# FILED
December 27, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9809-CC-00332 Appellee, ) ) Cocke County v. ) ) Honorable Ben W. Hoope r, II, Judge LONNIE STEPHEN DUNN, ) ) (Sentencing) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : THOMAS V. TESTERMAN PAUL G. SUMMERS 301 East Broadway Attorney General & Repor ter Newport, TN 37821 GEORGIA BLYTHE FELNER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 AL C. SCHMUTZER, JR. District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862 WILLIAM (BROWNLOW) MARSH, II Assistant District A

ttorney General 339-A East Main Street Newport, TN 37821

OPINION FILED: ____________________________

__ AFFIRMED AS MODIFIED ALAN E. GLENN, JUDGE2 

### O P I N I O N

The Cocke County grand j ury indicted the defendant, Lon nie Stephen Dunn, on three coun ts of statuto ry rape pursuant to Tenn. Co de Ann. § 39-13-506 (1997). On September

12, 1997, the defendant pleaded guilty to all three counts. After a sentencing hearing, the trial court sentenced the defendant to two years on each o f the three counts with the sentences on counts one and two to be served co ncurrent ly and that on count three to be served consecutiv ely. The trial court o rdered the defendant to serve one year in the county jail, follow ed by three years of probation. The defendant t imely appeale d, arguing the trial court’s sente nce was excessiv e. Based on our review of this m atter, we affirm the sentence of two years in each count, but modify the judg ment of the trial court to reflect that

all sentences

will be served concurrently. Additionally, we modify the term of split confinement to six months.

FACTS The victim in this case was a 14-year-old girl with whom the 48-year-old defendant established a relationship in December 1993. The defendant was a disc jockey at a radio station where the victim c alled to make song request s. The defendant and the victim met and became friends. In October 1994, th e defendant and the victim had sexual intercourse followed by two additional instances of sexual intercourse. The victim became pregnant with the defendant’s child i n May 1995. The child w as born February 17, 1996.

I. LENGTH AND CONDITIONS OF SENTENCE When an appeal challenges the length, range, or manner of service of a sentence, this court conducts a de novo review with a presumption that the determination of the trial court is correct. Tenn. Code Ann. §40-35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record th at 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 the event that the record fails to demonstrate such consideration, review of the sent ence is pu rely de novo

. Id . In conducting a de novo review of a sentence, th e1 The State also arg ues the trial court properl y applied enhancemen t factor (6), “The personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great.” Tenn. Code Ann. § 40-35-114 (6) (1997). W hile this factor was not discussed by

number by the trial cou rt, making it unclear whether i t was applied, based

upon our de novo review, we have a

pplied this enhancemen t factor.

3 court mus t consider : (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arg uments as to sentencing alternatives; (d) the nature and character istics of the criminal conduct inv olved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -210. See State v. Smith , 735 S.W.2d 859, 863 (Tenn. Cr

im. App. 1987). If appellate review reflects that the trial court properly considered all relevant factors and its fi ndings of fact are adequately supported by the record, this Court must affirm the sentence, "even if we w ould have preferred a

different result." State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

In the case sub judice , the tr ial cou rt fo und the existe nce of at least five 1 enhancement factors listed in Tenn. Code Ann. § 40-35-114 (1997):

(3) The offense inv

olved more than one (1) victim; (4) A victim of the offen se w as particularly vulnerable because of age or physical or mental disabi li ty, in cluding, but not limited to, a situati on whe re th e defendant delivered or

sold a controlled substance to a minor withi n one tho usand fee t (1,000 ft.) of a publi c playground, public s wimming pool, youth center, videoarcade, low income housing pr oject, or church; (7) The offense involveda victim and was committed to gratify the defendant's desi re fo r pleasure or excitement; (15) The defendant abused a position of pu blicor private trust, or us ed a special skill in a mann er that significantlyfacilitated the com miss ion or the fulfillment of the offense; and (17) The defendant committ ed t he offense while on school pr operty.

The State concedes the trial court improperly applied factors (3) and (7), but argues4

the trial court did not cons ider factors (4) and (17).Finally, the State argues the trial

court correctlyapplied factor (15). Altho ugh the trial cou rt discuss ed the ap plicatio n of all f ive factors, the record does not reflec t upon which factors the tr ial court ultimately based its decision. For this reason, we will review the application of each factor de novo

.

The defendant argues, and the State concedes, that enhancement factor (3) cannot be applied. The trial court stated that the child produced by the v ictim and thedefendant could probably be considered a victim for purp oses of enhancement. The Tennessee Sup reme Court has held the term “vic tim” as used in the statue “i s limited in scope to a person or entity that is inj ured, killed, had property stolen, or had property destroyed by the perpetrator

of the crime. Moreo ver, giving the term a generic meaning would deprecate this fact or an d render it meaningless.” State v. Raines , 882 S.W.2d 376, 384 (Tenn. 1994). Although the child may suffer because of the circumstances of its birth, the child may not be considered a vi ctim of the defendant’s crime for enhancement p urposes.

Enhancementfactor (4) was discussed but not applied by the trial

court. Again, the defense argues, an d the Sta te conce des, tha t this fa ctor would not have applied. Factor (4) can be applied in a statutory rape case if the State shows the victim was suffering from something other than age alone that caused her to be “particularly v

ulnerable” to the crime. State v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993). Enhancement under this factor “relates
more to the natural physical and mental limitations of the victim than mere ly the victim’s age.” Adams , 864 S.W.2d at 35. “Particularly v ulnerable" in this contex t means incapable of resisting, summoning h elp, or testifying against the perpetrator. Id. The State bears the burden of proving the victim's limitations rendering him or her particularl

y vulnerable. As the State concedes, nothing in the record indicates the victim was particularly vulnerable in comparison to others her age.

Based upon our review, we conclude that enhancement factor (7) was properly applied by the trial cour t. The circu mstances of the crime, including the age differen ce between the defendant and the victim, his continued cont acts with her, and5

correspondence to her, support the application of this factor. However, it is not entitled to great weight.

Enhancementfactor (15) was improper ly applied. Application of this factor requires
a finding, first, that the defendant occupied a po sition of trust, either public or private. The positionsof “parent, stepparent, bab ysitter, teacher, coach are but a few obvious examples.” Kissinger , 922 S.W.2d at 488. In this case, the trial court found the defendant occupied a positio n of public trust as a radio disc jockey. The exis tence of a position of trust does not dependon the length or formality of the relationship, but instead depends upon the nature of the relationship. Id . “Thus, the court sho uld look t o see whether the offe nder formally or informally stood in a relationship to the victim that promote d confidence, reliability, or faith. If the evidence supports that finding, then t he court must determine whether the position occupied was abused by the c ommission of the offense.” Id

. Although the defendant and the vi ctim met through the defendant’s job as a disc jockey, the record does not in dicate that the defendant used his posi tion to commit the offenses in question or whether the position, in fact, coul d be utiliz ed in that fashion. Absent such a finding, enhancement factor (15) cannot be applied.
Although the trial court stated that it could “probably be said ” th at enhancement factor (17) applied, the court sa id that it was not going to

“rely particularly” upon this factor. T he State conc edes that it would have been erroneous for the trial court to apply this factor. The victim testified she and the defendant first engaged in sexual interc ourse at the defendant’s home. The record does not indicat e where the other two instances occurred. Not hing in the rec ord indic ates any o f the thr ee offe nses occu rred on sc hool prop erty. Therefore, this factor was not applicable.
Having reviewed the recor d de nov

o , we hold that none of the five en hancement factors discussed by the trial court were a pplicab le. How ever, u sing ou r power

of de novo review, we hold that the record does support the application of enhancemen t factor (6): “The personal injuries infli cted upon or the amountof damage to property sustai ned by or6

taken from the victim was par ticularly great. ” Tenn. Code Ann. § 40-35-114 (6) (1997).It is undisputed that the victim became pregnant and gave bi rth to a child as a result of the sexual relati on s between herself and the defendant. Thi s court has held "an unwanted pregnancy. . . does . . . come within the definition of personal inj ury." State v. Smith , 910 S.W.2d 457, 461 (Tenn. Crim. App. 1995) ( quoting State v. Jones , 889 S.W.2d 225, 231 (Tenn. Crim. App.), perm . app . denied (Tenn. 1994)). The victim testified sh e and the defendant discussed having chi ldren when she reached 18 years of age, but the pregnancy that resulted in the birth of their child was unwanted. Therefore, we hold that factor (6) is appropriate for enhancement purpose s.
However, in our de novo review of the sentences, we hold that the that the trial court erred in orderingthat two of the sentences be ser ved consecutively . None of the required criteria are present for the sentences to be served consecutiv ely. Tenn. Code Ann. § 40- 35-115 (1997).Thus, w e modify the judgment of thetrial court to reflect that the sentences be served con currentl y. Additio nally, we hold that altho ugh the lengths of the defendant’s
se ntences were proper, the defendant cannot be made to serve one yea r of actua l confinement, followed by three y ears of probation, as

ordered by the trial

court. Although
a defendant receiving spli t confinement ordinarily may be made to serve up to one year in the local jail, followed by probation, Tenn. Code Ann. § 40-35-306(a), inmates such as this defendant, with felony sentences of tw o years or less “sh all have theremain der of their original sentence suspended upon reaching their releas e eligibility dat

e,” Tenn. Code Ann. § 40-35-501(a)(3), unless the district attorney

general files a petition

requesting denial of the suspension of the sentence based upon, inter alia , disci plinary infraction occurring while th e defen dant was in carcerat ed. Tenn . Code Ann . § 40-35- 501(a)(6 ). Applyi n g these statutes, this court ha s ruled that theperiod which a defend ant is ord ered to se rve in split confinement cannot exceed what wou ld ot herwise be the release e ligibility date. State v. Glynnon Bradshaw , N o. 01 C0 1- 98 10 -C R- 00 43 9, Wil so n C ou nt y, 19 99WL 737871, at *2 (Tenn. Crim. App., Knox ville, Sept. 22, 1999). Since the rel ease eligibility date fora Range I standard offender is 7.2 months, minussentence credits, this defendant7

cannotbe ordere d to serve one year of a two-year sentence, because such a sentence would exceed his release eligibility dat e. Thus, as did the court in Bradshaw , we set the length of split confinement at si x months.

The defendant has also assigned, as error, the fact that the trial cour t did not u tilize alternat ive sentencing in this matter. However, since t he d efendant was convicted of statutory rape, a cri me a gainst the person, he w as not eligible for placement in a community corrections pr ogram. Tenn. Code Ann. §§ 40-36-106 (a)(2), 39-13-506.

The defendant has argued, as well , that he should have been granted probation for his entire sentence, rather than having split confinement i mposed. The burden was on the defendant to establish that he was a suitable candidate for probati on. Tenn. Code. Ann. § 40-35-303( b). Tomeet this burden, he must show that pr obation will “subser

ve the ends of justice and the best interest of both the public and the defendant.” State v. B ing ham , 910 S.W.2d 448, 456 (Tenn. Crim. App.), perm . app . denied (Tenn. 1995) (qu oting State
v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). Ac cording to Bingham , the sentencing court should utilize the following conside ratio ns in assessing a defendant’s suitability for probati on:

(1) “the nature and [circumstances] o f the crimina l conduct involved,” Tenn. Code A nn. § 40-35- 210(b)(4) (1990 Repl.); (2) the defendant’s pot ential or lack of potent ial fo r rehabilitation, including the ris k tha t during the per iod of probation the defendant will commit another crime, Tenn. Code An n . § 40-35-103(5) (1990 Repl.); (3) whether

a senten ce of f ull proba tion would unduly depr eciate the seriousness of the offense, Tenn

. Code Ann. § 40-35-103(1)(B) (1990 Repl.); and (4) whether a sentence other than full probation would providean effective deterrent to others likely to commit similar crimes, Tenn. Cod e An n. § 40-35- 103(1)(B) (1990 Repl.). 910 S.W.2d at 456.8 The trial court may deny probation when the circumstances of the offense are “of such a nature to outweigh all other factors which might favor probation.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn . Crim. App. 1991). In the case of this defendant, in addition to the approximate thirty -four-year age difference betw een the defendant and the victi m, he persisted in having

contact with the vi ctim, s e nding cards and letters to her. These contacts with the victim c ontinued even after the defendant was char ged with three counts of statutory rape. In v

iew of this, we concl ude that the def en dant has failed to carry his burden of showing

that he is entitled to to tal probati on, and affirm, as mo dified, t he trial court’s ordering that a portion of his sentence be serv ed in confinement.

CONCLUSION We affirm the trial court’s sent encing thedefendant to two years in each count, but modify the judgment of the trialcourt to reflect that the sentences be served concurrently and that the period of actual confinement be six month s. This matter is remanded to the trial court for entry of a judgment in accord with this opinion.

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_ ALAN E. GLENN, JUDGE CONCUR:

____________________________________ JOSEPH M. TIPTON, JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE