State of Tennessee v. David Charles Gambrell

09/02/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 12, 2020
STATE OF TENNESSEE v. DAVID CHARLES GAMBRELL
Appeal from the Criminal Court for Sumner County
No. CR-40-2018 Dee David Gay, Judge
___________________________________
No. M2019-00773-CCA-R3-CD
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David Charles Gambrell, Defendant, was indicted for five counts of statutory rape by an
authority figure and two counts of sexual battery by an authority figure based on
allegations made by his fifteen-year-old stepdaughter. Defendant pled guilty to amended
charges of four counts of aggravated statutory rape with the trial court to determine the
length and manner of service of the sentence. The remaining counts were nolle prossed.
After a sentencing hearing, the trial court denied Defendant’s request for judicial
diversion, ordering him to serve four years in incarceration for each conviction, with the
sentences to be served consecutively, for a total effective sentence of sixteen years.
Defendant appeals his sentences. After a review, we affirm the judgments of the trial
court.
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., J., joined. NORMA MCGEE OGLE, J., concurred in results only.
Matthew Edwards (on appeal), Hendersonville, Tennessee, and Micah Gagney Ketron (at
trial), Gallatin, Tennessee, for the appellant, David Charles Gambrell.
Herbert H. Slatery III, Attorney General and Reporter; Brent Cherry, Senior Assistant
Attorney General; Ray Whitley, District Attorney General; and Tara Wyllie, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
During the summer of 2017, the Department of Children’s Services (“DCS”)
received a referral with regard to sexual activity that took place between the fifteen-year-
old victim and Defendant, the perpetrator.1 Officers from the Sumner County Sheriff’s
Office investigated the allegations, in part, by interviewing the victim. During her
interview, the victim explained that Defendant was her stepfather and that there had been
inappropriate sexual contact between them between Christmas of 2016 and January of
2017. During Defendant’s interview, he confessed to some of the sexual contact
described by the victim, including but not limited to digital penetration of the victim’s
vagina, oral penetration of the victim’s vagina, and contact between Defendant’s hand
and the victim’s vagina.
As a result of the investigation, Defendant was indicted in January of 2018 by the
Sumner County Grand Jury with five counts of statutory rape by an authority figure and
two counts of sexual battery by an authority figure. Defendant entered guilty pleas prior
to trial to amended charges of four counts of aggravated statutory rape, with the length
and manner of service of the sentence to be determined by the trial court after a
sentencing hearing.
At the sentencing hearing, the trial court allowed Defendant to withdraw his guilty
pleas on two counts of the indictment (Counts Two and Four), allowed Count Two to be
amended to state that “sexual penetration was done by digitally penetrating the victim”
rather than “by having sexual intercourse with the victim.” The trial court then accepted
Defendant’s to guilty plea to Count One, Count Two as amended, Count Three, and
Count Five. The remaining counts were nolle prossed.
Sentencing Hearing
At the sentencing hearing, the victim’s biological grandmother, C.L., explained
that when the victim was born, the victim’s biological mother and the victim lived with
C.L. and her husband. When the victim’s biological parents both terminated their
parental rights, C.L. and her husband formally adopted the victim when the victim was
about five years of age.
According to C.L, the victim “had gotten into trouble at school on several
occasions” for “cutting herself,” taking drugs, and trying to commit suicide by taking
pills. C.L. claimed that a juvenile court probation officer “saved [the victim’s] life” by
helping to get her admitted to an inpatient treatment facility. The victim was fifteen at
the time and spent around five months at the treatment facility. While the victim was a
1
It is the policy of this Court to protect the identity of victims of sexual abuse.
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patient, she disclosed that Defendant had been abusing her sexually when she visited her
biological mother.
Rebecca Page, an investigator with DCS, received information from the residential
treatment facility that the victim disclosed abuse during “therapy sessions.” Detective
Scott Bilbrey of the Sumner County Sheriff’s Office investigated the allegations. He met
with the victim at the treatment facility. At the time, the victim was identifying as a male
and asked to be referred to by a male name. The victim explained that she saw herself as
a straight male who was attracted to females. The victim told Detective Bilbray that prior
to the abuse, she had several conversations with Defendant about her sexual orientation.
The victim “had difficulty going into great detail” during the interview but was
able to disclose that the abuse started around Christmas of 2016 and continued until mid-
January of 2017. The victim disclosed that the abuse occurred when she visited her
biological mother and Defendant. The victim described her mother as a heavy drug user
and explained that her mother was usually “out of it.” The victim herself admitted to
drug and alcohol use during this time period. The victim explained to Detective Bilbrey
that around Christmas of 2016 there were two main instances of inappropriate physical
contact that occurred at Defendant’s house, including, in Detective Bilbrey’s words:
“oral, her on him, two times; oral, him on her, two times; his hand on her breast, three to
four times; penile penetration, two times; and he touched her vagina with his hands, skin
to skin contact, approximately six to seven times.” Despite the victim’s difficulty
remembering the specifics of each encounter, she described in detail the time when
Defendant inserted his finger into her vagina because she described his finger as rough
and uncomfortable. The victim explained that Defendant was a mechanic and that his
hands were rough.
The victim was able to give the exact date of one instance of abuse, May 21, 2017.
The victim explained to Detective Bilbrey that she rode with defendant from her
grandparents’ home to a Dollar General Store where Defendant touched the victim’s bare
breast inside of her shirt. The victim went into treatment the next day.
After the victim left the treatment facility, she agreed to a “controlled phone call”
with Defendant. During the call, the victim told Defendant that she now realized that she
liked boys because of the things she did with Defendant. While Defendant never came
out and said exactly how he abused the victim, he acknowledged that he understood to
which incidents the victim was referring.
Detective Bilbrey visited Defendant at his job. Defendant initially denied the
allegations but eventually admitted that that there was some sexual contact between him
and the victim. Defendant claimed that the victim initiated some of the contact, once
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after he had taken two Tylenol PM and a shot of whiskey. Defendant got up to go to the
restroom and was confronted by the victim who asked him to show her how a man
touches a woman. The victim took his hand and placed it on her body. Defendant
insisted that he told the victim he was not comfortable with what the victim was asking
and that she needed to go talk to her biological mother.
Defendant talked about a trip to Dollar General during which the victim exposed
her vagina and asked Defendant how it looked after she shaved. Defendant claimed that
the victim took Defendant’s hand and placed it between her legs. Defendant insisted that
he pulled his hand away and did not realize that the victim was unclothed because it was
dark. However, Defendant later admitted that he touched the victim and that he
penetrated her with his finger but claimed that there was no full digital penetration. At
first, Defendant adamantly denied that he performed oral sex on the victim. Defendant
later admitted that he got “real close” to the victim’s vagina with his face but that he did
not touch the victim orally. Defendant later admitted that he “lick[ed]” the victim’s
vagina on at least two occasions. Defendant claimed that he threw up after this incident.
Defendant denied penile penetration and did not remember the victim performing oral sex
on him and if it happened he was probably asleep. As a result of the interview,
Defendant was arrested.
C.L., her husband, and the victim moved to Florida after the victim was released
from the treatment facility because they were “afraid.” C.L. explained that the impact of
Defendant’s actions on their family was “[d]evastating” and that the victim had “gender
identity issues.” The victim’s biological mother called her a “liar and told her [the abuse]
was her fault.”
C.L. described Defendant as a “monster who completely destroyed [the victim’s]
childhood, her adulthood, and her chance of ever knowing what it is to have a normal
relationship, to get married, or to have children.”
Defendant called several character witnesses, including his niece. Defendant’s
niece, who was age twenty at the time of the sentencing hearing, explained that she lived
near Defendant on the same piece of property. She trusted Defendant and did not know
him to abuse drugs or alcohol. She explained that he was dyslexic and had a difficult
time reading and writing. Defendant’s niece admitted that Defendant told her about one
encounter with the victim “where there was alcohol involved and they were together.”
Dan Klitz had known Defendant for about ten years and described him as a “good
friend.” Mr. Klitz heard Defendant express remorse over the events but never heard
Defendant admit that he was in a sexual relationship with the victim. However, Mr. Klitz
did not think Defendant was guilty because Defendant had never been in trouble and was
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a positive influence during his own depression after his wife died. Despite his positive
take on Defendant, Mr. Klitz commented that if he caught someone doing something
sexual to either of his own daughters he would “shoot them.”
Susan Morrow, a probation and parole officer with the Tennessee Department of
Correction, testified that she prepared Defendant’s presentence report. She explained that
she incorporated Defendant’s statement into the report. She conducted a risk/needs
assessment or “STRONG-R” evaluation and determined Defendant’s overall risk was low
but that she did not place any value in this evaluation.
David Thomas Lubin, an officer with the Mid-Cumberland Human Resource
Agency, explained that he supervised Defendant on community corrections bond
supervision from October 11, 2017, to the time of the sentencing hearing, or
approximately eighteen months. Defendant was required to report once a week and
submit to random drug screens. Officer Lubin “never had a problem with [Defendant]
during his reporting.” Defendant failed several drug screens due to the fact that he had a
valid “prescription for oxycodone.”
Defendant testified at the hearing. At the time, he was forty years old and worked
at his father’s shop as a mechanic. Defendant explained that he used to work for the
Tennessee Department of Transportation but that he was fired after his arrest. Defendant
was married and had a three-and-a-half-year-old daughter. He had a large extended
family who lived near him, all in separate homes on part of a large piece of property.
Defendant was dyslexic and had trouble reading and writing. His wife helped him
prepare his statement. Defendant did not have issues complying with his bond
conditions. For the first two months after his arrest, Defendant was actually prohibited
from being around his own child. Defendant explained that he was able to abide by all
the restrictions of his release, including the sex offender registry. Defendant explained
that he “messed up” and “did things that [he] shouldn’t have done” and “didn’t stop them
when they should have stopped.” Defendant denied initiating any kind of sexual
encounter with the victim and apologized for failing the victim. On cross-examination,
Defendant insisted that the victim “suggested” everything that happened. “She talked
about it and stuff led into other things and she asked about, honestly, inappropriate things
that [he] shouldn’t have never talked to her about.” Defendant described the victim as
“curious.” Defendant explained,
there was one time when my hand was placed between her legs and then
there was another night that she had come up and that was the night that I
had come home from work and I was overly tired and stuff. Honestly, . . . ,
I’m sorry, because I don’t remember exactly all the details because I was so
tired and stuff happened that shouldn’t have happened.
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In all, Defendant admitted that there were four instances of abuse but denied penile
penetration. At this point, the parties agreed that Count Two of the indictment should be
amended to allege digital penetration rather than penile penetration. As a result, the trial
court amended Count Two of the indictment. The trial court also allowed Defendant to
withdraw his guilty plea on Count Four (alleging sexual intercourse) and substitute a
guilty plea on Count Five (alleging digital penetration).2
At the conclusion of the sentencing hearing, the trial court denied judicial
diversion and alternative sentencing. The trial court sentenced defendant to four years for
each conviction, to be served consecutively, for a total effective sentence of sixteen years.
Defendant appealed.
Analysis
Defendant complains that the trial court gave “little to no consideration” to
alternative sentencing. Specifically, he argues that the trial court ignored the fact that he
had no prior criminal history, was the primary caregiver in his family, and that his crimes
were nonviolent. Additionally, Defendant argues that the trial court did not give any
weight to sentencing principles, improperly sentenced him to the maximum sentence in
the range for each offense, and improperly denied judicial diversion. Finally, Defendant
challenges the trial court’s decision to order consecutive sentencing. The State argues
that the trial court did not abuse its discretion.
When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard
does not permit an appellate court to substitute its judgment for that of the trial court.
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the
2
The State commented that “because digital, oral, and penile penetration are all the same level of
offense for aggravated statutory rape” the State did not oppose the amendment or modification of the
guilty plea.
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burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.
A. Denial of Judicial Diversion
Defendant first argues that the trial court erred in denying judicial diversion.
Judicial diversion is a form of probation that affords certain qualified defendants the
opportunity to avoid a permanent criminal record. See T.C.A. § 40-35-313(a)(1)(A).
“Judicial diversion is a form of ‘legislative largess’ available to qualified defendants who
have entered a guilty or nolo contendere plea or have been found guilty of an offense
without the entry of a judgment of guilt.” State v. King, 432 S.W.3d 316, 323 (Tenn.
2014). If a defendant qualifies for judicial diversion, a trial court may defer proceedings
without entering a judgment of guilt, placing the defendant on probation without
categorizing the defendant as a convicted felon. Id. Upon successful completion of the
probationary period, the trial court will dismiss the charges, and the defendant may seek
expungement of the record, which “restore[s] the person, in the contemplation of the law,
to the status the person occupied before such arrest or indictment or information.” King,
432 S.W.3d at 323 (quoting State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999)); see
T.C.A. § 40-35-313(a)(2), (b). However, if the defendant violates the terms of his or her
probation, “the court may enter an adjudication of guilt and proceed as otherwise
provided.” T.C.A. § 40-35-313(a)(2).
A defendant is eligible for judicial diversion if he or she is found guilty or pleads
guilty or nolo contendere to a Class C, D, or E felony, has not been previously convicted
of a felony or Class A misdemeanor, has not been previously granted judicial or pretrial
diversion, and is not seeking deferral for a sexual offense. See T.C.A. § 40-35-
313(a)(1)(B)(i). Aggravated statutory rape, Defendant’s conviction offenses, are not
classified as sexual offenses for purposes of judicial diversion. Id. “Eligibility under the
statute does not, however, constitute entitlement to judicial diversion; instead, the
decision of whether to grant or deny judicial diversion is entrusted to the discretion of the
trial court.” King, 432 S.W.3d at 323. The trial court must consider several common law
factors:
‘(a) The accused’s amenability to correction, (b) the circumstances of the
offense, (c) the accused’s criminal record, (d) the accused’s social history,
(e) the accused’s physical and mental health, and (f) the deterrence value to
the accused as well as others. The trial court should also consider whether
judicial diversion will serve the ends of justice—the interests of the public
as well as the accused.’
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Id. at 326 (quoting State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)); see
State v. Electroplating, Inc., 990 S.W.3d 211, 229 (Tenn. Crim. App. 1998). “[T]he trial
court must weigh the factors against each other and place an explanation of its ruling on
the record.” Id. (citing Electroplating, Inc., 990 S.W.2d at 229).
When the trial court considers the common law factors, “specifically identifies the
relevant factors, and places on the record its reasons for granting or denying judicial
diversion,” then this Court will “apply a presumption of reasonableness and uphold the
grant or denial so long as there is any substantial evidence to support the trial court’s
decision.” Id. at 327. Our supreme court has explained:
Although the trial court is not required to recite all of the Parker and
Electroplating factors when justifying its decision on the record in order to
obtain the presumption of reasonableness, the record should reflect that the
trial court considered the Parker and Electroplating factors in rendering its
decision and that it identified the specific factors applicable to the case
before it. Thereafter, the trial court may proceed to solely address the
relevant factors.
Id. Failure to consider the common law factors results in a loss of the presumption of
reasonableness, and this Court will either conduct a de novo review or remand the case to
the trial court for reconsideration. Id. A trial court can also abuse its discretion by
considering and placing undue weight on an irrelevant factor. See State v. Chyanne
Elizabeth Gobble, No. E2014-01596-CCA-R3-CD, 2015 WL 12978645, at *6 (Tenn.
Crim. App. Aug. 12, 2015), no perm. app. filed.
At the sentencing hearing, the State introduced the presentence report, which
indicated that Defendant was forty years of age, had graduated from high school, and had
a mechanic’s certificate from Tennessee Technology Center. Defendant provided a brief
family history in preparation of the presentence report, during which he explained that his
childhood “wasn’t bad” and that he grew up in a two-parent household. Defendant
reported that his family, including his parents and two sisters, lived on property adjacent
to his own. Defendant was still married to the victim’s mother and they had a small
child. Defendant reported his own mental health as “fair.” He claimed to suffer from
depression and anxiety from his legal issues. Defendant also reported that he was
dyslexic. At the time of the hearing, Defendant was employed by Ray’s Towing and
Repair, a company owned by his father. Defendant had no prior convictions.
The presentence report included a victim impact statement in which the victim
explained the degree to which the abuse had affected her life. She reported that she
started cutting herself with a knife given to her by Defendant, took various pills, drank
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cough syrup, and burned herself with pencil erasers to “keep [] from having real feelings
and bury what [Defendant] did to [her].” She admitted that she only felt safe enough to
tell someone about the abuse after five months in an inpatient facility.
The trial court determined that Defendant was a Range I, standard offender with
no prior criminal record. The trial court first considered judicial diversion, making
specific findings with regard to each of the Electoplating factors. As to Defendant’s
amenability to correction, the trial court noted that the court did not “think that is a
positive factor in this particular situation.” When looking at the circumstances of the
offense, the trial court noted that “because of the effects of these crimes, the
circumstances are about as bad as [the trial court had] seen.” The trial court explained
the victim had no family to give her stability where Defendant readily admitted that he
breached the victim’s trust by abusing her repeatedly. The trial court was particularly
concerned by the mental health effects on “this little girl.” The trial court noted
Defendant had no criminal record, indicating this factor weighed in favor of diversion.
Likewise, the trial court considered Defendant’s social history, or his “ability to know
right and wrong,” noting that Defendant was diagnosed with a “paraphilic disorder”
which is a “type of mental disorder characterized by a preference or obsession with
unusual sexual practices.” The trial court concluded that the social history “does not
weigh in favor of [Defendant]” but that the “status of [Defendant’s] physical and mental
health” was “neutral.” With regard to deterrence, the trial court noted that there was
immeasurable “deterrent effect in society to deter step-fathers from abusing their 14- and
15-year-old stepdaughters.” Lastly, when considering whether judicial diversion would
serve the ends of justice, the interests of the public as well as the accused, the trial court
commented that the victim had “absolutely no relief in her environment” at home and that
“the interest of the public cannot be served here in this case.” The trial court stated that
“the interest of the public demands attention to dysfunctional families” and that it was “in
the interest of the public to know what [Defendant] has done.” The trial court determined
that diversion should be denied.
Here, the trial court engaged in a very detailed and thorough examination of the
Electroplating factors prior to denying diversion primarily on the basis of the
circumstances of the offense. Because the trial court properly identified and weighed the
Electroplating factors, we afford the trial court’s decision to deny judicial diversion a
presumption of reasonableness and assess whether there was any substantial evidence in
the record to support that decision. King, 432 S.W.3d at 327; Parker, 932 S.W.2d at 958.
After our review, we determine that there was substantial evidence in the record to
support the denial of diversion. While Defendant was certainly amenable to correction,
as evidenced by his employment record and lack of a criminal record, it was within the
trial court’s discretion to conclude that Defendant’s social health history as well as the
circumstances of the offense outweighed the other factors that favor the granting of
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diversion. There is no denying the emotional nature of the abuse resulting from
Defendant’s actions and the lasting effects on the victim. Defendant was an entrusted
member of her family. While doing so, he used his position of authority to abuse her
sexually. As a result of the abuse, the victim suffered unfathomable mental anguish. The
trial court did not abuse its discretion in denying judicial diversion. Defendant is not
entitled to relief on this issue.
B. Sentence Length
Prior to fashioning the length of the sentence for each conviction, the trial court
noted that it was considering the guidelines set forth in Tennessee Code Annotated
section 40-35-103, including the evidence at the sentencing hearing, the presentence
report, Defendant’s testimony, the nature of the criminal conduct, the evidence with
regard to mitigating and enhancement factors, Defendant’s potential for rehabilitation,
and Defendant’s background. The trial court determined that Defendant’s employment
history and his family support should be applied as mitigating factors. See T.C.A. § 40-
35-114(13). With regard to enhancement factors, the trial court determined that the
victim was particularly vulnerable because of her age. See T.C.A. § 40-35-114(4). The
trial court blamed Defendant for his contribution to “where the victim is now.” The trial
court also determined that the personal injuries inflicted on the victim were great because
the victim was “going to be looked over as it looks right now possibly the rest of her
life.” Id. § 40-35-114(6). The trial court also found that the offense was involved to
gratify Defendant’s desire for pleasure or excitement and that Defendant abused a
position of private trust, as the victim’s stepfather. Id. § 40-35-114(7); (14). The trial
court acknowledged that Defendant’s lack of criminal history was a mitigating factor.
The trial court made clear that he was considering the imposition of a sentence justly
deserved in relation to the seriousness of the offense, classifying Defendant’s actions as
“serious,” noting that the “only thing more serious is damage, physical damage through
violence or homicide.” The trial court noted that there was “no excuse” for Defendant’s
actions. With regard to Defendant’s potential or lack of potential for rehabilitation, the
trial court took into account Defendant’s diagnosis of paraphilia, Defendant’s own
“illogical version of the events,” and Defendant’s lack of understanding of his behavior
as contributors to his poor prognosis in community-based treatment. As a result, the trial
court sentenced Defendant to four years for each conviction. We conclude that the length
of the sentence is not excessive.
C. Alternative Sentencing
A defendant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See T.C.A. § 40-35-303(a). Moreover, a defendant who is an
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especially mitigated or standard offender convicted of a Class C, D, or E felony should be
considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See T.C.A. § 40-35-102(6). Defendant was convicted of Class D and E
felonies and several misdemeanors and was sentenced to an effective sentence of sixteen
years. Defendant was eligible for probation based on the length of each of his sentences
and the fact that he was a standard offender.
Although the trial court is required to automatically consider probation as a
sentencing option, see Tennessee Code Annotated section 40-35-303(b), no criminal
defendant is automatically entitled to probation as a matter of law, see State v. Davis, 940
S.W.2d 558, 559 (Tenn. 1997). It is the defendant’s burden to establish his or her
suitability for full probation. See State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008)
citing T.C.A. § 40-35-303(b)). The defendant must demonstrate that probation will
“subserve the ends of justice and the best interests of both the public and the defendant.”
Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to probation
consideration are the circumstances of the offense; the defendant’s criminal record, social
history, and present condition; the deterrent effect upon the defendant; and the best
interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978). Tennessee Code Annotated section 40-35-103(1) sets forth the following
sentencing considerations, which are utilized in determining the appropriateness of
alternative sentencing:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.
See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). A defendant with a long history of criminal conduct
and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for
alternative sentencing. T.C.A. § 40-35-102(5). Our supreme court has specifically held
that the abuse of discretion standard, with a presumption of reasonableness, also applies
to a review of a denial of alternative sentencing. Caudle, 388 S.W.3d at 278-79.
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Here, the trial court stated if we “can’t protect our children in society, we might as
well hang it up,” deeming confinement necessary to avoid depreciating the seriousness of
the offense. The trial court did not abuse its discretion in denying an alternative sentence.
Defendant is not entitled to relief.
D. Consecutive Sentencing
In State v. Pollard, 432 S.W.3d 851 (Tenn. 2013), the Tennessee Supreme Court
expanded its holding in Bise to also apply to decisions by trial courts regarding
consecutive sentencing. Id. at 859. This Court must give “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).” Id. at 861. “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)). As relevant to this
case, the trial court may order sentences to run consecutively if it finds by a
preponderance of the evidence that “[t]he 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 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 damages to the
victim . . . .” T.C.A. § 40-35-115(b)(5).
In considering consecutive sentencing, the trial court determined that Defendant
qualified because he
Committed two 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 . . . , 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[.]
T.C.A. § 40-35-115(b)(5). In applying consecutive sentencing factor (5), the trial court
noted that Defendant was at least twenty-one years older than the victim, whose mother
did a “terrible job” by losing custody. The victim needed a father figure, tried to find one
in Defendant, and ended up getting abused by Defendant. The trial court noted that the
time span of the abuse was unknown. The trial court took issue with the fact that “much
has been made about [the victim’s] initiating or starting these acts” commenting that he
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was “tired of men coming into this courtroom and saying I was seduced by a little girl.”
Defendant admitted to a wide scope of sexual acts, which the trial court found
“completely inexcusable.” The trial court found the victim suffered severe residual
physical and mental damage which required inpatient treatment, medication management,
and therapeutic intervention to treat her wide-variety of mental and physical issues either
brought on or exacerbated by Defendant’s actions. The trial court determined there was a
“lot of truth” in the description of Defendant as a “monster.” As a result, the trial court
ordered the sentences to be served consecutively to each other for a total effective
sentence of sixteen years at thirty percent. The record reflects that the trial court engaged
in a careful consideration of the facts and the law. Defendant has failed to show that the
trial court abused its discretion in applying the consecutive sentencing factor related to
the commission of two or more offenses involving the sexual abuse of a minor, allowable
in T.C.A. § 40-35-115(b)(5).
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
TIMOTHY L. EASTER, JUDGE
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