### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J uly 22, 2003
STATE OF TENNESSEE v. DORIS M. DENNISON
Appeal from the Criminal Court for Union County No. 1985 E. Shayne Sexton, Judge

No. E2003-01101-CCA-R3-CD September 10, 2003

The defendant, Doris M. Dennison, pled guilty in the Union County Criminal Court to five cou

nts of aggravated sexual battery , a Class B felony . Pursuant to the plea agre ement, the de fendant received an eigh t-y ear sen tence f or each convicti on with the

iss u e of concurrent or consecutive sentencing to be determined by the tri al cou rt. Af

ter a s enten cing he aring, the trial court ordered that the defendant serve

counts one through four consecutively to each other but concurrently with count five for an effective sentence of t hirty-two y ears in the Department of Correction. The def endant appeals , claiming that the trial court improperly ordered con s ecutive sentences. We affirm the judgmen ts of the tr

ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.
B.J. Reed, Knoxville, Tennessee, for the appellant, Doris M. Dennison.

Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; William Paul P

hilli ps, Di strict Atto

rney Gene ral; and Ja

red R alph

Effl er and Ama

nda L . Cox, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.

OPINION

This case re

lates to th e defendant’s a

llowing Joh

nny “Frog ” Edmonds on to abuse her eightye ar-old daughter sexually

from October to December 2000. At the sentenc ing hearing, Detective Steve Ro us e o f t he Un io n C ou nt y S heriff’ s Department testified that he began investiga ting an allegationthat the d

efenda nt h ad allowed Mr. Edmondson to abu se the victim sexually once in December

2000. He s aid that he questio ned the de fendant and that s he gav e a writt en state ment. He said the defendant revealed sever al other incident s in which s he had a llowed Mr . Edmondso n to abuse the victim. He said that the defendant was cooperative a nd f orthcoming with information about the abuse, that she helped him draw a diagr am of Mr. Edmondson’s home, and that she-2-

explained where th

e offen ses occu

rred in th e home. H e said

that the defendant was not promised immunity in return for her information and that she testified against Mr. Edmondson at his trial. He said that during the defendant’s interview, he did not have difficulty understanding her speech and did not notice that she was mentally re tarded.

The st ate in tro duc ed t he d efe nda nt ’s w rit ten st ate men t i nt o ev id enc e. In the state ment, the defendant said the following: From the summer of 2000 until December 23, 2000, the defendant and the victim we

nt to Johnny

Edmondson ’s house a

bout six times . During

their first visit

t o Mr. Edmondson’s home, Mr. Edmondso n fli rted with the victim , offer

ed her mo ney , and ask

ed her to have sex with him. However, the victim refused. During some of the defendant’s and the victim’s subsequent

visits to the

home, the

victim mas saged

Mr. Edmond son’s pen

is until he e

jaculated while the defendant watched them. Mr. Edmondson a lso perform ed cunnilingus on the victim several times. When the defendant and the victim went to Mr. Edmondson’s home on December 23, Mr. Edmondson touched the victim’s breasts. After some of the visits, Mr. Edmondson would pay the victim and the defendant one to twenty dollars each.

Social worke r Beth O verbay testifie d that she

began providing

therapy to the vic tim in February 2001 and that she had

been seeing

the victim

every two week s since th at time. She said that the victim suffered from anxiety , depression, and post-traumatic stress as a result of the sexual abuse and that the victim was angry at the defenda

nt and Mr. Edmondson

for the a buse. She

said the victim did not like to talk about the abuse and never wanted t o see the de fendant or Mr. Edmondson again. She said t hat as a resul t of the a

buse, the victim als o was having prob lems in school and that

her grades had dropped. She said, thoug h, that the victim’s grades were improving and that she did notthink the victim’s therapy would nee d to contin

ue for mo re than a ye ar. She sa

id the victim could need therapy

again l ater in li fe beca

use sexually a

bused ch ildren of ten have unstable relation ships, suffe r from d epressi on and an xiety , become

substanc e abuser s, and ha ve diffic ulty trusting others. On cross-examination, Ms. Overbay testified that the victim had been in sta te custody since De cember

2000 and h ad not had

contact with the de

fendant

. Ruby S mith, the defendant’s sister, acknowledged that the de fendant is mentally re

tarded

. She said that the defendant could read but that

the defendant could not write well. She said that the defendant was placed in a foster home when the defe ndant was eleven years old and that the defendant was sexually abused by

“quite a few people” when the def endant was eleven or twelve yearsold. She said the defendant took special educati on classe s in school , droppe d out of school in the ninth grade, got married at ag e sixteen, and had never w orked. She said that when the defendant
was sixteen or seventeen ye ars ol d, the def endant to ld her tha

t Johnny Edmondson

had sexually abusedthe defendant. O n cro ss-e xa mination, she acknowledged that the defenda nt knew Mr. Edmondson was a sexual abuser whenthe defe ndant took

the victim

to Mr. Edmo ndson’s ho

use in 2000.

Gl ad ys Cummings, the defe ndant’s g reat au nt, testified that the defendant was a slow learner, didnot act normal as a child, and could not read or write we ll. Walter Nicely, the

defendant’s father, testified that the defendant had never been “ right” and that she was placed in foster care when she-3-

was eleven y

ears old because he di d not have the money to look af ter her and because he had neglected to send her to s chool. He sai d the def endant w as in state

custody for abou t three y ears. Ann Nicely, the de

fendant’s mother, testified that the defendant was plac ed in foster care a s a child because the defendant

had been sexually abuse d. She said that the defendant’s sisters told her about the abuse and that she did not report it to the police.

T he defendan t testified that she was born on May 16, 1969, and that she thought she was thirty-one years old. She said that she lived in a foste

r home fo r two and one-half y ears asa child and that she was in foster care because her parents did not takecare of her. She said she took special education classes in school a nd had dr opped out during t he eigh th grade. She said that she married the victim’s father when she was sixteen years old, that they were

still married, that the victim was her only child, and that she

loved the victim.

The defendant testified that Johnny Edmondson asked he r to let him molest the victim and that she told Mr . Edmondso n no. She sa id that she

had bee n molested

as a chil d and that

she would not l et that happen to the victim. She said she was sorry she had taken the victim to Mr. Edmondson’s house be cause it had resulted in her daughter being taken away f

rom her. She said that Mr. Edmondson

had neve r sexually abused her but tha

t he had a sked her

to have se

xual interc ourse withhim after she was married. On cross-examination, the defe ndant testified that on October 17, 19 97, she was c onvicted of aggrava ted burglary

and was sentenced to three y ears of supervised probation. She acknowledged that she was still on probation when she t ook the victim to Mr. Edmondson’s house and that she also was convicted of criminal littering in 1993. She said that she knew Mr. Edmondson was cap able of abusin g her d aughte

r when sh e took her daught er to his h ouse butthat i f she h ad kno wn Mr. Edmon dson w as abu sing the vi ctim, she would not have taken the victim to visit him. She said her written statement to Detective Rouse was true.
According to the defendant’s presentence re port, the then thirty-three -year -old defe ndant wa s disabled and received

social security be

nefits because of her mental retarda tion. In the report, the defendant stated that her mental health was poor, that she was taking medication for seizures, and that she had a

ttempted s uicide. Sh

e also sta ted in the report that she began using ma rijuana daily when she was sixteen year s old and that she had been using cocaine for a bout one year. T

he report shows that the defendant completed two substanc e abuse t reatmen t progr ams in Ja nua ry 20 01. In addition to the defendant’s prior convictions for aggra vated burglary

in 1997 and criminal littering in 1993, the report states that the defendant was on probation for her 1997 conviction at the time of the offenses in question.

At the end of

the hearing, the trial

court held that the defendant’s offenses we re aggrava

ted giventhe defe

ndant’s f ailure to protect her dau ghter an d the e xten t of th e resi dual m ental damage to the victim. See

Tenn. Code Ann. § 40-35-115(b)(5). I t determined that

these aggrav ating circumst ances, especially the r

esidual mental damage to the victim, weighe d against concurrent
se nt en ci ng an d o rd er ed th at th e d ef en da nt se rv e h er se nt en ce s c on se cu ti ve ly.-4-

The defendant

claims that the trial court erred by ordering consecutive

sentenc ing bec ause the evidence does not support the trial court’s determination that the abuse had a gr eat residual effect
on the victim. Specifically, she ar gues that Beth Overbay ’s testimony about the victim’s residual mental damage

was spec ulative. In a

ddition, sh

e claimsthat her mental condition and her assisting the state with

its investi gation o f the ca se mitiga te aga inst consecutive se

ntences

. The state

claims that the trial court properly ordered consecutive sentences. We ag ree with the state.

When a d efend ant appeals the length of a sentence imposed by the trial court, this court conductsa de novo review of the record with a presumption that the trial court’s determinations are
correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is “conditioned upon the af firmative showing in the record that the trial court considere d the sentencing principles and al l relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appealing party. Ten n. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record shows that the trial court failedto consider the sentencing principles and all relevant facts and circumstances, then review of the se nt en ce is pu re ly de novo

. Ashby , 823 S.W.2d at 169. Under Tenn. Code Ann. § 40-35-115(b)(5), consecutive sentences may be ordered if the trial court finds by a preponde rance of the evide nce that multiple offenses of sexual abuse of a minor occurred and were aggr

avated by the relationship between the defendant and the victim, the time span o f th e undetected sexual
a cti vi ty, the nature and scope of the sexual acts, and the extent of the resulting physical or mental damage to the victim. See State v. Taylor , 739 S.W.2d 227, 230 (Tenn. 1987).

Ini ti al ly, we note that any

evidence presented at the guilty plea hearing should

be considered in determining the appropriate sentence

. See Tenn. Code Ann

. § 40-35-210(b)(1). However, the defendant has failed to include in the record on appeal a tra nscript of the guilty plea

hearing relating to her convicti on. I

t is the duty

of the defendant to prepare a fa ir, accurate, and complete rec ord on appeal to enable meaningful appellate revi ew. T.R.A. P. 24. This court has repeatedly held that failure to include the transcript of the guilty plea hearing in t he record prohibits the court’s conducting a meanin gful de novo review of the sente nce. Abs ent the g

uilty plea hea ring, in which facts are presen ted, we may presume tha t the trial court was justified in ordering consecutive sente ncing. See, e .g. , State v. Keen , 996 S.W.2d 8 42, 844 (T enn. Crim. App. 1999 ). In any event, the record before us supports the trial court’s de termination.

The defendant was convicted of five offe nses involving the sexual abuse of a minor. The record supports the trial court’s determination that the vi ctim suffer ed great resid ual me ntal d amage as a result of the abuse. The defendant knew that Johnny Edmondson was sexually abusing the victim and even watched him repeatedly abuse the victim. Beth Overbay testified that as a result of the abuse, the victim suffered fr om an xi et y, depression, and post-traumatic stress and that she was having problems in school. In a ddition, Ms . Overba

y te stifie d that the victim was angry with the defendant and never wanted to see the defenda nt again. At

the time of the May 28, 2002 sente ncing hearin g, Ms. Overbay

had been meeting with the victim every two weeks since February 2001, and she said that the victim’s therapy c ould continue for up to a year

. In a

ddition, Ms . Overba

y c ould-5-

notrule out the possibility that the victim would need addi tional therapy later in life as a result of the abuse . We concl

ude that t he trial c ourt prop erly

imposed c onsecuti ve sente nces.
Based on the foregoing and the

record as a whole, we affir m the judgments of the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE