FILED

September 10, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR-00004

)

Appellee ) KNOX COUNTY

)

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 General & Reporter

Knoxville, TN 37901-0426

Marvin E. Clements, Jr.

Assistant Attorney General 

450 James Robertson Parkway

Nashville, TN 37243-0493

Randall E. Nichols

District Attorney General

Charme Johnson

Assistant District Attorney General

City-County Bldg.

Knoxville, TN 37901-0426

OPINION FILED 

AFFIRMED

JOHN K. BYERS

SENIOR JUDGE
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O P I N I O N

The defendant was convicted of two counts of the rape of a child and two

counts of aggravated sexual battery. He was sentenced to serve 23 years on each

rape conviction and 11 years on each of the aggravated sexual battery convictions

as a Range 1 offender. The sentences were ordered to be served concurrently.

The defendant raises the following issues on appeal:

I. Whether the evidence was sufficient for any rational trier of fact to

convict defendant beyond a reasonable doubt of each and every element of

child rape and aggravated sexual battery.

II. Whether the trial court erred by denying defendant’s motion to

dismiss when the state failed to allege the required element of mens

rea in two of the four counts of the indictment.

III. Whether the trial court was justified in sentencing defendant to

serve almost the maximum sentence for each charge for which he was

convicted.

The judgment of the trial court is affirmed.

The victim in this case lived with her mother and the defendant. The mother

was arrested and incarcerated in May 1993, and the victim and the defendant

remained in the home.

We need not go into explicit detail concerning the sordid facts in this case. It

is enough to say the state presented sufficient evidence to convict the defendant of

the four offenses if the jury believed the state’s witnesses. The defendant testified

he did not commit the acts alleged in the indictment and testified to by the state’s

witnesses. He and other defense witnesses attacked the credibility of the victim and

other witnesses who testified for the state.

The jury, by their verdict, and the trial judge, by his approval thereof, have

accredited the state’s witnesses. The defendant asks us to discredit them on

appeal.
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At trial, the jury resolves conflict in the testimony of witnesses and determines

their credibility. Cabbage v. State, 571 S.W.2d 832 (Tenn. 1978). On appeal, we

weigh the evidence to determine if it is sufficient for a rational trier of fact to find guilt

beyond a reasonable doubt. State v. Evans, 838 S.W.2d 185 (Tenn. 1992). We

have weighed the evidence in this case in the context required and find it is

sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

The defendant contends the trial judge should have stricken counts 3 and 4

of the indictment because they failed to allege any mens rea requisite for the

offenses of aggravated sexual battery contained therein. The defendant cites no

cases in support of this issue but insists statutory requirements compel a dismissal

of the charges.

There appears to be two significant cases, which are pending review by the

Supreme Court, dealing with this issue, State v. Hill, C.C.A. No. 01C01-9508-CC00207 (Tenn. Crim. App., filed at Nashville, June 29, 1996) and State v. James,

C.C.A. No. 01C01-0601-CR-00016 (Tenn. Crim. App., filed at Nashville, May 27.

1997).

We adopt and set out herein the reasoning of the Court of Criminal Appeals

in James on the issue:

An indictment has three (3) purposes in Tennessee; namely, (1) to

inform the defendant of the precise charges; (2) to enable the trial

court upon conviction to enter an appropriate judgment and sentence,

and (3) to protect the defendant against double jeopardy. State v.

Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated

in ordinary and concise language so that a person of “common

understanding” will know what 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), while addressing the sufficiency of an

indictment charging the offense of murder, our Supreme Court stated

the following:

“While it seems clear that the indictment in Witt

was insufficient in that it failed to charge an element, that

the murder was committed unlawfully, in either the

language of the statute or common law or words of

equivalent import, the decision is confusing because of

the language, `fatally defective in omitting the charge that

the offense was committed feloniously or with malice

aforethought; and containing no words of equivalent

import.’ It is clear, however, that had the indictment used

the words `feloniously’ or `unlawfully’, it would have been

sufficient.”
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By containing the words found in the language of the statutes on

aggravated rape and aggravated sexual battery, the indictment at

issue sufficiently apprised James of the offenses charged. The

charges were stated in ordinary and concise language so that a person

of common understanding would know what was intended.

For the above reasons we decline to follow Hill and find this

indictment was sufficient to charge the offenses of aggravated rape

and aggravated sexual battery.

C.

Furthermore, Hill has no application to those counts of the

indictment charging the offense of aggravated sexual battery. Hill

dealt only with the charge of aggravated rape.

Aggravated sexual battery as defined in T.C.A. § 39-13-504 is

“unlawful sexual contact” with a victim “less than thirteen (13) years of

age.” T.C.A. § 39-13-501(6) defines “sexual contact” as the 

“. . . intentional touching of the victim’s, the defendant’s

or any other person’s intimate parts, or the intentional

touching of the clothing covering the immediate area of

the victim’s, the defendant’s, or any other person’s

intimate parts, if that intentional touching can be

reasonably construed as being for the purpose of sexual

arousal or gratification (emphasis added).”

Therefore, the mental element of “intentional” is included in the

definition of “sexual contact” and is impliedly included within the

indictment. By statutory definition the only way one can have “sexual

contact” is by the “intentional touching . . . for the purpose of sexual

arousal or gratification.” Id.

We therefore conclude that Hill is distinguishable as to those

counts charging aggravated sexual battery.

The defendant claims the trial judge erred in sentencing the defendant

to 23 years on each rape conviction and 11 years on each aggravated sexual

battery conviction. At the time of the offense, the presumptive sentence for the rape

of a child was 15 years, and it was 8 years for aggravated sexual battery.

The record in this case shows the defendant has a history of previous

convictions including several burglaries and various alcohol-related crimes plus a

conviction for escape. The trial judge applied this enhancing factor to all of the

offenses.

The record shows the personal injuries inflicted on the victim were great. The

victim had undergone and, at the time of sentencing, was still undergoing extensive

psychological treatment as a result of the trauma inflicted upon her by the

defendant’s conduct.

The trial court found the enhancing factors that the offenses involved a victim

and were done to gratify the defendant’s desire for pleasure or excitement to be

applicable to the charges of rape. Further, the record shows, and the trial court
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found, the defendant violated a position of trust at the time of the offense, because

he stood in the position of locus parentis to the victim.

The defendant presented few mitigating factors, if any.

Previously, the defendant argued the trial court should consider that he had

been an alcoholic and abused child and that he was now attempting to reform his

life.

We review the sentencing proceeding de novo upon the record with a

presumption of correctness, T.C.A. § 40-35-401, conditioned upon a showing the

trial court has considered all the principles of sentencing and circumstances and

facts in the case. State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). The defendant

must show the sentence is improper. State v. Gregory, 862 S.W.2d 574 (Tenn.

Crim. App. 1993).

The defendant has failed to show the trial judge’s sentence is not

appropriate. We therefore affirm the sentence in this case.

 

John K. Byers, Senior Judge

CONCUR:

 

David H. Welles, Judge

 

Thomas T. Woodall, Judge