FILED

March 23, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CR-00232

)

Appellee, )

)

) UNION COUNTY

VS. )

) HON. LEE ASBURY

ROBERT H. McCURDY, ) JUDGE

)

Appellant. ) (Aggravated Sexual Battery)

ON APPEAL 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 General and Reporter

Oneida, TN 37841

TIMOTHY F. BEHAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

WILLIAM PAUL PHILLIPS

District Attorney General

E. SHAYNE SEXTON

Assistant District Attorney General

P.O. Box 323

Jacksboro, TN 37757

OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
1

 It is the policy of this Court to refrain from using the full names of victims of child sex abuse.

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OPINION

The Defendant, Robert H. McCurdy, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. He was convicted by a Union

County jury of two counts of aggravated sexual battery and two counts of

contributing to the delinquency of a minor. He was sentenced as a standard,

Range I offender to consecutive sentences of eight years for each count of

aggravated sexual battery. The sentences for contributing to the delinquency of

a minor were ordered to run concurrently with the aggravated sexual battery

sentences. The Defendant raises three issues in this appeal: (1) That the trial

court erred by failing to properly charge the jury regarding possible sentences or

to charge the jury that the Defendant would be required to serve one hundred

percent of his sentences for aggravated sexual battery; (2) that the trial court

erred by ruling that Tennessee Code Annotated section 40-35-201 is

unconstitutional; and (3) that the trial court erred by ordering the aggravated

sexual battery sentences to be served consecutively. We affirm the Defendant’s

convictions. We reverse the trial court’s finding that the sentences should be

served consecutively and remand for the entry of an order consistent with this

opinion.

On September 29, 1995, in Maynardville, Tennessee, N.M., age 9, and

C.M., age 111, were walking together after school. They were heading to a

quarry to play when the Defendant, who was fifty-eight years old, called to them

from his auto repair garage. N.M. lived just up the road from the garage in
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Welch’s trailer court and knew the Defendant as a family friend. C.M. did not

know the Defendant. The girls went over to the Defendant to talk. C.M. asked

him if he would buy them a pack of cigarettes. He agreed and took them to a

convenience store in “Halls”, rather than the Pilot store in Maynardville because

N.M.’s mother worked there. They returned to the garage for a couple of hours

and smoked cigarettes. The Defendant did not smoke. N.M. told her mother that

they had gone to the Defendant’s garage but not that he bought them cigarettes.

The girls went back to the garage the next day, which was a Saturday.

They smoked cigarettes and drank wine coolers. The girls asked to do odd jobs

to earn some money and the Defendant let them sweep the garage and clean out

his refrigerator. He gave each girl $20. He also offered them $100 as a

Christmas present if they would install insulation in the garage. The Defendant

also lived in a room in the garage. 

On Saturday or Sunday, the Defendant began asking questions of a sexual

nature, stating that a past girlfriend was a hooker. He asked the girls whether

they had had sex and whether they had pubic hair. N.M. became somewhat

scared, but the two girls returned on Sunday. They smoked and drank wine

coolers. The girls went to the garage on Monday after school. The Defendant

asked the girls whether they knew how to “jack off” and told them they were going

to learn. He locked the doors and laid on the bed in his living quarters. C.M.

noticed a shotgun by the bed. The Defendant pulled down his pants, first

demonstrated, then had the girls massage his penis and testicles. C.M. first

asked if they could wear socks on their hands and the Defendant provided socks

from a bag on the floor. The girls “switched” at some point between who
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masturbated the Defendant’s penis and his testicles. They stopped after they

saw “white stuff” come out of the Defendant’s penis. The Defendant threatened

the girls, stating that he would go to jail, the girls would go to juvenile and their

mothers would go to jail, and that he would come back and kill them. After this,

the girls went to their respective homes, but neither told their families.

The girls returned the following Thursday to get a notepad that N.M. had

left at the garage. They asked the Defendant to get some cigarettes and he

complied. However, he locked the girls in the garage while he went to the store.

C.M.’s mother and brother, Eric, arrived at the garage looking for her and banged

on the door. The girls remained quiet because they were scared. As C.M’s

mother was leaving, the Defendant pulled up. He unlocked the door, went in, told

the girls to hide the wine coolers and cigarettes, and then the girls came out of

the garage. Another one of C.M.’s brothers, David, and her sister-in-law also

arrived. C.M.’s brother David smelled alcohol and cigarettes on her breath.

They left and the girls admitted to the cigarettes and wine coolers. David and

C.M.’s mother returned to the garage about twenty minutes later and asked to

look around. David found cigarettes hidden under the bed covers.

The Defendant admitted that he had bought cigarettes and Mountain Dews

for the girls, but denied buying them any wine coolers. The Defendant denied

that he engaged in any conversation of a sexual nature or any acts of a sexual

nature. He testified that he locked the girls in the garage because they asked

him to. The jury convicted the Defendant of two counts of contributing to the

delinquency of a minor and two counts of aggravated sexual battery.
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As his first issue, the Defendant contends that the trial court erred by

refusing to charge the portion of Tennessee Code Annotated section 40-35-201

regarding release eligibility percentages. The Defendant requested that the trial

court charge the jury and that counsel be permitted to argue in his closing

statement that, if convicted, he would have to serve one hundred percent (100%)

of his sentences for aggravated sexual battery and seventy-five percent (75%)

of his sentences for contributing to the delinquency of a minor. See Tenn. Code

Ann. § 40-35-501(i)(2)(H). The trial court refused to charge the jury regarding

Tennessee Code Annotated section 40-35-201(b), which states:

(b)(1) In all contested criminal cases, except for capital crimes which are

governed by the procedures contained in §§ 39-13-204 and 39-13-205,

upon the motion of either party, filed with the court prior to the selection of

the jury, the court shall charge the possible penalties for the offense

charged and all lesser included offenses.

(2)(A)(i) When a charge as to possible penalties has been requested

pursuant to subdivision (b)(1), the judge shall also include in the

instructions for the jury to weigh and consider the meaning of a sentence

of imprisonment for the offense charged and any lesser included offenses.

Such instruction shall include an approximate calculation of the minimum

number of years a person sentenced to imprisonment for the offense

charged and lesser included offenses must serve before reaching such

person's earliest release eligibility date. Such calculation shall include

such factors as the release eligibility percentage established by §

40-35-501, maximum and minimum sentence reduction credits authorized

by § 41-21-236 and the governor's power to reduce prison overcrowding

pursuant to title 41, chapter 1, part 5, if applicable.

Our supreme court has determined that, rather than a constitutional right,

a jury charge concerning the range of punishm ent is a statutory right that a

Defendant may invoke. State v. Cook, 816 S.W .2d 322, 326 (Tenn. 1991). The

court’s holding was based on a prior wording of Tennessee Code Annotated

section 40-35-201(b) regarding the range of punishment, before it was amended

in 1994 as part of a truth in sentencing initiative. That amendment resulted in its
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current form, which contains a provision requiring trial courts to charge release

eligibility percentages. According to Cook, any error by the trial court in refusing

to instruct the jury is governed by Rule 52(a) of the Tennessee Rules of Criminal

Procedure and Rule 36(b) of the Tennessee Rules of Appellate Procedure. Rule

52(a) provides that “[n]o judgment of conviction shall be reversed on appeal

except for errors which affirmatively appear to have affected the result of the trial

on the merits.” Tenn. R. Crim. P. 52(a). Rule 36(b) states that: “[a] final

judgment from which relief is available and otherwise appropriate shall not be set

aside unless, considering the whole record, error involving a substantial right

more probably than not affected the judgment or would result in prejudice to the

judicial process.” Tenn. R. App. P. 36(b).

Our supreme court has sanctioned the statutory right of a defendant to

request that the jury be informed of the range of punishment applicable to a

crime: “Apparently the Legislature desired to give those charged with crimes the

option of making certain that the jury knew the punitive consequences of guilty

verdicts in the cases under consideration, and this court respects the right of the

Legislature to do so.” Cook, 816 S.W.2d at 326-27.

On this basis, we must conclude that the trial court erred by refusing to

grant the statutory right to charge the jury as the Defendant requested. However,

we conclude that this error by the trial court did not affect the judgment in a way

that prejudiced the judicial process. Apparently, no lesser included offenses were

charged and the jury was instructed only on aggravated sexual battery and

contributing to the delinquency of a minor. In Cook, the jury was informed of the

wrong sentence ranges when lesser included offenses were available. Id. at 324.
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The defendant argued that the jury could have exercised discretion and convicted

him of the lesser included offenses. Id. The State contended that errors in

instruction as to sentencing did not constitute reversible error because such

matters were irrelevant to the determination of guilt or innocence. Id. at 325. The

supreme court found this to be reversible error. Id. at 327. Here, the jury was

properly instructed regarding the sentence ranges for the charged offenses. 

However, the jury was only presented with the option to convict the Defendant of

the charged offenses or to acquit him. There was strong evidence of the

Defendant’s guilt and there is nothing in the record that suggests the jury’s

knowledge of the release eligibility dates for the offenses would have compelled

them to consider acquittal. See State v. Winford Lee Pipkin, C.C.A. No. 01C01-

9605-CR-00210, Davidson County (Tenn. Crim. App., Nashville, Dec. 4, 1997).

As a result, we cannot conclude that the failure of the trial court to charge the jury

that the Defendant was required to serve his entire sentence affirmatively

affected the results of the trial such that prejudice to the judicial process

occurred.

As his next issue, the Defendant argues that the trial court erred by ruling

that Tennessee Code Annotated section 40-35-201 is unconstitutional. During

the hearing on the motion for new trial, defense counsel argued that the trial court

was required to instruct the jury that the Defendant was required to serve his

entire sentence. The trial judge ruled that “I don’t think the Legislature can tell

the Court what to do. And I will put in the record in this case, to the extent they

are attempting to do that, that that is unconstitutional in the opinion of the Court.”
-8-

We recognize that the question of the constitutionality of Tennessee Code

Annotated section 40-35-201, as amended, remains an unsettled issue in this

Court. See State v. Jerry Ray Cooper, C.C.A. No. 01C01-9504-CC-00150,

Lincoln County (Tenn. Crim. App., Nashville, Nov. 17, 1997)(principal opinion

with two concurring opinions); State v. Dwjuan L. Bradford, C.C.A. No. 01C01-

9607-CR-00294, Davidson County (Tenn. Crim. App., Nashville, Sept. 30, 1997);

State v. Curtis Lee Majors, C.C.A. No. 01C01-9602-CR-00076, Davidson County

(Tenn. Crim. App., Nashville, July 30, 1997); State v. Howard E. King, C.C.A. No.

02C01-9601-CR-00032, Shelby County (Tenn. Crim. App., Jackson, Oct. 22,

1996) perm. to appeal granted, (Tenn., Mar. 10, 1997); see also Farris v. State,

535 S.W .2d 608 (Tenn. 1976).

However, we cannot join the trial court’s conclusion that the statute is

unconstitutional on the grounds that it violates the separation of powers doctrine.

Some functions of the three departm ents of state government are necessarily

overlapping and interdependent. We believe this is particularly true in our

criminal justice system. See, e.g., Lavon v. State, 586 S.W.2d 112, 115 (Tenn.

1979); Underwood v. State, 529 S.W .2d 45, 47 (Tenn. 1975); Woods v. State,

130 Tenn. 100, 169 S.W. 558 (1914). We find Cook to be instructive on this

issue: 

The Legislature, in its wisdom, certainly has the right and power to direct

the judicial process. They have said that where a defendant wants his

trial jury to know the range of possible punishments resulting from

convictions that he is entitled to have that information conveyed to the jury.

To deny this defendant that statutory right constitutes prejudice to the

judicial process, rendering the error reversible under Rule 36(b) T.R.A.P.
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Cook, 816 S.W.2d at 327. With this considered, we conclude that section 40-35-

201 is not unconstitutional based on a violation of the doctrine of separation of

powers.

In his final issue, the Defendant argues that the trial court erred by

imposing consecutive sentences for aggravated sexual battery. When an

accused challenges the length, range, or the manner 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 circumstances." State v. Ashby, 823 S.W .2d 166, 169

(Tenn. 1991).

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 argum ents 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 principles set out under the sentencing law, and
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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).

At the sentencing hearing in this case, the State argued for consecutive

sentences because the Defendant committed two child sex abuse offenses

pursuant to the following:

(b) The court may order sentences to run consecutively if the court finds

by a preponderance of the evidence that:

. . .

The defendant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant's undetected sexual activity,

the nature and scope of the sexual acts and the extent of the residual,

physical and mental damage to the victim or victims.

Tenn. Code Ann. § 40-35-115(b)(5). The trial court imposed consecutive

sentences without explanation. The State concedes that the trial court did not

comply with the sentencing guidelines, which merits a de novo review without the

presumption of correctness. Nevertheless, the State argues that the record

supports the imposition of consecutive sentences based on subsection 115(b)(5).

The State points out that the victims were not just minors, but very young girls,

that the Defendant encouraged them with alcohol and cigarettes, and that he

threatened to kill them.

However, although the conduct of this fifty-eight year old man was

reprehensible, and while not disregarding the seriousness of crimes of this

nature, we believe the circumstances in this case militate against the application

of subsection 115(b)(5). There was no significant time span of undetected sexual
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activity, the nature of the criminal conduct was nonaggravated, and the extent of

residual damage to the victim caused by the conduct was not demonstrated by

evidence presented at trial. The Defendant correctly notes that cases in which

consecutive sentencing has been upheld, the nature of the sexual abuse has

generally been more severe, physical and mental damage was shown through

testimony presented in court, and the acts took place over long periods of time,

such as over several months or years. See, e.g., State v. Woodcock, 922

S.W.2d 904 (Tenn. Crim. App. 1995); State v. Hallock, 875 S.W.2d 285 (Tenn.

Crim. App. 1993); State v. Hunter, 926 S.W.2d 744 (Tenn. Crim. App. 1995);

State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). In contrast, the case sub judice

consisted of one act with two victims that was the result of contact with the girls

within a week. The State elicited no testimony regarding how the incident

affected the victims. This is akin to State v. Hayes, 899 S.W.2d 175 (Tenn. Crim.

App. 1995), in which two acts of sexual battery occurred over a two-month period

and in which this Court found consecutive sentencing unsupported by the

evidence.

Given all of the circumstances presented in this case, concurrent

sentences for the aggravated sexual battery convictions are appropriate in

relation to the severity of the offenses and are the least severe measures

necessary to deter the defendant's future criminal conduct, to protect society and

to deter others who are similarly situated and may be likely to com mit similar

offenses. See Tenn. Code Ann. §§ 40-35-102 and -103. 
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Therefore, we modify the sentences to reflect that they be served

concurrently, and rem and to the trial court for entry of an order consistent with

this opinion. In all other respects, the judgment is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE