# FILED March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706- CR-00232 ) Appellee, ) ) ) UNION COUNTY VS. ) ) HON. LEE ASBURY ROBERT H. McCURDY, ) JUDGE ) Appe llant. ) (Aggravated Sexual Ba ttery)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF UNION COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : CHARLIE ALLEN JOHN KNOX WALKUP P.O. Box 5027 Attorney Generaland Reporter Oneida, TN 37841 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 WILLIAM PAUL PHI LLIPS Distri ct Attor ney General E. SHAYNE SEXT ON Assistant Distri ct Attor ney General P.O. Box 323 Jacksboro, TN 37757
OPINION FILED ________________________ AFFIRMED AS MODIFI ED DAVID H. WELLES , JUD GE1 It i s the poli cy of this Court to ref rain fro m using the full names of victi ms of child sex abuse. -2- 

# OPINION

The Defe ndan t, Rob ert H. M cCur dy, app eals a s of righ t pursu ant to R ule 3 of the Tennessee Rules of Appe llate Proce dure. He was convicted by a Union Coun ty jury of

two counts of

aggravated sex ual batter y and two c o unts of contribut ing to the del inquency of a minor. He was sent enced as a standard, Range I offender

to consec ut ive sentence s of eight years for

each count of aggravated sexual battery. The sentences for contribut ing to thedelinquency of
a minor were ordered to run concurrently with the aggravated sexual battery sentences. The De fendant raises three issues in this ap peal: (1 ) That t he trial court erred by failing to properly charge the j ury regardi ng possible sentences or to charge the jury that the Defenda nt would be requi red to serve one hundred percent of his sentence s for aggravated sexual battery; (2) that the trial cou rt erred by ruling that Ten nessee C ode Ann otated section 4 0-3 5-201 is unco nstitutio nal; a nd (3) that the tri al court er red by orderi ng the aggravated sexual battery

sentences to beserved cons ecutively. We affirm the De fenda nt’s convictions. We reverse the tri al court’s fi nding that the s entences should be served consecutively and remand for the entry

of an or der c onsis tent with this opinion.

On Septe mbe r 29, 19 95, in M aynar dvil le, Tenne ssee, N.M., age 9, and C.M., age 11 1 , were walking together af ter sch oo l. They were he ading to a quarry to play when t he Defendant, who was f ifty-eight years old, called to them from his auto r

epair garage. N.M. li ved just up the road from the g arage in-3-

W elch’s trail er court and k new the Defendant as a family f riend. C. M. did not know the Defendant. The girls went o ver to the D efenda nt to talk. C.M. asked him if he would buy them a pack of ci garett es. He agreed and took them to a convenience store in “Halls”, rather than the Pilot store in Maynardvill e because N.M.’s mother worked there. They returne d to the garag e for a couple o f hours and smoked cigarettes. The Defendant di d not smoke. N.M. told her mother t hat theyhad gone to the Defendant ’s garage but not that hebought them cigarettes.

The girls went back to t he garage the next da y, which w as a Saturd ay. They smoked cigarettes and drank winecoole rs. Th e girls asked to do odd j obs to earn some money and the Defendant let them sweep the garage and cl ean out his refri gerator. He gave each g irl $20. He a lso offered them $100 as a Christmas prese nt if they w ould install insulat ion in t he garage. The Defendant also lived in a room in the gara ge.

On Saturday or S unday, the Defendant began as king questi ons of a sexual nature, s tating t hat a past gi rlfr iend was a hooker. He asked the gir ls whether theyhad had sex and whethe r they had pubic hair . N.M. became somewhat scared, but the two g irls r eturned on Sun day. Theysmoked and drank wine coolers. The girls went to the garage on Mond ay after sch ool. The Defendant asked the girl s whether they knew how to “jack off” and told t hem they were going to learn. He l ocked the doors and l aid on the be d in hi s li vin g quar ters. C. M. notic ed a shotgun by t he bed. The Defendant pul led down his pants, firs t demonstrated, then had the girls massage his penis and tes ticles. C.M. first asked if they

could wear

socks on their hands and the Defendant provided socks from a bag on the fl oor. The gir ls “switched” ats ome point between who-4-

masturbated the Defendant’ s penis and his testic les. They stopped after t hey saw “white stuff”

come out of the Defendant’s peni s. The Defendant t hreatened the girls, statingthat he woul d go to jai l, the gi rls would g o to juveni le and their mothers would go to ja il , an d th at h e wou ld come b ack and kil l t hem. After this, the girls went to their respecti ve homes, but neither told t heir families.
The girls r

eturned the f

ollowing Thursday to get a notepad that N.M. ha d left at the garage. They asked the D efenda nt to get s ome cigarettes and he complied. However, he l ocked the gir ls in t he garage while he went to the store. C.M.’s mother and brother, Eric, ar rived at the garage l ooking for her and banged on the do or. Th e girls re main ed quiet be caus e they w ere sc ared. A s C.M ’s mother was leaving, the Defendant pul led up. He unlo cked the door, w ent in, to ld the girls to h idethewin e co ole rs a nd c iga ret tes , an d th en t he gi rl s ca me out of the garage. An other one of C .M.’s brothers , David, and her sister-in- law also arrived. C.M.’s br

other David s melled alcoholand cig arettes on her breath. T he y left a nd the girl s admitted to the cigarettes and wi ne coolers. David and C.M.’s motherreturned to the gara ge abo ut twenty m inutes late r and as ked to look around. David found cigaret tes hidden under the bed covers.

The Defendant admitted thathe had bought cigarettes an d Mountai n Dews fort he girls, but denied buyi ng them any wine cool ers. The Defendant denied t hat he engaged in any conversation of a sexual nat ure or any acts of a sexua l nature. He testif ied that h e locked the gi rls in the garage because t hey aske d him to. The jur

y convicted the Defenda nt of two co unts of cont ributi ng to the delinquenc y of a minor an d two coun ts of aggravated sexual battery.-5- As his fi rst iss ue, the Defendant contend s that the tri al court er red by refusing to charge the porti on of Tennessee Code Annotated sec tion 40-35-201 regarding release el igibil ity per centages. The Defendant requested that

the tri al court charge the j ur y and t hat counsel be permitted to a rgue in his closing statementthat, if convicte d, he wo uld have to serve one hundred per cent (10 0%) of his sentences for aggravated sexualbattery and se vent y-fiv e percent (75%) of his sentences forcontributing to the delinquencyof a mino r. See Tenn. Code Ann. § 40-35-501(i )(2)(H). The trialcourt ref used to charge t he jury r egarding Tennessee Code An notated section 40-35-201(b), which states:
(b)(1) In all contested cr iminal cases, excep t for capital crimes wh ich are govern ed by the proced ures containe d in §§ 39-13 -204 and 3 9-13-2 05 , upon the motion o f either party, filed with the c ourt prior to the select ion of the jury, the cou rt shall ch arge the possible penalti es for the offense charged and all lesser incl uded offenses. (2)(A) (i) When a ch arge as to possi ble penalt ies has been requested purs uan t to subdivi sion (b)( 1), the j udge shall al so include i n the instruct ions for the jury to weigh and consi der the meaning of a sentence of imprisonment for the offense charged and any lesser included offenses. Such instruct ion shall includ e an ap proxima te calculat ion of theminimum number of years a person senten ced to im prisonm ent for th e off ense charged and lesser i ncluded offenses must serve before reaching suc h p erson 's earlies t releas e eligib ility date. S uch c alcula tion sh all includ e s uc h factors as the relea se eligibility percentage e stablished by § 40-35-501, maxim um an d minim um se ntence reduction credits authorized by § 41-21-236 and the go verno r's power to reduce prison overcr owding pursuant to t itle 41, chapter 1, p art 5, i f applicable.
Our sup remecourt has determined that, rather t han a constitu tional right, a jury char

ge concerning t he range ofpunishm ent is a statuto ry right that a Defendant may invo ke. State v. Cook , 816 S.W .2d 322 , 326 (T enn. 19 91). The court’s holding was based o n a prior wor ding of Tennessee Code Annotated section 40-35-201(b) regarding t he range of puni shment, before it was amended in 1994 as part of

a truth in se ntencing initiative. Tha t amen dmen t resulted in its-6-

cur ren t f orm, which co ntains a p rovision req uiring trial cou rts to charge release eligibility percentages. According to Cook , any error by the trialcourt in refusing to instruc t the jury is gove rned b y Rule 52(a) of the Tennessee Rules of Criminal Procedu re and Rule 36(b) of the Ten ness ee Ru les of A ppella te Pro cedu re. Ru le 5 2(a) provides t hat “[n] o judgment of conv iction shall be r eversed on appeal exceptfor errors which affirmatively appear to have af

fected theresult of

the tri al on the me rits.” Tenn . R. Crim . P. 52(a). R ule 36(b ) states tha t: “[a ] final judgment from which reli ef is avai lable and ot herwise appropriate shal l notbe set aside un less, co nside ring the whole record , error in volving a sub stantia l rig h t more proba bly than not af fected the judgment or woul d result i n prejudice to the judicial process.” Te nn. R. App . P. 36(b).

O ur supreme court has sanc tioned the statutor

y right of a defendant

t o request that the jury b e info r med of the range of punishment appli cable to a crime: “Apparentl y the Legisl ature desir ed to give t hose charged with cri mes the option of making certain that t he jury knew t he puniti ve consequences of gu ilt y verdicts in the ca ses u nder c onsid eration , and th is court respec ts the ri ght of the Legislature to do so.” Cook , 816 S.W.2d at 326-27.

On this basi s, we must concludethat the t rial cour t erred by re fusing to grant the statu tory ri ght to charge the jury as the Defendant requested. However, we conclude that

this err or by the t rial cour

t did not affect t he judgment in a way thatprejudiced the judi cial process. Apparently, no less er included of fenses were charged and the jury was i nstructed only on aggravat ed sexual batt ery and contribut ing to the delinque ncy of a m inor. In Cook , the jur y was informed of the wrong sentence ranges when lesser inc luded o ffenses w ere availa ble. Id. at 324.-7-

The defendant argued that the j ury could hav e exercised di scretion and convicte d him of the l esser included offenses
. Id. The S tate co ntend ed tha t errors in in struc tion as to sentencing did not consti tute reversibl e error because such matters were irrelevant to the determinat ion of guil t or innoce nce. Id. at 325. The supr eme court found this to be rev ersible error. Id . at 327. Here, the j ury was prope rly instruct

ed regarding t he sentence ranges f or the cha rged offe nses. Howeve r, the jury was only presented with the opt ion to convict the Defendant of the charged offens es or to acqui t him. There wasst rong evidence of the Defe ndan t’s guilt and there is noth ing in th e reco rd that s ugge sts the jury’s knowledge of the rel ease eligi bilit y dates for

the offens es would have compell ed them to conside r acquittal. See State v. W inford L ee Pip kin , C.C.A. No. 01C01- 9605-CR-00210, Davi dson Coun ty (Ten n. C ri m. App., Nashvil le, Dec. 4, 1997 ). As a result, we cannot concludethat the f ailure of the trial court to charge the jury thatthe Defendant was re quired to serve his en tire sen tence affirma tively affected the res ults of th e trial su ch tha t prejud ic e to t he judicial process occurred.

As his next i ssue, the Defendant argues that the trialcourt err ed by ruli ng thatTennessee Code Annotated secti on 40-35-201 is unconsti tutional . During the hearing on the motion for new tri al, defense counsel argued t hat the trial court was require d to ins truct the jury that the De fenda nt was requir ed to serve his entire senten ce. The trial judg e ruled that “I do n’t think the Le gislatu re can tell the Cour t what to do. An d I will put in t he record in t his case, to the extent they are attemptingto do th at, that th at is un cons titutiona l in the opinio n of the C ourt.”-8- We recognize thatthe questi on of the const ituti onality of Tennessee Code Annotated section 40-35-201, as amended, remains an u nsettle d issue in this Court. See State v. Jerry Ray Cooper , C.C.A . No. 01C01-9504-CC-00150, Linco ln County (Ten n. Crim. App., Nashv ille, Nov. 17, 1997)( principalopinion with two con curring o pinions); State v. Dwjuan L. Bradford , C.C.A. No. 01C01- 9607-CR-00294, Davidson County (Tenn. Crim. App ., Nashville, Sept. 30, 19 97); State v. Curtis Lee Ma jors , C.C.A. No. 01C01- 9602-CR-00076, Davidson Coun ty (Tenn. Crim. A pp., Nas hville, July 30, 1 997); State v. Howard E. King , C.C.A. No. 02C01-9601-CR-00032, Shelby C ounty (T enn. C rim. App ., Jackso n, Oct. 22 , 1996) perm. to appeal granted , (Tenn ., Mar. 10, 1 997); see also Farris v. Sta te , 535 S.W .2d 608 (Te nn. 1976).

Howe ver, we can not join the trial court’s co nclusion that the sta tute i s unconstit utional on the grounds that it vi olates t he separation of powers doct rine. Some functions of the three departm ents of sta te g overn men t are ne cess arily overlappi ng and interdepen dent. We believe t his is par ticula rly t rue in our criminal justice syste m. See, e.g. , Lavon v. State , 586 S.W.2d 112, 115 (Tenn. 1979); Unde rwood v . State , 529 S.W .2d 45, 47 (Tenn . 1 97 5); Wo ods v. Sta te , 130 Tenn. 100, 169 S.W. 558 (1914). We find Cook to be instru ctive on this issue: The Legislatur

e, in i ts wisdom, cer

tainly has the right and p ower to direct the judicial process. Th ey have sai d that w here a defen dant w ants h is trialjury to know the range of possible puni shme nts resul ting fr om convicti ons that he i s entitl ed to have that informati on conveyed to the jury. To deny thi s def endant that statutor y right constit utes prejudi ce to the judici al proces s, re nderi ng the e rror rever sibl e under

Rule 36 (b) T. R.A.P.-9-

Cook , 816 S.W.2d at 327. With this considered, we conclude that section 40- 35- 201 is not unc onsti tutionalbas ed on a viol ation of t he doctrine of separati on of powers.

In his final issue , the Defe ndant a rgues th at the trialcourt err ed by imposing co nsec utive sentences for aggrav ated sexual ba

ttery. When an a ccused challenges the length, range, or the manner of service of a se ntence , this court has a dut

y to conduct a de novo review of t he sentence wit h a presu mption that the determinati ons made by the tri al court ar e correct. Ten n . Code Ann. § 40-35 -401( d). Th is pres ump tion is "conditioned up on the affirmative showing in the record t hat the trial court consi dered the sente ncing pri nciples and all relevant fac ts and circ umsta nces." State v. Ashby , 823 S.W
. 2d 166, 169 (Tenn. 19 91).

In conducting a de novo review of a sentence, t his court must consider: (a) t he evidence, if any, r eceived at t he trialand the sentenci ng hearing; ( b) th e presentence report; (c) the principl es of sentenc ing an d argum ents as to sentencing alternat ives; ( d) the natur e and characteri stics of the criminal conduct involved; (e) any

statutor y mitigat ing or

enhancement factor

s; (f) any statement thatthe defe ndant made on his own behalf ; and (g) t he potentialor lack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; 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 gi ven due consider ation and properweightto the factors an d princip les set out under the sentencing law, and-10-

thatthe tri al court' s findi ngs of factare adequately supported by t he record, t hen we may not m odif y the sentenceeven if we woul d have prefer red a diff erent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the sentenci ng hearing in this c ase, the State a rgued for con secutive sentences b ecaus e the Defendant commit ted two chi ld sex abuse of fenses pursuant to t he following: (b) The court may order sentences to run consecutively if the court f ind s by a prep ondera nce of the evidenc e that:

. . . The defendant i s convicted of two (2) or more statutor

y offensesinvolv ing sexual a buse o f a minor wit h considerat ion of theaggravati ng circumstancesa ris ing from the r elations hip between th e defendant and victim or victims , the tim e spa n of de fenda nt's undetected sexual activity, the nature a nd sco pe of the s exual ac ts and the extent o f the resi du al, physical and mental damage to the victi m or victims.
Tenn. Code Ann. § 40-35 -115( b)(5). T he trial c ourt impo sed conse cutive sentences without e x planation. The State concedes t hat the trial court did not com ply with the sentencing guideli nes, which merits a de novo review wi thout the presumption of correctn ess. Ne vertheles s, th e State argues that the record suppo rts the imposit ion of consecut ive sentence s bas ed on subsection 115 (b)(5). The State po ints out tha t the victims were no t just mino rs, b ut very young girl s, thatthe Defe ndant e ncoura ged the m with al cohol and cigar ettes, and that he thr eat ened to k il l t hem.

Howeve r, although the c onduct of this fifty- eight year old man was reprehensibl e, and while not disregardi ng the seri ousnes s of crime s of this nature, we believe t he circumstances i n this case mil itate agai nst the applicat ion of subsection 1 15(b)(5). There was no signi ficant t ime span of undetected sexual-11-

activity, the nature of

the crimi nal conduct was nonaggravated, and the extent of residual damage to the vi ctim caused by the conduct was not demonstrated by evidence presented at trial . The Defendant corr ectly notes thatcases in which consecu tive sentencing has be en upheld, t he nature of t he s exual abu se has gene rally been more sever e, physical and mental damage was shown throu gh testimony

presented i n court, and the acts took place over long perio ds of time, such as over se veral mo nths or ye ars. See, e.g
. , State v. Woodcock , 922 S.W.2d 904 (Tenn . Crim. A pp. 199 5); State v. Hallock , 875 S.W.2d 285 (Tenn. Cri m. App. 19 93); State v. Hunter , 926 S. W. 2 d 744 (Te nn. Crim. Ap p. 1995); State v. Taylor , 739 S.W.2d 227 (T enn. 19 87). In contrast, the case sub judice consisted of one act wi th twovictims that wa s the re sult of c ontac t with the girls within a week. The State el icitedno testi mony regar ding how the inci dent affected the victi ms. This is akin to State v. Hayes , 89 9 S. W.2d 1 75 (Tenn . Cr im. App. 1995), in whi ch two acts of sex ual batter y occurred over a two-month per iod and in which t his Court found consecutive sentencing unsuppo rted by t he evidence.

Given all of

the circ umstances presented i n thi s case, concurr ent sente nces fo r the ag grava ted se xual ba ttery co nviction s are a pprop riate in relati on to the severity of the of fenses and are t he least severe measures necessa ry to dete r the de fenda nt's future criminal conduct , to protect societ y and to dete r other s who are sim ilarly situa ted an d ma y be like ly to com mit sim ila r offense s. See Tenn . Code Ann. §§ 40-35-1 02 and -103.-12- Therefore, we mod ify the sentences to reflect that they be se rved concurren tly, and rem and to the trial court for en try of an ord er cons istent with this opi nion. In all othe r respects, the judgment i s affirmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE