### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 2000 Session
STATE OF TENNESSEE v. WAYNE M ICHAEL FULLER
Direct Appeal from the Criminal Court for Knox County

No. 65056 Ray L. Jenkins, Judge

No. E1999-01676-CCA-R3-CD August 16, 2000

The defendant appeals from his sentence imposed for seven counts of statutory rap e, a Class E felony, in the Knox County Criminal Court. The trial court imposed a sentence of two years for each count to be served in the Department of Correction. The trial court imposed consecutive sentencing on five counts and concurrent sentencing wasimposed on two counts, for an effective sentence of ten years. In this direct app eal, the defendant challenges the length of the sentence and consecutive sentencing. We a

ffirm the judgment

of the trial court

. Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the cour

t, in which D AVID G. H AYES and N ORMA M C G EE O GLE , JJ., joined.

Gerald L. Gulley, Jr., Kno

xvil le, Tennessee (on appeal), Tommy K. Hinderman, Knoxville, Tennessee (at trial), for the appellant, Wayne Michael Fuller.

Paul G. Summers, Attorne y General and Re

porter, Mark A. Fulks, Assist ant Attorney Gene

ral, Randall E. Nichols, District A

ttorney Genera

l, Scott Green, Assistant District Attorney General for the appellee, State of Tennessee.

OPINION

Wayne Michael Fuller stands convicted upon his guilty pleas to seven counts of statutory rape, a Class E felony, and one count of contributing to the delinquency of a

minor, a Class A misdemeanor. See

Tenn. Code Ann. § 39-13-506 (1997) (statutory rape); Tenn. Code Ann. § 37- 1-156 (1997) (contributing to the delinque ncy o f a minor). Having received consecutive incarcerative

sentences of two years on five of the statutory ra pe counts and concurrent two-year1 The defend ant h as not appeale d his misdemeanor sentenci ng on the charge of

contribut

ing to the delinquency of a minor.

2 In accor dance w ith this court’s policy, the minor v ictim will be referred to only by her initials


### . -2- sentences on two of the statutory rape counts, the defendant appe

als. 1 After hearing oral arguments and reviewing the record a nd the applicable law, we affirm the length of the sentence and the imposition of consecutive sentencing.

Wayne Michael Fuller, 44 years old at the time of sentencing, resided in Jacksonville, Florida. During the late summer months of 1997, the defendant me t AW, a 15 year old

female, in
a chat room on the int

ernet. 2 AW lived in Knoxville, Tennessee with her parents. The defendant’s internet relationship wi th AW progressed to the point that in October 1997, he traveled to Knox County to meet AW. Unknow n to her parents, A

W met with

the defendant and spent most of that particular wee

kend with him. No sex

ual activity occu

rred on this visit.

The defendant returned

to Florida, and he c

ontinued to corre

spond with

AW through the internet. In December 1997, the defendant again traveled to Knoxville,picked up AW, and took her to a Super

8 Motel in Knox County. On that occasion, the defendant e

ngaged in sexual a

ctivity with the minor victim; he penetrated h er vagina with his

finger, and he performed oral sex on her. The defendant ultimately was charged with two counts of statutory rape ar ising from h

is actions during that visit.

On January 3, 1998, the defendant returned to Knoxville. He took AW to the same motel where he penetrated the minor digitally and performed oral sex on her, as the defendant had done in December. On this occasion, the defendant also placed his penis in her mouth. The defendant’s actions during the January visit resulted in three counts of statutory rape.

The last time the defe

ndant met with AW before his arrest was in early February 1998. He came to

Knoxville, took AW to the Super 8 Motel, and twice penetrated her vagina with his finger. Two additional counts of statutory rape resulted from that encounter. AW’s father had learned about the February meeting, and the f ather contacte

d law enforceme

nt officers. The officers located the defendant and AW at the Super 8 Motel. The officers found alcohol in the room. The defendant had been drinking, and he had provided alcohol to AW.

The defendant entered guilty pleas to the resulting seven counts of statutory rape and the one count of contr

ibuting to the delinq

uency of a minor.

The defendant d

i d not have a plea agreement

with the state, and

the state made no s

entencing reco

mmendati on whe n the defendant pleaded guilty. At the sentencing hear ing, the state

presented testimony from Knoxville polygraph examiner, Jim Morris, and from Helen Legall, a Gainesville, Florida law enforcement of

ficer. These witnesses recounted admissions made to them by the defend ant that he had engaged in other inappropriate c

onduct involving mino

rs and that he had

a “fetish” for y

oung girls.-3- The defendant’s stepfather, a retired captain with the Hialeah Police Department , testified that

what the defendant had done was wrong but that he had suffered. The stepfather was concerned

that if his stepson were inc

arcerated, the

defendant’s two

children who live

d with their mother would s u ffer financially and have to apply for state aid. The stepfather agreed that the defendant definitely has a problem with minor females, that he needs counseling, and that th e defendant probably cannot control his behavior.

Neither the de fe ndant nor the victim testified at the sentencing hearing. The trial court had available to i

t the presentenc

e investigation re

port on the defen

dant. The report

concluded that the defendant appeared to be a high risk candidate for probation. The report also noted that the defendant had called the presentence inv estigator to ask a

bout transferrin

g his supervision to Colorado should he move there. The defendant told the presentence investigator that he had been checking the internet and that Colorado’s requirements for supervising sex offenders seemed to be more lax than the requirements in either Tennessee or Florida..

When there is a challenge to the length, range, or manner of service of a sen

tence, it is the duty of this court to con duct a de novo review of the record with a presumption that the determinations made by the trial c ourt are corre

ct. Tenn. Code Ann . § 40-35-401(d) ( 1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant fac

ts and circumstan

ces." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). "The burden of showing that the sentence is improper is upon the appellant." Id. In the event that the record fails to demonstrate the required consideration by the trial court, review of the sentence is purely de novo

. Id. If appellate review reflects that the trial court properly considered all relevant factors and that its findings of fact are adequately supported by the record, this court must aff irm the sentence

, even if our independent judgment on the question might differ. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The mechanics of ar

riving at an appro

priate sentence

are well known. I

n making its sentencing determination, the trial court, at the conclusion of

the sentencing hearing, determines the range of sentence and then determines the speci fic senten ce and the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing hearing, (2) the pr esentence report, (3) the principles of sentencing and arguments as to sentencing alternatives,

(4) the nature and characteristics of the criminal conduct involved, (5) ev idence and information offered by the parties on the enhancement and mitigating factors, (6) any statements the defendant w ishes to make in the defendant's behalf about sentencing, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35- 210(a ), (b) (1997); Tenn. Code Ann. § 40-35-103(5) (1 997); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In the present case, the trial court’s sentencing judgment is en titled to the presumption of correctness

. The defendan t was sent enced for his Class E felonies as a Range I offender. The range of punishment

in this case is one to two years. Tenn. Code Ann. § 40-35-112(a)(5) (1997). In sentencing the de

fendant to tw o years on each statutory rape count, the trial court applied3 The defendant has not appealed the t rial court’s

denial of alt

ernative sentenci

ng in this case.
-4- enhancement

factors (1), pr

evious hi story of criminal convictions or criminal behavior, and (15), abuse of a position of public or

private trust. See Tenn. Code Ann. § 40-35-114(1), (15) (1997). The defendant chal

lenges the applic

ation of both enha

ncement factor

s. 3

The trial court found

that the defenda

nt “has a p revious history of convictions or criminal behavior in addition to thos e necessa ry to establish the appropriate range.” Tenn. Code Ann. § 40-35-114(1)(1997). The trial court no ted “in particula

r” that even aft

er pleading guilty

to the instant offen

ses, the defendant wa

s engaging in the sa

me type of conduct th

at resulted in thes

e charges.

As established through the testimony of Jim Morris and Helen Legall, the defendant has a history of criminal sexual behavior. The defendant admitted to Mr. Morris that when he was 25 years old, he fondled his seventeen year old sister. The defendant admitted that he ha

d paid for the services of prostitutes on multiple occasions, and on one occasion t he pr ostitute was a minor. The defendant recalled that when he was 38 years old, he fondled another minor female, who was fifteen years old at the time.

Approximately

four months after

he pleaded guilty t

o the st atutory ra pe and d e linquency charges in this case, the defendant was making obscene telephone calls to an eleven year oldminor in Gainesville, Florida. The defendant admitted to Officer Legall that he made those calls, which had resulted in

the defendant being charged in Florida with aggravated stalking, a felony. The defendant also told Officer Legall that he had been calling dormitories at the University of Florida and soliciting sex while he masturbated. The defendant’s explanation for his conduct, Offi

cer Legall related, was that “he had a problem with young girls and specifically he had a fetish for young girls.”

The presentence inve sti gation report in this case states that the defendant admitted to the occasional use of alcohol. The defendant told the presentence investigator that he first used alcohol at age seventeen, thereby admitting to the offense of underage consumption of alcohol. The presentencereport further reflects that in 1986 the defendant ente red a “plea of nolo” and made restitution on a worthless check charge. After entering guilty pleas to the charges in this case, the defendant pleaded guilty in Sevier Coun

ty to statutory rape involving the same minor female, A. W.

The defendant

argues that a “previous history” of criminal convictions or behavior includes only those criminal convictions or behavior that took place before the instant criminal act for which the defendant is being sentenced. That argument has been advanced and rejec ted
numerous times. A sentencing co urt can co nsider criminal behavior which occurred prior to the sentencing hearing as evidence of a previous history of criminal convictions under Tennessee Code Annotatedsection 40-35- 114(1), regardle ss of whether the criminal behavior occurred before or after the commission of the of fense under con

si deration. Sta te v. William E. Gothard III , No. 03C01- 9707-CR-00290, slip op. at 6 (Tenn. Cr im. Ap p., Knoxville, June 22, 1999); State v. Burl Jarre tt , No. 02C01-9710-CC-00418 , slip op. at 2 (Tenn. Crim. App., Jackso

n, August 21, 1998); State v.-5-

John Allen Chapman , No. 01C01-9604-CC -00137, slip

op. at 2 0 (Tenn. Crim. App., Nashville, September

30, 1997). The trial court did not err in considering the defendant’s continuing criminal behavior that occurred after he pleaded guilty in this case to seven counts of statutory rape.

The defendant also c

laims that the trial

court should not ha

ve consid

ere d the “pending” charges in

Flo rida and Sevier County in connection with the enhancement factor of a previous history of criminal convictions or behavior. The defendant is corre ct t hat evidence of merely being arrested an d charged w ith a crime does no t per se equate with evidence of criminal behavior. See State v. Buckmeir , 902 S.W.2d 418 (Tenn. Crim. App. 1995). Inthis case, however, the trial court heard the defendant’s own admissions of criminal behavior. Officer Legal l testified that the defendant a

dmitted making the obscene telephone calls to the minor child in Florida and calling females at the University of Florida and soliciting sex. The defendant even acknowledged to Officer Legall that he had a “fetish” for young girls. Regarding the sta tutory rape char

ge in Sevier County, the defendant already had entered a guilty plea by the time of the sentencing hear ing in this case. The defe

ndant’s argument

fails.

The trial cou rt also enhanced the defendant’s sentence on each statutory rape conviction to two years because the defendant abused a position of private trust. Se eTenn. Code Ann. § 40-35-114(15) (1997). We hold that the trial court erred in applying this enhancement factor.

The application of enhancement factor (15), that the defendant abused a position of publi c or private trust, r equires a finding , first, that the de fendant occupie

d a positio n of trus t vis-a- vis the victim and, second, that the defendant abused that position in a manner tha t significantly

facilitated the commission of the offense. See State v. Kissinger , 922 S.W.2d 482, 488 (Tenn. 1996). Thus, a sentencing court shou ld examine w hether “the off ender formally o

r informally stood in a relationship to the victim that promoted confidence, reliability, or faith.” Id.

The trial c ourt in this case fo und that “[p]art

of the method of ope

ration of th

e defendant was to create an aura of trust so that he was able to performhis particular illegal violation.” The record, however, d oes not support this finding. The victim did not testify at the sentencing hearing, and her parents did not respond to the victim im pact questionnaire that was mailed to them by the presentence investigator. There is no evidence before us concerning how the relationship

between the defendant and the victim began in the internet chat room. Likewise, there is no evidence of the nature of the chat room conversations, such that a finding could be made that the defendant occupied

a position of trust with the victim. The state cites us to the recitation by the prosecutor of the factual basis for the defendant’s guilty pleas. That recitation is insufficient.

MR. GREEN: Your

Honor, had this

matter gone to trial, the witnesses listed on the back of the indictment and those subsequently supplied would have been called to testify,

and they would hav

e testified that th

is defendant and [AW], who was a 15-year-old minor, began corresponding via the Internet . They met in what’ s commonly referred to as a chat room on the Internet and began conversing back-6- and forth for a period of time until ultimately in October of 1997, this defendant came to Knox County, Tennessee to meet [AW].

In appropriate cases, sexual offenders who use the internet to develop relationships withthird parties may v

ery well abuse a private trust. Such offenders may, for instance, masquerade
as caring individuals or individuals who are needy. With the internet and chat rooms, a person can create an entirely fictitious identity that can promote confidence, reliability, or faith in unsuspecting victims. We believe, however, that such a showing has not been made in this case.

Alth ough we conclude that the trial court should not have applied enhancement fa cto r (15), we also e xe rcise our de novo review and find that enhancement factor (7) applies. The trial court stated that it had “

no problem”

finding that the offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement. See Tenn. Cod e Ann. § 40-35-114 (1997). The trial court, though, did not believe that the law permitted the application.

In State v. Adams , 864 S.W.2d 31, 34-35 (Tenn. 1993), our supreme court rejected the propositi on that, "as a matter of law, every rape is implicitly committed for the purpose o f pleasure or excitement." T he supreme cour

t noted that not all s

uch crimes are committed for pleasure, but rather may be motivated, for inst

ance, by acts of

bruta l ity, revenge, punishment, or intimidation. Id. Therefore, even though this enhancement factor may be applied to such cases, the state has the burden of demonstrating that the rape is sexually motivated. Id. In the case befo re us, the record demonstrates that the multiple incidents of statutory rape were sexually motivated. In the defendant’s version, which is included in the presentence report, the defendant describes his conduct withthe victim as a “co

nsentual [sic] se

xual r el ationship.” The defendant’s stepfather testified at the sentencing hear

ing that the defen

dant asked him, “W

ould you believe that a younger wom an is in love with me?” The stepfather believed that the defendant “

was in love with

the young lady that he got involved with, and he thought the young la dy was in love with him and age would make no difference.” Finally, the defen dant t old Office r Legall that he ha d a “fetish” for

young girls, indicating that y oung girls excite in him erotic feelings. Under these circumstances, we hold that the record supports the application of enhancement factor (7).

The defendant further complains that the trial cou rt incorrectly rejected mitigating factor (1), that his criminal conduct neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1) (1997). The record is silent either

way on the existen

ce or nonexisten

ce of this factor. Even assuming, thou gh, that the trial c

ourt should

have applied mitigating factor (1), we find that in the total circumstances of this particular case, this factor is entitled to only minimal weight.

In consideration of

the foregoing enhancement and mitigating factors, the principles of sentencing, and t

he record as a

whole, we affirm the two year sentence imposed by the trial court on each count of statutory rape.

Defendant’s final complaint that he should not have received consecutive sentences
on the first five con

viction counts does

not re quire extensive treatment. The defendant was convictedof seven counts of statutory rape. The defendant meets the sta tutory criteria for-7-

consecutive sentencing as a sexual offender under Tennessee Code A nnotated section 40-35-115(b)(5), which provides for consecutive sentencing when
[t]he defendan

t is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with

consideration of

the aggravating circumstances arising from the rel ationship between the defendant and victim or victims, the time spa n o f defendant’s undetected sexual activity, the nature and s cope of th e sexual acts and the extent of the residual, physical and mental damage to the victim or victims.
See, e.g. , Statev. Lane , 3 S.W.3d 456 (Tenn. 1999); State v. Ealey , 959 S.W.2d 605 (Te nn. Crim. App. 1997).

We conclude that the trial judge was we

ll within his statutor

y authority and duty

to impose co nsecutive sentences in this case. The defendant inveigled a minor, who was almost 3 0 years his junior, into a sexual rel ationship. The sexual relationship occurred undetected over a period of three months from November 1997 until February of 1998. The defendant traveled considerable

distance, from Florida to Tennessee, to engage in cunniling us, fellatio, and digital penetration of the minor. We also note that the trial court did not run every sentence consecutively. Only five of the seven sentences are to run consecutively.

We find no reversible error in the trial court’s sentence, and the trial court’s judgment is thereby affirmed.

________________________________ James Curwood Witt, Jr., Judge