### FILED July 23, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE MAY 1999 SESSION

JERRY W. BURTON, ) ) C.C.A. No. 03C01-9809-CR-00340 Appellant, ) ) Johnson County v. ) ) Honorable Lynn W . Brown, Judge STATE OF TENNESSEE, ) ) (Habeas Corpus) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE : Jerry W. Burton, pro se Paul G. Summers #086470 Attorney General & Repor ter Northeast Correctional Complex P. O. Box 5000 Ellen H. Pollack Mountain City, TN 37683 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243

OPINION FILED: ____________________________

_______ AFFIRMED ALAN E. GLENN, JUDGE2 

### O P I N I O N

The defendant, Jerry W. Burton, has filed a p e tition for writ of habeas corpus, alleging that his convictions are void because no elements of the offenses for which he w as conv icted occurred in Hawkins County, Tennessee, where he was prosecuted. Base d upon our review of this matter, we affirm the holding of the trial court in dismi ssing hi s petition for writ of habeas corpus.

The opinion of this Court in Jerry Wesley Burton v. State , [no number in ori ginal] , Hawkins County, slip op. at 1 (Tenn. Crim. App., Knox ville, July 9, 198

5) setout the history of prior post-conviction attacks filed by the defendant. According to that opinion , the defendant entered guilty pleas to the various charges against him and later filed a series of petitions for p ost-conviction re lief, his third su ch petition resu lting in the 1985 opinion
w hich up held the decision of the trial court in dismissing that petition. The charges to which the defe ndant entered guilty pleas are set out in Jerry W. Burton v. State , No. 03C01-9704-CR-00122, 1998 WL 135512, at *1 (Tenn. Crim. App., Knoxv ille, March 26, 1998), perm . app . denied (Tenn. 1998). In the ch arges against him in Hawki ns County, the defendant entered guilty ple as to the offenses of criminal sexual conduct first degree, assault with intent to commit murder, kidnapping, and armed robbery and was sentenced to life imprisonment plus twenty-four year

s. In his petition, the defendant at tacked each of these convictions, but in his initial brief and his reply brief filed with this Court in support of his petition, he has argued only that the conviction for c r iminal sexual conduct first degree is void because it w as prosecuted in the wro ng cou nty. However, since the defendant first attacked all of his convicti ons on the same basis, we

will pre sume that he did not intend to waive this argument by not raising it in his two appellate briefs.

Exhibit B to the petition is a parti al transcript of the pr elimin ary hearing for the chargesthen pending against him on May 31, 1979, in the Hawkins C ounty General Sessions Court. Counsel for the co-defendant

argued that Hawkins County was not the
a ppropriate venue for prosecution of the cr iminal sexual conduct fir st degree charg e1 The male victim, at some po int, recognized the defendant, Jerry W. Burton, for they had attended elementary school together. The two defendants had b een allowed

into the automobile of the male victim after the de fendants approached and asked for a ride, claiming that their car w as broken and they needed a ride to their home. 3 against the defendant because all of the elements of that offen se o ccurred in Hamblen County.

ExhibitsC and D to the petition are handwritten, notariz ed statements given by the two victims. The state ment of the male victi m describ es in some detail ho w the two defendants held knives to his and the female victim’s throats, as the four of them were in the male victim’s automobil e in Hawkins County. 1 One of the defendants stated that the victims would be “cut”

if they did not cooperate w ith the two defendants. Inher notarized statement, the female victim said that, shortly after the initi al encounter, as the victims and the defendants were in the male victim’s automobile in H awkins County, the defendant known as “Jer

ry” pu t a knife

to her throa

t, and both defe ndants told the victims they would not be hurt if they cooperated. Thus , while still in Hawkins County, th e d efendants had taken control

of both v

ictims , puttin g both i n fear and depriv ing bot h of t heir libe rty. The defendants took the victims to Hamblen County, where the female victim was raped, and then re t urned the victims to Hawkins County, throwing both off a bridge and into a river. Later, the defendants were apprehended; and, according to Exhibit A to the petition, the defendant was found guilty of the offenses of criminal sexualconduct first degree, armed robbery, kidnapping, and assault with intent to commit murder.

Based upon these facts and convicti ons , th e defendant claims that he should not have been prosecuted in Hawki ns County since, accor ding to his petition, all of the elements of criminal sexual conduct first degree occur red in Hamblen County.

As the State’s brief correctly contends, the Tennessee Rules of Criminal Procedure, which were in effect at the time of the offensesof which the defendant was conv icted, set out the venue for prosecution of offenses or

criminal episodes occur ring in more than one jurisdiction.2 The Advisory Commission Comments to Rule 8 exp lain thereasons f or the

man d atory/permis sive provisio ns of the rule . It is desi gned, accordi ng to the Comme nts, “to encoura ge the disposition in a single trial of multiple offenses arising from the same conduct and from the same criminal episo de, and s hould t herefore promote efficiency and econom y.” It is further intended, according to the Comments, that the rule w ill stop the pra

ctice o f “savin g back” one or m ore charges which are part of the s ame episode for which a defendant is being prosecuted. If there is a “saving ba

ck” of a charge o r charges, the y are barr

ed from being prosecuted after the first trial. 4 Rule 8(a), regarding mandatory joinder of offenses, provides that multiple offenses shall be joined “if the offenses are based upon the same conduct or arise from the same criminal episode. . . .”

Rule 8(b), regardi ng permissive joinde r, allows offenses to be joined if they “constitute parts of a common scheme or plan or if they are of the same or similar char acter.” Since the two vic tims were controlled by the defendants from the time tha t kniveswere put to the victims’ throats in Hawkins County unt il they w ere thrown

from a bridge in Hawkins County , after the rape had occurred in Hamblen Co unty, the four offen ses were both based “upon the same conduct” and arose “from the same c riminal episode,” all owing them to be joined in a singl e prosecution. 2 Thus, it is clear that the prosecution of these four offen ses properl y occurre

d in a singl e forum, that being Hawkins County.

Rule 18(b), TennesseeRules of Criminal Procedur e, sets out

the venue provisions forprosecution of criminal offenses. It provides, in pertinent part, “If one or more elements of an offense are committed in one coun ty and one or more e lements in another, the offense may be prosecuted in either county.”

Criminal sexual conduct first degree, for w hich the defendant was convicted, i s set out in Chapter 937 of the Public Act s of 1978. Among the elements of the offense are that the actor use a weapon “to force or coerce the victim to engage in sexual penetration.” I f any of these ele ments o ccurred in Hawkins County, the defendant was pr operly prosecuted there for this offense.
Although the defendant has contended that no elements of the offense of criminal sexual conduct first degree occurred in Hawkins Co unty, this is not the case. As previously discussed, both victims stated in their affidavits th at t he defendants put knives to their5

throats while still in H awkinsCounty, where one defendant al so told the victims that they would be cut if they did not cooperate.

It is apparent from the statement of the female victim that, after the defendants had put knives to the victims’ throats and threatened to cut them unless they cooperated , force and coercion continued throug hout the episode to control the victims. She stated that the defendant called “Jerry” hitthe male victim with his fist, pulled his hair, and threatened to kill them both if they did not cooperat e. While the victims and the defendants were in Hamblen County, “Jerry” ripped the clothes off the female vic tim after she refused to disrobe. She was then raped by “ Mark,” while “J erry” held and struck the male victim when she refused to cooperate. Accordin g to her statement, “Jerry” also kicked her in the head.

The facts of this case are similar to those of State v. Davis , 872 S.W.2d 950 (Tenn. Crim. App.), perm . app . denied (Tenn. 1993), in w hich a rape victim w as kidnapped at gunpoint from the parking

lot of a grocery sto re in Blou nt Count y, Tennessee, and driven away in her own car by oneof her abductors. She was l ater raped multiple times and then dri ven to North Carolina, where she was again raped. The defendants claimed that the prosecution had not proven that Blount County was the proper venue for prosecuting the aggravatedrape and aggravated r obbery charges. In di sposing of these contentions, th e Court stated: The record demonstrates that e l ements of both of the

offenses of aggravat ed rap e and aggravated robbery first occurred in Blount County wher e force and coercion were u sed bythe appellants t o obtain entry into the victim’s vehicle and take her away. Wit h regard to the of fense of agg ra vated ro bber y, appellant Davis entered the vehicle with a deadly w ea pon. With regard to the offense of aggravated rape, the force and coercion began at this point

. In addition, appellant Davis and appellant Tipton aidedand abetted each other and used force in beginning this series of offenses in Blount County at the Red Food Store. Ac cordingly, since an element of the crimes occurred in Blount County, venue was

proper in Blount County. Davis , 872 S.W.2d at 953.

In this case, the defendant and his co-defendant entered the victims’ automobile in6

HawkinsCounty, where each put a knife to the throat of a victi m, and one of th e defendants stated that the victims would be cut if they did not cooperate. By this means, bot h victims w ere unde r the cont rol of th e defen dants be ginning in Hawkins Cou nty, although the rape occurred in Hamblen County. Thus, in Hawkins County , the defendants first used their kniv

es to threate n the two v ictims and to force or coerce the female victim to engage in sexual

intercourse. According ly, the joinder prov isions of Rule 8, Tennessee Rules of Criminal Procedure asid e, the charge of criminal s exual conduct first degree could have been prosecuted in either Hawkins County where the force and coercion necessary to accomplish the rape first occurred, or in Hamblen County where the rape actually occurred.

It is clear that a multi-c ounty criminal episode s uch as this, resulting i n several related criminal charges, i s precisely that env isioned by Rule 8, Ten n essee Rules of Criminal Procedure, providing that all charges resul ting from the incident should be prosecu ted in a single trial and Rule 18, allowing a criminal offense to be prosecuted in any county in which one of its elements occurred. In fact, if the defen dant’s theory were correct, it seems likely that he would have been faced with prosecutions in

both Hawkins and Hamblen Counties, each trial involving the same witnesses a nd the same p roof. In such trials, the prosecution could be expected to prov e not only thefacts necessary for the charge(s) being prosecuted in that c ounty, but, also, the facts of the c rimes occurring in the other county. Thus, there are both legal and practi c al reasons that all such charges are prosecuted in a single tr ial in one venue.
Based upon the foregoing, the ju dgment of the trial court is affirmed.

_____________

_______________________ ___ _ ALAN E. GLENN, JUDGE7

CONCUR:

____________________________________ JAMES CURWOOD WITT, JR., JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE