State of Tennessee v. Bennie E. Massey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 15, 2010
STATE OF TENNESSEE v. BENNIE E. MASSEY
Direct Appeal from the Circuit Court for Montgomery County
No. 40700622 John H. Gasaway, III, Judge
No. M2009-00824-CCA-R3-CD - Filed January 9, 2011
Following a Montgomery County bench trial, the Defendant, Bennie E. Massey, was
convicted of five counts of sexual battery by an authority figure, a Class C felony, and
sentenced to six years, to be served on probation. The trial court also ordered the Defendant
to serve forty-eight hours in jail every two weeks for the first year of his sentence. On
appeal, the Defendant contends that the evidence is insufficient to support his convictions
because the evidence presented by the State is based solely upon the victims’ testimony and
those victims, he asserts, are accomplices to the sexual battery in that they consented to the
unlawful touching. Further, he asserts that the trial court improperly imposed consecutive
sentencing. After a thorough review of the record and applicable law, we conclude that the
victims were not accomplices, in that their consent was coerced by the Defendant, and that
the evidence, therefore, supports the Defendant’s convictions. We further conclude that the
trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J.C. M CL IN, JJ., joined.
Roger E. Nell, Clarksville, Tennessee (on appeal), Sarah R. King Clarksville, Tennessee (on
appeal) and Collier W. Goodlett, Clarksville, Tennessee (at trial) for the appellant, Bennie
E. Massey.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and John Finklea,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the Defendant’s sexual contact with his two minor biological
daughters. Based upon this conduct, a Montgomery County grand jury indicted the
Defendant for five counts of sexual battery by an authority figure.
A. Trial
The following evidence was presented at the Defendant’s bench trial: The Defendant’s
younger daughter, T.M.1 , testified that she spent the first nine years of her life living with
her maternal grandparents. At age nine, she moved into her parents’ home, where she stayed
until the summer of 2007, when, at age fourteen, she was removed from their home due to
her father’s conduct. At the time of trial, she had resumed living with her maternal
grandparents.
T.M. testified that the Defendant first had sexual contact with her during the summer
of 2006, when she was thirteen. During this time, both she and her elder sister were living
in their parents’ home, but she had a room to herself. One afternoon that summer, she made
plans to meet friends to see a movie, and she began getting ready in her bedroom. At this
time, she and her father were the only people present in the house.
As T.M. stood facing her mirror and away from the door, wearing only her bra and
underwear, she saw in her mirror that her father had entered her bedroom. Without speaking,
he approached T.M. from behind, unfastened her bra, and began touching her breasts. T.M.
was “shocked” to the point that she did not “know what to do.” She explained at trial why
she froze rather than say anything to her father: “I couldn’t. I was in so much shock I just
couldn’t do anything.”
As the Defendant continued touching his daughter’s breasts, T.M. heard what she
believed was a car door shutting outside, so she pushed her father away, telling him that she
had just heard her mother and sister return home. Hearing this, her father walked out of the
room. T.M. cried. At trial, she recalled that she “never thought he would do something like
that.” Eventually, she finished getting dressed. When she went downstairs, the Defendant
“acted like nothing ever happened,” so T.M. “just went along with it.” She told her family
goodbye and left to see the movie with her friends.
1
It is the policy of this court to refer to victims of sexual abuse by their initials only.
2
The Defendant again initiated sexual contact with T.M. on April, 8, 2007, when T.M.
was fourteen. On this occasion, both her mother and sister were home. As T.M. was
showering, her father entered the bathroom, explaining that he needed to wash his hands.
She heard the sound of water running as he washed his hands and what she believed to be
the door shutting as he left. However, as T.M. reached for a bottle on the side of the tub, her
father “jerked” the shower curtain open, touched T.M.’s breast, and started to move his hand
down her stomach. T.M. quickly “threw” the Defendant’s hands from her body and told him
to “leave [her] alone.” The Defendant walked out. T.M. finished showering, wrapped
herself in a towel, and went to her room. Four days later, she reported her father’s behavior
to a teacher after which she was removed from her parents’ home. The Defendant and T.M.
never spoke about his behavior.
On cross-examination, T.M. explained that she did not call out to her mother for help
when her father touched her while she was showering because she “was in shock.” She
testified that she was not dating anyone in the summer of 2006 when her father first had
sexual contact with her. She said she was, however, dating someone in April 2007 when her
father sexually contacted her again. T.M. confirmed that, at some point between the ages of
nine and fourteen, “an incident occurred” when she refused to go home with her sister who
had been sent to bring her home and that another “incident occurred” when she refused to go
home when her mother insisted that she return home. She denied any incident involving her
father finding her at a boyfriend’s house and forcing her to return home.
Officer Joshua Wall testified that he interviewed the Defendant as part of the
investigation of these charges against the Defendant. During this interview, the Defendant
denied ever having intentionally inappropriately touched either daughter. He allowed,
however, that he may have “accidentally” touched their breasts when “play[ing] around” and
“wrestl[ing]” with them. When the officer questioned him about the specific allegation that
he touched T.M. while she showered, the Defendant said that, although he did walk into the
bathroom while T.M. was showering, he did not touch her.
A.M., who was twenty years old at the time of trial, testified that she lived with their
grandparents until age fifteen, when she moved into her parents’ home. At her parents’
home, A.M. initially shared a bedroom with her sister, but, due to their constant fighting, she
moved into the family’s dining room, which served as her bedroom for the remainder of the
time she lived with her parents.
A.M. testified the Defendant first inappropriately touched A.M. during the summer
of 2005, when she was fifteen. The first time this occurred, she was in her makeshift room
in the dining room. Earlier that evening, A.M. had asked her mother for permission to see
a movie with friends, but her mother refused, citing the late hour. A.M., however, still hoped
3
to convince her parents to let her see the movie, and she began to get ready to leave in her
room. As she sat on her bed, getting ready and listening to the radio, the Defendant entered
the room. The two began discussing her request to see a movie and the fact that it was quite
late for her to leave the house. The Defendant proposed a deal. He said, “if I do this for you
will you do this for me? . . . [W]ould you let me touch you?” A.M. initially thought her
father was joking but soon realized he was serious. The Defendant reached up under her
shirt and fondled her breasts for approximately two minutes. Neither said anything while this
was happening. When the Defendant was done, he simply left the room without saying
anything. A.M. recalled that she did not “really know what was going on” and that “it was
surreal to [her] that it really had just happened.” She was then allowed to meet her friends
to see the movie, and she returned home around 10:30 p.m.
The Defendant touched A.M. inappropriately a second time later that summer. When
she arrived home one evening, her mother told her to go into her parents’ bedroom because
her father, who was in bed watching television, wanted to speak with her. A.M. explained
that, because her father worked early hours, he went to bed very early, and she and her sisters
frequently had to speak with him in bed if they needed him in the evening. As she entered
her parents’ room, the Defendant said, “[S]it down so we can talk.” A.M. sat down on the
edge of the bed, and the Defendant began stroking her. The Defendant smelled of alcohol,
which was common as the Defendant drank every evening upon returning from work.
Continuing to stroke A.M., the Defendant lifted A.M.’s shirt and put his mouth on her
breasts. At this point, A.M. pulled away and stared at the Defendant. He said, “We’re
done,” and A.M. left the room. A.M. explained that she did not scream when this happened
because “it was just surreal . . . that it was happening.” She explained, “Like you see it on
T-V but you don’t ever think it will happen, so it’s kind of you don’t know how to react.”
A.M. could not recall whether the third instance of sexual contact occurred later the
same summer or in the summer of 2006, but believed she had already turned sixteen when
it occurred. Explaining that her father was a dump truck driver, she recalled that the third
incident occurred in her father’s dump truck. A.M. had asked her father for gas money, and
the Defendant responded that she would have to “ride a load with him” in order to get the gas
money. Accordingly, A.M. drove her car to a quarry where her father was working, waiting
for him to load his truck, and got into the truck with her father. The two drove to a job site,
dropped off the Defendant’s load, and, on the way back to the quarry, the Defendant began
to fondle A.M. He reached through the top opening of her shirt and felt her breasts. He
stopped momentarily when they met a dump truck but resumed fondling A.M. when the truck
passed. When they reached the quarry, the Defendant gave A.M. the requested gas money,
and she got back into her car and left.
On cross-examination, A.M. said she began living with her grandparents when she
4
was an infant. She recalled that her grandparents were slightly less strict than her parents.
A.M. continued to visit her grandparents every weekend while she lived with her parents.
She confirmed that, at some point before she moved out of her grandparents’ house, her
mother visited her and found her in bed with a boyfriend.
A.M. acknowledged that her mother was very close to the bedroom when her father
fondled her on his bed and could have heard A.M. had she raised her voice. She said her
father was under the covers when he fondled her, and she was seated on the edge of the bed
near his hips. She reiterated that she was stunned that her father was fondling her, saying that
his having fondled her once before did not diminish the event’s surreal quality. She
confirmed that she did not tell her mother about these events until much later.
The Defendant testified, first denying that he groped T.M. in the shower. He
explained that he delivered a calf before entering the bathroom, which required him to reach
his bare forearms into the heifer to extract the calf. This process left him covered in birth
fluids, and he did not wish to wash himself in the kitchen where his wife was preparing
supper. Instead, he used the only other sink in the house, located in the bathroom where T.M.
was showering at the time. He denied that he reached into the shower and groped T.M. when
he went into the bathroom.
The Defendant also denied walking up behind T.M., unfastening her bra, and touching
her breasts as she stood in her bedroom. He denied each of A.M.’s accusations as well,
stating, “I have never touched them girls.” According to the Defendant, at each of the
locations he was alleged to have inappropriately touched his daughters, their mother could
easily have heard them had they called for help.
The Defendant described himself as more strict than the girls’ grandparents. He
testified that A.M. was dating someone in the summer of 2005 and that she was eager to
leave their house because she “did not like the rules.” He recalled that she had planned for
a long time to move out on her eighteenth birthday.
The Defendant confirmed that A.M. now has a child of her own who she brings to
visit him and his wife. He stated, however, that he was “not a big children person.” He
confirmed that since making the allegations in this case, A.M. had asked him for favors, such
as helping her with car repair. T.M., however, who could not be in the same home as him
per court order, had not returned to his home while he was present. According to the
Defendant, A.M. said she wanted to “be with the family” despite the court order.
On cross-examination, the Defendant said he did not usually enter the bathroom while
his daughters were showering, and he confirmed a sizeable gap existed between the wall and
5
the shower curtain. Though he denied that he drank every night, the Defendant
acknowledged frequently having a couple drinks in the evening to help him sleep. He
admitted telling T.M. she was a member of the “Itty-bitty titty committee.” The Defendant
said he was not a “disciplinarian,” and he confirmed that his daughters ordinarily did not
“raise their voice[s]” when he scolded them.
At the conclusion of trial, the trial court found the Defendant guilty of all charges:
three counts of sexual battery by an authority figure against A.M. and two counts of sexual
battery by an authority figure against T.M.
B. Sentencing
At the Defendant’s sentencing hearing, the following evidence was presented: The
Defendant’s presentence report indicated the Defendant, who was forty-three at the time of
sentencing, lost his father at age eight and was raised by a series of step-fathers, none of with
whom he was particularly close. He graduated from high school, but had no further
academic or vocational training. He had a history of steady employment, having worked in
logging for ten to twelve years and in trucking from 2003 to the time of sentencing.
The Defendant had no prior arrests or convictions. He reported consuming only one
alcoholic beverage per night and denied having alcohol or substance abuse issues. He
currently lived with his wife, the victims’ mother, to whom he has been married for twenty-
three years.
A victim impact statement from T.M. accompanied the presentence report. T.M. said
that, since the sexual contact by her father, she has had nightmares “that re-enact the whole
tragedy.” She has felt as though “everyone ha[d] abandoned [her].” T.M. reported
“uncontrollable emotions,” which have disrupted her sleep and caused her to struggle in
school. She concluded, “I’m very unstable emotionally. I have mood swings. I don’t know
how to react to many situations. It affects my everyday living.”
The Defendant testified that, at the time of sentencing, T.M. was living with her
grandparents, having been removed from his residence. Though he himself did not have
visitation with T.M. or pay child support for her, his wife has visitation and paid child
support. His third daughter, S.M., also lived with her grandparents. The Defendant said
A.M. was living with her boyfriend.
The Defendant explained he was not paying child support at the time simply because
the formal order setting the amount of child support had not yet been set. He testified that
he had, nonetheless, continued to support his daughters financially, paying for his wife to use
6
their car to transport their daughters to and from school and for one daughter to participate
in cheerleading.
He testified he intended to continue to comply with the order requiring him to have
no contact with T.M. and would comply with the sex offender directives.
On recross-examination, the Defendant testified that, were he given the opportunity,
he would ask T.M. and A.M. why they accused him of touching them. He testified that he
would not apologize to them because he had nothing for which to apologize.
Tammy Massey, the Defendant’s wife and the victims’ mother, confirmed that the
Defendant generally paid for the gas she used to transport her daughters to and from school.
The Defendant issued the following allocution statement:
You Honor, I’d just like to say I basically get up about 5:00 every morning, go
to work, come home, help around the farm. Like I say, I don’t know why this
happened or what–why this was done what was done, but evidently they
thought they needed to pursue the matter. I–you know, I really don’t
understand it. I really don’t. I wished I did, but I don’t.
At the conclusion of the hearing, the trial court sentenced the Defendant to concurrent three
year sentences for each of his three convictions committed against A.M., and to three years
for each of his two convictions committed against T.M. The sentences for the convictions
involving T.M. were concurrent, but to be served consecutively to the sentences involving
A.M., for a total effective sentence of six years, to be served on probation. The trial court
also ordered the Defendant to serve forty-eight hours in jail every two weeks for the first year
of his sentence. It is from these judgments that the Defendant now appeals.
II. Analysis
In this appeal, the Defendant contends that the evidence is insufficient to support his
convictions because the evidence presented by the State is based solely upon the victim’s
testimony and those victims, he asserts, are accomplices to the sexual battery in that they
consented to the unlawful touching. Further, he asserts that the trial court improperly
imposed consecutive sentencing.
A. Sufficiency of the Evidence
The Defendant contends the evidence was insufficient to support his convictions
7
because the victim testimony lacked corroboration, which he argues was necessary because
his daughters were accomplices to his sexual contact. He argues that “[t]here was no
testimony from either [victim] that they did not consent to the activities they described, that
they were other than willing participants except with regard to the last event [involving
A.M.]” He contends that, based upon what he argues was the victims’ complicity in their
father’s conduct, the victims consented to the sexual contact and, therefore, acted as
accomplices thereto.
The State responds that corroboration of the daughters’ testimony was unnecessary
because the evidence showed that neither daughter consented to the sexual contact and, thus,
they could not have been accomplices to the Defendant’s conduct. In support of its position
that the evidence established that the contact was non-consensual, the State cites the girls’
testimony that they were “shocked” by their father’s conduct and that, in several instances,
they forcefully resisted their father’s advances. It also cites the Defendant’s failure to argue
at trial that his daughters consented to his sexual contact. The State argues further that, even
had the evidence shown the victims were accomplices, the Defendant failed to request that
the trial court determine whether either victim was an accomplice to the Defendant’s conduct
and, thereby, waived his ability to object to the victims’ testimony as being uncorroborated.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.w.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be based
entirely on circumstantial evidence where the facts are “so clearly interwoven and connected
that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State
v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to be given to
circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(quoting Marable v. State, 313 S.W.2d 451, 457 (1958)).
In determining the sufficiency of the evidence, this Court will not re-weigh or re-
evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); see also Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the
8
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286
S.W.2d at 859. “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the
State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d
474, 479 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000). Importantly, the
credibility of the witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact.
Bland, 958 S.W.2d at 659.
Generally, a defendant may be convicted upon the uncorroborated testimony of one
witness. Letner v. State, 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974). However, a
conviction may not be based solely upon the uncorroborated testimony of an accomplice.
Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964); State v. Green, 915 S.W.2d 827, 830 (Tenn.
Crim. App. 1995). “An accomplice is one who knowingly, voluntarily, and with common
intent unites with the principal offender in the commission of a crime.” State v. Allen, 976
S.W.2d 661, 666 (Tenn. Crim. App. 1997). The victim of a sex offense may, in some
circumstances, be an accomplice to the sex offense.2 See Shelley v. State, 31 S.W.492 (Tenn.
1895); State v. Scott, 338 S.W.2d 581 (Tenn. 1960); State v. Ballinger, 93 S.W.3d 881, 878-
88 (Tenn. Crim. App. 2000). Though whether an individual is an accomplice to an offense
2
We note that, per Tennessee statute, a child sex abuse victim under age thirteen is not, under any
circumstances, an accomplice to illicit sexual conduct. T.C.A. § 40-17-121 (2006).
9
generally depends on whether the individual could be indicted for the offense, whether a sex
crime victim is an accomplice appears, under current law, to depend on whether the victim
voluntarily consented to the sexual activity.3 Scott, 338 S.W.2d at 583. A victim consenting
in response to rape, force, threats, fraud, or undue influence, however, does not voluntarily
consent to the sexual conduct and is not an accomplice thereto. Id. Though a victim’s
precise role in an episode of sexual abuse is a factual determination, whether the role
amounted to that of an accomplice is a question of law. State v. Anderson, 985 S.W.2d 9, 16
(Tenn. Crim. App. 1997).
In cases where, based upon his or her role in a sex offense, a victim could be indicted
for the offense charged against the defendant, the victim clearly is an accomplice to the
sexual conduct at issue. See State v. John Jason Burda, No. M2009-02523-CCA-R3-CD,
2009 Wl 1181349, at *11 (Tenn. Crim. App., at Nashville, May 4, 2009) (victim in sexual
exploitation of minor case held to be accomplice where she sent sexually explicit
photographs of herself to defendant), perm. app. denied (Tenn. Nov. 23, 2009). The 1895
case first subjecting sex victim testimony to accomplice scrutiny involved an uncle accused
of committing incest with his niece. See Shelley, 31 S.W. at 493. Because the relationship
endured over a nine-month period with no evidence of force, threats, fraud, or undue
influence, the Court concluded that the niece, who also could be convicted of incest, was an
3
In State v. Jeffrey Edward Pitts, a panel of this Court sharply criticized the rule subjecting
victim testimony to accomplice scrutiny:
We are perplexed as to how a “victim” can be an “accomplice” under any circumstance.
The two terms are mutually exclusive under Tennessee law. A “victim” is statutorily
defined as “the person alleged to have been subjected to criminal sexual conduct.” Tenn.
Code Ann. § 39-13-501(8) (1991) (emphasis added). However, an “accomplice” is one who
“knowingly, voluntarily, and with common intent unites with the principal offender in the
commission of a crime.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995)
(emphasis added). Furthermore, the “test” to determine if a person is an accomplice to an
offense is whether that person could be indicted for or convicted of that offense. State v.
Green, 915 S.W.2d at 831; State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).
No. 01C01-9701-CC-00003, 1999 WL 144744, *5, footnote 7 (Tenn. Crim. App., at Nashville, Mar. 18,
1999), perm. app. denied (Tenn. Oct. 11, 1999). We share the Pitts panel’s misgivings as to the cases
classifying sex crime victims as accomplices. We are unable to conceive of a scenario under which a true
victim of a sex crime, in the sense that he or she could not also be indicted for the sex crime, would, in a legal
sense, voluntarily consent to sexual conduct in a way that should expose his or her testimony to additional
scrutiny. Further, we can readily conceive of a scenario in which a victim might, in order to protect herself
or her family, “knowingly unite” with the perpetrator of a sexual crime in exchange for the perpatrator’s
agreement to refrain from harming others. We fail to see the logic in refusing to allow the perpetrator of that
crime to be convicted based solely upon the victim’s testimony.
10
accomplice. Id.
Where a victim’s conduct is not itself illicit, however, the victim’s complicity in
sexual conduct is less obvious. In Ballinger, for example, a fifteen-year-old victim testified
that her adult neighbor had sex with her against her will, whereas the neighbor testified the
sex was consensual. 93 S.W.3d at 885. This court held that a jury could reasonably conclude
from the Defendant’s testimony that the victim consented to the sexual activity and, thus, was
an accomplice thereto. Id. at 887-88. In Pitts, however, this Court held that a mentally
disabled male victim forced to perform oral sex upon his supervisor was not an accomplice
to sexual battery primarily due to his mental defect but also due to his testimony that he
engaged in the sexual conduct only because the defendant was his “boss” and he had been
directed to do whatever his boss told him to do. 1999 WL 144744, *6.
The Defendant in this case was convicted of five counts of sexual battery by an
authority figure. The Tennessee Code Annotated defines the crime of sexual battery by an
authority figure as:
(a) . . . [U]nlawful sexual contact with a victim by the defendant, or the
defendant by a victim, accompanied by the following circumstances:
(1) [T]he victim was, at the time of the offense, thirteen (13)
years of age or older, but less than eighteen (18) years of age,
and:
...
(3)(A) The defendant was at the time of the offense in a
position of trust, or had supervisory or disciplinary power
over the victim by virtue of the defendant's legal,
professional or occupational status and used such power
to accomplish the sexual contact.
T.C.A. § 39-13-527(a) (2006). “‘Sexual contact’ includes the intentional touching of the
victim’s . . . intimate parts, or the intentional touching of the clothing covering the immediate
area of the victim’s . . . intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” T.C.A. § 39-13-501(6)
(2006). ‘“Intimate parts’ includes the primary genital area, groin, inner thigh, buttock or
breast of a human being.” T.C.A. § 39-13-501(2) (2006).
We note the Defendant did not call the trial court’s attention to his concerns with the
11
victims’ testimony. In choosing not to object to their testimony on this basis, he failed “to
take whatever action reasonably necessary to prevent or nullify the harmful effect” of their
testimony. See Tenn. R. App. P. 36(a). Such an objection, of course, would have been at
odds with the Defendant’s denial that any sexual contact took place. In choosing to pursue
this course at trial and, as a result, refraining from raising an objection at trial to the
uncorroborated “accomplice” testimony, the Defendant deprived the trial court of the
opportunity to address the issue of accomplice testimony and, if the victims were
accomplices, the need for corroboration. Consequently, the Defendant waived review of
whether the trial court erred when it placed no findings on the record as to whether the
victims were accomplices. See Tenn. R. App. P. 36(a). As such, we will address the
Defendant’s objection only as it relates to the sufficiency of the evidence supporting his
convictions and not as it relates to the absence of findings as to whether the victims were
accomplices.
The facts established at trial eliminate the possibility that the victims in this case were
accomplices to the acts of sexual battery committed by the Defendant. First, neither daughter
could be indicted for or convicted of sexual battery by an authority figure. The Defendant
initiated sexual contact with his daughters. Nothing in the record suggests the victims either
initiated sexual contact or encouraged their father’s sexual advances. In short, the nature of
the sexual behavior in this case was one-sided. Thus, neither victim “with common intent
unite[d]” with the Defendant in committing sexual battery. Allen, 976 S.W.2d at 666. Under
the traditional test for an accomplice relationship, therefore, neither victim was an
accomplice to the Defendant’s conduct.
Additionally, the victims were not accomplices according to the language of courts
classifying sex crime victims as accomplices. The Defendant accomplished his sexual
battery of the victims through the use, alternatively, of surprise and threats. On two of the
three occasions the Defendant fondled A.M., he threatened to not allow her to visit friends
and to deny her gas money if A.M. did not allow the Defendant to “touch” her. On the
second occasion of fondling, there is no evidence that A.M. acquiesced to the touching;
rather, the evidence proved she pulled away from the Defendant. On the other two
occasions, A.M. allowed the Defendant to touch her only under the threat of privileges and
money being withheld. Were the actors in this case adults, bargaining for sexual acts, the
bartering that took place in this case may have lent a more voluntary tone to A.M.’s behavior.
The Defendant and victim, however, were father and daughter, and, as such, the bargaining
that took place was an abuse of the parental relationship by the Defendant. A.M.’s consent
was coerced rather than voluntary, and her testimony regarding these events need not be
regarded as that of an accomplice. See Scott, 338 S.W.2d at 583.
The remaining occasions involve sudden, unanticipated behavior by the Defendant
12
either immediately rebuffed or rebuffed as soon as the victim recovered from the “shock” of
her father’s conduct. When the Defendant fondled and placed his mouth on A.M.’s breasts
while she was seated on his bed, A.M. soon pulled away and gave her father a disapproving
look. The first time the Defendant groped T.M. in her bedroom, she pushed him away as
soon as she recovered from the shock of her father touching her. The second time the
Defendant groped T.M., while she was showering, T.M. immediately pushed her father away.
Thus, the victims showed their unmistakable objection to the Defendant’s conduct. In no
way did either victim’s behavior indicate she “voluntarily consented to” have sexual contact
with their father. See Scott, 338 S.W.2d at 583. As such, the victims were not accomplices
to the Defendant’s behavior on these remaining occasions.
We note further that, whereas the defendant in Ballinger testified that his sexual
contact with the minor victim was consensual, the Defendant in this case denied any sexual
contact occurred and, thus, deprived the trier of fact of evidence upon which to find that the
victims consented to the sexual contact. 93 S.W.3d at 885. Therefore, the Ballinger
rationale for concluding that the victim in that case was an accomplice does not require a
similar finding in this case. Id. Instead, the facts of this case more closely resemble those
of Pitts, where the supervisor of a mentally defective adult victim ordered the victim to
perform oral sex. 1999 WL 144744, *6. This case, like Pitts, involves a defendant who
shared a relationship of trust and authority with the victims, who, like the victim in Pitts,
were extraordinarily vulnerable due to their young age. Id. As such, the victims in this case,
just as the victim in Pitts, were not accomplices to their aggressor’s conduct.
In sum, we conclude that, proof of the daughters’ consent to their father’s conduct
being absent in this case, the record could not support a finding that they were accomplices
to the Defendant’s conduct. Thus, corroboration of their testimony was unnecessary, and the
trial court properly relied upon it in reaching its verdicts of guilt as to the charges against the
Defendant. Letner, 512 S.W.2d at 649.
As to the Defendant’s remaining argument that the trial court was not entitled to
discredit the Defendant’s denial that any sexual contact occurred and instead credit his
daughters’ detailed accounts of his behavior, the Defendant is simply incorrect. “[T]he
credibility of the witnesses, the weight to be given their testimony, and the reconciliation of
conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact.”
Bland, 958 S.W.2d at 659. As such, the trial court was well within its discretion when it
credited the girls’ account of their father’s behavior.
The evidence showed that the Defendant, when each victim was between thirteen and
eighteen and lived under his and their mother’s supervision, fondled A.M.’s breasts on three
occasions and T.M.’s breasts on two occasions. The Defendant, therefore, had unlawful
13
sexual contact with the victims at a time when he had “parental or custodial authority” over
the victims. See T.C.A. § 39-13-527(a)(3)(B). Thus, the evidence was sufficient to support
the Defendant’s five convictions for sexual battery by an authority figure. T.C.A. § 39-13-
527(a)(1). He is not entitled to relief on this issue.
B. Sentencing
The Defendant contends that the trial court erred in imposing consecutive sentencing
based upon factor (5), that the Defendant was convicted of two offenses involving sexual
abuse of a minor, accompanied by at least one aggravating circumstance. T.C.A. § 40-35-
115(b)(5). Though the trial court did not identify the aggravating circumstance it found to
exist, the Defendant argues the record would only support application of aggravating
circumstance (a), that the relationship between the defendant and victim aggravated the
conduct’s harmful effect. He argues, however, that, by increasing the Defendant’s sentence
based upon a factor that was already an element of his offense, the trial court subjected the
Defendant to multiple punishments for the same crime, in violation of his constitutional right
against double jeopardy. The Defendant also contends the trial court’s failure to explicitly
state on the record that the resulting consecutive sentence was “justly deserved in relation to
the seriousness of [the Defendant’s] offense” requires reversal of its sentencing order.
The State responds first that, without regard to the Defendant’s relationship with the
victims, the two-year span of the Defendant’s conduct and the conduct’s effect upon the
girls’ emotional stability support application of consecutive sentencing factor (5). He argues
that, even absent these aggravating circumstances, the trial court’s imposition of consecutive
sentencing based upon the Defendant’s relationship with the victims was proper because,
whereas the Tennessee Code constrains courts from applying an enhancement factor that is
already an essential element of the offense, it does not impose the same restraint on
consecutive sentencing factors.
As the parties’ divergent arguments indicate, whether consecutive sentences were
properly imposed in this case involves two inquiries: (1) whether Tennessee statute allows
for the consecutive alignment of sentences based upon a factor that is already an essential
element of the offense; and (2) whether such an imposition of consecutive sentences violates
the Defendant’s rights against double jeopardy.
1. Whether State Law Permits Consecutive Sentencing in this Case
If an offender meets one or more statutory criteria in Tennessee Code Annotated
section 40-35-115, whether or not he should be sentenced consecutively or concurrently is
within the sound discretion of the trial court. State v. James, 688 S.W.2d 463, 465 (Tenn.
14
Crim. App. 1984). A court may order multiple sentences to run consecutively if it finds, by
a preponderance of the evidence, that at least one of seven factors exists. T.C.A. § 40-35-
115(b)(1)-(7). The factor relevant to this case is factor (5):
(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of the defendant’s undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and mental damage
to the victim or victims;
T.C.A. § 40-35-115(b)(5).
In addition to these criteria, consecutive sentencing is subject to the general
sentencing principle that the length of a sentence should be “justly deserved in relation to the
seriousness of the offense” and “no greater than that deserved for the offense committed.”
T.C.A. § 40-35-102(1), 103(2); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
Although Tennessee Code Annotated section 40-35-114 prohibits the use of an
“essential element of the offense” as an enhancement factor, the consecutive sentencing
provisions reproduced above contain no such prohibition. T.C.A. § 40-35-115. Therefore,
the fact that a defendant’s relationship with his victims supported his conviction is “irrelevant
for purposes of consecutive sentencing.” State v. Lane, 3 S.W.3d 456, 460 n.4 (Tenn. 1999).
Because the Tennessee Code permits the imposition of consecutive sentencing based upon
factor (5) even where a defendant’s relationship with the victims was already an essential
element of the offense, we conclude Tennessee law supports the trial court’s imposition of
consecutive sentencing in this case. See T.C.A. § 40-35-115. We turn to consider the
constitutionality of the trial court’s order.
2. Whether Double Jeopardy Bars Consecutive Sentencing
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. Three
fundamental principles underlie double jeopardy: (1) protection against a second prosecution
after an acquittal; (2) protection against a second prosecution after conviction; and (3)
protection against multiple punishments for the same offense. State v. Burris, 40 S.W.3d
520, 524 (Tenn. Crim. App.2000). In the context of multiple punishment, “the Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing greater
15
punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).
This case concerns the double jeopardy clause’s protection against multiple
punishments for the same offense. The Defendant contends that, by imposing consecutive
sentencing based upon the Defendant’s parental relationship with the victims, already an
essential element of his convictions, the Defendant received multiple punishments for the
same offense. We disagree. The Defendant did not receive “multiple” punishments for the
“same” offense. Rather, he was ordered to serve the sentence he received from his acts of
sexual battery against one of his daughters consecutively to the sentence he received for the
similar acts he committed against his other daughter. For purposes of the double jeopardy
clause, these offenses were not the “same offense”; therefore, the consecutive alignment of
their resulting sentences does not implicate the double jeopardy clause. Because the double
jeopardy clause does not proscribe the imposition of multiple punishments for separate
offenses, the imposition of consecutive sentencing in this case did not violate the
Defendant’s right against double jeopardy. See Burris, 40 S.W.3d at 524.
Having concluded that the trial court’s order of consecutive sentencing neither ran
afoul of Tennessee sentencing provisions nor violated the Defendant’s constitutional right
against double jeopardy, we conclude the trial court properly sentenced the Defendant to two
consecutive three-year sentences of probation, for a total effective sentence of six years on
probation, with service in jail of forty-eight hours every two weeks for the first year of his
sentence. He is not entitled to relief on this issue.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that the
evidence was sufficient to support the Defendant’s convictions and that the trial court
properly imposed consecutive sentencing. As such, we affirm the trial court’s judgments.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
16