Opinion
No. M2002-01879-CCA-R3-CD.
Filed August 1, 2003.
Direct Appeal from the Criminal Court for Davidson County; No. 2001-D-1990; J. Randall Wyatt, Jr., Judge.
Affirmed.
J. Robin McKinney, Jr. (at trial), Jefre S. Goldtrap (on appeal), and Dwight E. Scott (on appeal), Nashville, Tennessee, for the appellant, William L. Vaughn.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bernard F. McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee.
Joe G. Riley, J., delivered the opinion of the court, in which Thomas T. Woodall and Alan E. Glenn, JJ., joined.
OPINION
The defendant pled nolo contendere to two counts of aggravated sexual battery. Following a sentencing hearing, the trial court imposed two consecutive ten-year sentences. In this appeal, the defendant argues his sentence is excessive. We affirm the judgments of the trial court.
On September 7, 2001, ten-year-old A.V. and her sister spent the night with the defendant's stepchildren. The proof indicated A.V.'s family lived next door, and A.V. and the defendant's ten-year-old stepdaughter, L.O., were best friends. As the children slept on the floor, the defendant awakened A.V. when he rubbed his penis on her face. The next morning, A.V. recounted the incident to L.O. and the defendant's wife, L.O.'s mother. When the police questioned the defendant, he admitted that he unfastened A.V.'s pants, touched her underwear, and rubbed his penis on her face. Further, he confessed to performing similar acts upon L.O. "probably at least twenty times." He stated he had touched L.O.'s vagina through her underwear, rubbed his penis on her face, and placed his penis in her hand while she was asleep. The defendant told the police the abuse began when the family was living in Texas, where he also attempted intercourse with L.O. According to his recorded statement, "three or four" of the incidents occurred in Tennessee.
It is the policy of this court to refer to juvenile victims of sexual offenses by their initials.
The defendant was indicted on one count of aggravated sexual battery against A.V. and on eight counts of aggravated sexual battery against L.O. The defendant entered pleas of nolo contendere to one count of aggravated sexual battery against A.V. and one count of aggravated sexual battery against L.O. pursuant to a plea agreement in which the parties agreed his effective sentence would not exceed twenty years.
Following a sentencing hearing, the trial court found two enhancement factors applied to each sentence: enhancement factor (8), the offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement; and enhancement factor (16), the defendant abused a position of private trust. See Tenn. Code Ann. § 40-35-114(8), (16) (Supp. 2002). The trial court began its sentencing consideration at the midpoint of the sentencing range, which was ten years for each count of aggravated sexual battery, a Class B felony. See id. §§ 39-13-504(b), 40-35-112(a)(2). It then imposed ten-year sentences for each conviction and ordered consecutive sentencing pursuant to Tennessee Code Annotated section 40-35-115(b)(5).
I. STANDARD OF REVIEW
The defendant contends the trial court erred in imposing the maximum sentence allowed under the plea agreement. This court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. Id. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances.State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tennessee Code Annotated section 40-35-210(c) provides that the presumptive sentence for a Class B felony shall be the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn.Crim.App. 1991). Thus, the presumptive sentence for each offense was eight years. See Tenn. Code Ann. § 40-35-112(a)(2). However, if such factors do exist, a trial court should enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Id. § 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138 (Tenn.Crim.App. 2002); see Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments. Nevertheless, should there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).
II. WAIVER
We first note that the defendant's plea agreement specified "a cap of the sentence to be imposed is 20 [years]." Further, the defendant waived his right to appeal. Thus, we question whether this matter is properly before this court since the defendant's effective sentence did not exceed twenty years. However, it appears the defendant did not intend to waive his right to appeal the sentence. See State v. Carter, 986 S.W.2d 596, 597 (Tenn.Crim.App. 1998) (suggesting a modification of the plea agreement form where the defendant does not intend to waive appeal of the sentence imposed by the trial court). The state has not raised waiver as an issue. Accordingly, we elect to address the appeal on its merits.
III. LENGTH OF THE SENTENCES
The state concedes the trial court misapplied enhancement factor (8), the offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement, since this factor is also an element of the offense of aggravated sexual battery. See State v. Kissinger, 922 S.W.2d 482, 489-90 (Tenn. 1996); Tenn. Code Ann. §§ 39-13-504(a)(4), -501(6). Further, the state concedes the trial court erred in concluding that it must begin its sentencing consideration at the midpoint of the range for Class B felonies. The presumptive sentence for a Class B felony is the minimum sentence in the range, which is eight years for the offense of aggravated sexual battery, if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). Due to these errors, our review of the defendant's sentence is de novo with no presumption that the sentence imposed by the trial court is correct. See Poole, 945 S.W.2d at 96.
We observe that the defendant argued to the trial court that ten-year sentences would be appropriate, although he contended they should run concurrently. Further, wrongful application of one or more enhancement factors by the trial court does not necessarily lead to a reduction in the length of the sentence. State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000). This determination requires that we review the evidence supporting any remaining enhancement factors, as well as the evidence supporting any mitigating factors. Imfeld, 70 S.W.3d at 707.
The trial court properly found the defendant abused a position of private trust and applied enhancement factor (16). See Tenn. Code Ann. § 40-35-114(16) (Supp. 2002). The proof clearly established the defendant was L.O.'s stepfather, and, at the time of the offense against A.V., he and his wife were entrusted with the care of A.V. while she spent the night in their home.
The trial court did not apply enhancement factor (2), although the defendant has a lengthy history of criminal behavior. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002). The proof at sentencing established that the defendant had prior criminal convictions for driving under the influence and possession of marijuana and had engaged in numerous other offenses against victim L.O. Further, the thirty-nine-year-old defendant's presentence report reflects the following:
He reported that he began using marijuana at age eleven (11) and that he used the drug every day and stopped around 1997 when he got married and wanted to get a "real job." He stated that he first used acid at age thirteen (13) and that he used the drug several times per week and stopped around 1997. He reported also using speed, downers, uppers, angel dust, cocaine, crack, huffing paint and glue, and anything else that was available whenever he could or wanted to until 1997.
Although the other offenses against victim L.O. and the drug usage did not result in corresponding convictions, it may still be considered criminal behavior under enhancement factor (2). See State v. Carico, 968 S.W.2d 280, 288 (Tenn. 1998).
The defendant urges the application of three mitigating factors: factor (1), "[t]he defendant's criminal conduct neither caused nor threatened serious bodily injury"; factor (10), "[t]he defendant assisted the authorities in locating or recovering any property or person involved in the crime"; and factor (13), "[a]ny other factor consistent with sentencing purposes." See Tenn. Code Ann. § 40-35-113(1), (10), (13). He asserts that his sentences should be mitigated based on the state's dismissal of some of the indicted charges pursuant to the plea agreement, the lack of harm to the victims, the defendant's remorse, and his acceptance of responsibility. We conclude that even if these factors are applicable, they are entitled to little weight compared to the enhancement factors.
Accordingly, we conclude in our de novo review that despite the trial court's errors, the mid-range ten-year sentence for each offense is clearly justified in view of the strength of enhancement factors (2) and (16). See id. § 40-35-114(2), (16) (Supp. 2002).
IV. CONSECUTIVE SENTENCING
The defendant maintains the trial court erred in imposing consecutive sentencing pursuant to Tennessee Code Annotated section 40-35-115(b)(5), which provides that the court may impose consecutive sentencing if it finds by a preponderance of the evidence that
[t]he defendant is convicted of two . . . or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of the defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims.
The defendant argues the trial court misapplied this factor because, although he had a relationship with L.O. as her stepfather, he shared no significant relationship with A.V.; the offenses involved only inappropriate touching; and there was no proof establishing residual physical or mental harm to the victims.
In regard to the defendant's relationship to the victims, the proof established that the defendant married L.O.'s mother in June 1997, and he had lived with L.O. and her sisters as their stepfather since that time. It is also clear from the proof that the defendant came in contact with the second victim, A.V., as a result of his role as L.O.'s stepfather. Both L.O.'s mother and A.V.'s family considered the defendant to be a caretaker for A.V. when she was in his home.
In the defendant's statement to the police, which was entered into evidence at sentencing, the defendant acknowledged his abuse of L.O. began approximately one year after he married L.O.'s mother and continued undetected until A.V. disclosed the defendant's offense against her. He confessed he had sexual contact with L.O. on at least twenty occasions, most of which occurred while the family lived in Texas. He disclosed that he had not only touched his penis to L.O.'s face, but also had touched her genitals through her clothing, placed his penis in her hand, and in one incident in Texas, attempted to have sexual intercourse with her. He also confessed to unfastening A.V.'s pants, touching her underwear, and rubbing his penis on her face while she was sleeping on the floor beside L.O.
A.V. testified at sentencing that the defendant's behavior towards her on the night of the offense frightened her and caused her to shake and cry. A.V. also stated that L.O. and L.O.'s mother cried when she recounted the events to them. A.V. indicated she had suffered no physical difficulties as a result of the offense, and she had received no mental health counseling. She testified that since the morning following the offenses, she had experienced no further problems.
Monica Vaughn, L.O.'s mother and the defendant's wife, testified L.O. performed well in school and was healthy. She stated that although L.O. had not received mental health counseling, she felt she should seek counseling for her. She said L.O. had nightmares, but they had not recently occurred .
In summary, the only subsection (5) aggravating circumstance not clearly established at sentencing was residual mental and physical damage to the victims. See Tenn. Code Ann. § 40-35-115(a)(5). However, this circumstance is only one of several to be considered by the court in its determination of whether to impose consecutive sentencing pursuant to Tennessee Code Annotated section 40-35-115(b)(5). See State v. Daniel Lovell Brown, No. 03C01-9709-CC-00410, 1998 Tenn. Crim. App. LEXIS 1165, at **9-10 (Tenn.Crim.App. Nov. 12, 1998, at Knoxville), perm. app. denied (Tenn. 1999).
Regardless of the applicability of subsection (5), we find subsection (2) clearly applies, although not relied upon by the trial court. A court may order consecutive sentencing if it finds by a preponderance of the evidence that the defendant is an offender whose record of criminal activity is extensive. See Tenn. Code Ann. § 40-35-115(b)(2). In addition to prior criminal convictions, an extensive record of criminal activity may include criminal behavior which does not result in a conviction. See State v. William Rhea Jackson, No. M2002-00762-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 261, at *69 (Tenn.Crim.App. Mar. 27, 2003, at Nashville), perm. to app. pending; see, e.g., State v. Percy Wade Cockrill, No. M2002-00761-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 310, at **11-12 (Tenn.Crim.App. Apr. 4, 2003, at Nashville) (defendant's admission to the use of illegal drugs considered as part of defendant's extensive record of criminal activity); State v. James F. Massengale, No. E2000-00774-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 879, at *20 (Tenn.Crim.App. Oct. 21, 2002, at Knoxville) (defendant's admission to numerous car thefts considered as part of his extensive criminal history).
We conclude the facts of this case established the defendant indeed has an extensive record of criminal activity. He had two prior criminal convictions, acknowledged daily use of illegal drugs for over twenty years, and, most importantly, confessed to at least twenty separate incidents of sexual abuse of his stepdaughter.
Specific findings that an extended sentence is necessary to protect society and is reasonably related to the severity of the offenses are prerequisites to consecutive sentencing under the "dangerous offender" category in Tennessee Code Annotated section 40-35-115(b)(4). State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific factual findings are not required for the other categories of Tennessee Code Annotated section 40-35-115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Nevertheless, the general principles of sentencing require that the length of sentence be "justly deserved in relation to the seriousness of the offense" and "be no greater than that deserved for the offense committed." Imfeld, 70 S.W.3d at 708 (citing Tenn. Code Ann. §§ 40-35-102(1), -103(2)). We conclude an effective twenty-year sentence for the two aggravated sexual battery convictions reasonably relates to the severity of the offenses and is not greater than deserved.
In summary, after reviewing the record in this case de novo without a presumption of correctness, we conclude the sentences imposed by the trial court were justified; thus, we affirm the judgments of the trial court.