1 In variou s plead ings, the d efend ant’s name also appears as “Robert Dewayne Chambers .” However, our poli cy

is to use the defen dan t’s name as it app ears in the indictm ent.

2 It is this court’s policy not to reveal the name s of minor victims of sexua l offenses. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Bri efs May 14, 2003
STAT E OF T ENNES SEE v. DEWAYNE CH AMBERS Direct Appeal from the Circuit Court for Robertson County No. 97-0337 John H. Gasaway, III, Judge

No. M2002-01858-CCA-R3-CD - F iled September 2, 2003

A Robertso n C ou nt y j ury convicte d the def

endant, D eway

ne Chambe

rs, 1 of kidnapping and rape. The trial court imposed concurrent sentences of three ye ars for

the kidnapping conviction and eight years for the rape conviction to be served in the Depa rtment of Correction. On appeal, the defendant contends the trial court erred in deny ing alternative sentencing. We affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined. Roger Eric Nell, District Public Defender; and Russel A. Church, Assistant District Public Defender , for the a ppellant , Deway

ne Chambe

rs. Paul G. Summers, Attorney Genera l and Repo

rter; Da vid H. Findle

y, A ssistant A

ttorney Genera l; John Wesley

Carney , Jr., Distr

ict Attorn ey Genera l; and B. Dent Morriss, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
FACTS
Alth ough sufficiency

of the evi dence is not an issu e on appe al, we wi ll relate certain facts in order to place the issue of sentencing in proper prospective. C.K., 2 the seve nteen-y ear-ol d victim, testified that on June 12, 1997, at approxima tely 10:00 p.m., while walking from her friend’s residence toward her home, she observed the defendant and c odefendant Jason Chambers at a stop sign in a3 The defendant and the codefendant were tried together; however, only the defendant’ s convictions are at issue in this app eal. -2- gray Oldsmobile

Cutlass. 3 She did not recognize the defendant, who had a tattoo on his neck that said “Yella” and who identified himself as “Eric Hines,” but recognized the codefendant as a former school classmate.
When the victim declined the two men’s offe r for a r id e, the defendant exited the vehicle, grabbed the victim by the waist, and pulled her in the ba ckseat of the vehicle. The defendant then ordered the victim

to lie down, and she c omplied. T he victim t

estified they drove to a

basebal l park which had a concession stand and bleachers. They drove up a steep, grassy

hill and parkedbehind the concession stand.
The vic tim testif

ied that throughout the trip, she pled with the two men to let her go; however, they

denied he

r reque sts. The vi ctim state d that upon st opping th e vehicle, the codefendant

climbed in

to the backseat and attempted to force her to e ngage in fellatio and further attempted vaginal penetration. Neither was consummate d. The codefendant told the defendant, who was sitting in

the fron t seat, “I can’t do nothing

with this bitch, so you come do what y ou got to do.” The victim testified the defendant then cl i mbed into the backseat of the vehicle, penetrated he r va gi na ll y, and ejaculated. She stated that she continuously screamed at the men to get off of he r and attempted to push them away f rom her.
The codefendant drove the vehicle awa y from the par

k and stopped in a

parking lot located a short distance from the park. The codefenda nt then ordered the victim to e xit the vehicle and get in th e f ro nt se at . W he n t he vi ct im ex it ed th e v eh ic le , t he y dr ov e a wa y. Deputy Cha rle s J. Campbell of the Robertson County Sheriff’s De partment testified that at approxima

tely 10:30 p.m. o n June 12, 19 97, while travelin g on Hig

hway 431, he ob served t

he victim standing on th e side of the road wa ving. When he s topped, the victim ran toward his vehicle and then “co llap sed.” Deputy Ca mpbell described the victim’s condition as “[i]n shock” and “[v]ery distressful.” The victim was “[c]rying, upse t, just could not focus.” A Springfield police officer arrived and transported the victim to Northcrest Hospital for eva luation.
Dr. Sharon Ho

rton-Jenk ins, a forensic serologist for the Tennesse e Bureau of I nvestigation, testified she conducted a DNA analy sis of the evidence collected from the victim and concluded that the DNA p

rofile of the sper m found on t

he victim’ s underw ear matc hed the de

fendant

. The codefendant testified the victim approached them; she requested a ride; she entered the backseat of the ve hicle before either of the men

could respond; and the defendant and codefe ndant engaged in consensu al sexual a

ctivity with the victim. The codefendant testified the victim exited the vehicle in order

to dress. The codefendant stated that as a joke, he a nd the defendant drove away leaving the victim

. The def endant di d not testif

y a t trial.4 The codefendant was convicted of kidnapping, att empted rape, and sexual battery. The trial court merged the

sexual batter

y convi ction int o the at tempted ra pe convict ion and i mposed an ef fect ive sentence of f

ive years incarceration.

5 Effect i ve July 2002, the legis lature amended Tennessee Co de Annotated section 40-35-114 b y adding “t err ori sm” as an enhancement factor. 2002 Tenn. Pub. Acts, ch. 849, § 2(c). Th is is list ed as fact or (1), thus renumbering the pre vious fa ctors a s (2) thro ugh (2 3). See Tenn. Cod e Ann. § 40-35- 114 (Supp. 2002). Our opin ion refers to the enhance ment f actors as the y exi sted at the t ime of s entenci ng as spec ifi ed in Tenness ee Code Annotated section 40-35-114 (1997 ). -3- The defendant was charge d with aggravated kidnap p ing and aggra

vated rape. The jury convicted him of the lesser-included offenses of kidnapping and rape. 4 See Tenn. Code Ann. §§ 39- 13-303(a), -503(a). The sole issue in this appeal is whether the trial court erred in deny ing alter nativ e sent encin g. At the defendant’s sentencing hearing, Kristy Humber testified she is the defendant’s former girlfriend and has a

daught er with hi m. She desc

ribed the defenda nt as a g ood fath er who has a strong relationship with their daughter. Humber further te stified she is currently involved in child support proceedings against the def endant.
The defendant testified he was convicted of misdemeanor theft in April 1996 for a

“gas runoff.” In December

1996, the defendant was convicted of reckless driving and rece ived a suspended sentence. The defendant

admitted he was on probation for the reckless driving conviction when the present offenses occurred.
The defendant testified he dropped out of high school because he had a n attenda nce prob lem, but he h ad obtained a GED. He stated he was employ ed at CEI for three

years but wa s fired as a result of attendance problems. He then worked at TriCo, a fac tory, for one a nd one-half day s but lost that job be cause on

e of the e

mploy ees had s erved on

the jury at his trial. The defe ndant admitted he failed to disclose the present felony convictions on his employment application.
The defendant maintained he engaged in consensual

intercourse with the victim. He further stated he believed he could comply with the terms of probation.
ANALYSIS I. Trial Court’s Findings
The tria l court found the defendant to be a Range I, standard offende

r whose range of punishment was thre e to six years f or the Class C felony kidnapping conviction and eight to twelve years f or the Class B felony

rape conviction. See Tenn. Code Ann. § 40-35-112(a)(2), (3).
The trial cour t f

ound the defendant had a previous history of criminal convictions; the defendant was a leader in the

commission of the offenses ; and the rape was committed to gratify the def endant ’s desire for pleasure or excitement

. See id. § 40-35-114(1), (2), (7) (1997). 5 The trial-4-

court then appl ied mitiga

ting fact or (1 ), “[t ]he defen dant’s criminal conduct neither caused nor threatened

serious bodily injury ,” to both convictions. Id. § 40-35-113(1). The trial court sentenced the defenda

nt to the min

imum terms of three y ears for kidnapping and eig ht years for

rape and or de re d t ha t t he se nt en ce s r un co nc ur re nt ly.
The trial court foun d that because the defendant rece ived an eight-y ear sentence, he was eligible for probation pursuant to Tennessee Code Annotated section 40-35- 303. The tr ial court characterized

the offe nses as “ very

serious” in that “[t]he

victim . . . w as s n atched o ff the str eet, manhandled by t

wo men, f orced to submit to unwanted sexual activity[,] and then discarded on the side of the road.” Based upon these circumstanc es, the trial court ordered the defenda nt to serve his sentenc e in conf

inement.
II. Standard of Review
A defendant’s sentence is reviewed by the appe llate cou rts de novo with a presumption that the determi nation s made by the trial court ar e corre ct. Tenn . Code Ann . § 40-35- 401(d); State v. Imfe ld , 70 S.W.3d 698, 704 (Tenn. 2002). For this p resumptio n to apply

to the tria l court’s actions, there m ust be an affirmative showing in the record tha t the trial court considered sen tencin g principles and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).
The defendant contends our standard of review should be de novo without a presumption of correc tness because

the trial court miss tated speci fic facts in reviewing the two versions of the events which were presented at trial. Howeve r, upon reviewing the record, we conclude the trial court properl

y considered all relevant facts and circumst ances, and thoroug

hly discussed all applica

ble sentencing principle s. There fore, ou r standa rd of re view is de novo with a presumption that the trial court’s determin ations we re corr ect. III. Alte rnative Se

ntencing
A. Statut

ory Standar

ds
Under the Crimina l Sente ncing Re form Act of 1989, tr

ial judg es are e

ncourag ed to use alternatives to incarceration. An especially mitig ated or standa rd offe nder con victed of a Class C, D, or E felo ny i s p resumed to be a favorable candidate for a lternative sentencing options in the absence of evide

nce to the contrary . Tenn. Code Ann. § 40-35-102(6). A defendant is eligible for probation if

the sentence received by

the defendant is eight

years or less, subject to some statutory exclusions. Id. § 40-35-303(a).
Probation may be denie d based solely upon the circumstances surrounding the offe nse. State v. Hartley , 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991) . Howeve r, th e circumstances of the offense as committed

must be esp ecial ly viole nt, h orrif ying, sho cking, reprehensible, offensive or otherwis e of an excessive or exaggerate d degree; and the nature of the offe nse must ou tw eigh al l factors favoring probation. Id. at 374-75.-5-

Under the 1989 Sentencing Act, sentences which involve confinement are to be based on the following considerations contained in Tennessee Code Annota ted section 40-35-103(1): (A) [c]o nfine ment i s neces sary to pr otect socie ty by restrai ning a defenda nt who has a long h

istory of crimin al conduct; (B) [c]onfinem

ent is necessary

to avoid depreciating the seriousn ess of the offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant[.]
Statev. Grigsby , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps , 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995). B. Analysis
Because the defendant wa s convicted of rape, a Class B felony , he was not presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). The defendant was also ineligible for community

correc tions cons ideratio n becau se both of his c onvictions involved crimes against the person. See id. § 40-36-106(a)(2). Furt hermore , th e evidence present

ed at the sentenc ing hea

ring fa iled to est

ablish the defenda nt’ s eligib il ity for community

corrections under the special nee ds provisi on. See id. § 40-36-106(c). However, the trial co ur t p ro pe rl y con cluded the defendant, who received a n effective eight-y

ear sentence, was eligible for probation. See id. § 40-35-303(a).
The trial cou

rt denie d probati on based primaril y up on the cir

cumstanc es of the

offense s
. According to the evidence presented at trial, the defe ndant forced the victim inside his vehicle; the defendant and codefendant drove her to a park; the defendant forced the victim to eng age in sexual interco urse

after the codefendant had u n successfully a ttempted to force her to engag e in various sexual acts; and they then a bandoned the victim on the side of a highway . We conclude t h e circumstances of

the offenses were sufficiently shocking and

reprehensible to justify the denial of probation and the imposition of confinement. See Hartley , 818 S.W.2d at 374-75. We further note the trial court fou nd the defendant’s version of the events untruthful. See State v. Nunley , 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999) (holding lack of candor re flects poorly on re

habilitation prospects). In addition, the defendant had two pr ior convictions and committed the present offenses while on probation. See Tenn. Code An n. § 4 0-35-103(1)(A), (C) (listing prior criminal conduc t and prior unsuccessful alternative sentence s as relevant to confinement determinations). The trial court had am ple ba ses to deny alte rnati ve sen tenci ng.-6-

Accord ingly , we aff

irm the jud

gments o f the tria

l court.

ALAN E. GL

ENN, JUDGE