State v. Itzol-Deleon

• Decision Date: 25 August 2017
• Docket Number: No. M2014-02380-SC-R11-CD,M2014-02380-SC-R11-CD
• Citation: 537 S.W.3d 434
• Parties: STATE of Tennessee v. Christopher Scottie ITZOL-DELEON
• Court: Tennessee Supreme Court

537 S.W.3d 434

STATE of Tennessee

v.Christopher Scottie ITZOL-DELEON

No. M2014-02380-SC-R11-CD

Supreme Court of Tennessee, AT NASHVILLE.

February 9, 2017 Session

Filed August 25, 2017

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Leslie E. Price, Senior Counsel; Glenn Funk, District Attorney General; and Janice Norman, Assistant District Attorney General, for the appellant, the State of Tennessee.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal), Laura J. Getz and Mary Kathryn Harcombe (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellee, Christopher Scottie Itzol-Deleon.

Unpublished Text Follows End of Unpublished Text

Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

Jeffrey S. Bivins, C.J.

We granted the State's application for permission to appeal in this case in order to determine (1) whether we should expressly overrule our decision in State v. Barney, 986 S.W.2d 545 (Tenn. 1999), and (2) whether the Court of Criminal Appeals erred in merging two of the Defendant's convictions. We expressly overrule Barney and hold that double jeopardy principles apply when determining whether multiple convictions of sexual offenses arise from a single act of sexual assault. We further hold that, in light of the factors we adopt herein, under the facts and circumstances of this case, the Court of Criminal Appeals did not err in merging two of the Defendant's multiple convictions. Accordingly, albeit for different reasons, we affirm the judgment of the Court of Criminal Appeals.

Factual and Procedural Background

This matter involves repeated sexual molestations of the victim, who was twelve years old at the time of the trial, by her stepfather, the Defendant.¹ The Defendant was tried before a jury for these offenses and convicted of one count of attempt to commit aggravated sexual battery, four counts of aggravated sexual battery, and three counts of rape of a child. The trial court subsequently sentenced the Defendant to an effective term of forty years.

Upon review on direct appeal, the Court of Criminal Appeals affirmed all of the Defendant's convictions but merged the conviction of attempt to commit aggravated sexual battery with one of the child rape convictions. State v. Itzol–Deleon, No. M2014-02380-CCA-R3-CD, 2016 WL 1192806, at *25, 34 (Tenn. Crim. App. Mar. 28, 2016), perm. appeal granted (Tenn. Aug. 18, 2016). The Court of Criminal Appeals also determined that the trial court had erred in sentencing the Defendant. Accordingly, the Court of Criminal Appeals modified the Defendant's sentence to an effective term of twenty-five years.² Id. at *32–33.

Although the State adduced a significant amount of proof in support of the multiple charges of sexual offenses that it brought against the Defendant, all of which resulted in the jury convicting the Defendant as set forth above, the issues before us in this appeal may be determined on the basis of the proof underlying just two of the Defendant's convictions. Therefore, out of respect for the victim's privacy, we will restrict our summary of the proof to that which is necessary to resolve the specific issues before us. A comprehensive summary of the proof may be found in the Court of Criminal Appeals' opinion. See id. at *2–21.

The victim testified that, while she was in fourth or fifth grade, she was living with her mother and the Defendant. One weekend morning, she woke up and saw a note on the television in her bedroom that her mother had gone to work. She began watching the movie Lemonade Mouth. The Defendant came into her bedroom and climbed into bed and got under the covers with her. The victim's back was facing the Defendant. The Defendant pulled down the victim's pants, and she felt something on her back, which she assumed was the Defendant's penis.³ The victim testified that she felt the Defendant's penis "[a]bove [her] butt" and between her thighs. The victim testified that the Defendant was moving his body "up and down." The victim stated that, by "above her butt," she meant that the Defendant's penis was outside of her rectum. She could feel the Defendant's penis on the outside of her "butt cheeks" as he rubbed it between her legs. She indicated on cross-examination that the Defendant's penis went into her "private part"⁴ "a little bit." After she felt "something watery or very slimy" on the "outside" of her "private part," she got out of bed and went to the bathroom. The Defendant left her room.

Because the victim testified about more instances of molestation by the Defendant than were charged, the State provided an election of offenses. With respect to the Defendant's actions while the victim watched Lemonade Mouth, the State set forth its election as follows:

Count One of the Indictment alleges an act of Aggravated Sexual Battery against [the victim] (D.O.B. 4/30/2001), and refers to the following conduct: the defendant rubbed his penis against the victim's butt. The victim testified that she was watching Lemonade Mouth in her bedroom when the defendant came into her room and got in bed with her. The defendant pulled the victim's pants down and began moving his penis back and forth against the victim's buttocks. The victim testified that she felt something watery on her private part, and when the incident was over, it hurt when she used the bathroom. This incident occurred at the Scott Valley duplex where the victim and defendant lived.

....

Count Three⁵ of the Indictment alleges an act of Rape of a Child against [the victim] (DOB: 4/30/2001) and refers to the following conduct: the defendant penetrated the victim's genital area with his penis. The victim testified that she was watching Lemonade Mouth in her bedroom when the defendant came into her room and got in bed with her. The defendant pulled the victim's pants down and began moving his penis back and forth against the victim's genital area between her legs. The victim testified that his private part touched her on the inside and outside of her private part. She said she felt something watery on her private part, and when the incident was over, it hurt when she used the bathroom. This incident occurred at the Scott Valley duplex where the victim and defendant lived.

After deliberating, the jury convicted the Defendant on Count One of the lesser-included offense of attempt to commit aggravated sexual battery. As to Count Three, the jury convicted the Defendant of the charged offense, rape of a child. With one judge dissenting, the Court of Criminal Appeals subsequently merged these two convictions on the basis of this Court's opinion in Barney. Itzol–Deleon, 2016 WL 1192806, at *25. We granted the State's application for permission to appeal in order to address whether the Court of Criminal Appeals erred by merging the Defendant's conviction of attempt to commit aggravated sexual battery with his conviction of rape of a child on the basis of Barney.

Analysis

Barney

In Barney, the defendant was convicted of eleven counts of rape of a child and seven counts of aggravated sexual battery, all involving the same victim. 986 S.W.2d at 546. Relying on this Court's decision in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), the defendant argued that five of the aggravated sexual battery convictions offended due process because those crimes had been "essentially incidental" to his commission of the associated child rape offenses. Barney, 986 S.W.2d at 547–48. The proof at trial established that, as to the five challenged convictions, the defendant first had rubbed the victim's penis with his hand and then performed fellatio on the victim. Id. at 546. The manual rubbing formed the basis for the aggravated sexual battery convictions, and the fellatio formed the basis for the rape of a child convictions. Id. at 547–48.

In Anthony, this Court considered consolidated appeals from cases in which the defendants had been convicted of armed robbery and aggravated kidnapping, "in each instance growing out of a single criminal episode." 817 S.W.2d at 300. In each case, the defendant had robbed a place of business and, during the course of the robbery, had detained one or more persons connected with the business. This Court framed the issue as "the propriety of a kidnapping conviction where detention of the victim is merely incidental to the commission of another felony, such as robbery or rape." Id. Concluding that a double jeopardy analysis was "inadequate in resolving" this issue, the Court turned to a due process analysis under the Tennessee Constitution. Id. at 306. Relying on article I, section 8 thereof, this Court concluded that the propriety of the kidnapping convictions rested on a determination of "whether the confinement, movement, or detention [was] essentially incidental to the accompanying felony and [was] not, therefore, sufficient to support a separate conviction for kidnapping, or whether it [was] significant enough, in and of itself, to warrant independent prosecution and [was], therefore, sufficient to support such a conviction." Id. The Anthony decision generated a significant body of often conflicting case law.

In Barney, this Court technically rejected the application of Anthony to multiple sexual offenses. Barney, 986 S.W.2d at 548. Instead, this Court adopted the test enunciated by a California court in People v. Madera, 231 Cal.App.3d 845, 282 Cal.Rptr. 674 (1991), a case involving multiple sexual offenses against a single victim. The Madera test, which was based on a California statute, required a consideration of the defendant's intent: whether the defendant's initial sexual contact with the victim " ‘was to commit a separate base criminal act’ " or was engaged in merely " ‘to facilitate’ " the sexual contact that immediately followed the initial contact. Barney, 986 S.W.2d at 548 (quoting Madera, 282...