State v. James Gilbert ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
September 29, 1999
AUGUST 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9808-CC-00303
)
) Jefferson County
v. )
) Honorable Rex Henry Ogle, Judge
)
JAMES JASON GILBERT, ) (Rape of a child)
)
Appellant. )
For the Appellant: For the Appellee:
Robert W. Scott Paul G. Summers
Assistant Public Defender Attorney General of Tennessee
Post Office Box 416 and
Dandridge, TN 37725 Marvin S. Blair, Jr.
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243
Alfred C. Schmutzer, Jr.
District Attorney General
and
Steven Hawkins
Assistant District Attorney
Sevier County Courthouse, Suite 301
Sevierville, TN 37862
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, James Jason Gilbert, appeals as of right from his
conviction for rape of a child, a Class A felony, following a bench trial in the Jefferson
County Circuit Court. He was sentenced to twenty-five years confinement in the
custody of the Department of Correction. On appeal, the defendant contends that the
trial court erred in sentencing. We affirm the sentence imposed by the trial court.
This case arises from the twenty-year-old defendant’s rape of his five-
year-old male cousin. Testimony at trial shows that while the defendant was babysitting
the victim, the defendant told the victim to bend over, penetrated the victim’s anus with
his penis, and ejaculated. The evidence shows that the victim suffered from a torn
anus and rectal bleeding.
At the sentencing hearing, the defendant’s mother testified that the
defendant had never been in trouble before the rape. She testified that as a child, the
defendant was sexually abused by his uncle.
A presentence report was admitted into evidence. The report states that
the defendant is five feet, eleven inches tall and weighs two hundred ninety-five
pounds. In the report, the defendant states as follows:
I was babysitting my cousin. During that time I had my
blackout spells. It seemed to be 2 to 3 hours but it must have
been a few minutes. I woke up hearing [the victim] scream,
“Stop stop it hurts.” My mom and dad came home and asked
me what happened. My cousin told them what happened but
I wouldn’t speak to them and ran off to the woods.
According to the report, the defendant has no previous criminal history. He graduated
from high school and has a work history. The defendant reported that he was abused
by his uncle.
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In reaching its twenty-five-year sentence, the trial court applied the
following enhancement factors, as listed in Tenn. Code Ann. § 40-35-114:
(4) A victim of the offense was particularly vulnerable because
of age or physical or mental disability . . . .;
(7) The offense involved a victim and was committed to gratify
the defendant’s desire for pleasure or excitement; [and]
(15) The defendant abused a position of public or private trust
....
In mitigation, the trial court found that the defendant had mental problems. See Tenn.
Code Ann. § 40-35-113(8). The record indicates that the trial court gave great weight to
enhancement factor (15) and little weight to mitigating factor (8).
The defendant contends that the trial court erred by imposing a sentence
of twenty-five years. With respect to the enhancement factors, he argues that the trial
court should not have applied factors (4) and (7) and that the trial court gave too much
weight to factor (15). With respect to the mitigating factors, he argues that the trial
court should have found that his conduct neither caused nor threatened serious bodily
injury and that because of his youth, the defendant lacked substantial judgment. See
Tenn. Code Ann. §§ 40-35-113(1), (6). He also argues that the trial court should have
given more weight to the defendant’s mental problems in mitigation. The state
contends that the trial court properly sentenced the defendant.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-
401(d). As the Sentencing Commission Comments to this section note, the burden is
now on the defendant to show that the sentence is improper. This means that if the
trial court followed the statutory sentencing procedure, made findings of fact that are
adequately supported in the record, and gave due consideration and proper weight to
the factors and principles that are relevant to sentencing under the 1989 Sentencing
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Act, we may not disturb the sentence even if a different result were preferred. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which accompanies the trial
court's action 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. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The sentence to be imposed by the trial court for a Class A felony is
presumptively the midpoint in the range when there are no enhancement or mitigating
factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to
increase the sentence within the range based upon the existence of enhancement
factors and then reduce the sentence as appropriate for any mitigating factors. Tenn.
Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the
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trial court's discretion so long as it complies with the purposes and principles of the
1989 Sentencing Act, and its findings are adequately supported by the record. Tenn.
Code Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at
237; see Ashby, 823 S.W.2d at 169.
I. ENHANCEMENT FACTORS
The defendant contends that the trial court erred by applying
enhancement factor (4), the victim was particularly vulnerable because of his age. At
the time of the rape, the victim was five years old and the defendant was twenty years
old. Initially, we note that the state contends that it did not file notice of intent to use
this factor and that the trial court did not apply this factor. However, although the trial
court did not state the specific statutory numbers of the enhancement factors it found, it
stated as follows:
The age of this young man made him completely defenseless.
The defendant in this case is a large, heavy set man, obviously
very much stronger and more powerful . . . . [I]n this case,
especially this case, this was a little five year old boy, had no
way to escape, none whatsoever, from this defendant.
The record shows that the trial court did apply enhancement factor (4).
With respect to factor (4), our supreme court has stated that it “relates
more to the natural physical and mental limitations of the victim than merely to the
victim’s age.” State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The court held that
particular vulnerability is shown when, because of age or physical or mental condition,
the victim is “incapable of resisting, summoning help, or testifying against the
perpetrator.” Id. In Adams, the court concluded that the state failed to prove that the
victims, who were ages three, four, and twelve, were particularly vulnerable to the
defendant, who was twenty years old. We believe the same is true in the present case.
Thus, the trial court erred by applying factor (4).
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Next, the defendant contends that the trial court erred by applying
enhancement factor (7), the offense was committed to gratify the defendant’s desire for
pleasure or excitement. The record shows that the trial court applied this factor
because the defendant had an erection and ejaculated. Our supreme court has held
that ejaculation, alone, is inadequate to support the application of factor (7). State v.
Kissinger, 922 S.W.2d 482, 489-90 (Tenn. 1996). However, in the present case, the
defendant provided a statement to the authorities in which he said that he got an
erection when the victim sat on his knee and that he then raped the victim. We believe
that evidence of the defendant’s sexual arousal immediately before committing the
rape, in addition to evidence of the defendant’s ejaculation, supports a finding that the
defendant raped the victim to gratify the defendant’s desire for pleasure or excitement.
The defendant also contends that the trial court erred by placing great
weight on enhancement factor (15), the defendant’s abuse of private trust. If the trial
court followed the sentencing purposes and principles, the weight to be afforded an
existing factor is left to the trial court’s discretion, and we hold that the trial court’s
findings with respect to factor (15) are adequately supported by the record. Tenn. Code
Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see
Ashby, 823 S.W.2d at 169.
From our de novo review, we also determine that sentencing
enhancement factor (16) applies in that the defendant committed the offense “under
circumstances under which the potential for bodily injury to a victim was great . . . .”
Tenn. Code Ann. § 40-35-14(16). Needless to say, the actual injuries suffered by the
victim support the use of this factor.
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II. MITIGATING FACTORS
The defendant contends that the trial court erred by rejecting factor (1),
the defendant’s conduct neither caused nor threatened serious bodily injury. He argues
that the state failed to prove that the victim’s injuries were serious. The state contends
that the record supports the application of the factor.
Serious bodily injury is defined as bodily injury which involves the
following:
(A) A substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement;
(E) Protracted loss or substantial impairment of a bodily
member, organ, or mental faculty.
In the present case, considering that the victim was a small child and the defendant
was a large adult, that the penetration caused the victim’s anus to tear and caused
rectal bleeding, and that the victim screamed for the defendant to stop, the record
supports a finding that the penetration threatened extreme physical pain.
Next, the defendant contends that the trial court erred by not considering
the defendant’s youth as a mitigating factor. See Tenn. Code Ann. § 40-35-113(6).
The defendant was twenty years old at the time of the crime. The trial court stated that
factor (6) was inapplicable because “his statement and so forth indicates to the Court
that he knew what he was doing . . . .” We note that, in addition, mental evaluations of
the defendant show that he was articulate and that he knew what he did was wrong.
He graduated from high school and held several jobs. The defendant has not shown
that the trial court erred by denying this factor.
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Finally, the defendant contends that the trial court erred by giving little
weight to the defendant’s mental problems as a mitigating factor. Again, we note that if
the trial court follows the sentencing purposes and principles, the weight to be afforded
to an existing factor is left to the trial court’s discretion. We hold that the trial court’s
findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210,
Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d
at 169.
Although we conclude that the trial court should not have applied
enhancement factor (4), we have also determined that enhancement factor (16)
applies. Thus, the defendant remains with three enhancement factors and one
mitigating factor. Under these circumstances, we hold that the record adequately
supports the twenty-five-year sentence imposed by the trial court.
In consideration of the foregoing and the record as a whole, we affirm the
judgment of conviction.
__________________________
Joseph M. Tipton, Judge
CONCUR:
__________________________
John Everett W illiams, Judge
__________________________
Alan E. Glenn, Judge
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