### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2002 STATE OF TENN ESSEE v. JERRY M cGAHA Appeal from the Criminal Court for Cocke County No. 8195 Ben W. Hooper, II, Judge

No. E2001-01547-CCA-R3-CD April 3, 2002
The Def endant, Jerry

McGaha , pled g uilty , pursuan t to a plea agreement, to nine counts of r ape of a child. After a sentencing hear ing, the trial court sentenced the Defe ndant to twenty-five y

ears for eachcount with counts one through seven running conc urrently with ea

ch other an d counts eight and nine running

concurr ently with each oth er. Howeve r, counts eight and nine were to be serve d consecu tively to counts o ne throug

h seven. On appea

l the Def endant c ontends that the trial court erred in sentencing him to twenty- five (25) ye ars on each count and in ordering c ounts eight and nine to be ser ved cons ecutively to

counts one through seven. We modify the sentences imposed by the trial cou rt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Modified
D AVID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Edward C. Miller, Public Defender, Dandridge, Tenne ssee, for the appellant, Jerry McGaha

. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, As sistant A ttorney G eneral ; Alfred C. Schmutz er, Jr.; and Ronald C. Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The statement of

facts presented by

the State at the plea hearing reve aled that, on at least nine different occasio ns during

the summe

r of 1999 an d January

of 2000, th

e thirty -four- ye ar old Defendant

forced the victim, his ten ye ar old cousin, to perfo rm o ral sex on h im and dig itally penetrated

the victim ’s anus. T

he Defe ndant thr eatene d to kill the vic tim

and the vi ctim’s fa

mily if he told anyone of the

abuse. Once discovered, the Defe ndant confessed to the crimes.-2-

The Defend ant plea

ded guilty to nine counts of rape of a child. The plea agre ement provided that the sentences for counts one through seven would run co ncurre ntly with one another and that the sentences for counts eight and nine would run concurrently with one another. The trial court was to determine the length of the sentences and whether the sentences for counts eight and nine should run consecutively to the sentences for counts one through seve n. SENTENCING The Defendant contends that the trial court erre d in ap ply ing two e nhance ment fac tors in sentencing the Defendant. When an ac cused challenges the length, range, or manner of

service of a sentence, this Court has a duty to c onduct a de novo review of the sentenc e with a presumption that the determinations made by the trial court are correct. Tenn. C ode Ann. § 40-35-40 1(d). Th is pr esumption is “conditioned upon the affirmative showing in the record tha t the t rial cour t considered

the sentencing principles and all relevant facts and circumstance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, re ceived at the trial and sentencing hea ring; (b) the presentence re port; (c) the principles of sentencing and arg

uments as to se ntenc ing alternatives; (d) the nature and cha racteristics of the criminal conduct i nvolved; ( e) any statutory mitigati n g or enhan cement factors; (f) any statement made by t

he defe ndant re gardin g sente

ncing; a nd (g) t he potent ia l or lack

of potential for rehabilitation or treatment. See Tenn . Code A nn. §§ 40- 35-102, - 103, -210 ; State v. Brewer , 875 S.W.2d 298, 302 (Tenn. Crim. A pp. 1993); State v. Thomas , 755 S.W.2d 8 38, 844 (T enn. Crim. App. 1988). If our review reflects that the trial court followed the statutory sentencing

procedure, that the c ourt im posed a lawful sentence after having given due consideration and proper we ight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the re cord, then we may notmo di fy the sentence even if we would have preferred a different result. See State v. Pike , 978 S.W.2d 904, 926-2 7 (Tenn. 199 8); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Rape of a child is a Class A felony

. Se e Tenn. Code Ann. § 39-13-522(b). A Range I sentence for a Class A felony is not less than 15 nor more than 25 yea rs. See id. § 40-35-112(a)(1). The pr es umptive sentence for a Class A felony is the midpoint of the range if there are no enhancement

or mitigating factors. See id. § 40-35-210(c). If there are enhancement and mitig ating factors, the court must start at the midpoint of the range, enhance the sentence within the rang e as appropr iatefo r the e nhance

ment fac tors, and

then red uce the s entence

within the

range as appro priate for the mitigating factors. See id. § 40-35-210(c). The presentence report reflects that at the time of sentencing the Defendant was a thirty-four year old, divorced male with one child. The Defendant did not complet e high school , but has-3-

maintained a steady

employment history . The Defendant also reported in the presentenc e report that he was se xually abused b y a

relative when he w as appro ximately the same age a s the victi m. In se ntencing the Defe ndant, the trial cou rt applie d two enha

ncement factor s: (1) th e vict im of t he offe nse was parti cularl y vulnerab le beca use of age or physical or mental disability. . . (2) the Defendant abused a position of public or private trust. . . See Tenn. Cod

e Ann. § 40 -35-114 (

4) and (1 5). The tr

ial cour t noted as miti gating fact ors the Defendant’s lack of a

criminal record , his good work record and the fact that he a ccepted responsibility for his actions. See Tenn. Code Ann. § 40-35-113(13). The Defendant argues that there is no evidence in the record that the v ictim was “

particu larly vulnerable” bec ause o f his age, and correctly asserts that proof of the victim’s age alone is not sufficient to est abl is h “p art icu lar vul ner abi li ty.” In State v. A dams , 864 S.W.2d 31, 35 (Tenn. 1993), our supreme court held that

trial courts ma

y e nhance the sente nce of on e convic ted of ra

pe of a child based upon the v

ulnerab ility

of the vic tim due to

age or disability , howeve

r, proof of age alone will notsuffic e as proof o f that vulnerability. Ba sed on Adams , we are required to agr ee with the Defendant. Therecord is devoid of any evidence concerning

the victim’s vulnerability other than the victim’s a

ge. Ac cording ly, we must conclude that the trial court erred in apply

ing enhancement factor (4) to the Defendant’s conviction. However, the trial court properly applied enhancement factor (15) in finding that the Defendant

abused a position of private trust in committing the offense. See Tenn. Code Ann. § 40- 35-114(15). The Defendant was the victim’s cousin, a

nd convin ced the v

ictim’s g randmother to allow the victim to spend the night wit h him on the n

ight the abuse be gan. Th

e Defe ndant use d his position as a family membe r to spend time alone with the victim. Accordingly , we find that the record supports the trial court’s application of enhanc ement factor (15). However, due to the misapplication of enhancement factor (4), w e are constrained to modify the Defendant’s sentence. After a review of the recor d, presentence report and

the transcript of the sentenc ing hea

ring, w e modify

the sente nce to twe

nty -three (23) y ears on e ach cou

nt. CONSECUTIVE SENTENCING The Defend ant also c

halleng es the tri al court ’s impositio n of conse cutive se ntences

. Tennessee Code Annotated section 40-35-115(b)(5) authorizes consecutive sentences when [t]he defendant is convicted of two (2) or more statutory offense s involving sexual abu se of a minor with consideration of the aggr avating circumstances arising f rom the relation ship betwe

en the de fendant and vic tim or victims, the time span of the defend ant’s undet ected sexual activity, the natur e and scope of the sexual acts and the extent of the residual, physica l and mental damage to the victim or victim[.]-4-

In imposing consecutive sentences, the trial court acknowledged

the mental damage suffered by the victim bec ause o f the Defendant’s abuse. Valerie Tucker, the victim’s case manage r at Cherokee Health Systems, testified at the sentenc ing hearing that as a result of the abuse , the vict

im suffers from post-traumatic stress disorder and attention deficit disorder. Both diso rders ma nifest themselves in behavioral and anger problems. The vic tim’s own statement revealed nightmares and flashba cks. Ms. T

ucker de scribed

the victim ’s mental

difficul ties as lon g term, if not per manent. While the trial court did n ot mention t he agg ravatin g fact

ors arisi ng from

the rela tionship between the Defendant and the victim, the time span of the unde tected sexual abuse, or

the nature or scope of the sexual acts, we readily conclude that all the factors suppor t the tr ial court’s imposition o f consec

utive sen tences. Ac co rd in gl y, we find no error in the trial court’s imposition o f consec utive sen tences. This issue is withou t merit. The Defendant’s sentence is modified to twenty-three (23) y ears for each count. Pursuant

to the plea agreement, counts one throug h seven are to be served

concurr ently with one another, and counts eight and nine are to be served concurrently

with one another. Howeve r, counts eight and nine are to be served c onsecutively to counts one throug h sev en for an effec tive sentenc e of for

ty- six (46) y

ears. CONCLUSION For the foregoing r

easons, we modify the

sentence imposed by

the trial court from

tw en tyfive (25) yea

rs on each count to tw enty -three

(23) y ears on e ach count with cou nts eigh t and nine to run consecutively

to counts o ne throug

h seven f or an ef fective sentenc e of for

ty- six (46) y

ears.

___________________________________ DAVID H. WELLES, JUDGE