              IN THE TENNESSEE COURT OF CRIMINAL APPEALS
                           AT NASHVILLE
                        Assigned on Briefs December 18, 2012

              STATE OF TENNESSEE v. TAVARIA MERRITT

                  Appeal from the Criminal Court for Wilson County
                    No. 10-CR-18     David Earl Durham, Judge


               No. M2012-00829-CCA-R3-CD - Filed December 10, 2013




CAMILLE R. MCMULLEN, J.,    concurring in part and dissenting in part.

       I join the majority in all respects with the exception of sentencing. While I agree that
the effective 225-year sentence imposed by the trial court is excessive, I disagree that an
effective fifty-year sentence complies with the purposes and principles of our Sentencing
Act.

       It bears repeating at the outset that the Defendant pleaded guilty to nine counts of rape
of a child against three boys, who were ten and eleven years old. The Defendant was the
youth pastor at the victims’ church and had been friends with the victims for a year. The
victims reported that the Defendant had penetrated them orally and anally on separate
occasions over a period of five months. The “[Defendant] perform[ed] oral sex on [the ten-
year-old] victim two separate times, the [ten-year-old] victim perform[ed] oral sex on
[Defendant] one time, and [the Defendant] plac[ed] his penis inside the [ten-year-old
victim’s] anal cavity.” The other ten-year-old victim “perform[ed] oral sex on [the
Defendant] and [the Defendant] plac[ed] his penis inside [his] anal cavity.” The eleven-year-
old victim “perform[ed] oral sex on [the Defendant] two separate times, and [the Defendant]
plac[ed] his penis inside the victims’ anal cavity.” The eleven-year-old victim also stated that
the Defendant “had tried to put his hands down [the victim’s] pants on five or more
occasions. On one occasion, [the victim] stated that while he was spending the night with
[the Defendant], [the victim] awoke to [the Defendant] performing oral sex ‘down there.’”
The victim was scheduled to undergo counseling as a result of the abuse. Finally, a
supplemental report noted that the Defendant had sexually abused a fourth child.

       At the sentencing hearing, the court announced that no previous convictions were


                                               1
disclosed; therefore, the Defendant’s sentences for each count would be twenty-five years
at one hundred percent. The defense stipulated that the only issue for the court was whether
to order concurrent or consecutive sentencing.

       Within the presentence report, the eleven-year-old victim wrote:

       I get really mad when I have to talk about what went on. I don’t like bringing
       the subject up. I did NOT like what he did to me. I get so angry sometimes
       when I think about it. I would never think in a million years that a Minister
       would try or would rape a kid. I thought that the church would be the safest
       place in the world. You wouldn’t get disrespected or touched[.] It’s sad that
       this happens. I want to be a pastor when I grow up [and] I want people to trust
       me, but I w[o]n[’]t do what he did.

      The defense offered no proof at the sentencing hearing. The State relied upon its
motion for consecutive sentencing, which asserted Tennessee Code Annotated Section 40-
35-115(b)(5) applied. The trial court found that Tennessee Code Annotated Section 40-35-
115(b)(5) applied and that in order to protect society and not lessen the crime, it ordered all
convictions to be served consecutively.

       In his appeal to this Court, the Defendant does not challenge the trial court’s
application of any mitigating or enhancement factors for his twenty-five year sentences on
each conviction. Indeed, in 2007, the Tennessee legislature added subsection (b)(2) to
section 39-13-522 of the Tennessee Code to mandate a minimum of twenty-five years’
incarceration for a rape of a child conviction. The Defendant also does not contest the trial
court’s reliance on Tennessee Code Annotated Section 40-35-115(b)(5) to impose
consecutive sentencing. This subsection was a codification of the Tennessee Supreme Court
case State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). See T.C.A. § 40-35-115 (2010),
Sentencing Comm’n Cmts. In Taylor, the supreme court upheld the defendant’s effective
sentence of forty-eight-years for two counts of aggravated rape against his seven-year-old
daughter. In considering whether consecutive sentencing was proper, the court held that
“consecutive sentences should not routinely be imposed in sexual abuse cases, or in other
cases, and that the aggregate maximum of consecutive terms must be reasonably related to
the severity of the offenses involved.” Taylor, 739 S.W.2d at 230. This court has held that
“[t]he purpose behind the legislative enactment of Tennessee Code Annotated section
39-13-523 is to enhance the punishment of those who commit rape and/or aggravated rape
more than once.” State v. Johnson, 970 S.W.2d 500, 505 (Tenn. Crim. App. 1996). Based
on the plain language of these statutes, the legislature has clearly expressed its intent to
impose severe punishment for these types of offenses, and this court has rarely reduced a
sentence where consecutive sentencing was justified.

                                              2
        One of the stated purposes of our Sentencing Act is that “[e]very defendant shall be
punished by the imposition of a sentence justly deserved in relation to the seriousness of the
offense[.]” T.C.A. § 40-35-102(1) (2010). Here, I do not believe that a sentence of fifty
years adequately reflects the facts and circumstances of this case. In David Lamar Hayes,
relied upon by the majority, the trial court imposed an effective 220-year sentence in a case
involving only one victim and where the abuse occurred over a period of ten months.
Relying on these facts, this Court reduced an otherwise justified consecutive sentence to
sixty-six years imprisonment. Unlike David Lamar Hayes, the Defendant abused at least
three victims over a period of five months. In my view, an effective sentence of seventy-five
years is more in line with the sentences imposed by Tennessee courts for cases involving
similar facts. See, e.g., State v. Ricky Lamont Brigman, No. M2002-00461-CCA-R3-CD,
2003 WL 21391762, at *9 (Tenn. Crim. App. Jun 17, 2003), perm. app. denied (Tenn. 2003)
(upholding an effective ninety-one-year sentence based upon thirteen convictions for various
sexual offenses involving six minor victims over a period of seven-years and finding that the
trial court’s ruling was fashioned to consider each of the victims of these crimes); State v.
Joseph E. Suggs, No. M1999-02136-CCA-R3-CD, 2000 WL 1521481, at * 8 (Tenn. Crim.
App. Oct 4, 2000), perm. app. denied (Tenn. 2001) (upholding an effective seventy-five-year
sentence in which defendant pleaded guilty to three counts of child rape of his minor cousin
occurring over an unknown period of time), perm. app. denied (Tenn. 2001); State v.
Osborne, 251 S.W.3d 1 (Tenn. Crim. App. Aug. 28, 2007), perm. app. denied (Tenn. 2008)
(upholding an effective sentence of 172 years’ imprisonment in a case involving various
sexual offenses and multiple victims); State v. Hunter, 926 S.W.2d 744 (Tenn. Crim. App.
1995) (upholding an effective sentence of one-hundred-years’ imprisonment for six counts
of aggravated rape and three counts of rape committed against the defendant’s two daughters
throughout the course of their childhood), perm. app. denied (Tenn. 1996); State v. Nance,
393 S.W.3d 212 (Tenn. Crim. App. 2012) (upholding an aggregate sentence of sixty-four-
years’ incarceration where the defendant was convicted of six counts of rape of a child and
one count of aggravated sexual battery against one minor victim over a seven-month period),
perm. app. denied (Tenn. 2012). For these reasons, I respectfully dissent from the sentence
imposed by the majority.




                                           __________________________________
                                           CAMILLE R. MCMULLEN




                                              3
