                                                                                       12/30/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs December 11, 2019

               STATE OF TENNESSEE v. DUSTIN TODD KING

                 Appeal from the Circuit Court for Marshall County
                  No. 2018-CR-150 Forest A. Durard, Jr., Judge
                     ___________________________________

                          No. M2019-00241-CCA-R3-CD
                      ___________________________________


Dustin Todd King, Defendant, pled guilty to four counts of aggravated statutory rape and
one count of violation of a no-contact order with the trial court to determine the length
and manner of service of the sentences after a sentencing hearing. The trial court
sentenced Defendant to an effective sentence of four years, eleven months and twenty-
nine days, ordering partial consecutive sentencing. As a collateral consequence, the
Defendant was placed on the sex offender registry. On appeal, Defendant challenges his
sentence as excessive. After a review, we determine that the trial court sentenced
Defendant to a sentence within the range for each conviction and followed the proper
sentencing procedure. Accordingly, the judgments of the trial court are affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Donna Hargrove, District Public Defender; Michael J. Collins, Assistant Public Defender,
for the appellant, Dustin Todd King.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Robert J. Carter, District Attorney General; and Andrew
Wright, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                  Factual Background
       On July 23, 2018, Defendant was arrested on warrants issued by the Marshall
County General Sessions Court charging him with four counts of aggravated statutory
rape. According to the affidavits accompanying the warrants, Defendant had “sexual
intercourse with a 17[-]year[-]old female at his residence” on or about June 23, June 29,
June 30, and July 8, 2018. The affidavits indicated that Defendant was 29 years of age
and knew the age of the victim.1 Defendant was granted bail and signed an order
prohibiting him from contacting the victim. Phone records from the victim’s phone
indicate that Defendant called her numerous times the day after his release. A fifth
warrant was issued for one count of violation of bond conditions on August 3, 2018.

        Defendant gave a statement to police on July 30. In that statement, Defendant
admitted that he met the victim at work. They “hung out at work and talked for several
weeks” before they started dating in mid-June. Defendant, who was 29 years of age at
the time, admitted that he knew that the victim was 17 years old. Defendant explained
that “age didn’t matter” and that he had sex with the victim for the first time on June 23
or 24. Defendant admitted that he had sex with the victim again on June 29 and 30.
Defendant explained that he was arrested on July 7 in Williamson County for driving on
a suspended license. The next day, the victim bonded Defendant out of jail. They
returned to Defendant’s house but did not have sex that day. Defendant explained that
they were “safe” about sex and “planned to get married when she turned 18.” Defendant
stated that his arrest did not change their plans to get married.

       The victim also gave a statement to police. She admitted that she and Defendant
were in a relationship and that she had “consensual sex 2 or 3 times” with Defendant.

       In September of 2018, Defendant was indicted by the Marshall County Grand Jury
for four counts of aggravated statutory rape and one count of a violation of a no-contact
order. Defendant pled guilty to all five counts of the indictment on December 5, 2018,
with the trial court to determine the manner and service of the sentence after a sentencing
hearing. At the guilty plea hearing, counsel for the State presented the following as the
factual basis for the plea:

       [O]n or about several days, stemming from June 23rd through July 8th,
       [D]efendant . . . did engage in sexual penetration of a juvenile female, then
       the age of 17 years old. [Defendant] at the time was 29 years old.
       [Defendant’s] date of birth is July 28, 1988. The victim’s date of birth [is]
       9/22/2000.

       1
           This Court does not identify minor victims of sexual abuse.

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              There were four incidents of this, it was by all accounts consensual
       in so much as it was not forcible . . . . [Defendant] was arrested on these
       offenses. On the 23rd day of July he signed a no contact order with the
       juvenile victim. He was given notice he was to have no contact with her.
       He showed up in Court on the 31st day of July, signed an order waiving a
       hearing on that matter thereby he was restrained from having contact with
       the juvenile. However on the 2nd day of August, 2018[,] he called that
       individual 14 times in violation of that order.

        After the State recited the factual basis for the plea, Defendant agreed that the
factual basis for the aggravated statutory rape charges was accurate and admitted that he
had contact with the victim in violation of the order but disputed that he contacted the
victim 14 times. The trial court determined that Defendant was competent to enter the
plea; that there was a factual basis for the plea; and that Defendant was entering the plea
knowingly, voluntarily, and intelligently.

       The trial court held a sentencing hearing. At the hearing, Paula Stejskal testified
that she prepared the presentence report. She attempted to contact Defendant to complete
the report. Defendant did not call her as instructed by the trial court. Ms. Stejskal
explained that without the input from Defendant, she was unable to include information
about Defendant’s background in the report and was unable to assess his likelihood for
recidivism.

       The presentence report indicates that Defendant, in addition to the offenses at
issue herein, had five prior convictions for driving with a suspended license, one
conviction for violation of the driver’s license law, one conviction for resisting arrest, one
conviction for disorderly conduct, one conviction for a traffic offense for failing to have
insurance, one conviction for possession of unlawful drug paraphernalia, one conviction
for a speeding ticket, one conviction for violation of the seat belt law, and one conviction
for violation of the financial responsibility law.

       The victim’s parents testified at the hearing. The victim’s mother read a statement
discussing the “emotional and mental anguish” caused by Defendant’s actions. She
explained that Defendant used marijuana in the victim’s presence and lured her into the
relationship using flattery and the promise of marriage. The victim’s mother recalled that
the victim spent $600 of her own money to bail Defendant out of jail after his arrest for
driving on a suspended license. The victim’s father admitted that he confronted
Defendant at the restaurant where both Defendant and the victim worked. The victim’s
father also testified that Defendant called the victim fourteen times after he signed the no-
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contact order. The victim’s statement was also introduced at the sentencing hearing. The
victim admitted that she had consensual sex with Defendant but that she felt like she
“was doing something wrong.” The victim acknowledged that she felt “manipulated”
and “taken advantage of” by Defendant.

       Defendant’s coworker, Teresa Smith, testified on his behalf. She worked with
both Defendant and the victim at Steak and Shake in Franklin, Tennessee. She described
Defendant as an excellent worker. In his allocution, Defendant apologized to the victim’s
family and the trial court.

       At the conclusion of the hearing, the trial court commented that the “[c]ase [wa]s
actually worse than [the court] anticipated.” The trial court noted that the victim’s
parents were “forgiving.” The trial court determined that several enhancement factors
applied: (1) that Defendant had a previous history of criminal convictions or behavior in
addition to those necessary to establish the appropriate range; (8) Defendant failed to
comply with conditions of a sentence involving release into the community; (23)
Defendant gave or exchanged controlled substances or other illegal drugs with a minor.
T.C.A. §§ 40-35-114(1), (8), (23). As far as mitigating factors, the trial court determined
that the criminal conduct neither caused not threatened serious bodily injury. T.C.A. §
40-35-113(1). However, the trial court refused to give this mitigating factor “a great deal
of weight.” The trial court noted that a Range I, standard offender sentenced to a class E
felony was subject to a range of one to two years. Because of Defendant’s nine prior
misdemeanors and the application of the other two enhancement factors, the trial court
sentenced Defendant to the maximum of two years for each statutory rape conviction and
eleven months, twenty-nine days on the misdemeanor conviction for violating the no-
contact order. With regard to consecutive sentencing, the trial court found that “only two
[of the factors under Tennessee Code Annotated section 40-35-115] [were] arguably
applicable.” The trial court explained that both number two, the defendant is an offender
whose record of criminal activity is extensive, and number five, the defendant is
convicted of two or more statutory offenses involving sexual abuse of a minor, applied to
Defendant. T.C.A. §§ 40-35-115(2), (5). The trial court disagreed with Defendant’s
position that this section only applied to more serious sexual crimes like aggravated rape
or where the victim suffered mental or physical damage. The trial court also noted
Defendant was “on the cusp of what [the court] would consider . . . extensive criminal
history because he just keeps building it.” The trial court utilized Defendant’s nine prior
misdemeanor convictions to support this finding. The trial court considered and denied
alternative sentencing, finding that the “scales are heavily weigh[t]ed in favor of not
granting alternative sentencing.” The trial court found “absolutely . . . no confidence that
[Defendant] would” abide by the terms of probation, pointing to multiple violations in the
presentence report. The trial court was particularly “enraged” by Defendant’s absolute
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disregard for the no-contact order. The trial court found that the interests of society
should be protected from possible future criminal conduct of Defendant and that less
restrictive measures had been applied unsuccessfully to Defendant.

       The trial court sentenced Defendant to two years as a Range I, standard offender
on count one and count two. The trial court ordered these two counts to be served
concurrently. On count three and count four, the trial court sentenced Defendant to two
years as a Range I, standard offender. The trial court ordered counts three and four to be
served concurrently with each other but consecutively to the two-year sentence in counts
one and two. In count five, the trial court sentenced Defendant to eleven months and
twenty-nine days, to be served consecutively to the two-year sentence in counts three and
four “+ any unexpired sentence.” Defendant’s total effective sentence was four years,
eleven months, and twenty-nine days. The trial court also ordered Defendant to have no
contact with the victim and informed Defendant that he would be placed on the sex
offender registry.

       Defendant filed a timely notice of appeal.

                                         Analysis

        Defendant argues that his sentence is “excessive and contrary to the law” and
“[in]appropriate under the facts as stated in the record.” Specifically, Defendant
complains that the trial court ordered him to serve the maximum sentences and that the
sentences were ordered to run consecutively by application of Tennessee Code Annotated
section 40-35-115(b)(5). The State, on the other hand, insists that the trial court did not
abuse its discretion in finding “that the circumstances of these offenses along with other
factors such as [D]efendant’s prior record and failure to cooperate with authorities
justified the sentence.”

                                   A. Sentence Length

        When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
                                           -5-
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard
does not permit an appellate court to substitute its judgment for that of the trial court.
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.

        In reaching its decision, the trial court must consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the result of the validated risk and needs assessment conducted by the
department and contained in the presentence report. See T.C.A. § 40-35-102, -103, -
210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed “should
be no greater than that deserved for the offense committed” and “should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.”
T.C.A. § 40-35-103(2), (4). The weighing of various enhancement and mitigating factors
is within the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). This Court will uphold the sentence “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.” Bise, 380 S.W.3d at 709.

       In sentencing the Defendant for aggravated statutory rape and violation of a no-
contact order, the trial court considered the facts and circumstances of the offense,
commenting that the case was “worse” than “anticipated.” The trial court also reviewed
Defendant’s presentence report, noting Defendant’s prior offenses and the fact that he
had progressed from minor traffic offenses to crimes involving drugs and disorderly
conduct. The trial court also considered “[D]efendant’s physical and mental condition
and social history,” noting that there was not “a great deal” of information in the report
because Defendant “did not cooperate” with the writer of the report. The trial court did
find Defendant to be a “good worker” based on the testimony presented at the sentencing
hearing. The trial court found Defendant to be a Range I, standard offender, which has a
sentencing range between one to two years for the Class E felony of aggravated statutory
rape and up to eleven months and twenty-nine days for the Class A misdemeanor of
violating the no-contact order. T.C.A. §§ 40-35-111(e)(1), -112(a)(5). The trial court
sentenced Defendant to two years on each aggravated statutory rape conviction and
eleven months, twenty-nine days on the violation of the no-contact order conviction.

                                            -6-
        In our review, we determine that the trial court followed the proper sentencing
procedure and sentenced Defendant to a sentence within the range for each conviction.
In other words, the trial court did not abuse its discretion in sentencing Defendant to the
maximum possible sentence for each conviction. Therefore, Defendant is not entitled to
relief.

                                B. Consecutive Sentencing

      Defendant argues that the trial court erred in imposing partially consecutive
sentences. The State argues that the trial court properly exercised its discretion in
imposing partially consecutive sentences.

        In State v. Pollard, 432 S.W.3d 851 (Tenn. 2013), the Tennessee Supreme Court
expanded its holding in Bise to also apply to decisions by trial courts regarding
consecutive sentencing. Id. at 859. This Court must give “deference to the trial court’s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” Id. at 861. “Any one of [the] grounds [listed in
section 40-35-115(b)] is a sufficient basis for the imposition of consecutive sentences.”
Id. at 862 (citing State v. Dickson, 413 S.W.3d 735 (Tenn. 2013)). As relevant to this
case, the trial court may order sentences to run consecutively if it finds by a
preponderance of the evidence that “[t]he defendant is an offender whose record of
criminal activity is extensive” or 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.” T.C.A. § 40-35-115(b)(2), (5).

       Here, the trial court found by a preponderance of the evidence that the two factors
above applied. With regard to extensive criminal activity, the trial court determined that
Defendant was on the “cusp” of extensive history. With regard to conviction of two or
more statutory offense involving sexual abuse of a minor, the trial court determined that
Defendant “played on [the victim’s] vulnerabilities.” In particular, the trial court pointed
to the victim’s own admission that she met Defendant when she came out of a “toxic”
relationship. The trial court commented on Defendant’s marijuana use around the victim
and “five or six . . . occasions of sexual intercourse.” The trial court commented that the
time period of the relationship was “admittedly short” but that the relationship likely
would have continued had it not been “exposed” by Defendant’s arrest and confrontation
about the relationship by the victim’s father. The trial court also took note of the fact that
                                            -7-
the victim admitted that her relationship with Defendant “changed her life.” Based on
these factors, the trial court found that partial consecutive sentencing was appropriate.
The trial court deemed Defendant’s conduct “reprehensible.” Because the trial court
correctly found application of two of the consecutive sentencing factors, the trial court
did not abuse its discretion in ordering consecutive sentencing.

                                       Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.


                                            ____________________________________
                                            TIMOTHY L. EASTER, JUDGE




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