State of Tennessee v. James Allen Perry ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 27, 2016
STATE OF TENNESSEE v. JAMES ALLEN PERRY
Appeal from the Criminal Court for Carter County
No. 22966 Lisa D. Rice, Judge
No. E2015-01227-CCA-R3-CD – Filed May 13, 2016
The Defendant, James Allen Perry, pled guilty to fifty-nine counts of especially
aggravated sexual exploitation of a minor, a Class B felony; three counts of statutory rape
by an authority figure, a Class C felony; and one count of sexual exploitation of a minor,
a Class D felony. See Tenn. Code Ann. §§ 39-13-532, -17-1003, -17-1005. The trial
court imposed a total effective sentence of 106 years. In this appeal as of right, the
Defendant contends that the trial court erred in imposing partially consecutive sentences.
Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
Jeffery C. Kelly, District Public Defender; and David H. Crichton, Assistant District
Public Defender, for the appellant, James Allen Perry.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Anthony Wade Clark, District Attorney General; and Dennis D. Brooks, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
Sergeant Chris Bowers of the Elizabethton Police Department was investigating
the Defendant on allegations that he exposed himself to two nine-year old girls, showed
the girls pornography, and inappropriately touched one of the girls.1 Pursuant to that
investigation, Sgt. Bowers executed a search warrant at the Defendant’s home and seized
the Defendant’s computer. Forensic analysis of the computer by the Tennessee Bureau of
Investigation revealed numerous photographs of a young girl unrelated to Sgt. Bowers’s
investigation and a “commercial” video of a different girl performing fellatio on a man.
Sgt. Bowers was subsequently able to identify the girl in the photographs as S.W.2 Later,
Sgt. Bowers obtained a media card that contained photographs of S.W. and another
young girl consuming alcohol and “wrestling” inside the Defendant’s home.3
In sentencing the Defendant, the trial court described the photographs found on the
Defendant’s computer as follows:
[The computer] contain[ed] literally hundreds of photographs of the victim
. . . . The photographs appear[ed] to have occurred over varying years . . .
from the time this child was about [ten] years old until she was about
[thirteen]. The photographs depict[ed] the child playing with animals,
playing with horses. She look[ed] to be very young. Then the photographs
proceed[ed] on in sequence to depict the child in a dress and the
photographs depict[ed] shots of panties appearing to be the same fabric that
the child [was] wearing indicating that [the Defendant] [had] tried to take
photographs of the child’s underwear when she was extremely young.
There [were] photographs of this child’s vaginal area which indicate[d] she
[was] no where near even close to maturing sexually. She [had] no pubic
hair in many of these photographs. There [were] photographs . . . of her in
varying stages of nudity including wearing underwear and no other
clothing. It show[ed] her breasts. There [were] photographs showing her
buttocks. And these type[s] [of] photographs occur[ed] over the period
alleged in the indictment and she [was] wearing different underwear,
different clothing. There [were] also photographs of this child depicted in
various sexual acts . . . . There [were] multiple acts of a sexual nature.
There [was] sexual intercourse, vaginally speaking. There [was] oral sex
depicted in the photographs . . . showing [the Defendant’s] face clearly with
his mouth on the vagina of this child as it depict[ed] underwear that he
[had] pulled back and that she [was] wearing in other photographs . . . .
There [was] a photograph of this child with a male penis in her mouth . . . .
There [were] emissions of semen on the child’s underwear on the front of
her body and on the back of her body. And there [were] photographs of
1
As part of the Defendant’s plea agreement, the charges resulting from this investigation were dismissed.
2
It is the policy of this court to refer to minors and victims of sexual offenses by their initials.
3
The Defendant pled guilty to two counts of contributing to the delinquency of a child, a Class A
misdemeanor, as a result of the actions depicted in these photographs. See Tenn. Code Ann. § 37-1-156.
-2-
[the Defendant] kissing the child on her mouth . . . . [Some of the earlier
photographs showed] the child appearing to be very much asleep, covered
up in . . . either a . . . nightgown, or a tee-shirt of some sort, and underwear,
and it [was] clear that [the Defendant] [was] taking these photographs of
her while she [was] asleep in an attempt to raise her underwear and
photograph her vagina, her buttocks, or her . . . chest while she [was]
sleeping.
At the sentencing hearing, the victim’s mother, F.B.,4 testified that she had known
the Defendant since the victim was two years old and that the Defendant was a close
family friend. The Defendant was so close to the victim and her family that they would
often spend holidays together. When the victim was a young girl, she started to “spend
time” with the Defendant’s granddaughter at the Defendant’s home. Eventually, F.B.
allowed the victim to spend weekends at the Defendant’s home.
F.B. testified that the Defendant began to give the victim presents and that this
increased around the time the Defendant’s granddaughter moved away. F.B. estimated
that the victim was eight or nine years old when this happened and that it was around this
same time that the victim began to call the Defendant “Papaw.” F.B. explained that the
Defendant became a “grandfather figure” to the victim.
F.B. testified that the Defendant “spoiled [the victim] rotten . . . to a point that it
was a little over excessive at times.” F.B. explained that the Defendant would let the
victim “eat a whole pie” in one sitting and would give her video games and clothes. F.B.
recalled that when the victim was twelve or thirteen, the Defendant gave her a bathing
suit that F.B. thought “was too racy” for the victim’s age. As the victim got older, she
would stay at the Defendant’s house for weeks at a time during school breaks.
F.B. testified that she trusted the Defendant “very much” with the victim and that
she “had no idea” about the sexual abuse the victim suffered in the Defendant’s home.
F.B. stated that since the Defendant was arrested, she had put a box in the victim’s
bedroom where the victim could put items that the Defendant “had given her” or that
triggered “a bad memory.” F.B. further testified that the victim became “withdrawn” and
that her grades in school had declined since the Defendant’s arrest. F.B. also testified
that the victim was hesitant to leave her home and did not like being away from her step-
father because she felt “safe with him.” F.B. told the trial court that she believed the
Defendant deserved “the absolute maximum” because he “groomed [the victim] to be
susceptible to him” and “broke a trust.”
4
To further protect the privacy of the victim, we will refer to S.W.’s mother by her initials.
-3-
The Defendant claimed at his guilty plea submission hearing that he took the
photographs of the victim at her behest. The Defendant explained that the victim wanted
to use the pictures to make another girl angry. The Defendant claimed that he did not
know the pictures were on his computer and that the victim “undoubtedly put them on
there to try to send them to herself.” The Defendant also initially claimed that he did not
have sex with the victim and that all of the photographs of him with the victim had been
staged. However, the Defendant eventually conceded to the State’s factual basis for his
guilty pleas.
In the psycho-sexual report prepared for the Defendant’s sentencing hearing, the
Defendant again claimed that he did not know that the pictures were on his computer.
The Defendant told the examiner that the victim “was interested in a girl” and asked him
to take the pictures. The Defendant further told the examiner that the victim deleted the
pictures “before [he] saw them.” The Defendant said that he felt like “the uncle that lets
the children get away with some of the things that the mother and father would not let
them do.”
A statement of allocution written by the Defendant was read at the sentencing
hearing. In the statement, the Defendant said that he “didn’t mean for any of this to
happen.” The Defendant explained that he “let things get out of hand by letting kids get
away with things and [he] got caught up in it.” The Defendant asked for the victim and
F.B. to forgive him. The Defendant said that he knew the victim and her family would
“go on” with their lives and “put this behind [them] one day.” The Defendant asked the
trial court to “look on [this] being [his] first time in trouble and not have [him] die in
prison.”
The trial court went through a lengthy analysis of the applicable sentencing laws
before imposing the Defendant’s sentences. The trial court imposed the maximum
possible sentence for all of the convictions. The trial court sentenced the Defendant to
twelve years for all fifty-nine convictions of especially aggravated sexual exploitation of
a minor, six years for all three convictions of statutory rape by an authority figure, and
four years for the sexual exploitation of a minor conviction. The trial court ordered seven
of the especially aggravated sexual exploitation of a minor convictions to be served
consecutively, along with all three of the statutory rape by an authority figure convictions
and the sexual exploitation of a minor conviction. All of the remaining convictions were
ordered to be served concurrently, for a total effective sentence of 106 years.
In sentencing the Defendant, the trial court considered the purposes and principles
of the Sentencing Act. See Tenn. Code Ann. § 40-35-103. The trial court noted that the
Defendant did not have a long history of criminal conduct but that the Defendant did
have prior convictions for possession of drug paraphernalia and violation of a protective
order. The trial court also noted that there was no evidence that measures less restrictive
-4-
than confinement had been unsuccessfully applied to the Defendant. The trial court
stated that the offenses the Defendant had been convicted of had been determined by the
General Assembly to be “one of the more serious ones that anyone can face in this state.”
In discussing the need to avoid depreciating the seriousness of the offense, the trial
court described the Defendant’s actions as follows:
This is an extremely offensive, nauseatingly offensive, set of circumstances
where this man pretend[ed] to be a loving grandfather figure and then
lure[d] this young girl in and abuse[d] her to the point of full sexual
activity, as her mother said, stealing her childhood, stealing her innocence,
robbing her of something that she [could] never get back. And it has had
serious and long lasting consequence in the court’s opinion based upon the
breach of trust and the abuse of the trusting relationship that he developed,
apparently, with just the intent of abusing this child.
The trial court also gave great weight to what it viewed as the Defendant’s lack of
potential for rehabilitation. The trial court noted that the Defendant “groomed” the
victim “over a long period of time” and that the Defendant did not “appreciate the
wrongfulness of his conduct” in light of the fact that while he was abusing the victim, he
tried “to bring in younger girls” and gave alcohol to one of the victim’s friends. The trial
court also noted that the Defendant had told the psycho-sexual evaluator that he had
“never been in the criminal justice system” when he, in fact, had recent convictions. This
caused the trial court to “question” the Defendant’s “honesty.”
In imposing partially consecutive sentences, the trial court found that the
Defendant had been convicted for two or more statutory offenses involving sexual abuse
of a minor. See Tenn. Code Ann. § 40-35-115(b)(5). In addressing the aggravating
circumstances of the offenses, the trial court noted “the abuse of trust and the cultivation
of [a] trusting grandfather-type relationship that [the Defendant] embarked on . . . with
[the] victim.” The trial court also noted that the sexual activity between the Defendant
and the victim “went undetected for three years and, quite frankly, would not have ever
been detected had the other two . . . victims not reported” the Defendant. The trial court
went on, noting that the photographs “clearly depict[ed] [the] length of time” of the
sexual abuse, showing the victim as a “very young” girl and then beginning to enter
puberty.
The trial court also discussed the nature and the scope of the sexual acts, noting
that they “were as comprehensive as you can get in a sexual situation . . . oral vaginal
penetration, ejaculation, sexual battery, etc.” and characterizing the acts as “extensive
sexual abuse.” The trial court then discussed the extent of the residual physical and
mental damage to the victim, noting that the victim had withdrawn “from others,” was no
-5-
longer outgoing, did “not engage in a lot of social activity” and that her family had to
“engage in some . . . psychological games . . . to help [the victim] get through it.” The
trial court concluded that these aggravating circumstances justified partially consecutive
sentences.
ANALYSIS
The Defendant contends that the trial court erred in imposing partially consecutive
sentences. The Defendant argues that the trial court failed “to consider and articulate the
sentencing considerations” supporting its decision. The Defendant further argues that the
total effective sentence of 106 years was excessive, was not the least severe measure
necessary to achieve the purposes for which the sentence was imposed, and was greater
than what was deserved for the offenses. Finally, the Defendant argues that the total
effective sentence amounted to a life sentence for him and that his actions were “not
atypical of sexual exploitation cases.” The State responds that the trial court did not
abuse its discretion in ordering eleven of the Defendant’s sixty-three sentences to be
served consecutively.
When reviewing a trial court’s imposition of consecutive sentences, “the
presumption of reasonableness applies,” which gives “deference to the trial court’s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851, 861 (Tenn.
2013). “Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for
the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d
735 (Tenn. 2013)).
Here, the trial court concluded that consecutive sentences were warranted under
subsection (5) of section 40-35-115(b). Subsection (5) provides that a trial court may
impose consecutive sentences when 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 the victim or the 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.
Not all of the aggravating circumstances listed in subsection (5) need to be present to
justify consecutive sentencing, and consecutive sentencing may still be appropriate under
subsection (5) “even when one factor militates against [it] if the other aggravating
-6-
circumstances have been established and carry sufficient weight.” State v. Doane, 393
S.W.3d 721, 739 (Tenn. Crim. App. 2011).
The record belies the Defendant’s claim that the trial court failed “to consider and
articulate the sentencing considerations” supporting its decision. The trial court
discussed in detail all of the aggravating circumstances listed in subsection (5) and the
purposes and principles of the Sentencing Act when imposing the Defendant’s sentences.
The trial court was particularly troubled by the abuse of trust in the Defendant’s
relationship of the victim, the extremely lengthy period of time these offenses went
undetected, and the nature and scope of the sexual abuse the Defendant perpetrated on the
victim.
The total effective length of a defendant’s sentences will not be found to be
excessive simply because it would extend beyond the expected lifetime of the defendant.
State v. Robinson, 930 S.W.2d 78, 85 (Tenn. Crim. App. 1995). Nor should the age of a
defendant necessarily limit the total effective length of the defendant’s sentences. State
v. Timothy Clayton Thompson, No. E2002-01710-CCA-R3-CD, 2003 WL 21920247, at
*5 (Tenn. Crim. App. Aug. 12, 2003). “This court has often upheld consecutive
sentencing with lengthy terms of incarceration relating to convictions for multiple sexual
offenses.” State v. David Lamar Hayes, No. M2002-01331-CCA-R3-CD, 2004 WL
1778478, at *9 (Tenn. Crim. App. Aug. 9, 2004) (citing six representative cases).
We see no reason to deviate from our past holdings in light of the horrendous
nature of the Defendant’s offenses; the escalating nature of the abuse the victim suffered;
the lengthy period of time the Defendant’s sexual abuse of the victim went undetected;
the abuse of the Defendant’s special relationship with the victim and her family; the fact
that the Defendant’s crimes likely would have gone undetected had he not attempted to
harm other, younger, victims; and the Defendant’s unrepentant and flippant statements to
the trial court blaming the victim for his sexual abuse against her. Accordingly, we hold
that the trial court did not abuse its discretion in imposing partially consecutive sentences
for a total effective sentence of 106 years.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
-7-