           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  Assigned on Briefs December 2, 2003

                     STATE OF TENNESSEE v. CRAIG U. QUEVEDO

                    Direct Appeal from the Circuit Court for Montgomery County
                               No. 40000492     Michael Jones, Judge



                        No. M2002-02468-CCA-R3-CD - Filed January 27, 2004


The Defendant, Craig Quevedo, pled guilty to thirty counts of rape and twenty-four counts of incest
and pled nolo contendere to two counts of aggravated sexual battery, four counts of rape of a child,
nine counts of rape and one count of aggravated rape in the Circuit Court for Montgomery County.
After a sentencing hearing, the trial court imposed an aggregate sentence of ninety-two years in
prison. On appeal, the Defendant contends that his sentence was excessive and contrary to public
policy. Finding no reversible error, we affirm the trial court’s judgments.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined.
JAMES CURWOOD WITT, JR., J., concurred in the results only.

Merrilyn Feirman, Nashville, Tennessee (on appeal) and Edward DeWerff, Clarksville, Tennessee
(at trial) for the appellant, Craig Quevedo.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.
Findley, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Arthur
Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                         Opinion
                                                         I. Facts

       The Montgomery County Grand Jury indicted the Defendant, Craig Quevedo, on seventy-
nine counts of various child rape, rape, aggravated rape, incest and sexual battery crimes involving
his minor step-daughter, J.W.1 The Defendant pled guilty to thirty counts of rape and twenty-four
counts of incest and pled nolo contendere to two counts of aggravated sexual battery, four counts of
rape of a child, nine counts of rape and one count of aggravated rape in the Circuit Court for


       1
           It is the policy of this Court to use initials of a child rape victim rather than the victim’s name.
Montgomery County. After a sentencing hearing, the trial court imposed the following sentences:
forty-two years for the child rape convictions; eighteen years for the aggravated sexual battery
convictions to be served concurrently with the sentences for child rape; twenty-four years for the rape
convictions to be served consecutively to the sentences for child rape; twenty years for the
aggravated rape conviction to be served consecutively to the sentences for rape; and six years for the
incest convictions to be served consecutively to the sentence for aggravated rape, for an aggregate
sentence of ninety-two years in prison. The Defendant now appeals the sentence imposed by the trial
court.

                                    A. Guilty Plea Proceeding

        At the guilty plea proceeding, the State introduced the Defendant’s thirty-three page journal
that was encrypted on his computer. In his journal, the Defendant detailed his extensive history of
molesting and raping his minor step-daughter, including the Defendant’s tactics of coercing the
victim by abusing his position of parental authority and drugging the victim with the “date rape”
drug, GHB.2 According to the Defendant’s journal, the Defendant began having sexual relations
with the victim when she was twelve years old and continued abusing her for four years. The State
read excerpts from the journal that corresponded to each of the seventy counts in the indictment of
which the Defendant was pleading guilty or nolo contendere, and the Defendant either admitted his
guilt or agreed that the State could offer proof from which a jury could convict him.

                                      B. Sentencing Hearing

        At the sentencing hearing, the State introduced the pre-sentence report, victim impact
statements from the victim and other family members, and the Defendant’s journal. According to
the pre-sentence report, the Defendant graduated from high school and had no prior criminal history.
In the victim’s impact statement, the victim stated that the Defendant “used his role of authority to
control me. He has stolen my youth and my innocence. Each day that passes I am reminded in some
way of the things that he has done to me.” The victim stated that the Defendant “would make it a
point that no one [in her family] was going to be happy” unless the victim satisfied the Defendant’s
sexual desires. She explained, “It was only a few, brief, awful moments a day that I had to give
myself to him and then the rest of the day would be peaceful for everyone.” The victim stated that
she lives in constant fear from the years of abuse by the Defendant. She stated that she keeps her
feelings “bottled up for days at a time and then I am flooded by fits of rage, sorrow, and fear.” The
victim stated that “[n]o one deserves the torture I was subjected to. It is a disease that he has. An
incurable disease. When he decides what he wants he goes to great lengths to make sure that he gets
it. His are the only feelings he is concerned with.”

       The Defendant called the victim to testify at his sentencing hearing. The victim testified that
she continued to have frequent nightmares of the Defendant abusing her and that she had seen a
professional counselor about the abuse she suffered. The victim explained that she had episodes of


       2
           Gamma hydroxybutyrate.

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rage and that she experienced flashbacks of the abuse every day. When asked whether the Defendant
ever told her that he wanted to stop abusing her, the victim replied, “He said he wanted to but he
couldn’t.”

        Kelly Christine Benick, the Defendant’s sister, testified that she loved the Defendant “very
much,” even after he confessed to abusing the victim. Benick stated that the Defendant’s abuse of
the victim was “[t]otally out of character” for the Defendant. She explained that the Defendant was
“a very intelligent, very nice man.” Benick testified that her older sister was molested by her father
as a child. She denied that her father’s molestation of her sister somehow caused the Defendant to
molest the victim.

       The Defendant made the following statement to the trial court:

               This has been a very difficult situation. It was never my intention to drag it
       out this long. I wanted to save everyone, especially the victim, . . . anymore grief
       than what she’s already gone through.

       ....

              I’ve had a lot to think about in the last two and a half years. . . . I made a
       mistake, and it was not [my] intention to harm anyone; however, I know people were
       harmed.

               It wasn’t premeditated; it wasn’t planned out; . . . it happened. And I regret
       it. I wish I could undo it. And I am truly sorry that I hurt so many people. I caused
       myself a great deal of grief, but I caused them even more grief. . . . I too have
       difficulty dealing with it. A lot of guilt.

       ....

               And I’d just like to tell them I’m sorry. I mean, I don’t know what more I can
       say to that except that I hope that one day you will forgive me. . . .

        Following this proof at the sentencing hearing, the trial court found that the following
mitigating factors applied to the Defendant’s case under Tennessee Code Annotated section 40-35-
113 (1997 & Supp. 2002): “(1) The defendant’s criminal conduct neither caused nor threatened
serious bodily injury; . . . (13) Any other factor consistent with the purposes of this chapter.” The
trial court explained:

               There has been reference to going to the emergency room, but there’s been
       no determination that . . . criminal conduct caused or threatened serious bodily injury.
       It may have, but I don’t have the evidence to consider it. So, I would find that
       mitigating factor number one would apply to all offenses; however, it would have


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       very little weight based on the multitude of conduct in this situation.

               [Factor] Number 13 is that he did in fact enter pleas to this case. That has
       some weight with the Court. It would have had more weight, however, had he
       pleaded guilty rather than no contest. I do not find any other mitigating factors that
       apply to any of the offenses.

The trial court then found that the following enhancement factors applied to the Defendant’s case
under Tennessee Code Annotated section 40-35-114 (1997 & Supp. 2002):

       (2) The defendant has a previous history of criminal convictions or criminal behavior
       in addition to those necessary to establish the appropriate range; . . .
       (5) A victim of the offense was particularly vulnerable because of age or physical or
       mental disability . . .
       (8) The offense involved a victim and was committed to gratify the defendant’s
       desire for pleasure or excitement; . . . and
       (16) The defendant abused a position of public or private trust . . . .

The trial court also found that several of the Defendant’s multiple convictions should run
consecutively to each other under Tennessee Code Annotated section 40-35-115(b)(5) (1997 & Supp.
2002) because the Defendant was convicted of two or more statutory offenses involving sexual abuse
of a minor “with consideration of the aggravating circumstances arising from the relationship
between the [D]efendant and victim . . ., the time span of [D]efendant’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 . . . .”

                                             II. Analysis

       On appeal, the Defendant contends that the sentence imposed by the trial court was excessive
and contrary to public policy because the trial court failed to consider as a mitigating factor that the
Defendant grew up in a home where his father sexually abused his sister. In his appellate brief, the
Defendant contends the following:

        [The Defendant] was raised in a home where his father sexually abused his sister.
        This mitigating factor was not specifically addressed at the sentencing hearing.
        However, it is clear from [the Defendant’s] journal and his sister’s testimony, that the
        abuse was never appropriately addressed by the family. As was made clear by his
        sister’s testimony, this abuse of another sister was perceived by the family as being
        the fault of the sister who suffered the abuse. Undoubtedly, being raised in that
        environment had a disastrous influence on [the Defendant].

         When a defendant challenges the length and manner of service of a sentence, it is the duty
of this court to conduct a de novo review on the record with a presumption that “the determinations


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made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2003). 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.’” State v. Ross,
49 S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing a defendant or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377
(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v.
Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a
sentence, we must consider: (a) any evidence received at the trial and/or sentencing hearing; (b) the
pre-sentence report; (c) the principles of sentencing; (d) the arguments of counsel relative to
sentencing alternatives; (e) the nature and characteristics of the offense; (f) any mitigating or
enhancement factors; (g) any statements made by the defendant on his or her own behalf; and (h) the
defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-
210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging
a sentence imposed by the trial court has the burden of establishing that the sentence is erroneous.
Tenn. Code Ann. § 40-35-401 (2003), Sentencing Commission Cmts.

       Tennessee Code Annotated section 40-35-103(1) (2003) states that:

        Sentences involving confinement should be based on the following considerations:
        (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 . . . .

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.”
Tenn. Code Ann. § 40-35-103(5). The trial court may consider enhancement and mitigating factors
when determining a defendant’s sentence. See Tenn. Code Ann. §§ 40-35-113, -114 (2003).
Moreover, if a defendant is convicted of more than one criminal offense, the trial court may order
the sentences to run consecutively if the court finds by a preponderance of the evidence that certain
criteria are met. See Tenn. Code Ann. § 40-35-115(b)(1)-(7) (2003).

        In the case under submission, the Defendant “concedes that the aggravating factors applied
were appropriate.” However, the Defendant contends that the trial court erred in sentencing him
because it failed to consider as a mitigating factor that the Defendant grew up in a home where his
father sexually abused his sister. The Defendant also contends that the Defendant’s aggregate
sentence of ninety-two years is contrary to public policy because it “requires that [the Defendant] die
in prison.” The trial court applied mitigating factors based upon the following determinations: (1)


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the Defendant’s actions neither caused nor threatened serious bodily injury; and (2) the Defendant
pled guilty or nolo contendere, negating the need for a protracted trial. The trial court applied the
following enhancement factors: (1) the Defendant had a history of criminal behavior based upon the
finding that, except for the first act of sexual abuse, there was prior criminal sexual conduct
preceding each episode of sexual abuse; (2) the victim was vulnerable because of her age; (3) the
Defendant committed the multiple offenses to gratify his desire for pleasure or excitement based
upon the Defendant’s graphic journal entries detailing the pleasure and excitement he got from
abusing the victim; and (4) the Defendant abused a position of private trust based upon the
Defendant’s numerous journal entries detailing how he coerced the victim into complying with the
sexual abuse for four years.

        Based upon our de novo review of the sentencing hearing, the pre-sentence report and the
evidence presented at the sentencing hearing, we conclude that the trial court properly applied the
above listed enhancement and mitigating factors when determining the Defendant’s aggregate
sentence. The Defendant presented no evidence at the sentencing hearing regarding what effect his
older sister’s alleged sexual abuse by his father had on the Defendant and whether witnessing such
abuse as a child caused him to abuse the victim in this case. Indeed, the Defendant only stated that
he was sorry that he abused the victim and wished that everyone would forgive him some day.
Further, Benick, the Defendant’s younger sister, denied that this alleged abuse caused the
Defendant’s abusive behavior in this case. In addition, the Defendant did not argue to the trial court
that the alleged sexual abuse of his sister by his father should be a mitigating factor. Therefore, we
conclude that the trial court did not err by not considering the alleged sexual abuse of the
Defendant’s sister as a mitigating factor in this case.

        We further conclude that the Defendant’s aggregate sentence of ninety-two years in prison
is not contrary to public policy. The Defendant pled guilty or nolo contendere to seventy counts of
sexual crimes against a minor. The Defendant’s journal recounts in graphic detail what the
Defendant did to the victim over a four-year period, starting when the victim was twelve years old.
The Defendant’s journal reveals that he used his parental position to coerce the victim into
performing sexual acts and that he ultimately used GHB to incapacitate and rape the victim. The
victim testified that she continues to have nightmares about the long period of abuse and has fits of
“rage, sorrow and fear.” Moreover, an extended period of confinement is justified in this case to
protect society and provide an effective deterrence to others likely to commit similar offenses.

                                          III. Conclusion

      Based upon our de novo review, we conclude that the trial court did not err in sentencing the
Defendant. Therefore, we AFFIRM the trial court’s judgments.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE


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