State of Tennessee v. Ricky Lamont Brigman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 11, 2002
STATE OF TENNESSEE v. RICKY LAMONT BRIGMAN
Direct Appeal from the Criminal Court for Davidson County
No. 2001-C-1369 Steve R. Dozier, Judge
No. M2002-00461-CCA-R3-CD - Filed June 17, 2003
The Appellant, Ricky Lamont Brigman, was convicted by a Davidson County jury of three counts
of rape of a child, one count of attempted rape of a child, two counts of aggravated sexual battery,
three counts of rape, one count of attempted rape, one count of sexual battery, one count of attempted
sexual battery, and one count of sexual exploitation involving six minor male victims. For these
convictions, he received an effective sentence of ninety-one years. On appeal, Brigman challenges
both his convictions and sentences upon the following grounds: (1) with respect to certain
convictions, a material variance exists between the indictments and the convicting evidence; (2) the
“cancellation” rule requires dismissal of his conviction for sexual battery; (3) the trial court provided
improper jury instructions with regard to the “cancellation” rule and the requisite mental states; (4)
the sentences are excessive due to the trial court’s failure to apply mitigating factors at sentencing;
and (5) the improper imposition of consecutive sentences. After review, we find no reversible error
and affirm the judgment of the trial court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.
DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.
Carrie Kersh-Gasaway, Clarksville, Tennessee, for the Appellant, Ricky Lamont Brigman.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W.
Turner, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and
Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Factual Background
Beginning in the early 1990's, the Appellant served as a boxing coach at the Police Athletic
League for the Nashville-Davidson County Metropolitan Police Department, first as a volunteer and
later as a paid employee. Through his activities there, the Appellant came into contact with several
young men involved in the boxing program. All the victims testified that the Appellant served not
only as their coach, but also as a father figure and mentor to them, taking them on trips, hosting
sleep-overs, and buying them presents.
In July 2000, two of the young men came forward with allegations of sexual abuse against
the Appellant. During the course of the investigation, police learned that several other young men
involved in the program had also been sexually abused by the Appellant. Following a police
investigation, the Davidson County grand jury returned a sixteen-count indictment against the
Appellant charging him with four counts of rape of a child, four counts of rape by fraud, one count
of attempted rape by fraud, three counts of aggravated sexual battery, one count of attempted rape
of a child, one count of sexual battery by an authority figure, one count of attempted sexual battery
by an authority figure, and one count of sexual exploitation of a minor.
At the four-day trial beginning August 13, 2001, the State presented testimony from six of
the victims. Victim B.W.1 testified that during three separate sleepovers, when he was eleven and
twelve years old, the Appellant approached him and asked if he wanted a woman to perform oral sex
on him. After agreeing, the victim was blindfolded and oral sex was performed. He neither saw nor
heard a woman in the room. Victim J.W. testified that, when he was thirteen, oral sex was
performed on him during the “blindfold game.” J.W. also testified that, on other occasions, the
Appellant had offered him money if he would show him his penis. J.W. further stated that the
Appellant had shown him pornographic materials on his computer.
Victim R.J. testified that the Appellant had performed oral sex on him on two occasions,
once while blindfolded and once while not. On a separate occasion, when he was lying on the
Appellant’s bed, the Appellant pulled down the victim’s underwear and attempted to “stick” his erect
penis into the victim’s “butt.” He further testified that the Appellant had asked the victim to perform
oral sex on him, and the Appellant had shown him pornographic materials on the computer. R.J.
testified that these incidents all occurred while he was eleven years old. He also testified to two
incidents which occurred when he was ten years old. The first incident involved the Appellant
rubbing the victim’s penis. The second incident occurred when the Appellant attempted to have the
victim perform oral sex on him by making the statement “go down on it” and making hand gestures.
1
In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the
victims b y their initials. State v. Schimpf, 782 S.W .2d 186, 188 n. 1 (Tenn. Crim. App. 1989 ).
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Victim B.B. testified that the Appellant tried to initiate sexual relations with him during a
sleep-over at the Appellant’s home. The Appellant turned around, dropped his pants, and told the
victim “to pretend he was a girl.” The victim refused “because [the Appellant was] my boxing coach
and I don’t do things like that.” B.B. also testified that, on a separate occasion at the Appellant’s
house, the Appellant grabbed his penis and said “you’ve got enough.”
Victim J.O. testified that when he was thirteen, he participated in the blindfold game and
received oral sex. He testified that during oral sex, he felt whiskers. He also stated that the
Appellant had shown him pornographic movies. Victim M.T., who lived with the Appellant for a
year when he was fifteen years old, testified that he had also participated in the blindfold game. On
two separate occasions, when the victim was thirteen, he was blindfolded and oral sex was
performed on him.
All the victims testified that they would not have consented to participate in the blindfold
game had they known it was not a woman performing oral sex on them. Testimony was consistent
among the victims that the Appellant told them the blindfold was necessary to protect the woman
from a jealous boyfriend.
Detective Imhof testified that, during the investigation, victims B.W. and J.W. were equipped
with a wireless body transmitter, which permitted the police to monitor and record a conversation
between the two victims and the Appellant. After being confronted with various allegations of
sexual assaults, including the “blindfold game” incidents, the Appellant did not deny any of the
allegations and explained, “I’m sorry for anything I might have done to you guys. I’ve never meant
to hurt anybody, never meant to do anything to anybody.” The Appellant was subsequently
interviewed by police and admitted that he, not a woman, performed the acts of oral sex on the young
men. He also admitted to the other sexual acts described by the victims, with the exception of the
acts alleged by victim R.J. In a written statement, the Appellant explained that he had performed
oral sex on the young men “for the purpose of providing a safe experience for some of the boys.”
Count 4 of the indictment, rape of a child, was dismissed by the State prior to submission
to the jury because of a lack of supporting testimony. The jury returned guilty verdicts on all other
counts with the exception of one count of rape by fraud. Thus, the Appellant was convicted of three
counts of rape of a child, one count of attempted rape of a child, two counts of aggravated sexual
battery, three counts of rape, one count of attempted rape, one count of sexual battery, one count of
attempted sexual battery, and one count of sexual exploitation.
A sentencing hearing was held on October 10, 2001, during which proof was presented that
the Appellant had previously been investigated for similar conduct with other minor boys in 1990.
In addition, T.S. presented a video which showed several minors, including himself, engaged in
sexual activity. He testified that the Appellant had been present during the filming of the video and
served as a director of sorts. The Appellant was subsequently sentenced to an effective sentence of
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ninety-one years.2 The Appellant’s motions for judgment of acquittal and new trial were denied, and
this appeal followed.
Analysis
I. Material Variance
The Appellant asserts that the trial court erred in denying his pretrial motion for dismissal
of certain counts of the indictment and motion for judgments of acquittal because of a fatal variance
between the respective counts and the proof presented at trial. With regard to the issue of a variation
between the charging instrument and the proof:
It is a rule of universal recognition that the allegations and the proof must correspond.
The requirement that the allegations in the indictment and the proof at trial
correspond serves two purposes: it insures that [a] defendant is properly notified of
the charges so that he may present a defense, and it protects [the] accused against the
possibility of another prosecution for the same offense. . . .3 If in some matter
essential to the charge there is a discrepancy between the averments of the indictment
and the proof, there is a variance. . . . However, not all variances are fatal. The
pivotal inquiry is whether there has been a variance in proof, which affects the
substantial rights of [the] accused. . . . [A] variance is not fatal unless [the] accused
cannot reasonably anticipate from the indictment what the nature of the proof against
him will be, or unless the variance misleads [the] defendant in the preparation of his
defense and subjects him to the likelihood of another prosecution for the same
offense.4 . . . [A] variance will not be treated as material where the allegations and
the proof substantially correspond.5 To be material, the variance must go to the
extent of showing that the offense proved is not the offense charged.
42 C.J.S. Indictments and Informations § 206 (1991)(footnotes added). Variations between
indictment and proof are evaluated under the harmless error doctrine. State v. Bobby Gene Goodson,
77 S.W.3d 240, 244 (Tenn. Crim. App. 2001).
2
The ninety-one year sentence is composed of: twenty-four years each for counts 1-3 for rape of a child, five
years for count 5 for attempted rape by fraud , eleven years ea ch for counts 6 -7 for aggravated se xual battery, ten years
for count 8 attempted rape of a child, eleven years each for counts 9-11 for rap e by fraud, two years for count 13 for
sexual battery, three years for count 14 for aggravated sexual battery by an authority figure, and two years for count
15sexual exploitation. Counts 1, 3, 5, 6, 10, 11, 14, and 15 were o rdered to be served consecutively, with all others to
be served conc urrently.
3
State v. Hammonds, 30 S.W .3d 294, 299 (Tenn. 2000 ).
4
See State v. M oss, 662 S.W.2d 590, 592 (Te nn. 19 84) (holding that a variance is not fatal unless it is bo th
material and prejudicial).
5
See State v. Mayes, 854 S.W .2d 638, 640 (Tenn. 1993 ).
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A. Material Variance as to manner in which offense was committed.
The Appellant contends that guilty verdicts returned under counts 1, 2, 3, 5, 10, 11, and 12
should be dismissed because there is a fatal variance with regard to the manner these offenses were
alleged in the indictment counts and the proof presented at trial. The relevant portions of the
challenged counts are as follows:
Counts 1-3: . . . [the Appellant] did intentionally, knowingly, or recklessly engage in
unlawful sexual penetration of [the victim], a child of less than thirteen (13) years of
age, in violation of Tennessee Code Annotated § 39-13-522. . .
Counts 5, 11-12: . . . [the Appellant] did attempt to intentionally, knowingly, or
recklessly engage in unlawful sexual penetration of [the victim], and the sexual
penetration was accomplished by fraud in violation of T.C.A. 39-13-503.
Count 10: . . . [the Appellant] did attempt to intentionally engage in unlawful sexual
penetration of [the victim], in violation of T.C.A. 39-12-101.
The Appellant argues that though each of the above counts aver that the Appellant unlawfully
sexually penetrated the named victim, the “evidence was that the alleged victims penetrated the
Defendant.” We find this argument without merit.
First, we note that, in six of the seven counts challenged, a citation to the sexual offense
statute alleged to have been violated is referenced. Those statutes are defined as follows:
Rape of a child is the unlawful sexual penetration of a victim by the defendant or the
defendant by the victim, if such victim is less than thirteen (13) years of age.
Tenn. Code Ann. § 39-13-522(a). (emphasis added).
Rape by fraud is defined by Tennessee Code Annotated § 39-13-503 (a)(4) as:
(a) Rape is the unlawful sexual penetration of a victim by the defendant or of the
defendant by the victim accompanied by any of the following circumstances: . . .
(4) the sexual penetration is accomplished by fraud.
(emphasis added).
Moreover, Tennessee Code Annotated § 39-13-501(7) defines “sexual penetration” to include
fellatio. Of equal importance is the fact that the Appellant requested and received a bill of
particulars, which referenced each count, set forth the age of the victim, and explained the manner
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and means by which the Appellant allegedly committed the respective offense. Although a bill of
particulars is not a part of the indictment, a court may rely on the particularization of defendant’s
alleged wrongful behavior supplied by a bill. U.S. v. Nelson, 486 F. Supp. 464, 495 (W.D. Mich.
1980). In view of the information provided by the bill of particulars and the statutory definition of
sexual penetration, we conclude that the Appellant was apprised of the accusations against him, was
not misled in the preparation of his defense, and was protected from another prosecution for the same
offenses. This issue is without merit.
B. Material Variance - Time of Offense.
The Appellant was convicted under count 6 the indictment for the aggravated sexual battery
of victim, R.J., when the victim was eleven years old. Count 6 charged that, between the “7th day
of March 1999 and the 7th day of March 2000,” the Appellant “did engage in unlawful sexual
conduct with [R.J.] (DOB 3/07/88).” The Appellant asserts that a variance exists between the
indictment and the proof presented at trial “because the alleged conduct upon which the conviction
is based occurred, according to the testimony of the alleged victim, outside the time frame in the
indictment.” As such, he argues that the variance is fatal because it fails to guarantee him protection
from future prosecution for this same conduct, thus, violating double jeopardy principles. The record
reflects, however, that the Appellant failed to raise this issue in his motion for new trial. Therefore,
the issue is waived. Tenn. R. App. P. 3(e). Moreover, assuming the issue had been properly
preserved, the Appellant would not be entitled to relief based on the reasons articulated below
concerning count 9.
The Appellant was convicted under count 9 of attempted rape of a child. The indictment
alleges that “between the 7th day of March 1999 and the 1st day of March 2000,” the Appellant did
attempt to sexually penetrate R.J. “(DOB 3/7/88), a child less than thirteen years of age.” These
allegations would place the victim’s age at eleven when the crime occurred; however, at trial, the
victim related that the events alleged in count 9 occurred when he was ten years old. The State
responds that the judgment of conviction is valid because the indictment provided the Appellant with
notice of the offense charged, provided the court with an adequate ground upon which a judgment
may be entered, and provided the Appellant with protection against double jeopardy. State v.
Lemacks, 996 S.W.2d 166, 172 (Tenn. 1999). We agree.
The rule in Tennessee is well established that “the time at which an offense was committed
need not be stated in the indictment . . . unless the time is a material ingredient of the offense.”
Tenn. Code Ann. § 40-13-207. Indeed, it is only necessary that the evidence prove that the offense
occurred prior to the return of the indictment. State v. Anderson, 748 S.W.2d 201, 203 (Tenn. Crim.
App. 1985). It has also been recognized in Tennessee that, in most child sex abuse cases, the State
is unable to offer the specific date when an alleged offense occurred. State v Byrd, 820 S.W.2d 739,
741 (Tenn. 1991). When the timing of the incident is not an essential element of the charge, a
conviction may be affirmed if it appears that the defense of the accused was not hampered by the
lack of specificity of the charging instruments. Id. at 742. It is not reversible error when a defendant
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is sufficiently aware of the charge being levied against him and is able to adequately prepare for trial.
State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984).
At the Appellant’s motion for new trial, the trial court denied relief on this ground concluding
that, even if a variance existed, no substantial right of the Appellant would have been affected
because the bill of particulars adequately informed the Appellant of the charges levied against him.
We agree. Further, the State filed an amendment to the original bill of particulars regarding these
counts, which provided even more details. We find that the Appellant was in no way prejudiced by
the wording of the indictment. This issue is without merit.
II. Tennessee Cancellation Rule
The Appellant was convicted under count 13 of sexual battery against victim B.B. He asserts
that he is entitled to a judgment of acquittal for this conviction because Tennessee’s cancellation rule
negated the testimony of victim B.B. In support of this argument, the Appellant offers the following
colloquy between the prosecutor and B.B.:
Q. Did there ever come a time when Mr. Brigman touched you in your genital
regions?
A. No.
Q. Sure about that?
A. Correct.
The victim was then shown a prior statement he had given to police regarding the incident.
Following review of his statements, the victim testified as follows:
Q: Tell us where you were when that happened?
A: I was at his house and he just grabbed my penis, you know, and he was like,
‘ok, if I had a woman over here’ –he was like, he was just telling me, you
know, ‘ain’t no’ – ‘ nothing you saying about your penis, what not’ said ‘you
got enough to work with’.
The Appellant cites State v. Matthews, 888 S.W.2d 446 (Tenn. Crim. App. 1993), for the proposition
that “contradictory statements by a witness in connection with the same fact cancel each other out.”
Id. at 449. He argues that this rule negates B.B.’s testimony and, without his testimony, the State’s
case fails.
It is true that in Tennessee, contradictory statements by a witness in connection with the same
fact cancel each other out. Matthews, 888 S.W.2d at 449; Taylor v. Nashville Banner Pub. Co., 573
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S.W.2d 476, 482 (Tenn. Ct. App. 1978). This rule only applies, however, when the inconsistency
in the witness’ testimony is unexplained and when neither version of the testimony is corroborated
by other evidence. Matthews, 888 S.W.2d at 450 (citing Taylor, 573 S.W.2d at 483).
In the order overruling the Appellant’s motion for new trial, the trial court found that the
cancellation rule was not applicable from these facts, concluding that the jury chose to accredit the
victim’s testimony that the Appellant touched his genitals. The trial court also observed that the
victim had been subjected to a thorough cross-examination by defense counsel on the issue. We
agree that the rule is inapplicable because we find that the victim’s testimony about the occurrence
of the event was corroborated by other evidence presented at trial. In addition to B.B.’s earlier
statement to the police, the jury heard the testimony of Detective Imhof, stating that the Appellant
had himself admitted to the acts against the victim. The record demonstrates that there is sufficient
evidence from which a rational trier of fact could conclude that sexual contact occurred. Thus, the
issue is without merit.
III. Jury Instructions
The Appellant argues that the trial court erred in (1) failing to properly instruct the jury with
regard to the culpable mental states for each of the indicted offenses, and (2) denying the Appellant’s
special request for an instruction regarding the cancellation rule. We are precluded from reviewing
these issues upon their merit because the Appellant failed to include either the trial court’s jury
instructions or his requested instruction on the cancellation rule. Rule 30, Tennessee Rules of
Criminal Procedure, provides that special requests for jury instructions be filed in writing. A trial
court will not be placed in error where a requested special instruction was not presented in writing.
State v. Mackay, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982). Moreover, it is the duty of the
Appellant to prepare a complete and accurate record on appeal. Tenn. R. App. 23(b). Failure to do
so results in waiver of the issue. Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).
Notwithstanding default of the issue, we are constrained to note that with regard to the
mental state assertion, the Appellant simply states in conclusory terms that error resulted from the
instruction because (1) it lowered the burden of proof, and (2) there is no assurance of jury unanimity
in their selection of the requisite mental state. This case involves thirteen convictions with multiple
mental states for most offenses charged. We are presented no argument or analysis as to how the
burden of proof was lowered, which mental states were improperly charged with respect to specific
offenses, or whether jury unanimity is, in fact, required. Indeed, the general rule appears to be that
jury unanimity is not required. See e.g., State v. Russell, 733 P.2d 162, 165-69 (Utah 1987) (holding,
with citations to other jurisdictions with similar holdings, that a jury does not have to be unanimous
in deciding which of the three culpable mental states it finds in convicting of murder). Also, we
agree with the State that the Appellant’s reliance upon State v. Keith T. Dupree, No. W1999-01019-
CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 30, 2001) is misplaced, as this case is fact specific
to a conviction for murder.
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IV. Sentencing
The Appellant contends that the sentences imposed by the trial court were excessive because
of the trial court’s failure to apply applicable mitigating evidence and because of the imposition of
consecutive sentencing. When an accused challenges the length, range, or manner of 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 court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). 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.” Ashby, 823 S.W.2d at 169. The burden is on the defendant to show the impropriety
of the sentence. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments.
If our review reflects that the trial court, following the statutory sentencing procedure,
imposed a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different
result. State v Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial
court fails to comply with statutory provisions of sentencing, appellate review is de novo without a
presumption of correctness.
The Appellant was sentenced to an effective ninety-one year sentence in the Department of
Correction. The trial court found three enhancing factors applicable to the sentence: (1) The
defendant had a previous history of criminal conduct in addition to that necessary to establish the
range; (2) The defendant committed the crime in order to satisfy his desire for pleasure or
excitement; and (3) The defendant abused a position of public or private trust. Tenn. Code Ann. §
40-35-114(2)(8)(16). The Appellant does not challenge the application of these factors, and we
agree that the record adequately supports the application of each. After review of the record, we find
that the trial court correctly applied the sentencing principles; thus, the presumption of correctness
applies.
A. Failure to Apply Mitigation Evidence
The Appellant contends that the trial court erred by failing to consider in mitigation that the
Appellant had no history of prior criminal convictions and that he had provided support for his
family.
The Appellant is correct in his assertion that a lack of criminal history can be considered as
an appropriate mitigating factor. State v. Kelley, 34 S.W.3d 471, 483 (Tenn. Crim. App. 2000).
While it is true that the Appellant has no prior convictions, the record before us is rife with instances
of prior criminal behavior. We find it inconsistent to reward a defendant at sentencing for a lack of
a criminal history simply because the Appellant’s conduct escaped indictment and conviction.
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In addition, we find the fact that the Appellant provided support for his mother and nephew
to be inapplicable mitigating proof under the facts of this case. State v. McKnight, 900 S.W.2d 36,
55 (Tenn. Crim. App. 1994). Again, we find it inconsistent to permit a defendant to perpetrate
repugnant sexual offenses against minor victims and at the same time seek credit for the support of
others. Accordingly, we find this issue without merit.
B. Consecutive Sentencing
The Appellant asserts that it was error for the trial court to order consecutive sentencing for
eight of his thirteen convictions. Consecutive sentences were imposed for: (1) count 1, rape of a
child; (2) count 3, rape of a child; (3) count 5, attempted rape by fraud; (4) count 6, aggravated
sexual battery; (5) count 10, rape by fraud; (6) count 11, rape by fraud; (7) count 14, aggravated
sexual battery by an authority figure; and (8) count 15, sexual exploitation. Specifically, the
Appellant argues that: (1) there was no basis to support findings that it was necessary to protect the
public; (2) the trial court based his decision on considerations not provided by the applicable statutes;
and (3) the aggregate sentence is not reasonably related to the severity of the offenses. Consecutive
sentencing is controlled, in part, by Tennessee Code Annotated § 40-35-115. Under this statute, a
trial court may order a defendant to serve consecutive sentences where the proof establishes by a
preponderance of the evidence that:
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 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[.]
Tenn. Code Ann. § 40-35–115(b)(5).
The following findings by the trial court with regard to consecutive sentences are noted:
. . . Mr. Brigman would fall under, and can be considered under, the factor about two
or more statutory offenses involving the sexual abuse of a minor. And there are a
number of factors that you have to consider, if you apply that particular statutory
consecutive sentencing, those being the relationship between the Defendant and the
minors, the time span under which the abuse occurs, the nature and the scope of the
abuse, and any mental or physical damage to the victims. . . .
. . . [W]hen you look at that statute and those factors, consider again the relationship
between the Defendant and the minors, I go back to what I’ve said previously, I
mean, “You’re my coach.” “How could you be doing this?” “I looked up to you.” “I
was only nine.” “I was only ten.” “I was only twelve.” “Why did you do this?”
would probably be what they would ask.
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And the time span, which the Court’s heard proof about, now here within these
Indictments, the thirteen counts he was convicted of span a years of seven (sic) - -
approximately seven years.
Now we’ve heard proof that more than likely - - although I don’t - - can’t assume that
it went on from nineteen-ninety to nineteen-ninety-three, but at least it was going on
in nineteen-ninety with another individual. So, we have ten years of abuse.
And I have no doubt it would continue to be going on, if some of these boys hadn’t
been brave enough to tell their pastor or tell the other boys and parents; and one thing
leads to another, and then Detective Imhof gets involved.
In terms of the nature and scope of the abuse, I mean, I’ve touched on that some
already. But there’s no question in the Court’s mind that this Defendant groomed,
over a number of years, at least six or seven individuals for this specific purpose.
I mean, he’d buy them clothes, take them out, buy them food, have sleep-overs, take
them to Florida. And we’ve seen what happens on those trips; he shows them
movies involving women, children, animals, oral sex, attempted anal sex. . . . [T]here
is nothing normal about this particular case or Mr. Brigman.
In fashioning a sentence that the law mandates has to relate to the severity of the
offenses, I think the Court must and will impose some consecutive sentencing not
only to punish Mr. Brigman because of these factors that I’ve just mentioned, but also
protect the public from future activity that he may think he might want to perform.
It is clear from review of the trial court’s findings that the court properly considered all relevant
factors in determining the appropriateness of consecutive sentencing. The Appellant was found
guilty of thirteen sexual offenses involving six minors with whom he shared a close relationship.
He clearly abused a position of authority against these minor victims, resulting in a course of conduct
that spanned a minimum of seven years. The record supports the trial court’s findings that
consecutive sentences were necessary to protect the public from the Appellant as these offenses
would have continued unabated without intervention. Moreover, the proof supports the finding that
the aggregate sentence was reasonably related to the severity of the offenses. Further, we find the
trial court’s ruling prudent in imposing partial consecutive sentences, and in fashioning consecutive
sentences so as to consider each of the victims of these crimes. Accordingly, we find the imposition
of consecutive sentences as ordered by the trial court proper.
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CONCLUSION
Based upon the foregoing, we find no reversible error arising from the conviction process or
at sentencing. Accordingly, the judgments of conviction as entered by the trial court and the
resulting sentences are affirmed.
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DAVID G. HAYES, JUDGE
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