State v. Farr ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1997 SESSION
September 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR-00004
)
Appellee ) KNOX COUNTY
)
v. ) HON. RAY L. JENKINS,
) JUDGE
STEVEN F. FARR, )
) Rape of a child (2 counts);
Appellant ) aggravated sexual battery (2 counts)
FOR THE APPELLANT FOR THE APPELLEE
Julie A. Martin John Knox Walkup
P.O. Box 426 Attorney General & Reporter
Knoxville, TN 37901-0426
Marvin E. Clements, Jr.
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
Charme Johnson
Assistant District Attorney General
City-County Bldg.
Knoxville, TN 37901-0426
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
The defendant was convicted of two counts of the rape of a child and two
counts of aggravated sexual battery. He was sentenced to serve 23 years on each
rape conviction and 11 years on each of the aggravated sexual battery convictions
as a Range 1 offender. The sentences were ordered to be served concurrently.
The defendant raises the following issues on appeal:
I. Whether the evidence was sufficient for any rational trier of fact to
convict defendant beyond a reasonable doubt of each and every element of
child rape and aggravated sexual battery.
II. Whether the trial court erred by denying defendant’s motion to
dismiss when the state failed to allege the required element of mens
rea in two of the four counts of the indictment.
III. Whether the trial court was justified in sentencing defendant to
serve almost the maximum sentence for each charge for which he was
convicted.
The judgment of the trial court is affirmed.
The victim in this case lived with her mother and the defendant. The mother
was arrested and incarcerated in May 1993, and the victim and the defendant
remained in the home.
We need not go into explicit detail concerning the sordid facts in this case. It
is enough to say the state presented sufficient evidence to convict the defendant of
the four offenses if the jury believed the state’s witnesses. The defendant testified
he did not commit the acts alleged in the indictment and testified to by the state’s
witnesses. He and other defense witnesses attacked the credibility of the victim and
other witnesses who testified for the state.
The jury, by their verdict, and the trial judge, by his approval thereof, have
accredited the state’s witnesses. The defendant asks us to discredit them on
appeal.
-2-
At trial, the jury resolves conflict in the testimony of witnesses and determines
their credibility. Cabbage v. State, 571 S.W.2d 832 (Tenn. 1978). On appeal, we
weigh the evidence to determine if it is sufficient for a rational trier of fact to find guilt
beyond a reasonable doubt. State v. Evans, 838 S.W.2d 185 (Tenn. 1992). We
have weighed the evidence in this case in the context required and find it is
sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.
The defendant contends the trial judge should have stricken counts 3 and 4
of the indictment because they failed to allege any mens rea requisite for the
offenses of aggravated sexual battery contained therein. The defendant cites no
cases in support of this issue but insists statutory requirements compel a dismissal
of the charges.
There appears to be two significant cases, which are pending review by the
Supreme Court, dealing with this issue, State v. Hill, C.C.A. No. 01C01-9508-CC-
00207 (Tenn. Crim. App., filed at Nashville, June 29, 1996) and State v. James,
C.C.A. No. 01C01-0601-CR-00016 (Tenn. Crim. App., filed at Nashville, May 27.
1997).
We adopt and set out herein the reasoning of the Court of Criminal Appeals
in James on the issue:
An indictment has three (3) purposes in Tennessee; namely, (1) to
inform the defendant of the precise charges; (2) to enable the trial
court upon conviction to enter an appropriate judgment and sentence,
and (3) to protect the defendant against double jeopardy. State v.
Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated
in ordinary and concise language so that a person of “common
understanding” will know what is intended. Warden v. State, 214
Tenn. 391, 381 S.W.2d 244 (1964).
Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn.
1973) (emphasis supplied), while addressing the sufficiency of an
indictment charging the offense of murder, our Supreme Court stated
the following:
“While it seems clear that the indictment in Witt
was insufficient in that it failed to charge an element, that
the murder was committed unlawfully, in either the
language of the statute or common law or words of
equivalent import, the decision is confusing because of
the language, ``fatally defective in omitting the charge that
the offense was committed feloniously or with malice
aforethought; and containing no words of equivalent
import.’ It is clear, however, that had the indictment used
the words ``feloniously’ or ``unlawfully’, it would have been
sufficient.”
-3-
By containing the words found in the language of the statutes on
aggravated rape and aggravated sexual battery, the indictment at
issue sufficiently apprised James of the offenses charged. The
charges were stated in ordinary and concise language so that a person
of common understanding would know what was intended.
For the above reasons we decline to follow Hill and find this
indictment was sufficient to charge the offenses of aggravated rape
and aggravated sexual battery.
C.
Furthermore, Hill has no application to those counts of the
indictment charging the offense of aggravated sexual battery. Hill
dealt only with the charge of aggravated rape.
Aggravated sexual battery as defined in T.C.A. § 39-13-504 is
“unlawful sexual contact” with a victim “less than thirteen (13) years of
age.” T.C.A. § 39-13-501(6) defines “sexual contact” as the
“. . . intentional touching of the victim’s, the defendant’s
or any other person’s intimate parts, or the intentional
touching of the clothing covering the immediate area of
the victim’s, the defendant’s, or any other person’s
intimate parts, if that intentional touching can be
reasonably construed as being for the purpose of sexual
arousal or gratification (emphasis added).”
Therefore, the mental element of “intentional” is included in the
definition of “sexual contact” and is impliedly included within the
indictment. By statutory definition the only way one can have “sexual
contact” is by the “intentional touching . . . for the purpose of sexual
arousal or gratification.” Id.
We therefore conclude that Hill is distinguishable as to those
counts charging aggravated sexual battery.
The defendant claims the trial judge erred in sentencing the defendant
to 23 years on each rape conviction and 11 years on each aggravated sexual
battery conviction. At the time of the offense, the presumptive sentence for the rape
of a child was 15 years, and it was 8 years for aggravated sexual battery.
The record in this case shows the defendant has a history of previous
convictions including several burglaries and various alcohol-related crimes plus a
conviction for escape. The trial judge applied this enhancing factor to all of the
offenses.
The record shows the personal injuries inflicted on the victim were great. The
victim had undergone and, at the time of sentencing, was still undergoing extensive
psychological treatment as a result of the trauma inflicted upon her by the
defendant’s conduct.
The trial court found the enhancing factors that the offenses involved a victim
and were done to gratify the defendant’s desire for pleasure or excitement to be
applicable to the charges of rape. Further, the record shows, and the trial court
-4-
found, the defendant violated a position of trust at the time of the offense, because
he stood in the position of locus parentis to the victim.
The defendant presented few mitigating factors, if any.
Previously, the defendant argued the trial court should consider that he had
been an alcoholic and abused child and that he was now attempting to reform his
life.
We review the sentencing proceeding de novo upon the record with a
presumption of correctness, T.C.A. § 40-35-401, conditioned upon a showing the
trial court has considered all the principles of sentencing and circumstances and
facts in the case. State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). The defendant
must show the sentence is improper. State v. Gregory, 862 S.W.2d 574 (Tenn.
Crim. App. 1993).
The defendant has failed to show the trial judge’s sentence is not
appropriate. We therefore affirm the sentence in this case.
John K. Byers, Senior Judge
CONCUR:
David H. Welles, Judge
Thomas T. Woodall, Judge
-5-