# FILED

July 23, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE JUNE 1996 SESSI ON

STATE OF TENNESSEE, ) NO. 01C01-9509- CR-00317 ) Appellee ) DAVID SON C OUNTY ) V. ) HON. WALTER C. KURTZ, JU DGE ) WILLIAM HENRY BARNEY ) (Rape of a Chil d, Aggrav ated ) Sexual Ba ttery, an d Sente ncing) Appellant ) )

FOR THE APPELLANT FOR THE APPELLEE Karl Dean John Knox Walkup Distric t Public Defender Attorney Gen eral and Repor ter 1202 Stahlman Build ing 450 James Roberts on Parkway Nashvil le, Tennessee 37201 Nashvil le, Tennessee 37243- 0493 Jeffrey A. DeVas her Sarah M. Branch Assistant Publ ic Defender Assistant Att orney Gener al 1202 Stahlman Build ing 450 James Roberts on Parkway Nashvil le, Tennessee 37201 Nashvil le, Tennessee 37243- 0493 Joan A. Laws on Victor S. J ohnson, III Assistant Publ ic Defender Distric t Attorney General 1202 Stahlman Build ing W ashington Square Nashvil le, Tennessee 37201 222 2nd Avenue, N orth, Ste 500 Nashvil le, Tennessee 37201 Jerrily n Manning Assistant Publ ic Defender William R. Reed 1202 Stahlman Build ing Assistant D istrict A ttorney Gener

al Nashvil le, Tennessee 37201 W ashington Square 222 2nd Avenue, N orth, Ste 500 Nashvil le, Tennessee 37201

OPINION FILE D:______

AFFIRMED W illiam M. B arker, Ju dge1 The Appell ant f il ed his bri ef i n thi s case on November 21, 1995. On August 7, 1996, t he Appell ant f il ed suppl emental aut hori ty pursuantto Tennessee Rul es of Appel lat e Procedure 27(d) an d 36(a ) alleging that the indictm ent w as ins ufficie nt.

2 It is th is C ou rt’s po licy to ref er to c hild se x v ictim s a nd the ir fa m ilies by in itials on ly. 2 Opinion The Appellant, William H. Bar ney, appeals as of right hi s convic tions and sentences for ag gravated sexual batte ry and rap e of a child. H e argues on app eal that: (1) His indic

tment insufficiently

alleged the elements of the offenses aggravated sexual battery and r ape of a child. 1 (2) His constitutional due process rights were violated when the trial court allowed s eparate convi ctions for ag gravated sexual batte ry to sta nd when the unlawful sex ual contacts were essential ly inci dental to rape of a c hild. (3) The trial court erred in imposing excessive sentences. (4) The trial court erred in imposing consecutive sente nces. Following a careful review of the record on appeal, we conclude that no reversible error appears with respect to the Appellant’s convictions an d sentences. Factual Backg round In July 1992 , the Appellant mov ed in wit h the B 2 family to tak e care of the three B boys w hile their father worke d nights and evenings. The Appellant, at the time a forty-seven-year ol d man, took a speci al interest in ten-year old K. The Appell ant spent a lot of time w ith K, wat ching telev ision, taki ng him to Opr yland, and g oing to the movies. In November, th at same year, the Appellant l eft the B family and moved away from Tenne ssee and K’s father hired a live-in nanny to care f or K and his other sons. In May of 1993, the Appellan t unexpectedly returned to the B residence . He asked the nanny

if he could come i n and visi t K. When the nanny asked K if he wanted to see the Appellant, K became upset and refused to see him. The nanny asked K why

he was upset, and in respo nse, K told her that the Appella nt had molest ed him.3 According to K’s testimony at trial, during the period from July to November, 1992, on at least five specif ic occasions, the Appellant ent ered K’s bedroom aft er K had gone to bed. In the bed room, the Appellant f irst pulled down K’s pajama pants, then rubbed K’s penis with his hand, and finally fellated him. K also specif ically remembers at least four occasions when the Appel lant anally penetrated him and at least two other occas ions w hen the Appell ant per formed an ilin gus on him. After K told the N anny that he had been molested by the Appellant, s he called K’s father, w ho asked her to i mmediately cal l the police. When the police arrived, the Appellant was still at the B reside nce. The police officers asked K to tell them w hat had happened wit h regard to the Appellant, and after taking a statement from K, the police arrested the Appellant . In police custody, the Appellant adm itted to the penis rubb ing, t he f ella tio, and o ne at tem pted incid ent o f an al se x. Based on the foregoing evidence, the Appellant was found guilty by a jury of his peers of eleven counts of rape of a chi ld and seven counts of aggr avated sex ual battery. H e was senten ced to sevent een and one-half years for each coun t of rape of a child and ten years for each count of aggravated sexual battery. The trial court ordered the eleven counts of rape of a child partially concurrent and partially consecutive to one another f or a total sentence of se venty years. The trial court ordered the ag gravated sexual batte ry counts concurrent t o one another, but consecutive to the rape of a chi ld sentences. The Appellant received an ag gregate sentence of eighty

years i mprisonment.

I. The Indictment The Appellant first

argues that his indictment did not alleg e the mens reaof the offenses aggrav

ated sexual battery and r ape of a child. This

issue is w ithout merit. The Appellant, in making this argument, re lies upon this Court’s hol ding in State v. Roger Dale Hill, Sr. , C.C.A. No . 01C01-9508-C C-00267 (Tenn. C rim. App., Nashville, June 20, 1996) perm. to app. gr anted (Tenn., Jan. 6, 199 7). In Hill , a panel of this Court found an indictment, which alleged that the de fendant “unlawfu lly sexually4

penetrated” his

less than thi rteen-year old vic tim, fatally defective becaus e it did not expli citly a llege that the d efe nda nt se xuall y pene trat ed th e victi m int enti ona lly, know ing ly , or

rec kle ssl y. Here, th e App ell ant a rgu es t hat h is i ndic tmen ts fo r ra pe of a child and aggravated sexual battery are fatally defective because they do not explicitly state the req uisite mens reaof the offenses; namely t hat they were committed intentionally , knowing ly, or r ecklessly

. To protect indiv idual’s due pr ocess rig hts, the Unite d States and Tennessee constitutions

guarantee that

all crimi nally acc used shall be i nformed of “the nature and cause of [any] accusation.” U .S. Const. amend. VI; Tenn. Const. ar t. I, § 9. The Tennessee Legisl ature, to suppl ement and clarify the constituti onal provi sions, has provided that an indictment m ust “state the facts constitu ting the offense in ordinary and concise la nguage, w ithout proli xity or repetiti on, in such a manner as to enable a person of common underst anding to know what is intended.” Tenn. C ode Ann. § 40- 13-202 (1990). To surviv e constitution al scrutiny , an indictment ( 1) must notify the defendant of the specific c harges, (2 ) it must enabl e the trial court upon conv iction to enter an appropr iate judgment a nd sentence, and ( 3) it must pr otect the defendant against doubl e jeopardy. State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). To satisfy the notice requi rement, as enumerate d in Trusty , “[t]he indi ctment must contain factu al allegations relating to every essential el ement of the offense. Id

. (citing State v. M organ , 598 S.2.d 796, 797 (Tenn. Crim. App. 1979)) (emp hasis added); see State v. Marshall , 870 S.W.2d 532, 537 (Tenn. Crim. App . 1993). The factual allegations must als o relate to the element of sci enter. Marshall , 870 S.W.2d at 537. In providing the factual allegation s, it is not necessary that the indictment trace the languageof the statute. Indeed , the indictment will b e sufficient if the el ements of the offen ses “are necessarily implied from the [f actual] allegations made.” Id . at 538 (citing Hagner v . United States , 285 U.S. 427, 430 , 52 S.Ct. 417, 4 19, 76 L.Ed. 861 (1932)).5 This Court, i n Marshall , also stated that “referen ce to a criminal statute should not suffice in terms

of replacing the necessary factual alleg ations.” In making that statement, this C ourt relied upon McCracken v. State , 489 S. W.2d 48 (Tenn. Crim

. App. 1972) and Cole v. S tate , 512 S.W.2d 598 (Tenn. Crim. App. 197 4). Upon a close reading , howeve r, McCracken and Cole only stand for the propositi on that when a factually s ufficient indictment, by cler ical error , quotes a di fferent code provi sion than what was intended, the t rial court may treat t he reference to the statute as sur plusage. Cole , 512 S.W.2d at 601-02; McCracken , 489 S.W.2d at 51. Here, the Appellant was indicted fo r seven counts of aggravated sexual battery and fourteen counts of rape of a child purs uant to Tennessee Code Annotated, sections 39-1 3-504 and 39-13-5 22. With respect to the seven counts of agg ravated sexual batte ry, all seven indi ctments stated: THE GRAND J URORS of Dav idson County , Tennessee, duly impanelled and sworn, upon their oath, present that:

W ILLIAM HENRY BARNEY on a day between July 1, 1992, and November 30, 1992, in Dav idson County, T enness ee and befor e the f inding of this indi ctmen t, did en gage in unlawful sexual cont act with [K.B., the v ictim], a chi ld less than t hirteen (13) year s of age, in v iolation of Tennessee Code Annotated § 39- 13- 522, and against

the peace and dig nity of the Stat e of Tennessee. The indictment traced the definition of aggravated sexual battery as it is provided in the Tennessee Code. See Tenn. Code Ann. § 39- 13-522. That definiti on, and thus also the indic

tment, does not ex plicitly state the cri me’s requi site mens rea . The Code, however, provi des the mens reain its definition of “sexual contact. ” See Tenn. Code Ann. § 39-13- 501(6) (1991) . It prov ides that sex ual contact is the [I]ntentional touching of the v ictim’s, th e defendant’s, or any other person’s int imate parts, or the intentional touching of the c lothing coveringthe immediate area of the victi m’s, the defendant’s, or any other person’s int imate parts, i f that intentional touching can be reasonably construed as bei ng for the purpos e of sexual ar ousal or gr

atification. Tenn. Code Ann. § 39- 13-501(6) (e mphasis added). The crime of agg ravated sex ual battery, as

stated in the i ndictments, therefore, by impl ication, prov ide the requi site element of that cri me; namely, that it has to be i ntentional. See State v. John James ,6

C.C.A. No. 01C01-9601-CR -00016 (Tenn. Cr im. App., Nashv ille, Mar . 27, 1997); State v. Larry Steve Wilson , C.C.A. No . 03C01-9511-C C-00355 (Tenn. C rim. App., Knoxvil le, Mar. 27, 1997); State v. M ilton S. Jones , C.C.A. No. 02C01-9503-CR00061(Tenn. Crim. App., Jackson, Mar. 7, 1997) ; State v. Burrell , C.C.A. No . 03C01- 9404-CR-00157 (Tenn. Crim. Ap p., Knoxv ille, Feb. 11, 1997). Moreover, as a general rule, it is sufficient if the indictment states the of fense charged in the words of the statute, or w ith words which are the equivalent to the words con tained in the st atute. State v. Phillip Ray Griffis and Melissa Faith Rogers , C.A.A. No. 01C 01-9506-CC- 00201 (Tenn. Cri m. App., Nashv ille, Apr. 30, 1997) (ci ting Coke v. St ate , 345 S.W.2d 673, 674 (Tenn. 1961); State v. Overton , 245 S.W.2d 188, 189 (Tenn. 1951); Stanfield v. S tate , 181 S.W.2d 617, 618 (Tenn. 1944); Jord an v. State , 3 S.W.2d 159, 160 (Tenn. 1928); State v. Tate , 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995) ). The Appellant was also indi cted for fourteen counts of rape of a child. Indictments one thr

ough seven provided: THE GRAND J URORS of Dav idson County , Tennessee, duly impanelled and sworn, upon their oath, present that:

W ILLIAM HENRY BARNEY on a day between July 1, 1992, and November 30, 1992, in Dav idson County, Tenness ee and before the findingof this indict ment, did enga ge in unl awful sexu al pene trati on of [K. B., thevic tim] , a child le ss than thirteen (13) years of ag e, in viol ation of Tennessee Code A nnotated § 39-13-522, and ag ainst the peace an d dignity of the State of Tennessee. The indictments for counts eight t hrough fourteen pr ovided: THE GRAND JURORS of Davidson County, Tennessee , duly impanelled and sw

orn, upon their

oath, present th at: W ILLIAM HENRY BARNEY on a day between July 1, 1992, and November 30, 1992, in Dav idson County, Tenness ee and before the findingof this indict ment, did cause [K.B., the v icti m] , a child le ss than thirt een (13) years of age, to engage in unlawful sexual penetr ation of William Henry Bar ney , in viol ation of Tennessee Code Annotated § 39-13-522, and against the pe ace and dignity of the State of Tennessee. Sexual penetr

ation is defined as

“sexual intercourse, cunniling us, fellatio, anal intercourse, or any other intrusion, however

slight, of any part of a per son’s body or of7

any object i nto the genital or anal opening s of the vict im’s, the defendant’s , or any othe r pers on’s body . . . .” T enn . Cod e Ann . § 39 -13- 501 (7) (1 991 ). W e rec ognize that this definit ion does not ex plicitly provide a requisit e mens reafor sexual penetration. See Milton S. J ones , C.C.A. No. 02C01-9503-CR-00061. However, according to the indictments’ language, it is alleged that the Appellant engaged in sexual penetr

ation, as prev iously defin ed, with t he victi m, a child les s than thirteen (13) year s of age, and that t he Appellant did cause the vi ctim to sex ually penetr ate him. Upon only a cursory reading of the indictment, any person of normal intelligence would realize that the only sound implication of th e factual allegations is that the se acts were at least rec kless, if not k nowing o r intentional . We conclude that the

nece ssary mens reais implic itly i ncluded in the c harging instrument, and t herefore the indictments are sufficient. To the ex tent that Hill held otherwise, a majority of this panel respectfull y disag rees. II. The Due Process Claim The Appellant contends that his constitutional due process ri ghts wer e violated when the tr ial court al lowed separ ate convic

tions for agg ravated sex ual battery to stand when theunlawful sex ual contacts were essential ly inci dental to rape of a c hild. This issue is

without mer it. The Appellant was convic ted of five counts of aggravated sexual battery for rubbi ng K’ s peni s wi th hishand be fore per formingfellat io. TheAppell ant now clai ms that the rubbingof K’s penis was essentiall y incident al to the fellati o, and that, therefore, the ag gravated sexual batte ry conv ictions cannot stand separate fr

om the rape of a child convictions. The test formu lated to resolve whether such convictions violate due process was establ ished in State v. Ant hony , 817 S.W.2d 299 (Tenn. 1991). In Anthony , our Supreme Court stated tha t the question to be posed is whether a crime is “essentially incidental to the accompanyi ng felony and is not, therefore, sufficient to suppo rt a separate conv iction for [that crime], or

whether [t he crime] is

significant

enough, in and8

of itself, to warrant indepen dent prosecution and is, the refore, suff icient to support such a convi ction.” Id. at 306 (emphasis added). Our Supreme Cour

t further stated t hat this question could be resolved by inquiring into whether the incidental crime “‘substantially increased [the] risk of harm over and above that necessar ily pre sent in the [pr incipal cr ime] itself.’” Id. (quoti ng State v. R ollins , 605 S.W.2d 828, 830 (Tenn. Crim. App . 1980)). H owever , our Supreme Court nev

er suggested that the ri sk of harm factor was a necessary element of the Anthony

essentially

incidental t est. Here, the Appel lant’s rubbi ng of K’s penis was not es sentially

incidental t o the fellatio. There i s no evidence that indicates that the Appella nt touched K’s pe nis wit h the sole purpos e of facilitatingthe fellatio. I nstead, the ev idence indicat es that the Appellant first

rubbed K’s peni s and then performed th e fellatio. The unl awful sex ual contact was

a separate and i ndependent act from the fell atio, sign ificant enough t o warrant independent prosec ution. The Appellant’s propo sition also conflicts with this Court’s previous decisions in similar ca ses. State v. Peacock , 638 S.W.2d 837 (Tenn. Crim. App. 198 2) (upholding two counts of aggravated rape when the appellant f irst forced his victim to perform fellatio and then had sexual int ercourse w ith her); State v. Ande rson , C.C.A. No . 22 (Tenn. Crim. Ap p., Knoxv ille, Nov . 9, 1990) (uphol ding two counts of agg ravated ra pe when the appel lant first penetr ated his vi ctim’s vagina wi th his finger to dilate it

and then penetrated it

with hi s penis); State v. Phi llips , C.C.A. No. 02C01-9307-CC00160 (Tenn. Cri m. App., Jackso n, Oct. 26, 1994) (upholding three rape conv ictions when the appel lant penetrated hi s victi m’s vagi na with a pl astic object , performed cunnilingus, and then had sexual interco urse with her). Appellant’s r

eliance on State v. Bost , C.C.A. No . 01C01-9112-C R-00373 (Tenn. Crim. Ap p. Nashvi lle, Sept. 3, 1992), is mis placed. In Bost , this Court reversed an aggrav

ated sexual battery con viction resulting from the appellant fondl ing his vic tim’s breasts when he r aped her by s exual inter course. We reversed that9

convicti on because “[t]hefondling occur red concomitantl y wi th the vag inal rape, and the evidence here shows it to have been part and pa rcel of that bestial act.” Id. Again, the Appellant’s rubbing of K’s penis was a separate and independ ent act from the fellatio. There is no evi dence that indicates that the Appel lant only touched K’s penis w hile performingthe fellatio. Thi s issue is without mer it. III. Sentencing a. The Excessive Sentencing Claim The Appe llan t argu es th at th e tria l cou rt err ed by i mpo sing e xcess ive sentences. This issue is w ithout merit. When an Appellant complains of his or her sentence, we must conduct a de

novo review

with a pr

esumption of correc

tness. Tenn. Code Ann. § 40-35-401( d) (1990). The burde n of showing that the sentence is improper is upon the appeal ing party. Id. Sentencing Commission Comm ents. This presumption , however, is conditioned upon an affirmative show ing in the r ecord that the tr ial court considered the sentencing principles and all rel evant facts and c ircumstances. State v. Ash by , 823 S.W .2d 166, 169 (Tenn . 1991). A portion of the Sent encing Reform Act of 1989, codified at Tennessee Code Annot ated § 4 0-35-21 0, require s a sente ncing cou rt to con sider the followin g: (1) The evidence , if any, re ceived at the trial and the senten cing hear ing; (2) [t]he presentence report ; (3) [t]he pr inciples of sent encing and arguments as to sentencing alternatives; (4) [t]h e nature and characteristics of the cri minal conduct i nvolved; (5) [the e]v idence and information offered by the parties on the enhancement and miti gating factors in §§ 40- 35-113 and 40-35- 114; and (6) [a] ny statement th e defe ndant wishes to m ake in his own behal f abou t sente ncing. Tenn. Code Ann. § 4 0-35-210(b) (Supp. 1995). The Act also prov ides that the min imum sentence w ithin the rang e is the presumptive sentence. If there are enhancing and mitigating fa ctors, the court must start at the mi nimum sentence in t he range and enhance the sentence as appropriate for the enhancem ent factors and the n reduce the sentence within the range as is appropriate for t he mitigati ng factors. Id. § 40-35-210(c),(d),(e)

.10 “The sentencingcommission spec ifically did not desig nate any part icular numeric val ue for the enhancement and mi tigating factors . . . [ because it would] remove the j udicial dis cretion neces sary to make indivi dualized s entencing determinations.”

Id. SentencingCommission C omments; see State v. Shropshire , 874 S.W.2d 634, 642 (Tenn. Crim. App. 1993). The wei ght afforded to any enhancing or mitigat ing factor i s withi n the trial j udge’s sol e discretio n as long as it does not violate th e Sentencing R eform Act and is s upported by t he record. Shropshire , 874 S.W.2d at 642. Here, the tr ial judge specifically applied the enhancement factor “abuse of public or private trust.” Tenn. Code Ann. § 40 -35-114(15) (Supp. 1995). T he record reveals t hat the trial judge also considered the number of offenses committed, the period of time over whic h these offenses wer e committed, and that the Appellant posed a danger to other chil dren due to his diagnosed pedophi lia. The Appell ant contends that the sen tences were excessive because the trial court failed to app ly three mitig ating factors that would have reduced the sentences. Thes e factors wer e: (1) that the Ap pellant’s co nduct neither caused nor threat ened serious bodi ly injur y; (2) that the Appellant was suff ering from a mental or physical condition th at significantly reduced his c ulpability

for the offense; and (3) that the Appellant has no prior

criminal record. See Tenn. Code Ann. § 40 -35-113 (1990). First, we concede that no serious bodily injury resulted from the Ap pellant’s criminal conduct. However, cons idering t he psycholog ical trauma s ustained by the victim in this case, the trial court was justified in failing to give much weight to this mitigatingfactor. See State v. C arpenter , C.C.A. N o. 03C01-9108-C R-00268 (Tenn. Crim. Ap p., Knoxv ille, Jan. 23, 1992). Second, the trial j udge considered the Appellant’s ment al and physi cal conditio n, but came to the conclusion that it was not an appropriate mi tigating factor. The tri al judge found that even though the Appellant was diag nosed with pedophilia and an adjustment disor der, he had a functio ning intellect and could distinguish between right and wrong and he simply chose “to act11

on his impulses and gratify himself with a child.” Finally, as to the Appellant’s contention that th e trial jud ge failed to con sider that he d id not have a prior cri minal record under Tennesse e Code Annotated § 40 -35-113(13), the trial judge correctly did not consider t his as a miti gating factor due to the Appell ant’s extens ive cri minal activ ity in this case

. See State v. Scales , C.C .A. No . 01C0 1-9310 -CR- 00353 (Tenn. C rim. App., Nashv ille, July

28, 1994). We find no abuse of the trial court’s di scretion. b. The C onsecu tiveSenten cing Clai m Finally , the Appellant contends that the tr ial court er red in imposi ng partial consecutive sentences. This issue is w ithout merit. A defendant convic

ted of more than one cr iminal offense may be given consecutive sentences if the t rial court finds by a preponderance of the ev idence that: The defendant is conv icted of two o r more statutor y offenses involving sexual abuseof a minor wi th considerati on of the aggra vating circumstances

arising from the relatio nship betwee n the defendant and the vi ctim . . ., t he ti me sp an of def end ant’ s und etec ted s exua l acti vity, the nature and scope of the sexual acts and the extent of th e residual, physical and mental damage t o the vict im . . . . Tenn. Code Ann. § 4 0-35-115(b)(5) (1990). Moreover, a consecutive sentence is appropriate i f the trial cour t finds that it i s necessary to protect the public from further criminal conduct from the defendant. Gray v . State , 538 S.W.2d 391, 393 (Tenn. 1976); see also State v. Tay lor , 739 S.W.2d 227 (Tenn. 1987) (addingthe child sex offender element to the Gray formula). Here, the Appel lant was convicted of ei ghteen statutor y offenses involving the sexual abuseof a minor. The Appell ant, when M r. B was at work, was placed in a position of trust as to youngK and took advantage of the chil d’s vulner ability. The Appellant sex ually abus ed K two to t hree times a week for approx imately five months. The Appellant ma sturbated, fellate d, sodomized, and perf ormed anilingus on K. As a result of these hei nous crimes, K has been in ther

apy for ove r two years wi th a social worker and is about to enroll in therapy with a psychiatrist to help him cope with trust and regular

heterosexual relationshi ps. Moreover, Dr. R oyeka Faro oque testified at12

the sentencing hearing that the Ap pellant is dangerous to children becau se he suffers from pedophilia, and because of this sy ndrome he is attr acted to child ren for sexual gratificati on. We find no error with regard to t he consecutive sentences impos ed by the trial court. Accordingl y, all t he Appellant’s convicti ons and sentences are affirmed.

__________________________ WILLIAM M. BARKER, JUDG E CONCUR BY:

(See separate di ssenting opi nion) JOHN H. PE AY, JUDG E

(See Separate C oncurring Opinion) DAVID G. HA

YES, JUDG E