Session February 9, 2017
by Permission from the Court of Criminal Appeals Criminal
Court for Davidson County No. 2012-D-3022 Mark J. Fishburn,
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.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Affirmed; Remanded to the Trial Court
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.
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.
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, CHIEF JUSTICE
and Procedural Background
matter involves repeated sexual molestations of the victim,
who was twelve years old at the time of the trial, by her
stepfather, the Defendant. 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.
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. Id. at *32-33.
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
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. 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" "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.
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 Three 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.
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.
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.
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
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, 282 Cal.Rptr. 674 (Cal.Ct.App.
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 Cal.Rptr. at 679). The Barney Court concluded
held that if the act in question directly facilitates or is
merely incidental to the accompanying sexual conduct (such
as, for example, applying lubricant to the area of intended
copulation), convictions for both acts would be barred. If,
however, the act in question is 'preparatory' only in
the sense that it is intended to sexually arouse either the
victim or the perpetrator, separate convictions are not
Id. (citations omitted). The Barney Court
then noted five factors that "may be relevant in
determining whether conduct is directly facilitative, and
thus incidental, or merely preparatory in the sense of
intending to arouse the victim or perpetrator."
Id. Those five factors are:
1. temporal proximity-the greater the interval between the
acts, the more likely the acts are separate;
2. spatial proximity-movement or re-positioning tends to
suggest separate acts;
3. occurrence of an intervening event-an interruption tends
to suggest separate acts;
4. sequence of the acts-serial penetration of different
orifices as distinguished from repeated penetrations of the
same orifice tends to suggest separate offenses; and
5. the defendant's intent as evidenced by conduct and
Id. at 548-49.
Barney Court recognized that the California court
was not considering the "dual conviction question under
a due process challenge, " id. at 548 n.2, but
concluded that "the same analysis would determine that
there was "no due process violation" in
the defendant's multiple convictions, id. at 549
(emphasis added). Thus, although the Barney Court
ostensibly rejected the application of Anthony to
the case before it, the Court nevertheless utilized a due
process analysis to determine the propriety of multiple
convictions arising from an allegedly single criminal action.
2012, this Court overruled Anthony and its progeny:
"Anthony and the entire line of cases including
a separate due process analysis in appellate review are
expressly overruled." State v. White, 362
S.W.3d 559, 578 (Tenn. 2012). In White, we reasoned
that, on direct appellate review, a defendant's
fundamental right to due process was protected upon a
determination that the jury's verdict, based upon
appropriate instructions for the elements of each crime under
consideration, was supported by sufficient evidence.
Id. at 577-78. Thus, we held that "[t]he
separate due process test articulated . . . in
Anthony . . . is . . . no longer necessary to the
appellate review of a kidnapping conviction accompanied by a
separate felony." Id. at 578.
noted by the majority of the panel of the Court of Criminal
Appeals in this case, this Court in White did not
explicitly overrule Barney. Accordingly, the
majority below applied the Barney factors and
determined that the two types of contact alleged in Counts
One and Three "were in immediate temporal and spatial
proximity to one another without intervening events or
repositioning of the Defendant or the victim. The contact
involved two parts of the victim's body, her buttocks and
her labia, but only her labia were penetrated. There was no
testimony as to the Defendant's intent."
Itzol-Deleon, 2016 WL 1192806, at *25. Concluding
that "the touching of the buttocks was incidental [to]
accomplishing the rape, " the court merged the
Defendant's conviction of attempt to commit aggravated
sexual battery into the Defendant's conviction of rape of
a child. Id.
Barney ostensibly rejected the application of
Anthony to multiple convictions arising out of an
allegedly single course of sexual assaultive conduct, the
Barney Court still analyzed the convictions before
it through a due process lens. We clearly rejected in
White the application of a separate due process
analysis for determining on appeal the propriety of dual
convictions arising from an allegedly single criminal act.
Moreover, since White, we have applied double
jeopardy principles, and not a due process analysis, in
determining whether multiple sexual offenses could stand.
See State v. Hogg, 448 S.W.3d 877, 885-87 (Tenn.
2014). Therefore, consistent with our more recent holdings,
we overrule Barney based on its reliance on a due
process analysis. We further hold that the propriety of
multiple convictions of sexual offenses arising from an
allegedly single sexual assault must be analyzed under
principles of double jeopardy as set forth by this Court in
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012). We
turn now to that analysis.
multiple convictions violate double jeopardy is a mixed
question of law and fact, which we review de novo without any
presumption of correctness." Watkins, 362
S.W.3d at 539 (citing State v. Thompson, 285 S.W.3d
840, 846 (Tenn. 2009)).
begin by recognizing that, under both the federal and state
Constitutions, principles of double jeopardy prohibit,
among other things, "multiple punishments for the same
offense imposed in a single prosecution." Id.
at 541, 548. Where multiple convictions for an allegedly
"same offense" arise in a single prosecution, our
first task is to determine which of two categories the double
jeopardy claim fits into: "unit-of-prosecution" or
"multiple description." Id. at 543.
"Unit-of-prosecution claims arise when defendants who
have been convicted of multiple violations of the
same statute assert that the multiple convictions
are for the 'same offense.'" Id.
"Multiple description claims arise in cases in which
defendants who have been convicted of multiple criminal
offenses under different statutes allege that the
convictions violate double jeopardy because the statutes
punish the 'same offense.'" Id. at 544.
The instant case involves a multiple description claim
because the ...