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State v. Johnson8/22/2001
silent as to the exact time between the two touchings, I believe that a jury could reasonably find that the second touch was purposeful, intentional, and distinct from the first touch. Two separate areas of the victim's body were clearly invaded by the defendant's conduct and neither touch was accidental or incidental to the other touch. It may be inferred from the purposeful and intentional nature of the second touch that it, like the first touch, resulted from a desire for sexual gratification. Finally, although the cumulative punishment factor does not apply in this case since the defendant was convicted of only one count of sexual battery, several courts have upheld multiple convictions in cases similar to this one. State v. Williams, 730 P.2d at 1199; State v. Suarez, 736 P.2d 1040, 1042 (Utah Ct. App. 1987); State v. Rummer, 432 S.E.2d 39, 47 (W. Va. 1993). Accordingly, a complete analysis of the Phillips factors supports a finding that the defendant committed two offenses of sexual battery.
The majority, however, has applied Phillips to conclude that the defendant's conduct consisted of a single offense. Moreover, the majority postulates that there was no evidence of multiple offenses, but rather, evidence of multiple touches that would satisfy an element of the offense, i.e., sexual contact. The majority's view hinges almost entirely on its determination that "little or no time elapsed between the touchings" and that there was no evidence "to indicate a newly formed intent to again seek sexual gratification." The majority fails to consider that the sexual contact was two separate, statutorily protected areas of the victim's body; that each act of sexual contact was separate and distinct from the other; that neither act of sexual contact was accidental or incidental to the other; and that a jury could reasonably find that either touch was accompanied by a desire to gain sexual gratification.
Moreover, the majority's review of the cold appellate record provides little or no guidance as to how it arrived at its conclusion or how the analysis is to be applied in future cases. How short is a period of "little or no" time? How many acts of sexual contact may a defendant commit against a victim in a given period of time and be guilty of but one offense? What evidence does the majority rely upon to conclude that acts of sexual contact occurred "quickly and virtually simultaneously?" What factors, other than the amount of time, has the Court looked to with regard to the element of sexual gratification? These questions are unanswered. The majority instead focuses entirely upon the short amount of time that elapsed during the offense and gives no apparent significance to the remaining factors under Phillips. Contrary to the majority's assertion, I am not misstating its holding; I simply find it to be erroneous.
Finally, although the majority surprisingly asserts that dual convictions under the facts of this case would be barred by double jeopardy principles, I once again note that other jurisdictions have held that multiple punishments are appropriate where multiple convictions are based on facts similar to the present case. See State v. Williams, 730 P.2d at 1199; State v. Suarez, 736 P.2d at 1042; State v. Rummer, 432 S.E.2d at 47. The majority's view, which focuses solely upon the passage of time, in effect revives the "single transaction" or "same criminal episode" analysis for applying double jeopardy principles. This analysis was rejected in Phillips.
Although it contends it is following "well-established" law, the majority cites no published Tennessee cases that are on point. Instead, it relies primarily upon an intermediate court opinion, State v. Pelayo, 881 S.W.2
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