          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE        FILED
                            JUNE 1999 SESSION
                                                      July 19, 1999

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9804-CR-00160
      Appellee,                     )
                                    )    DAVIDSON COUNTY
VS.                                 )
                                    )    HON. CHERYL BLACKBURN,
DONNIE DEAN ROLIN,                  )    JUDGE
                                    )
      Appellant.                    )    (Statutory Rape and Incest)



FOR THE APPELLANT:                       FOR THE APPELLEE:

V. MICHAEL FOX                           PAUL G. SUMMERS
315 Deaderick Street                     Attorney General and Reporter
First American Center, 20th Floor
Nashville, TN 37238-2075                 LUCIAN D. GEISE
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         VICTOR S. JOHNSON III
                                         District Attorney General

                                         ROGER D. MOORE
                                         Assistant District Attorney General
                                         Washington Square
                                         222-2nd Avenue North, Suite 500
                                         Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                             OPINION



       Defendant pled guilty to two counts of statutory rape, Class E felonies, and

three counts of incest, Class C felonies, with no agreement as to sentencing. The

trial court sentenced defendant to two years for each count of statutory rape and

five years for each count of incest with all counts running consecutively for an

effective sentence of nineteen years.                  In this appeal as of right, defendant

challenges only the imposition of consecutive sentencing. A thorough review of the

record reveals no error by the trial court. Therefore, the judgment of the trial court

is AFFIRMED.




                                        I. BACKGROUND



       Defendant gained custody of his minor daughter, C.R.,1 in December 1995

and brought her to live with him and his ex-wife in Pulaski, Tennessee. From

January to October 1996, defendant engaged in sexual acts (penile-vaginal, penile-

anal, and oral) with C.R. two to three times a week.



       Defendant took C.R. out of school in February 1996. She accompanied him

on his long-haul trucking trips until May 1996. Then, defendant and C.R. moved out

of the Pulaski home and went to live with relatives in the Nashville area. In August

1996, they set up a household of their own where C.R. was responsible for all the

household chores: cooking, cleaning, laundry, etc. Defendant never re-enrolled

C.R. in school, and from August until October when C.R. ran away, defendant

effectively treated her as his wife.




       A Davidson County grand jury indicted defendant on seven counts of


       1
           It is this Court’s policy not to reveal the names of minor sexual abuse victims.

                                                   2
statutory rape, eight counts of incest, and one count of rape. Pursuant to an

agreement with the state, defendant pled guilty to two counts of statutory rape,

Class E felonies, and three counts of incest, Class C felonies. All other counts were

dismissed. Sentencing was left to the trial court.




                           II. SENTENCING HEARING



       The trial court conducted a sentencing hearing to decide the appropriate

length and manner of service of the sentences.          After reviewing the proper

sentencing considerations, enhancement and mitigating factors, all testimony and

evidence presented, and arguments by counsel, the trial court imposed two-year

sentences for each count of statutory rape and five-year sentences for each count

of incest.



       Next, the trial court reviewed the considerations relating to alternative and

consecutive sentencing and determined incarceration and the imposition of

consecutive sentences to be appropriate. It denied alternative sentencing and

ordered all defendant’s sentences to run consecutively, resulting in a nineteen-year

prison sentence.



       Defendant neither challenges the length of each sentence nor the denial of

alternative sentencing. Further, defendant concedes the applicability of Tenn. Code

Ann. § 40-35-115(b)(5) which provides that a court may order sentences to run

consecutively if it finds by a preponderance of the evidence that:

       [t]he 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.




                                         3
Nevertheless, defendant asserts that the total sentence is not reasonably related

to the severity of the offenses.




                           III. STANDARD OF REVIEW



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

If our review reflects that the trial court followed the statutory sentencing procedure,

imposed a lawful sentence after giving due consideration and proper weight to the

factors and principles set out under sentencing law, and the trial court’s findings of

fact are adequately supported by the record, then we may not modify the sentence

even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d

789 (Tenn. Crim. App. 1991).



       Our review reveals that the trial court conducted a thorough analysis of the

appropriate sentencing considerations, enhancement and mitigating factors, and the

evidence in its decision to impose an effective nineteen-year sentence.




                        IV. CONSECUTIVE SENTENCING




                                           4
        Once a trial court determines that a defendant is statutorily eligible for

consecutive sentencing, see Tenn. Code Ann. § 40-35-115(b), it should also

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles of

sentencing. Tenn. Code Ann. § 40-35-115 Sentencing Commission Comments;

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).2 Once again, the trial court

in this case complied with these statutory and precedential mandates.



        The trial court first determined that consecutive sentences were appropriate

for this defendant given the applicability of Tenn. Code Ann. § 40-35-115(b)(5)

(consecutive sentencing appropriate for a defendant convicted of two or more

statutory offenses involving sexual abuse of a minor). The court also expressly

stated that:

        “I’m also considering State v. Wilkerson, which indicates I have to
        consider the aggregate term and whether or not it is necessary to
        protect the public from further serious conduct by the defendant.

        Given the nature of these, the fact that he has just recently gotten into
        treatment, I’m going to find that each one of these convictions is going
        to run consecutive to another, for a total effective sentence of 19
        years.”3 (Emphasis added).


        This statement clearly indicates that the trial court considered the Wilkerson

factors in its imposition of an aggregate sentence of nineteen years. The court’s

findings sufficiently support the imposition of the consecutive sentences. Defendant

has failed to show that the sentence was improper.



                                       CONCLUSION




        2
         We recognize that the applicability of the Wilkerson factors to categories other than
dangerous offenders has not been fully resolved. See State v. David Keith Lane, C.C.A. No.
03C01-9607-CC-00259, Bradley County (Tenn. Crim. App. filed June 18, 1997, at Knoxville),
perm. to app. granted (Tenn. February 2, 1998).
        3
         The record reflects that defendant’s first counseling session was on February 10, 1997,
six days after the sentencing hearing was originally scheduled.

                                                5
     Based upon the foregoing, the judgment of the trial court is AFFIRMED.




                                           ____________________________
                                            JOE G. RILEY, JUDGE




CONCUR:




____________________________
JOSEPH M. TIPTON, JUDGE




____________________________
ALAN E. GLENN, JUDGE




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