Tennessee Supreme Court Rejects Due Process Analysis, Adopts Double Jeopardy Approach for Multiple Offenses Arising From the Same Sexual Assault

August 25, 2017

The Supreme Court has ruled that multiple convictions for sexual offenses arising from a single act of sexual assault should be analyzed under double jeopardy principles. In reaching this conclusion, the Court overruled its prior decision in State v. Barney, 986 S.W.2d 545 (Tenn. 1999), which held that such cases should be reviewed under a due process approach.

This case arose from multiple instances of sexual molestation of a twelve-year-old girl by her step-father, the defendant, from January 1, 2010, through July 31, 2012. The State provided an election of offenses, given that the victim testified to more instances than were charged.

The defendant was convicted of attempt to commit aggravated sexual battery, four counts of aggravated sexual battery, and three counts of rape of a child. He received an effective forty-year sentence. On appeal, the Court of Criminal Appeals, relying on Barney, merged the conviction of attempt to commit aggravated sexual battery with one of the convictions for rape of a child based on due process principles.

The Supreme Court granted the State’s application for permission to appeal to determine whether the Court’s decision in Barney should be overruled and whether the Court of Criminal Appeals properly merged two of the defendant’s convictions.

In the unanimous opinion authored by Chief Justice Jeff Bivins, the Court overruled Barney because that case examined the propriety of multiple convictions from a single episode of criminal assault under a due process analysis. As the Court explained,
State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), rejected a separate due process analysis on appeal for considering whether dual convictions arising in other settings from an allegedly singular episode were proper. Although the Court held that White had not actually overruled Barney, it is now appropriate to do so. The Court concluded that multiple convictions in a sexual assault case should be reviewed based upon principles of double jeopardy.  In so doing, the Court set forth a list of non-exclusive factors to be considered in determining whether multiple convictions arise from a singular act. After applying the factors in this case, the Court determined that the defendant’s convictions of attempt to commit aggravated sexual battery and one count of rape of a child arose out of the same assault and, thus, violated double jeopardy principles. Therefore, although for different reasons, the Court affirmed the Court of Criminal Appeals’ decision to merge the two convictions into one conviction of rape of a child.

To read the Supreme Court’s opinion in State of Tennessee v. Christopher Scottie Itzol-Deleon, authored by Chief Justice Jeff Bivins, go to the opinions section of TNCourts.gov.