IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 12, 2020

STATE OF TENNESSEE v. DAVID CHARLES GAMBRELL

Appeal from the Criminal Court for Sumner County

No. CR-40-2018 Dee David Gay, Judge

___________________________________

No. M2019-00773-CCA-R3-CD

___________________________________

David Charles Gambrell, Defendant, was indicted for five counts of statutory rape by an 

authority figure and two counts of sexual battery by an authority figure based on 

allegations made by his fifteen-year-old stepdaughter. Defendant pled guilty to amended 

charges of four counts of aggravated statutory rape with the trial court to determine the 

length and manner of service of the sentence. The remaining counts were nolle prossed. 

After a sentencing hearing, the trial court denied Defendant’s request for judicial 

diversion, ordering him to serve four years in incarceration for each conviction, with the 

sentences to be served consecutively, for a total effective sentence of sixteen years. 

Defendant appeals his sentences. After a review, we affirm the judgments of the trial 

court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., J., joined. NORMA MCGEE OGLE, J., concurred in results only.

Matthew Edwards (on appeal), Hendersonville, Tennessee, and Micah Gagney Ketron (at 

trial), Gallatin, Tennessee, for the appellant, David Charles Gambrell.

Herbert H. Slatery III, Attorney General and Reporter; Brent Cherry, Senior Assistant 

Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

09/02/2020
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During the summer of 2017, the Department of Children’s Services (“DCS”) 

received a referral with regard to sexual activity that took place between the fifteen-yearold victim and Defendant, the perpetrator.1

 Officers from the Sumner County Sheriff’s 

Office investigated the allegations, in part, by interviewing the victim. During her 

interview, the victim explained that Defendant was her stepfather and that there had been 

inappropriate sexual contact between them between Christmas of 2016 and January of 

2017. During Defendant’s interview, he confessed to some of the sexual contact 

described by the victim, including but not limited to digital penetration of the victim’s 

vagina, oral penetration of the victim’s vagina, and contact between Defendant’s hand 

and the victim’s vagina. 

As a result of the investigation, Defendant was indicted in January of 2018 by the 

Sumner County Grand Jury with five counts of statutory rape by an authority figure and 

two counts of sexual battery by an authority figure. Defendant entered guilty pleas prior 

to trial to amended charges of four counts of aggravated statutory rape, with the length 

and manner of service of the sentence to be determined by the trial court after a 

sentencing hearing. 

At the sentencing hearing, the trial court allowed Defendant to withdraw his guilty 

pleas on two counts of the indictment (Counts Two and Four), allowed Count Two to be 

amended to state that “sexual penetration was done by digitally penetrating the victim” 

rather than “by having sexual intercourse with the victim.” The trial court then accepted 

Defendant’s to guilty plea to Count One, Count Two as amended, Count Three, and 

Count Five. The remaining counts were nolle prossed.

Sentencing Hearing

At the sentencing hearing, the victim’s biological grandmother, C.L., explained 

that when the victim was born, the victim’s biological mother and the victim lived with 

C.L. and her husband. When the victim’s biological parents both terminated their 

parental rights, C.L. and her husband formally adopted the victim when the victim was 

about five years of age. 

According to C.L, the victim “had gotten into trouble at school on several 

occasions” for “cutting herself,” taking drugs, and trying to commit suicide by taking 

pills. C.L. claimed that a juvenile court probation officer “saved [the victim’s] life” by 

helping to get her admitted to an inpatient treatment facility. The victim was fifteen at 

the time and spent around five months at the treatment facility. While the victim was a 

 

1

It is the policy of this Court to protect the identity of victims of sexual abuse.
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patient, she disclosed that Defendant had been abusing her sexually when she visited her 

biological mother. 

Rebecca Page, an investigator with DCS, received information from the residential 

treatment facility that the victim disclosed abuse during “therapy sessions.” Detective 

Scott Bilbrey of the Sumner County Sheriff’s Office investigated the allegations. He met 

with the victim at the treatment facility. At the time, the victim was identifying as a male 

and asked to be referred to by a male name. The victim explained that she saw herself as 

a straight male who was attracted to females. The victim told Detective Bilbray that prior 

to the abuse, she had several conversations with Defendant about her sexual orientation.

The victim “had difficulty going into great detail” during the interview but was 

able to disclose that the abuse started around Christmas of 2016 and continued until midJanuary of 2017. The victim disclosed that the abuse occurred when she visited her 

biological mother and Defendant. The victim described her mother as a heavy drug user

and explained that her mother was usually “out of it.” The victim herself admitted to 

drug and alcohol use during this time period. The victim explained to Detective Bilbrey 

that around Christmas of 2016 there were two main instances of inappropriate physical 

contact that occurred at Defendant’s house, including, in Detective Bilbrey’s words:

“oral, her on him, two times; oral, him on her, two times; his hand on her breast, three to 

four times; penile penetration, two times; and he touched her vagina with his hands, skin 

to skin contact, approximately six to seven times.” Despite the victim’s difficulty 

remembering the specifics of each encounter, she described in detail the time when 

Defendant inserted his finger into her vagina because she described his finger as rough 

and uncomfortable. The victim explained that Defendant was a mechanic and that his 

hands were rough.

The victim was able to give the exact date of one instance of abuse, May 21, 2017. 

The victim explained to Detective Bilbrey that she rode with defendant from her 

grandparents’ home to a Dollar General Store where Defendant touched the victim’s bare 

breast inside of her shirt. The victim went into treatment the next day.

After the victim left the treatment facility, she agreed to a “controlled phone call” 

with Defendant. During the call, the victim told Defendant that she now realized that she 

liked boys because of the things she did with Defendant. While Defendant never came 

out and said exactly how he abused the victim, he acknowledged that he understood to 

which incidents the victim was referring.

Detective Bilbrey visited Defendant at his job. Defendant initially denied the 

allegations but eventually admitted that that there was some sexual contact between him 

and the victim. Defendant claimed that the victim initiated some of the contact, once 
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after he had taken two Tylenol PM and a shot of whiskey. Defendant got up to go to the 

restroom and was confronted by the victim who asked him to show her how a man 

touches a woman. The victim took his hand and placed it on her body. Defendant 

insisted that he told the victim he was not comfortable with what the victim was asking 

and that she needed to go talk to her biological mother.

Defendant talked about a trip to Dollar General during which the victim exposed 

her vagina and asked Defendant how it looked after she shaved. Defendant claimed that 

the victim took Defendant’s hand and placed it between her legs. Defendant insisted that 

he pulled his hand away and did not realize that the victim was unclothed because it was 

dark. However, Defendant later admitted that he touched the victim and that he 

penetrated her with his finger but claimed that there was no full digital penetration. At 

first, Defendant adamantly denied that he performed oral sex on the victim. Defendant 

later admitted that he got “real close” to the victim’s vagina with his face but that he did 

not touch the victim orally. Defendant later admitted that he “lick[ed]” the victim’s 

vagina on at least two occasions. Defendant claimed that he threw up after this incident. 

Defendant denied penile penetration and did not remember the victim performing oral sex 

on him and if it happened he was probably asleep. As a result of the interview, 

Defendant was arrested.

C.L., her husband, and the victim moved to Florida after the victim was released 

from the treatment facility because they were “afraid.” C.L. explained that the impact of 

Defendant’s actions on their family was “[d]evastating” and that the victim had “gender 

identity issues.” The victim’s biological mother called her a “liar and told her [the abuse] 

was her fault.” 

C.L. described Defendant as a “monster who completely destroyed [the victim’s] 

childhood, her adulthood, and her chance of ever knowing what it is to have a normal 

relationship, to get married, or to have children.”

Defendant called several character witnesses, including his niece. Defendant’s 

niece, who was age twenty at the time of the sentencing hearing, explained that she lived 

near Defendant on the same piece of property. She trusted Defendant and did not know 

him to abuse drugs or alcohol. She explained that he was dyslexic and had a difficult 

time reading and writing. Defendant’s niece admitted that Defendant told her about one 

encounter with the victim “where there was alcohol involved and they were together.”

Dan Klitz had known Defendant for about ten years and described him as a “good 

friend.” Mr. Klitz heard Defendant express remorse over the events but never heard 

Defendant admit that he was in a sexual relationship with the victim. However, Mr. Klitz 

did not think Defendant was guilty because Defendant had never been in trouble and was 
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a positive influence during his own depression after his wife died. Despite his positive 

take on Defendant, Mr. Klitz commented that if he caught someone doing something 

sexual to either of his own daughters he would “shoot them.”

Susan Morrow, a probation and parole officer with the Tennessee Department of 

Correction, testified that she prepared Defendant’s presentence report. She explained that 

she incorporated Defendant’s statement into the report. She conducted a risk/needs 

assessment or “STRONG-R” evaluation and determined Defendant’s overall risk was low

but that she did not place any value in this evaluation.

David Thomas Lubin, an officer with the Mid-Cumberland Human Resource 

Agency, explained that he supervised Defendant on community corrections bond 

supervision from October 11, 2017, to the time of the sentencing hearing, or 

approximately eighteen months. Defendant was required to report once a week and 

submit to random drug screens. Officer Lubin “never had a problem with [Defendant] 

during his reporting.” Defendant failed several drug screens due to the fact that he had a 

valid “prescription for oxycodone.” 

Defendant testified at the hearing. At the time, he was forty years old and worked

at his father’s shop as a mechanic. Defendant explained that he used to work for the 

Tennessee Department of Transportation but that he was fired after his arrest. Defendant 

was married and had a three-and-a-half-year-old daughter. He had a large extended 

family who lived near him, all in separate homes on part of a large piece of property. 

Defendant was dyslexic and had trouble reading and writing. His wife helped him 

prepare his statement. Defendant did not have issues complying with his bond 

conditions. For the first two months after his arrest, Defendant was actually prohibited 

from being around his own child. Defendant explained that he was able to abide by all 

the restrictions of his release, including the sex offender registry. Defendant explained 

that he “messed up” and “did things that [he] shouldn’t have done” and “didn’t stop them 

when they should have stopped.” Defendant denied initiating any kind of sexual 

encounter with the victim and apologized for failing the victim. On cross-examination, 

Defendant insisted that the victim “suggested” everything that happened. “She talked 

about it and stuff led into other things and she asked about, honestly, inappropriate things 

that [he] shouldn’t have never talked to her about.” Defendant described the victim as 

“curious.” Defendant explained,

there was one time when my hand was placed between her legs and then 

there was another night that she had come up and that was the night that I 

had come home from work and I was overly tired and stuff. Honestly, . . . , 

I’m sorry, because I don’t remember exactly all the details because I was so 

tired and stuff happened that shouldn’t have happened. 
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In all, Defendant admitted that there were four instances of abuse but denied penile 

penetration. At this point, the parties agreed that Count Two of the indictment should be

amended to allege digital penetration rather than penile penetration. As a result, the trial 

court amended Count Two of the indictment. The trial court also allowed Defendant to 

withdraw his guilty plea on Count Four (alleging sexual intercourse) and substitute a 

guilty plea on Count Five (alleging digital penetration).

2

At the conclusion of the sentencing hearing, the trial court denied judicial 

diversion and alternative sentencing. The trial court sentenced defendant to four years for 

each conviction, to be served consecutively, for a total effective sentence of sixteen years. 

Defendant appealed.

Analysis

Defendant complains that the trial court gave “little to no consideration” to 

alternative sentencing. Specifically, he argues that the trial court ignored the fact that he 

had no prior criminal history, was the primary caregiver in his family, and that his crimes 

were nonviolent. Additionally, Defendant argues that the trial court did not give any 

weight to sentencing principles, improperly sentenced him to the maximum sentence in 

the range for each offense, and improperly denied judicial diversion. Finally, Defendant 

challenges the trial court’s decision to order consecutive sentencing. The State argues 

that the trial court did not abuse its discretion.

When a defendant challenges the length or manner of service of a within-range 

sentence, this Court reviews the trial court’s sentencing decision under an abuse of 

discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This 

presumption applies to “within-range sentencing decisions that reflect a proper 

application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at 

707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal 

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an 

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) 

(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard 

does not permit an appellate court to substitute its judgment for that of the trial court. 

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the 

 

2 The State commented that “because digital, oral, and penile penetration are all the same level of 

offense for aggravated statutory rape” the State did not oppose the amendment or modification of the 

guilty plea.
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burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing 

Comm’n Cmts. 

A. Denial of Judicial Diversion

Defendant first argues that the trial court erred in denying judicial diversion. 

Judicial diversion is a form of probation that affords certain qualified defendants the 

opportunity to avoid a permanent criminal record. See T.C.A. § 40-35-313(a)(1)(A). 

“Judicial diversion is a form of ‘legislative largess’ available to qualified defendants who 

have entered a guilty or nolo contendere plea or have been found guilty of an offense 

without the entry of a judgment of guilt.” State v. King, 432 S.W.3d 316, 323 (Tenn. 

2014). If a defendant qualifies for judicial diversion, a trial court may defer proceedings 

without entering a judgment of guilt, placing the defendant on probation without 

categorizing the defendant as a convicted felon. Id. Upon successful completion of the 

probationary period, the trial court will dismiss the charges, and the defendant may seek 

expungement of the record, which “restore[s] the person, in the contemplation of the law, 

to the status the person occupied before such arrest or indictment or information.” King, 

432 S.W.3d at 323 (quoting State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999)); see

T.C.A. § 40-35-313(a)(2), (b). However, if the defendant violates the terms of his or her 

probation, “the court may enter an adjudication of guilt and proceed as otherwise 

provided.” T.C.A. § 40-35-313(a)(2). 

A defendant is eligible for judicial diversion if he or she is found guilty or pleads 

guilty or nolo contendere to a Class C, D, or E felony, has not been previously convicted 

of a felony or Class A misdemeanor, has not been previously granted judicial or pretrial 

diversion, and is not seeking deferral for a sexual offense. See T.C.A. § 40-35-

313(a)(1)(B)(i). Aggravated statutory rape, Defendant’s conviction offenses, are not 

classified as sexual offenses for purposes of judicial diversion. Id. “Eligibility under the 

statute does not, however, constitute entitlement to judicial diversion; instead, the 

decision of whether to grant or deny judicial diversion is entrusted to the discretion of the 

trial court.” King, 432 S.W.3d at 323. The trial court must consider several common law 

factors:

‘(a) The accused’s amenability to correction, (b) the circumstances of the 

offense, (c) the accused’s criminal record, (d) the accused’s social history, 

(e) the accused’s physical and mental health, and (f) the deterrence value to 

the accused as well as others. The trial court should also consider whether 

judicial diversion will serve the ends of justice—the interests of the public 

as well as the accused.’
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Id. at 326 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)); see 

State v. Electroplating, Inc., 990 S.W.3d 211, 229 (Tenn. Crim. App. 1998). “[T]he trial 

court must weigh the factors against each other and place an explanation of its ruling on 

the record.” Id. (citing Electroplating, Inc., 990 S.W.2d at 229). 

When the trial court considers the common law factors, “specifically identifies the 

relevant factors, and places on the record its reasons for granting or denying judicial 

diversion,” then this Court will “apply a presumption of reasonableness and uphold the 

grant or denial so long as there is any substantial evidence to support the trial court’s 

decision.” Id. at 327. Our supreme court has explained:

Although the trial court is not required to recite all of the Parker and 

Electroplating factors when justifying its decision on the record in order to 

obtain the presumption of reasonableness, the record should reflect that the 

trial court considered the Parker and Electroplating factors in rendering its 

decision and that it identified the specific factors applicable to the case 

before it. Thereafter, the trial court may proceed to solely address the 

relevant factors.

Id. Failure to consider the common law factors results in a loss of the presumption of 

reasonableness, and this Court will either conduct a de novo review or remand the case to 

the trial court for reconsideration. Id. A trial court can also abuse its discretion by 

considering and placing undue weight on an irrelevant factor. See State v. Chyanne 

Elizabeth Gobble, No. E2014-01596-CCA-R3-CD, 2015 WL 12978645, at *6 (Tenn. 

Crim. App. Aug. 12, 2015), no perm. app. filed. 

At the sentencing hearing, the State introduced the presentence report, which 

indicated that Defendant was forty years of age, had graduated from high school, and had 

a mechanic’s certificate from Tennessee Technology Center. Defendant provided a brief 

family history in preparation of the presentence report, during which he explained that his 

childhood “wasn’t bad” and that he grew up in a two-parent household. Defendant 

reported that his family, including his parents and two sisters, lived on property adjacent 

to his own. Defendant was still married to the victim’s mother and they had a small 

child. Defendant reported his own mental health as “fair.” He claimed to suffer from 

depression and anxiety from his legal issues. Defendant also reported that he was 

dyslexic. At the time of the hearing, Defendant was employed by Ray’s Towing and 

Repair, a company owned by his father. Defendant had no prior convictions. 

The presentence report included a victim impact statement in which the victim 

explained the degree to which the abuse had affected her life. She reported that she 

started cutting herself with a knife given to her by Defendant, took various pills, drank 
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cough syrup, and burned herself with pencil erasers to “keep [] from having real feelings 

and bury what [Defendant] did to [her].” She admitted that she only felt safe enough to 

tell someone about the abuse after five months in an inpatient facility. 

The trial court determined that Defendant was a Range I, standard offender with 

no prior criminal record. The trial court first considered judicial diversion, making 

specific findings with regard to each of the Electoplating factors. As to Defendant’s 

amenability to correction, the trial court noted that the court did not “think that is a 

positive factor in this particular situation.” When looking at the circumstances of the 

offense, the trial court noted that “because of the effects of these crimes, the 

circumstances are about as bad as [the trial court had] seen.” The trial court explained 

the victim had no family to give her stability where Defendant readily admitted that he 

breached the victim’s trust by abusing her repeatedly. The trial court was particularly 

concerned by the mental health effects on “this little girl.” The trial court noted 

Defendant had no criminal record, indicating this factor weighed in favor of diversion. 

Likewise, the trial court considered Defendant’s social history, or his “ability to know 

right and wrong,” noting that Defendant was diagnosed with a “paraphilic disorder” 

which is a “type of mental disorder characterized by a preference or obsession with 

unusual sexual practices.” The trial court concluded that the social history “does not 

weigh in favor of [Defendant]” but that the “status of [Defendant’s] physical and mental 

health” was “neutral.” With regard to deterrence, the trial court noted that there was 

immeasurable “deterrent effect in society to deter step-fathers from abusing their 14- and 

15-year-old stepdaughters.” Lastly, when considering whether judicial diversion would 

serve the ends of justice, the interests of the public as well as the accused, the trial court 

commented that the victim had “absolutely no relief in her environment” at home and that 

“the interest of the public cannot be served here in this case.” The trial court stated that 

“the interest of the public demands attention to dysfunctional families” and that it was “in 

the interest of the public to know what [Defendant] has done.” The trial court determined 

that diversion should be denied.

Here, the trial court engaged in a very detailed and thorough examination of the 

Electroplating factors prior to denying diversion primarily on the basis of the 

circumstances of the offense. Because the trial court properly identified and weighed the 

Electroplating factors, we afford the trial court’s decision to deny judicial diversion a 

presumption of reasonableness and assess whether there was any substantial evidence in 

the record to support that decision. King, 432 S.W.3d at 327; Parker, 932 S.W.2d at 958. 

After our review, we determine that there was substantial evidence in the record to 

support the denial of diversion. While Defendant was certainly amenable to correction, 

as evidenced by his employment record and lack of a criminal record, it was within the 

trial court’s discretion to conclude that Defendant’s social health history as well as the 

circumstances of the offense outweighed the other factors that favor the granting of 
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diversion. There is no denying the emotional nature of the abuse resulting from 

Defendant’s actions and the lasting effects on the victim. Defendant was an entrusted 

member of her family. While doing so, he used his position of authority to abuse her 

sexually. As a result of the abuse, the victim suffered unfathomable mental anguish. The 

trial court did not abuse its discretion in denying judicial diversion. Defendant is not 

entitled to relief on this issue.

B. Sentence Length

Prior to fashioning the length of the sentence for each conviction, the trial court 

noted that it was considering the guidelines set forth in Tennessee Code Annotated 

section 40-35-103, including the evidence at the sentencing hearing, the presentence 

report, Defendant’s testimony, the nature of the criminal conduct, the evidence with 

regard to mitigating and enhancement factors, Defendant’s potential for rehabilitation, 

and Defendant’s background. The trial court determined that Defendant’s employment 

history and his family support should be applied as mitigating factors. See T.C.A. § 40-

35-114(13). With regard to enhancement factors, the trial court determined that the 

victim was particularly vulnerable because of her age. See T.C.A. § 40-35-114(4). The 

trial court blamed Defendant for his contribution to “where the victim is now.” The trial 

court also determined that the personal injuries inflicted on the victim were great because 

the victim was “going to be looked over as it looks right now possibly the rest of her 

life.” Id. § 40-35-114(6). The trial court also found that the offense was involved to 

gratify Defendant’s desire for pleasure or excitement and that Defendant abused a 

position of private trust, as the victim’s stepfather. Id. § 40-35-114(7); (14). The trial 

court acknowledged that Defendant’s lack of criminal history was a mitigating factor. 

The trial court made clear that he was considering the imposition of a sentence justly 

deserved in relation to the seriousness of the offense, classifying Defendant’s actions as

“serious,” noting that the “only thing more serious is damage, physical damage through 

violence or homicide.” The trial court noted that there was “no excuse” for Defendant’s 

actions. With regard to Defendant’s potential or lack of potential for rehabilitation, the 

trial court took into account Defendant’s diagnosis of paraphilia, Defendant’s own 

“illogical version of the events,” and Defendant’s lack of understanding of his behavior 

as contributors to his poor prognosis in community-based treatment. As a result, the trial 

court sentenced Defendant to four years for each conviction. We conclude that the length 

of the sentence is not excessive.

C. Alternative Sentencing

A defendant is eligible for alternative sentencing if the sentence actually imposed 

is ten years or less. See T.C.A. § 40-35-303(a). Moreover, a defendant who is an 
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especially mitigated or standard offender convicted of a Class C, D, or E felony should be 

considered a favorable candidate for alternative sentencing absent evidence to the 

contrary. See T.C.A. § 40-35-102(6). Defendant was convicted of Class D and E 

felonies and several misdemeanors and was sentenced to an effective sentence of sixteen 

years. Defendant was eligible for probation based on the length of each of his sentences

and the fact that he was a standard offender. 

Although the trial court is required to automatically consider probation as a 

sentencing option, see Tennessee Code Annotated section 40-35-303(b), no criminal 

defendant is automatically entitled to probation as a matter of law, see State v. Davis, 940 

S.W.2d 558, 559 (Tenn. 1997). It is the defendant’s burden to establish his or her 

suitability for full probation. See State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) 

citing T.C.A. § 40-35-303(b)). The defendant must demonstrate that probation will 

“subserve the ends of justice and the best interests of both the public and the defendant.” 

Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. 

Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to probation 

consideration are the circumstances of the offense; the defendant’s criminal record, social 

history, and present condition; the deterrent effect upon the defendant; and the best 

interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 

1978). Tennessee Code Annotated section 40-35-103(1) sets forth the following 

sentencing considerations, which are utilized in determining the appropriateness of 

alternative sentencing:

(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.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, 

“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant 

should be considered in determining the sentence alternative or length of a term to be 

imposed.” T.C.A. § 40-35-103(5). A defendant with a long history of criminal conduct 

and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for 

alternative sentencing. T.C.A. § 40-35-102(5). Our supreme court has specifically held 

that the abuse of discretion standard, with a presumption of reasonableness, also applies 

to a review of a denial of alternative sentencing. Caudle, 388 S.W.3d at 278-79. 
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Here, the trial court stated if we “can’t protect our children in society, we might as 

well hang it up,” deeming confinement necessary to avoid depreciating the seriousness of 

the offense. The trial court did not abuse its discretion in denying an alternative sentence. 

Defendant is not entitled to relief.

D. Consecutive Sentencing

In State v. Pollard, 432 S.W.3d 851 (Tenn. 2013), the Tennessee Supreme Court 

expanded its holding in Bise to also apply to decisions by trial courts regarding 

consecutive sentencing. Id. at 859. This Court must give “deference to the trial court’s 

exercise of its discretionary authority to impose consecutive sentences if it has provided 

reasons on the record establishing at least one of the seven grounds listed in Tennessee 

Code Annotated section 40-35-115(b).” Id. at 861. “Any one of [the] grounds [listed in 

section 40-35-115(b)] is a sufficient basis for the imposition of consecutive sentences.” 

Id. at 862 (citing State v. Dickson, 413 S.W.3d 735 (Tenn. 2013)). As relevant to this 

case, the trial court may order sentences to run consecutively if it finds by a 

preponderance of the evidence that “[t]he defendant is convicted of two (2) 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 defendant’s undetected sexual activity, the nature and scope 

of the sexual acts and the extent of the residual, physical and mental damages to the 

victim . . . .” T.C.A. § 40-35-115(b)(5).

In considering consecutive sentencing, the trial court determined that Defendant 

qualified because he

Committed 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 the victim . . . , 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[.]

T.C.A. § 40-35-115(b)(5). In applying consecutive sentencing factor (5), the trial court 

noted that Defendant was at least twenty-one years older than the victim, whose mother 

did a “terrible job” by losing custody. The victim needed a father figure, tried to find one 

in Defendant, and ended up getting abused by Defendant. The trial court noted that the 

time span of the abuse was unknown. The trial court took issue with the fact that “much 

has been made about [the victim’s] initiating or starting these acts” commenting that he 
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was “tired of men coming into this courtroom and saying I was seduced by a little girl.” 

Defendant admitted to a wide scope of sexual acts, which the trial court found 

“completely inexcusable.” The trial court found the victim suffered severe residual 

physical and mental damage which required inpatient treatment, medication management, 

and therapeutic intervention to treat her wide-variety of mental and physical issues either 

brought on or exacerbated by Defendant’s actions. The trial court determined there was a 

“lot of truth” in the description of Defendant as a “monster.” As a result, the trial court 

ordered the sentences to be served consecutively to each other for a total effective 

sentence of sixteen years at thirty percent. The record reflects that the trial court engaged 

in a careful consideration of the facts and the law. Defendant has failed to show that the 

trial court abused its discretion in applying the consecutive sentencing factor related to 

the commission of two or more offenses involving the sexual abuse of a minor, allowable 

in T.C.A. § 40-35-115(b)(5). 

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

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TIMOTHY L. EASTER, JUDGE