# FILED

September 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JULY 1997 SESS ION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR -00004 ) Appellee ) KNOX COUN TY ) v. ) HON. RAY L. JENKINS, ) JUDGE STEVEN F. FARR, ) ) Rape of a child ( 2 counts); Appellant ) aggravated sexual battery (2 counts)

FOR THE APPELLANT FOR THE APPELLEE Julie A. Martin John Knox Walkup P.O. Box 426 Attorney Gen eral & Repor ter Knoxvil le, TN 37901-0426 Marvin E. Clements, Jr. Assistant Attorney General 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Randall E. Nichols Distric t Attorney General Charme Johnson Assistant D istrict A

ttorney Gener

al City-Count y Bldg. Knoxvil le, TN 37901-0426

OPINION FILED

AFFIRMED

JOHN K. BYERS SENIOR JUD GE-2- O P I N I O N

The def end ant wa s con victe d of two co unts of t he ra pe of a chil d and two counts of aggravated sexual battery. He was sentenced to serve 23 years on each rape convi ction and 11 y ears on each of the ag gravated sexual batte ry conv ictions as a Ra nge 1 off end er. T he se nten ces we re ord ered to be serve d con curre ntly. The defen dant raises the following issues on appea l:

I. Whether the evidence was sufficient for any

rational tr ier of fact to convict de fendant beyond a reas onable doubt of each and ev ery element of child rape and a ggrava ted s exua l bat tery. II. Whether the trial court er red by deny ing defendant’s mot ion to dis miss whe n thesta te fai led to al leg e thereq uir ed el ement of mens rea in two of the four counts of the indi ctment. III. Whether the trial court was justified i n sentencing defendant to serve almos t the maximum sen tence for each charge for whi ch he was convicted. The judgment of the tr ial court i s affirmed. The victim i n this case l ived w ith her mother and the defendant. The mother

was arrested and incarcerated in M ay 1993, and the victim and the defendant remained in the ho me. We need not go into explic it detail co ncerning th e sordid facts i n this case. It is enough to s ay the state presented sufficient evidence to convict t he defendant of the four offenses if the jur y believed the state’s w itnesses. The defendant testified he did not commit the act s alleged in the indictment and test ified to by the state’s witnesses . He and other defense witness es attacked the c redibilit y of the vi ctim and other wit nesses who testified for the s tate. The jury, b y thei r verdi ct, a nd th e tria l judg e, by h is ap prova l the reof , have accredited the state’s w itnesses. The defendant asks us to di scredit them on appeal.-3- At trial, t he jury r

esolves c onflict in the t estimony of w itnesses and det ermines their credi bility. Cabbage v. State , 571 S.W .2d 8 32 (T enn . 197 8). On appe al, we weigh the evidence to determine if it is suff icient for a rational trier of f act to find guilt beyond a reas onable doubt. State v. Evans , 8 3 8 S

. W. 2 d 1 8 5 ( Te n n . 1 9 9 2 )

. We have weighed the evidence in this case in the context required and find it is sufficient for a rati onal trier of fact to find guilt beyond a reas onable doubt. The defendant contends the tr ial judge should have s tricken count s 3 and 4 of t he in dict men t bec ause they f aile d to a llege any mens rea requisi te for the offenses of aggravated sexual battery con tained therein. The defendant cites no cases in suppor

t of this issue but insists statutory requirements compel a dismis sal of the charges. There appears to be two sig nificant cases, which are pending rev iew by the Supreme Court, d ealing w ith this is sue, State v. Hill, C.C.A. No. 01C01-9508-CC00207 (Tenn. Cri m. App., filed at N ashvill e, June 29, 1996) a nd State v. Jam es , C.C.A. No. 01C01-0601-CR -00016 (Tenn. Cr im. App., filed at Nashvil le, May 2 7. 1997). W e adopt and set out he rein the reasoning of the Court of Criminal Appeals in James on the issue:

An indictment has

three (3) pu rposes in Tenness ee; namely, ( 1) to inform the defendant of the prec ise charg es; (2) to ena ble the trial court upon conv iction to enter an appropriate judgment and sent ence, and (3) to pr

otect the defendant ag ainst double j eopardy. State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated in ordinary

and concise l anguage so t hat a person of “c ommon understanding ” wil l know w hat is intended. Warden v. State , 214 Tenn. 391, 381 S.W .2d 244 (1964). Furthermore, in Campbell v. State , 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis

supplied), w hile addressi ng the sufficiency of an indictment charging the o ffense of murder, our Supreme Court stated the fo llowing: “While it seems clear that the indictment in Witt was insuffici ent in that it failed to charg e an element, that the murder was committed unlaw fully, in ei ther the language of the statute or common l aw or words of equival ent import, the de cision is confusing becaus e of the language , `fatally defective in o mitting the c harge that the offen se was committed feloniou sly or with malice aforethought; and c ontaining no w ords of equiv

alent import.’ It is clear

, however, that had the indictm ent used the words `feloniously’ or `unlawfull y’, it w ould have been sufficient.”-4- By containi ng the wor

ds found in the lang uage of the statutes on aggravated rape and agg ravated sex ual battery , the indictment at issue sufficientl y apprise d James of the offenses charg ed. The charges were stated in o rdinary and concise la nguage so th at a person of common understanding would know what was intended. For th e abo ve rea sons we dec line to f ollo w Hill and find this indictment was sufficient to cha rge the offenses of ag gravated rape and aggrava ted s exua l bat tery. C. Furthermore, Hill

has no applicat ion to those count s of the indictment charging the o ffense of aggravated sexual b attery. Hill dealt only with the c harge of agg ravated ra pe. Aggravated sexual battery as defined in T.C.A. § 39-13 -504 is “unlawful s exual contac t” with a victi m “less than t hirteen (13) years of age.” T.C.A. § 39-13-501(6) defines “sex ual contact” as the “. . . intentional

touching of the victim’s, the def endant’s or any other

person’s i ntimate parts, o r the intentional touching of the c lothing cov ering the i mmediate area of the victim’s, the defenda nt’s, or any other person’s intimate parts , if that intentional touching ca n be reasonably construed as bei ng for the purpos e of sexual arousal or g ratification ( emphasis added).” Therefore, the mental el ement of “intentional ” is incl uded in the definition of “sex ual contact” and is implie dly incl uded withi n the indictment. By

statutory

definition the onl y way one can have “ sexual contact” is

by the “i ntentional touchi ng . . . for th e purpose of sex ual arousal or gratification.” Id. We therefore conclude that Hill is distinguishable as to those coun ts ch argin g aggra vated sexua l bat tery.

The defendant claims the t rial judg e erred in s entencing the defendant to 23 years

on each rape conv iction and 11 years on each ag gravated sexual battery con viction. At the time of the offense, t he presumptive sentence for the r ape of a child was 15 years , and it was 8 years for a ggrava ted s exua l bat tery. The record in t his case show s the defendant has a hi story of pre vious convictions including several burglaries and various alcohol-related crimes plus a convicti on for escape. The tr ial judge applied this e nhancing factor to all of the offenses. The record show

s the personal injuries i nflicted on the v ictim wer e great. The victim had u nde rgone and, at th e tim e of sent enci ng, was still unde rgoin g exten sive psycholog ical treatment as a result of the trauma inflict ed upon her by the defendant’s conduct. The trial court found the enhancing factors tha t the offen ses involved a victim and were done to gratify the defendant’s desi re for pleasureor exci tement to be applicable to the charges of rap e. Further, the record shows, and the trial court-5-

found, the de fendant violated a positio n of trust at the time of the offense , because he st ood i n theposi tion of locus parentis to the vic

tim. The def end ant p rese nted few m itiga ting f acto rs, if any. Previousl y, the defendant argued the tri al court shoul d consider that he had been an alcoholic and ab used child and that he was now attemptin g to reform his life. W e review the se ntenci ng procee ding de novo upon the record with a presumption of corr

ectness, T.C.A. § 40-35-401, condi tioned upon a show ing the trial cour t has considered all the pri nciples of sentenc ing and cir cumstances and facts in the case. State v. Ashby , 823 S.W.2d 166 (Tenn. 1991). The defendant must show thesentence is i mproper. State v. Gregory, 862 S.W.2d 574 (Tenn. Crim. App. 1993). The defendant has failed to s how the tri al judge’s sentence is not appropriate. We therefore affirm the sentence in this case.

John K. Byers, Sen ior Judge CONCUR:

David H. W elles, Ju dge

Thomas T. Woodall, Judge