State of Tennessee v. Robert W. Pitt, II ( 2023 )

12/14/2023
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2023
STATE OF TENNESSEE v. ROBERT W. PITT, II
Appeal from the Criminal Court for Sumner County
No. 2020-CR-540 Dee David Gay, Judge
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No. M2022-01730-CCA-R3-CD
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This appeal concerns sentencing issues only. Defendant, Robert W. Pitt, II, pleaded guilty
in the Sumner County Criminal Court to five counts of statutory rape by an authority figure,
involving one victim. After a sentencing hearing, the trial court sentenced Defendant to
six years in confinement on each conviction and ordered the sentences to run consecutively,
for an effective thirty-year sentence. Defendant argues on appeal that his sentences are
excessive and that the trial court abused its discretion in ordering consecutive sentencing.
We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TOM GREENHOLTZ, JJ., joined.
John D. Pellegrin, Gallatin, Tennessee, for the appellant, Robert W. Pitt, II.
Jonathan Skrmetti, Attorney General and Reporter; Caroline Weldon, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; and Tara Wyllie, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural History
M.B.1
Defendant married M.B.’s mother when M.B. was 11 or 12 years old. The two were
married for approximately two years and had a son before they divorced in 2010 or 2011.
The divorce involved a contentious custody dispute over their shared son. Though
Defendant was her stepfather for only a short time, M.B. regularly went to Defendant’s
home after the divorce and spent the night because she felt pressure to “rais[e]” her half-
brother. M.B. was “scared to leave [her half-]brother alone with [Defendant]” because she
feared that “if [her half-brother] was left alone with [Defendant] something might happen.”
Defendant’s and M.B.’s sexual relationship began around December 2011 when she
was 15 years old. Defendant provided M.B. with marijuana during her visits to his home
and the two regularly smoked together. As the two smoked marijuana together one
evening, Defendant told M.B. he “needed a back rub” and “was pretty insistent.” M.B.
complied with his request. When she finished, Defendant told her he would “repay the
favor and give [M.B.] a back rub.” Defendant’s “hands got lower and lower until he was
essentially sexually assaulting [M.B.], and then that was the first time there was any sort
of sexual intercourse.” M.B. felt that she could not refuse Defendant’s advances.
M.B. stayed with her biological father’s family in Arkansas for a period in 2012.
Defendant and M.B. exchanged several phone calls during this time; however, Defendant
instructed M.B. to hide their communications. M.B. disguised Defendant’s contact
information in her phone as a peer from school. Defendant expressed his desire to come
to Arkansas to visit M.B. Despite Defendant’s admonition to hide their communications,
M.B. wrote of their conversations in her private journal. M.B.’s grandmother discovered
the journal entries about M.B.’s conversations with Defendant. In several of the journal
entries, which were admitted as an exhibit at the sentencing hearing, M.B. wrote that she
loved Defendant. M.B.’s grandmother contacted the Hendersonville Police Department
(“HPD”) out of concern that M.B. and Defendant were engaged in an inappropriate
relationship.
At one point in 2013, when M.B. was 16 or 17 years old, Defendant was in custody
for a probation violation. While in custody, Defendant called M.B. several times.
Defendant asked M.B. in one phone call if she remembered to take her “medicine,” which
M.B. understood to mean birth control pills. Defendant told M.B. he would “get in trouble”
if she did not “take [her] medicine like [she] was supposed to.” Defendant told M.B. that
when he was released from custody, he would “stop at Taco Bell[,] . . . come home, take a
shower, and then play with [M.B.].” M.B. understood this to mean “something sexual.”
1
It is the policy of this Court to protect the privacy of victims of sexual offenses by using their
initials.
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HPD Detective Jim Bachman questioned M.B. in 2013 about the nature of her
relationship with Defendant. M.B. and Defendant’s sexual relationship was ongoing at this
time, but she did not disclose this to Detective Bachman. M.B. wanted “everyone to
essentially go away and not ask [her] about it at the time.” Detective Bachman recalled at
the sentencing hearing that M.B.’s mother was concerned that M.B. and Defendant were
engaged in an inappropriate relationship.
During his 2013 investigation, Detective Bachman spoke with Mr. Adam
Druckenmiller, one of Defendant’s friends, about Defendant’s relationship with M.B. Mr.
Druckenmiller told Detective Bachman that he did not recall “seeing anything odd at the
time,” but that Defendant said some things Mr. Druckenmiller considered strange, such as
that “[Defendant] wanted to marry someone like [M.B.].”
M.B. also denied an inappropriate relationship with Defendant in an affidavit she
executed during her mother and Defendant’s custody dispute and testified in a deposition
to the same effect near that time. M.B. testified at the sentencing hearing that she signed
the affidavit “out of fear.”
Defendant and M.B. engaged in sexual intercourse “probably hundreds” of times
before M.B. turned 18 years old in April 2014. In addition to marijuana, Defendant
provided M.B. with alcohol, and M.B. recalled one occasion where Defendant forced her
to use cocaine so she “wouldn’t be able to tell on anybody else.”
Defendant was also violent toward M.B. and threatened her. Defendant “dr[ove]
drunk” with M.B. in the vehicle. Defendant told M.B. that “he was going to either take the
bolts out of [M.B.’s] tires or [her] mom’s tires on her car and ma[k]e sure that [they]
wrecked on the interstate and no one would know how it had happened and [Defendant]
would be able to get away with it like that.” Defendant kept weapons hidden around his
home and bragged about “how he could kill people with them and the different ways that
he could kill people with them.”
Defendant’s sexual relationship with M.B. continued until 2018, when M.B. was 22
years old. M.B. “escape[d]” from Defendant under the guise of a school trip. Sometime
after M.B. escaped, Defendant tried to ram her car while she was driving.
M.B. received counseling from Christa Yandell, a licensed professional counselor
in Tennessee, for approximately a year and a half beginning in 2019. Ms. Yandell recalled
at the sentencing hearing that M.B. had night terrors, panic attacks, depression, suicidal
ideation, and general feelings of hopelessness and anxiety stemming from the years of
sexual abuse and Defendant’s behavior after M.B. escaped.
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A.C.
A.C. met Defendant in 2011 through their involvement at Hendersonville
Performing Arts Center (“HPAC”). A.C. was 16 years old at that time. Defendant’s
mother was the director at HPAC, and though Defendant held no official role, “he felt like
he ran everything” because of his mother’s position, and A.C. perceived that he had
authority.
Defendant asked A.C. to babysit his son in the spring of 2012. This was the only
time A.C. “actually babysat” Defendant’s son. Defendant later asked A.C. again if she
would babysit his son, but this time, Defendant’s son was not there when A.C. arrived.
Defendant gave A.C. an alcoholic drink, but A.C. could not remember whether they had
sexual intercourse that evening. A.C. estimated that she and Defendant had sexual
intercourse three times in the course of their relationship, all occurring before A.C. was 18
years old.
Facebook messages between A.C. and Defendant were admitted at the sentencing
hearing. Messages from 2013, when A.C. was 17 years old, show Defendant asking A.C.
whether she had disclosed to anyone the sexual nature of their relationship.
A.C. worked with Defendant in several theatrical productions, including at a church,
at a zoo, and at HPAC. A.C. recalled at the sentencing hearing, “there was, like a certain
group of [girls] that [Defendant], like, brought [them] to work everywhere. So it was just
a lot of abusive and aggressive behavior toward [A.C.] and the other girls, not necessarily
like sexual, but just emotional and physical and that kind of behavior.” A.C. specifically
recalled an incident at a rehearsal where Defendant “had some kind of explosion” and got
into a physical altercation with another cast member.
A.C. “got away from [Defendant]” in 2018 after M.B. came forward with her
allegations. A.C. testified at the sentencing hearing that she helped M.B. get away from
Defendant.
F.N.W.
Defendant and F.N.W. met in 2012 when F.N.W. was 16 years old. F.N.W. went
with A.C. to Defendant’s home “under the guise of babysitting his son,” but they truly went
to “hang out with” Defendant. A fourth person was in the home, as well, whom F.N.W.
recognized as an acquaintance from church. Defendant gave them alcohol and marijuana.
F.N.W. did not see Defendant’s son that evening. F.N.W. and Defendant did not have
physical contact that evening, but they exchanged phone numbers.
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A week or two later, Defendant texted F.N.W. that his back hurt and that he needed
a back rub. Defendant offered to come pick up F.N.W. Defendant took F.N.W. back to
his home, and the two drank alcohol and smoked marijuana. Defendant progressively
“[got] more flirty” with F.N.W. Defendant “pulled at the back of [F.N.W.’s] pants and
asked [her] what kind of underwear that [she] was wearing.” F.N.W. began to panic, and
Defendant laid her on the bed “like he was trying to calm [her] down.” “[T]he next thing
[F.N.W.] knew, [her] clothes were being taken off . . . and [F.N.W.] kind of knew what
was happening, but [she] didn’t really have very much control over [her] thoughts and [her]
body together” due to the marijuana and alcohol. Defendant inserted his penis into
F.N.W.’s vagina. F.N.W. told Defendant that it hurt, but Defendant told her that “if [she]
just kept doing it, it would feel good.” F.N.W. recalled at the sentencing hearing that “it
was hard to even form words at that point.”
Another time, Defendant coerced F.N.W. and A.C. into having a “threesome” with
him, in which Defendant performed oral sex on A.C. and penetrated F.N.W.’s vagina with
his penis. F.N.W. recalled that she was 16 years old when this occurred. All told, F.N.W.
and Defendant had four or five sexual encounters, all occurring before F.N.W. was 18 years
old.
Guilty Plea and Sentencing Hearing
The Sumner County Grand Jury indicted Defendant in 2020 for six counts of
statutory rape by an authority figure. All of the charges stemmed from sexual encounters
with M.B. Defendant entered a guilty plea without a sentence to five of the six charges in
2022 pursuant to an agreement with the State not to pursue charges related to A.C. and
F.N.W.
The trial court heard testimony at the sentencing hearing from M.B., A.C., F.N.W.,
Ms. Yandell, and Detective Bachman relating the above facts, as well as an allocution
statement from Defendant in which he expressed his remorse. The trial court received
written victim impact statements from M.B., A.C., and F.N.W., as well as letters from
several friends and family members supporting Defendant.
The trial court noted that Defendant was a Range I, standard offender and that
statutory rape by an authority figure was a Class C felony in 2011 when the charged crimes
occurred; as such, each conviction was subject to a sentence range of three to six years.
See T.C.A. §§ 39-13-532 (2011) (statutory rape by an authority figure); 40-35-112(a)(3)
(2011) (sentencing range for Range I, Class C felony). The trial court also noted that
statutory rape by an authority figure was not eligible for probation in 2011. See id. § 40-
35-303(a) (2011).
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The trial court stated that Defendant’s expressions of remorse were “a day late and
a dollar short.” As to enhancement factors, the trial court found that there were multiple
victims based on the uncharged offenses involving A.C. and F.N.W. See T.C.A. § 40-35-
114(3). The trial court found that all three victims were especially vulnerable because of
age. See id. § (4). The trial court found that Defendant committed these crimes to gratify
his desire for pleasure or excitement. See id. § (7). The trial court stated that Defendant
made M.B. his “sex slave” and expressed its shock that such a thing could happen in
Sumner County. The trial court noted that Defendant had a long history of criminal conduct
in the form of the “hundreds of times” Defendant and M.B. engaged in sexual intercourse
before M.B. turned 18 and that “[e]very time [Defendant] used [marijuana or cocaine] it
[was] a violation of the law.” See id. § (1). The trial court did not find that any mitigating
factors applied. The trial court sentenced Defendant to six years in confinement on each
conviction.
As to consecutive or concurrent service, the trial court considered the factors
outlined in Tennessee Code Annotated section 40-35-115. The trial court found that
Defendant was convicted of “two or more statutory offenses involving the sexual abuse of
a minor” and considered that M.B. was Defendant’s stepdaughter, the nature and scope of
the sexual acts, and the extent of the residual physical and mental damage to the victims.
Relying on this factor, the trial court ordered Defendant’s sentences to run consecutively,
for an effective sentence of thirty years to serve at 30% release eligibility. The trial court
stated, “[i]f there was a poster child for consecutive sentence[s], [Defendant], you are it.”
The trial court noted on the judgments its recommendation that Defendant not be paroled.
This timely appeal followed.
Analysis
Length of Sentence
Defendant argues first that his sentence is excessive, describing it as “manifestly
unjust.” Specifically, Defendant argues that the trial court improperly applied
enhancement factor (4), that the victims were vulnerable due to their age. The State
counters that the trial court properly sentenced Defendant. We agree with Defendant that
the trial court improperly applied enhancement factor (4), but agree with the State that the
trial court properly sentenced Defendant.
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“[S]entences imposed by the trial court within the appropriate statutory range are to
be reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Stated differently, this Court is “bound
by a trial court’s decision as to the length of the sentence imposed so long as it is imposed
in a manner consistent with the purposes and principles set out” in the Sentencing Act.
State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). “‘A trial court abuses its discretion
when it applies incorrect legal standards, reaches an illogical conclusion, bases its ruling
on a clearly erroneous assessment of the proof, or applies reasoning that causes an injustice
to the complaining party.’” State v. Gevedon, 671 S.W.3d 537, 543 (Tenn. 2023) (quoting
State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010)). The party challenging a sentence
bears the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sentencing
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
As to enhancement factors, we note that a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the presumption of reasonableness,
so long as the trial court articulates reasons consistent with the purposes and principles of
sentencing. Bise, 380 S.W.3d at 705-06. Additionally, “‘[t]he application of a single
enhancement factor can justify an enhanced sentence.’” State v. Rollins, No. E2022-
00890-CCA-R3-CD, 2023 WL 4078700, at *5 (Tenn. Crim. App. June 20, 2023) (quoting
State v. Banks, No. M2019-00017-CCA-R3-CD, 2020 WL 5888, at *10 (Tenn. Crim. App.
Aug. 25, 2020)), perm. app. denied (Tenn. Oct. 13, 2023).
As described above, Defendant pleaded guilty to five counts of statutory rape by an
authority figure, which were Class C felonies in 2011 when the charged offenses occurred.
See T.C.A. 39-13-532 (2011). The appropriate sentencing range was thus three to six years.
Id. § 40-35-112(a)(3) (2011). The trial court sentenced Defendant to six years on each
count. The sentence ordered by the trial court was within-range, which entitles it to a
presumption of reasonableness. Bise, 380 S.W.3d at 708. We therefore will not disturb
the trial court’s sentencing decision unless the trial court abused its discretion in reaching
it. Id.Defendant complains that the trial court improperly applied enhancement factor (4),
that the victims were particularly vulnerable because of age. The State characterizes the
trial court’s statements regarding the victims’ vulnerability as a “passing description.” We
agree with Defendant that the trial court’s reliance on this enhancement factor is more than
a “passing description” of the victims. We also agree with Defendant that the trial court
misapplied this enhancement factor. The record shows that the trial court focused
exclusively on the victims’ age in its reliance on this factor. Reliance on the victim’s age
alone is insufficient to support application of this enhancement factor. State v. Poole, 945
S.W.2d 93, 96 (Tenn. 1997). Proper application of this enhancement factor focuses on the
victim’s inability, because of age, to resist, summon aid, or testify against the perpetrator.
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See State v. Kissinger, 922 S.W.2d 482, 487 (Tenn. 1996) (citing State v. Hayes, 899
S.W.2d 175, 185 (Tenn. Crim. App. 1995)).
We part ways with Defendant, though, in his belief that he is entitled to relief on
this basis. The enhancement factors are advisory only, and misapplication of an
enhancement factor is not enough, standing alone, to reverse a sentence. Bise, 380 S.W.3d
at 705-06. Additionally, though Defendant does not challenge the trial court’s application
of enhancement factors (1), (3), and (7), there is ample evidence in the record to support
the trial court’s reliance on them. See T.C.A. § 40-35-114(1), (3), (7). The record here
shows that the trial court considered all of the relevant statutory factors, the evidence, and
the purposes and principles of sentencing in reaching its decision as to the length of
Defendant’s sentences. As a result, Defendant is not entitled to relief on this issue.
Consecutive Service of Sentences
Defendant also challenges the trial court’s order of consecutive sentencing. The
State argues that the trial court did not abuse its discretion in ordering consecutive service.
We agree with the State.
Trial courts are vested with discretion as to whether to align sentences concurrently
or consecutively. State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). As relevant here,
trial courts may order consecutive service if “[t]he defendant is convicted of two (2) or
more statutory offenses involving sexual abuse of a minor[.]” T.C.A. § 40-35-115(b)(5).
In applying this factor, the trial court must consider “the aggravating circumstances arising
from the relationship between the defendant and the victim or victims, the time span of
[the] 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.” Id.
Defendant pleaded guilty to five statutory offenses involving the sexual abuse of a
minor. The trial court considered the relationship between Defendant and his victims, the
time the sexual activity went undetected, the nature and scope of the sexual acts, and the
extent of the residual effects of Defendant’s crimes in the victims’ lives. The trial court
found that all four factors were aggravating factors under the circumstances of this case.
Defendant attempts to portray his victims as “willing participant[s]” in their sexual
relationships, but the trial court rejected that depiction of the relationships, as was its
prerogative. The record supports its determination. Defendant also claims that the trial
court should have ordered concurrent sentencing because Defendant “apparently is not one
who is attracted to pre-pubescent girls,” but we fail to see how this amounts to an abuse of
discretion on the trial court’s part. The trial court properly exercised its discretion in
imposing consecutive sentences. Defendant is not entitled to relief on this issue.
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CONCLUSION
The trial court did not abuse its discretion in sentencing Defendant at the maximum
of the relevant range and in imposing consecutive sentencing. The judgments of the trial
court are accordingly affirmed.
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TIMOTHY L. EASTER, JUDGE
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