         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 18, 2001

            STATE OF TENNESSEE v. DENNIS HARRY JOHNSON

                      Appeal from the Circuit Court for Bedford County
                               No. 14586   Lee Russell, Judge


                    No. M2000-03047-CCA-R3-CD - Filed October 12, 2001


The defendant, Dennis Harry Johnson, pled guilty to two counts of sexual exploitation of a minor.
The trial court imposed a sentence of one year and six months on each count, to be served
consecutively, for an effective sentence of three years. In this appeal of right, the defendant argues
that the trial court erred by denying his request for alternative sentencing and by ordering the
sentences to be served consecutively. The judgments are affirmed.

                  Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Dennis Harry Johnson.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
W. Michael McCown, District Attorney General; and Michael Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         The defendant was indicted on two counts of sexual exploitation of a minor. The first count
was based upon the defendant’s possession of sexually explicit videotapes. Discovered in 1999, the
videotapes had been produced in 1990. The defendant and a male victim, approximately twelve
years old, were each shown with exposed, erect penises. The two placed doll clothing on their erect
penises and manipulated their penises to background music. The second count was based upon the
defendant’s possession of photographs and computer discs containing images of nude minors of both
sexes, some of whom were engaging in sexual acts. After the state denied an application for pre-
trial diversion, the defendant pled guilty to each count and the trial court sentenced the defendant to
two consecutive one-year-and-six-month periods of incarceration.

      At his sentencing hearing, the defendant explained that he had downloaded many of the
computer images only because he wanted to complete his collection of the full set of photographs.
He testified that the boy in the videos was a neighbor with whom he had a close relationship and
with whose care he was occasionally charged. The defendant acknowledged that he initially failed
to see any harm in making the videos or downloading the pictures, but that he had later come to
realize the wrongfulness of his actions. He asked the trial court to consider him an especially
mitigated offender and to consider an alternative sentence because he had no criminal record and had
maintained steady employment throughout his life.

        The trial court first determined that the defendant failed to qualify as an especially mitigated
offender because there were enhancing factors applicable to both charges. The trial court concluded
that the defendant was a standard Range I offender and applied the following enhancement factors
to each conviction:

        (1) The defendant has a previous history of criminal convictions or criminal behavior
        in addition to those necessary to establish the appropriate range;
        (4) The victim was particularly vulnerable because of age or physical or mental
        disability; and
        (7) The offense involved a victim and was committed to gratify a desire for pleasure
        or excitement.

See Tenn. Code Ann. § 40-35-114. The trial court also applied enhancement factor (15), that the
defendant either abused a public or private trust or used a special skill to facilitate commission of
the crime, to the first count. Enhancement factor (3), that the offense involved more than one victim,
was applied to the second count.

       The trial court applied two mitigating factors: (1) that the defendant’s conduct neither caused
nor threatened serious bodily injury; and (13) that the defendant had generally maintained
employment during his life and that a psychological examination established that the defendant’s
primary sexual interest was in adult females.. See Tenn. Code Ann. § 40-35-113.

       In fixing the sentences at one year and six months for each offense, the trial court first
enhanced each term to two years and then applied mitigating factors to reduce the lengths of the
sentences. The trial court ordered the sentences to be served consecutively because the defendant
had been convicted of two or more statutory offenses involving sexual abuse of a minor:

       Here there is extensive sexual exploitation of a number of minors, of both sexes. The
       sheer volume of photographs suggests collection over an extended period of time,
       and the relationship between the defendant and his victim on the videos was that of
       neighbors and that of babysitter and child.

The trial court also denied the defendant’s request for alternative sentencing, ruling that the
presumption in favor of alternative sentencing had been overcome by the troublesome nature of the
circumstances surrounding the offenses, the defendant’s lack of potential for rehabilitation, and the
defendant’s lack of candor.


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        Initially, the defendant complains that the trial court erred by denying an alternative sentence
and by ordering consecutive terms. When there is a challenge to the length, range, or manner of
service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that
the determinations made by the trial court 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial
court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the
presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The Sentencing Commission Comments provide that the burden is on the defendant to show the
impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        In calculating the sentence for a Class B, C, D, or E felony conviction, the presumptive
sentence is the minimum in the range if there are no enhancement or mitigating factors. Tenn. Code
Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the
sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A
sentence involving both enhancement and mitigating factors requires an assignment of relative
weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-
210(e). The sentence must then be reduced within the range by any weight assigned to the mitigating
factors present. Id.

        If the trial court's findings of fact are adequately supported by the record, this court may not
modify the sentence even if it would have preferred a different result. State v. Fletcher, 805 S.W.2d
785 (Tenn. Crim. App. 1991). The presumption of correctness is, however, "conditioned upon the
affirmative showing in the record that the trial court considered sentencing principles and relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial court must
place on the record the reasons for the sentence. State v. Jones, 883 S.W.2d 597 (Tenn. 1994).

        Especially mitigated or standard offenders convicted of Class C, D, or E felonies are, of
course, presumed to be favorable candidates "for alternative sentencing options in the absence of
evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none
of which apply here, probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b) (Supp. 2000).

        Among the factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the deterrent effect upon


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and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
The nature and circumstances of the offenses may often be so egregious as to preclude the grant of
probation. See State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981). A lack of candor may
also militate against a grant of probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).

        Here, the trial court specifically considered each of the appropriate factors. The court found
as particularly troublesome the circumstances surrounding the offenses: the extreme youth of the
victims and the defendant’s involvement in an organization dedicated to the dissemination of child
pornography. Further, the trial court found that the defendant’s lack of remorse and his lack of
candor during the sentencing hearing suggested that he lacked the potential for rehabilitation. Taking
all of these factors together, the trial court properly concluded that the presumption in favor of
alternative sentencing had been overcome. In our view, the evidence in the record does not
preponderate against the determinations of the trial court.

       Next, the defendant contends that the sentences should be served concurrently. Prior to the
enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the
imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn.
1976). In that case, our supreme court ruled that aggravating circumstances must be present before
placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987),
the court established an additional category for those defendants convicted of two or more statutory
offenses involving sexual abuse of minors. There were, however, additional words of caution:

                  [C]onsecutive sentences should not routinely be imposed . . . and . .
                  . the aggregate maximum of consecutive terms must be reasonably
                  related to the severity of the offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary
language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in
essence, the codification of the holdings in Gray and Taylor; consecutive sentences may be imposed
in the discretion of the trial court only upon a determination that one or more of the following
criteria1 exist:

                  (1) The defendant is a professional criminal who has knowingly
                  devoted himself to criminal acts as a major source of livelihood;
                  (2) The defendant is an offender whose record of criminal activity is
                  extensive;
                  (3) The defendant is a dangerous mentally abnormal person so
                  declared by a competent psychiatrist who concludes as a result of an
                  investigation prior to sentencing that the defendant's criminal conduct


         1
          The first four criteria are fo und in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Com mission Comme nts.

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               has been characterized by a pattern of repetitive or compulsive
               behavior with heedless indifference to consequences;
               (4) The defendant is a dangerous offender whose behavior indicates
               little or no regard for human life, and no hesitation about committing
               a crime in which the risk to human life is high;
               (5) The 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 damage to the victim
               or victims; or
               (6) The defendant is sentenced for an offense committed while on
               probation;
               (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

        The length of the sentence, when consecutive in nature, must be "justly deserved in relation
to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that
deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456
(Tenn. 1999).

        Here, the trial court found that the defendant fell within category (b)(5) and required the
sentences to be served consecutively. The defendant argues that, because there was no proof that
he published or otherwise made available to others the downloaded photographs, (b)(5) does not
apply. We disagree. The record confirms that the trial court did not rule that (b)(5) applied in this
case because the defendant published the photographs. Rather, the finding was based upon the
relationship between the defendant and the victim in the videos and the extended period of time that
the defendant had been involved in procuring child pornography. In our view, the record supports
these findings. The state produced evidence at the sentencing hearing which showed that the
defendant did, in fact, distribute child pornography by posting pictures on the internet over an
extended period of time. Moreover, the defendant advocated the dissemination of child pornography
through an internet web site and espoused a belief that certain rules of that site should be amended
or at least suspended for a day to allow the posting of pictures depicting nude prepubescent males
with erections. In summary, the trial court did not abuse its discretion by ordering that the
defendant’s sentences be served consecutively.

       Accordingly, the judgments are affirmed.


                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE


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