1 It i s the policy of th is Court to use i nit ials of a chi ld rape vi ctim r ather than t he vict im’s name. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs D ecem

ber 2, 2003
STATE OF TENN ESSEE v. CRA IG U. QUEVEDO Direct Appeal from the Circuit Court for Montgom ery County No. 40000492 Michael Jones, Judge

No. M2002-02468-CCA-R3-CD - F iled January 27, 2004

The Defend ant, Crai g Quevedo, pled guilty to thirty counts of rape and twenty-four c ounts of incest and pled nolo contendere to two counts of agg ravated sexual battery , four counts of rape of a child, nine counts of rape and one count of ag gravated rape in the Ci rc ui t C ou rt fo r M on tg om er y Co un ty. After a s entenci ng hea

ring, th e trial c ourt imposed an ag greg ate sent ence of ninety -two y

ears in prison. On appeal, the Defendant contends that his sentence was excessive and contrar y to public policy . Finding

no rever sible err

or, we a ffirm the trial cou rt’s judgments. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER , J., deliver ed the opinion of the

court, in which A LAN E. G LENN , J., joined. J AMES C URWOOD W ITT , J R ., J., co nc ur re d i n t he re su lt s o nl y. Me rr il yn Feirman, Nashville, Tennessee (on appe al) and Edward DeWerff, Clarksville, Tennesse e (at trial) for the appellant, Craig Quevedo.
Paul G. Summers, A tto rney Ge neral and Reporter; Michael Moore, Solicitor Genera l; David H. Fi nd le y, Assistant Attorney Gene ral; John Wesley

Carney , Jr., Distr

ict Attorn ey Genera l; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Te nnessee. Opinion I. Facts
The Montgomery

County Grand Jury

indicted the Defendant, Cra ig Qu ev ed o, on se ve nt ynine counts of

various c hild rape , rape, a

ggra vated ra pe, ince st and sexual battery

crimes involving his minor step- daug

hter , J.W. 1 The Defendant pled guilty to thirty counts of rape a nd twenty-four counts of incest and pled nolo contendere to two counts of ag gravated sexual battery , four counts of rape of a child, nine counts of rape and one count of ag gravated r ape in the Circuit Court for2 Gamma hydroxybuty rate. -2-

Montgomery

County. After a

sentencing hearing, the

trial cou rt imposed

the following sent

ences: forty-two years f or the child rape convictions; eighteen y ears for t he agg ravated sexual battery convictions to be served concurrently with the sentences for child rape; twenty -four ye ars for the rape convictions to be served consecutively to the sentences for child rape; twenty yearsfor t he aggravated

rape conviction to be served c onsecuti vely to the sentences for rape; and six years for the incest convictions to be served consecutively to the sentence for ag grava ted rape , for an a

ggre gate sentence of ninety-two

years in prison. The

Defendant now appeals the sentence imposed by the trial court. A. Guilty Plea P roceeding
At the gui lty plea p roceed ing, t he St ate in trodu ced th e Defen dant’ s thi rty-three page journal that was encry

pted on his computer. In his journal, the Defenda nt detailed his extensive history of molesting and raping his min or step- daught er, incl uding the Defend ant’s t a ctics of coercing the victim by abusing his position of pa rental aut hority and drug ging the victim with the “date rape” drug, GHB. 2 According to the Defendant’s journa l, the D efen dant began having sexual relations withthe victim when she was twelve years old and continued abusing her for f our ye ars. The State read excerpts from the journal that corresponded to each of the seventy counts in the indictment of which the Defendant

was pleading

guilty or nolo co ntender

e, and the Defend ant eithe

r admitte d his guilt or agreed that the

State could offer

proof fr om which a

jury could con

vict him.
B. Sentenc

ing Hearing
At the sentencing hearing, the State introduc ed the pr e- sentence report, victim impact statements from the victim and other family members, and the Defendant’s journal. According to the pre-sentence report, the Def endant graduated from

hi gh sc ho ol an d h ad no pr io r c ri mi na l h is to ry. In the victim’s impact statement, the victim stated that the D efenda nt “used h

is role of a

uthority to control me. He has stolen my y outh and my innocence . Each day that pass es I a

m reminde d in some way of the things that he has done to me.” Th

e victim st

ated tha t the Def endant “ would mak

e it a point that no one [in her

family ] was going to be happy”unless the victim satisfied the Defendant’s sexual desires. She explained, “It was only a few, brief, awful moments a day that I had to give mys elf to him and then the rest of the day would be peaceful for every one.” The victim stated that she lives in co nstant f

ear fro m the years of

abuse by the De

fendant. She stated that she keeps her feeli ngs “bottled up for

day s at a time

and then I

am floode d by

fits of rage, sorrow, and fe ar.” The victim sta ted that “ [n]o one des erves th e torture I wa s subject

ed to. I t is a disea se that

he has. An incurab le disease . When he d ecides w hat he wa nts he go es to great lengths to make su re that he gets it. His are the only feelings he is concerned with.”
The Defend ant called the vict im to testify at

his sentencing hearing. The victim testified that she continued to have frequent nightmares of the D efendant abusing her an d that she had seen a professional counselor about the abuse she suffered. The victim explained that she had episodes of-3-

rage an d t ha t s he ex pe ri en ce d f la sh ba ck s o f t he ab us e e ve ry d ay. When asked whether the Defendant ever told her that he wanted to stop abu sing her, t he victim replied, “He said he wanted to but he couldn’t.” Kelly Christine Benick, the Defendant’s sister, testified that she loved the Defendant “very much,” even after he

confessed to abusing the victim. Benick stated that the Defendant’s abuse of the victim was “[t]otally out of character” for the Defendant. She explained that the Defendant was “a very intellige

nt, very nice ma

n.” Benick testified that her older sister was molested by her

father as a child. She denied that her father’s molestation of her sister som

ehow ca used the D efenda

nt to molest the

victim.
The Def endant ma

de the fo llowing s tatement to the tria

l court:
This has been a

ver y dif fic ul t s it uat io n. It was neve r my intention t

o drag it outthis long. I wanted to save every one, especially the victim, . . . anymore g rief than what she’s already

gone through.

. . . . I’ve

had a lot to think ab out in the l ast two and a half y ears. . . . I made a mistake, and it

was not [my] intentionto harm anyone; howe ver, I know people we

re harmed.
It wasn’t premeditated; it wasn’t planned out; . . . it happened. And I regret it. I wish I

could undo it. And I am truly sorry that I

hurt so many people. I

caused mys elf a grea t deal of grief, but I caused them even more grief . . . . I too have difficulty dealing

with it. A lot of guilt.

. . . . And I’d just like to tell them I’ m sorry. I mean, I don’t know what more I ca n say to that except that I

hope that one day

you will forg ive me. . . .
Followin g this proof

at the se ntencing hearing , the tria

l court fo und that the follo win g mitigating factors applied to the Defendant’s case under Tennessee Code Annotated section 40-35- 113 (1997 & Supp. 2002): “(1) The defendant’s c riminal conduct neither caused nor threat ene d serious bodily

injury; . . . (13) Any

other factor consistent with the purposes of this chapter.” The trial court explained:

There has been

refer ence to g oing to th

e emerg ency

room, but t here’s been no determination that . . . criminal conduct caused or threate ned seri ous bodily

in ju ry. It may have, but I

don’t have the evidence to consider it. So, I would find that mitigating factor

number one would a

pply to all off enses; ho wever, it woul d have-4-

very little weig

ht based on the multitude of conduct in this situation. [Fact or] Number 13 is that he did in fact enter pleas to this case. That ha s some weight with the Court. It would have had more we ight, however, had h e pleaded guilty rather than no co ntest. I do not find any other mitigating factors that apply to any of the of fenses.
The trial court then found that the following enhancement fa ctors applied to the De f

endant’ s case under Te nnessee Code Anno tated se ction 40- 35-114 (1 997 & Supp . 2002): (2) The defendant

has a previous history of

criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; . . . (5) A victim of the offense was particularly vulnerable because of ag e or physica l or mental disability . . . (8) The offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement; . . . and (16) The defendant abused a position of public or private tr ust . . . .
Th e trial court also found that several of the Defenda nt’s multiple convictions should r u n consecu tively to each o ther under Tennessee Code Annotated section 40-35- 115(b)( 5) (1997 & Supp

. 2002) because

the Defe ndant was c onvicted

of two or m

ore statu tory offense s involving

sexual abu se of a minor “with consideration of the agg ravating ci rcumstanc es arisin g from t he rela tionship between the [D]efendant andvictim .

. . , t he ti me sp an of [D ]e fe nd an t’ s u nd et ec te d s ex ua l a ct iv it y, the nature and scop e of the s exual act s and the e xtent of the

residua l, physical and me ntal d amage to the victim . . . .” II. Analysis
On appeal, the Defendant contends that the sentenc e imposed by the trial cour t was excessive and contrary

to public policy because

the trial court failed to consider as a mitigating fa ctor that the Defendant

grew u p in a home

where h is father sexually abusedhis sister. In his appellate brief, the Defend ant co ntend s the f ollo wing: [The Defenda nt] was raised in a home where his father sexually abused his sister. This m itig ating f actor w as not speci fical ly addres sed at the se ntenc ing hea ring. However, it is clear from

[the Defendant’s] journal and his sister’s testimony , that the ab use wa s never a

ppropria tely address ed by

the famil y. A s was made

clear b y hi s sister’s testimony, this abuse of another sister w as perceived by the family as being the fault of the sister who suffered the abuse. Undoubtedly , being raised in that envi ronme nt ha d a di sastr

ous in fluence o n [the

Defe ndan t]. When a defendant challenges the length a nd manner

of servi ce of a s entence , it is the duty of this court to conduct a de novo review on the record witha presumption that “the determinations-5-

made by t he court from whic

h the appe al is take

n are co rrect. ” Tenn. Co de Ann. § 40 -35-401(d) (2003). This presumption is “‘conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all r elevant facts and circumstances.’” State v. Ro ss , 49 S.W. 3d 833 , 847 ( Tenn. 2001) (quot ing State v. Pettus , 986 S.W.2d 540, 543 (Tenn. 1999)); State v. Ash by, 823 S.W .2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached by

the trial court in sentencing a defendant or to the determinations made by the trial court wh

ich are predic ated u pon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Cr im. App. 20 01); State v. Butler , 900 S.W.2d 305, 311 ( Tenn. Cri m. App. 1994); State v. Smith , 891 S.W.2d 92 2, 929 (Te nn. Crim . Ap p. 1994). In conducting a de novo review of a sentence, we must consider: (a) any evidence received at the trial and/or se ntencing hearing; (b) the pre- sent ence report; ( c) the pr inciples o f sentencing; ( d) the ar gumentsof counse

l relativ e to sentencing alternatives; (e) the nature and char acteristics of the off

ense; (f) an y mitigating

or enhancement

factor s; (g) any statements made by the defendant on his or her own behalf; and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35- 210 (2003 ); Statev. Taylor , 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party c hallenging a sentence imposed by

the trial court has the burden of establishing that the se ntence i s errone ous. Tenn. Cod

e Ann. § 40 -35-401 ( 2003), Se ntencing Commission Cm

ts.
Tenness ee Code A

nnotated section 4 0-35-103 (1) (200 3) statesthat:
Sentences involving

confine ment shoul d be base d on the fo llowing c onsidera tions: (A) Confinement is necessary to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) Confinement is necessary to avoid depreciating the

seriousness of the offense or confinement

is particularly

suited to provide an effective de

terren ce to othe

rs likely to commit similar offenses; or (C) Measure s less restrictive than confinement have freque ntly or rece

ntly been applied unsuccessfully

to the defendant . . . .
Ad di ti on al ly, “[t]he potential or lack of potential for the rehabilitation or treatment of the defendant should be consid

ered in d etermini n g th e sentence alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-103(5). The trial court may consider enhancement and mitigating factors when determining a defendant’s sentence

. See Tenn. Co de Ann. §§ 40-35-113, -114 (2003). Moreove r, if a de fendant is convicted of more than one criminal offense, the trial court may or der the sentenc es to ru n c on se cu ti ve ly i f t he co ur t f in ds by a prepond

erance of the evidence t

hat cer tain criteria are met. See Tenn. Code Ann. § 40-35-115(b)(1)-(7) (2003).
In the case under submission, the Defendant “conce des that the aggravating

factors applied were appropriate.” Howeve r, the De fendant contendsthat the tr

ial cour t erred in sentencing him because it failed to consider as a mitigating factor tha t the Defend ant gre

w up in a home where his father se xual ly abused his s ister . The D efenda nt als o cont ends t hat th e Defen dant’ s aggrega t e sentence of ninety-two y

ears is contrary

to public policy because

it “requires that

[the Defe ndant] die in prison.” The trial court applied mitigating factors based upon the following determinations: (1)-6-

the Defendant’s actions neither caused nor threatened serious bodily injury ; and (2) the Defendant pled guilty

or nolo contendere, negating the need for a protracted trial. The trial court applied the following enhancement factors: (1) the Defendant had a history

of criminal behavior based upon the finding that, except for the firs t act of sexual abuse, there was prior criminal sexual conduct preceding each ep iso de of sexua l abuse; (2) the victim was vulnerable because of her age; (3) the Defendant

committed the multiple offenses to gratify his desire for pleasure or excitement based upon the Defe

ndant’s g raphic journal entries detailing the pleasure and excitement he g ot from abusing the victim; and (4) the Defend ant abused a position of private trust based upon the Defendant’s numerous journal entries detailing how he coerced the victim into complying with the sexual abu se for f

our years. Based upon our de novo review of the sen tencing hear ing, the pre-sentence repor t and the evidence presented at the sentencing hearing, we conclude that the trial court properly

applied the above listed enh anceme

nt and mitig atin g f

actors w hen dete rmining the Defe ndant’s a ggre gate sentence. The Defendant presented no evidenc e at the sentencing hearing regar ding wha t effec t his older sister’s allege d sexual abuse by his father ha d on the Defendant and whether witnessing suc h abuse as a chil d caused

him to abus e the vic tim

in this case. Indeed, the De fendant only stated

that he was sorry tha

t he abu sed the vi cti m a nd wi sh ed th at ev er yon e w ou ld fo rg iv e h im so me da y. Fu rther, Benick, the Defendant’s y ounger sister, denied that this alleged abuse caused t

h e Defendant’s abusive behavior in this case. In a ddition, the Defendant did not argue to the trial court that the alleged sexual abuse of his sister by his father should be a mitigating factor. The refore, we conclude that the trial court did not err by not considering the alleged sexual abuse of the Defendant’s sister as a mitigating fa ctor in this case.
We further conclude

that the Defendant’s agg regate sentence of ninety

-two year s in prison is not contr

ary to public policy. The Def endant pled guilty

or nolo contendere to seventy counts of sexu al crimes against a minor. The Defenda nt’s journal recounts in graphic detail wh at th e Defendant

did to the victim over a four-y ear period, starting when the victim was twelve y ears old. The Defend ant’s jou

rnal reveals tha

t he used h

is paren tal positio n to coer

ce the vi ctim in t o performing s exual acts and that he ultimately used GHB to incapacitate and rape the victim. The victim testified that she continues to have nightmares about the long period of abuse and has fits of “rage, sorrow and fear.” Moreover , an extended peri od of co nfineme nt is justifi ed in this c ase to protect society a

nd provide an effective deterre nce to others likely to commit similar offense s. III. Conclusion
Based upon our de novo review, we conc lude that the trial court did not err in sentencing the Defend ant. The

refore , we AFF

IRM the trial c ourt’s jud

gments.

___________________________________ ROBERT W. WEDEMEYER, JUDGE-7-