signed the statemen

t. The de tective e xplained th at “[s]ome p eople wr ite their last names first and then their first initials.” When ask ed whether he came to a conclusion about the De fendant’s intelligence, Detecti ve Kelle tt testifie d that “I

don’t know

what his e ducation al level i s. I mean he answered every que stion that I asked him and I understood what

he was say

ing . . . . I wouldn’t say that he was bright . . . .”

Richard Raymond Ber

tot, Jr., a l icens ed practical nurse at Gateway Medical Center Emergency

Room, testified that he perf ormed a mal e rape kit on the Defendant on the evening of May 28, 2000. He stated that he asked the Defendant a series of questions ona pre-made form and had the Defendant sign a consent form. Bertot explained that he then drew blood from the Defendant and collected some pubic hair from him. The nurse testified, “The firs t que stion

I a sked him [wa s], if he knew why

he was here? The only thing he said to me [was] ‘I guess they

say that I raped and beat a woman,’ and [ he was] not very emotional.” Be rtot stated that he then asked, “Did fellatio, cunniling us, or anal penetration allegedly occur? And his answer was ‘y es.’” The nurse explained that the D efenda

nt “did not show any

emotion, no remorse, no fear, no guilt, no sorrow, no ang er, nothing. His answers were very basic.” The Defendant did not present any evidence.
II. Analysis

On appeal, the Defendant contends that: (1) insufficie nt evidence exists in the re cord t o support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant’s convictions into a single conviction. The State c ontends that the trial court erred by

merging the two agg

ravated rape convictions.-8- A. Sufficiency of the Evidence

The Defend ant conte

nds that the evidence pres ented at trial wa s insuffic ie nt to su pport all of his convictions. When an accused challenges the suff iciency of the

evidence, an

appella te court’s standardof review is whether, after c onsideri ng the evidence in the light most favorable to the prosecution, any r

ational trier of fact could have found the essential elements of

the crime bey ond a reasonable doubt. Tenn. R. App. P. 13 (e); Jackson v. Virgini a , 443 U.S. 30 7, 324 (19 79); State
v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination o f both di rect and circumstantial evidence. State v. Pe

nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
In determining the suff

iciency of the

evidenc e, this Court should not re-weigh or re-eva luate the evidence. State v. Matthews , 805 S. W. 2 d 776, 779 (Tenn. Crim. App. 199 0). Nor ma y th is Courtsubstitute

its inferences for those drawn by the trier of fact from the evidence. Stat e v. Buggs , 995 S.W.2d 102, 105 (Ten n. 1999); Liak

as v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the cre dibility of the wit

nesses, t he weig ht a nd value of the evide nce, as w ell as all factual issues raised by the e vidence are resolved by

the trier of fact. Liakas , 286 S .W.2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the re cord, aswell as all reasonable inferences whic h may be dra

wn from the evidence. Statev. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of g uilt against a defendant
removes the pres umption of innocenc e and ra

ises a pr esumption

of guilt , the conv

ic t ed criminal defendant bears the burden of showing that the evidence was legall

y in sufficie

nt to sustain a guilt

y verdict. Id.

The De fe nd an t w as co nv ic te d o f t he fo ll ow in g o ff en se s: on e c ou nt of

ag gr av at ed bu rg la ry; two counts of aggravated r ape; and one count of agg ravated assault a s a lesse

r-includ ed offe nse of attempted first degree murder. The Defendant contends that the State failed to prove “the required
mens rea that [the Defendant] either knew he was making illeg al ac ts or intended to take illegal actions. As such, an essential element of all four convicted crimes, namely intent, is lacking .” The Defend ant mainta

ins that, due to his low IQ , he d id not know he wa s comm

ittin g ill ega

l act s. We disagr ee with th e Defe ndant’s a ssertions

.

1. Aggravated Burglary

A perso n commits a

ggra vated bur glary who, witho

ut the ef fective consent o f the pro

perty owner, enters a habitation with the intent to commit a felony, theft or assa ult or enters a habitation and commits or

attempts t

o commit a felony, theft or a ssault. Tenn. Code Ann. §§ 39-14-402(a), - 403(a) ( 1997). For the purpo ses of aggravate d burglary , “habitation” means “any structure, including building s, module unit s , mobile homes, trailers, and tents, which is designed or adapted for the
over nigh taccommodation of persons.” Tenn. Code Ann § 39-14-401(1)( A) (1997). The Code defines “enter

” for the purposes of b urglary

as an “[i]ntrusion of any part of the body [of the property],” Tennessee Code Ann otated section 39- 14-402(b )(1), or “[i]ntrusion

of any object in physical contact with the body or a ny object controlled by

remote control, electronic or otherwise.”-9-

Tenn. Code Ann. § 39-14-402(b)(2).
In this case, the Defe

ndant made the following statement to police: “I was walking around last ni ght . I n eeded a place to stay. I went to Virginia’s sister’s house. I worked for her cutting grass. I kicked in the back doo r and went into her bedroom and had sex with the lady .” The Defendant

stated tha t while he was havi ng sex with

the victim , the vict

im“tried to

fight back.” The Defendant further explained to police that he picked the victim’s house “[b]ecause she was a

n old lady.” The victim testified tha t she awo ke when she heard her back door being kicked in on the evening of May

27, 2000. She stated that she immediately recognized the Defendant when he lung ed into her bedroom and started to beat and rape he r. The victim testified that the Defendant performed cunnilingus on her and then penetrated her vag ina w ith his pe nis. She further testified that the Defendant

broke her eye socke

t during the course of the beatings. This evide nce clearly

shows that the Defendant

entered the victim’s residence and proceeded to beat and ra pe th e v ic ti m r ep ea te dl y. The Defendant pre sente d no evidence of his intelligence, or lack ther eof, or how his intelligence level af fe ct ed hi s m en ta l c ul pa bi li ty t o c om mi t a ggr av at ed bu rg la ry. The Defendant showed by

his actions on the night of the attack and by his confe ssion to police that he intended to commit burglary by unl awfully

enterin g the victim’s res idence a nd repea tedly raping and bea ting the victim

. Acco rd in gl y, w e conclude that a rational trier of fact could have found the essential elements of aggr avated burglar

y be yond a reas onable do

ubt.
2. Aggrav

ated Rape

Tennessee Code Annotated section 39-13-502(a) (1997) definesaggr avated r ape as: “[U]nlawful sexual penetration of a victim by the de fendant or the defendant

by a victim accompanied

by a ny o f the foll owing c ircumsta nces: . . . (2) The d

efenda nt cause s bodily

injury to the victim. . . .” Tennessee Code Annotated section 39-13-501(7) (1 997) s tates that “‘[s]exual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or a ny other intrusion, however slight, of any part of

a person’s body

or of any obje ct into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body , but emission of semen is not required . .

. .” Cunnilin gus, “a

sexual ac tivity

involving oral contact with the female ge nitals,” does not require that the mouth or tongue actually penetrate into the vagina. See St at e v . H oyt , 928 S.W.2d 935, 942 (Tenn. 1995) (quot ing Statev. Vande rbilt , No. 70, 1992 WL 69650, at *2 (Tenn. Crim. App., at Jackson, April 8, 19 92), per m. app. denied (Tenn. 1992)), overruled on other grounds by Spicer v. State , 12 S.W.3d 48 (

Tenn. 200 0); State v. Crabtree , No. E2 001- 02374 -CCA- R3-CD , 2003 WL 24001 5, at*4 (Tenn. Crim. App., at Knoxville, Jan. 31, 2003), perm. app. denied (Tenn . June 30 , 2003)

.
In this case, the jury c onvicted the Defendant of one count of aggravate d rape for penetrating the victim’s vagina with his penis and onecount of aggravate d rape for performing cunniling us, or oral sex, on the victim. The victim testified that the Def enda nt “starting having sex with me, and then he would g o in the other way quite a wh

ile and then he we

nt down–my

body with his mouth and h is teeth. . . .” She stated that the Defendant penetrate d her vagina with his penis and that h e performed

oral sex on her aswell. She testifie d that the

Defend ant’s mou

th and tee th touched her-10-

vagina. The De fe nd an t a dm it te d t o p ol ic e t ha t h e “ ha d s ex wi th th e l ad y” and that h e had sex w ith the victim “[o]n the floor.” When asked whether the victim fought with him, the Defendant re plied, “Yes, she tried to fight bac k.” When asked by a nur se whether “fellatio, cunnilingus, or anal penetration allege d ly occur[red],” the De fendant answered, “y

es.” This evidence is clearly sufficient to show that the Defendant sexually pe netrated the victim with his penis and his mouth.

The evidenc e also showed that the victim suffered bodily injury. Dr. Shippen testified that the victim “had marked bruising and swelling to the left side of he r head and face and

then bruising from the anterior , front pa

rt of the n

eck, an d some on th

e upper f ront par t of the c hest and b oth forear ms.

. . . The left ey e socket was swollen shut.” He stated that “X-ray s and a cat scan revealed what is ca ll ed a b lo w- ou t f

ra ct ur e o f t he [e ye socket].” Dr. Shippen testified that he also conducted
a sexual assault examination, which revealed t hat “[ t]here were some superficial tears of the sof t tissue aroundthe skin and the soft tissue around the outside part of the vaginal opening, and br uises to the inside aspect of both thighs.” The evidence clearly shows that the Defendant penetrated the victim’s vagina by

performing cunnilingus and by having sexual intercourse with the victim, and that the victim suffered serious bodily injury . Accordingly , we conclude that a rational trier of fact could have fou nd the Defendant

guilty on both counts of ag grava ted rape bey ond a rea sonable d

oubt.
3. Aggrav

ated Assa

ult

A person c ommits ag grava ted assa ult if he or she “[i]ntentionally or knowingly commits an assault as defined

in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B ) Uses or display s a deadl

y weapon.” Tenn. Code Ann. § 39-13-102(a) (1997)

. Tennessee Code Annotated section 39-13-10 1(a) (1 997) stat es that a person c ommits assa

ult if he or

she: “(1 ) Int

entio na ll y, knowi ngly

or re ck le ss ly c au se s b od il y in ju ry t o a no th er ; ( 2) Int en ti on al ly o r k no wi ng ly cause s another to reasonably f

ear imminent bodily injury ; or (3) Intentionally

or knowingly c auses physical contact with anoth

er and a reasona ble pers on would r

egard the conta ct as extre

mely offensi v e or provocative.”

In this case, the jury c onvicted the Defendant of one count of ag gravated assault as a lesserincluded offense

of attemp ted first

degree murder. The

victim testified that the Defendant choked her neck and repeatedly

beat her head

and body with his hands, causing her to go unconscious. The victim stated that the Defendant started stripping her and

“when I g ot my breath bac k and I started
sa y ing , ‘ wh y

ar e you d oin g t his ?’ And he started hitting me, banging me a gain. He said . . . ‘shut up, b***h.’” The victim reported that the Defendant slapped her hard every

time she asked, “why
are you doing this? Over and over again, the slapping would go on.”Dr. Shippen testified that the victim had severe bruising on her face , neck, upper chest, and forearms and a

fractured ey

e socket
as a result of the beating. The Defendant a dmitted to police thatthe victim fought with him and that he hit the vic tim one time . This evid ence is s ufficie

nt to suppor

t the jury ’s fin ding tha

t th e Defendant

intentiona lly or know ingly beat the victim, ca

using se rious bodi ly in

jury to the vic tim. Acco rd in gl y, w e conclude that a rational trier of fact could have found the essential elements of aggr avated a ssault be

yond a reas onable do

ubt.3 In his appellate brief , th e Defendant fail ed to argue any se ntenci ng is sues ot her th an the Anthony iss ue. Acc ord ingly, we conclude that the Defendant has waived any ot her sentencing i ssues. Tenn. R. App. P. 13(b); Tenn. R. Ct. Crim. App. 10(b).
-11- B. State v. A nthony Issue

The Defendant contends that the sentence imposed by

the trial court was excessive 3 because the trial court failed to merge the Defe ndant’s convictions for aggra vated burglary , aggravated ra pe and aggravated assa

ult pursuant to State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). The Defendant
con tends tha t “[t]he ac tions in this case all appear to relate to a commo n scheme

or plan. I

f this Courtfinds[the D efendant] was men tally competent to form the intent to commit burg lary, ra pe and/or murder, then the actions should mer ge as a single c rime acc ording t

o State v. Anthony .” We disagree with the Defendant’s a rgument.

In Anthony , the Tennessee Supreme Court held that a separate kidnapping conviction may violate due proc ess when

“the con finemen t, movement, or

detention is essentially incidental to the
ac co mp an yi ng felo ny” and not “sig nificant enough, in and of itself, to warrant indepe ndent prosecution . . . .” Anthony , 817 S.W.2d a t 306; see State v. Cozart , 54 S.W.3d 242, 244-45 (Tenn. 2001). The Anthony

court vacated the

aggravated kidnapping

convictions because it found that they
were essentia

lly incidenta

l to the othe

r felony offense for which the defendants had been convicted, armed robbery

. Anthony , 817 S.W.2d a t 307. How ever, th

e Tenne ssee Supr

eme Court has never extended the analysis adopted in Anthony beyond the kidnapping

context. State v. Ralph , 6 S.W.3d 251, 256-57 (Tenn. 1999) (holding due process was not violated by dual convictions for

burglary and theft); see State v. Barney , 986 S.W.2d 545, 548 (Te nn. 1999) (holding that the “ essentia

lly incident al” test developed in Anthony “is not helpful in the

context of

sexual off

enses”) ; State v. Dixon , 957 S.W.2d 532 (Tenn. 1997) (applying the Anthony

analysis and upholding

a separat e conviction for aggravate d kidnapping for detention that occurred during the c ourse of anaggravated
ass ault an d attempte d sexual ba ttery); State v. Coleman , 865 S.W.2d 455, 457 (Tenn. 1993) (applying the test enunciated in Anthony and va catin g a kidn appin g conviction because th e abduction
was essentia

lly incidenta

l to the robbery ). In State v. Waters , No. M2001-02682-CCA-R3-CD, 2003 WL 213777, at *14 (Tenn. Crim. App., at Nashville, Jan. 30, 2003), perm. app. denied (Tenn. June 2, 2003), this Court declined to extend Anthony to include separate convictions for agg ravated rape, aggravated

robbery, a

nd aggravated burg

lary. L ikewise, we decline to extend Anthony to include separa te convictions for a

ggra vated bur glary , agg ravate d rape, a

nd agg ravate d assault

. Each of th es e o ff en se s c on ta in s d if

fe re nt el em en ts as de fi ne d b y statute . Aggravated burglary is the unlaw ful entry

into a hab itati on with the intent to commit a felony, theft or assa ult or accompanied

by the actual commission or attempt to commit a felony, theft or a ssault. Tenn. Code Ann. §§ 39-14-402(a), -403(a). Aggra vated rape is the unlawful sexual penetration of a victim by the defendant or the defendant by a victim accomplished by f orce or coercion and a wea pon o r accompanied

by b odily injury to the victim. Tenn. Code Ann. § 39-13-502( a)(1), (2). Aggr avated assault is the inte

ntional or knowin g assaul t on a person using or display ing a deadly

weapon or causing serious bodily injury . Tenn. Code Ann. § 39-13-102(a)(1)(A), (B ). Each of these offenses-12-

may be committe d without committing the others. Therefore, we conclude that the Defendant’s separa te convictions for aggrava ted burglary , aggravated ra pe, and aggrava

ted assault do not viola

te due proc ess. C. Merg er of the A ggravat ed Rape Co nvictions

Fi na ll y, the State

contends that the trial court erred in merging the Defendant’s convictions for aggr av ated rape by

cunnilingus and aggra

vated rape by

penile penetration into one aggra vated rape conviction under State v. Phillips , 924 S.W.2d 662 (Tenn. 1996). The trial court merged the two aggravated ra

pe convictions because it found tha t “[t] his was one continuous act.” We agree with the State’s assertion.
The State’s argument that the trial court erred in merging the De

fendant’s aggra

vated rape convictions requires double jeopardy analysis. The double jeopa rdy clause of the Fifth Amendment to the United States Constitution affords a defendant three basic pr otection s: “(1) p

rotectio n again st
a second prosecution for

the same offense after a cquittal; (2) prot

ection a gainst a second prosecution for the same offense after

convicti on; and (3 ) protec tion aga inst multiple

punishmen

ts for the same offense.” Phillips , 924 S.W.2d at 664 (c itin g North Carolina v. Pearce , 395 U.S. 711, 717 (1969));
see State v. Beauregard , 32 S.W.3d 681, 682 (Tenn. 2000). The present issue concerns the thi r d categ ory of prote ctions.
Multiplicit

y involves the division of conduct into discrete offenses, creating se veral offenses outof a single offense. Phillips , 924 S.W.2d a t 664. In Phillip s , the Tennessee Supreme Court explained that, i n determining whether offenses ar e “stacked” so as to be multiplicitous, the following principles should be considered:

1. A single offen se ma y not be divi ded into se parate parts; g enerally, a single wrongful act may

not furnish the basis for more than one criminal prosecution; 2. If each off

ense charged require s proof of a fact not required in proving the other, the offenses are not multiplicitous; and 3. Where time and location separate and distinguish the commission of the offe nses, the offe nses can not be sai d to have a

risen out of a sing le wrongful act.

Id. at 665 (citations omitted). The Phillips court noted that the following factors are also signific ant in deter mining wh

ether se xual offe nses are multiplicit

ous:
1. The na ture of th e act; 2. The area of the victim’s body invaded by the sexually

assaultive behavior; 3. The time

elapsed betwee n the disc rete co nduct; 4. The acc

used’s in tent, in the

sense tha

t the lapse

of time ma

y in dicate a newl y formed intent to again seek sexual gratifica tion or inflict abuse; and 5. The cu mulative p

unishment

.-13-

Id. The Phillips court observed “that the presence a nd absence of any one f

actor or a combination of them other than the nature of the act is not determinative of the issue.” Id.

The Tennessee Sup

reme Cour

t noted tha

t “althou gh sepa

rate ac ts of inter

course may be so related as to constitute one criminal offense, generally rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offe nse.” Id. at 664. Tennessee CodeAnnotated section 39-13-50 1(7) sta tes that “ ‘[s]exual pe

netratio n’ means sexual inte rcourse , cunnilin gus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body

or of any object into the genital or anal op enin gs of the victim’s, the defendant’s, or any other person’s bo dy, but emissio n of seme n is not re quired. . . .” Thes e discre te ty pes of se xual penetration are subsumed by Tennessee

Code Annotated section 39-13-502, the agg ravated rape statute. The Phillips court noted that “[e]ach act, in our opinion, is capable of producing its own a ttendant fear, humiliation, pain, and

damage to the vic tim. Each type of penetration requires a purposeful act on the part of the perpetrator.” Phillips , 924 S.W.2d at 665.

In Phillips , the Ten

nessee Su preme Court upheld convictions for aggravate d rape for three separa te acts of sexual penetration: the defendant inserted a plastic object into the victim’s vagina ; he perf ormed cu nnilingu s; and he forced her to enga ge in vaginal intercourse. Id. at 663-64. The Phillips court foundthat the defendant committed three separate offenses because each of the sexual acts, which expended approximately three hours, required a

different body position and enga ged different body parts. Id. at 665. In State v. Kendrick , 38 S.W.3d 566, 569 (Tenn

. 2001), the Tennessee Supreme Court applied the Phillips factors and concluded that the defendant committed two separate and distin ct offe nses aft er the pr oof showe d that the

defenda nt force d the vict

im to perform fellatio o n him and the n forced the victim to have vaginal intercour se. In Barney , 986 S.W.2d at 549-50, the Tenn essee Sup reme Court applied the Phillips factors in determining whether the acts of aggrava

ted sexual battery and ra

pe of achild wer

e discre te acts th at justified separa te convicti ons. The Barney court found that “ the acts , althoug h close in time, wer

e not p erfor med simultaneously.” Id. at 550. Further, the court concluded that eac h act was “capable of producing it s own attendant fear, humiliation, pain, and damage to the victim,” and “each act re quired a different body position and enga

ged different body

parts, evidencing a separate intent on the part of the defendant.” Id.

In Stat e v. Medlock , No. W2000-03 009-CCA- R3-CD, 200 2 WL 154 9707, at * 4 (Tenn. Crim. App., at Jackson, Jan. 16, 2002), perm. app. denied (Tenn. July 1, 2002), this Court found that the evidence establish

ed two se parate acts of vaginal penetration, one with a coat hanger and one penile. The court reasoned that each act was of a different nature and occurred “more than a few minutes apart” in different rooms of the house. Id. Likewise, in Waters , 2003 WL 213777, at *12, this Court concluded

that defendant’s conduct constituted two separate and distinct

offenses of aggr

avated rape after the evidence showed that the defendant forced the victim to perfor m fellatio on him twice, five minutes apart. T

he court found tha

t, “[u]nder

the circumstance s, each a ct o f forced fellatio was capable of producing its own ‘fear, humiliation, pain, and dam age to the victim.’” Id. (quoting Barney , 986 S.W.2d at 550).-14-

However, in State v. A

rnett , No. 03C01-98110-CR-00395, 2000 WL 122222, at *7 (Tenn. Crim. App., at Knoxville, Feb. 2, 2000), aff’d , 49 S.W.3d 250 (Tenn. 2001), this Court merged the defenda nt’ s two convictions for aggrava ted rape, holding that the separate convictions violated double jeopardy pr

inciples. The court explained:

Cl ea rl y, the penetrations invaded the same body area of the victim , with only

seconds elapsing between the two penetrations. Obviously, from the victim’s testimony , the digital penetration was merely the means of completing the peni le pe netration . We
are unable to

conclude

that th e intervening seconds between the pene trations provided a sufficient lapse of time so as to perm it the developm

ent of “a newly formedintent” as the digital penetration on ly served to facilitate the p enile penetration.

Id. (citi ng Phillips , 924 S.W.2d at 665).

In the case under

submission, the victim testified that the Defendant penetrated her vag ina withhis penis and that he performed oral sex on her as well. She

stated tha t the Def endant’ s mouth and teeth touched h er vagina. The victim explained that the Defendant ke pt “beating me on the head” because

“I wasn’t in the position he wanted me.” The victim did not testify about the lapse of time in between each sexual act, thou gh she s tated that t he ent ire epi sode l asted all ni ght lo ng. She stated that the Defendant knocked her unco nsc ious, and then, when she “came to,” the Defendant

was having vaginal intercourse with her ag ain. She stated that, when the Defendant finally finished raping her, “it didn’t [seem] very long until daylig

ht and . . . I think that was right after 5:00 [a.m.]” The Defendant admitted to police that he “had sex with thelady” and tha t he had
sex with the victim “[o]n the floor.” When asked whether the victim

fought with him, the Defendant replied, “Yes, she tried

to fight back.” When asked by a nur se whether “fellatio, cunnilingus, or anal penetration allegedly

occur[red],” the Defendant answered, “ yes.”

We disagree with the trial court that this was “one continuou s act” and conclude that the Defendant’s conduct constituted two separate a nd distinct offenses of aggrava ted rape. Theproof shows that the Defendant performed cunnilingus on the victim and, as a separate and distinct ac t, penetrated

her vagina with his penis. I ndeed, the Defenda

nt’s act of performing oral sex on the victim required him to be in a different body

position and engage differe nt body parts than his act of vagina l interco urse with the victim , which evidences a separate intent on the part of the Defend ant. Phillips , 924 S. W.2d at 665. Moreover, each separate a ct of cunnilingus and vaginal intercourse

required a purposeful act by the Defendant. Id. Though the duration of the attack is not entirely clear, the victim sta

ted that it lasted a ll night lo ng, at le ast until 5: 00 a.m. We also conclude that eac h act by the Defe ndant pro duced “ its own attenda nt fear , humiliati on, pain, and dama ge to the victim.” Id. Therefore, we conclude that the tria l court erred by

merging the Defenda

nt’s two aggravated

ra pe co nv ic ti on s. Ac co rd in gl y, we rev erse the trial court’s judgment merg ing the two aggravated

rape convictions and reinstate both convictions. We remand the case to the trial court for re-sentencing on the two convictions of a ggravated rape

.-15- III. Conclusion

In accordance with the foreg oing authorities and reason ing, we REVERSE the trial court’s judgment merging the two agg

ravated rape convictions and REI NSTA TE b oth c onvic tions . We REMAND the case to the trial court for re-sentenc ing on the two convictions of aggravated r ape. We AFFI RM the judg

ments of th

e trial c ourt in all

other re spects.

___________________________________ ROBERT W. WEDEMEYER, JUDGE