### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 26, 200 7

STA TE OF TEN NES SEE v. JAM ES V AN OVE R Appeal f rom the Cr im inal Cou rt for K nox Coun ty No. 75139 Mar y Beth Leibow itz, Judge

No. E2006-01342-CC A-R3- CD - F iled Augu st 15, 2007

Following a jury

trial in Knox County

Criminal Cour t , t h e def

endant wa s convicted of

rape of a child, a Class A fe lony , and two counts of ag g ravated s exual battery , a C lass B f elony , and sente nced to twenty y ear s in prison on the rape of a ch i l d co n v iction and eig ht y ear s in prison on eac h ag g ravated sexual battery

conviction. The c our

t o r d e red the sentenc es to run conse cutively , resulting in an ef fec tive sentenc e of thirty -six y ear s. On appe al, we a ffirme d the convictions but rema nded t h e cas e to t h e t ri al co u rt fo r r es en t en ci n g b ec au s e t h e t ri al co u rt fa i l edt o m ak e ap p ro p ri at e f i n d i n gs
conce rning consec utive sentenc ing. State v. Ja me s V a n o ver, N o. E 2005-01192-CCA-R3-CD, 2005 WL52 14 96 , at *5 -* 6 (Tenn. Cr im. Ap p. Ma r. 2, 20 06 ). Th e se c on d s e nte nc inghe ari ngwa s h e ld in Jun e 20 06 , at w hic h th e tr ia l c ourt a g a in imp os e d co ns e c uti ve se nte nc e s. Th e de fe nd ant a pp e a ls, alleg ing that the trial court improperly applied consecutive sentences. After revie wing the re cord,

we a ffirm the judg ments of the trial c ourt.

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

the Cr im inal Cou rt Aff irm ed

D. K EL L Y T HOMAS , J R ., J ., delivere d the opinion of the cour t, in which J OS EP H M. T I PTON , P.J ., and T H O M A S T. W O O D A LL , J ., joined.

L eslie M. J eff

ress, Knoxvill e, Te nnessee , for the a ppellant, J ames Va

nover.
Robert E. Cooper, Jr., At t o rn ey General a nd Reporter ; J ennife r L . Ble dsoe, Assistant Attorney Gene ral; Randall E. Nic hols, District Attorney Gene ral; Ke vin Allen, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The re levant fa cts of this case wer e summarized by this c ourt in the defe ndant’s initial appea l

a s f oll ow s:-2-

[The victim’s aunt, Tere sa] W akef ield testified that in October 2001, she not iced a chang e in th e v ic ti m’ s b e h a v io r

. Sh e s a id th e v ic ti m w a s n o t a s h a p p y , “ and she

wo uld jus t ha ng he r he a d do wn lik e sh e [wa s] wo rr ie d a bo ut s ome thi ng .” She sa id t h at s h e a s k edt h e v i ct i m i f a n y t h i n g wa s wr o n g an d

t h at t h e v i ct i m b ega ncryi n g. S h e s ai d t h e v i ct i m t o l d

h er wh at wa s wr o n g.

Ms. Wakefield said she w as pre sent the followingday at the hos p i t al. S he said she stay ed in the room wit h the victim while the doctor e x amined her vag ina. She said the victim was ver y upset and sca

red.

. . . .
The victim testified that she wa s twelve y ear s old. Sh e s ai d that she ca lled the def endant “ dad” w hen he lived w ith her but that most people c alled him “B ug .” Th e vic timsa id the de fe nd ant be g an tou c hin g he r “ pr ivate pa rt s” wh e n s he wa s si x y ear s o ld

. Sh e s a id h e w o u ld n o r ma ll y r u b h e r v a g in a

. Sh e s a id th a t on many
occa sions, the defe ndant would “e ither put his hand down ther e under my clothes or take my hand and put it under

his clothes.” She said the de fenda nt made her

touch his pe nis

.
The victim testified that on one oc casion, she w as si t t i n g on top of the de fe nd ant i n h e r n ig htc lot he s w he n h e “ un

bu tto ne d h is p ants , and he pu t his pe nis into my vag ina halfwa

y but not all the way , beca use I g ot of

f of him, and Isaid Ihad to go use the bathroom. . . .” She said that afte r her brother move d awa

y from home, the abuse g ot worse be cause she wa s left alone more often with the defe ndant. She said that she did not know how many times the def endant touche d her but that it was quite a fe w times. She said she thoug ht she touched the defe ndant more times than he touche d her.

The victim testified that on anothe r occ as i on the def endant c ame into the bathroom while she w as takinga shower, pulled back the shower curta in, and said, “L et me see y ou.” She said she c ould not remember if her mother wa s home but tho ug ht s he wa s in the liv ing ro om. She sa id t hat late r t hat ni g ht, the de fe nd ant t old her if she re fused to get on top of him under neath the c overs, he would kill her

m o t h e r

. S h e s a i d

t h e d e f e n d an ts tu c k

h i s p e n i s i nh e r

v a g i n a , b u ta g a i no n l y h a l f w ay. She sa id he sto pp e d be c a

us e he r mot

he r wa s c omi ngint o th e a dja c e nt r oo m. S he sa id the def endant’ s rapingher hur

t. She said she did not tell her mother be cause she wa s afr aid the def

endant would kill her mother

. She said she t old her a unt what happe ned a fe w wee ks later be cause she did not want it to happen a g ain.
The victim testified that she spe cifica lly reme m b er ed touching the defe ndant’s penis while in his camper, whic h was pa rked outside their

hous e. SheA cco rding t o hosp i t al record s, t he vi ct i m was ni ne y ears o l d at t he t i m e o f t he exam i nat i o n. 1

-3- said s h e s p e c if

ic a ll y r e me mb e r e d

th e d e f e n d an t t o u c h in g h e r

v a g in a in h is campe r jus t be fo re he r mot

he r wa lke d in wi th so me pil low s. Th e vic tim sa id sh e ne ve r t old

anyon e a bo ut t he de fe nd ant’ s to uc hin g or ra pin g he r be c a

us e sh e wa s a fr a id h e wo uld hurt h er or her

family . The victim said she wa s not mad at the def endant f or any other re ason.

. . . .

Dr . Jer ro d M ic ha e l Co nn or s, a pe diatr ic e me rg e nc y

ph y sic ian at Ea st Tenne ssee Children’ s Hospital, testified that he examined the victim. He sa id that 1 during his ex amination, the victim told him that her stepdad had touched her in her private a rea

.

. . . .
Dr. Connors said he found the victim’s hy men to be abn o rm al due to an opening in the hy

men. He sa id, h o we v er, that subsequent medica l literature sug g ested that the opening was not nec essar ily indicative that a pe nis or a tampon had pierc ed the hy

men. Dr. Connor s t est ified that he c ould not be cer tain whether

the victim’s hy

men had been pierced. On cross-examination, Dr. Connors admitted that it was very

hard to prove that a sexual penetra tion did not occur . He sa id that when a sexual penetra

tion would oc cur, the re sults of a medica l exam would normally be inconclusive.

The de fenda

nt te stified that when he first met the victim, she was a ba by . He said he thoug ht of the victim as a da ug hter ba sed upon his relati o n s h i p wi t h the victim’s mother . He sa id that he neve r touche d the victim inappropriate ly , that he

never asked the victim to touch him inappropr iately , and that he neve r ra ped her . The de fe nd ant s a id h e did

no t kn owwhy

the vic timwa s ma

kin g fa lse a lle g a tio ns a g a ins t h i m an d d e n i e d e v e r t h r e a t e n i n g t h e v i c t i m o r h e r f a m i l y.

J ames Va nover, 2006 WL 521496, at *1-*3. I n her victim impac t statement, the victim stated that

as a r esult of her

ordea l, she was a fra id of men, did not want to g o outside, continued to have nightmar es, and ha d seen a counselor.

Th is c ourt aff

ir me d th e de fe nd ant’ s c on vic tio ns bu t he ld t hat th e tr ia l c ourt

imp ro pe rl y imposed consec utive sentenc es base d on the improper application of a sentenc e enha nceme nt fac tor to justi fy a conse cutive sente nce, a s well as the f ailure of the trial cour

t to “specif

i ca l l y re ci t e the

rea sons” for its impositi o n o f co nsecutive se ntence s, as is require d under Rule 32( c)( 1) of the Tenne ssee Rules of Criminal Proce dure. I d. at *6. At the re sentenc ing he aring , the trial cour t stated:W e n ot e t h at on J u n e 7, 2005, t h e G en er al As s embl y a men ded T en n es s ee Code An n ot at ed s ec t i on s 40- 35- 2

1 0 2 (6), - 1 1 4 , -2 1 0 , -4 0 1

. See 2 0 0 5 T enn. P ub

. A ct s ch. 35 3 , §§ 1, 5, 6, 8. H o wever, t he am end ed co d e sect i o ns are i nap p l i cab l e t o t he d ef

end ant ’ s ap p eal be cause t he d ef end ant ’ s o f

f enses o ccurred bef

o re t he new l aw wa s enacted, and he di d not el ect t o be s ent enc ed un der t he new l aw.
-4- . . . th e re wa s si g nif

ic ant m e nta l im

pa c t [on the c hil d v ic tim ]. We ha d a c on sid e ra

ble body of testi m o n y as well as the presente nce r eport whic h talked about that. And there was a

considera

ble per iod of time during which all of this took place . And beca use of the extensive pattern of behavior in this case the Court fe els that 40-35- 11 5( b) do e s a

pp ly

. . . . An d I thi nk [imp os ing c on se c uti ve se nte nc e s] is ap pr op ri a te under r esente ncing based upon—ba sed upon that statute becau s e o f t he spec ial relationship between [the defe ndant] and his step-c hild and the manner and natur e and s c o p e o f th e s e a c ts w h ic h to o k p la c e in , b a s ic a ll y s o me o f th e m b y luring the child and doing other thing s that Ithink are ina ppropriate

.
A N A LY S IS
On appe al, t h e defenda

nt claims that his sentence s were excessive and that the tr ial court improperly

imposed consec utive sentenc es. We disag ree

. An appe llate cour

t’s revie w of sentenc ing is de novo on the rec ord with a pre sumption t hat the trial cour

t’s deter minations are c orre ct. T en n. Code Ann. § 40-35- 401(d) ( 2003). 2 As the SentencingCommi ssion Com ments to this s ection n o t e, on appea l the burden is on the de fenda nt to show that the sentence i s improper. This mea ns that if the trial cour

t followed the statutory sentenc ing pr ocedur e, made finding s of fa ct t h at ar e adequately supported in the re cord, a nd g ave due conside ration and pr oper w eig ht to the fac tors and princ iples t h at are re levant to sentenc ing under the 1989 Sentencing Act, the court may not disturb the s entenc e even i f a differ ent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (T enn. C rim. App. 1991)

. Howeve r, “the presumptio n of cor

rec tness which ac companies the trial court’ s action is conditioned upon the

a ff ir mativ e sh ow ingin t

he re c or d th a t th e tr ia l c ourt c on sid e re d the sen te nc ingpr inc ipl e s and a ll rele vant fa cts and c ircumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

.
Consecutive sente ncing

is guid edb y

T en n es s ee C o d e A n n o t at eds ec t i o n4 0 -3 5 -1 1 5 (b ), which

s t a t e s i np e rt i n e n tp artt h a tt h e t r i a l c o u rtm ay o r d e r s e n t e n c e s t o ru n c o n s e c u t i v e l y i f i tf i n d s b y a pr e po nd e ra

nc e of the e vid e nc e that
[t ]he defenda

nt is convicted of two (2) or more statutory offe nses involving se x ual abuse of a minor with consider ation of the a g g ravating c ircu mstances arising from the re lationship between the d ef en d an t and victim or victims, the time span of defe ndant’s undete cted se x ual ac tivity , the nat u re an d s cope of the sexual acts and the extent of the residua l, phy sical and me ntal damag e to the victim or victims[ .]-5-

Te nn . Co de Ann. § 40- 35 -1 15 (5 ) (2 00 3)

. As state d ab ov e , the tr ia l court is re qu ir e d to “ sp e c if ic a lly

rec ite the re asons” be hind imposi tion of a consec utive sentenc e. See Tenn. R. Crim. P. 32(c) (1); see , e.g ., State v. Palmer, 10 S.W .3d 638, 647-48 (Tenn. Crim. App. 1999) (noting the re quirements of Rul e 32 (c )( 1) fo r p ur

po se s o f c on se c uti ve se nte nc ing ). F ur the rm or e , o ur

c ourt s h a ve c on sis te ntl y held that the sentenc ing principles announce d by the Supreme Court in Blakely v. Washington, 542 U. S. 2 96 , 1 24 S. Ct . 2 53 1 ( 20 04 ), and re late d ca se s do not impa c t con se c uti ve se nte nc ing . Se e State v. Robinson, 146 S .W.3d 469, 499 n.14 (Tenn. 2004); State v. Dona ld Luke Seiber , No. E2006- 00816-CCA-R3-CD, 2007 WL 1649626, at *7 (Te nn. Crim. App. June 7, 2007); State v. Will iam Shane B rig ht, No. E2006-01906-CCA-R3-CD, 2007 WL 1259177, at *2 n.1 (Te nn. Crim. App. Apr. 30, 2007).

At t h e re s en t en ci n g h ea ri n g, t h e t ri al co u rts p ec i fi ca l l y n o t edt h e s i gn i fi ca n tm en t al d am age suffe red by

the victim, who had known the de fenda nt since birth and who c onsidered the defe ndant to be her “dad.” The trial c ourt also noted t hat t he abuse took place over a “c onsiderable period of time,” beg inning whe n the child was six y ear s old and endingwhen she was nine y ear s old. The trial

c ourt a lso no te d th e “ mann e r a nd sc op e ” of

the de fe nd ant’ s a c ts, e vid e nc e of wh ic h a re tho ro ug hly exhibi ted by

the re cord. I n short, the t rial court upon rese ntencing met the requirements for imposing

c on se c uti ve se nte nc e s w he n a de fe nd ant i s c on vic te d o f m ult ipl e of fe ns e s invo lvi ngse xua l a bu se of a minor. The ref

ore, w e af firm the sente nces imposed by the trial cour

t.

CONCL USI ON
Upon consider ation of the for eg oing a nd the re cord a s a whole, th e j u d gm ents of the tria l court a re a ffirme d.

_______ _ _ _ _ _ _ _ _ _ _______________ D. KEL L Y THOMAS, JR ., J UDGE