IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 26, 2007

STATE OF TENNESSEE v. JAMES VANOVER

 Appeal from the Criminal Court for Knox County

No. 75139 Mary Beth Leibowitz, Judge

No. E2006-01342-CCA-R3-CD - Filed August 15, 2007

Following a jury trial in Knox County Criminal Court, the defendant was convicted of rape of a

child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony, and sentenced

to twenty years in prison on the rape of a child conviction and eight years in prison on each

aggravated sexual battery conviction. The court ordered the sentences to run consecutively, resulting

in an effective sentence of thirty-six years. On appeal, we affirmed the convictions but remanded

the case to the trial court for resentencing because the trial court failed to make appropriate findings

concerning consecutive sentencing. State v. James Vanover, No. E 2005-01192-CCA-R3-CD, 2005

WL 521496, at *5-*6 (Tenn. Crim. App. Mar. 2, 2006). The second sentencing hearing was held

in June 2006, at which the trial court again imposed consecutive sentences. The defendant appeals,

alleging that the trial court improperly applied consecutive sentences. After reviewing the record,

we affirm the judgments of the trial court. 

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

Affirmed

D. KELLY THOMAS,JR.,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

THOMAS T. WOODALL, J., joined.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, James Vanover.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; Randall E. Nichols, District Attorney General; Kevin Allen, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The relevant facts of this case were summarized bythis court in the defendant’s initial appeal

as follows:
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[The victim’s aunt, Teresa] Wakefield testified that in October 2001, she noticed a

change in the victim’s behavior. She said the victim was not as happy, “and she

would just hang her head down like she [was] worried about something.” She said

that she asked the victim if anything was wrong and that the victim began crying.

She said the victim told her what was wrong.

Ms. Wakefield said she was present the following day at the hospital. She

said she stayed in the room with the victim while the doctor examined her vagina.

She said the victim was very upset and scared.

. . . .

The victim testified that she was twelve years old. She said that she called

the defendant “dad” when he lived with her but that most people called him “Bug.”

The victim said the defendant began touching her “private parts” when she was six

years old. She said he would normally rub her vagina. She said that on many

occasions, the defendant would “either put his hand down there under my clothes or

take my hand and put it under his clothes.” She said the defendant made her touch

his penis.

The victim testified that on one occasion, she was sitting on top of the

defendant in her nightclothes when he “unbuttoned his pants, and he put his penis

into my vagina halfway but not all the way, because I got off of him, and I said I had

to go use the bathroom. . . .” She said that after her brother moved away from home,

the abuse got worse because she was left alone more often with the defendant. She

said that she did not know how many times the defendant touched her but that it was

quite a few times. She said she thought she touched the defendant more times than

he touched her.

The victim testified that on another occasion the defendant came into the

bathroom while she was taking a shower, pulled back the shower curtain, and said,

“Let me see you.” She said she could not remember if her mother was home but

thought she was in the living room. She said that later that night, the defendant told

her if she refused to get on top of him underneath the covers, he would kill her

mother. She said the defendant stuck his penis in her vagina, but again only halfway.

She said he stopped because her mother was coming into the adjacent room. She said

the defendant’s raping her hurt. She said she did not tell her mother because she was

afraid the defendant would kill her mother. She said she told her aunt what happened

a few weeks later because she did not want it to happen again.

The victim testified that she specifically remembered touching the

defendant’s penis while in his camper, which was parked outside their house. She
According to hospital records, the victim was nine years old at the time of the examination.

1

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said she specifically remembered the defendant touching her vagina in his camper

just before her mother walked in with some pillows. The victim said she never told

anyone about the defendant’s touching orraping her because she was afraid he would

hurt her or her family. The victim said she was not mad at the defendant for any

other reason.

. . . .

Dr. Jerrod Michael Connors, a pediatric emergency physician at East

Tennessee Children’s Hospital, testified that he examined the victim. He said that 1

during his examination, the victim told him that her stepdad had touched her in her

private area.

. . . .

Dr. Connors said he found the victim’s hymen to be abnormal due to an

opening in the hymen. He said, however, that subsequent medical literature

suggested that the openingwas not necessarily indicative that a penis or a tampon had

pierced the hymen. Dr. Connors testified that he could not be certain whether the

victim’s hymen had been pierced. On cross-examination, Dr. Connors admitted that

it was very hard to prove that a sexual penetration did not occur. He said that when

a sexual penetration would occur, the results of a medical exam would normally be

inconclusive.

The defendant testified that when he first met the victim, she was a baby. He

said he thought of the victim as a daughter based upon his relationship with the

victim’s mother. He said that he never touched the victim inappropriately, that he

never asked the victim to touch him inappropriately, and that he never raped her. The

defendant said he did not know why the victim was making false allegations against

him and denied ever threatening the victim or her family.

James Vanover, 2006 WL 521496, at *1-*3. In her victim impact statement, the victim stated that

as a result of her ordeal, she was afraid of men, did not want to go outside, continued to have

nightmares, and had seen a counselor. 

This court affirmed the defendant’s convictions but held that the trial court improperly

imposed consecutive sentences based on the improper application of a sentence enhancement factor

to justify a consecutive sentence, as well as the failure of the trial court to “specifically recite the

reasons” for its imposition of consecutive sentences, as is required under Rule 32(c)(1) of the

Tennessee Rules of Criminal Procedure. Id. at *6. At the resentencing hearing, the trial court stated:
We note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35- 2

102(6), -114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are

inapplicable to the defendant’s appeal because the defendant’s offenses occurred before the new law was enacted, and

he did not elect to be sentenced under the new law.

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. . . there was significant mental impact [on the child victim]. We had a considerable

body of testimony as well as the presentence report which talked about that. And

there was a considerable period of time during which all of this took place. And

because of the extensive pattern of behavior in this case the Court feels that 40-35-

115(b) does apply. . . . And I think [imposing consecutive sentences] is appropriate

under resentencing based upon—based upon that statute because of the special

relationship between [the defendant] and his step-child and the manner and nature

and scope of these acts which took place in, basically some of them by luring the

child and doing other things that I think are inappropriate.

ANALYSIS

On appeal, the defendant claims that his sentences were excessive and that the trial court

improperly imposed consecutive sentences. We disagree.

An appellate court’s review of sentencing is de novo on the record with a presumption that

the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003).2 As the

Sentencing Commission Comments to this section note, on appeal the burden is on the defendant

to show that the sentence is improper. This means that if the trial court followed the statutory

sentencing procedure, made findings of fact that are adequately supported in the record, and gave

due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, “the

presumption of correctness which accompanies the trial court’s action is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 

Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which

states in pertinent part that 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 damage to the victim or victims[.]
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Tenn. Code Ann. § 40-35-115(5) (2003). Asstated above, the trial court is required to “specifically

recite the reasons” behind imposition of a consecutive sentence. 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 requirements of

Rule 32(c)(1) for purposes of consecutive sentencing). Furthermore, our courts have consistently

held that the sentencing principles announced by the Supreme Court in Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004), and related cases do not impact consecutive sentencing. See State

v. Robinson, 146 S.W.3d 469, 499 n.14 (Tenn. 2004); State v. Donald Luke Seiber, No. E2006-

00816-CCA-R3-CD, 2007 WL 1649626, at *7 (Tenn. Crim. App. June 7, 2007); State v. William

Shane Bright, No. E2006-01906-CCA-R3-CD, 2007 WL1259177, at *2 n.1 (Tenn. Crim. App. Apr.

30, 2007).

At the resentencing hearing, the trial court specifically noted the significant mental damage

suffered by the victim, who had known the defendant since birth and who considered the defendant

to be her “dad.” The trial court also noted that the abuse took place over a “considerable period of

time,” beginning when the child was six years old and ending when she was nine years old. The trial

court also noted the “manner and scope” of the defendant’s acts, evidence of which are thoroughly

exhibited by the record. In short, the trial court upon resentencingmet the requirements for imposing

consecutive sentences when a defendant is convicted of multiple offenses involving sexual abuse

of a minor. Therefore, we affirm the sentences imposed by the trial court. 

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the trial

court are affirmed.

_______________________________

D. KELLY THOMAS, JR., JUDGE