IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 14, 2015

STATE OF TENNESSEE v. CHRISTOPHER SCOTTIE ITZOL-DELEON

Appeal from the Criminal Court for Davidson County

No. 2012-D-3022 Mark J. Fishburn, Judge

No. M2014-02380-CCA-R3-CD – Filed March 28, 2016

_____________________________

Easter, J., dissenting.

Defendant argues on appeal that dual convictions for attempted aggravated sexual 

battery in Count 1 and rape of a child in Count 3, both stemming from the Lemonade 

Mouth incident, violate due process because they a part of a ―single continuous criminal 

episode.‖ Defendant asks this Court to utilize the five-factor test adopted by the supreme 

court in State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999). The State, on the other 

hand, argues that the analysis in Barney is no longer controlling law because the supreme 

court relied on cases which have since been abrogated. Because I believe the issue is 

more properly one of double jeopardy, I respectfully dissent.

The majority relies upon the five-factor test adopted in Barney, a test taken from 

the California case of People v. Madera, 282 Cal. Rptr. 674 (1991), to determine that the 

dual convictions for rape of a child and aggravated sexual battery violate due process. 

The majority does not perform a separate double jeopardy analysis. In so doing, the 

majority recognizes that State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and its progeny 

were abrogated by State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), and that Barney

relied upon those cases to conduct a due process analysis of dual convictions for sexual 

offenses. However, the majority goes on to conclude that White did not abrogate Barney

absent some further pronouncement by the supreme court. I disagree. Although Barney

has not yet been expressly overruled, it has been effectively abrogated by White and 

criticized by State v. Watkins, 362 S.W.3d. 551, 552 n.34 (Tenn. 2012). Nonetheless, I 

would find the dual convictions would survive even if the test pronounced in Barney was 

still viable. Finally, I find that analysis of the issue does not implicate due process 

concerns but rather is more appropriately analyzed under double jeopardy principles. 
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Starting with Anthony, the Tennessee Supreme Court chose to utilize the due 

process clause of Article 1, section 8 of the Tennessee Constitution1to address dual 

convictions for kidnapping and certain other felonies which included a certain degree of 

removal or confinement of the victim by the perpetrator. 817 S.W.2d at 306. The 

supreme court explained that a double jeopardy analysis was ―inadequate‖ to resolve the 

issue and instead relied upon due process. Id. 

Several years after Anthony, the supreme court adopted another test, set forth in 

State v. Dixon, 957 S.W.2d 532 (Tenn. 1997). This two-part test addressed (1) whether 

the removal or confinement of a kidnapping victim was beyond that necessary to 

consummate an accompanying offense, and (2) whether the removal or confinement 

prevented the victim from summoning help, lessened the defendant‘s risk of detection, or 

created a significant danger or increased the victim‘s risk of harm. 957 S.W.2d at 535. 

In State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008), the Dixon test was officially 

recognized as a replacement test for the ―essentially incidental‖ analysis that had been 

provided in Anthony. However, appellate courts were still required to perform a separate 

due process analysis for kidnapping convictions accompanied by another offense. See 

Dixon, 957 S.W.2d at 535-36; Anthony, 817 S.W.2d at 306-07.

In White, the supreme court eliminated the separate due process analysis, stating as 

follows: ―[t]o be clear, Anthony and the entire line of cases including a separate due 

process analysis in appellate review are expressly overruled.‖ White, 362 S.W.3d at 578. 

To support this reasoning, the court noted that a fundamental component of due process 

is the prohibition against a conviction without sufficient proof of the elements of the 

charged offense and that the question of sufficiency of the proof lies with the jury. Id. at 

577. To facilitate this determination of sufficiency, a specific jury instruction was crafted 

to assist the jury. Id. This decision allowing the jury to make the due process analysis 

was based in part of the factually intensive nature of the determination of ― ̳[w]hether the 

movement or confinement of the victim is merely incidental to and necessary for another 

crime.‘‖ Id. (quoting State v. Salamon, 949 A.2d 1092, 1120 (Conn. 2008)). 

While White, admittedly, specifically discussed the due process issue as relative to 

dual convictions of kidnapping and an accompanying felony, I would conclude that the 

holding of the decision in White also invalidates the test set forth in Barney as applied to 

 

1 The due process clause of the Tennessee Constitution provides: ―[t]hat no man shall be taken or 

imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner 

destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the 

land.‖
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dual convictions for sexual offenses.

2

 Applying the foregoing to the case under 

consideration herein, I would conclude that because Anthony has been expressly 

overruled, the test adopted in Barney did not survive because it is likewise based on the 

due process analysis rejected in White which has been interpreted as requiring the proof 

of an additional element, whether it be the essentially incidental language or the 

application of a five-factor test. I would decline to merge the convictions because each 

statute punishes different criminal behavior. In my view, the test taken from Madera and 

adopted in Barney is nothing more than an Anthony-like test for sex offenses. Stated 

another way, Barney is to sex offenses what Anthony was to kidnapping offenses. White

tells us that a due process analysis is no longer necessary and is the function of a properly 

instructed jury. Of course, I recognize that there is presently no offense specific 

instruction for sexual offenses that a trial court can include in a jury charge so that the 

jury can properly determine whether punishment for multiple sex offenses offend due 

process, and we, as an intermediate court, are certainly not in the position to craft one. 

Still, when the challenged convictions herein are analyzed using the test set forth 

in Barney, it is impossible to determine whether the convictions violate the principles of 

due process without making a determination as to the underlying facts of the case—a

function that was taken away from this Court‘s consideration and placed in the hands of 

the jury upon the abrogation of Anthony. It seems more appropriate for the jury, who is 

entrusted with assessing the evidence, to make any such determination. If, somehow, the 

test in Barney survived abrogation, I am not convinced by the majority‘s analysis that a 

conviction for both rape and attempted aggravated sexual battery are prohibited under the 

facts as presented at trial. The jury who heard the facts certainly felt the evidence 

supported both – and so do I. 

The victim first testified that she felt Defendant‘s ―bare penis on [her] back,‖ 

located ―above her butt‖ on the ―outside of her butt cheeks,‖ where she could feel it 

―moving . . . like up and down like he was shaking it kind of.‖ The victim described that 

this happened before she felt Defendant‘s penis ―moving between [her] thighs.‖ She told 

her mother that Defendant‘s penis went ―a little bit inside her.‖ In other words, the 

attempted aggravated sexual battery involved a different location of her body than the 

rape. While the victim described the incident as one event, it is not clear from the 

movement described—feeling the penis on her back and buttocks versus the penetration 

between her thighs—whether the action was continuous. I agree with the majority that 

there was no intervening event between the touching of the back/buttocks and the 

penetration of the labia. Additionally, there was no movement or repositioning in 

 

2

Interestingly, the statute relied upon in Madera to prohibit multiple punishments is entitled 

―Offenses punishable in different ways by different provisions; double jeopardy; denial of probation,‖ 

making no mention of due process. See Cal. Penal Code § 654. However, the Tennessee Supreme Court 

stated ―our review of the Madera opinion results in our conclusion that the same analysis would support a 

due process challenge.‖ Barney, 986 S.W.2d at 548 n.2. 
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between acts and there is no evidence of intent (as described by conduct and statements 

of Defendant). However, the contact with the back and buttocks versus the contact with 

the thighs and penetration of the labia suggests, to me, that the acts were distinct. See, 

e.g., State v. Roger Glenn Dile, No. M2008-00389-CCA-R3-CD, 2009 WL 3031257, at 

*15 (Tenn. Crim. App. Sept. 24, 2009), perm. app. denied (Tenn. Mar. 15, 2010) 

(determining digital penetration of vagina and rubbing the area around anus supported 

separate convictions for aggravated sexual battery and rape of a child); State v. Randall 

Scott, No. 01C01-9708-CR-00334, 1999 WL 547460, at *16-17 (Tenn. Crim. App. July 

28, 1999) (upholding dual convictions for rape and aggravated sexual battery where 

vaginal touching and anal penetration occurred during one incident), aff’d in part, rev’d 

in part by State v. Scott, 33 S.W.3d 746 (Tenn. 2000). I am unable to determine from the 

record whether the contact with the victim‘s back/buttocks was preparatory to the rape or 

merely incidental. It should be noted, however, that in order for the jury to find 

Defendant guilty of attempted aggravated sexual battery in Count 1, the jury necessarily 

determined that the touching of the back/buttocks had to be ―for the purpose of sexual 

arousal or gratification.‖ A reasonable finder of fact could easily conclude that the 

contact of Defendant‘s penis on the back/buttocks of the victim was for sexual arousal or 

gratification. The evidence, when viewed in the light most favorable to the State, 

supports such a finding. 

Count 3 did not require a finding ―for purpose of sexual arousal or gratification‖ 

but did require a finding of ―penetration.‖ This determination supports dual convictions. 

Therefore, even if Barney remains the applicable law, I would uphold the separate 

convictions for attempted aggravated sexual battery and rape of a child in Counts 1 and 3. 

More importantly, I would determine that the issue is one more properly analyzed 

under principles of double jeopardy. See, e.g., State v. Teats, 468 S.W.3d 495, 509 

(Tenn. 2015) (Kirby, J., concurring), and State v. Alston, 465 S.W.3d 555, 567 (Tenn. 

2015) (Bivins, J., concurring) (both determining that permissibility of dual convictions is 

more appropriately resolved with a double jeopardy analysis than a due process analysis). 

Lending support to this conclusion is Watkins, released by our supreme court the same 

day as White. In Watkins, the court addressed the issue of ―whether separate convictions 

under different statutes constitute the same offense and violate the double jeopardy 

protection against imposing multiple punishments.‖ Id. at 538-39.3 The court overruled 

State v. Denton, 938 S.W.2d 373 (Tenn. 1996), and abandoned the test adopted therein, 

which included as one of the factors an analysis of the evidence supporting each 

conviction pursuant to Duchac v. State, 505 S.W.2d 237 (Tenn. 1973). In its place, the 

court adopted the same elements test enunciated in Blockburger v. United States, 284 

 

3 The majority makes a point that the Barney court rejected the reasoning of Anthony outside of a 

kidnapping context in a due process analysis. While Watkins involved review of multiple convictions in 

the context of double jeopardy analysis, it did not involve a kidnapping offense. 
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U.S. 299, 304 (1932), as the test for determining whether multiple convictions under 

different statutes constitute the same offense for purposes of the Double Jeopardy Clause 

of the Tennessee Constitution. Watkins, 362 S.W.3d at 538-39. The court pointed out the 

inconsistent application of the now-defunct Denton analysis, citing to Barney. The court 

noted that while Barney used the ―different evidence‖ language of Denton and Duchac, it 

did not ―focus[] upon the circumstances of the case,‖ but rather ―focused on the statutory 

elements of the offenses‖ in analyzing double jeopardy principles, as directed in 

Blockburger.

4

 Id. at 550-51. State v. Feaster, 466 S.W.3d 80, 82 (Tenn. 2015), allows 

retroactive application of Watkins to crimes that were committed prior to the decision in 

Watkins. Additionally, Watkins has been applied to sex crimes. See State v. Hogg, 448 

S.W.3d 877 (Tenn. 2014) (determining multiple convictions for especially aggravated 

sexual exploitation of a minor and aggravated statutory rape do not violate double 

jeopardy where separate video clips were taken during one continuing course of conduct).

Defendant herein was convicted of violating two different and distinct statutes—

attempted aggravated sexual battery and rape of a child—described in Watkins as a 

multiple description claim. While the alleged statutory violations definitely come from 

the same act or transaction and could potentially result in a double jeopardy violation, an 

analysis of the relevant statutes reveals that the legislature intended to create separately 

punishable offenses. Here, each offense contains a statutory element not contained in the 

other. Rape of a child requires penetration; attempted aggravated sexual battery does not. 

Attempted aggravated sexual battery requires that the contact be for the purpose of sexual 

arousal or gratification; rape of a child does not. Additionally, neither offense is a lesser 

included of the other. See State v. John J. Ortega, Jr., No. M2014-01042-CCA-R3-CD, 

2015 WL 1870095, at *10 (Tenn. Crim. App. Apr. 23, 2015), no perm. app. filed. Thus, 

the legislature is presumed to have intended to allow the offenses to be punished 

separately. See Watkins, 362 S.W.3d at 542. Applying the Watkins test, I would

conclude that Defendant‘s convictions of rape of a child and attempted aggravated sexual 

battery are not the same offenses for purposes of double jeopardy. I would uphold the 

separate convictions for rape of a child and attempted aggravated sexual battery in 

Counts 1 and 3.

With regard to Defendant‘s sentence, I agree with the majority that Defendant was 

improperly sentenced under the amendment to Tennessee Code Annotated section 39-13-

522 as the record did not establish the individual dates of the offenses. However, I would 

take notice of the trial court‘s extensive findings with regard to consecutive sentencing, in 

which the trial court commented that ―there is evidence before the Court to support 

 

4 However, the Barney court focused on the underlying facts supporting the conviction in

conducting its due process analysis.
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consecutive sentencing‖ under Tennessee Code Annotated section 40-35-115(b)(5)5but 

chose not to order consecutive sentences because of Defendant‘s social history. 

However, the trial court sentenced Defendant to an effective sentence of forty years—a 

much longer sentence than is even possible under the appropriate statute—and clearly 

stated that he 

certainly [did not] think that the minimum sentence [was] appropriate, one, 

because of the enhancement factors . . . already noted; two, because it is 

not just a couple of time things, it was multiple times for which he . . . was 

convicted, no telling how many more times above and beyond that. So 

despite his otherwise . . . close to glowing social and family history and 

work history, you cannot ignore the numerous, numerous occasions that 

these types of events occurred. 

(Emphasis added).

 

As the supreme court stated in State v. King, 

The determination as to whether the appellate court should conduct a de 

novo review or remand for reconsideration [with regard to consecutive 

sentencing and denial of judicial diversion] is within the discretion of the 

reviewing court. Relevant considerations include the adequacy of the 

record, the fact-intensive nature of the inquiry, and the ability of the court 

to request supplementation of the record. 

432 S.W.3d 316, 328 (Tenn. 2014); see State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 

2013) (noting that ―the better course is to remand to the trial court‖ due to the factintensive nature of the inquiry). While an adequate record exists from which this Court 

could perform a de novo review, I would find the fact-intensive nature of the inquiry is

something best left for the trial judge to determine in this case. Consequently, I would 

remand for a new sentencing hearing at which the trial court could sentence Defendant 

within the appropriate range as well as make a determination as to consecutive 

sentencing. 

___________________________

TIMOTHY L. EASTER, JUDGE

 

5 Tennessee Code Annotated section 40-35-115(b)(5) allows for consecutive sentencing upon 

conviction for ―two (2) or more statutory offenses involving sexual abuse of a minor with consideration of 

the aggravating circumstances arising from the relationship between the defendant and victim or victims, 

the time span of defendant‘s undetected sexual activity, the nature and scope of the sexual acts and the 

extent of the residual, physical and mental damage to the victim or victims.‖