IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 14, 2018

STATE OF TENNESSEE v. JACOB BERGUM

Appeal from the Circuit Court for Montgomery County

No. CC-15-CR-178 Jill Bartee Ayers, Judge

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No. M2016-02399-CCA-R3-CD

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The defendant, Jacob Bergum, was sentenced to ten years in confinement by the trial 

court for his Class B felony conviction of aggravated sexual battery. On appeal, the 

defendant argues the trial court improperly enhanced his sentence as a Range I offender 

from the minimum of eight years to ten years in violation of the purposes and principles 

of the Tennessee Criminal Sentencing Reform Act. Following our review of the briefs, 

the record, and the applicable law, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER 

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

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Jacob Bruce Bergum.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant 

Attorney General; John W. Carney, Jr., District Attorney General; and Kimberly Lund, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

In February of 2015, a Montgomery County grand jury indicted the defendant for 

two counts of aggravated sexual battery of a victim less than thirteen years of age in 

violation of Tennessee Code Annotated section 39-13-504 (a)(4). On August 22, 2016, 

the defendant entered an open guilty plea for one count of aggravated sexual battery, the 

second count was dismissed. At the guilty plea hearing, the State recited the following 

facts into the record:

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In December of 2014 Nanette Neyevaz (both names phonetically 

spelled) needed some assistance assembling a doll house for her daughter[,] 

[the victim], who was five-years-old at the time. She contacted the 

[d]efendant along with a friend of his who came over to the home to assist 

with the completion of the doll house. At some point [the victim] woke up 

and the [d]efendant went to her in order to keep her from seeing the doll 

house or the aftermath of the putting together. 

[The victim] would testify at trial that they watched a Barbie 

princess movie in the living room, and that [the] [d]efendant put her on his 

lap, repeatedly tickling her private parts. She demonstrated that during a 

forensic interview by moving her finger back and forth on her clothing. 

She indicated that this was only on her clothing with his finger. 

When her mother began vacuuming it bothered them so they went 

into the bedroom where they were both laying on the bed. She would 

further testify that he tickled her private parts again on top of her clothes, 

kissed her on the lips and told her that this was a secret, not to tell her 

mother. Ms. Neyevaz did walk into the bedroom seeing the two of them on 

her bed together. 

When interviewed by law-enforcement [the defendant] stated that 

while they were watching the videos she was sitting on his arm and hand 

and his hand was resting on her bum. When asked about [the] pinky 

promise[,] [the defendant] stated that she was the one who wanted to pinky 

promise. They were watching YouTube videos on his phone and ultimately 

went to her bedroom where he kissed the victim on the cheek while lying 

on the bed with her. He later stated that the pinky promise was for the 

kissing on the cheek. 

Further into the interview with law-enforcement he advised that 

while they were watching the videos on his phone he began to tickle her 

again in the bedroom, and advised while tickling her she was wiggling 

around on his lap, and he could not control himself and he was tickling her 

with one of his hands on her privates on top of her clothing. When he 

realized what he was doing he believed it was wrong and did stop.

After conducting a plea colloquy, the trial court found the guilty plea was knowing and 

voluntary and entered a conviction for aggravated sexual battery against the defendant.
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At the subsequent sentencing hearing, the State entered the presentence report and 

a victim impact statement from the victim’s mother into evidence. The defendant did not 

offer any proof. However, in an unsworn statement to the trial court, the defendant 

claimed that at the time he committed the offense, he was “under a lot of stress” as he 

was in an argument with his girlfriend and he “didn’t have a clear mind.” The defendant

apologized for his actions and further stated he “plan[s] on seeking God” and counseling 

upon his release.

The State then argued two enhancement factors applied to the defendant pursuant 

to Tennessee Code Annotated section 40-35-114. First, as noted in the presentence 

report, the State asserted the defendant had a previous history of criminal convictions in 

addition to those necessary to establish the appropriate range. Tenn. Code Ann. § 40-35-

114 (1). Specifically, the defendant pled guilty on July 1, 2015, to two counts of 

attempted sexually abusive activity to a child for crimes committed on March 14, 2015,

in Michigan. Second, the State argued the defendant abused a position of private trust in 

committing the offense against the victim. Tenn. Code Ann. § 40-35-114 (14). The State 

explained:

The factual basis that was provided to the [c]ourt at the time of the 

plea, was that the [d]efendant was a friend of the family who came over 

with several others to help put together a doll house around Christmas time. 

The [d]efendant volunteered to go into this room, the room of a five-year 

old, to keep her busy while the other adults were putting the doll house 

together.

The defendant agreed both enhancement factors applied, but argued the trial court 

should consider as mitigating factors the defendant’s remorse and that he did not cause or 

threaten serious bodily injury to his victim. Tenn. Code Ann. § 40-35-113 (1), (13). In 

sentencing the defendant, the trial court applied the two enhancement factors as argued 

by the State, but declined to apply any mitigating factors. As a result, the defendant 

received a sentence of ten years to serve in the Tennessee Department of Correction. 

This timely appeal followed.

Analysis

On appeal, the defendant argues the trial court erred in enhancing his sentence 

above the minimum sentence of eight years. The defendant contends the trial court 

improperly weighed the abuse of trust enhancement factor and the remorse mitigating 

factor in sentencing him to ten years in confinement. The defendant claims his “sentence 

should be reduced by deducting one enhancer and crediting one mitigator.” The State 

argues the defendant cannot show the trial court abused its discretion in weighing the 
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applicable enhancement and mitigating factors. After our review, we conclude the 

defendant has failed to establish that his ten-year, within-range sentence is improper. 

Accordingly, we affirm the sentence.

It is well settled that this Court reviews within-range sentences imposed by the 

trial court under an abuse of discretion standard with a presumption of reasonableness. 

State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-

79 (Tenn. 2012). Once the trial court has determined the appropriate sentencing range, it 

“is free to select any sentence within the applicable range.” State v. Carter, 254 S.W.3d 

335, 343 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-210 (d)). When determining a 

defendant’s sentence and the appropriate combination of sentencing alternatives, trial 

courts are to consider the following factors:

(1) The evidence, if any, received at the trial and the 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 involved;

(5) Evidence and information offered by the parties on the mitigating 

and enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office 

of the courts as to sentencing practices for similar offenses in 

Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s 

own behalf about sentencing.

Tenn. Code Ann. § 40-35-210 (b). The trial court must state on the record the statutory 

factors it considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-

210 (e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons 

for imposing a particular sentence, however, should not negate the presumption [of 

reasonableness].” Bise, 380 S.W.3d at 705-06. A trial court’s sentence “should be 

upheld so long as it is within the appropriate range and the record demonstrates that the 

sentence is otherwise in compliance with the purposes and principles listed by statute.” 

Id. at 709-10.

Here, the trial court sentenced the defendant to ten years’ incarceration as a Range 

I offender for the Class B felony of aggravated sexual battery. As a Range I offender, the 

defendant faced a sentencing range between eight and twelve years. Tenn. Code Ann. §§ 

39-13-504 (b); 40-35-112 (a)(2). As such, the ten-year sentence imposed by the trial 

court falls within the applicable sentencing range for the defendant’s offense and is 
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presumed reasonable by this Court. Bise, 380 S.W. 3d at 707; Caudle, 388 S.W.3d at 

278-79. 

The defendant argues the trial court improperly enhanced his sentence by relying 

on the abuse of private trust enhancement factor and by failing to consider the 

defendant’s remorse or that he “accepted responsibility for his action” by pleading guilty 

as mitigating factors. In assessing the applicable enhancement and mitigating factors, the 

trial court stated: 

As you know, in determining the appropriate sentence, the [trial] 

[c]ourt has to take into consideration the facts as presented when we took 

the open plea. The information in the presentence report, principles of 

sentencing and the nature and characteristics of the conduct that was 

involved in this case. Also, look at the statistical information as provided 

by the Administrative Office of the Courts. Based on all of that, and [the 

defendant’s] statement today, the [c]ourt finds that he is a range one 

offender and then looking to the enhancement factors, number one -- that he 

does have a previous history in addition to that necessary - or in addition to 

what we are dealing with today. So, one is applicable as well as fourteen -

that he did abuse a position of private trust with the circumstances of this 

case. 

In looking at the mitigating factors, I find really no mitigating 

factors are applicable. The argument that he neither caused nor threatened 

serious bodily injury. I just have a hard time thinking that that’s applicable 

with regard to a five year old in this circumstance. So, no enhancements 

(sic) factors. This is a -- as a range one offender, a felony subject to eight 

to twelve years. In looking at the -- no mitigating factors and the 

enhancement factors, the [c]ourt is going to order ten years to serve in 

TDOC.

As evidenced above, in sentencing the defendant, the trial court properly weighed 

the applicable enhancement factors and found no mitigating factors applied. The 

presentence report lists the defendant’s prior convictions for attempted sexual crimes 

against a minor. Additionally, the State provided sufficient facts to establish the 

defendant abused a position of private trust, and the defendant conceded the same. See 

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). Though the trial court failed to 

mitigate the defendant’s sentence, we find nothing in the record to indicate the trial court 

abused its discretion in making that determination. Bise, 380 S.W.3d at 707. 

Furthermore, our supreme court has made clear “mere disagreement with the trial court’s 

weighing of the properly assigned enhancement and mitigating factors is no longer a 
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ground for appeal.” Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, the 

defendant is not entitled to relief, and we affirm the eight-year sentence to be served in 

the Tennessee Department of Correction.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

trial court. 

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J. ROSS DYER, JUDGE