State v. Martin, No. 81-36-III

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtTATUM
Citation634 S.W.2d 639
PartiesSTATE of Tennessee, Appellee, v. Marvin "Cotton" MARTIN, Appellant.
Docket NumberNo. 81-36-III
Decision Date24 February 1982

Page 639

634 S.W.2d 639
STATE of Tennessee, Appellee,
v.
Marvin "Cotton" MARTIN, Appellant.
No. 81-36-III
Court of Criminal Appeals of Tennessee, at Nashville.
Feb. 24, 1982.
Permission to Appeal Denied by Supreme Court May 24, 1982.

Wm. Travis Gobble, Waynesboro, for appellant.

William M. Leech, Jr., Atty. Gen., John C. Zimmermann, Asst. Atty. Gen., Nashville, James G. White, III, Asst. Dist. Atty., Lawrenceburg, for appellee.

OPINION

TATUM, Judge.

The appellant, Marvin "Cotton" Martin was indicted and convicted of various sex offenses against his wife's daughters, Betty, age 10, and Diane, age 12. He was separately charged by presentments for first-degree sexual conduct on each child, anal copulation with each child, fellatio with each child and incest with each child. He was acquitted of anal copulation with Diane and convicted of the seven remaining offenses. His sentence on each of the first-degree sexual conduct cases was life imprisonment. He was sentenced to not less than 10 years nor more than 21 years on each of the incest convictions and to not less than 10 years nor more than 15 years imprisonment on each of the fellatio convictions and the anal copulation convictions. 1 The sentences were ordered to run concurrently. We find reversible error as to the fellatio and anal copulation convictions; we affirm the first degree sexual misconduct convictions and the incest convictions.

The evidence reflects that on November 14, 1978, the appellant "beat up" the children's mother and threatened to kill Diane with a pistol. He beat Diane with a belt and ordered the children to remove their clothing and go to bed. He then had sexual intercourse and fellatio with both children. On previous occasions, he had performed these acts on both children and previously had had anal intercourse with Betty.

The appellant insists that the multiple convictions constitute double jeopardy. In State v. Black, 524 S.W.2d 913, 918 (Tenn.1975), the Supreme Court observed that in each case, the question of identity of defenses must be analyzed with regard to the statutory definition of the crimes, the legislative intent, and the particular facts and circumstances of each case. However, the Supreme Court approved the rule formulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test is similar in principle to that pronounced by the Tennessee Supreme Court in Duchac v. State, 505 S.W.2d 237 (Tenn.1973). The test, as pronounced by the Blockburger court, is:

"Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182.

Page 642

As mandated by the Tennessee Supreme Court in the Black case, we have examined the circumstances of this case, together with the applicable statutes. We first note that the trial judge instructed the jury that penetration, an essential element of first-degree sexual conduct, could be accomplished by fellatio and anal intercourse as well as normal intercourse. This instruction is in accord with T.C.A. § 39-3702(8) (Supp.1978). The offense cannot be committed without a sexual penetration in some form. The trial judge gave no instructions to the jury with respect to the law of identity of offenses but submitted all seven cases to the jury under general instructions upon which the jury might have found, for example, that the penetrations upon which the appellant was convicted for first-degree sexual conduct were committed by the acts of fellatio. It would constitute double jeopardy if the jury found that the defendant committed first-degree sexual conduct by fellatio and separately convicted the defendant of crime against nature (T.C.A. § 39-707) for the same act of fellatio. 2 State v. Cloud, 588 S.W.2d 552 (Tenn.1979).

After considering the circumstances, the evidence, the court's instruction and the statutes in accord with Black, we conclude that the convictions for fellatio and anal intercourse constitute double jeopardy. We reverse and dismiss both convictions for fellatio and the conviction for anal intercourse.

We now consider whether the convictions for incest can stand with the convictions for first-degree sexual conduct. The appellant was convicted of first-degree sexual conduct on two counts of violating Chapter 937, House Bill Number 356, Tennessee Public Acts of 1978 which was in effect when these offenses were committed. Section 3(A)(1) of the Act defines first-degree sexual conduct as the sexual penetration of the body of another when the victim is 12 years of age or under. Section 3(A)(3) provides that one is also guilty of this offense when a weapon is used to force or coerce the victim to engage in sexual penetration. There was evidence that the conduct proscribed in both subsection (A)(1) and (3) existed. In neither of these subsections is there a requirement that the actor be in a position of custodial or official authority over the victim as provided in subsection (A)(2) and as was the circumstance in State v. Bobbie Lee Turner, Court of Criminal Appeals at Jackson, filed September 24, 1981.

The incest statute, T.C.A. § 39-705 proscribes the marriage or the having of carnal knowledge with certain relatives, including a man's wife's daughter.

We note first that the sexual conduct statute and the incest statute create separate and distinct offenses; neither offense is included in the other and either offense may be committed without committing the other. Relying on the Blockburger test, we find that each of these offenses requires proof of different elements. The sexual conduct offenses for which the appellant was tried and convicted required proof either, that the victims were 12 years of age or under, or, that the offense was coercively committed with a weapon. The incest statute requires...

To continue reading

Request your trial
19 practice notes
  • State v. Harris
    • United States
    • Supreme Court of Tennessee
    • May 11, 1992
    ...Tenn.R.Crim.P., does not require nor authorize pretrial discovery of the names and addresses of the State's witnesses. State v. Martin, 634 S.W.2d 639, 643 (Tenn.Crim.App.1982). The State, however, did supply lists of the names of its witnesses to the Defendant in this Antonia Jones is, as ......
  • State v. Garcia, M2000-01760-CCA-R3-CD
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • February 20, 2002
    ...pretrial discovery of the names and addresses of State's witnesses. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992); State v. Martin, 634 S.W.2d 639, 643 (Tenn. Crim. App. 1982); State v. Jimmy Clyde Jones, No. 02C01-9703-CC-00120, 1997 WL 777077, at *8 (Tenn. Crim. App. at Jackson, Decembe......
  • State v. Peyatt, No. 15799
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...test convictions for aggravated sexual assault and incest arising out of same act not violative of double jeopardy); State v. Martin, 634 S.W.2d 639 (Tenn.Cr.App.1982) (under Blockburger test convictions for first degree sexual conduct and incest arising out of the same act are not violativ......
  • State v. Teel
    • United States
    • Supreme Court of Tennessee
    • May 29, 1990
    ...that all issues that could have been raised on interlocutory appeal have been preserved for review on this appeal. See State v. Martin, 634 S.W.2d 639, 643 (Tenn.Crim.App.1982); State v. Hartsfield, 629 S.W.2d 907 (Tenn.Crim.App.1980); State v. Gawlas, 614 S.W.2d 74 (Tenn.Crim.App.1980). Th......
  • Request a trial to view additional results
19 cases
  • State v. Harris
    • United States
    • Supreme Court of Tennessee
    • May 11, 1992
    ...Tenn.R.Crim.P., does not require nor authorize pretrial discovery of the names and addresses of the State's witnesses. State v. Martin, 634 S.W.2d 639, 643 (Tenn.Crim.App.1982). The State, however, did supply lists of the names of its witnesses to the Defendant in this Antonia Jones is, as ......
  • State v. Garcia, M2000-01760-CCA-R3-CD
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • February 20, 2002
    ...pretrial discovery of the names and addresses of State's witnesses. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992); State v. Martin, 634 S.W.2d 639, 643 (Tenn. Crim. App. 1982); State v. Jimmy Clyde Jones, No. 02C01-9703-CC-00120, 1997 WL 777077, at *8 (Tenn. Crim. App. at Jackson, Decembe......
  • State v. Peyatt, No. 15799
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...test convictions for aggravated sexual assault and incest arising out of same act not violative of double jeopardy); State v. Martin, 634 S.W.2d 639 (Tenn.Cr.App.1982) (under Blockburger test convictions for first degree sexual conduct and incest arising out of the same act are not violativ......
  • State v. Teel
    • United States
    • Supreme Court of Tennessee
    • May 29, 1990
    ...that all issues that could have been raised on interlocutory appeal have been preserved for review on this appeal. See State v. Martin, 634 S.W.2d 639, 643 (Tenn.Crim.App.1982); State v. Hartsfield, 629 S.W.2d 907 (Tenn.Crim.App.1980); State v. Gawlas, 614 S.W.2d 74 (Tenn.Crim.App.1980). Th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT