# FILED
July 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9804-CR-00160 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, DONNIE DEAN ROLIN, ) JUDGE ) Appellant. ) (Statutory Rape and Incest )

FOR THE APPELLANT : V. MICHAEL F

OX 315 Deaderick Street First American Center, 20th Floor Nashville, TN 37238-2075 FOR THE APPEL LEE : PAUL G. SUMMERS Attorney General and Repor ter LUCIAN D. G EISE Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General ROGER D. MOORE Assistant

District Attorney

General Washington Square 222-2nd Avenue North, Suite 500 Nashville, TN 37201-1649

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 It is this Court’s policy not to rev eal the names of minor sexual ab use victims. 2 OPINION

Defendant pled guilty to two counts of statutory rape, Class E felonies, and three counts of incest, Class C felonies, with no agreement as to sentencing . The trial co urt senten ced defendant to two years for each count of statutory rape and five years for each count of i ncest with all counts running consecutivel y for an effect ive sente nce of nin eteen years. In this appeal as of right, defendant challengesonlythe impo sition of consecut ive sentencing. A thorough r eview of the record reveals no error by the trial court. Therefore, the judgment of the trial court is AFFIRMED.

I. BACKGROUND
Defendant gained custody of his minor daughter, C.R., 1 in December 1995 and brought her to live with him and his ex- wife in Pulaski, Tennessee. From January to October 1996, defendant engaged in sexual acts (penil e-vaginal, penileanal, and oral) with C.R. two to three times a week.

Defendant took C.R. out of school in February 1996. She accompanied him
on his long-haul trucki ng trips until May 1996.Then, defendant and C.R. moved out of the Pulaski

home and went to live with relatives in the Nashville area. In August 1996, they set up a household of their own where C. R. was responsible for all the household chores: cook ing, c leaning, laundry, etc . Defendant never re-enrol led C.R. in school, and from August until O ctober when C.R. ran aw ay, defendant effectively treated her as his wife.

A Davidson County grand jury indicted defendant on seven co unts o f3

statutory rape, ei ght cou nts of i nce st, and one count of rape. Pursuant t o an agreementwith the state, defendant pled guilty to two counts o f statuto ry rape, Class E felonies, and three counts of inces t, Class C felonies. All other counts were dismissed. Sentencing w as left to the trial court.

II. SENTENCING HEARING

The trial court conducted a s entencing hearing to deci de the appro priate length and manner of service of the sentenc es. A fter re viewing the proper sentencing considerations, enhancement and mitigating factors, a ll testimony and
e vidence presented, and arguments by counsel, the trial court imposed two-year sentences for each count of statutory rape and five-year sentences foreach count of incest.
Next, the trial court reviewed the considerations relat ing to alternative and
consecu tive sentencing and determined inc arceration and the imposition of
consecu tive sentences to be appropriate. It denied alt ernative sentencing and ordered all defendant’s sentences to run consecutively, r esulting in a nineteen-y ear prison sentence.

Defendant neither challenges the l ength of each sentence nor the denial of alternat ive sentencing. Furt her, d efendant concedes the applicabilit y of Tenn. Code Ann. § 40-35-115(b)(5) w hich provides that a court may order sentences to run consecutively if it finds by a preponderance of the ev idence that: [t]he defendant is convicted of t wo (2) or more statutor y offenses involving sexual abuse of a minor with co ns ideration of the aggravating

circumstances

arising from the relationship between the defendant and v ictim or victims, the time span of defendant's undetect ed sexual activity , the nature and scope of the sexual acts and the extent of the residual, phy sical and mental damage to the victim or victims.4

Nevertheless, defendant asserts that the total sentenc e is not reasonably rel ated to the severity of the offenses.

III. STANDA

RD OF REVIEW

This Court’s review

of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn.Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho wing in the rec

ord that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

The bu rde n is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Se ntencing Commission Comment s. If our review reflect

s that the trial court foll owed the statutory sentencing procedure, imposed a lawful sentence after gi ving due consideratio n and proper weight to the factors and principles set out under sentencing law , and the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence
e v en if we would have pr eferred a different result. State v. Fletcher, 805 S.W.2d 789 (Tenn. Crim. App. 1991).

Our review reveal s that the trial court conducted a thorough anal ysis of the appropriate sentenc ing considerations, enhancement and mitigati ng factors, and the evidence in its decisi on to impose an effective nineteen-y ear sentence.

IV. CONSECUTIVE SENTENCING2 We recognize that the applicability of th e Wilkersonfactors to categories other than dangerous offenders has not been fully resolved. See State v. David Keith Lane , C.C.A. No. 03C01-960

7-CC-0 0259, Bradley

County (Tenn. Crim. Ap p. filed June 18 , 1997, at Kno xville), perm. to app. granted

(Tenn. Februar

y 2, 1998).
3 The record reflects that defendant’s first counseling session was on February 10, 1997, six days after the sentencing hearing was originally scheduled.

5 Once a trial court determines that a de fend ant is statutorily el igible for consecutive sentencing , see Tenn. Code Ann. § 40-35-115(b), i t should also determine whether the consecutiv e sentences (1) are r

ea sonably related to the severity of the of fenses committ ed; (2) se rve t o protect the public from further criminal conduct by the offender; and (3) ar e congruent

with gener

al principles of sentencin g. Tenn. Code Ann. § 40-35-115 Sentencing Comm ission Comments; State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). 2 Once again, the trial court in this case complied with these statutory and precedential mandates.

The trial court first deter mined that consecutive sentenc es were appropriate forthis defendant giventhe applicability of Tenn. Code An n. § 40-35-115(b)(5) (consecu tive sentenci n g appropriate for a defendant convicted of two or more statutory offenses involving sex ual abuse of a minor). The court also expressly stated that: “I’m also considering State v. Wilkerson , which indicates I h ave to consider the aggregate term an d whethe r or not it is necessar y to protect the public from further s erious conduct by the defendant. Given the nature of these, the fact that he has just recently gotten into treatment, I’m going to

find that each one of these convictions is going to run consecutive to another, for a total e ffect ive sentence of 19 years.” 3 (Emphasis added).
This statement clearly indi cates that the trial court considered the Wilkerson factors in its imposition of an agg regat e sen tence of nineteen years. The court’s findings sufficiently support the impos ition of the consecu tive sentences. Defendant has failed to show that the sent ence was improper.

CONCLUSION6 Based upon the foregoing, the judgment of the trial court is AFFIRMED.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOSEPH M. TIPTON, JUDG E

____________________________ ALAN E. GLENN, JUDGE