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Identity of Criminal Offenses

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CaseState of Tennessee v. Christopher Scottie Itzol-Deleon

Issue:  When should criminal offenses be merged?

Facts:  The victim testified that the Defendant removed her pajama pants while she was facing away from him and that she felt something on her back, which she assumed was his “private part.” She clarified that she felt the Defendant’s penis above her “butt.” The victim stated that the Defendant’s penis then slightly touched her private part but never went inside. She said she felt a watery or slimy substance on the outside of her private part that came from the Defendant’s penis. The Defendant contends that his convictions for attempted aggravated sexual battery and rape of a child violate due process because the convictions resulted from one continuous criminal episode and involved one criminal intent. The State responds that each conviction stemmed from a distinct type of sexual contact and that the dual convictions do not violate due process principles.

Appellate Decision:  The intermediate appellate court concluded that the two types of contact 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. The court concluded that the contact with the victim’s buttocks was merely incidental to the penetration of the victim’s labia, and as a result the two convictions merged.

Judge Easter dissented, finding that the defendant was convicted of violating two different and distinct statutes. While the alleged statutory violations definitely come from the same act or transaction and could potentially result in a double jeopardy violation, an analysis of the relevant statutes reveals that the legislature intended to create separately punishable offenses. Here, each offense contains a statutory element not contained in the other. Rape of a child requires penetration; attempted aggravated sexual battery does not. Attempted aggravated sexual battery requires that the contact be for the purpose of sexual arousal or gratification; rape of a child does not. Additionally, neither offense is a lesser included of the other neither not the same offenses for purposes of double jeopardy. Judge Easter would uphold the separate convictions for rape of a child and attempted aggravated sexual battery.

Review Granted:  August 18, 2016

Prediction:  David believes the Tennessee Supreme Court will reverse and adopt Judge Easter’s analysis. While not articulated by the parties or any of the judges, David thinks the Tennessee Supreme Court should use this case as a vehicle to modify the doctrine of consecutive sentences for such closely allied offenses. While perhaps qualifying as separate offenses the real issue is whether consecutive sentencing is appropriate in such cases.  The rules and statutes on consecutive sentences were drafted at a time when the unity of offenses rule would have compelled joinder of these two crimes but now one could receive multiple, consecutive sentences a result not contemplated in 1989 when our criminal code was revised.