FILED

July 19, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JUNE 1999 SESSION

STATE OF TENNESSEE, )

) 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 FOX

315 Deaderick Street

First American Center, 20th Floor

Nashville, TN 37238-2075

FOR THE APPELLEE:

PAUL G. SUMMERS

Attorney General and Reporter

LUCIAN D. GEISE

Assistant Attorney General

Cordell Hull Building, 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 FILED: 

AFFIRMED

JOE G. RILEY,

JUDGE
1

It is this Court’s policy not to reveal the names of minor sexual abuse 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 court sentenced defendant to two years for each count of statutory rape and

five years for each count of incest with all counts running consecutively for an

effective sentence of nineteen years. In this appeal as of right, defendant

challenges only the imposition of consecutive sentencing. A thorough review 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 (penile-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 trucking 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: cooking, cleaning, laundry, etc. Defendant never re-enrolled

C.R. in school, and from August until October when C.R. ran away, defendant

effectively treated her as his wife. 

A Davidson County grand jury indicted defendant on seven counts of
3

statutory rape, eight counts of incest, and one count of rape. Pursuant to an

agreement with the state, defendant pled guilty to two counts of statutory rape,

Class E felonies, and three counts of incest, Class C felonies. All other counts were

dismissed. Sentencing was left to the trial court. 

II. SENTENCING HEARING

The trial court conducted a sentencing hearing to decide the appropriate

length and manner of service of the sentences. After reviewing the proper

sentencing considerations, enhancement and mitigating factors, all testimony and

evidence presented, and arguments by counsel, the trial court imposed two-year

sentences for each count of statutory rape and five-year sentences for each count

of incest. 

Next, the trial court reviewed the considerations relating to alternative and

consecutive sentencing and determined incarceration and the imposition of

consecutive sentences to be appropriate. It denied alternative sentencing and

ordered all defendant’s sentences to run consecutively, resulting in a nineteen-year

prison sentence. 

Defendant neither challenges the length of each sentence nor the denial of

alternative sentencing. Further, defendant concedes the applicability of Tenn. Code

Ann. § 40-35-115(b)(5) which provides that a 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 damage to the

victim or victims.
4

Nevertheless, defendant asserts that the total sentence is not reasonably related

to the severity of the offenses. 

III. STANDARD 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 showing in the record 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 burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

If our review reflects that the trial court followed the statutory sentencing procedure,

imposed a lawful sentence after giving due consideration 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

even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d

789 (Tenn. Crim. App. 1991). 

Our review reveals that the trial court conducted a thorough analysis of the

appropriate sentencingconsiderations, enhancement and mitigating factors, and the

evidence in its decision to impose an effective nineteen-year sentence. 

IV. CONSECUTIVE SENTENCING
2We recognize that the applicability of the Wilkerson factors to categories other than

dangerous offenders has not been fully resolved. See State v. David Keith Lane, C.C.A. No.

03C01-9607-CC-00259, Bradley County (Tenn. Crim. App. filed June 18, 1997, at Knoxville),

perm. to app. granted (Tenn. February 2, 1998). 

3The 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 defendant is statutorily eligible for

consecutive sentencing, see Tenn. Code Ann. § 40-35-115(b), it should also 

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles of

sentencing. Tenn. Code Ann. § 40-35-115 Sentencing Commission 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 determined that consecutive sentences were appropriate

for this defendant given the applicability of Tenn. Code Ann. § 40-35-115(b)(5)

(consecutive sentencing appropriate for a defendant convicted of two or more

statutory offenses involving sexual abuse of a minor). The court also expressly

stated that: 

“I’m also considering State v. Wilkerson, which indicates I have to

consider the aggregate term and whether or not it is necessary to

protect the public from further serious 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 effective sentence of 19

years.”3

 (Emphasis added).

This statement clearly indicates that the trial court considered the Wilkerson

factors in its imposition of an aggregate sentence of nineteen years. The court’s

findings sufficiently support the imposition of the consecutive sentences. Defendant

has failed to show that the sentence was improper. 

CONCLUSION
6

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

____________________________

JOE G. RILEY, JUDGE

CONCUR:

____________________________

JOSEPH M. TIPTON, JUDGE

____________________________

ALAN E. GLENN, JUDGE