State v. David Ryan Swanson ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE v. DAVID RYAN SWANSON
Direct Appeal from the Criminal Court for Hamilton County
Nos. 213832-213843; 216727-216740 Douglas A. Meyer, Judge
No. E1998-00041-CCA-R3-CD - Decided May 16, 2000
The defendant, David Ryan Swanson, pled guilty to 19 counts of burglary, one count of theft of
property over $500.00, and three counts of theft of property under $500.00. The trial court sentenced
the defendant to two years on each burglary charge, two years on the charge of theft of property over
$500.00, and 11 months and 29 days on each charge of theft of property under $500.00. Four of the
sentences were ordered to be served consecutively for an effective sentence of eight years. On
appeal, the defendant argues that the trial court erred in its determination of enhancement factors,
erred in its imposition of consecutive sentences, and improperly denied an alternative sentence. We
affirm the defendant's convictions, but modify the sentences for burglary and theft of property over
$500.00 from two years to one year and order that six of the sentences be served consecutively for
an effective sentence of six years.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed as Modified
WADE, P.J., delivered the opinion of the court, in which SMITH and WITT, JJ., joined.
Johnny D. Houston, Jr., (on appeal) and Laurie J. Hadwyn (at trial), Chattanooga, Tennessee, for the
appellant, David Ryan Swanson.
Paul G. Summers, Attorney General & Reporter, Michael J. Fahey II, Assistant Attorney General,
H. C. Bright, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
As part of a plea agreement, the defendant, David Ryan Swanson, pled guilty to
nineteen counts of burglary, one count of theft of property over $500.00, and three counts of theft
of property under $500.00. The state and the defense agreed that the defendant should be sentenced
as a Range I offender to no more than an aggregate of eight years. All other sentencing issues were
to be resolved by the trial court. At the conclusion of a hearing, the trial court sentenced the
defendant to two years on each burglary charge, two years on the charge of theft of property over
$500.00, and 11 months and 29 days on each charge for theft of property under $500.00. The trial
court ordered that four of the two-year sentences be served consecutively to one another and
concurrently to all other sentences, thereby imposing an effective sentence of eight years, the
maximum possible.
In this appeal of right, the defendant contends that the trial court committed errors
in its determination of enhancement factors, erred in its imposition of consecutive sentences, and
improperly denied an alternative sentence under the Community Corrections Act.
The sentences for burglary and theft of property over $500.00 are modified from two
years to one year. The misdemeanor theft sentences of 11 months and 29 days are affirmed. The
defendant shall serve six of the sentences for burglary consecutively, with the remainder of his
sentences to be served concurrently. The effective sentence is, therefore, modified from eight to six
years.
During the time period between January 1994 and June 1996, 19 women reported that
their purses had been stolen from vehicles parked in recreational areas near Signal Mountain. Law
enforcement officials received information that a red or orange truck having wooden panels was used
by the perpetrator. While on patrol near the area of the thefts, Officer Greg Hill of the Signal
Mountain Police Department received information that a man driving the suspected truck had just
stolen a purse from a parked car. Officer Hill then saw the truck and began pursuit. When he
activated his emergency lights, the driver refused to stop. Officer Hill placed a call to the fire
department and the officers were able to stop the truck by blocking its path with a fire engine. The
defendant was the driver of the truck. Officer Hill, a K-9 officer, approached the truck with his dog.
The dog alerted. A search yielded two purses which had been stolen in the area, one of which
contained narcotics.
After his arrest, the defendant admitted to stealing the 19 purses. He explained that
he had been diagnosed as a "sex addict" and that he took the purses in order to satisfy his sexual
desires and fantasies. The defendant informed the officers that he would "masturbate to these
[stolen] purses." He revealed that he had begun the practice of looking into girls' purses while in
high school. With the defendant's cooperation, officers located 31 stolen purses in the defendant's
possession, only 19 of which had been reported as missing. In addition to the purses, the officers
found a large box containing items such as drivers' licenses, diaries, and photographs. The defendant
explained that he did not keep all of the purses that he had stolen because he lost sexual interest in
them, but decided to keep the contents of the purses because he believed he had a "personal
relationship" with the female victims and their families. He said that he used the cash from the
purses and kept the remainder of the contents. Officers were able to identify a total of 65 victims
from the materials the defendant kept in his possession.
At the sentencing hearing, it was established that the defendant, age 30, had been
married since 1994. The couple had no children together. The defendant's first marriage, which
ended in divorce in 1993, produced one son, age three at the time of the defendant's arrest. The
child resides with his mother and the defendant regularly provides support of $50.00 per week. After
completing high school, the defendant enrolled in courses at Chattanooga State Community College
where he has studied mathematics and maintained a high grade point average. He has a good
employment record, including work as a teachers' aide at the community college, as a substitute
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teacher for the Hamilton County School System in 1995 and 1996, and as a woodworker at a cabinet
shop. The defendant has a variety of health problems, which include depression, anxiety, obesity,
back pain, cluster headaches, and cardiomegaly (enlarged heart). He has one prior offense, a
misdemeanor assault conviction in 1993.
The defendant claimed that he had a "sex and love addiction." He explained that he
"created these fantasy relationships that weren't real" and that his low self-esteem causes him to seek
out unhealthy relationships. He contended that he had been making significant progress with a 12-
step program designed to combat his problems. He apologized to his family and the victims of the
crimes. The defendant's wife and father both testified that they were unaware of his "sexual
addiction" at any time before his arrest.
Several women whose purses had been stolen by the defendant also testified at the
sentencing hearing. None, however, were victims of the 19 burglaries or the four thefts to which the
defendant pled guilty. Each of the women expressed the feeling that she had been violated by the
defendant. They were particularly concerned about the defendant obtaining their personal
information, which included their addresses, social security numbers, and photographs. The women
also testified that their children were afraid that the defendant might attempt to break into their
homes. At least one of the purses the defendant had stolen contained keys to the victim's home.
Each of the women testified to the inconveniences of cancelling credit cards, dealing with stolen
checks, and replacing drivers' licenses and social security cards. They also testified as to the value
of their stolen property and the break-in damage to their vehicles. The women testified that all of
their personal belongings had been returned to them, with the exception of any cash.
The only information relating to the actual victims of the crimes for which the
defendant was convicted is contained in two victim impact statements. In the section marked
"Victim's Property Loss," Mary Seay, one of the burglary victims, wrote the following: "Van side
window smashed–$150.00, I think. Purse and contents stolen. A year later, I got everything back
except the money–about $20.00. Locks on doors to house changed–$60.00. My husband did this
himself–cost him his time, inconvenience." Jennifer Scoggins, a burglary and misdemeanor theft
victim, reported that her stolen purse had an estimated value of $40.00. The pre-sentence report
indicates that the investigating officer mailed victim impact statement forms to six additional
victims, but none of these forms were returned to the officer.
I
Initially, the defendant argues that the trial court erred in its application of statutory
enhancement factors. The state argues that the enhancement factors were properly applied.
When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption 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.
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1991); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of the sentence.
Because the trial court committed error in sentencing the defendant, our review of the defendant's
sentence is de novo, without an accompanying presumption of correctness.
Our review requires an analysis of (1) the evidence, if any, received at the trial and
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments
of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and
(7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the sentence for felony convictions committed before July 1, 1995, the
presumptive sentence is the minimum within the range if there are no enhancement or mitigating
factors. Tenn. Code Ann. § 40-35-210(c) (1990) (amended July 1, 1995, to provide that the
presumptive sentence for Class A felony as the midpoint in the range). If there are enhancement
factors but no mitigating factors, the trial court may set the sentence above the minimum. Tenn.
Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires
an assignment of relative weight for the enhancement factors as a means of increasing the sentence.
Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range by any weight
assigned to the mitigating factors present. Id. The weight given to each factor is within the trial
court's discretion provided that the record supports its findings and it complies with the Sentencing
Act. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
For a Range I offender, the applicable range for the offense of burglary of an
automobile, a Class E felony, is from one to two years. Similarly, the range for the Class E felony
offense of theft of property over $500.00 is from one to two years. The maximum sentence for
misdemeanor theft of property is 11 months and 29 days. At the conclusion of the sentencing
hearing, the trial court set two-year sentences for each burglary conviction and for the single felony
theft conviction. A sentence of 11 months and 29 days was imposed for each of the three
misdemeanor theft convictions. Because four of the two-year sentences were ordered to be served
consecutively, the effective sentence was eight years.
The trial court found the following enhancement factors applicable, but did not
specify whether the factors applied to the burglaries or to the thefts:
(1) The defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;
(3) The offense involved more than one (1) victim;
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(6) The personal injuries inflicted upon or the amount of damage to
property sustained by or taken from the victim was particularly great;
and
(7) The offense involved a victim and was committed to gratify the
defendant's desire for pleasure or excitement.
Tenn. Code Ann. § 40-35-114.
Trial courts must make separate findings as to which enhancement factors apply to
which convictions. State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994). In this case,
it appears that the trial court may have intended to apply each of the cited enhancement factors to
all of the defendant's convictions.
The trial court found the following mitigating factors:
(1) The defendant's criminal conduct neither caused nor threatened
serious bodily injury; and
(10) The defendant assisted the authorities in locating or recovering
any property or person involved in the crime.
Tenn. Code Ann. § 40-35-113. The trial court complimented the defendant for helping the police
"in clearing all the cases that he had committed. And also, I will give him credit for continuing to
seek help, even though his own counselor says that he was only going through the motions."
Because the punishment for the offense of theft is enhanced based upon the amount
taken by the defendant, Tenn. Code Ann. § 40-35-114(6) may not be applied to any of the theft
offenses. State v. Grissom, 956 S.W.2d 514 (Tenn. Crim. App. 1997). Any enhancement of the
theft convictions based upon that factor was erroneous. Moreover, none of the 19 victims of the
crimes for which the defendant was convicted were called upon to testify as to the value of the
property which was lost or damaged. The only information relating to the victims of the offenses
is contained in the victim impact statements of Mary Seay and Jennifer Scoggins. Jennifer Scoggins
reported $40.00 as her amount of loss and Mary Seay wrote that her stolen purse contained
approximately $20.00 in cash, that her van side window cost approximately $150.00, and that
replacement locks for her home totaled $60.00. Thus, the aggregate amount of damage sustained
by the victims of the crimes at issue was not "particularly great," as that term is contemplated by
Tenn. Code Ann. § 40-35-114(6). Therefore, the "amount of damage" factor is not applicable.
In State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994), this court ruled that
the multiple victims factor, Tenn. Code Ann. § 40-35-114(3), is not applicable when convictions are
entered for each victim, as in this case. Furthermore, trial courts may not infer dual ownership of
property. In State v. Shannon Renee Davis, No. 03C01-9311-CR-00387 (Tenn. Crim. App., at
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Knoxville, Nov. 14, 1995), aff'd 940 S.W.2d 558 (Tenn. 1997), the defendant damaged the home and
automobile of a co-worker. While acknowledging that "it would probably be reasonable for this
Court to infer from the record that either [the husband or the wife] had a property interest in the
house or automobile," this court refused "to infer dual ownership based on this record." Id. at 8.
Moreover, this court declined "to broaden the application of who is a 538 S.W.2d
391, 393 (Tenn. 1976). In that case, our supreme court ruled that aggravating circumstances must
be present before placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d
227 (Tenn. 1987), the court established an additional category for those defendants convicted of two
or more statutory offenses involving sexual abuse of minors. There were, however, additional words
of caution:
[C]onsecutive sentences should not routinely be imposed . . . and
. . . the aggregate maximum of consecutive terms must be reasonably
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related to the severity of the offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary
language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the
holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the trial
court only upon a determination that one or more of the following criteria1 exist:
(1) The defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant's criminal conduct
has been characterized by a pattern of repetitive or compulsive
behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing
a crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant's
undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim
or victims;
(6) The defendant is sentenced for an offense committed while on
probation;
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
The length of the sentence, when consecutive in nature, must be "justly deserved in
1
The first four criteria are found in Gray. A fifth category in Gray, based on a specific
number of prior felony convictions, may enhance the sentence range but is no longer a listed
criterion. See Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments.
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relation to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than
that deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); See also State v. Lane,
3 S.W.3d 456 (Tenn. 1999).
In imposing consecutive sentences, the trial judge made the following statement:
I find under Tenn. Code Ann. § 40-35-115 that the defendant is a
dangerously mentally abnormal person so declared by a competent
psychiatrist who concludes, as a result of an investigation prior to
sentencing, that the defendant's criminal conduct has been
characterized by a pattern of repetitive or compulsive behavior . . .
with heedless indifference to consequences, and I find that is true
based on the report by his counselor, so he is a dangerous offender,
which would justify the consecutive sentencing.
The trial court's reliance upon Tenn. Code Ann. § 40-35-115(b)(3) ("dangerous
mentally abnormal person") was erroneous. The basis for the finding was a report submitted by
psychologist H. James Meginley. Tenn. Code Ann. § 40-35-115(b)(3), however, provides that a
defendant must be declared a "dangerous mentally abnormal person" by a "competent psychiatrist."
Tenn. Code Ann. § 40-35-115(b)(3) (emphasis added). See also State v. Hallock, 875 S.W.2d 285(Tenn. Crim. App. 1993). The state concedes that the trial court's basis for consecutive sentencing
was erroneous but argues that consecutive sentences are proper because the defendant has an
extensive record of criminal activity. Tenn. Code Ann. § 40-35-115(b)(2).
A defendant may have a good record and still qualify for consecutive sentencing
under Tenn. Code Ann. § 40-35-115(b)(2). So long as his present convictions indicate extensive
criminal activity, consecutive sentencing may be appropriate. Gray v. State, 538 S.W.2d 391, 393
(Tenn. 1976). A limitation is that a consecutive sentence may not be imposed unless it is necessary
in order to protect the public from the defendant's criminal conduct.
The defendant pled guilty to 19 counts of burglary, one count of theft over $500, and
one count of theft under $500.00. A total of 22 crimes qualifies as a considerable amount of criminal
activity. Moreover, the defendant was responsible for at least 65 thefts. While the defendant is
employed, married, and taking steps through therapy to address his problems, it is our view that the
trial court was warranted in concluding that the defendant's criminal behavior indicates a risk to the
public.
The defendant contends that the trial court improperly considered a sexual battery
case which was pending at the time of sentencing, but was subsequently dismissed, in its
determination that consecutive sentences were necessary to protect the public. The record
demonstrates otherwise. The trial court stated as follows:
Now I don't know whether he's guilty or not of sexual battery
involving his then 17-year-old stepdaughter . . . but that is going one
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step further if he actually is guilty of that . . . . I don't know his guilt
or innocence to that so I'm not considering whether or not he's guilty
of sexual battery, because those cases are still pending and he's
presumed to be innocent in those two cases.
The trial court concluded that the defendant was "a real threat" to the public and that the only
improvements in his attitude stemmed from his incarceration. It determined that "society [would
be] better protected" by the imposition of consecutive sentences.
In our view, consecutive sentences are necessary to protect the public. The defendant
committed a series of burglaries and thefts over a period of time in excess of two years. He
committed the offenses while receiving psychological counseling. The intrusive conduct of the
defendant poses a risk to the public. Efforts at rehabilitation through counseling have been
unsuccessful. Consecutive sentences are appropriate based upon the defendant's extensive record
of criminal activity. Tenn. Code Ann. § 40-35-115(b)(2).
"The sentence imposed should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed." Tenn. Code Ann. § 40-35-103(4). Because the
defendant has an impressive work and educational history, because he was willing to assist the
authorities in the resolution of several pending criminal investigations, and due to his strong family
support, confinement for a period of six years is warranted. That, in our view, is the least severe
sentence possible under these circumstances. The sentence, as modified, is long enough to avoid
depreciating the seriousness of the offenses. In summary, the defendant shall serve six of his
nineteen one-year sentences for burglary consecutively. Because the remainder of his sentences will
be served concurrently, the effective sentence is six years.
III
Next, the defendant argues that the trial court erred by denying an alternative
sentence. He claims that he was a suitable candidate for sentencing under the Community
Corrections Act of 1985. The state disagrees.
Especially mitigated or standard offenders convicted of Class C, D, or E felonies are
presumed to be favorable candidates "for alternative sentencing options in the absence of evidence
to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which
apply here, probation must be automatically considered by the trial court if the sentence for each
conviction is eight years or less. Tenn. Code Ann. §§ 40-35-303(a), (b). Among the factors
applicable to an application for probation are the circumstances of the offense, the defendant's
criminal record, social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). A sentence of
split confinement involves the grant of probation after the partial service of a sentence. Tenn. Code
Ann. § 40-35-306. It may include a jail or workhouse sentence of up to one year with the
probationary term to extend for any period thereafter up to the statutory maximum for the offense.
Id.
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The purpose of the Community Corrections Act of 1985 was to provide an alternative
means of punishment for "selected, nonviolent felony offenders in front-end community based
alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence
provides a desired degree of flexibility that may be beneficial to the defendant yet serve legitimate
societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). The following offenders are
eligible for Community Corrections:
(1) Persons who, without this option, would be incarcerated in a
correctional institution;
(2) Persons who are convicted of property-related, or drug/alcohol-
related felony offenses or other felony offenses not involving crimes
against the person as provided in title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
(5) Persons who do not demonstrate a present or past pattern of
behavior indicating violence;
(6) Persons who do not demonstrate a pattern of committing violent
offenses; and
(7) Persons who are sentenced to incarceration or on escape at the
time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
The defendant is presumed to be a favorable candidate for alternative sentencing.
Tenn. Code Ann. § 40-35-102(6). He is not, however, entitled to a Community Corrections sentence
as a matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).
In denying an alternative sentence, the trial court stated as follows:
I do find he is a . . . real threat. I think the improvement in his
attitude has been because of his incarceration. I've noticed the change
only since he's been incarcerated. I believe that . . . in this case that
he is a dangerous offender and should serve active time, so I will
order the 8-year sentence to be served in the Department of
Corrections.
The defendant began stealing purses in October of 1994. While he had received
psychological counseling since December of 1993, he continued to steal women's purses until his
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arrest in June of 1996. Moreover, the defendant's psychologist believed that the defendant had not
made "significant progress on an outpatient basis" and was merely "going through the motions,
giving outward appearances of compliance, hoping that would be enough." The psychologist also
indicated that the defendant routinely missed or arrived late to his counseling sessions. Thus, it is
fair to conclude that his attempts at counseling had been unsuccessful and that confinement was
necessary to protect society. That, in our view, is a reasonable basis for the denial of an alternative
sentence.
Accordingly, the convictions are affirmed and the sentences modified to an effective
term of six years.
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