State v. Barney

Decision Date01 February 1999
Citation986 S.W.2d 545
PartiesSTATE of Tennessee, Appellee, v. William Henry BARNEY, Appellant.
CourtTennessee Supreme Court

Karl Dean, Public Defender, Jeffrey A. Devasher, Assistant Public Defender, Jerrilyn Manning, Assistant Public Defender, Joan A. Lawson, Assistant Public Defender, Nashville, For Appellant.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Gordon W. Smith, Associate Solicitor General, Nashville, Victor S. Johnson, III, District Attorney General, William R. Reed, Assistant District Attorney General, Nashville, For Appellee.

OPINION

BIRCH, J.

The defendant, William Henry Barney, was convicted of eleven counts of rape of a child and seven counts of aggravated sexual battery. He is currently serving a total effective sentence of eighty years. Upon the Court of Criminal Appeals's affirmance of these judgments, the defendant filed an application for permission to appeal to this Court. We granted the application in order to determine whether the language of the indictment was sufficient under State v. Hill, 954 S.W.2d 725 (Tenn.1997), and to determine whether the multiple convictions for rape of a child and aggravated sexual battery violate the constitutional principles of due process or double jeopardy. We conclude that the indictment is sufficient under Hill. In addition, we conclude that, under the facts and circumstances of this case, multiple convictions for rape of a child and aggravated sexual battery are justified and do not violate the constitutional principles of due process or double jeopardy.

I

The salient facts presented at trial showed that in July 1992, the defendant, a forty-seven-year-old man, moved in with the victim's family as a nanny for the victim and his two older brothers. The defendant took a special interest in the ten-year-old victim. In November 1992, the defendant quit the nanny job and left the state. In May 1993, he returned unexpectedly and asked the family's new nanny whether he could visit with the victim. The victim became upset and refused to see the defendant. When the nanny asked the victim why he was upset, the victim told her that the defendant had "molested" him previously. The nanny called the victim's father, who told her to call the police. After the defendant gave a statement implicating himself in the alleged sexual conduct, investigators arrested him.

At trial, the victim testified that, on at least five occasions, the defendant entered the victim's bedroom, rubbed the victim's penis with his hand, and then performed fellatio on the victim. The victim also recalled at least four occasions when the defendant anally penetrated him and at least two occasions when the defendant performed anilingus on him.

At the conclusion of the proof, the State elected to submit six discrete sexual encounters to the jury. Five of these occurred in the victim's bedroom at the victim's home: the first in July 1992 when the defendant fondled and anally penetrated the victim; the second in August 1992 when the defendant fondled, performed fellatio, anally penetrated, and performed anilingus on the victim; the third in September 1992 when the defendant fondled, performed fellatio, anally penetrated, and performed anilingus on the victim; the fourth in October 1992 when the defendant fondled, performed fellatio, and anally penetrated the victim; and the fifth in November 1992 when the defendant fondled, performed fellatio, and anally penetrated the victim. The sixth encounter occurred in the victim's living room when the defendant performed fellatio on the victim.

II

The defendant contends that the indictment in this case is fatally deficient because it failed to allege a specific culpable mental state for the offenses of rape of a child and aggravated sexual battery. Of the fourteen counts of the indictment charging rape of a child, seven of the counts alleged that

WILLIAM HENRY BARNEY on a day between July 1, 1992, and November 30, 1992, in Davidson County, Tennessee and before the finding of this indictment, did engage in unlawful sexual penetration of [K.B.], 1 a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-522, and against the peace and dignity of the State of Tennessee.

Seven other counts alleged that

WILLIAM HENRY BARNEY on a day between July 1, 1992, and November 30, 1992, in Davidson County, Tennessee and before the finding of this indictment, did cause [K.B.], a child less than thirteen (13) years of age, to engage in unlawful sexual penetration of William Henry Barney, in violation of Tennessee Code Annotated § 39-13-522, and against the peace and dignity of the State of Tennessee.

There were also seven counts charging aggravated sexual battery. Each of those counts alleged that

WILLIAM HENRY BARNEY on a day between July 1, 1992, and November 30, 1992, in Davidson County, Tennessee and before the finding of this indictment, did engage in unlawful sexual contact with [K.B.], a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-504, and against the peace and dignity of the State of Tennessee.

In State v. Hill, 954 S.W.2d 725, 729 (Tenn.1997), this Court held that where the language of an indictment alleging aggravated rape as "unlawfully sexually penetrat[ing]" a person under the age of thirteen met the constitutional and statutory requirements of notice and form, and where a culpable mental state could be logically inferred from such language, the indictment was valid. State v. Stokes, 954 S.W.2d 729 (Tenn.1997), extended the rationale of Hill to an indictment charging rape of a child. Under the Hill analysis, we find that the counts of the indictment charging rape of a child were constitutionally valid and sufficient to vest the trial court with jurisdiction.

More recently, the Hill analysis was extended to an indictment charging aggravated sexual battery. See Ruff v. State, 978 S.W.2d 95 (Tenn.1998). We find that the language recited above for the charges of aggravated sexual battery is substantially identical to the language upheld as constitutionally and statutorily sufficient in Ruff. Those charges were likewise valid and sufficient to vest the trial court with jurisdiction.

III

Next, the defendant urges that his act of rubbing the victim's penis was "essentially incidental" to the fellatio and that the two acts (rubbing and fellatio) thus constitute but a single crime for which a single punishment is appropriate. He contends, then, that due process principles prohibit separate convictions for five of the counts of aggravated sexual battery and five of the counts of rape of a child. For its part, the State insists that the rubbing and the fellatio were discrete acts for which separate punishments are appropriate.

The "essentially incidental" test for determining whether due process principles support separate convictions for two or more felonies arising from one particular course of conduct was developed in State v. Anthony, 817 S.W.2d 299 (Tenn.1991). In Anthony, this Court determined that because the detention of the victim was essentially incidental to the commission of the robbery, due process principles prohibited a separate conviction for kidnapping. Id. at 307. We have since refined the Anthony test in several cases, including State v. Dixon, 957 S.W.2d 532 (Tenn.1997), in which we held that separate convictions for attempted sexual assault and kidnapping were constitutionally valid because the defendant's conduct "exceeded that restraint necessary to consummate the act of attempted sexual battery," lessened the risk of detection, and substantially increased the risk of harm to the victim. Id. at 535.

In State v. Denton, 938 S.W.2d 373, 378 (Tenn.1996), we noted that "[w]hile our decision in Anthony addressed the particularly anomalous nature of the kidnapping statute, it is conceivable that the principle of Anthony could apply to circumstances involving offenses other than kidnapping." Upon reflection, we find that the "essentially incidental" test, as developed in Anthony and its progeny, is not helpful in the context of sexual offenses because each separate sexual act "is capable of producing its own attendant fear, humiliation, pain, and damage to the victim." State v. Phillips, 924 S.W.2d 662, 665 (Tenn.1996).

For determining whether two or more sexual acts may be the subject of separate convictions, we find the test articulated in People v. Madera, 231 Cal.App.3d 845, 282 Cal.Rptr. 674 (1991), to be instructive. In Madera, the court upheld dual convictions for a defendant who rubbed a young boy's penis and then engaged in fellatio. 2 The defendant contended that the touching was merely incidental and preparatory to the commission of the fellatio and argued that the rubbing was a part of the fellatio. The court reasoned that Madera's intent was the critical consideration. Specifically, the pivotal question was "whether [Madera's] touching of [the victim's] penis was to commit a separate base criminal act or to facilitate the oral copulations ... that shortly followed." Id. at 679. The court held that if the act in question directly facilitates or is merely incidental to the accompanying sexual conduct (such as, for example, applying lubricant to the area of intended copulation), convictions for both acts would be barred. Id. at 680. If, however, the act in question is "preparatory" only in the sense that it is intended to sexually arouse either the victim or the perpetrator, separate convictions are not barred. Id.; accord People v. Scott, 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Cal.1994).

We suggest that several factors may be relevant in determining whether conduct is directly facilitative, and thus incidental, or merely preparatory in the sense of intending to arouse the victim or perpetrator. These factors are:

1. temporal proximity--the greater the interval...

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