### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A pr il 7, 200 4 S es sio n

STA TE OF TEN NES SEE v. RONALD FI ELDI NG

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2001-D- 2358 Cheryl Blackbu rn, Judge

No. M2003- 01055-CCA -R3-C D - F iled May 4, 2004

The De fenda

nt, Rona ld F ielding, pled g uilty to three c ounts of rape of a c hild, one count of ra pe of an inca pacitate d victim and two counts of ag g ravated sexual battery

. Fo l l o wi n g a sente ncing hear ing, the trial court imposed a n ag g reg ate se n t en ce o f fi fty y ear s in prison to be serve d at 100
perc ent. On appe al, the De fend an t co n t en d s that: (1) the trial c ourt improperly weig hed the

e nh a nc e me nt a

nd mit ig a tin g fa c tor s; ( 2) the tr ia l c ourt a bu se d it s d isc re tio n b y

or de ri ngthat hi s sentenc es run consecutively ; and (3) his sentence is ex cessive. F inding no e rror , we a ffirm the tria l

c ourt ’s jud g me nts

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the cour t, in which D AVI D H. W ELLES and A L AN E. G L EN N , J J ., joined.

Da v i d G. Hi rs h b er g, Na s h v i l l e, T en n es s ee , fo r t h e ap p el l an t , R o n al d Fi el d i n g.

Paul G

. Su

mm e r s , A tt o r

n e y G e n e r a l a n d Re porter; Micha el Moore, Solicitor Ge nera l; Helena Walton Yar broug h, Assistant Attorney Gene ral; Victor S. J ohnson, I I I , District Attorney Gene ral; B erna

rd McEvoy , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts

Th is c a se inv olv e s the se nte nc ing of the De fe nd a nt a ft e r h e ple d g uil ty to r a pin g a nd se xua lly abusing three boy s betwee n Aug ust 15, 2000, and April 15, 2001. The Da vidson County

Gra nd J ury indicted the De fenda

nt on thirty -seve n co unts of ag g ravated sexual battery , rape , child rape , statutory rape , furnishing alcohol to a minor, e x posing a minor to pornog raphy and rape of an inca pacitate d victim. On Aug ust 9, 2002, the Def endant pled g uilty to three c ounts of rape of a c hild, one count of ra pe of a n incapa citated vi ct i m an d two counts of ag g ravated sexual battery , and the tria l court dis mis se d a ll the oth e r c ounts

. Th e pa rt ie s a g re e d in the ple a

a g re e me nt t o a llo w t

he tr ia l c ourt

to deter mine the Def

endant’ s sentence s, with a m ax i m um total sentence of fifty y ear s. After

aIt i s t he p o l i cy o f t his C o urt t o use the i nit i als o f ch i l d rap e v i cti m s i nstea d o f t he i r f ull na m es. 1

-2- sentenc ing he aring , the trial cour t imposed an ag g reg ate se ntence of fifty y ear s to be served at 100
pe rc e nt. Th e De fe nd a nt n owa pp e a ls.

The following ev i dence was pre sented at the Def endant’ s sentencinghear ing on A pril 2, 2003. Reg ina Dave nport testified that she wa s the sister of M.D., one of the victims in t his case. 1 Dave nport stated that M.D. k n ew the Defe ndant betwe en two or thre e y ear s befor e the De fenda nt

was a rre sted in April of 2001. She explained that she had three brothers, inc luding M.D., a nd her br oth e rs did

no t a ll h a ve the same fathe r. Da ve np or t sta te d tha t she a nd he r b ro the rs liv e d w iththe ir mother, who wa s disabled and una ble to work. She testified that, w hen M.D. wa s y oung er, his father was not at home, a

nd their family

strug g led financ ially

.

Da ve np or t st a te d th a t he r f

a mil y me t th e Def

e nd a nt t hr ou g h o ne of

he r f or me r b oy fr ie nd s, who was the Def

endant’ s friend. She explained that, after initially meeting M.D. and the r est of her family , the Def

endant star

ted coming by

their home ever

y day to he lp M.D

. with his homework. She stated that, starting when M.D. was nine y ear s old, M.D. spent ever y wee kend fr om Frida

y evening until S unday

eveningat the De fenda

nt’s home. Dave nport testified t hat t he Defenda nt bought M.D. clothing, shoe s, winter coats, jewelry , bicy cles a nd Nintendo g ames. She said, “ [Th e D e f e ndant] was

a l w a y s t a k i n g h i m t o t h e a r c a d e s , a l w a y s t a k i n g h i m t o t h e m o v i e s , a l w a y s m a k i n g su re he a te supper, just any

thing [M.D.] wanted or neede d, he g ot it.” Dave nport testified that, at first, she a nd her mother wer e g rate ful for the Def endant’ s help beca

use they thought “he was just trying to be a g oo d p e rs on ” a nd

he lp t he m out. S he state d th a t, b e c a us e M. D. ’s fa

the r w a s n ot p lay inga

ro le in h is life, she wa s g rate ful that there was a man taking an intere st in M.D. and being a fath er-fig ure. Da ve np or t sa id t hat th e De fe nd a nt’ s r e la tio ns hip wi th M .D . la ste d a pp ro xima te ly

tw o- a nd -a -h a lf

to three y ear s. She expl ained that the D efe ndant ac ted like a fathe r-f igur e by disciplining M.D. for ba d
g rade s. Dave nport testified that the De fenda nt also had fr iendships with other boy s the same a g e as M. D. a t the tim e he ha d the re la tio ns hip wi th M.D

. She state d th a t th e De fe nd a nt i ntr od uc e d h ims e lf to another pa

rent a s M.D.’s father.

M.D. testified that he w as thirteen at the time o f t h e h ea ri ng and in the eig hth gr ade. H e state d th a t he me t th e De fe nd a nt wh e n he wa s nin e y e a rs old a nd in the fo ur th g ra de , a

nd he be c a me friends w ith the Defe ndant. M.D. st at ed that, duringthe fourth, f ifth and six th gr ades, he saw the Def endant on most afte rnoons and spent wee kends at the D efe ndant’s home. He explained that, at first, he liked the D efe ndant and trusted hi m beca use he was li ke a fathe r t o him. M.D. stated that the Def endant sometimes told other people that he was M.D.’s fathe r. M.D. testified that there wer e times when the De fenda

nt touched M.D.’s pe nis with his hand and masturbated him, a nd there wer e times when M.D. touche d the Def endant’ s penis and masturbated hi m. M.D. further testified that there wer e times when the Def endant pe rfor

med oral sex on M.D., and there w ere times when M.D. perf ormed oral sex on the Defenda nt. M.D. also stated t hat t here wer e ti mes that the Defenda nt had him bend over, a

nd then the De fenda

nt would rub his penis betwee n M.D.’s buttocks. M.D. testified that the Def

endant a bus ed him on more than one oc casion. He stated that he w itnessed the Def endant e ng ag e in sexual activity with other boy s who wer e und er the ag e of e ighte en. M.D.-3-

testified that the De fenda

nt provided alcohol to him and other boy s, and the Def endant showe d them
pornog raphy

depicting naked men and women. M.D. explained that two out of ever y four we ekends he sp e nt w iththe De fe nd a nt i nv olv e d e ng a g ingin s e xua l a c tiv ity wi th t he De fe nd a nt. He state d th a t, when he spent the we ekend at the Def endant’ s ho m e, h e wo uld sleep on the c ouch and in the De fe nd a nt’ s b e d. M. D. e xpla ine d th a t, w he n h e sle pt i n th e De fe nd a nt’ s be d, the De fe nd a nt w ou ld
tou c h h im a

nd a bu se him

. Sherry Cook testified that she was the g randmother of J .D., another victim in this case . Cook stated that she ha s raised J.D. since he w as eig ht y ear s old beca use his pare nts were on drug s. She testified that she a lso care s for J.D.’s y oung er sister. Cook stated that, during the time that J .D. lived wi th h e r, J.D. ’s fa

the r h a d n ot b e e n a

pa rt of his lif

e

. She e xpla ine d th a t J.D . w a s e le ve n y e a rs old when he met the Defenda

nt, and their relationship lasted about six months befor e the De fenda nt was

arr ested in April of 2001. Cook explained that J .D. met M.D. and J.M., all victim s in this case, at the community cente r in O ctober of 2000, and the De fenda nt introduced himself a s M.D.’s father. Cook st ate d that th e De fe nd a nt t old J.D. that M. D. “ did

n’ t ha ve a ny fr ie nd s and

[the De fe nd a nt] wanted [M.D.] to become fr iends with [J .D.] and [ J .M.]” She testified that she believe d that M.D. was the Def

e n d a n t’ s s o n , “ th a t h e o n ly

g o t t h a t c h il d o n th e w e e k e n d s , a n d

Ia s s u me d

h e was divorce d or sepa

rate d from his wife. . . .”

Cook te stified that, afte r J .D. met the Def endant in O ctober of 2000, J .D. “wa s happy to meet [t he De fenda

nt] and [M.D.] and [J .M.] and he alway s came home and br ag g ed to me about [ how the Def endant] reminded him of his dad. [The Defenda nt] would take him and play video g ames a

nd take him to the movies

. . ., and [J .D.] wa s rea lly happy

. . . .” She explained that, “ all of a sudde n, [J .D.] just started c hang ing. He h ad an attitude proble m and then I rea liz ed something was g oing

on .” C o o k

s a i d t h a tJ. D

. v i s i t e d

t h e D e f e n d a n t ’ s h o m e a l m o s te v e r y w e e k e n d

. S h e r e p o rt e d

t h a t, since the D efe ndant’s ar re s t , J

. D. has had be havior proble ms and “g ets ang ry very easily .” Cook testified that, bef

ore me eting the Defenda

nt, J .D. m ade very g ood g rade s, but, since be ing a bused by the De fe nd a nt, he re pe a te d a g ra de in s c ho ol a

nd ma de po or

g ra de s.

J .D. testified that he w as thirteen y ear s old at the time of the hear ing. J .D. stated that he met the Def endant i n October

of 2000 and be came friends w ith him for about six months unti l the Def endant’ s arr est in April of 2001. J.D. said that he en j o y ed s p en d i ng time with the Defe ndant beca use he w ould take him to the mal l an d t o m o v i es

. He state d that he we nt to the Defe ndant’s house almost ever

y wee kend for about six months. J .D. testified that, when he spent the nig ht at the D e f e n d a n t ’ s h o u s e , h e w o u l d u s u a l l y s l e e p o n t h e c o u c h o r t h e f l o o r

. H e e x p l a i n e d

t h a to t h e r

b o ys would spend t he night at t he Defenda nt’s house as well, i ncluding J .M. and M.D. J .D. s tated that he slept in the bed w ith the Defen d an t o n o n e occasion, and J.M. slept in t he De fenda nt’s bed a couple of times. J .D. testi fi ed t h at t h e Defenda nt ga ve him, J .M. and M.D. alc ohol and
pornog raphy , and the De fenda nt smoked marijuana in their prese nce. J.D. testified that the Def endant touche d J .D.’s penis with hi s hand a couple of times. He reported that the Def endant trie d to perform o ra l sex on him, but J .D. pushed his hea d awa y . J .D. stated that he touched the De fe nd a nt’ s p e nis wi th h is h a nd a c ou ple of tim e s, bu t he did no t pe rf

or m or a l se x on th e De fe nd a nt. J .D. testifi ed t h at t h e De fenda nt sex ually

abused him on one out of e very four we ekends he spent-4-

with the Def

endant. J.D. stated that he sawthe Def endant se x ually

abuse J.M. and M.D.

R h o n d a Hanna

h testified that she wa s the mother of J.M., another victim in this case. Hanna h stated that J.M .’s father wa s dece ased w hen J.M. m et the De fendant in October of 2000. She explained that J .M. met the Defenda nt and M.D. at t he civic cente r, and the Defenda nt told her and J.M. t hat M.D. was his son. Ha nnah testified that the D efe ndant told her a nd J .M. that M.D. was
new to the area and did not have a ny friends, so the D efe ndant aske d if J .M. could spend the nig ht with his son, M.D. Hannah stated that she trusted the De fenda nt and ag ree d to allow J .M. to spend the nig ht with M.D. at the Def endant’ s house. She explained that J .M. went to the De fenda nt’s ho us e e ve ry we e ke nd fo r six mon ths , unti l the De fe nd a nt wa s ar re ste d in Ap ri l of 20 01 . H a nn a h s a id that she believe d that J .M.’s time with the Defe ndant was he lping J.M. because the Defenda nt “was
takin g [J.M.] to the mov ie s and ic e sk a tin g and sw imm ingand he wa s ju st d oin g so muc h w ith [J.M.]” She e xpla ine d tha t she tho ug ht it wa s g oo d for J.M. to h a ve a no the r m a n in his lif e “ be c a us e his daddy was g one.” H annah te stified that, beca use of the Def

endant’ s sexual abuse of J.M., her son is ang ry

and bac ks awa

y from people. She explained that J .M. does not show any emotions and his gr ades in school ha

ve dropped. She state d that J .M. was an honor roll student before the abuse
, a nd no w h e re c e ive s C’ s and D’ s.

J .M. testified that he was fiftee n and in the ni nth g rade at t he ti me of the hearing

. J .M. stated that he was thirteen y ear s old when he me t the Def endant in Oc tober of 2000. H e testified that, a fter meeting t h e De fe ndant, he be g an spendingmost weeke nds at the De fenda nt’s house until the Def endant wa s arr ested in A

pril of 2001. J .M. explained that, w hen he would spend the wee kend at the De fenda

nt’s home, he would sometimes slee p on the couc h an d sometimes sleep in the Def endant’ s bed. J.M . stated that, whe n he, M.D. a nd J .D slept over at the Def endant’ s home, one of them would alwa

y s sleep in the Defenda

nt’s bed. J .M. explained that the Defenda nt would decide wh o w ou ld s le e p w he re . H e re po rt e d th a t the De fe nd a nt pr ov ide d alc oh ol an d por no g ra ph y to h im and the other

boy s, and the De fenda

nt smoked mariju an a in t heir pre sence . J .M. testified that the De fe nd a nt t ou c he d J .M .’ s p e nis wi th h is h a nd , a nd J.M. t ou c he d th e De fe nd a nt’ s p e nis wi th h is hand. J.M. further testified that the D efe ndant performed or al sex on him on more than one

occa sion. J .M. stated that the De fenda nt “tried to put all three of our penises in his mouth” at the Music City Sheraton locke r room. J.M. t estified that he sa w the De fenda

nt sex ually

abuse M.D. a

nd J .D.

Br andon Carmona testified that, in J uly

of 2 0 0 0
, h e and some of his fr iends saw the Def endant masturbating in an open restroom stall at the wave pool. Carmona stated that he later saw the Def endant at the Old Hickory Communi ty

Center with J.D., J .M. and M.D.

Sha ne Rus se ll tes tif

ie d tha t he wa s fou

rt e e n at the tim e of the he a ri nga nd wa s f ri e nd s w ith M.D. He stated that he met the Def endant throug h M.D., and the Def endant introduced himself a s M. D. ’s un c le . Ru sse ll s a id t hat th e De fe nd a nt as ke d him to g o to the mov ie s or to th e ma ll w ithhim and M.D. Russell stated that the Def endant called his sc hool, told them he wa s Russell’s dad and asked to spea

k to Russell. Russell explained that he spoke with the De fenda nt and g ave the D e f e n d a n th i s h o m e p h o n e n u m b e r

. H e s t a t e d th a t t h e D e f e n d a n tc a l l e d

h i m “ j u s ta b o u te v e r y d a y”-5-

and “a sked if I

was masturbating a

nd if Iwas watching a porno or som ething .” Russell testified that he neve r went to the Defenda nt’s home and was not sexually abused by the Defenda nt. He state d that the Def

endant stopped calling afte r his mother told the Def endant that the police wer e tra cing his ph on e c a lls

.

Th e De fe nd a nt t e sti fi e d th a t he ple d g uil ty “ [i]n th e be st i nte re st o f t

he vic tim s and in my

be st interest to avoid a tr ial and co v er age

. ” The Def endant a cknowledg ed re ading the psy cholog ical sexual evaluation repor

t prepa red by a psy cholog ist and agr eed w ith the contents of the r eport. He ag ree d that the re port stated, “[The De fenda nt] does not y et appe ar to fully understand and ac cept the seriousne ss and chr onocity of his socially

unacc eptable be havior pattern, addic tive behavior , and failure to acc ept his responsibility as an a dult la w- ab i d i n g citizen.” The re port also stated, “ [The Def endant] is a seriously

troubled individual who has not y et demonst rate d the capacity to learn f rom his past mist ak es and a

void repe ating them. Sanctions in the past do not appea r to have been eff ective a s a dete rre nt.” The Def endant e x plained that, “a s far as what the evaluation said, that was

a t a po int wh e re I was bei ng sel fi sha nd no t r e a lly

c on sid e ri ngthe vic tim s in thi s c a se , a

nd a t th is point, I take f

ull responsibilit y and own up to the things Ihave done .” The Def endant testified that he wa s sexually

abused star

ting at ag e nine a

nd ending at ag e thirtee n. He state d that three teen- ag ed boy s sexually

assaulted him on seve ral oc casion s. The De fenda nt expl ained that he abused the victims because “I

believe it is from pa st abuse and ba sically g ender confusion, thing s of that nature
, mix ed with [the fac t that] I did have drug problems t hat also came in around tha t same time.” He
state d th a t he sta

rt e d u sin g mari

jua na a t aro un d a g e thi rt e e n a

nd con ti nu ed u sin g mari

jua na da ily until his arr est in April of 2001. The D efe ndant t estified that he understood what the victims wer e g oing thr oug h in this case bec ause of his experience of being sex ually abused. He e x plained, “I fee l

remorse and I

fee l bad about the thing s that I ’ve done .”

The De fenda

nt testified that he would tell the police and the District Attorney ’s Off ice the name of his attacke rs and g ive them information about a homicide ca se he he ard f rom another
pr iso ne r. Th e De fe nd a nt s ta te d th a t he ho pe d th at th e tr ia l c ou rt , whe n se nte nc inghim , w ou ld consider the fac t that he did not phy sically injure any of the victims a nd the fa ct that he r ecog nizes that he has a problem and nee ds therapy . He e x plained that he w ill seek psy chiatric help when he is in c a r c e r a te d

. T h e D e f

e n d a n t s tate d
, “ I h o p e a t s o me p o in t in my o ld e r a g e th a t I would have a chanc e to . . . be e ntere d back into the c ommunity .” He explained that, if he we re r elea sed later on,

“ I wo uld ho pe that I c ou ld may be c ouns e l or tal k to othe r se x off e nd e rs wh o h a ve of

fe nd e d a nd he lp them cope with their problems that they are having . . . .” The Def endant a sked for

the victims’ and their families’ forg iveness, and stated, “Please have compassion in your hear ts a nd understand that Iwas a bused also as a

child.”

On cr oss-examination, the Defe ndant admitted to being attrac ted to teen-a g e boy s, but not
very y oung boy s. The Def

endant a cknowledg ed telling the psy cholog ist that he did not know that

s e x u a l l y a b u s i n g t h e v i c t i m s w a s u n l a w f u l

. T h e D e f

e n d a n ta d m i t t e d

s e x u a l l y a

b u s i n g an o t h e r

b o y, J.C., bu t st a te d th a t he did no t r e me mbe r w hat he did to t he bo y . The De fe nd a nt t e sti fi e d th a t he did not know why

he ca lled Russell repeatedly . He de nied providing alcohol to the victims, but admitted
pr ov idi ngpo rn og ra

ph y to t he m.-6-

After consi deringthe evidenc e pre sented at the sentenc ing he aring , including the present ence repor

t and the psy cholog ical sexual evaluation report, the tria l court found that the follow i n g en h an ce m en tfa ct o rs we re ap p l i cab l e t o t h e D ef en d ant’s convictions pursuant to Tennesse e Code Annotated se ction 40-35-114 ( 1997 & Supp. 2002):

(2) The defe ndant has a previous history of cr iminal convictions or criminal beha vior in addition to thos e nec essar y to establish the appropr iate ra ng e; . . . (8) The offe nse involved a vic tim and was committed to g ratify the def endant’ s desire f or plea sure or

excitement [ for the c onvict i o n s of child ra pe and r ape of

an in c a p a c it a te d v ic ti m] ; (9) The defe ndant has a previous history

of u n wi l l i n gness to comply with the conditions of a sente nce involving rele ase in the c ommunity ; . . .[ and] (1 6) Th e de fe nd a nt a

bu se d a po sit ion of pu bli c or pr ivate tr us t, o r u se d a

sp e c ia l sk ill in a manner

that signific antly

fac ilitated the commission o r t h e fulfillment of the offe nse. . . .

The trial c ourt found that the Def endant’ s asser

tion that he was a

bused as a

child was a

mitigating fac tor, but the trial cour

t stated, “I’m n o t g oing to g ive it any weig ht. . . .” The tria l court g ave “sig nificant we ight” to t h e en h an ce ment fac tors that the Def endant a bused a position of public or private trust a

nd that he has a

previous history

of cr iminal convictions or criminal beha vior.

The trial c ourt then s entenc ed the Def endant to twenty -five y ear s for e ach c onviction for ra pe of a c hild, Count s 13, 18 and 19, and twelve y ear s for each conviction of ag g ravated sexual battery and ra pe of a n incapa citated victim, Counts 9, 15 and 30. The trial c ourt found that the maximum

se nte nc e on e a c h co nv ic tio n wa s “ju stl y de se rv e d” be c a us e of the e nh a nc e me nt f

a c tor s, e sp e c ia lly beca use of the D efe ndant’s abuse of the private trust of the victims. The trial c ourt then dete rmined th at co nsecutive se ntencing was a ppropriate under Te nnessee Code Annotated se ction 40-35- 11 5( b) (5 ) ( 19 97 & Sup p. 20 02 ) b e c a us e it f ound that:

[The Defe ndant] has been c onvicted of t wo o r more statutory offe nses involving sexual abuse of a minor with consideration of t he ag g ravating c ircumstance s arising from the relationship betwe en the defe ndant and victim or victims; the time span of defe ndant’s undete cted sex ual activity
, which is two to three y ear s in this case ; the
nature and scope of the sexual acts, wh i ch are extensive; and the extent of the residual, phy sical and me ntal damag e to the victims in this case.

Acc ording ly , the trial cour t ordere d Counts 18, 19, 9, 15 and 30 to run c oncurr ent with eac h other, b u t co n s ec utive to Count 13, for a total eff ective se ntence of fifty

y ear s to be serve d at 100
pe rc e nt. Th e tr ia l c ourt

fo un d th a t a

fi ft y -y e a r t e rm

“ re a so na bly re la te s to the se ve ri ty of

the of fe ns e s, and tha t it is n e c e s s a r

y in o r d e r to p r o te c t th e p u b li c f r o m f u rth e r s e r io u s c r im in a l c o n d u c t b y the [D] efe ndant. . . . [T h e D e f e n d a n t] is

. . . a s e xu a l p r e d a to r , a n d a s a r e s u lt o f th a t, h e n e e d s to be

re mov e d f

ro m so c ie ty

. . . . ” Th e De fe nd a nt n owa pp e a ls.-7- II. Ana lys is

On appe al, the De fenda nt contends that: (1) the trial co u rt i mproperly weig hed the

e nh a nc e me nt a

nd mit ig a tin g fa c tor s; ( 2) the tr ia l c ourt a bu se d it s d isc re tio n b y orde ri ngthat hi s sentenc es run c onsecutively ; and (3) his sente nce is e x cessive.

Whe n a de fe nd a nt ch a lle ng e s the le ng th an d manne r of se rv ic e of a se nte nc e , it is t he du ty of this court to conduc t a de novo r eview on the rec ord with a pre sumption t hat “the de terminations made by the court from which the appea l is taken are corr ect.” Tenn. Code Ann

. § 4 0 -3 5 -401(d) (2003). This pr esumption is “conditioned upon the af firmative showingin the rec ord that the trial

c ourt c on sid e re d th e se nte nc ingpr inc ipl e s and a ll r e le va nt f a c ts a nd c ir c ums tanc e s. ” State v. Ros s, 49 S.W .3d 833, 84 7 (Tenn. 2001) ; State v. Pettus, 986 S .W.2d 540, 543 (Tenn. 1999); State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

. The pre sumption does not apply to the leg al conc lusions

rea ched by

the trial cour

t in sentencing a defe ndant or to the deter minations made by

the trial cour

t wh ic h a re pr e dic a te d u

po n unc on tr ov e rt e d f

a c ts. Sta te v. De a n, 76 S.W. 3d 35 2, 37 7 ( Te nn . Cr im. App. 2001); State v. B utler, 9 0 0 S.W .2d 305, 311 (Tenn. Crim. App. 1994) ; State v. Smi th 891 S.W. 2d 92 2, 92 9 ( Te nn . Cr im. Ap p. 19 94 ). I n co nd uc tin g a de no vo re vie w of a se nte nc e , w e mus t

c on sid e r: (a ) a

ny e vid e nc e re c e ive d at th e tr ia l and /or se nte nc ing he a ri ng ; ( b) the pr e se nte nc e re po rt ; (c) the principles of sentencing ; (d) the a rg uments of counse l relative to sente ncing alternatives; (e) the nature and cha

rac teristics of the of

fense; (f ) an y m i tigating or

enhanc ement fa ctors; (g ) any statements made by

the def endant on his or he r own be half; and (h) t he defenda nt’s potential or lac k of potential for

reha bilitation or treatment. Tenn. Code Ann. § 40-35-210 ( 2003); State v. Taylor, 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001). The party challeng ing a s entenc e im posed by the trial court ha s the burden of establishing that the s entenc e is err oneous. Tenn. Code Ann. § 40-35-401, Se nte nc ingCom mis sio n Cm ts.

Te nn e sse e Cod e Anno ta te d s e c tio n 4 0- 35 -1 03 (1 ) ( 19 97 ) s ta te s th a t:

Se nte nc e s in vo lvi ngc on fi ne me nt s ho uld be ba se d o n th e fo llo wi ngc on sid e ra tio ns : (A) Confinement is ne cessa ry to pr otect society by restra ining a defe ndant who has

a lon g his tor

y of c ri min al c on du c t; ( B ) C on fi ne me nt i s n e c e ssa ry to a vo id de pr e c ia tin g the se ri ou sn e ss o f t he of fe ns e or con fi ne me nt i s p a rt ic ula rl y su ite d to
pr ov ide a n e ff

e c tiv e de te rr e nc e to o the rs lik e ly to c omm it s im il a r o ff

e ns e s; o r ( C) Measur es less re strictive than conf inement have fre quently

or re cently

been a pplied

unsucce ssfully

to the defe ndant; . . . .

Additionally , “[t] he potential or l ack of potential for the reha bilitation or t reatment of the de fenda nt should be consider ed in deter mining the se ntence alternative or leng th of a term to be imposed.

. . .” Te nn. Code Ann. § 40-35- 103(5). The trial court may con s i d er m i t i gating fac tors and enhanc ement fa ctors whe n deter mining a de fenda

nt’s sentenc e. Te nn. Code Ann. §§ 40-35-113, -114. A trial court may order sentenc es to run conse cutively if a de fenda

nt is charg ed with more tha n

one cr iminal offense and it finds, by a pre pondera

nce of t h e evidenc e, that one or more of se vera l criter ia are m et as set f

orth in Tennesse e Code Annotated sec tion 40-35-115. State v. Ker n, 909-8-

S.W .2d 5, 8 (Tenn. Crim. App. 1993) . Whether sent ence s are to be serve d consec utively or

concur rently is a matter within the s ound discretion of the trial court. State v. James, 688 S.W .2d 463, 465 (Tenn. Crim. App. 1984)

. A. Mitigating F actor s

The De fenda

nt does not challeng e any of the e nhance ment fac tors the t ri al co u rt applied, rathe r he a

rg ues that the trial err ed by failing to apply any mitigating fac tors. The De fenda nt argues that the trial cour

t abused its d i s cr eti on by failing to give adequate weig ht to the Defe ndant’s

asser tions that he was sexually abused a s a boy . The De fe n d an t also argues that the trial c ourt

a bu se d it s d isc re tio n by no t con sid e ri ng a s mitig a tin g fa c tor s the fa c t tha t the De fe nd a nt of fe re d to name the me n who alleg edly abused him as a

boy and the f ac t t h at h e o ff

ered to g ive the police inf or ma tio n o n a

mur de r s us pe c t. T he De fe nd a nt f ur the r a rgue s th a t th e tr ia l cour t abu sed its discretion by

failing to apply

the mitigating fac tor that the victims suffer ed no phy sical injury

.

The State c ontends that, althoug h a mitigating f actor may be applica

ble, it is withi n the sound discretion of the trial court to dete rmine its weig ht. T he State contends that the trial cour t did not abuse its discretion in deter mining that the Defenda

nt’s alleg ed prior sexual abuse was not e ntitled to any weig ht beca

use there was no proof

, other than the Def

endant’ s own testimony , of the a lleg ed abuse or that the Def

endant was mentally aff

ecte d by the abuse. Fur

ther, the State contends that the trial court did not abuse its discretion in refusing to miti g ate the D efe ndant’s sente nce ba sed on the Def endant’ s offe rs to g ive police infor mation about the identities of his abuser s and information

re g a rd inga n a lle g e d mu

rd e r s us pe c t. T he Sta te argue s th a t th e statut e of lim itatio ns ha d r

un wi th
respe ct to the Def

endant’ s alleg ed abuse rs, and the D efe ndant d i d n o t gi v e the tria l court any information about the a lleged m u rd er s u s pect. F inally , the State ar g ues that, while the tria l court

c ou ld h a ve mit ig a te d th e De fe nd a nt’ s se nte nc e be c a us e the re was no e vid e nc e of se ri ou s b od ily injury to the victims, the t rial court did not abuse its di scre tion in refusing to affor d that mitigating fa c tor a ny we ig ht, c on sid e ri ng the su bs tanti a l w e ig ht g ive n to the a pp lic a ble e nh a nc e me nt f

a c tor s. We a g re e wi th t

he Sta te ’s a sse rt ion s.

“Provided the tria l co u rt complies with the purposes a nd principles of the Criminal Sentencing Reform Ac t of 1989 and its finding s are adequately supported by

the re cord, the weig ht aff orded to e nhance ment and mitigating factors is left t o the t rial court’s discretion.” State v. Souder, 105 S.W .3d 602, 606 (Tenn. Crim. App. 2002) (citing State v. Alder

, 71 S.W

. 3 d 2 9 9 , 306 (Tenn. Crim. App. 2001); State v. Kelley

, 34 S.W .3d 471, 479 (Tenn. Crim. App. 2000) ). In this case, the trial court applied four enhanc ement fac tors and g ave no weig ht to any mitigating fac tors. Af ter tho ro ug hly

re vie wi ngthe re c or d in

thi s c a se , w e c on c lud e that th e tr ial court did no t a bu se its disc r e ti o n b y a

p p ly in g th e f o u r e n h a n c e me n t f

a c to r s a n d in r e f

u s in g to g iv e a n y weig ht to the mitigating fac tors asser

ted by the Def endant.

First, the De fenda

nt arg ues that the trial court abused its discr etion by ref using to g ive any weig ht to the fac t that the Def endant wa s alleg edly

abused a s a boy

. The only proof of this alleg ed abuse w as the De fenda

nt’s own testimony , and the De fenda nt offer ed n o proof to show that he-9-

su ff e re d “ fr om a

me nta l or ph y sic a l c on dit ion

that si g nif

ic a ntl y re du c e d t h e [D ]e f e n d a nt’ s c ulp a bil ity for the of fense [s] ” as a result of the allege d abuse. Te nn. Code Ann. § 40-35- 113(8). The Def endant
argues that his alleg ed abuse qualifies as a m i t i gat ing f actor under Te nnessee Code Annotated section 40-35- 113(3); howe ver, the Def endant’ s alleg ed abuse , under the circ umstances of this case, does not tend “to e x cuse or justify the [D] efe ndant’s cr iminal conduct. . . .” Theref ore, w e conc lude that t h e t ri al court did not abuse its discre tion in refusing to give any weig ht to the Defe ndant’s alleg ed prior se x ual abuse

. Next, the Defe ndant ar g ues that the trial c ourt abused its di scre tion by not consideringas mitigating fac tors the fa ct that the De fenda nt offer ed to name the men who alleg edly abused him as a boy and the f act that he offe red to g ive the police inf ormation on a murde r suspec t. The re cord shows that the Def

endant’ s alleg ed sexual abuse oc curr ed ap p ro x i mately twenty y ear s befor e the

se nte nc inghe ari ng, so the s ta tut e of lim itatio ns ha d r

un on the De fe nd a nt’ s a lle g e d a bu se rs

. Additionally
, the Def

endant did not g ive any information to the trial court re g ardingthe information he had on a

n alleg ed murde r suspec t. As of the hea ring , the Def

enda n t h ad not y et disclosed any information t o the pol ice or the Dis trict Attorney ’s Office, so the tria l court could not dete rmine the signific ance or usef

ulness of the De fenda

nt’s assistance or the truthfulne ss, com p l et eness a nd

r e li a b il it y o f th e a s s is ta

n c e

. Se e St a te v

. Ch r is H a ir e , N o

. E 2 0 0 0

- 0 1 6 3 6

- CC A

- R3 -CD, 2002 WL 8 3 6 0 4
, at * 2 1 (Tenn. Crim. App., at Knox ville, J an. 22, 2002) perm. app. de nied ( T e n n

. Ju n e 2 4, 2002). Moreove r, as the tr ial court found, the assistance offe red by the Def endant did not conc ern any crime at issue in this case ; the ref ore, the mitigating fac tor set forth in Tennesse e Code Annotated

se c tio n 4 0- 35-11 3(10 ) w ou ld n ot a pp ly be c a us e the De fe nd a nt d id n ot a ssi st the a uth or iti e s “ in locating or re cover ing a

ny proper ty or person involved in the c rime.” A ccor dingly , we c onclude that the trial cour

t did not abuse its discretion by ref using to consider as mitigating fac tors the fa ct that the Def endant offe red to na

me the men who alleg edly abused him a s a boy and the f ac t t h at he offe red to g ive the police inf ormation about a murde r suspec t.

Finally , the Def

endant a rg ues that the trial court abused its discretion by failing to apply

the

m i t i g a t i n g f

a c t o r t h a tt h e D e f

e n d a n t ’ s c o n d

u c tn e i t h e r

c a u s e d n o r t h r e a t e n e d

s e r i o u s b o d i l y i n

j u r y. The trial c ourt stated, “L ooking a t any mitigating fac tors, not only the ones that the [ D]efenda nt has
po int e d o ut, bu t a ll o f t

he m, I do no t f ind that hi s c on du c t c a

us e d n or thr e a te ne d ser io us bo dil y injury . These are rape case s. These are ag g ravated sexual battery [cases]. That fac tor is clear ly not sustained.” While it appear s that the trial cour t found that the De fenda

nt’s conduct ne ither ca

used

no r thr e a te ne d s e ri ou s b od ily inj ur y , th e tr ia l c ourt

a ff or de d th is m iti g a tin g fa c tor no we ig ht,
appar ently

beca use the Def

endant’ s crimes involved rape and ag g ravated sexual battery . The re cord sh ow s th a t, wh ile the thr e e vic tim s did no t su ff e r se ri ou s b od ily

inj ur y , th e De fe nd a nt’ s a c tio ns in rapingand molesting the victims have c aused the victims s ev er e emotional pain and behavior al problems. Moreove r, the trial court g ave substantial we ight to the f our enha nceme nt fac tors, which

ou tw e ig he d a

ny mit ig a tin g fa c tor s. Th e re fo re , w e c on c lude th at th e tria l c ourt did no t a bu se its discretion in re fusing to a

pply the mitigating fac tor that the Def endant’ s conduct ne ither ca used nor
t h r e a t e n e d

s e r i o u s b o d i l y i n

j u r y.-10- B. C ons e c ut ive Se nt e nc ing

The De fenda

nt next contends that the trial court a bused its discretion by

order ing c onsecutive

se nte nc e s in thi s c a se

. Th e tr ia l c ourt fo un d that c on se c uti ve se nte nc ingwa s a pp ro pr ia te in t

his c a se beca use:
[The Defe ndant] has been c onvicted of two or more stat u t o ry

offe nses involving sexual a buse of a minor with consideration of the ag g ravating c ircumstance s arising from the r elationship betwee n the defe ndant and victim or victims; t he time span of defe ndant’s undete cted se x ual activity
, which is two to three y ear s in this case; the
nature and s co p e of the sexual acts, which ar e extensive; and the e x tent of the residual, phy sical and me ntal damag e to the victims in this case.

We a g re e wi th t

he tr ia l c ourt

tha t T e nn e sse e Co de A nn otate d s e c tio n 4 0- 35 -1 15 (5 ) a pp lie s in thi s

case

. The De fenda

nt was convic ted of thre e counts of r ape of child, one count of

rape of an incapa citated victim and two c ounts of agg ravated sexual battery . The a g g ravating c ircumstance s

a re g re a t be c a

us e the De fe nd a nt a c te d a s a fa the r- fi g ur e fo r t

he vic tim s and a

bu se d the vic tim s’ tr

us t by rapingand sexually

molesting them. M o re o v er, a s the trial cour t found, the time span of the De fe nd a nt’ s und e te c te d s e xua l a c tiv ity wa s tw o to thr e e y e a rs wi th M .D

. and app roxima te ly six

mon t h s wi t h J .D. and J.M. The nature a nd scope of

the sexual acts wer e ser ious and extensive beca use they involved rapingby

oral sex and sexual molestation. Fi n al l y , the re cord showe d that the victims have suff

ere d extreme emotional pain fr om the sexual a buse, and the abuse ha s cause d the victims to have behaviora l problems. After thoroug hly revie wing the evidence presented at the
sentenc ing hear ing, w e conc lude that the trial c ourt did not abuse its discretion by order ing

consec utive sentenc ing in this ca se.

C. Defendant’s Sentence Is Not Exc essive

When sentencingthe Def endant, the tr ial court g ave grea t weig h t to four enha

nceme nt fac tors, espec ially

the fa ct that the De fenda

nt abused a position of private trust and had a n extensive criminal history
, including pr ior convictions for r ape a nd attempted ra

pe of a minor boy . The trial court found that the max i m u m s entenc e on ea ch convic tion was “justly deser ved” be cause of the enhanc ement fac tors, including the Def endant’ s abuse of the private trust of the victims. The trial

c o urt f o u n d t h a t a f

i f t y

- y e a r t e r

m “ r e a s o n a

b l y r e l a t e s t o t h e s e v e r i t y o f t h e o f f e n s e s , a ndtha t it is

nece ssary in order to pr otect the public from further serious criminal conduct by the [D] efe ndant. . . . [The Defe ndant] is .

. . a s ex ual pre dator, a nd as a r esult of that, he ne eds to be re moved from society . . . .”

The re cord e stablishes that the Def endant tar g e te d y oung boy s living in disadvantag ed homes

a nd be fr ie nd e d the m, g a ini ng the ir tr us t and the tr

us t of the ir fa

mil ie s. Af

te r g a ini ngthe bo y s’ tr

us t, the Def endant r aped a

nd sexually

molested them. The De fenda nt used his relationship with M.D. to targ et J .D. and J.M., and the Def endant pr ocee ded to rape and abuse those vic tims. The Defe ndant
att e mp te d to e s ta

b li s h a r e lati o n s h ip w it

h a n o th e r b o y b y c a ll in g th e b o y a t s c h o o l a n d then-11-

repe atedly

calling the boy

at home. M o re over, the Def endant r ece ived probation from prior convictions for similar c onduct, and he violated that pr o b ation. The pre -sentenc e re port and the
psy cholog ical sexual evaluation r eport indicate that the De fenda nt lacks potential for

reha bilitation, despite the De fenda

nt’s statements of remorse and promises that he will seek c ounseling in prison. Acc ording ly , we c onclude that the trial court properly deter mined that the Defenda

nt should rece ive the ma ximumse nte nc e on e a c h c ount f

or a tot a l se nte nc e of

fi ft y y e a rs to be se rv e d at 10 0 p e rc e nt.

III. Conclusi on

I n acc ord ance with the fore g oing a uthorities and re asoning , we AF FI RM the trial court’s jud g me nts

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE