State v. Buford Jester

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY SESSION, 1999 March 2, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9808-CC-00326
)
Appellee, )
)
) LAWRENCE COUNTY
VS. )
) HON . WILL IAM R. C AIN
BUFORD “DOCK” JESTER , ) JUDGE
)
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF LAWRENCE COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY C. COLLEY JOHN KNOX WALKUP
P.O. Box 1476 Attorney General and Reporter
Columbia, TN 38402-1476
CLINTON J. MORGAN
PAUL B. PLANT Assistant Attorney General
P.O. Box 399 425 Fifth Avenu e North
Lawrenceburg, TN 38464-0399 Nashville, TN 37243-0493
DON SCHWENDIMANN
District Attorney Pro Tem
P.O. Box 366
Hohenwald, TN 38462
OPINION FILED ________________________
SENTENCE MODIFIED; REMANDED
DAVID H. WELLES, JUDGE
OPINION
A jury found the Defendant guilty of aggravated burglary and rape.1 He
was sentenced to concurrent terms of three years for the b urglary and ten ye ars
for the rape. In this appeal, the Defendant argues that the trial judge erred by
sentencing him to ten years for the rape conviction. We modify the judgment and
remand to the trial court for further proceedings.
W e will briefly summarize the facts as prese nted a t trial. Th e victim in this
case was thirty years old when the offense occurred. She was employed as a
live-in housekeeper for an elderly man w ho was appare ntly termina lly ill with
cancer. The victim was born to Amis h pare nts an d had been raised by them in
an Amish community. She attended Amis h sch ools u ntil she was fou rteen years
old. She left the Amish community and stopped living in the Amish faith when
she was twenty-eight years old.
The Defendant was a long-time neighb or and a cquain tance o f the ma n with
whom the victim was employed and in whose house she lived. The Defendant
was sixty-nine ye ars old at th e time of th e offense . The victim testified that one
morning, while her employer had gone to receive a dialysis treatment, the
Defendant cam e to the hous e and aske d if her e mplo yer wa s there . She s aid
that when she told the Defendant that he was not there, the Defendant initiated
a conversation with her. She stated that the Defendant offered her some money
but that she declined. She stated that he put a $ 100 b ill in her hand and he then
ran his hand up under her skirt and panties and put his finger in her vagina. She
1
Tenn. Code Ann. §§ 39-14-403; 39-13-503.
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said that she d id not resis t him because she was afraid of him. She said that
after about five minutes the Defendant took her over to the couch, where he took
off her skirt and panties. She stated he then put his fing er in her vagina again.
She also said the Defendant pulled her blouse u p and p ut “his mo uth at m y left
breast.” She testified that the incident on the couch lasted about ten minutes and
the De fendan t never rem oved an y of his clothin g. She said that the Defendant
then left, and as soon as he left, she went and called a friend. Eventually, the
police were summoned, and the victim was exa mined by a nurse-practitioner,
who testified that the victim’s hymen was still intact but that there was some
redness and swelling in her genital area.
The Defendant testified that he went to the victim’s house on the morning
in question to inquire a bout he r emplo yer. He sa id the victim told him th at her
employer was not there and that they had a brief conversation during which the
victim told him she was no longer Amish and that she had a boyfriend. He sa id
they talked about people that they both knew and a few other matters, and he
then left. He te stified th at their entire conversation took place with him standing
in the doorway with the door open. He denied any physic al contact between
them and denied that he sexually assau lted the victim in any wa y.
The jury found the D efendant gu ilty of aggravated burg lary, not guilty of
one count of rape accomplished by the use of force or coercion, and guilty of one
count of rape by sexual penetration “accomplished without the consent of the
victim [when] the Defendant [knew] or [had] reason to know at the time of the
penetra tion that the victim did n ot conse nt.” 2
2
Tenn. Code Ann. § 39-13-503(a)(2).
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Following a sentencing hearing, the trial judge sentenced the Defendant
to the minimum sentence of three years for the aggravated burglary and to the
mid-range sentence of ten years for the rape, with the sentences to be served
conc urren tly in the De partme nt of Corre ction. It is from the sentence ordered by
the trial court that the Defendant appeals.
When an accused challenges the length, range, o r mann er 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 co urt are co rrect. Tenn.
Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
When conducting a de novo review of a sentence, this Court must
consider: (a) the evidence , if any, received at the trial and sentencing hearing; (b)
the presentence report; (c) the princ iples of sen tencing a nd argu ments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W .2d 859 , 863
(Tenn . Crim. A pp. 198 7); Ten n. Cod e 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
consideration and proper weight to the factors and principles set out under the
sentencing law, and that the trial court’s findings of fact are adequately supported
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by the record, then we may not modify the sentence even if we wou ld have
preferred a different res ult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991 ).
The presen tence report reflects that at the time of sentencing, the
Defendant was seventy years old, had been married for forty-nine years, and had
one grown child. He had little formal education, having comp leted only th e sixth
grade in 193 8. He in dicate d that h e quit s choo l mainly to work full-time in a
farming operation to help support his family. The Defen dant served for
appro ximate ly twenty years as a deputy sheriff in Lawrence County while also
farming. He su ffered a stroke while on the job as a deputy sheriff in 1980 and
retired shortly thereafter. He had at leas t one a ddition al strok e and was p artially
paralyzed on his left side. He also suffered from “chronic obstructive lung
disease ,” rheumatoid arthritis, and “prostatic hypertrophy,” which has required
interm ittent urinary catheterization. The Defendant denied any past or current
use of either alcohol or illegal drugs . His only previous criminal history was a
conviction for hunting deer with illegal ammunition in 1972. At the sentencing
hearing, the Defendant acknowledged that he had been convicted and, although
he staunchly maintained that he did not sexually assault or rape the victim, he
stated that he would b e able to abide by any restrictions or requirements that
were placed on him if he were granted probation.
In sentencing the Defendant for his rape conviction, the trial judge noted
that the law required him to start with the minimum sentence of eight years and
then to “balance the enhancement and mitigating factors.” See Tenn. Code Ann.
§ 40-35-2 10. The court stated that the record might “possibly” support a finding
that the offe nse invo lved a victim and wa s com mitted to gratify the De fenda nt’s
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desire for pleasu re or excite ment. See id. § 40-35-114(7). As our supreme court
has held, the desire for pleasure or excitement m ay not be pres umed from every
act of rape. State v. Kissinger, 922 S.W .2d 482, 490 (T enn. 19 96); State v.
Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In sentencing for a conviction of rape,
the State has the burden of proving that the rape was committed to gratify the
Defe ndan t’s desire for p leasure or excitem ent. Kissinger, 922 S.W.2d at 490;
Adams, 864 S.W.2d at 35. In this case, the court stated that this enhancement
factor was “possibly” applicable, but it is quite evident from the record that the
trial judge ga ve this facto r little, if any, weight in e nhan cing th e Def enda nt’s
sentence beyond the minimum of eight years.
The trial judge clearly enhanced the Defendant’s sentence above the
minimum based upon th e court’s find ing that the victim of the offense was
particu larly vulner able because of age or physica l or men tal disability. See Tenn.
Code Ann. § 40-35-114(4). The judge stated, “the question in min d is whether
we are go ing to eig ht year s or are we go ing to n ine or te n year s, princ ipally
because of the sing le enha ncem ent factor th at this victim w as extr eme ly
vulner able within the meaning of the law?” The trial court further stated that the
main focus of the court’s finding and the primary reason the sentence was
elevated beyond the minimum sentence was the extr eme vulner ability of th is
particular victim.
The narrow issue b efore u s is wh ether th e reco rd in this case su pports the
trial judge ’s findin g that th e victim was “particularly vulnerable because of age or
physical or mental disability.” There is no proof in the re cord th at the vic tim was
particu larly vulnerable because of her age or because of any physical disa bility.
The judge’s application of this enhancement factor was based upon the proof that
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the victim had grown up in and spent most of her life in the “sheltered
environment of the Amish community.” He noted that the victim “obviously had
not a history of any se xual activity, an d that is in ke eping w ith the knowledge of
the Amish lifestyle which [the Defe ndant] knew.” The only basis for upholding the
application of this enhancement factor is to find that the victim’s sexual
inexperience or backgrou nd of being raise d in an Am ish comm unity and in the
Amish faith renders her “mentally disabled” as contemplated by the legislature.
We decline to so hold. T hus, we must conclude that the trial judge erred when
he enhanced the Defe ndan t’s sentence above the minimum of eight years based
upon the victim ’s particular vulnerability becau se of men tal disability.
W e modify the Defendant’s sentence to the statutorily mandated
presum ptive term of eight years. The concurrent sentence of three years for
aggravated burglary is affirmed. This c ase is rema nded to the trial cou rt for a
determination of the manner of service of the Defendant’s sentences.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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