State v. Beauregard

• Decision Date: 30 November 2000
• Docket Number: 97-00060
• Parties: STATE OF TENNESSEE v. FREDERICK BEAUREGARDIN THE SUPREME COURT OF TENNESSEE AT JACKSON
• Court: Tennessee Supreme Court

STATE OF TENNESSEE v FREDERICK BEAUREGARD

No. W1997-00060-SC-R11-CD

IN THE SUPREME COURT OF TENNESSEE AT JACKSON

April 11, 2000 Session

Filed November 30, 2000

Appeal By Permission from the Court of Criminal Appeals Criminal Court for Hardeman County No. 5990

Jon Kerry Blackwood, Judge

In this appeal, we consider whether the constitutional principle of either double jeopardy or due process is violated and therefore bars separate convictions for both rape and incest when the offenses arise from a single act committed against the same victim. The Court of Criminal Appeals affirmed the defendant's convictions for rape and incest. After our review of the record and applicable authorities, we conclude that the separate convictions for rape and incest did not violate double jeopardy principles under the United States or Tennessee Constitutions because the offenses require different elements, different evidence, and have different purposes. We also conclude that the convictions for rape and incest did not violate due process under the United States or Tennessee Constitutions because neither offense was "essentially incidental" to the other. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

C. Michael Robbins, Memphis, Tennessee, and Gary F. Antrican, District Public Defender, Somerville, Tennessee, for the appellant Frederick Beauregard.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Elizabeth Rice, District Attorney General; and Jerry Norwood, Assistant District Attorney, for the appellee, State of Tennessee.

Affirmed

E. Riley Anderson, C. J., delivered the opinion of the court, in which Adolpho A. Birch, jr., Janice M. Holder, and William M. Barker, JJ., joined. Frank F. Drowota, III, J., not participating.

OPINION

BACKGROUND

The defendant, Frederick Beauregard, was charged in a two-count indictment with rape and incest of his thirteen-year-old daughter, S.J.¹ On the day in question, S.J. was visiting her grandmother's home, where her father, Beauregard, resided. S.J. was lying down in a bedroom when Beauregard entered the room and sat down on the bed next to her.

Beauregard asked S.J. if she knew how to "nut" and whether S.J. had ever had sex. When Beauregard then began feeling her breasts, S.J. unsuccessfully tried to push Beauregard away. Beauregard pulled S.J.'s jeans and panties down to her knees and "stuck his penis" in her genital area. Beauregard stopped when the telephone in the living room rang and he went to answer it. When Beauregard left the room, S.J. put her clothes back on and used the bedroom telephone to call a friend of her mother's and ask the friend to pick her up. S.J. then locked herself in the bathroom and remained there until she heard a car pull up to the house and the horn blow.

S.J. was later examined at a hospital by Dr. Ram Madasu. Dr. Madasu found seminal fluid at the entrance to S.J.'s vagina and completed a sexual assault kit. Sherri Harrell, a forensic serologist, tested the items from S.J.'s sexual assault kit and found semen and spermatozoa on the slides. Joe Minor, a forensic scientist, conducted further tests and testified that Beauregard could not be excluded as the source of the semen. Minor opined that the semen was from Beauregard or a close relative.

After considering all the evidence at trial, the jury convicted Beauregard of both rape and incest. The Court of Criminal Appeals affirmed, holding that the separate convictions for rape and incest did not violate double jeopardy or due process protections under the United States or Tennessee Constitutions. We then granted Beauregard's application for permission to appeal.

ANALYSIS

Double Jeopardy

The double jeopardy clause in the United States Constitution provides that no person "shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . ." U.S. Const. amend V. Similarly, the Tennessee Constitution states that "no person shall, for the same offense, be twice put in jeopardy of life or limb." Tenn. Const. art. I, § 10.

The constitutional right against double jeopardy protects against: 1) a second prosecution after an acquittal; 2) a second prosecution after a conviction; and 3) multiple punishments for the same offense. See Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 1435, 63 L. Ed. 2d 715 (1980); State v. Denton, 938 S.W.2d 373 (Tenn. 1996). In this case, we must determine whether convictions for both rape and incest constitute multiple punishments for the "same offense."

In State v. Denton, we established a framework for determining whether a defendant has received multiple punishments for the "same offense." The reviewing court must consider: (1) the statutory elements of the offenses;² (2) the evidence used to prove the offenses;³ (3) whether there were multiple victims or discrete acts; and (4) the purposes of the respective statutes. Denton, 938 S.W.2d at 381. In applying this analysis in Denton, we concluded that double jeopardy precluded separate convictions for aggravated assault and attempted voluntary manslaughter where the offenses were based upon a single act committed against a single victim. Id. at 382.

In this case, the first component of Denton requires a comparison of the statutory elements of rape and incest. The offense of rape is defined, in relevant part, as the "unlawful sexual penetration of a victim" without the victim's consent and "accompanied by . . . [f]orce or coercion." Tenn. Code Ann. § 39-13-503 (1997). The offense of incest is defined, in relevant part, as the "sexual penetration . . . with a person, knowing such person to be . . . [t]he person's natural . . . child." Tenn. Code Ann. § 39-15-302 (1997).⁴ A comparison of the statutory elements of rape and incest demonstrates that the elements are dissimilar. Rape, unlike incest, requires non-consensual sexual penetration accompanied by force or coercion; incest, unlike rape, requires that the victim be the natural child of the defendant, regardless of whether the victim consented.

We next consider the evidence required to establish the offenses of rape and incest. We recognize that the same evidence was necessary to establish the element of "sexual penetration" that is essential for both offenses. Since the remaining elements of each offense differ, however, the evidence required to establish each offense necessarily will differ in these material respects.⁵ For example, to establish the incest charge, the State had to prove the family relationship between the defendant and the victim. Conversely, to establish the rape charge, the State had to prove the force or coercion and the lack of consent. Thus, the evidence at trial underlying the rape and incest convictions was different and not identical.

As to the remaining factors under Denton, we observe that this case does involve a single victim and a single act of sexual penetration. Finally, the legislative purpose of the separate statutory offenses of rape and incest is similar but distinct. Although both statutes address sexual offenses, the offense of rape is contained within the "offenses against persons" provisions of the statutory code and the offense of incest is contained within the "offenses against family" provisions of the statutory code. The sentencing commission comments following the incest statute indicates that the statute is intended to "promote family solidarity by prohibiting relationships with anyone with parental authority which may be abused to sexual ends." Tenn. Code Ann. § 39-15-302 (1997). As another state court has observed in this regard:

[T]he statutes prohibiting incest and criminal sexual penetration achieve different policy objectives. The sanction against criminal sexual penetration is to prevent forcible, nonconsensual sexual activity and to protect a person's important interest in uncoerced choice of sexual partners. The incest statute, on the other hand, is more narrowly directed toward prohibiting sexual relations, whether consensual or not, between relatives. . . . Accordingly, there is no double jeopardy impediment to convicting and sentencing . . . [a defendant] for both incest and criminal sexual penetration arising out of the same act.

Swafford v. State, 810 P.2d 1223, 1235 (N.M. 1991) (internal citation omitted); see also State v. Calle, 881 P.2d 155, 161 (Wash. 1995) (discussing different purposes served by the offense of rape and the offense of incest). In our view, the statutory offenses of rape and incest have a related but separate legislative purpose and achieve contrasting policy objectives.

Accordingly, application of the Denton analysis to this case reveals that only one factor that the offenses involved a single victim and a single act supports Beauregard's claim that the rape and incest convictions were for the "same offense" and barred by double jeopardy principles. The remaining three Denton factors, however, demonstrate that the offenses are not the same for double jeopardy purposes: the statutory elements of the offenses are dissimilar; the evidence required to establish the offenses differs; and the purpose of each statutory offense is separate and distinct. We therefore conclude that the rape and incest convictions did not constitute the "same offense" and were not barred by double jeopardy principles.

Prior to establishing the analytical framework in Denton, we reached the same conclusion about the offenses of rape and incest. See State v. Brittman, 639 S.W.2d 652 (Tenn. 1982) (rape and incest were not the same offense under double jeopardy analysis). Our conclusion is also consistent with a majority of state jurisdictions that have held that convictions for rape and incest arising from a single act are not barred on double jeopardy grounds. E.g., Smith v. State, 491...