IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE July 20, 1999
Cecil Crowson, Jr. MARCH 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, * No. 03C01-9810-CC-00360
Appellee * BLEDSOE COUNTY
V. * Hon. J. Curtis Smith, Judge
ROBERT S. VASSER * (Aggravated Sexual Battery)
Appellant. *
For Appellant For Appellee
B. Jeffery Harmon Paul G. Summers Assistant Public Defender Attorney General and Reporter P.O. Box 220 425 Fifth Avenue North Jasper, TN 37347 Nashville, TN 37243-0493
Ellen H. Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
Will Dunn Assistant District Attorney General First American National Bank Dayton, TN 37321
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE OPINION
The appellant, Robert S. Vasser, was convicted in the Circuit Court of
Bledsoe County of the aggravated sexual battery of two young girls, ages eight and
ten. The trial court imposed concurrent sentences of eight years and nine months in
the Tennessee Department of Correction. The sole issue raised on appeal is
whether the trial court erred by instructing the jury pursuant to Tenn. Code. Ann. §
40-35-201 (Repealed, May 18, 1998), the “truth in sentencing” statute. Following a
thorough review of the record and the parties’ briefs, we affirm the judgment of the
trial court.
Factual Background
On November 25, 1996, a Bledsoe County Grand Jury indicted the
appellant for one count of rape of SM and one count of aggravated sexual battery of
her sister, SB.1 The appellant’s case proceeded to trial on December 9, 1997. At
trial, the proof established that the appellant and his girlfriend were renting a
recreational vehicle (RV) from the victims’ parents at the time of the offenses. The
appellant and his girlfriend lived in the RV, which was parked adjacent to the victims’
home. They ate meals with the victims’ family and assisted with household chores,
including occasionally babysitting the children. Both SM and SB testified at trial that,
on one evening as they lay in bed, the appellant entered their bedroom and hugged
each of them. As the appellant hugged the children, he placed his hand inside their
underwear and touched their genitalia. The appellant testified at trial and denied
touching the children aside from hugging them.
As to the charge of rape of SM, the trial court instructed the jury on the
1 Pursuant to this Court’s policy, the minor victims will be referred to only by their initials.
2 lesser offenses of aggravated sexual battery and attempt to commit aggravated
sexual battery. As to the charge of the aggravated sexual battery of SB, the trial
court instructed the jury on the lesser offense of attempted aggravated sexual
battery. Additionally, the trial court delivered the following instruction to the jury:
The jury will not attempt to fix any sentence. However, you may weigh and consider the meaning of a sentence of imprisonment. The range of punishment for the crimes herein involved are as follows:
Rape of a child is a Class A felony which is punishable upon conviction by confinement in the Department of Corrections for a term of years of not less than 15 nor more than 25 which term shall be served in its entirety. . .
Aggravated sexual battery is a Class B felony which is punishable upon conviction by confinement in the Department of Corrections for a term of years of not less than eight nor more than twelve which term shall be served in its entirety. . . .
Criminal attempt to commit aggravated sexual battery is a Class C felony which is punishable upon conviction by confinement in the Department of Corrections for a term of years not less than three nor more than six years. . . .
You are further informed that the minimum number of years a person sentenced to imprisonment for these offenses must serve before reaching the earliest release eligibility date is:
On rape of a child and aggravated sexual battery. A person convicted of these offenses shall serve the entire sentence imposed by the court undiminished by any sentence reduction credits such person may be eligible for or earn. A person convicted of these offenses shall not be eligible for parole or release prior to service of the entire sentences imposed by the court.
Criminal attempt to commit aggravated sexual battery, the minimum number of years a person is sentenced during imprisonment for this offense must serve, before reaching earliest release eligibility date is 36% of three years.
Whether a defendant is actually released from incarceration on the date when first eligible for release is a discretionary decision made by the Board of Parole and is based on many factors. The Board of Parole has the authority to require a defendant to serve the entire sentence imposed by the Court.
3 As noted earlier, the jury convicted the appellant of two counts of aggravated sexual
battery.
Analysis
The appellant contends that the trial court erred by instructing the jury
on the release eligibility dates applicable to the charged offenses and the lesser
offenses. The appellant argues that the instruction in this case is distinguishable
from the instruction in State v. King, 973 S.W.2d 586 (Tenn. 1998), and therefore
violated the appellant’s rights under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and Article I, Section 8 of the
Tennessee Constitution.
Initially, we note that, in a motion dated December 9, 1997, the
appellant asked the trial court pursuant to the truth in sentencing statute “to charge
the jury on the possible penalties for the offense charged and all lesser included
offenses.” However, the language requested by the defense attorney omitted
information concerning the release eligibility percentages of aggravated sexual
battery and attempt to commit aggravated sexual battery. At the close of the State’s
proof, defense counsel explicitly objected to any instruction concerning the release
eligibility percentage of attempt to commit aggravated sexual battery.
We conclude that the trial court’s instruction, delivered in accordance
with Tenn. Code. Ann. § 40-35-201(b)(2), was consistent with principles of due
process. In King, 973 S.W.2d at 586, our supreme court stated that deference
should be given to the legislature’s determination that the sentencing information set
forth in Tenn. Code Ann. § 40-35-201(b)(2) is relevant. Id. at 591. Noting that the
jury had been properly instructed on the State’s burden of proof and instructed that it
4 could not fix punishment for the offense, the court concluded that no due process
violation had occurred. Id. at 592.
Similarly, the jury in this case was properly instructed that the State
must prove each element of the charged offense beyond a reasonable doubt. The
jury was also instructed that it was not to attempt to fix punishment for the offense.
We have no reason to suspect that the jury failed to heed the instructions of the trial
court. Id. See also State v. Bankston, No. 03C01-9608-CR-00302, 1999 WL 49897,
at *16 (Tenn. Crim. App. at Knoxville, February 4, 1999); State v. Green, No. 01C01-
9706-CR-00223, 1998 WL 708915, at *27 (Tenn. Crim. App. at Nashville, October
12, 1998), perm. to appeal denied, (Tenn.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE July 20, 1999
Cecil Crowson, Jr. MARCH 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, * No. 03C01-9810-CC-00360
Appellee * BLEDSOE COUNTY
V. * Hon. J. Curtis Smith, Judge
ROBERT S. VASSER * (Aggravated Sexual Battery)
Appellant. *
For Appellant For Appellee
B. Jeffery Harmon Paul G. Summers Assistant Public Defender Attorney General and Reporter P.O. Box 220 425 Fifth Avenue North Jasper, TN 37347 Nashville, TN 37243-0493
Ellen H. Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
Will Dunn Assistant District Attorney General First American National Bank Dayton, TN 37321
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE OPINION
The appellant, Robert S. Vasser, was convicted in the Circuit Court of
Bledsoe County of the aggravated sexual battery of two young girls, ages eight and
ten. The trial court imposed concurrent sentences of eight years and nine months in
the Tennessee Department of Correction. The sole issue raised on appeal is
whether the trial court erred by instructing the jury pursuant to Tenn. Code. Ann. §
40-35-201 (Repealed, May 18, 1998), the “truth in sentencing” statute. Following a
thorough review of the record and the parties’ briefs, we affirm the judgment of the
trial court.
Factual Background
On November 25, 1996, a Bledsoe County Grand Jury indicted the
appellant for one count of rape of SM and one count of aggravated sexual battery of
her sister, SB.1 The appellant’s case proceeded to trial on December 9, 1997. At
trial, the proof established that the appellant and his girlfriend were renting a
recreational vehicle (RV) from the victims’ parents at the time of the offenses. The
appellant and his girlfriend lived in the RV, which was parked adjacent to the victims’
home. They ate meals with the victims’ family and assisted with household chores,
including occasionally babysitting the children. Both SM and SB testified at trial that,
on one evening as they lay in bed, the appellant entered their bedroom and hugged
each of them. As the appellant hugged the children, he placed his hand inside their
underwear and touched their genitalia. The appellant testified at trial and denied
touching the children aside from hugging them.
As to the charge of rape of SM, the trial court instructed the jury on the
1 Pursuant to this Court’s policy, the minor victims will be referred to only by their initials.
2 lesser offenses of aggravated sexual battery and attempt to commit aggravated
sexual battery. As to the charge of the aggravated sexual battery of SB, the trial
court instructed the jury on the lesser offense of attempted aggravated sexual
battery. Additionally, the trial court delivered the following instruction to the jury:
The jury will not attempt to fix any sentence. However, you may weigh and consider the meaning of a sentence of imprisonment. The range of punishment for the crimes herein involved are as follows:
Rape of a child is a Class A felony which is punishable upon conviction by confinement in the Department of Corrections for a term of years of not less than 15 nor more than 25 which term shall be served in its entirety. . .
Aggravated sexual battery is a Class B felony which is punishable upon conviction by confinement in the Department of Corrections for a term of years of not less than eight nor more than twelve which term shall be served in its entirety. . . .
Criminal attempt to commit aggravated sexual battery is a Class C felony which is punishable upon conviction by confinement in the Department of Corrections for a term of years not less than three nor more than six years. . . .
You are further informed that the minimum number of years a person sentenced to imprisonment for these offenses must serve before reaching the earliest release eligibility date is:
On rape of a child and aggravated sexual battery. A person convicted of these offenses shall serve the entire sentence imposed by the court undiminished by any sentence reduction credits such person may be eligible for or earn. A person convicted of these offenses shall not be eligible for parole or release prior to service of the entire sentences imposed by the court.
Criminal attempt to commit aggravated sexual battery, the minimum number of years a person is sentenced during imprisonment for this offense must serve, before reaching earliest release eligibility date is 36% of three years.
Whether a defendant is actually released from incarceration on the date when first eligible for release is a discretionary decision made by the Board of Parole and is based on many factors. The Board of Parole has the authority to require a defendant to serve the entire sentence imposed by the Court.
3 As noted earlier, the jury convicted the appellant of two counts of aggravated sexual
battery.
Analysis
The appellant contends that the trial court erred by instructing the jury
on the release eligibility dates applicable to the charged offenses and the lesser
offenses. The appellant argues that the instruction in this case is distinguishable
from the instruction in State v. King, 973 S.W.2d 586 (Tenn. 1998), and therefore
violated the appellant’s rights under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and Article I, Section 8 of the
Tennessee Constitution.
Initially, we note that, in a motion dated December 9, 1997, the
appellant asked the trial court pursuant to the truth in sentencing statute “to charge
the jury on the possible penalties for the offense charged and all lesser included
offenses.” However, the language requested by the defense attorney omitted
information concerning the release eligibility percentages of aggravated sexual
battery and attempt to commit aggravated sexual battery. At the close of the State’s
proof, defense counsel explicitly objected to any instruction concerning the release
eligibility percentage of attempt to commit aggravated sexual battery.
We conclude that the trial court’s instruction, delivered in accordance
with Tenn. Code. Ann. § 40-35-201(b)(2), was consistent with principles of due
process. In King, 973 S.W.2d at 586, our supreme court stated that deference
should be given to the legislature’s determination that the sentencing information set
forth in Tenn. Code Ann. § 40-35-201(b)(2) is relevant. Id. at 591. Noting that the
jury had been properly instructed on the State’s burden of proof and instructed that it
4 could not fix punishment for the offense, the court concluded that no due process
violation had occurred. Id. at 592.
Similarly, the jury in this case was properly instructed that the State
must prove each element of the charged offense beyond a reasonable doubt. The
jury was also instructed that it was not to attempt to fix punishment for the offense.
We have no reason to suspect that the jury failed to heed the instructions of the trial
court. Id. See also State v. Bankston, No. 03C01-9608-CR-00302, 1999 WL 49897,
at *16 (Tenn. Crim. App. at Knoxville, February 4, 1999); State v. Green, No. 01C01-
9706-CR-00223, 1998 WL 708915, at *27 (Tenn. Crim. App. at Nashville, October
12, 1998), perm. to appeal denied, (Tenn. 1999); State v. Nichols, No. 01C01-9704-
CR-00158, 1998 WL 468638, at **13-14 (Tenn. Crim. App. at Nashville, August 12,
1998), perm. to appeal granted, (Tenn. 1999); State v. Nelson, No. 01C01-9707-
CR-00237, 1998 WL 557558, at **4-5 (Tenn. Crim. App. at Nashville, August 27,
1998).
We acknowledge that the trial court in this case did not instruct the
jury, as the trial court did in King, that it was providing the release eligibility
percentages for the jury’s information only. We further acknowledge that, in contrast
to the cases cited above, some members of this court have held that a jury
instruction on release eligibility percentages which permits the jury to “weigh and
consider the meaning of a sentence of imprisonment,” and does not contain the “for
your information only” language included in King, violates due process. State v.
Weiskopf, No. 02C01-9611-CR-00381, 1998 WL 840000, at **3-4 (Tenn. Crim. App.
at Jackson, December 4, 1998). See also Nichols, No. 01C01-9704-CR-00158,
1998 WL 468638, at *15 (Wade, J., concurring); Nelson, No. 01C01-9707-CR-
00237, 1998 WL 557558, at *5 (Wade, J., concurring). This issue has been a
5 divisive one for this court. Green, No. 01C01-9706-CR-00223, 1998 WL 708915, at
*25.
Without deciding this dispute, which is currently before our supreme
court, we conclude that any error was harmless. We agree with the State that the
only possible prejudice to the appellant was the jury’s failure to find the appellant
guilty of attempt to commit aggravated sexual battery with respect to both counts of
the indictment. However, the record is devoid of any evidence of this lesser offense.
Rather, the proof at trial either supported a conclusion that the petitioner committed
aggravated sexual battery or supported a conclusion that the appellant is entirely
innocent. The appellant’s contention is without merit.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Norma McGee Ogle, Judge
CONCUR:
Gary R. Wade, Presiding Judge
Cornelia A. Clark, Special Judge