IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 23, 2010

STATE OF TENNESSEE v. DANIEL ROSS McCLELLAN

Appeal from the Criminal Court for Hawkins County

No. 07CR0247 John F. Dugger, Jr., Judge

No. E2009-00698-CCA-R3-CD - Filed July 8, 2010

The Defendant, Daniel Ross McClellan, was convicted of rape of a child, a Class A felony,

and incest, a Class C felony. He was sentenced as a Range II, multiple offender to serve

forty years as a child rapist for the rape conviction and ten years for the incest conviction,

with the sentences to be served concurrently. On appeal, he argues that the trial court erred

in sentencing him as a multiple offender. We hold that the trial court properly sentenced the

Defendant as a Range II offender for the incest conviction but erred in sentencing him as a

Range II offender for the rape of a child conviction. We remand the case to the trial court

for resentencing in accordance with this opinion. 

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

Affirmed in Part; Reversed in Part; and Case Remanded

JOSEPH M. TIPTON, P.J., delivered the opinion of the Court, in which NORMA MCGEE OGLE

and D. KELLY THOMAS, JR., JJ., joined.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Daniel Ross McClellan.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; C. Berkeley Bell, Jr., District Attorney General; J. Douglas Godbee and Alex

Pearson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Defendant’s convictions are the result of sexual assaults committed against his

daughter, S.M., the victim. The State’s proof at trial established that in 1995, the victim and

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her three brothers lived with their grandmother, Mary Voss, in Mooresburg, and the

 It is the policy of this court to refer to victims of sexual abuse by their initials only. 1
Defendant and his wife, Voss’s daughter, lived in a trailer behind the Cloud 9 fertilizer plant. 

On occasions in 1995 when the victim was five years old and visiting the Defendant at his

trailer, the Defendant molested the victim. The incidents occurred in the bedroom and the

bathroom, but primarily in the bathroom. The Defendant “would pick [the victim] up and

set [her] on his shoulders and he would stick his tongue in [her] vagina” and move it around. 

The victim referred to her vagina as her “turtle” when she was younger.

On one occasion, when she was six or seven years old, one of the victim’s brothers,

Thomas, walked in on the Defendant molesting the victim. Thomas saw the victim lying on

a bed and the Defendant “[l]icking her privates,” or vagina. When the Defendant saw that

Thomas was in the room, he physically kicked Thomas out of the room and out of the trailer. 

Meanwhile, Voss noticed that when she bathed the victim following a visit with the

Defendant, the victim said her “turtle” burned and that the area was very red and irritated. 

Voss became aware that something might have happened to the victim when a neighbor

overheard a conversation between the victim and Voss’s other granddaughter. Voss took

the victim to the Department of Human Services (DHS) and also to the sheriff’s department. 

The Defendant and his wife moved to North Carolina for a period of three years, and Voss

notified the authorities immediately upon the Defendant’s return to Hawkins County.

The State presented evidence that the sheriff’s department prepared an offense report

in this matter on November 1, 1995. According to DHS records, the victim was referred to

DHS on December 29, 1995, and sent to Greeneville Women’s Clinic for a medical

examination on January 10, 1996. The records indicated that a Child Protective

Investigative Team believed that an incident occurred but that the perpetrator was

“unfounded.” The records further indicated that the team was unable to interview the

alleged perpetrator because he moved to North Carolina before an interview could be

completed. 

On April 26, 2007, the Defendant voluntarily appeared at the Hawkins County

Sheriff’s Department and gave a statement to Detective Randall Collier about an incident

with the victim in 1995. In his statement, the Defendant said that one day when he lived in

a trailer in the Cloud 9 area, he took the victim into a bedroom, removed her clothes, and

started kissing and licking her vagina. He said that this went on for a couple of minutes and

that his son, Thomas, walked in. 

The following day, the Defendant gave a statement to Detective Cliff Evans of the

Hawkins County Sheriff’s Department, in the presence of Detective Jeff Greer. In that

statement, the Defendant said that his wife’s nieces had made allegations against him but

that he did not remember having done anything to them. He stated that the only child he

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could remember doing anything to was his daughter, S.M., in Hawkins County. The

Defendant admitted that he had a “serious problem” when it came to little girls. 

The Defendant testified that in late 1995 or early 1996, he went to North Carolina to

see his brother and “was pulled over while driving on a revoked, and . . . was stranded there”

for approximately three years. His going to North Carolina had nothing to do with the

victim’s allegations. The Defendant admitted meeting with the various detectives but said,

“I never said anything. Everything was written up and I just signed it, and that was done

under duress.” The Defendant denied ever touching the victim’s private parts or kicking his

son out the door of his trailer. On cross-examination, the Defendant denied having a

fascination with young girls.

The jury found the Defendant guilty of the charged offenses of rape of a child and

incest. The jury found that the following enhancement factors in effect at the time were

applicable: the personal injuries inflicted upon the victim were particularly great, T.C.A. §

40-35-114(6) (Supp. 2004); the offense involved a victim and was committed to gratify the

Defendant’s desire for pleasure or excitement, id. § 40-35-114(7); and the Defendant abused

a position of private trust. Id. § 40-35-114(15). The jury did not find any mitigating factors

applicable. 

At the sentencing hearing, the State urged the court to sentence the Defendant as a

multiple offender and introduced certified copies of two judgments from Bradford County,

Florida, a 1983 conviction for lewd assault and a 1984 conviction for attempted lewd

assault. Acknowledging that Tennessee does not have the felonies of lewd assault or

attempted lewd assault, the court looked at the elements listed in the indictments and

determined that the offenses were the equivalent of aggravated sexual battery and attempted

aggravated sexual battery. The court determined that the Defendant qualified as a multiple

offender and sentenced him as such to forty years for the rape of a child conviction and to

ten years for the incest conviction.

On appeal, the Defendant argues that the trial court erred in sentencing him as a

multiple offender because the trial court compared the elements of the out-of-state

convictions to current Tennessee law, not Tennessee law as it existed at the time of the prior

convictions. In reviewing the issue, we consider the sentencing law as it applied at the time

of the Defendant’s offenses. Appellate review of sentencing is de novo on the record with

a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d)

(2003) and -402(d) (1997). As the Sentencing Commission Comments to these sections

note, the burden is now on the appealing party to show that the sentencing 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

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weight to the factors and principles that are relevant to sentencing, we 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). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving

at the final sentencing decision, identify the mitigating and

enhancement factors found, state the specific facts supporting

each enhancement factor found, and articulate how the

mitigating and enhancement factors have been evaluated and

balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e) (1991 &

Supp. 1995).

Also, in conducting a de novo review, we must consider (1) the evidence, if any,

received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of

sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of

the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) statistical

information provided by the administrative office of the courts as to sentencing practices for

similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102 (2003), -103

(2006), -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn.

1986).

The trial court may sentence a defendant as a Range II, multiple offender when it

finds beyond a reasonable doubt that the defendant has received “[a] minimum of two (2)

but not more than four (4) prior felony convictions within the conviction class, a higher

class, or within the next two (2) lower felony classes.” T.C.A. § 40-35-106(a)(1) (2003). 

Prior convictions include convictions under the laws of

any other state, government, or country which, if committed in

this state, would have constituted an offense cognizable by the

laws of this state. In the event that a felony from a jurisdiction

other than Tennessee is not a named felony in this state, the

elements of the offense shall be used by the Tennessee court to

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determine what classification the offense is given. 

T.C.A. § 40-35-106(b)(5) (2003). “The appropriate analysis of prior convictions is under

Tennessee law as it existed at the time of the out-of-state conviction.” State v. Brooks, 968

S.W.2d 312, 313-14 (Tenn. Crim. App. 1997). 

The trial court did not refer to the Tennessee statutes in effect at the time of the

Florida offenses. Instead, it examined the Tennessee aggravated sexual battery statute as it

existed at the time of sentencing. However, the elements of aggravated sexual battery were

essentially the same in 1983 as at the time of sentencing. Aggravated sexual battery is

presently defined as the “unlawful sexual contact with a victim by the defendant or the

defendant by a victim accompanied by any of the following circumstances: . . . (4) The

victim is less than thirteen (13) years of age.” T.C.A. § 39-13-504(a) (2006). Aggravated

sexual battery is a Class B felony. Id. § 39-13-504(b). In 1983, aggravated sexual battery

was defined as “unlawful sexual contact with another accompanied by any of the

circumstances listed in § 39-2-603(a).” T.C.A. § 39-2-606 (1982) (repealed 1989). The

accompanying circumstances included, “The victim is less than thirteen (13) years of age.” 

T.C.A. § 39-2-603(a)(4) (1982) (repealed 1989). For classification purposes, aggravated

sexual battery, a Class X felony in 1983, would currently be considered a Class B felony. 

See T.C.A. § 40-35-118 (2006). Thus, the Defendant was not prejudiced by the trial court’s

not applying 1983 law with regard to the Defendant’s 1983 conviction. 

Turning to the Defendant’s 1984 Florida conviction for attempted lewd assault, the

trial court determined that the Tennessee equivalent was attempted aggravated sexual

battery, a Class C felony. However, in 1984, Tennessee did not classify attempts in the same

manner as at the time of sentencing in the present case. Presently, “[c]riminal attempt is an

offense one (1) classification lower than the most serious crime attempted[.]” T.C.A. § 39-

12-107(a) (2006). In 1984, the statute addressing an attempt to commit a felony stated: 

If any person attempts to commit any felony or crime

punishable by imprisonment in the penitentiary, where the

punishment is not otherwise prescribed, he shall, on conviction,

be punished by imprisonment in the penitentiary not exceeding

five (5) years, or, in the discretion of the jury, by imprisonment

in the county workhouse or jail not more than one year, and by

fine not exceeding five thousand dollars ($5,000). 

T.C.A. § 39-1-501 (1982) (repealed 1989). An attempt to commit a felony was considered

a felony. See Rafferty v. State, 16 S.W. 728, 728 (Tenn. 1891) (stating that “[t]he fact that

the punishment for the attempt is in the alternative . . . does not make it any less an offense

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punishable by imprisonment in the penitentiary, or take from it the characteristic of a

felony”); see also State v. Standard Oil Co. of Kentucky, 110 S.W. 565, 579-80 (Tenn.

1908). An attempt to commit a felony would currently be considered a Class E felony. See

T.C.A. 40-35-118 (2006). In addition, there was a specific statute that proscribed an

“[a]ssault with intent to commit or attempt to commit sexual battery.” T.C.A. § 39-2-608(b)

(1982) (repealed 1989). An assault with intent to commit or attempt to commit sexual

battery would currently be considered a Class E felony. See T.C.A. 40-35-118 (2006). 

We are unable, however, to determine whether the Defendant’s Florida conviction

for attempted lewd assault would qualify as an assault with intent to commit or attempt to

commit sexual battery, or as an attempt to commit a felony. We are unable to make this

determination because, as noted by the Defendant, the record does not contain a statement

of facts to which the Defendant pled nolo contendere. Instead, the record contains only the

facts recited in the information charging him with sexual battery upon a child eleven years

old or younger, and he pled to a lesser charge. “‘The determinative factor is the elements

of the conviction offense, not the facts or the elements of the originally charged offense.’” 

State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007) (quoting State v. Jasper L.

Vick, No. W2005-00467-CCA-R3-CD, Shelby County, slip op. at 12 (Tenn. Crim. App.

Mar. 22, 2006)) (emphasis in original). 

Because the proof failed to establish the elements of the Florida attempted lewd

assault conviction, the issue becomes one of the sufficiency of the State’s proof beyond a

reasonable doubt that the Defendant qualified as a Range II offender for the two convictions

for which he was sentenced in this case. The proof is sufficient to show beyond a reasonable

doubt that the Defendant’s lewd assault conviction was the equivalent of assault with intent

to commit or attempt to commit sexual battery, see T.C.A. § 39-2-608(b) (1982) (repealed

1989), the equivalent of a Class B felony. Conviction of a Class B felony qualifies as one

prior conviction for Range II classification purposes for the Defendant’s present convictions

of Class A and Class C felonies. See T.C.A. § 40-35-106(a)(1) (2006). The proof shows

beyond a reasonable doubt that the Defendant’s Florida conviction for attempted lewd

assault was either the equivalent of assault with intent to commit or attempt to commit

sexual battery, a Class E felony, or the equivalent of attempt to commit a felony, also a Class

E felony. See T.C.A. § 39-1-501 (1982) (repealed 1989). Under either circumstance, the

Defendant has the requisite two prior convictions of the same, higher, or within two lower

classifications necessary for Range II sentencing for his incest conviction. However, for his

rape of a child conviction, the proof shows that the prior attempted lewd assault conviction

was the equivalent of a Class E felony. See Vick, 242 S.W.3d at 796. Thus, the State failed

to prove beyond a reasonable doubt that the Defendant was a Range II offender for this

offense. As a result, we must remand for the trial court to resentence the Defendant as a

Range I offender for rape of a child conviction. See id.

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In consideration of the foregoing and the record as a whole, the judgment of the trial

court for rape of a child is reversed, and the case is remanded for resentencing the Defendant

as a Range I offender. The judgment for the incest conviction is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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