        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE             FILED
                      FEBRUARY 1999 SESSION
                                                     April 29, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,         )
                            ) C.C.A. No. 01C01-9805-CC-00233
     Appellee,              )
                            ) Williamson County
V.                          )
                            ) Honorable Timothy L. Easter, Judge
                            )
JOHNELL HOSKINS,            ) (Statutory Rape)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

JAMES V. MONDELLI              JOHN KNOX WALKUP
5115 Maryland Way              Attorney General & Reporter
Brentwood, TN 37027
                               TIMOTHY BEHAN
                               Assistant Attorney General
                               425 Fifth Avenue North
                               Nashville, TN 37243

                               RONALD L. DAVIS
                               District Attorney General

                               DEREK SMITH
                               Assistant District Attorney General
                               P.O. Box 937
                               Franklin, TN 37065-0937




OPINION FILED: ___________________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                    OPINION

       The defendant, Johnell Hoskins, pleaded guilty to two counts of statutory

rape and was sentenced to two years in the Tennessee Department of

Correction for each count, with his sentences to run concurrently. The defendant

appeals, arguing that these sentences are excessive and that the trial court erred

in denying his request for alternative sentencing. We AFFIRM the judgment of

the trial court.



                                  BACKGROUND

       On October 18, 1996, the defendant, who was forty-one years of age,

took his two victims, ages fifteen and sixteen, to the Dixon Motel and engaged

them in group sex. The older victim lived with her mother in the defendant’s

home at the time of the offense. The younger victim was spending the night with

the defendant’s daughter. By all accounts, including the defendant’s own

testimony, the defendant was a close friend and a father figure to both girls. To

illustrate, the state introduced a letter from the defendant to the younger victim in

which he told her he loved her like his own daughter and that she should feel like

his home was her own.



       At the defendant’s sentencing hearing, the younger victim testified that the

defendant gave her Valium and alcohol prior to taking the girls to the Motel.

Although, by the nature of the charges, consent was not an issue, the testifying

victim also indicated that she felt coerced to have sex with the defendant. In

addition, she contradicted the defendant’s assertion that this was an isolated

incident. She testified, rather, that the defendant had inappropriately touched

both girls on previous occasions and had continued to sexually molest the girl

who lived in his home on several occasions after the instant offenses. Finally,

she testified that she has been extremely depressed, even suicidal, since the

incident.




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      The defendant testified that his wife had committed suicide in February

1996. In September 1996, his daughter had been involved in a serious

automobile accident and his best friend’s husband had died. According to the

defendant, these events had caused him to suffer severe depression, such that

he had been seeing a psychiatrist and taking Prozac and other medications at

the time of his offenses. Several defense witnesses also confirmed that the

defendant had become severely depressed after his wife’s death and continued

to suffer from depression at the time of his offenses.



      Finally, as relevant here, the state introduced the defendant’s history of

criminal behavior, which included a twenty-year old conviction for driving under

the influence, an expunged conviction for receiving and concealing, a worthless

check charge, and an harassment charge.



      Based on the above testimony, the trial court found applicable one

enhancement factor–that “[t]he defendant has a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate range.” Tenn. Code Ann. § 40-35-114(1). Finding no mitigating

factors, the trial court sentenced the defendant to the range I maximum of two

years confinement on each count, with the sentences to be served concurrently.

The defendant now challenges these sentences.



                            STANDARD OF REVIEW

       When an accused challenges the length or 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 made by the court from which the

appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our



                                        -3-
review reflects that the trial court properly considered all relevant factors and its

findings of fact are adequately supported in the record, then this Court may not

disturb the sentence even if we would have preferred a different result. See

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The appellant

carries the burden of showing that the sentence is improper. See Tenn. Code

Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d

391, 395 (Tenn. Crim. App. 1996).



                                  SENTENCING FACTORS

        The appellant first argues that the trial court erred in failing to find

applicable two mitigating factors: (1) that the defendant committed his offenses

during a period of severe depression caused by his late wife’s suicide, see Tenn.

Code Ann. § 40-35-113(8); and (2) that the defendant has a “fairly exemplary

record.”1



        Several defense witnesses testified that the defendant had been severely

depressed since his wife’s suicide. As a result of this depression, the defendant

testified that he was taking Prozac and other medications at the time of his

offense and that he had been seeing a psychiatrist. Nevertheless, the record

contains no evidence that this depression “significantly reduced the defendant’s

culpability for the offense.” Tenn. Code Ann. § 40-35-113(8). “That is, no causal

link has been established between the ailment and the offense.” State v. Mark

W. Rawlings, No. 02C01-9612-CR-00475 (Tenn. Crim. App. filed Feb. 10, 1998,

at Jackson); see also State v. Katherine Irene Warren, No.

01C01-9710-CC-00455 (Tenn. Crim. App. filed, Oct. 28, 1998, at Nashville)

(rejecting application of mitigating factor (8) for lack of causal proof); State v.

Treva Strickland, No. 03C01-9611-CC-00427 (Tenn. Crim. App. filed Dec. 16,

1997, at Knoxville) (rejecting application of factor (8) to defendant who had


        1
           In his brief to this Court, the defendant does not state what mitigating factors he alleges
should have applied, but refers to them merely as those “so prolifically testified to [sic]” and those
“urged upon the trial court.” The factors listed above are those that he appeared to argue before
the trial cour t.

                                                  -4-
undergone mental health treatment and was taking Prozac and Valium, but

“offered no proof regarding how her alleged mental condition significantly

reduced her culpability for the offenses”). Therefore, on the record before this

Court, we cannot conclude that the trial court erred in rejecting this proposed

factor.



          As to the defendant’s “fairly exemplary record,” the trial court found that

the defendant’s record of criminal convictions or behavior was sufficient to

support enhancement of his sentence. The defendant does not challenge this

finding, and we note no error. It is inconceivable, then, how this Court could be

expected to conclude that this same record merits mitigation. This issue is

without merit.



          Upon our de novo review, we also note at least one additional

enhancement factor that, although neither argued by the state nor found by the

trial court, is clearly supported by the evidence. The cumulative and

uncontroverted evidence shows that the defendant had a close, even quasi-

familial, relationship with the victims. His exploiting that relationship to seduce

the victims clearly amounts to an abuse of private trust. See Tenn. Code Ann. §

40-35-114(15). Thus, we find enhancement factor (15) applicable and entitled to

significant weight.



                             ALTERNATIVE SENTENCING

          The defendant next asserts that the trial court erred in denying his request

for alternative sentencing. Although the defendant is presumed to be a favorable

candidate for alternative sentencing, see Tenn. Code Ann. § 40-35-102; the trial

court found this presumption rebutted, concluding that “confinement is necessary

to avoid depreciating the seriousness of the offense” and “to provide an effective

deterrence to others likely to commit similar offenses,” Tenn. Code Ann. § 40-35-

103(1)(B).



                                            -5-
       The defendant attacks these findings, arguing that neither is supported by

the record. With regard to deterrence, the defendant notes that the state

presented no evidence indicating a special need for deterrence relative to the

jurisdiction. It is generally true that the need for deterrence cannot be

conclusionary only, but must be supported by evidence in record indicating that

the sentence imposed would have a deterrent effect within the jurisdiction. See

State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). However, this

Court has held that some offenses, including certain sexual offenses against

minors, are per se deterrable. See, e.g., State v. Damon W. Bryd, No. 01C01-

9503-CR-00083 (Tenn. Crim. App. filed Aug. 1, 1996, at Nashville) (“[C]ertain

criminal offenses, by their very nature, need no extrinsic proof to establish the

deterrent value of punishment.”) (citing State v. Charles A. Pinkham, Jr., No.

02C01-9502-CR-00040 (Tenn. Crim. App. filed May 24, 1996, at Jackson); State

v. Millsaps, 920 S.W.2d 267, 271 (Tenn. Crim. App. 1995)). “[T]he need for

incarceration of offenders in these cases is self-evident.” State v. Joseph J.

Brooks, No. 03C01-9706-CC-00220 (Tenn. Crim. App. filed Sept. 10, 1998, at

Knoxville).



       None of the cited cases, however, involved statutory rape. While it might

seem appropriate to extend this precedent under the circumstance of the present

case, to denominate an offense as deterrable “per se” necessarily precludes

consideration of the circumstances of the offense as committed. We decline to

extend the above line of cases to hold that confinement is warranted based on

deterrence in every instance of statutory rape. Therefore, because the record

contains no specific evidence supporting a need for deterrence, we conclude

that confinement is not justified on this basis in the present case.



       Nevertheless, the trial court’s finding that confinement is necessary to

avoid depreciating the seriousness of his offenses is well-founded. For this

factor to warrant a sentence of confinement, “‘the circumstances of the offense



                                         -6-
as committed must be especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree,’ and the nature

of the offense must outweigh all factors favoring a sentence other than

confinement.” Bingham, 910 S.W.2d at 455 (quoting State v. Hartley, 818

S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). The defendant argues that

although “the trial court’s concerns about the offense are valid, . . . [these

concerns] are applicable to every case involving statutory rape.” We

emphatically disagree. Within the range of activities constituting statutory rape,

one can clearly distinguish the defendant’s predatory actions from a fully

consensual sexual relationship between persons merely of disparate age. The

defendant was an authority figure and family friend who used his influence to

coerce two vulnerable teenage girls, one of whom lived in his home, to engage in

group sex after providing them with drugs and alcohol. The testifying victim

stated that the defendant threatened the girls to prevent them from reporting the

incident. She also testified that the defendant had inappropriately touched both

girls previously and continued to molest one after the present offenses. Finally,

she related that the incident had so severely affected her that she had

contemplated suicide. Under these circumstances, we have no difficulty

agreeing with the trial court that the defendant’s offenses, as committed, were

especially shocking and reprehensible.



                                   CONCLUSION

       The trial court’s findings relative to mitigating factors and alterative

sentencing are without error. Although we find one additional enhancement

factor, the defendant has already received the maximum sentence. Thus, the

sentence of the trial court is AFFIRMED.




                                                ____________________________
                                                JOHN EVERETT W ILLIAMS, Judge



                                          -7-
CONCUR:




____________________________
DAVID G. HAYES, Judge




_____________________________
JAMES CURWOOD WITT, JR., Judge




                                 -8-
