Opinion
No. M2008-01685-CCA-R3-CD.
March 18, 2009, Session.
Filed June 30, 2009.
Direct Appeal from the Circuit Court for Grundy County; No. 4387; Thomas W. Graham, Judge.
Judgments of the Circuit Court Affirmed.
Robert Morgan (at guilty plea and sentencing hearings), Jasper, Tennessee, and Philip A. Condra (at sentencing hearing and on appeal), Jasper, Tennessee, for the Appellant, William Edwin Harris.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; J. Michael Taylor, District Attorney General; Steven Strain, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Jerry L. Smith and Thomas T. Woodall, JJ., joined.
Direct Appeal from the Chancery Court for Hickman County; No. 08-101C; Robbie Beal, Judge.
Judgment of the Chancery Court Affirmed and Remanded.
Will Myers, Nunnelly, TN, pro se.
Brian Casper, Nashville, TN, for Appellee.
Alan E. Highers, P.J., W.S., delivered the opinion of the court, in which David R. Farmer, J., and J. Steven Stafford, J., joined.
OPINION
The Defendant, William Edwin Harris, pled guilty to two counts of aggravated statutory rape, a Class D felony, with an agreed sentence of three years on each count, to be served consecutively, for an effective sentence of six years. The manner of service of the sentences was to be determined by the trial court following a sentencing hearing. The trial court ordered the Defendant to serve the first three-year sentence in the Tennessee Department of Correction ("TDOC"), with the last three-year sentence to be served on probation. The Defendant appeals, contending: (1) the trial court erroneously admitted several victim impact statements during his sentencing hearing; and (2) the trial court erred when it denied him full probation. After a thorough review of the record and relevant authorities, we conclude the victim impact statements were properly admitted, and the trial court properly sentenced the Defendant. Accordingly, we affirm the judgments of the trial court
I. Facts
This case arises from the Defendant's rape of a thirteen year old female, B.W., and a fifteen year old female, A.H. According to the Defendant's plea hearing transcript, the State's proof would have shown that B.W. and A.H. stayed overnight with the Defendant, a thirty-five year old family friend, on December 22, 2006, and that, during this time, the Defendant sexually penetrated each victim. The Defendant pled guilty to two counts of aggravated statutory rape and agreed to consecutive three-year sentences, with the trial court to determine the method of service of his sentence.
It is the policy of this Court to refer to child victims of sexual offenses by their initials.
Before the Defendant's sentencing hearing, the State filed a presentence report, which included A.H. and B.W.'s victim impact statements, as well as victim impact statements from A.H.'s parents and B.W.'s mother. The Defendant moved to strike these statements from the presentence report, and the trial court orally denied this motion during the sentencing hearing. The presentence report contained an investigation report, statements from the victims, statements from the victims' parents, and several statements from the Defendant.
The investigation report indicated that the Defendant, who was thirty-six years old at the time of sentencing, had no history of criminal conduct. After graduating from high school in 1990, the Defendant enlisted in the Tennessee National Guard and was deployed to Iraq for one year during the Desert Storm War. Following his deployment, the Defendant began to experience post-traumatic stress disorder ("PTSD"), for which he received counseling once every three months. The Defendant also suffered from irritable bowl syndrome ("IBS"), for which he took medication. The Department of Veterans Affairs declared the Defendant thirty percent disabled due to his PTSD and IBS. In 2002, the Defendant received an honorable discharge from the military.
The Defendant stated to the officer preparing the investigation report that he attended Chattanooga State Technical Community College at some point after high school, but the officer could not confirm this enrollment. The officer confirmed, however, that the Defendant attended Motlow State Community College from 2007 to 2008. The Defendant never obtained a college degree.
The Defendant did not report any employment between his 2002 honorable discharge and 2007. In 2007, the Defendant worked for six months as a front desk clerk at a hotel. In 2008, he worked in the shipping and receiving department of Tennessee Galvanizing for three weeks. At the time of the sentencing hearing, the Defendant worked as a general laborer at the residence of Jerene Fuller in Tracy City, Tennessee.
The Defendant had a minor son of whom he had full custody before he was charged with the victims' rapes. At the time the report was prepared, the Defendant's son was in the custody of his son's maternal grandmother, to whom the Defendant said he paid $250 a month in child support. Although the Defendant first stated his son's mother was not involved in their son's life, he later stated she visited their son on weekends.
The presentence report included victim impact statements from the victims and their parents. In her victim impact statement, A.H. said that after the rape she feared and distrusted all men, including her father, and she always felt as though someone watched her when she slept. A.H. stated that she suffered from nightmares about the rape and that she cried every time she thought of the rape. Also, A.H. developed a vaginal infection after the rape. At the time the report was prepared, A.H. was receiving counseling at school, and a case manager regularly visited her at her home. A.H. reported feeling depressed and having suicidal thoughts after the rape.
A.H.'s mother contributed a statement to the report wherein she described how her daughter became increasingly "withdrawn, hostile, and depressed" after the rape. A.H.'s mother alluded to the Defendant's having threatened to kill A.H. and her family if she reported the rape, saying that this threat caused A.H. to become suicidal and to fear leaving her home. A.H.'s mother believed the stress of her daughter's attack caused A.H.'s father to suffer two heart attacks. A.H.'s mother felt guilty for having introduced the Defendant, a fellow Motlow State student, to her daughter. She said she experienced increased depression and anxiety after her daughter was raped. A.H.'s mother said she feared the Defendant and requested the court incarcerate him so that she could have her "fun, loving, happy go lucky little girl back."
A.H.'s father's statement confirmed that, after the rape, A.H. feared leaving her house for school because she believed the Defendant would kill her while she waited for her bus. He reported the rape destroyed his relationship with his daughter, explaining that his daughter no longer confided in him and avoided physical contact with him. He confirmed the stress from his daughter's rape had caused a decline in his health.
According to B.W.'s victim impact statement, B.W. also became scared and distrustful of men after the rape. Also, B.W. feared she was pregnant and developed a vaginal infection after the rape. In addition to receiving counseling for the rapes, B.W. entered a mental health facility for approximately a month in January and February 2008 and, at the time of sentencing, was attending anger management classes. She stated the rape affected the way she felt about herself, causing her to have low self-esteem.
B.W.'s mother also contributed a statement to the presentence report. She described how the rape turned her previously "sweet and innocent little girl" into a "bitter and hateful person," who now frequently became angry, threw things, cursed, and threatened to kill herself. She also said that B.W. received Ds and Fs in school, whereas before being raped she was on the honor roll. She confirmed that the emotional trauma B.W. experienced from the rape caused B.W. to be admitted into a mental health facility. B.W.'s mother said the Defendant's threats caused her to fear for her and her daughter's safety, which had triggered several recent panic attacks.
The presentence report also included several statements from the Defendant about the rapes. He claimed the victims pressured him to engage in sexual activities, saying "these girls came on to me." The Defendant described in detail his sexual contact with the victims. During his plea hearing, the Defendant denied he threatened to harm either the victims or their families in the event the victims reported being raped.
At the sentencing hearing, Captain Tony Bean of the Grundy County Sheriff's Department testified that A.H., B.W., and their mothers came to the Sheriff's Department and reported that the Defendant had engaged in sexual intercourse with each of the victims. Captain Bean separated the victims and each victim wrote an account of the Defendant's behavior between December 22 and December 26, 2006. He said the Defendant voluntarily gave the statements within the presentence report over the course of three different interviews.
On cross-examination, Captain Bean explained his department interviewed the Defendant three times. First, he along with other officers visited the Defendant at his home, where the officers interviewed the Defendant and examined his house. After this initial interview, the Defendant came to the police station twice and submitted additional statements. Captain Bean testified that the Defendant appeared very nervous during their interviews but cooperated. On re-direct examination, the captain stated that officers neither added nor paraphrased the victims' statements and that, thus, their statements were in "their language only."
Amanda Fults, the Defendant's girlfriend at the time of the hearing, testified that she had known the Defendant since they were children and that she knew the Defendant had been charged with the victims' rape when she entered into a romantic relationship with him in April 2007. Fults and the Defendant lived together at the time of the hearing. She testified the Defendant had attended Motlow State Community College throughout their relationship, but he dropped out shortly before the hearing. Fults said that, since losing custody of his son, the Defendant visited his son every Sunday and that, despite the tension brought by the criminal charges, his son "[could not] wait to be with his dad." She said the Defendant consistently paid his mother-in-law $204 a month in child support.
Fults testified she received her income from operating a trucking business with her mother and from cleaning houses. Fults and the Defendant both worked for Jerene Keller, with Fults cleaning Keller's house and the Defendant maintaining Keller's property. Fults testified that, while she and the Defendant shared the household bills, the Defendant contributed financially more than she did. Fults had observed the effects of PTSD upon the Defendant, which consisted chiefly of mood swings. She said the Defendant took medication to treat his PTSD and regularly attended counseling sessions, though he was between counselors at the time of the hearing. Fults testified the Defendant was "one of the most helpful people [she had] ever seen," relating that recently the Defendant, having come upon a wreck, checked on the victims and directed traffic until police arrived. She also said the Defendant attended church regularly, whereas she did not.
On cross-examination, Fulks testified the Defendant told her the victims stayed with him with their parents' permission, but he did not tell her he had sexual contact with either victim. She acknowledged the impropriety of a thirty-five year old man having sexual contact with a thirteen-year-old girl, saying she did not condone such contact, but she expressed that the Defendant had treated her mother, her grandmother, and herself well. She explained that she and the Defendant lived in the trailer she used to share with her ex-husband and that her ex-husband continued to make the payments on the trailer pending a bankruptcy action stemming from their divorce. The Defendant paid the trailer's utilities bills, his $350 truck payment, and his $204 child support payment each month.
Fults indicated she was aware that the Defendant had several different employers within the year before the hearing, saying Tennessee Galvanizing laid off the Defendant, but the Defendant quit his job at American Eagle Inn. Fulks explained the Defendant's present employer, Keller, was a family friend. According to Fulks, Keller paid the Defendant ten dollars an hour to work at her residence and informed the Defendant he could have work "any time he wanted it." Fulks knew the Defendant worked fewer than forty hours a week for Keller and had no other employment.
Jerene Keller testified at the Defendant's sentencing hearing and described her employment relationship with the Defendant. She testified she was unable to work, explaining that polio had confined her to a wheelchair when she was five years old. Keller testified her income derived from independent assets, which she planned to use to open a canine rescue and training facility on her property. Keller enlisted the Defendant's aid in preparing for the facility, and she said the Defendant mowed her lawn, cleaned up the grounds, constructed platforms for the doghouses, installed plants, and cared for her dogs. She estimated the Defendant spent about five hours a day on her ten-acre property, for a total of twenty to twenty-five hours a week. Keller confirmed the Defendant had a good work ethic and described him as "very cooperative."
Sheila Nunley testified she had been friends with the Defendant since they worked at a retirement home together in 1992. She described the Defendant as "very helpful" to her family, saying that the Defendant frequently drove her and her mother to Nashville so that her mother could attend doctor appointments. Nunley said her son was injured in four-wheeler wreck in September 2005, and the Defendant frequently drove Nunley to and from Chattanooga, where her son was hospitalized. At some point, the Defendant's vehicle became inoperable, and the Defendant was unable to obtain financing for a new vehicle. Nunley testified that, in consideration of the Defendant's kindness, she "signed for a truck in [her] name" for the Defendant. She said the Defendant consistently paid the monthly $353.55 truck payment, and he had always been very helpful to her family and had never displayed any violence.
On cross-examination, Nunley said she was aware the Defendant had pled guilty to raping two minor victims but insisted this knowledge did not affect her opinion of the Defendant because he had "been good" to her family. Nunley said the Defendant had not discussed with her the details of his sexual contact with the victims.
The Defendant then gave an allocution in which he issued an apology and asked the trial court to grant him probation so that he could regain custody of his son:
First of all, Your Honor, Mr. District Attorney, and the Court, I want to say-and to the family-how sorry I am. I never meant to hurt anyone.
And [Y]our Honor, if the Court will grant mercy upon me to give me probation I'll do my best to turn everything around. I have responsibilities for my son. He's now in the custody of someone else and I want to try to work [on] getting him back. He needs me. I'm the only parent right now that's in his life. I have responsibilities with these ladies here and I am responsible. I do work and I do go through counseling and will seek more if it pleases the Court.
I have served my country and I have an honorable discharge and I ask the Court to show me mercy. Thank you.
At the conclusion of the hearing, the trial court sentenced the Defendant in Count I to three years for the aggravated statutory rape of B.W. and in Count V to three years for the aggravated statutory rape of A.H., with the sentences to be served consecutively, for a total effective sentence of six years. The trial court ordered the Defendant to serve the three-year sentence for Count I in the TDOC, with the last three-year sentence for Count V to be served on probation. It is from these judgments that the Defendant now appeals.
II. Analysis
The Defendant appeals his sentence, contending: (1) the trial court erroneously admitted several victim impact statements during his sentencing hearing; and (2) the trial court erred when it denied him full probation.
A. Admission of Victim Impact Statements
The Defendant objects to the admission of the impact statements from his victims, who did not testify, at his sentencing hearing. The Defendant argues that, without an opportunity to cross-examine the victims at the sentencing hearing, the introduction of their statements violated his United States and Tennessee State Constitutional rights to confront any witness who testifies against him. The State responds that, as a defendant's confrontation right does not extend to his sentencing hearing, the trial court properly admitted the statements because the statements were reliable, and the Defendant had an opportunity to rebut the statements.
The Sixth Amendment to the United States Constitution provides criminal defendants the right to confront adverse witnesses. The admission of testimonial hearsay at trial, without a showing of unavailability and an opportunity to cross-examine, generally violates a defendant's right to confront adverse witnesses. Crawford v. Washington, 541 U.S. 36, 50 (2004). A broad consensus exists that the confrontation clause of the U.S. Constitution does not apply, however, to the evidence adduced during sentencing. See, e.g., U.S. v. Fields, 483 F.3d 313, 326 (5th Cir. 2007); also see State v. Stephenson, 195 S.W.3d 574, 590 (Tenn. 2006) (citing Williams v. New York, 337 U.S. 241 (1949)). In fact, the Sixth Circuit Court of Appeals held that Crawford did not alter the previous rule that the confrontation clause does not apply to sentencing. United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005). Thus, the U.S. Constitution is no barrier to the admission of hearsay during the penalty phase of a state criminal trial. As such, if any protection from hearsay during sentencing exists, it must derive from Tennessee state law.
The Defendant contends the Tennessee Constitution protects against the admission of victim impact statements during a sentencing hearing. Indeed, the Tennessee Constitutional right to confront adverse witnesses is, in some aspects, broader than its federal counterpart. Tenn. Const. art. I, § 9; See State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992) (holding that the Tennessee Constitution requires actual "face to face" confrontation). Even Tennessee's comparably broad confrontation right, however, does not apply to a sentencing hearing. Stephenson, 195 S.W.3d at 590 (citing State v. Smith, 857 S.W.2d 1, 23 (Tenn. 1993)). Because the Tennessee Constitutional confrontation right applies only to the guilt phase of a trial, the only protection in Tennessee against the introduction of testimonial hearsay during sentencing derives from the Tennessee Code. Id.; see State v. Moss, 13 S.W.3d 374, 385 (Tenn.Crim.App. 1999).
Tennessee Code Annotated section 40-35-209(b) (2006) provides that reliable hearsay may be admitted at sentencing if the adverse party has an opportunity to rebut the hearsay. See Moss, 13 S.W.3d at 385. Applying section 209(b) to the admission of victim impact statements during sentencing, this Court has held that, where a trial court fails to explicitly find hearsay is reliable, an officer's inclusion of the hearsay within a sentencing report operates to verify the hearsay's reliability. State v. Bobby Garner, No. M1999-01427-CCA-R3-CD, 2000 WL 1681022, *3 (Tenn.Crim.App., at Nashville, Nov. 9, 2000), no Tenn. R. App. P. 11 application filed.
Further, we note that the Tennessee Code explicitly authorizes the inclusion of victim impact statements in a defendant's presentence report, which would be introduced during the defendant's sentencing hearing. T.C.A. § 40-38-205 (2006). This provision does not, as the Defendant suggests, violate either the United States or the Tennessee Constitution because, as discussed above, neither constitution restricts the introduction of hearsay during the penalty phase of a trial. Stone, 432 F.3d at 654; Stephenson, 195 S.W.3d at 590.
As the admission of hearsay during sentencing violates no constitutional protections, the victims' statements included in the Defendant's presentence report did not violate his constitutional rights to confront adverse witnesses. Fields, 483 F.3d at 326; Williams, 337 U.S. 241; Stephenson, 195 S.W.3d at 590. Further, the Tennessee Code explicitly authorizes the introduction of the victims' statements during the Defendant's sentencing hearing. T.C.A. § 40-35-205. Free from constitutional constraint and explicitly authorized by statute, the statements are subject only to the Tennessee Code's restriction on the particular form, hearsay, in which the State introduced them. Because the State entered the statements as hearsay, section 209(b) of the Tennessee Code requires they be reliable and the Defendant have an opportunity to rebut the statements. T.C.A. § 40-35-209(b); Moss, 13 S.W.3d at 385.
Another panel of this Court, however, declined to recognize a victim's mother's statement as "reliable hearsay" under section 209(b) based only on the statement's inclusion in the defendant's presentence report:
[T]his court has generally deemed the information included within presentence reports such as the defendant's prior criminal record, employment information, and the like as reliable hearsay, this designation would not extend to the underlying hearsay contained within the victim's mother's statement. Because the record does not establish the reliability of the underlying hearsay statement, we will not consider it.
State v. Donald Blevins, No. E2007-01588-CCA-R3-CD, 2008 WL 3906081, *5 (Tenn.Crim.App., at Knoxville, Aug. 26, 2008), no Tenn. R. App. P. 11 application filed. We note that the trial court in Blevins relied upon the victim's mother's hearsay statement included in the presentence report as evidence of the circumstances of the offense, and it used the hearsay statement as the sole basis for denying Blevins a probated sentence. Id. at *2.
Unlike in the Blevins case, we are satisfied in this case that the victims' impact statements are reliable. The statements address the impact of the crimes upon the lives of the minor victims. Based on the circumstances of the crimes to which the Defendant pled guilty, it is difficult to imagine that these child victims would not have been negatively affected by the crimes. The specifics of the sexual contact between the Defendant and the two children is set out in the statements of the Defendant and was noted a the hearing on the Defendant's guilty plea. Both of the victim impact statements are consistent with the statements given by the parents of the victims. Finally, a probation officer included them in the Defendant's presentence report, thereby verifying their source. See Garner, 2000 WL 1681022, *3.
Concerning the Defendant's opportunity to rebut the statements, the Defendant received notice of the victim impact statements almost eight months before his sentencing hearing, when the State filed the presentence report containing the statements. Obviating his knowledge of the statements' existence and content, the Defendant moved to strike the statements two days before his sentencing hearing. The court denied this motion, and, during the sentencing hearing, the Defendant presented testimony from his girlfriend, a long-time acquaintance, and his employer, that the Defendant was a non-violent, loyal, trust-worthy man, which directly contrasted the victim impact statements' portrayal of the Defendant. In our view, the Defendant not only had an opportunity to rebut the victim impact statements but also took advantage of this opportunity and presented evidence rebutting the statements. Having determined that the victims' impact statements complied with the Tennessee Code's restrictions on hearsay admitted during sentencing, we conclude the trial court properly admitted the statements during the hearing. The Defendant's constitutional rights were not violated. The Defendant is not entitled to relief on this issue.
B. Method of Service
The Defendant contends the trial court erred when it ordered him to serve three years of his sentence in the TDOC, arguing the trial court failed to consider the relevant sentencing principles and factors. The State concedes the trial court erred in applying deterrence as its sole reason to deny probation and that de novo review is necessary. The State maintains, however, that the circumstances of the victims' rapes, the Defendant's lack of potential for rehabilitation, and the need to avoid unduly depreciating the seriousness of statutory rape, nonetheless justify the Defendant's three-year term of imprisonment in Count I.
When a defendant appeals the manner of service of a sentence imposed by a trial court, this court conducts a de novo review of the record with a presumption of correctness as to the trial court's determination. T.C.A. § 40-35-401(d) (2005). However, this presumption of correctness arises only if the record affirmatively shows that the trial judge considered both the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The appealing party carries the burden of showing the sentence is improper. T.C.A. § 40-35-401(d), Sentencing Comm'n Cmts. Even if we prefer a different result, we may not disturb the sentence if the trial court followed the statutory sentencing procedure, made findings of fact adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App. 1991).
The Tennessee Supreme Court noted recently that, due to the 2005 sentencing amendments, a defendant is no longer presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A. § 40-35-102(6) (2006)). While a presumption no longer exists, an especially mitigated or standard offender convicted of a Class C, D, or E felony is still considered a "favorable candidate" for alternative sentencing in the absence of evidence to the contrary. Id. Generally, defendants classified as Range II or Range III offenders are not to be considered as favorable candidates for alternative sentencing. T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a trial court is "not bound" by the advisory sentencing guidelines; rather, it "shall consider" them. T.C.A. § 40-35-102(6) (emphasis added).
The legislature did carve out an exception to this rule where if "a defendant with at least three (3) felony convictions is otherwise eligible, such a defendant may still be considered a favorable candidate for any alternative sentencing that is within the jurisdiction of and deemed appropriate by a drug court." 2007 Tenn. Pub. Acts 512.
If a defendant seeks probation, then that defendant bears the burden of "establishing [his] suitability." T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, "even though probation must be automatically considered as a sentencing option for eligible defendants, the defendant is not automatically entitled to probation as a matter of law." T.C.A. § 40-35-303 (2006), Sentencing Comm'n Cmts.
When sentencing the defendant to confinement, a trial court should consider whether:
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103 (2006). Our Supreme Court has held, however, that a denial of full probation may be based on deterrence alone in only limited circumstances. Hooper v. State, 29 S.W.3d 1, 13 (Tenn. 2000). In order for deterrence to serve as the sole basis for a denial of full probation, the record must contain evidence that would lead a reasonable person to conclude not only that deterrence is needed in the community, jurisdiction, or state but also that the defendant's incarceration may rationally serve as a deterrent to others similarly situated and likely to commit similar crimes. Id.
In determining whether to impose confinement, the trial court may also consider the mitigating and enhancment factors set forth in T.C.A. sections 40-35-113 and 114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn.Crim.App. 1996). A trial court should also consider a defendant's potential or lack of potential for rehabilitation when determining whether an alternative sentence would be appropriate. T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.
In conducting de novo review of a sentencing determination, we must consider: (1) any evidence received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the offense, (5) any mitigating or enhancement factors, (6) statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses; and (7) any statements made by the defendant on his or her own behalf. See T.C.A. § 40-35-210 (2006); State v. Foster, No. W2007-02636-CCA-R3-CD, 2009 WL 275790, *4 (Tenn.Crim.App., at Jackson, Feb. 3, 2009), no Tenn. R. App. P. 11 application filed.
To meet the burden of establishing suitability for full probation, a defendant must demonstrate that full probation will serve the ends of justice and the best interests of both the public and the defendant. State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. 2001). The following criteria, while not controlling the discretion of the sentencing court, shall be accorded weight when deciding the defendant's suitability for full probation: (1) the nature and circumstances of the criminal conduct involved; (2) the defendant's potential or lack of potential for rehabilitation; (3) whether a sentence of full probation would unduly depreciate the seriousness of the offense; and (4) whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes. T.C.A. §§ 40-35-103(1)(B),-103(5),-210(b)(4) (2003); see also Blackhurst, 70 S.W.3d at 97.
In the case under submission, the Defendant is eligible for full probation because his sentence is ten years or less. T.C.A. § 40-35-303(a) (2006). Although full probation must be automatically considered by the trial court as a sentencing alternative whenever the defendant is eligible, "the defendant is not automatically entitled to probation as a matter of law." T.C.A. § 40-35-303(b), Sentencing Comm'n Cmts.
In the case under submission, at the conclusion of the Defendant's sentencing hearing, the trial court explained that it would deny full probation in order to deter statutory rape:
Well, this particular crime is more significant maybe than other crimes, because it deals with children who don't have . . . the same defenses and judgments and things and that's why it is a crime to begin with, but it is a significant offense, and meant so by the [S]tate [L]egislature when they made it a D felony. It's one of those offenses that if . . . punishment creates deterrence, which sometimes is questionable in some kinds of crimes, this might be the very kind of crime where punishment would have value, that is in confinement, because there is some ability of an adult to think about what they're doing before they get [them]selves into a situation of sexual activity. More so even in cases of assault and murder and everything else. There's no real reason why a person can't calculate their situation when they're with a possible sexual activity with children, so it seems to me like that in this case that subsection (b) does have application and should have some significance. In other words, I don't believe this is a case for straight probation.
. . . .
I really probably was leaning more towards just complete confinement . . . in this case. I don't really see much excuse here. I just see what amounts to allowing a person's sexual gratifications to be fulfilled in some way with small children. That's the only way you can read this.
After explaining its finding that deterrence justified denial of full probation, the trial court sentenced the Defendant to three years of incarceration followed by three years of probation. In response to defense counsel's objection to the court's reliance on deterrence, the trial court said:
I am very sure that my sentence of incarceration or confinement for one of two offenses, based on the need for deterrence of this particular crime, because if there's anything that needs deterrence it's adults taking advantage of children, but I think that's very strong and I don't think it's going to be set aside. . . .
Therefore, the trial court denied full probation citing only the deterrent effect of incarcerating the Defendant.
As explained above, a trial court may base a denial of probation on deterrence alone only if the record contains evidence a particular need for deterrence exists in the community and the defendant's incarceration may rationally serve as a deterrent to other similar defendants. Hooper, 29 S.W.3d at 13. As to whether a need to deter statutory rape exists in the Defendant's community, the trial court only emphasized that statutory rape was "more significant . . . than other crimes, because it deals with children who don't have . . . the same defenses and judgments." As to whether the Defendant's incarceration would rationally deter like offenders, the trial court asserted that a statutory rapist's unique opportunity to choose not to have sexual contact with a minor once the rapist becomes aware of the victim's age makes statutory rape ripe for deterrence. These assertions, unsupported by extrensic evidence, are insufficient to demonstrate a particular community need for deterrence of statutory rape and a rational relationship between the Defendant's incarceration and such deterrence, as Hooper requires. Id. We conclude the trial court erred when it sentenced the Defendant, and we will not presume its order denying probation to be correct. See T.C.A. § 40-35-401(d); Ashby, 823 S.W.2d at 169. We will review the Defendant's sentence de novo on the record.
In conducting our de novo review of his sentence, we note first that the Defendant is a Range I (standard) offender. Therefore, he is entitled to "favorable consideration" for an alternative sentence. See T.C.A. § 40-35-102(6). Furthermore, as discussed above, the record does not show a community need for deterrence and, because the Defendant has no prior criminal record, measures less restrictive than confinement have not heretofore been applied to the Defendant. See T.C.A. § 40-35-103. Therefore, none of the considerations set forth in T.C.A. section 40-35-103 preclude imposition of some form of alternative sentencing for the Defendant's six-year sentence. See T.C.A. § 40-35-103(1)-(3). We must consider whether full probation, however, is appropriate for the Defendant and the public. Blackhurst, 70 S.W.3d at 97.
Several aspects of the case under submission suggest that full probation of the Defendant's sentence would serve neither the ends of justice nor the best interests of the public and the Defendant. See Id. First, according to the Defendant's own statements, the Defendant had sexual contact with the victims on two distinct occasions: December 22, 2006, and December 26, 2006. Also, all parties agreed that the Defendant raped the victims after the victims were placed in the Defendant's care by their respective mothers, whom the Defendant knew from school. As such, in our view, the Defendant used the position of trust he enjoyed with the victims' mothers to exploit the victims. This aspect of the Defendant's conduct suggests total probation is inappropriate. See T.C.A. § 40-35-210(b)(4); see also Blackhurst, 70 S.W.3d at 97. Moreover, the record is replete with references to the Defendant's threats of violence to the victims and their families in the event they reported his conduct. The Defendant denied these threats. In our de novo review of the record, the Defendant's threats further cast doubt upon the Defendant's suitability for probation.
Further, the Defendant's lack of remorse for the victims' rapes strikes this Court as indicative of the Defendant's lack of potential for rehabilitation. See T.C.A. § 40-35-103(5). Before the Defendant was charged with the victims' rapes, he gave several statements to police about his sexual contact with the victims. In these statements, the Defendant assigned blame for the sexual contact on the victims, alleging, "These girls came on to me, not me coming on to them." Because the fact that the Defendant, who was thirty-five years old, had sex with the victims, who were thirteen and fifteen years old, is the only relevant focus in a statutory rape case, the Defendant's pre-hearing statements show his failure to recognize that his actions were wrongful. The cursory apology he issued during allocution does not cure this failure. Having failed to demonstrate his amenability for rehabilitation, the Defendant further fails to carry his burden of showing his suitability for full probation. T.C.A. § 40-35-103(5).
Because the record shows the Defendant abused a position of trust, made threats to the victims, and insisted on the victims' culpability for the sexual contact, the Defendant has failed to show his suitability for full probation. We conclude the Defendant's confinement is necessary to serve the ends of justice and the best interests of the Defendant and the public. See Blackhurst, 70 S.W.3d at 97. The offense of aggravated statutory rape carries a range of punishment of two to four years of incarceration. See T.C.A. § 39-13-506(c), (d)(3) (2006); T.C.A. § 40-35-112(a)(4) (2006). The Defendant pled guilty to two counts of statutory aggravated rape and agreed to a six-year sentence. In our view, given the nature and characteristics of the victims' rapes as well as the Defendant's statements demonstrating his lack of remorse, three-years of incarceration followed by three years of probation is an appropriate sentence for the Defendant. See T.C.A. § 40-35-210; Foster, 2009 WL 275790, *4. Accordingly, we affirm the judgments of the trial court imposing a three-year sentence of confinement in the TDOC in Count I, followed by a three-year sentence of probation in Count V.
III. Conclusion
After conducting a thorough review of the record and relevant authorities, we conclude the trial court properly admitted the victims' impact statements. Although we conclude the trial court erred when it sentenced the Defendant, following our de novo review we conclude that the sentences ordered by the trial court are appropriate. Accordingly, we affirm the judgments of the trial court.
OPINION
In this appeal, we are asked to determine whether the trial court erred in dismissing Mr. Myers' suit against Hidden Valley, finding that Hidden Valley had substantially complied with the requirements of Tennessee Code Annotated section 48-57-201. We affirm the decision of the trial court and award attorney fees to Hidden Valley.
I. FACTS PROCEDURAL HISTORY
Will Myers ("Appellant") is a homeowner in Hidden Valley Lakes Subdivision in Hickman County, Tennessee. On April 9, 2008, Mr. Myers filed a "Petition for Enforcement of [Tennessee Code Annotated section 48-57-201]" in the Hickman County Chancery Court against Hidden Valley Lakes Trustees, Inc.; Mike Gilliam, President ("Hidden Valley"). Mr. Myers claimed that Hidden Valley, a nonprofit corporation, failed to produce for inspection, the voting membership list for the 2008 Hidden Valley Lakes annual meeting, as required by Tennessee Code Annotated section 48-57-201.
This is the second lawsuit between these parties. In 2006, Mr. Myers brought a petition for writ of mandamus requesting that the trial court order Hidden Valley to conduct business in accordance with Tennessee law and Hidden Valley's Charter. Mr. Myers raised numerous claims; however, as in this case, he claimed that Hidden Valley failed to provide him with a list of members as required by Tennessee Code Annotated section 48-57-201. The trial court granted Hidden Valley summary judgment concerning Appellant's claim as to the membership list, and this Court affirmed, finding that Hidden Valley provided to Appellant such list as required by Tennessee Code Annotated section 48-57-201. Myers v. Hidden Valley Lakes Trustees, Inc. , No. M2007-01650-COA-R3-CV, 2008 WL 3068996, at *1-3 (Tenn.Ct.App. July 31, 2008).
Hidden Valley filed a motion to dismiss, pursuant to Tennessee Rule of Civil Procedure 12.02, claiming that Mr. Myers had failed to state a claim upon which relief could be granted. Specifically, Hidden Valley claimed that Mr. Myers' action was premature, because a final voting list could not be generated until after May 15th of each year, as voting eligibility was determined by a member's payment of an annual assessment, which was not due until May 15th. Hidden Valley further claimed that "Mr. Myers was provided with a list of members for inspection by Hidden Valley, on or about April 15, 2008, showing the then current status of the members (whether they had paid their annual assessment) as of that date." Finally, Hidden Valley contended that "the Complaint will be moot after May 15, 2008[,] because Mr. Myers will have had the opportunity to inspect the final list pursuant to [Tennessee Code Annotated section] 48-57-201(b)."
Mr. Myers filed a Motion for Temporary Restraining Order on May 13, 2008, seeking to enjoin Hidden Valley from conducting its 2008 property owners' meeting until the suit was decided. Mr. Myers also filed an affidavit stating that despite his written request of "February 5, 200[8]," he had not received a "proper" membership list for inspection and copying as of May 13, 2008.
On May 20, 2008, Mr. Myers filed a Motion for More Definite Statement, asking the court to require Hidden Valley to provide a more definite statement concerning its May 9, 2008 Motion to Dismiss. Specifically, Mr. Myers contended that Hidden Valley's memorandum of law in support of its motion referenced attached affidavits, which were not attached, and also that the certificate of service did not correctly list his address. The trial court entered an Order requiring Hidden Valley to file the affidavit of Martha Page, as referenced in its memorandum of law, within ten days.
The Memorandum of Law in Support of Respondent's Rule 12.02 Motion to Dismiss has not been included in the Record before us.
On May 22, 2008, Hidden Valley refiled its Motion to Dismiss correcting Mr. Myers' address on the certificate of service. However, it is unclear from the Record whether the affidavit of Martha Page was filed.
On May 20, 2008, Hidden Valley filed the Affidavit of Sheila Adkerson, as a Trustee and Secretary of Hidden Valley's Trustee Board. Attached to the affidavit was a "complete and up-to-date membership list for 2008" as of May 19, 2008. Mr. Myers does not dispute receiving the May 19, 2008 list.
Mr. Myers, on June 9, 2008, filed a document styled "Petitioner's Opposition to Respondent's Rule 12.02 Motion to Dismiss with Affidavit." As an exhibit to this document, Mr. Myers attached an "Analysis of Respondent's Report of Paid Property Owners Consisting of Pages 1 of 2266 Thru 16 of 2266 Inclusive" ("Analysis"). Also on June 9, 2008, Mr. Myers filed a Motion for Judgment on Pleadings with Accompanying Affidavit, again claiming that to date, Hidden Valley had failed to produce a "proper" membership list.
In his document styled "Petitioner's Opposition to Respondent's Rule 12.02 Motion to Dismiss with Affidavit' filed June 9, 2008, Mr. Myers references Sheila Adkerson's Affidavit and attached membership list. Although Mr. Myers states that the membership list is paginated "1 of 2266 Thru 16 of 2266 Inclusive," we do not find a list with such pagination in the Record, and therefore, presume Mr. Myers refers to the June 9, 2008 list, paginated "1 of 1150" to "34 of 1150."
On June 20, 2008, the chancery court entered an Order Granting Motion to Dismiss. The order stated that on June 17, 2008, the parties appeared before the court. "Based on the pleadings and the evidence provided to the Court and the statements of pro se Petitioner and counsel for the Respondent," the Court granted Hidden Valley's motion to dismiss. The court found that "the membership list was provided to the Plaintiff and that the list was in substantial compliance with the law."
Mr. Myers filed a Notice of Appeal to this Court on July 17, 2008. He was granted leave to proceed on appeal as a poor person by the chancery court. Mr. Myers filed a Notice of "No Transcript" on July 29, 2008.
On November 20, 2008, Hidden Valley filed, with this Court, a Motion and Memorandum in Support of Motion for Consideration of Post-Judgment Facts, asking this Court to consider a June 24, 2008 cover letter, a June 18, 2008 membership list, and a second affidavit of Sheila Adkerson with an attached current membership list. Hidden Valley claims that these post-judgment facts demonstrate the mootness of Mr. Myers' appeal. Mr. Myers opposed Hidden Valley's motion. On December 17, 2008, this Court entered an Order reserving judgment pending oral argument.
II. ISSUES PRESENTED
Appellant has timely filed his notice of appeal and presents the following issues for our review, restated as follows:
1. Whether the trial court erred in dismissing Mr. Myers' claim, finding that the membership list provided by Hidden Valley substantially complied with the law; and
2. Whether Mr. Myers was denied substantive due process pursuant to article I, section 17 of the Tennessee Constitution.
Additionally, Appellee presents the following issue for review, restated as follows:
3. Whether Mr. Myers' appeal is moot and frivolous, such that Hidden Valley should be awarded its costs and attorney fees incurred on appeal.
For the following reasons, we affirm the decision of the chancery court. We award attorney fees to Hidden Valley.
III. STANDARD OF REVIEW
Although Hidden Valley filed a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief could be granted, we find that the trial court converted this motion into a motion for summary judgment by considering matters outside of the pleadings. See Patton v. Estate of Upchurch , 242 S.W.3d 781, 786 (Tenn.Ct.App. 2007). In Teter v. Republic Parking System, Inc., 181 S.W.3d 330, 337 (Tenn. 2005), our Supreme Court restated the applicable standard of review when appellate courts review a motion for summary judgment. The court stated:
We note that Appellant did not file a transcript in this case. The trial court's Order Granting Motion to Dismiss, entered June 20, 2008, states only that it is "[b]ased upon the pleadings and the evidence provided to the Court and the statements of pro se Petitioner and counsel for the Respondent." However, because the trial court found that "the membership list was provided to the Plaintiff and that the list was in substantial compliance with the law[,]" we find that it must have considered the Affidavit of Sheila Adkerson and the attached May 19, 2008 List, which were filed with the court on May 20, 2008. Additionally, Hidden Valley's brief states that the trial court reviewed "[t]he Membership List[.]"
The purpose of summary judgment is to resolve controlling issues of law rather than to find facts or resolve disputed issues of fact. Bellamy v. Fed. Express Corp., 749 S.W.2d 31, 33 (Tenn. 1988). Summary judgment is appropriate only when the moving party demonstrates that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In reviewing the record, the appellate court must view all the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Staples v. CBL Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). And because this inquiry involves a question of law only, the standard of review is de novo with no presumption of correctness attached to the trial court's conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
Id. In this case, Hidden Valley bears the burden of proving that no genuine and material issues of fact exist, such that it is entitled to a judgment as a matter of law. See Byrd, 847 S.W.2d at 211.
IV. DISCUSSION A. Substantial Compliance
On appeal, Mr. Myers asserts that the chancery court erred in dismissing his claim, finding that the membership list submitted by Hidden Valley substantially complied with the law. Mr. Myers claims that the membership list provided by Hidden Valley did not substantially comply with Tennessee Code Annotated section 48-57-201, which, concerning the membership lists of nonprofit corporations, provides the following:
(a) After fixing a record date for a notice of a meeting, a corporation shall prepare an alphabetical list of the names of all its members who are entitled to notice of a meeting. The list must show the address and number of votes each member is entitled to vote at the meeting. The corporation shall prepare on a current basis through the time of the membership meeting a list of members, if any, who are entitled to vote at the meeting, but not entitled to notice of the meeting. The list shall be prepared on the same basis and be part of the list of members.
(b) The list of members must be available for inspection by any member for the purposes of communication with other members concerning the meeting, beginning two (2) business days after notice is given of the meeting for which the list was prepared and continuing through the meeting, at the corporation's principal office or at a reasonable place identified in the meeting notice in the city where the meeting will be held. A member, a member's agent, or attorney is entitled on written demand to inspect and, subject to the limitations of §§ 48-66-102(c) and 48-66-105, to copy the list, at a reasonable time and at the member's expense, during the period it is available for inspection.
(c) The corporation shall make the list of members available at the meeting, and any member, a member's agent, or attorney is entitled to inspect the list at any time during the meeting or any adjournment.
(d) If the corporation refuses to allow a member, a member's agent, or attorney to inspect the list of members before or at the meeting (or copy the list as permitted by subsection (b)), a court of record having equity jurisdiction in the county where a corporation's principal office (or if non in this state, its registered office) is located, on application of the member, may summarily order the inspection or copying at the corporation's expense and may postpone the meeting for which the list was prepared until the inspection or copying is complete.
(e) Refusal or failure to make available the members' list does not affect the validity of action taken at the meeting.
Tenn. Code Ann. § 48-57-201 (2002). Essentially, the statute requires the preparation of an alphabetical list of the names, addresses, and number of votes of the nonprofit corporation's members entitled to notice of, or to vote at, the non-profit corporation's meeting.
Mr. Myers alleges that the "membership list" contained "gross errors and omissions." The alleged errors are as follows:
a. A blatant error is exemplified in that the total [number] of lots owned is not 2424 lots as stated. The total [number] of lots owned in the subdivision 3,871. A gross error of 1447 lots.
b. A blatant error is exemplified in that the 1876 lots paid total column calculated at $125.00 per lot would yield in excess of $234,000.00 while Respondent's report lists total payments at less than $160,000.00 A gross error of about $74,000.00
c. A blatant error is exemplified in that the number of lots paid does not add up to the 1876 lots total listed. It does add up to 1073 lots. A gross error of 803 lots.
. . . .
d. A blatant error is exemplified in that the 2008 payments column does not add up to $157,351.18. It does add up to $154,311.13. A gross error of $3[,]000.00
e. A blatant error is exemplified in that names are not alphabetical[ly] indicated in numerous non-alphabetical entries.
f. The list is not a computer generate[d] list with auto sums, but is only prepared in a format that appears to be a spreadsheet.
Mr. Myers does not identify the date of the membership list which he alleges contains the above-mentioned errors. However, he states that such errors are referenced in his Analysis, which is titled "Analysis of Respondent's Report of Paid Property Owners Consisting of Pages 1 of 2266 Thru 2266 Inclusive." As we noted above, the Record does not contain a membership list with the pagination Mr. Myers cites. The only membership list included in the Record that was allegedly available to Mr. Myers pre-judgment, is paginated "1 of 1150" through "34 of 1150." Such list was attached to the Affidavit of Sheila Adkerson, which states that it was prepared on May 19, 2008 ("May 19, 2008 List"). Even assuming that Mr. Myers intended to reference the May 19, 2008 List, we cannot determine whether it contains the errors he alleges, as the May 19, 2008 List contained in the Record before us is copied in such a way that the columns titled "Map-Grp-Par-BK-Lot-Road," "Lots Owned," "# Lot[s] Pd," and "2008 Payments" have been "cut off" and cannot be read.
Two additional membership lists are included in the post-judgment facts urged by Hidden Valley. One list was allegedly prepared on June 18, 2008, and the other states that it is "current" as of November 3, 2008.
"It is the duty of the appellant to prepare a fair, accurate, and complete record on appeal." State v. Climer , No. M2007-01670-CCA-R3-CD, 2008 WL 1875155, at *2 (Tenn.Crim.App. 2008) (citing Tenn. R. App. P. 24(b)). "When necessary parts of the record are not included, we must presume that the trial court's ruling is correct." Id. (citing State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App. 1991)). Because relevant portions of the membership list have been omitted, we cannot determine whether it contains errors (a) through (d) alleged by Mr. Myers. Thus, the only alleged errors raised by Mr. Myers that can be reviewed are errors (e) and (f)-alphabetization of the list and the lack of "auto sums."
"`Substantial compliance' has been defined as ` actual compliance in respect to the substance essential to every reasonable objective of the statute.'" Morrow v. Bobbitt , 943 S.W.2d 384, 389 (Tenn.Ct.App. 1996) (quoting Stasher v. Harger-Haldeman, 372 P.2d 649, 652 (Cal. 1962)). "`[T]here has been substantial compliance . . . when there has been a partial compliance and when it is reasonable to conclude that the objective sought by the [statute] has been fully attained thereby, as a practical matter, as though there has been a full and literal compliance.'" Id. (quoting Opinion of the Justices, 275 A.2d 558, 562 (Del. 1971)). Therefore, "`when there is such actual compliance as to all matters of substance then mere technical imperfections of form or variations in mode of expression . . . or such minima as obvious typographical errors, should not be given the stature of non-compliance[.]" Id. (quoting Stasher, 372 P.2d at 652).
Tennessee Code Annotated section 48-57-201 requires a nonprofit corporation to prepare a list of its members entitled either to notice of, or to vote at, its meeting. The statute states that such list shall be alphabetized by name. Tenn. Code Ann. § 48-57-201. However, we find no requirement that the list be a "computer generate[d] list with auto sums" as Mr. Myers suggests. In addition, our review of the May 19, 2008 List reveals that of the approximate 1,723 names listed, only approximately 66 are not in alphabetical order. We find that this "technical imperfection," see Morrow, 943 S.W.2d at 389 (quoting Stasher, 22 Cal. Rptr. at 660, 372 P.2d at 652), does not thwart the statute's purpose, and therefore, find that Hidden Valley substantially complied with the statute's alphabetization requirement. Next, we must determine whether such compliance warranted dismissal of the case.
Hidden Valley bears the burden of proving that "`there are no disputed, material facts creating a genuine issue for trial . . . and that [it] is entitled to judgment as a matter of law.'" Hannan v. Alltel Publ'g Co. , 270 S.W.3d 1, 5 (Tenn. 2008) (quoting Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). Hidden Valley "must either affirmatively negate an essential element of the nonmoving party's claim or establish an affirmative defense." Id. (citing Byrd, 847 S.W.2d at 215 n. 5). Once Hidden Valley makes a properly supported motion, the burden of production shifts to Mr. Myers to prove the existence of a genuine issue of material fact. Id. (citing Byrd, 847 S.W.2d at 215). Mr. Myers may prove such factual disputes warranting a trial
(1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.08 requesting additional time for discovery.
Ferguson v. Nationwide Prop. Cas. Ins. Co. , 218 S.W.3d 42, 48 (Tenn.Ct.App. 2006) (citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd, 847 S.W.2d at 215 n. 6). If Mr. Myers fails to carry his burden, summary judgment should be granted in favor of Hidden Valley, as the "`failure of proof concerning an essential element of a cause of action necessarily renders all other facts immaterial.'" Id. (quoting Alexander v. Memphis Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert Milom, 911 S.W.2d 727, 729 (Tenn.Ct.App. 1995)).
Hidden Valley points out that Tennessee Code Annotated section 48-57-201 does not require the membership list to contain financial information, nor does it require the list be "computer generate[d]" with "auto sums[.]" Therefore, Hidden Valley's only potential non-compliance lies in its mis-alphabetization of 66 out of the over 1700 names listed. We find that Hidden Valley's alphabetization mistake does not render the list "non-compliant," and that Hidden Valley has successfully negated an essential element of Mr. Myers' complaint-that Hidden Valley failed to comply with the statutory requirements. See Myers , 2008 WL 3068996, at *3. Mr. Myers has failed to prove the existence of a genuine issue of material fact; therefore, summary judgment as to his claim was appropriate.
B. Due Process
Mr. Myers attempts to argue that Hidden Valley's alleged failure to provide a membership list in compliance with Tennessee Code Annotated section 48-57-201 violated his right to due process of law under the Tennessee Constitution. This issue was not raised before the trial court, and thus, is waived on appeal. See Simpson v. Frontier Cmty. Credit Union , 810 S.W.2d 147, 153 (Tenn. 1991).
Furthermore, taking into account that Mr. Myers is a pro se litigant, we find that Mr. Myers has failed to present a sufficient argument concerning this issue. Tennessee Rule of Civil Procedure 27(a) provides that an appellant's brief
shall contain . . . [a]n argument, which may be preceded by a summary of argument, setting forth the contention of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record . . . relied on[.]
"The failure of a party to cite to any authority or to construct an argument regarding his position on appeal constitutes waiver of that issue." Boggs Kurlander Steele, LLC v. Horizon Commc'ns , No. M2006-00018-COA-R3-CV, 2008 WL 490628, at *4 (Tenn.Ct.App. Feb. 21, 2008) (citing Newcomb v. Kohler Co., 222 S.W.3d 368, 402 (Tenn.Ct.App. 2006); see alsoRector v. Halliburton, No. M1999-02802-COA-R3-CV, 2003 WL 535924, at *9 (Tenn.Ct.App. Feb. 26, 2003) (per curiam); Rhea County v. Town of Graysville, No. E2001-02313-COA-R3-CV, 2002 WL 1723681, at *7 (Tenn.Ct.App. July 25, 2002)).
On appeal, Mr. Myers' brief states only that
Mr. Myers is entitled to a proper membership list pursuant to [Tennessee Code Annotated section] 48-57-201[.] Since a proper membership list has not been received[,] Mr. Myers has not had the opportunity to access the content of the proper membership list and has not received due process of law pursuant [to article I, section 17, of the Tennessee Constitution[.]
These statements do not provide the "argument" and "citation to the authorities" required by Tennessee Rule of Appellate Procedure 27(a). Thus, we find, under Tennessee Rule of Appellate Procedure 27(a), that Mr. Myers has waived his right to have the issue of due process considered by this Court.
C. Attorney Fees on Appeal
Hidden Valley seeks an award of attorney fees on appeal, contending that Mr. Myers' appeal is frivolous. Tennessee Code Annotated section 27-1-122 provides:
When it appears to any reviewing court that the appeal from any court of record was frivolous or taken solely for delay, the court may, either upon motion of a party or of its own motion, award just damages against the appellant, which may include but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal.
The decision to award damages for the filing of a frivolous appeal rests solely in the discretion of this Court. Whalum v. Marshall , 224 S.W.3d 169, 180-81 (Tenn.Ct.App. 2006) (citing Banks v. St. Francis Hosp. , 697 S.W.2d 340, 343 (Tenn. 1985)). "Successful litigants should not have to bear the expense and vexation of groundless appeals." Id. (quoting Davis v. Gulf Ins. Group , 546 S.W.2d 583, 586 (Tenn. 1977)). An appeal is frivolous when it has "no reasonable chance of success," or is "so utterly devoid of merit as to justify the imposition of a penalty." Id. (citing Combustion Eng'g, Inc. v. Kennedy , 562 S.W.2d 202, 205 (Tenn. 1978); Jackson v. Aldridge , 6 S.W.3d 501, 504 (Tenn.Ct.App. 1999)). We exercise our discretion under this statute sparingly so as not to discourage legitimate appeals. Id.
In determining whether this appeal is frivolous, we bear in mind that Mr. Myers is proceeding as a pro se litigant. Therefore, we must "`take into account that many pro se litigants have no legal training and little familiarity with the judicial system.'" Conner v. Magill , No. W2003-01988-COA-R3-CV, 2004 WL 1869957, at *4 (Tenn.Ct.App. Aug. 18, 2004) perm. app. denied (Jan. 25, 2005), (quoting Young v. Barrow, 130 S.W.3d 59, 62 (Tenn.Ct.App. 2003)). However, we must also ensure that we are not unfair to the opposing party. Id. (citing Young, 130 S.W.3d at 62). Because Mr. Myers appeal had "no reasonable chance of success," see Whalum, 224 S.W.3d at 180-81, we grant Hidden Valley's request for attorney fees based on a frivolous appeal.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Because our holding in this case does not depend on the proffered post-judgment facts, we deny Hidden Valley's motion to consider such as moot. Further, we find that Hidden Valley is entitled to recover its reasonable attorney fees incurred on appeal, and remand for determination of an appropriate fee. Costs of this appeal are taxed to Appellant, Will Myers, for which execution may issue if necessary.