1 It is the policy of this Court to refer to child victims by initials instead of by name.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. JER RY RAY CHANDLER

Appeal from the Criminal Court for Hickman County No. 98-5041CR-I Cornelia A. Clark, Judge

No. M1999-00543-CCA-R3-CD - Decided April 27, 2000

The Defendant, Jerry Ray Chandler, was found guilty by a Hick man County ju

ry of the offense of rape. He was sentenced to twelve years incarceration, which is the maximum sentence for a Range I standard offender for the offense of rape, a Class B felony. He was a lso assessed a twenty -five thousand dollar fi ne. In this appea

l as of right, the De

fendant asserts

that both his sentence and fin

e are excessive. We affirm the ju dgment of the trial

court.

T.R.A.P. 3; Judgment of the Trial Court Affirmed

J UDGE D AVID H. W ELLES delivered the opinion of the court, in which J UDGE J OSEPH M. T IPTON and S ENIOR

. J UDGE L.T. L AFFERTY joined.

John D. Henderson, Franklin, Tennessee, for the appellant, Jerry Ray Chandler.

Paul G. Summers, Attorney General and Reporter, Clinton J . Morgan, Assistan t Attorney Gener

al, Ron Davis, District

Attorney Genera

l, Judson Phippils,

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

OPINION

The proof at trial established that in August 1997, t

he thirteen-yea

r-old victim

in this case, J.R., 1 went to the Defendant's house to play basketball with his two sons. About 9:00 or 9:30 that evening, the two boys left the area, leaving the victim alone with the Defendant in a storage building. The Defendant asked J.R. if she "wanted to have some fun," but J.R. told him, "no." He began pressuring her to have sexual intercourse with him, but she resisted. He then

pushed her down and penetrated

her vagina with his penis for five or ten minutes, as she continued to resist. Afterwa

rds, he told her

that he would "get"her if she told anybody. She knew the Defendant well, as she visited his home often to

play with his sons, and her parents and his parents had been close friends at one time.-2-

Several months later, in January 1998, J.R. made a phone call to the Defendant at the request of Larry Holman, a police

detective. The conversation was tape recorded, but the recording was of poor quality, making it very difficult to hear the Defendan t's s ide of the conversation. However, boththe victim and Det. Holman testif ied that the Defe

ndant asked J.R. no

t to tell anyone about the incident because he “had a lot of things going on with his life” and did not need any more trouble.

At the sentencing hearing, J.R. testified that since the rape, she has become withdrawn from her friends, and she does not know who to trust. She does not like to be in crowds bec ause she is afraid people are talking about her. She saw a psychologist for a pe riod of time , and now she receives counseling once a week. She said that she trusted the Defendant prior to this incident. She visited his house on many occasions to play basketball with his sons. Her mother had not objected to her visiting the Defendant's home.

J.R.'s mother testified a

t the sentencing he

aring. She said

that her daughter has always been

a "good girl," that she would never hurt anyone, and that she has been a good student. She stated that her daughter of

ten visited the Def

endant's home with

her permission. Since the rape, J.R. does
notwant to leave the house at all. She has become withdrawn, she has avoidedher friends, she has nightmares, and she does not trust anyone.

The Defendant's sister, Dorothy Jean Potter, testified for the defense. She said that at t he time of the offense, her brother lived with their mother and older brother in Wrigley, Tennessee. He

was married once and he has two sons, but he and their

mother were divorced when the boys were small. The Defendant w ent to a "special school," and he did not attend school for long. To her knowledge, the Defendant has never worked. She said that he once received supple

mental security income (SSI) benefits due to his mental condition. She characterized t h e Defendant as " a little slow," but said "he's just like a normal person to me."

After stating that she had considered all the testimony, the presentence report, the principles of sentencing and arguments of counsel, the nature and characteristics of the criminal conduct, and all evidence and inf

ormation present

ed about enhance

ment and mitigating f

actors, the trial judge found no mitigating factors and five enhancement factors. The statutory enhancement factors found by the trial judge a

re as follows: (1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;

. . . (4) The victim of the of

fense was partic

ularly vulnerable

because of age or physical or mental disability . . . ;

. . . (6) The personal injuries inflicted upon or t he amount of damag e to property sustained by or tak

en from the victim w

as particularly g

reat;

. . . (15) The defendant

abused a position o

f public or privat

e trust, or used a s

pecial skill in a manner that significantly faci li tated the commission or the fulfillment of the offense;-3-

. . . [and] (21) The defendant,

who was provided

with court-appointed counsel, willfully failed to pay the administrative fee assessed pursuant to § 40-14-103(b)(1).

See Tenn. Code Ann. § 40-35-114. The trial judge stated that she gave great weight

to factor (6) and less weight to factors (4) and (15). She then imposed the maximum sentence of twelve years. She al so s tated that the amount of the fine assessed by the jury was appropriate in this case. The Defendant now asserts that the both his sentence and fine are excessive.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. See Ten n. Code Ann. § 4 0-35-401(d). Thi s presumption is “conditionedupon the affirmative showing in the r ecord 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).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hea ring; (b) the presentence

report; (c) the principles of sentencing and argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal con duc t in vol ved ; (e ) any sta tut ory mitigating or enhancement factors; (f) any sta tement made by the defe

ndant regardi

ng sentencing ; a nd (g) th e potential or lack of potential for rehabilitation or treatment. See State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due co nsideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequat ely

supp orted by the record, then we may not modify the sentence even if we would have preferred a different result. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The presumptive sentence for rape, a Class B felony, is the

minimum s entence in t he range if there are no enhancement or mitigating factors. See Tenn. Code Ann. § 40-35 -210( c). If there are enhancement factors but no mitigating factors, the court may set the

sentence above the minimum butstill within the range. See id. § 40-3 5-210 (d). If there are enha ncement and mitig

ating factors, the court must start at the minimum sentence, en hance the sentence as appropriate for the enhancement

factors, and then reduce the sentence as appropriate for the mitigating factors. See id. § 40-35-210(e). In this case, the trial court found no mitigating factors and five enhancement

factors, and then enhanced the sentence from the minimum sentence of eight y ears to the maximum sentence of twelve years. See id. § 40-35-112(a)(2).

On appeal, the Defendant sets forth no mitigating factors, and he challenges the application of only two enha

ncement factor

s: factors ( 15) and (21) . Factor (21) allows enhancement when a defendant,

who was provided with c ourt-appointed c

ounsel, willfully

fails to pay the administrative fee. See id. § 40-35-114(21). At the sentencing

hearing, th

e trial ju dge found that a $50.00-4-

administrative fee was assessed against the Defendant and that the fee h ad not been paid. The Defendant

argues that the failure to pay the fee was not willful bec ause he was indigent, he was incarcerated

at the time of the assessm ent of the fee, hi

s bail was set at $10

0,000.00, and he c

ould not afford to pay his bail in order to get out of jail. However, the evidence also showed that at the time of his arrest, the Defendant was receiving supplemental social security income benefits. We conclude that the record supports the factual determination that the Defendant had the ability to pay the $50.00 fee from h

is SSI benefits. Because he failed to pay the fee, the a pplication of factor (21) was appropriate.

Factor (15) allows enhancement of a sentence when a

defendant abuse

s a position of public

or private trust

. See id. § 40-35-114(15). With respect to this f

actor, the trial j udge found th e following: I think that factor f

ifteen may

apply as to a positi on of privat e trust, al though I don't give it as much weight.

Mr. Chandler was n

ot i n a family or

father figure

roll specifically

to [J.R.] but, in fact, they were neighbors, they lived very nearby, the chil dren pl ayed together. A level of trust had been develope d by [J.R.] and her mother that she was willing to place her daughter regularly under the supervision of Mr. Chandler at his home and allow her unlimited access there, and I think that access ultimately did facilitate the commission of this offense.

We believe the evidence supports this determination. Although the Defendant was not in an obvious position of trust, such as a parent, babysitter,teacher, or co ach, he neverth

eless occupied a position of private trust. As noted by the trial court, the victim often visited the Defendant's residence. T he Defendant

would sometimes pick her up and drive her home. She played with the Defendant's so

ns. Both the victim and her mother trusted the Defendant. The victim's mother had no objections to the victim spending time

with the Defendant an d allowed h er to visit often. We r eject the De fendant's contention that he was merely a "casual visitor" with whom the victim had no trusting relationship. See State v. Ki ssinge r , 922 S.W .2d 482 , 48 8-8 9 (T enn . 19 96) (ho ldi ng de fend ant was mer ely a

c asual visitor in the victim's house and did not occupy a position of private trust where no proo f suggested that he visited frequently or that the victim or othe r children we re placed in his care). Thus, the trial court pr

operly enhanced the Defendant's sentence based on the existence of this factor.

The State urges us on appeal to find tha t the trial judge erred by not applying enhancement factor (7), that the offense was committed to gratify the defendant's desire for pleasure or excitement. See Tenn. Code An n. § 40-35-114(7). In considering this factor, the trial court stated, "I am not convinced

in this case that sufficient proof has been offered as to that element." We find no error. We first note that our supreme court has rejected the argument that all rapes are motivated by the desire for pleasure or excitement. See State v. Adams . 864 S.W.2d 31, 34-35 (Tenn. 1993). Our supreme court has observ

ed that some rape

s are not committed

for pleasure at

all and that

the desire for pleasure cannot be presumed by the act of rape. See id. at 35. The Tennessee Supreme Court has further instr

ucted us that [e]nhancement

factor (7), u nlike most of the other sentencing f actors, c alls into quest i on a defendant's

reasons for comm

itting a crime. H

uman motivation is a-5-

tangled web, always complex and multifaceted. To prove defendant's motives will alw ays be a difficult task. But the legislature, in its wisdom, has placed that obligation on the state when the state seeks an enhanced sentence. State v. Kissinger , 922 S.W.2d 482, 491 (Tenn. 1996).

The trial judge foun

d that the state fa

iled to meet its

burden of proving the

existence of the “pleasure o r exciteme nt” enhancem ent factor. We decline to distur b that find ing.

Having found that the trial court appl i ed five enhancement factors after considering the appropriate

sentencing principles, we affirm the twelve year sentence imposed on the Defendant for the offense of rape.

The Defend ant next ar gues that the fine imposed by the trial court is excessive. The jury assesseda fine of $25,000.00 against the Defendant, which is the maximum fin e authorized for a Class B fel ony. See Tenn. Code Ann. § 40-35-111(b)(2). At the sentencing hearing, the Defendant argued that the amount of the fine was "too high" because he was indigent a

nd had no means with which to pay the fine. He noted that his only income came from supplementa l security in

come disability benefits. The trial judge stated that the "amount of the fine is appropriate in this case," and she imposed a $25,000.00 fine . She did acknowle dge that "bec

ause of incarce

ration, it may not get paid." On appeal, the Defendant argues that he should be e xcused fro m the obli gation of payin g a fine in any amoun

t in this case

because (1) he has been declared an indigent person by the trial c

ourt, (2) he is not entitle

d to release fro

m prison on bail

due to his rape conviction, (3) he presently has

no assets other than family help, and he has a debt o f bank notes,

and (4) he is facing a sentence of twelve years . Es sen tia lly, the Defendant claims he should not be required to pay a fine because he does not have the wherewithal to do so.

In State v. Bryant

, 805 S.W.2d 762 (Tenn. 1991), the Tennessee Supreme Court recognized the authority of the appellate court s to r eview fines imposed by the trial court. See id. at 766-67. When an offense is punishable by a fine in excess of $50.00, it is the obligation of the jury to set a fine, if any, within the ranges provided by the legislature. See Tenn. Code Ann. § 40-35-301(b). The trial court, in imposing

the sentence, sh

all then impose a fi

ne in an amount not t

o exceed the fine fi xed b y the jury. See id. The trial court's imposition of a fine is to be based upon the factors provided by the 1989 Sentencing Act, which includes the defendant's a bility to pay the fine. See State v. Marshall , 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993); Tenn. Code Ann. § 40 -35

- 207(a)(7). However, the defendant's ability to pay , while a factor

to con sid er, " is n ot n eces sar ily a controlling on e." Marshall , 870 S.W.2d at 542; see also State v. Alvarado , 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996). As we stated in Marshall
, We recognize that an oppressive fine can disrupt future rehabilitation andprevent a defendant from becoming a productive member of society. Such results ar e no t usually compatible with the purpos es and p rinciples of the 1 989 Sentencing A ct. However, a significant f

ine is not automatic

ally precl uded just because

it works a substantial hardship on a def endant -- it

may be punitive in the same fashion incarceration may be punitive.-6-

Marshall , 870 S.W.2d at 542. We realize that

the Defendant is indigent and that the fine may wo

rk a substantial ha

rdship

on him. Notwithstanding, we conclude that

the fine imposed is a

ppropriate and "

justly deser

ved in relation to the seriousness of t he offense." Tenn. Code Ann. § 40-35-102(1). The Defendant was convictedof raping a young girl who was thirteen years old at the time of the offense. The trial court appropriately

applied fi ve enhancement factors when sentencing the Defendant. We approve the imposition of the maximum fine.

The judgment of the trial court is affirmed. Judge David H. Welles Judge Joseph M. Tipton Senior Judge L.T. L

afferty