State of Tennessee v. William Gossett -Concur ( 2021 )

05/20/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 2, 2021 Session
STATE OF TENNESSEE v. WILLIAM GOSSETT
Appeal from the Criminal Court for Shelby County
Nos. 16-03828, 16-03829, 16-03845, 16-03365, 16-04244, 16-04245, 16-04246, 16-
04247, 16-04248, 16-04249, 16-05601 Lee V. Coffee, Judge
No. W2019-02282-CCA-R3-CD
JAMES CURWOOD WITT, JR., J., concurring.
I concur in affirming the sentences in this case, but I write separately to
emphasize the danger of expansive, even over-broad locution and reliance upon such
locution in place of legal analysis tailored to the facts and issues in each particular case.
The majority has concluded that the offense of child rape inherently embraces the elements
of serious bodily injury, bodily injury, or the threat to cause serious bodily injury or bodily
injury such that the 24-hour rule contained in Tennessee Code Annotated sections 40-35-
106, -107 does not apply. For the majority, this conclusion is buttressed, at least in part,
by language expressed in State v. Kissinger, 922 A.W.2d 482 (Tenn. 1996), and State v.
Edward Earl Huddleston, No. 02C01-9706-CC-00228, 1998 WL 67684 (Tenn. Crim.
App., at Jackson, Feb. 20, 1998).
As the majority notes, in Kissinger, the court said, “Every rape or sexual
battery offense is physically and mentally injurious to the victim.” Kissinger, 922 S.W.2d
at 487. In Edward Earl Huddleston, the court iterated this statement and added, “It is
difficult to conceive of any factual situation where the rape of a child would not threaten
serious bodily injury.” Edward Earl Huddleston, 1998 WL 67684, at *3.
We know that sometimes we as judges in a particular exuberance of a case
may use an occasional expansive, even over-broad locution. I believe such to be the case
of the quoted sentences from these two cases. In Kissinger, the court was adjudicating
sentence enhancement issues and, in particular, was concerned with whether enhancement
factor (6), that the injuries inflicted on the victim were “particularly great,” applied. See
T.C.A. § 40-35-114(6). In preparing to discuss whether the victims, who were nine and
seven years old respectively, sustained particularly great injuries, the court’s statement as
quoted above was intended as a baseline view encompassed in the grading of the offense.
The court then undertook a review of the facts of record to determine whether the
enhancement factor applied. Because the state failed to offer proof of particularly great
injury, the court held that factor (6) did not apply.
In Edward Earl Huddleston, the court was asked to determine whether
mitigation of the sentence for rape of a child should be applied because the offense neither
caused nor threatened serious bodily injury. The court’s statement was clearly dicta
because it undertook an examination of the facts of record to decide whether the seven-
year-old female victim had been injured to the point of making the mitigating factor
inapplicable. Based on the record, the court held that the mitigating factor did not apply.
Neither case addressed the application of the 24-hour rule, and, as such, do
not represent direct authority on the issue whether child rape falls within the exception to
the 24-hour rule. The quest for solutions to sentencing enhancement or mitigation issues
is not really germane to the issue currently before this court.
It is certainly easy to conceive of the threat of bodily injury occurring when
the victim is seven or nine years old – or in the present case when the victims of the previous
rapes were even younger, but the varying ages of children yield permutations of
consequence. A mandate that the exception to the 24-hour rule hinges upon the statutory
elements of the prior offenses, however, does not allow for an examination of the facts in
each case. With that mandate in force, certainly we may not consider the age of the
defendant’s previous rape victims in the present case and must confine any inquiry to the
elements of the offense. Rape of a child has two elements: (1) sexual penetration of (2) a
child under 13 years of age. See T.C.A. § 39-13-522(a). “‘Sexual penetration’ means
sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however
slight, of any part of a person’s body or of any object into the genital or anal openings of
the victim’s, the defendant’s, or any other person’s body . . . .” Id. § 39-13-501(7).
Although the elements of injury or the threat thereof have not been expressed in the
proscriptive statute, there is no requirement that they be so expressed. Bodily injury
includes any “cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary
illness or impairment of the function of a bodily member, organ, or mental faculty.” Id. §
39-11-106(a)(3). The sexual penetration of a child of less than 13 by an adult certainly, at
a minimum, carries with it the threat of physical pain. Thus, upon an examination of the
elements of the offense of rape of a child through the proper lens, I would conclude that
the 24-hour rule does not apply in this case.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
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