# FILED
March 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUARY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9703-CR-00101 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, RAY CHARLES GASAWA Y, ) JUDGE

) Appellant. ) (Sexual battery - 2 counts; ) rape - 3 counts)

FOR THE APPE LLANT: FOR THE APPELLEE:
THOMAS H. M ILLER JOHN KNOX WALKUP P.O. Box 681662 Attorney General & Repor ter Franklin, TN 37068-1662 ELIZABETH B . MARNEY Asst. Attorney General 425 Fifth Ave. N. Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General WILLIAM REED Asst. District Attor

ney General 200 Washington Sq., Ste. 500 Nashville, TN 37201

OPINION FILED:____________________

CON VIC TIO NS AF FIR MED ; SE XUAL BATTERY SE NTENCES MODIFIED JOHN H. PEAY, Judge1 It is the poli cy of thi s Court to i dentify minor victi ms of sex crimes by thei r initials. 2 O P I N I O N

T h e defendant was charged wi th two counts of sexual bat tery and three counts of rape; a jury convi cted him of all charges

. After a hearing the defendant was sentenced as a Ran ge I sta ndard offe nderto two years incar ceration on each of the sexual battery convictions and twelve years on each of the ra pe conv ictions. All sent enc es were ordered to be serv ed concurrently. In thi s appeal as of right, the defendant cont ends that the indictments are fatally defective, that the evidenc e is not sufficientto support his rape conv ictions and that his sentences are ex cessive. Upon our review of the record, we reduce the defendant' s sentences on the sexual battery convictio ns, but o therwise a ffirm t he judgme nt below.

The victim in this case,RB, 1 was the defendant's step-son at the time the offenses occur red in app roximately 1991 and 1993. RB, sixteen at the time of trial, testified that, when he was “about eleven,”the defendant had fondled his genitals.The first ti me it occurred was in the bedroom of the apartment in whic h RB, the defendant, RB's mother and younger brother were living. RB testified that the defendant had put his hands under RB's clothes and fondled him for

thirty to forty-fiv e minutes. The

next time it happened was after

RB had finished taking a show er. RB testifiedthat the defendant had walked into the bathroom w hile RB was naked an d t old him to sit down. The defendant then began fondlin g him again, and RB testified that th e defendant's hands and mouth touched RB's penis.

RB also testified that, when he w as thirteen, the defendant “had anal sex with”him. When asked to explain this, RB tes tified that the defendant had touched the in si de of RB's “butt” with hi s penis. RB testified that it had felt “[p]ainful.” RB testified2 RB testifi ed that t he defendant had al so engaged in oral sex with hi m on two of these occasions. However , in making i ts elect ion of off enses, the Sta

te chose to pr

oceed on the al legati ons of anal sex.

3 “Sexual batt

ery is unlawful sexual contact [between t he victi m and defendant]” and “ [f]orce o r coercion is used to accom plish the act.” T.C.A. §§ 39-13-505(a) (1991); 39-13-503 (a)(1) (1991).

4 “Ra pe is u nlaw ful se xua l pene tration of a vic tim b y the d efen dan t [and ] . . . [f]or ce or coer cion is used to accom plish the act.” T.C.A. § 39-13-503(a)(1) (1991).

5 Becau se the de finitions of the se offe nses d o not plainly disp ense w ith a me ntal elem ent, intent, knowledge or reck lessness suffice to establish the culpable me ntal state. T.C.A. § 39-11-301(c) (1991). 3 about three specific instances in which the d efendant had touched the inside of RB's “butt” with his peni s, all while he w as thirteen years old. 2

The defendant t estified and denied ever having touched RB in a sexual
manner.

We first addre ss the defendant's contenti on that the in dictme nts in this case
are d e fective. The allegations charging sexual battery provide that the defendant “did engage in unlawful sexual co ntact with [RB] (D.O .B. 12-24-79), and force or coercion was used to accomplish the act.” 3 The allegations chargi ng rape provide that the defendant “did engage i n unla wful sexual penetration of [RB] (D.O.B. 12-24-79), and force or coercion was used to accomplish the act.” 4 The defendant contends that these charges do n ot sufficiently allege the mens rea element of the specified offense, relyi ng on thi s Court's decision in State v. Roger Dal e Hill, Sr. , No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. filed June 20, 1996, at Nashville).

The defendant's reliance on the Hill opinion is misplaced. Fi rst, it has been overruled by our Supreme Court. See State v. Hill , 9 54 S.W .2d 725 (Tenn. 1997). Moreover, the allegation that “force or coercion was used to accomplish” the offenses is sufficient to allege the mens rea requirement of intentional, knowing or reckless. 5 See, e.g. , Larry Leonard Joyner, J r. v. Compton , No. 02C01-9610-CC-00328, Lake County (Tenn. Crim. App. filed Dec. 23,1997, at Jackson). This is sue is without merit.4 The defendant next contends that the evidence is insufficient to support his convictions for rape. Specifically, he arg ues thatthe State failed to prove the es sential eleme nt of sexual penetration, which is defined as “sexual intercourse, cunnili ngus , fellatio, anal interc

ourse, o r any other int rusion,howev er slig ht, of any

part of a person's body or of any object into the g enital or anal openings of the victim's, the defendant's, or any other person's body, but e mission of semen is not requi red.” T.C.A. § 39-13-501(7) (1991). The defendant asserts that RB's testi mony“is insufficient, as a matter of law, for
a rational trier of fact to find bey ond a reasonable doubt that an essential element of the offense -- intrusion of the anal openi ng -- occurred.” We disagree.RB testified that the defendant's penis had touched the inside of his “butt” and that it was “[p]ainful.” Because the defendant's penis could have touched the inside of RB's body only by intrusion, this element was sufficiently es tablished by this testi mony. This issue is w ithout merit.

In his final issue, the defendant complains tha t his s entences ar e excessive. Specifi cally, he contends t hat the court below failed to apply a mitigating

factor and misapplied enhancement factors. When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C .A. § 40-35-401(d). The burden of show ing that the sente nce is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencin g Commi ssion Comments. This presumption, however, “is cond itioned upon theaffirmative showing i n the record that the trial court considered the sentencing principles

and all relevant facts and c ircumstances.” State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991).

A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35- 210, establishe d a numb er of specific procedures to be followed in sentencing. This section manda tes the court’s co nsideration of the following:

(1) The evid ence, if any, received at the trial and the senten c ing hearing; (2) [t]he pres entence report; (3) [t]he5 principles

of sent enc ing and arguments as to sent encing alternatives; (4) [t]henature and characteristics of the criminal conduct involved; (5) [e] vidence and information offered by the parties on the enhancement and miti gating factors in §§ 40-35-113 and 40-35-114; and (6) [a ]ny s tatement the defendant wishesto make in his own behalf abo ut sentencing. T.C.A. § 40-35-210.

In addition , this sec tion provi des t hat the minimu m sentence within the range is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhanc e the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as appropri ate forthe mitigating factors. If there are no mitigating factors, the court may

set the sentence above the minimum in that range but s till within the ran ge. The weight to be given each factor is left to the discretion of the trial judge. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The Act further

provides that “[w]henever the court imposes a sentence, it shall place on the record either orally or in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as requir ed by § 40-35-209.” T.C.A. § 40-35-210(f) (emphasis added). Because of th e importance of enhancing and mitigating fac tors und er the sentencing guidel ines, even the absence of these factor s must be recorde d if none are found. T.C.A. § 40-35-210 c omment. These findings by th e tria l judge must be recorded in order to allow an adequate review on appeal.

In this ca se, the court below simpl y stated at the conclusion of the sentencing hearing that it was applying as enhancement factors first, that “the v ictim was vulnerable,”

second, that “the defendant abused a position of trust,” and thi rd, that“the act
was committed for pleasure and excitement.” See T.C.A. § 40-35-114(4), (15), & (7). The court below said nothing about mitigating factors. Nor did it make any specific findings of6

fact in support of its application of the enhancem ent factors. Accordingly, w e review the defendant's sentences without the presumpt ion of correctness.

The defendant correctly concedes that the enhancement factor for abusing
a position of trust, T.C.A. § 40-35-114(15), was properly applied in this case. He argues, however, that the other two enhancement factors s hould not have been applied and that the court below should have applied as a mitigating factor that th e criminal conduct neither caused nor threatened serious bodily injury. See T.C.A. § 40-35-113(1).

We first address the trial court's decision to enhance the defen dant's sentence because the victim was “vulnerable.” See T.C.A. § 40-35 -11 4(4) (allowing enhancementwhere the victim “was particularly vulnerable because of age or physicalor mental disability”). Our Supreme Court has held that this factor “may be used to enhance sentences when a victim's natural physical and mental limit ation s renders the victim particularlyvulnerabl e for his or her age because of an inability to resist, a difficulty in calling for help, or

a difficulty in testifying against the perpetrator.” State v. Kissinger, 922 S.W.2d 482, 487 (Tenn. 1996). It is the State's burden to prove “ the victim's limitati ons rendering him or her particularly vulnerable.” State v. Ada ms , 864 S.W.2d 31, 35 (Tenn. 1993). As our Sup reme Cou rt subsequ ently s tate d in State v. Poole , “[i]n determining whether the State has met its burden [ of proving t he victim's limitations rendering him particularlyvulnerable], the trial court . . . should consider whether evidence in the record with regard to the

victim's age or phy

sical and mental attributes demonstrated an inability to resist the crime, summon help, or testify at a later date. . . . Such evid ence . . . mus t relate to the v ictim's physical or mental capacity at the time of the crime and not at the time of trial or sentencing.” 945 S.W.2d 93 , 96-7 (Tenn. 1997). Sim ply pr oving the defendant's age is not eno ug h. Id. at 98. In this case, how ever, the State offered no6 Although RB's m other tes tified at the se ntencing hearing th at RB h ad bee n diagno sed with Atten tion D eficit D isord er wh en he was eight years old, th e Sta te pu t on n o exp ert tes timo ny tha t this con dition , or the me dica tion h e som etim es to ok fo r it, ren dere d him in any w ay par ticula rly vuln erab le withi n the meaning of t he statute

. 7 proof of any particular vul nerability on RB's pa rt other than his age. 6 While th e St ate argues that the sexual abuse first began when RB was eleven, that is not necessarily too young to resist, summon help or tes tify. That RB testified that the defendant threatened him and his family if he said any th ing does not establish any particular vulnerabili ty on RB's part: such threats may work equally well on well-adjusted healthy adults. The State has simply failed to

carry its burden of proving the applicability of this factor. Accordin gly, enhancement of the defen dant's sentence on this basis was improper.

We now turn to the lower cour

t's application of the enhancement factor for
co mmitting the offenses “to gratify the defendant's desire for pleasure or ex citement.” T.C.A. § 40-35-114(7). We first note th at this factor cannot be applied to the defe ndant's sexual battery conviction s becau se it is an element of the offense. Sexual batte ry is defined as “unlawful sexual contact” between the victim and d efendant accompanied by certain circumstances. T.C.A. § 39-13-505(a) (1991). “Sexual contact” is in turn defined, in pertinent part, as the defendant touc hing the victim's “intimate parts” “if that intentional touching can be reasonably construed as being for the purpose of se xual aro usal or gratification.”

T.C.A. § 39-13-501(6) (1991). An enhancement factor cannot be applied if it is an essential element of the offen se. T.C.A. § 40-35-114. Thus, application of th is factor to the defendant's convict ions for s exual battery was improper. See State v. Kissinger , 922 S.W.2d 482, 489-90 (Tenn. 1996) (“Since [this ] factor is an essential element of the offense, it cannot beused to enhance the sentences of sex ual battery and aggravated sexual battery.”)

We also f ind that application of this factor to the defendant's rape convictions

was improper. In order for a sentence to be en hanced on the basis of this7 The presentence report also li sts what appears t o be a Flori da felony

convicti on. The defendant conte nded at the sent encing heari ng that t his it em was erroneous and the Stat e's atto rney indicat ed that he agr

eed with defense counsel that the defendant

had no prior

felony convicti ons. 8 factor, the State has the burden of proving the defenda nt's motives in comm itting the crimes. State v.Kissinger , 922 S.W.2d 482, 490 (Tenn. 1996). In this case, the S tate offered absolutely no proof as to the defendant's motives. It arg ues that “the repeated incidentsof anal intercourse and fellati o permit a reasonable conclus ion that defendant's motivation in sexually abusi ng the victim was to gratify defendant's lust , his desire for pleasure or excitement.” Given our Supreme Court's recognition of the many motivations underlying sexual

crimes, see Kissinger , 922 S.W.2d at 490, we decline to draw suc h a conclusion based solely on the number of incidents about w hich RB testified.

In reviewing the defendant's sentenc es, then , we have thus far determined that one enhancement factor was properl y applied. TheState also urges us to appl y as a factor that “the defend ant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establi sh the appropriate range.” T.C.A. § 40-35-114(1). The defendant's pres entence report reveals that he has two or three mis demeanor

convictions. 7 Accordingly, w e find that some enhancement of his sent ence s on this basi s is appropriate. We further find that the rapes were committed “unde r circumstances under whi ch the potential for bodily injury to a victi m was great,” T.C.A. § 40-35-114(16), and that further e nh ancement of the rape sentences is appr opriate based on this factor.

The defendant arguesthat the trial court shoul d have applied as a mitigating factor that his criminal conduct “neither caused nor threate ned seri ous bodily injury .” T.C.A. § 40-35-113(1). “Ser ious bodily injury

” is defined elsewhere i n our criminal code
as “bodily injury

whi ch inv olves: (A) A substantial risk of death; (B) Pr otracted unconsciousness; (C) Extreme physi cal pain; (D) Protrac ted or obvious disfigur

ement; or (E) Protracted loss or

substantial impairment of a function of a bodily member, organ or9

mental faculty.” T.C.A. § 39-11-106(a)(33). We agree with the defendant that the proof did not establish that his s exual abuse of

RB caused such injury. We do, however, find that the rapes certainl y threatened such injury, and the tr ial court therefore did not err in not applying this factor t o mitigate the defendant's sentences on the rape convictions. We hold, however, that this mi tigating factor should hav e b een accorded some weight w ith respect to the sexual battery convictions.

Our review of the sentenci ng hearing leads us to ho ld that three enhancementfactors, and no mitigating factors, are properly applicable to the defendant's sentences for rape. Because the defendant was a Range I offend e r, the range for his rape convictio ns is eight to twelve years. T.C.A. § 39-13-503(b) (1991); 40-35-112(a)(2). Although two of the three enhancing factors applied by the cour t below are different

from those applied by this Court,we agree with th e end result of a maximum sentence on each of the rape convictions. With respect to the sexual battery offenses, the range for these convictions is one to two years. T.C.A. § 39-13-505(b) (1991) ; 40-35-112(a)(5). Based
on the applicat i on of two enhancing factors and o ne mitigating factor, w e reduce the defendant's sentences for these conv ictions to eighteen months eac h.

In conclusion, the defendant's sentences on thesexual battery conv ictions
are r educed to eighteen months each. In all other respects, the judgment below is affirmed.

_______________________________ JOHN H. PEAY, Judge1 0

CONCUR:

_______________________________ DAVID H. W ELLES, Judge

_______________________________ THOMAS T. W OODALL, Judge