FILED

October 21, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00222

 )

Appellee, ) 

 ) BLOUNT COUNTY

 )

V. ) 

 ) HON. D. KELLY THOMAS, JR., 

CHRISTOPHER ALLEN BERNSTEIN, ) JUDGE 

 ) 

Appellant. ) (RAPE) 

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT M. COHEN JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

303 High Street

Maryville, TN 37804 TIMOTHY F. BEHAN

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

MICHAEL L. FLYNN

District Attorney General

KIRK E. ANDREWS 

Assistant District Attorney General

363 Court Street 

Maryville, TN 37804-5906

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Christopher Allen Bernstein, appeals as of right pursuant

to Rule 3 of the Tennessee Rules of Appellate Procedure. The Blount County

Grand Jury returned an indictment charging Defendant with rape. Pursuant to a

plea agreement, he pled guilty to the charge and received an agreed sentence

of eight (8) years as a Range I Standard Offender. As part of the plea

agreem ent, Defendant was afforded a sentencing hearing for the trial court to

determine the manner of service of the sentence. The trial court ordered

Defendant to serve the entire sentence in the Department of Correction. In this

appeal, Defendant raises two issues: (1) He argues that the conviction should

be reversed and the charges dismissed because the indictment fails to allege the

mens rea, and (2) he argues the trial court erred in ordering him to serve his

entire sentence in the Department of Correction. We affirm the judgment of the

trial court.

The record reflects that the Defendant committed the offense of rape on

or about June 30, 1995. He was residing with his mother and father at the time.

Since it is the policy of this court to not mention the names of minor victims of

sexual abuse crimes, we will refer to the victim as TH. TH was thirteen (13) years

old at the time of the offense and had been residing with her mother prior to

moving in with the Defendant and his family. Defendant was twenty-eight (28)

years old at the time of the offense. TH’s IQ had been evaluated as low as 46

and experts had determined that her mental age was approximately six years

old. Defendant had known TH’s family for several years. They began dating in
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May 1995. Although the Defendant admitted that he realized TH was “slow” and

was taking some special academic classes, he claimed not to know that she was

mentally retarded. Due to the fact that TH’s mother did not want her to reside at

home, the Defendant’s parents invited TH to live with the Defendant’s family. In

approxim ately June of 1995, Defendant and TH began having sexual relations

which included sexual intercourse and digital penetration. TH became pregnant

and evidently gave birth to a child in January 1996. It is not clear from the record

whether or not Defendant was the father of this child.

I. SUFFICIENCY OF INDICTMENT

Defendant argues that the indictment is fatally defective and insufficient for

failing to allege any mens rea. He relies upon a decision of a panel of this court

which held that the indictment in that case was invalid for failing to allege a mens

rea where the defendant was charged and convicted of aggravated rape. See

State v. Roger Dale Hill, No. 01C01-9508-CC-00267, Wayne County (Tenn.

Crim. App., Nashville, June 20, 1996), perm. to appeal granted (Tenn. 1997). 

The indictment in the case sub judice alleges in part that the Defendant:

[O]n or about June, 1995, in Blount County, Tennessee, and before

the finding of this indictment, did unlawfully sexually penetrate [TH],

knowing at the time or having reason to know at the time that the

said [TH] was, mentally defective, mentally incapacitated or

physically helpless in violation of Tennessee Code Annotated § 39-

13-503, . . . .

It is well-settled that the purpose of the indictment is to give notice to the

defendant of the crime he must defend at trial. State v. Hughes, 212 Tenn. 644,

647, 371 S.W.2d 445, 447 (1962). An indictment or presentment must provide
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notice of the offense charged, an adequate basis for the entry of proper judgment

and suitable protection against double jeopardy. State v. Trusty, 919 S.W.2d

305, 309 (Tenn. 1996); State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 1991). A

lawful accusation is an essential jurisdictional element, thus, a prosecution

cannot proceed without an indictment that sufficiently informs the accused of the

essential elements of the offense. State v. Perkinson, 867 S.W.2d 1, 5 (Tenn.

Crim. App. 1992); State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App.

1979).

Tennessee Code Annotated section 39-13-503 states in part that rape:

is the unlawful sexual penetration of a victim by the defendant or of

the defendant by a victim accompanied by any of the following

circumstances . . . [that] defendant knows or has reason to know

that the victim is mentally defective, mentally incapacitated or

physically helpless.

Tennessee Code Annotated section 39-11-301(c) states that “[i]f the

definition of an offense within this title does not plainly dispense with a mental

element, intent, knowledge or recklessness suffices to establish the culpable

mental state.” The rape statute and applicable definitions neither require nor

“plainly dispense” with the requirement of a culpable mental state, and thus, the

terms of Tennessee Code Annotated section 39-11-301(c) apply. In order to

sufficiently allege elements of the offense, the indictment must allege or

“necessarily imply” that the Defendant’s sexual penetration of TH was done either

intentionally, knowingly or recklessly. 

In State v. Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993), this

court found that an indictment was not fatally detective if the elements of the
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offense are necessarily implied from the allegations made. A recent decision of

this court held that “[i]f an offense is alleged in such a way that the defendant

cannot fail to be apprised of the elements of the offense, the indictment is

sufficient, notwithstanding the fact that an element may not be specifically

alleged.” See State v. John Haws Burrell, No. 02C01-9404-CR-00157, slip op.

at 31, Anderson County (Tenn. Crim. App., Knoxville, Feb. 11, 1997)(Rule 11

application filed, April 10, 1997). We hold that the mens rea of “knowingly” is

necessarily implied in the language of the indictment in the case sub judice by the

allegations that Defendant engaged in the sexual penetration of TH, “knowing at

the time or having reason to know at the time that the said [TH] was, mentally

defective, mentally incapacitated, or physically helpless.” See State v. Gussie

Willis Vann, No. 03C01-9602-CC-00066, McMinn County (Tenn. Crim. App.,

Knoxville, June 10, 1997). This issue is without merit.

II. MANNER OF SERVICE OF SENTENCE

Defendant argues that the trial court erred by sentencing him to serve his

eight-year sentence in the Tennessee Department of Correction. Defendant

asserts that the trial court should have sentenced Defendant to Community

Corrections or some other type of alternative sentencing. When an accused

challenges the length, range or m anner of service of a sentence, this court has

a duty to conduct a de novo review of the sentence with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d). This presumption is “conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
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In conducting a de novo review of a sentence, this court must consider:

(a) the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. § 40-35-102, -103 and

-210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court’s findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

From our review of the record, it is apparent the trial court considered the

purposes of the sentencing laws, the presentence report, and the exhibits and

testimony of the sentencing hearing. Since the Defendant received the minimum

sentence of eight (8) years for a conviction of rape, the trial court did not address

any enhancement or mitigating factors as they might pertain to the length of the

sentence. 

Defendant, convicted of a Class B felony, is not presumed to be a

favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6).

The trial court properly considered various mitigating and enhancement factors
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to determine whether Defendant was suitable for any alternative sentencing. The

trial court found the following mitigating factors: (1) The Defendant cooperated

with the State, (2) this conviction was Defendant’s first felony conviction, and (3)

Defendant pled guilty. 

The trial court found the following enhancement factors to be applicable in

arriving at the appropriate sentence: (1) The offense involved a victim and was

committed by the Defendant to gratify his desire for pleasure or excitement, and

(2) the Defendant abused a position of private trust (though it appears the trial

court placed little weight on this). Furthermore, in reviewing the sentencing

considerations of Tennessee Code Annotated section 40-35-103, the trial court

found that in this case confinement was necessary to avoid depreciating the

seriousness of the offense. The trial court specifically found that there was no

evidence in the record that there was a need to restrain Defendant because of

prior criminal conduct, there was no evidence of deterrence to justify

confinement, and there was no evidence that measures less restrictive than

confinement had been previous applied unsuccessfully. See Tenn. Code Ann.

§ 40-35-103. 

However, the trial court placed great weight upon the lack of potential for

rehabilitation in determining that the entire sentence should be served in the

Department of Correction. Specifically, there was proof at the sentencing hearing

that following the Defendant’s arrest, the victim was placed in protective custody

of the Department of Human Services at a facility in Knox County. Several weeks

later, the Defendant went to this facility and was found with the victim in a vehicle

in the parking lot. There was conflict in the testimony as to why Defendant was
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there, but the trial court found that the Defendant had gone there after telling his

father that they were going to Georgia to get married. 

The trial court heard the testimony of the Defendant, the Defendant’s

mother, and the law enforcement officer who investigated the crime. He also had

the benefit of the pre-sentence report. From our review of the entire record, we

are unable to hold that the trial court com mitted error by ordering Defendant to

serve his entire sentence in the Department of Correction. This issue is without

merit.

We affirm the judgment of the trial court.
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____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge