# FILED October 21, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 03C01-9606-CC-00222 ) Appellee, ) ) BLOUNT COUNTY ) V. ) ) HON . D. KEL LY TH OM AS, JR., CHRISTOPHER ALLEN BERNSTEI N, ) J UDGE ) Appe llant. ) (RAPE)

FOR THE APPELLANT : FOR THE APPELLEE : ROBERT M. COHEN JOHN KNOX WALKUP Attorn ey at Law Attorney General& Reporter 303 High Street Maryvil le, TN 37804 TIMO THY F . BEHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 MICHAEL L . FLYNN Distri ct Attorney General KIRK E. A NDREWS Assistant Distri ct Attorney General 363 C ourt Stree t Maryvil le, TN 37804-5906 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Chri stopher All en Bernstein, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appell ate Procedure. The B lo unt Co unty Grand Jury ret urned an indict ment charging Defendant with rape. Pursuant to a plea agreem ent, he pled gu ilty to the charge and receive d an agreed sentence of eight (8)years as a Range I Stand ard Offend er. As part of the pl ea agreem ent, Defendant was afforded a sentenci n g hearin g for the trial co urt to determine the manner of service of the sentence. The trial co urt or dered Defendant to serve the entire sentence in t he Depa rtmen t of Co rrection . In this appe al, Defendant rai ses two issue s: (1) He ar gues that the convic tion sh ould be reversed and t he charges dismiss ed because the indi ctment fai ls to al lege the mens rea, and (2)he argues the t rial cour t erred i n ordering him to serve his entire sentence in t he Department of Correctio n. We affirm the j udgment of the trial court.

The record ref lects t hat the Def e ndant committed t he offense of rape on or about June 30, 1995. He was residingwith his mother and father

at the ti me. Since it is

the poli cy of thi s court to not mention t he n ames of minor vi ctims of sexual abuse crimes, we will refer to the victim as T H. TH w as thirteen (13) yea rs old at the ti me of the offense and had be en residin g with her mothe r prior to moving in with the Defendant and hi s family. Defen dant w as twenty- eight (28) years old at the tim e of the offe nse. TH ’s IQ had b een e valu ated as low as 46 and experts had d etermined that her men tal age was ap proximately s ix ye ars old. Defendant

had known TH’s family for sever al years. They bega n datin g in-3-

May 1995. Although the Defendant admitted thathe realiz ed TH was “slow” and was taking some special academic classes, he claimed not t o know that she was men tally retarded. Due to the fact that TH’s mother

did not want her t

o reside at home, the Defe ndant’s p arents inv ited TH to live with the D efenda nt’s family. In approxim ate ly June of 1995, Defendant and TH began having sexualrelati ons which included sexual in tercourse and di gital pe netrati on. TH became pregnant and evidently gave birth to a ch ild in January 1996. It is not clear from the record whether or not

Defendant was the f

ather of t his chil d.

I. SUFFICIENCY

OF INDICTMENT

Defendant argue s that th e indic tmen t is fatally defective and insufficient for faili ng to all ege any mens rea. He relies upon a decision of a p anel of this court which held that

the indi ctment in that case was inval id for faili ng to all ege a mens rea where the defendant was charged and convi cted of aggrava ted rape
. See State v. Rog er Da le Hill , No. 01C01-9508- CC -00267, Wayne County (Tenn. Crim. A pp., Nas hville, June 20, 199 6), perm . to appeal granted (Tenn . 1997).

The indictment i n the case sub judice alleges in p art that the D efenda nt: [O]n or about June, 1995, in Blo unt County, Tennessee , and before the finding of this indictme nt, did unla wfully sexu ally penetra te [TH], knowing at the ti me or having reason t o know at thetime that the said [TH] was, m entally d efecti ve, mentally incapaci tated or physic ally helpless i n violat ion of Tennessee Code Annotated § 39- 13-503 , . . . . It is well-set

tled that t he purpose of the indictmen t is to give notice to the defendantof the cri me he must d efend a t trial. State v. Hughes , 212 Tenn. 644, 647, 371 S.W.2d 445, 447 (1962). An indictment or presentment must pr ovide-4-

notice of the off

ense charged, an adequate basis f or the entr

y of proper

judgment and suitable p rotection a gainst do uble jeop ardy. State v. T rusty , 919 S.W.2d 305, 309 (T enn. 19 96); State v. B yrd , 820 S.W .2d 739 , 741 (T enn. 19 91). A lawful accusation i s an es sential jurisdi ctional element, t hus, a prosecut ion cannot proceed withou t an indict ment that suf ficien tly i nforms the accused of the essential eleme nts of the o ffense. State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. Cri m. App. 1992 ); State v. Morgan , 598 S.W.2d 796, 797 (Tenn. Cr im. App. 1979).

Tennessee Code Annotated secti on 39-13-503 states in part that rape: is the unlawful sexual penetrati on of a vict im by the defenda nt or of the defendan t by a victim accom panied by a ny of the foll owing circumstances. . . [

that] defendant knows or has rea son to know thatthe vict im is mentally defective, mentally incapaci tated or physically hel pless.
Tennessee Code Annota ted sectio n 39-11 -301(c) s tates th at “[ i]f t he definit ion of an o ffense within th is title do es no t plain ly di spense with a mental eleme nt, intent, knowledge or r ecklessn ess suffice s to es tablish the cu lpable mental state.” Th e rape s tatute and applicab le defi nitionsneither r equire nor “plainly dispense”with the r equirement of

a culpable mentalstate, an d thus, th e terms of Tenne ssee Co de Anno tated section 39 -11-301(c) apply. In order to suffici ently a llege el ements of the of fense, the indict ment must allege or “nece ssarily imply” t hat the Defendant ’s sexual penetrati on of TH was done e ith er intentiona lly, knowing ly or reckles sly.

In Sta te v. Mars hall , 870 S .W .2d 53 2, 538 (Ten n. Crim . App. 1 993), th is court found tha t an indictm ent was not fatally de tective if t he ele ments of the-5-

offense are necessari ly impli ed from the allegat ions made. A recent decision of this court heldtha t “[i ]f an offense i s alleged i n such a way that the defendant cannot fail to be appris ed of th e ele ments of the o ffense , the ind ictme nt is sufficient, notwithstanding the fact that an elem ent may not be sp ecifica lly alleged.” See State v. John Haw s Burr ell , No. 02C01-9404-CR-00157, slip op. at 31, Anderson County (Tenn. Crim. App. , Knoxvil le, Feb. 11, 1997 )(Rule 1 1 applicati on filed, Apr il 10, 1997). We hold that t he mens rea of “kno wingly” is nece ssarily implied i n the language of the indi ctment in t he case sub judice by the allegati ons that D efend ant en gage d in the sexual penetr ation of TH, “ knowing at the time or ha ving reas on to kno w at the tim e that the s aid [TH ] was , men tally defectiv e, mentally i ncapacitated, or physical ly helpless.” See State v. Gus sie W illis Vann , No. 03C0 1-9602-C C -00066 , McMin n Cou nty (Ten n. Crim. A pp., Knoxville, Ju ne 10, 1 997). T his issue is without m erit.

II. MANNER OF SERVI CE OF SENTENCE

Defendant argues that the trial court erred by se ntencing him to serve his eight-year sent ence i n theTennes see Dep art ment of Correcti on. Defendan t asserts that the t rial court should h ave sen tenced Defen dant to C omm unity Corrections

or some other type of alternat ive sentenci ng. When an accused challe nges the len gth, ran ge or m anne r of serv ice of a sente nce, th is court has a duty to conduc

t a de novo review of

the sentence wi th a presumpti on thatthe determinati ons mad e by the trial c ourt are correct. Tenn. Code Ann. § 40-35- 401(d). This presumptio n is “condi tioned upon t he affirmati ve showing in the record that the t rial cour t considered the sentenci ng princip le s and all r elevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).-6- In conduc ting a de novo review of a senten ce, this court mu st consider: (a) the evidence, if any, received at the tri al and the sentencing heari ng; (b) the presentence report; (c) the princ iples of senten cing and argum ents as to sentencing alternat ives; (d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l o r lack o f potentialfor rehab ilitation or treatm ent. Tenn. Code Ann. § 40-35-102, -103 and -210; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having given due consider ation and properweight to the facto rs and princ ipals set out under the sentencing l aw, and thatthe trial c ourt’s finding s of fac t are ad equa tely supported by t he record, t hen we may not modify t he s entence e ven if we woul d have prefer red a diff erent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

From our revi ew of the re cord, it is apparent the t rial cour t considered the purposes of the sentencing laws , the presentence report, and the exhibits and testimony

of the sentencing hearing. Since the Defendant r eceived theminimum sentence of eight (8) years f or a convict ion ofrape, th e trial co urt did not address any enhancement or miti gating fac tors as they might pe rtain to the le ngth of the senten ce.

Defen dant, convicted of a Class B fel ony , is not presumed to be a favora ble candidate for altern ative sentencing. T enn. Cod e Ann. § 40 -35-102(6). The trial court properly consi dered various mitigating an d enhanc ement fac tors-7-

to determine whether Defendant was suitabl e for any al ternati ve sentencin g. The trialcourt foundthe followin g mitigatin g factors: (1) The Defendant coop erated with the State, (2) thi s convict ion was Defendant’ s first felony convicti on, and (3) Defen dant pled guilty.

The trialcourt found the foll owing enhancement factors to be applic able in arrivi ng at the app ropriate sentence: ( 1) The offense inv olved a vi ctim and was committed by the Defendant to gratif y his desi re for pl easure or excitement, and (2) the Defe ndant a bused a position of private trus t ( though it a ppears the trial court placed li ttle wei ght on thi s). Furt hermore, in r eviewing t he sen tencing considerati ons of Tennessee Code A nnotated se ction 40-35-10 3, the trial court found that in this case conf inement was necessary to a voi d depreciati ng the seriousness of the offense. Th e trial court specifically found tha t there was no evidence in the record that t here was a need to restrain Defendant because of pri or cr iminal co nduct, the re was n o eviden ce of dete rrence to justify c onfinem ent, and there was no evi dence that measures l ess restri ctive t han confinementhad be en previo us app lied unsu ccessfu lly. See Tenn. Code Ann. § 40-35 -103.
However, thetrialcourt placed great weight upon the lack of

potentialfor rehabilitation in determin ing that t he entire s entence should b e serv ed in the Department of Cor rect ion. Sp ecif icall y, there was proof at the sentenci ng hearing thatfollowi ng the Defendant’s ar rest, t he victi m was placed in protective custody of the De partm ent of H uma n Ser vices a t a facility in Knox County. Sever al weeks later, the Defendant went to this facil ity and wasfound with the victim in a vehic le in the parking l ot. There wasconfli ct in t he testi mony as to why Defendant was-8-

there, but the trial court found that theDefe ndan t had g one th ere afte r telling h is father tha t they were going to G eorgia to get ma rried.

The trial court he ard the te stimon y of the De fe ndant, t he De fenda nt’s mother, and the law enforcement offi cer who invest igated thecrime. He als o had the benefit of the pre- sentence report . From our revi ew of the entir e record, we are unabl e to h old that the trial court com mitted er ror by orde ring Defe ndant to serve his enti re sentence i n the Department of Correctio n. This is sue is wit hout merit.

We affirm the ju dgme nt of the trial co urt.-9- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JERRY L. SMITH, Judge