                                                                                                               09/28/2017
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 Assigned on Briefs July 19, 2017

           STATE OF TENNESSEE v. DOUGLAS ARTHUR VINCENT

                    Appeal from the Circuit Court for Sequatchie County
                       No. 2015CR78 Thomas W. Graham, Judge


                                   No. M2016-02530-CCA-R3-CD


The defendant, Douglas Arthur Vincent, appeals his Sequatchie County Circuit Court
guilty-pleaded conviction of rape, claiming only that the trial court erred by imposing the
maximum available sentence. Discerning no error, we affirm.

               Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

B. Jeffrey Harmon, District Public Defender, for the appellant, Douglas Arthur Vincent.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; J. Michael Taylor, District Attorney General; and Steven H. Strain,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                OPINION

              Originally charged with one count each of the aggravated rape, incest, and
aggravated sexual battery of his adult daughter, D.V.,1 the defendant pleaded guilty to a
single count of the lesser included offense of rape as a Range II offender, with the length
of service of the sentence to be determined by the trial court following a sentencing
hearing. The State summarized the facts of the offense at the guilty plea submission
hearing:

                 [I]f this matter came to trial, the State would be calling Keith
                 Herron, who is now with [the] Tennessee Bureau of

1
      As is the policy of this court, we refer to the victims of sexual assault by initials to protect their
anonymity.
Investigation [“TBI”] as its primary law enforcement witness,
although other officers did work on this. The State would be
showing that on April 14, 2015, in Sequatchie County officers
were dispatched to . . . meet with the victim . . . [on an]
allegation of a sexual assault that had occurred in the Deer
Head community . . . . The victim was taken to the sheriff’s
department, or followed the officers to the sheriff’s
department. She did make a statement to law enforcement
that her biological father, [the defendant], had sexually
penetrated her by force . . . .

       From there the victim was taken to the Rape Crisis
Center in Chattanooga. She was examined by . . . Bonnie
Kidd[, who] would testify that she has been through the
appropriate training, that she is a licensed nurse in the State of
Tennessee, [and] has also received specialized training in
forensic nursing. She examined the victim in this case. She
would testify that [the victim] suffered from bruising in the
vaginal area. Also that there was evidence of the [p]etechiae,
which [are] broken blood capillaries in the vagina. Nurse
Kidd would testify that this indicates that . . . [the victim’s]
vagina was not ready for sexual intercourse and that . . . these
findings are consistent with the victim being forcibly raped.
She also prepared a rape kit. She took swabs from the victim.
Collected clothing et cetera. That she placed those [items]
into evidence at the Rape Crisis Center. . . . Agent Herron
would testify that he went by the Rape Crisis Center several
days later, picked up the rape kit, and submitted it to the
[TBI] along with . . . buccal swabs from the victim as well as
from the defendant.

       TBI Agent Gregory Foster would testify that he is a
forensic scientist with the [TBI], has testified as an expert,
and would be qualified to testify as an expert witness in the
area of forensic biology. He would testify that – that on anal
swabs, vaginal swabs, and also the underwear from the victim
that sperm, that the DNA would identify as coming from the
[d]efendant . . . were found.

       The victim would testify that . . . she was with her
father on that particular night. That, at the preliminary
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              hearing she stated that he did stuff that no father should do to
              his child. She went on to describe that [the defendant]
              without her consent sexually penetrated her, and that this
              occurred in Sequatchie County.

                      She would also testify that [the defendant] was her
              biological father, and that she had been taken by her mother, I
              believe, to Texas, [and] had a very limited relationship with
              him for a number of years. She’s approximately 22 years of
              age when this happened. That she had come to Sequatchie
              County partly in the hope of having a relationship with her
              father, and that would essentially be the State’s proof in this
              case.

              At the sentencing hearing, the State introduced into evidence the
presentence investigation report, which established that the 43-year-old defendant had a
criminal history that spanned more than 20 years and that included four prior felony and
multiple misdemeanor convictions. The State also introduced into evidence a four-page,
handwritten statement from the victim, in which she described in detail the physical and
emotional toll that the defendant’s assault had taken on her. The defendant introduced
into evidence a brief statement in which he expressed remorse for his actions and
apologized to the victim, as well as a second statement in which the defendant explained
certain alleged discrepancies in the presentence report and listed jobs that he had held in
the past.

                Glenda Pinkerton, the common-law wife of the defendant’s brother,
testified that she had known the defendant for 24 years and that the defendant had
assisted Ms. Pinkerton’s elderly mother with yard work and house repairs on multiple
occasions without accepting payment. Ms. Pinkerton stated that the defendant had also
helped her and his brother with car repairs and anything else they needed. On cross-
examination, Ms. Pinkerton admitted that although the defendant had held “odd and end
little things,” he had held no steady employment during the past several years.

             Angelica Pinkerton, Glenda Pinkerton’s daughter, testified that she had
spent “a whole lot” of time around the defendant and that he had been instrumental in
“k[eeping her] spirits up” following a miscarriage. She also stated that she believed the
defendant had “always worked” as a mechanic.

             At the conclusion of the hearing, the trial court determined that the
defendant’s Range II sentence for the Class B felony of rape rendered him ineligible for
probation because the minimum available sentence was 12 years. The court then applied
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five enhancement factors: that the defendant had a previous history of criminal
convictions in addition to those necessary to establish the range; that the defendant
treated the victim with exceptional cruelty; that the offense was committed for the
purpose of gratification; that the defendant abused a position of trust; and that the
defendant had previously failed to comply with conditions of a sentence involving release
into the community, noting that the defendant had thrice had his probationary sentences
revoked. Of these five factors, the court stated that the abuse of trust was “very
significant,” stating that there was “no greater trust than a parent and child relationship”
and “this enhancing factor is probably the most odious and gross.” The court also
considered the defendant’s social history to be “troubling” due to his “lack of clear
employment” and his failure to significantly support any of his six children. The court
found no mitigating factors to be applicable. With respect to the victim impact statement,
the court found that the victim “explain[ed] in vivid detail how this has just destroyed her
life,” and the court was “satisfied that most of what she’s saying can be justified and is
true.” Ultimately imposing a sentence of 20 years’ incarceration, the court concluded its
findings by stating that “this is about as bad, and maybe is the worst of the worst, short of
death, this was about as bad a crime as a rape can be.”

              In this timely appeal, the defendant argues that the trial court erred by
sentencing the defendant to the maximum available sentence. Specifically, the defendant
contends that the trial court misapplied certain enhancement factors and failed to properly
consider mitigating factors, such as the defendant’s expression of remorse. The State
argues that the sentence was appropriate.

               Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to ‘place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

               We need not tarry long over the defendant’s claim because, even assuming
the trial court misapplied or failed to apply certain enhancement or mitigating factors, “a
                                            -4-
trial court’s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended
in 2005.” Bise, 380 S.W.3d at 706. Nothing in the record suggests that the trial court in
this case “wholly departed from” the Sentencing Act. To the contrary, the record reflects
that the trial court considered all relevant principles associated with sentencing, including
the enhancement and mitigating factors, when imposing this within-range sentence.
Thus, we conclude that the record fully supports the 20-year sentence imposed in this
case.

              Accordingly, we affirm the judgment of the trial court.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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