         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 16, 2001

              STATE OF TENNESSEE v. RYAN JACOB CUMMINS

                 Direct Appeal from the Criminal Court for Sumner County
                       No. CR824-1999     Jane W. Wheatcraft, Judge



                     No. M2000-02226-CCA-R3-CD - Filed July 26, 2001


The defendant appeals from the trial court’s imposition of the maximum sentences within the range.
The State agrees that the trial court erred in applying enhancement factor (7). After review, we
conclude that neither enhancement factor (7) nor (15) is applicable under these facts. Therefore, the
defendant’s sentence is modified to the statutorily required sentences of eight years in the
Department of Correction at 100 percent for the aggravated sexual battery offense and to three years
on each attempted aggravated sexual battery offense.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                                         Modified

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

David Allen Doyle, District Public Defender, for the appellant, Ryan Jacob Cummins.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

       The defendant, Ryan Jacob Cummins, was indicted in October, 1999, by the Sumner County
Grand Jury on one count of aggravated sexual battery, a Class B felony, and on two counts of
attempted aggravated sexual battery, both Class C felonies. See Tenn. Code Ann. § 39-13-504(a)(4),
- 12-101. The defendant entered an Alford Plea, which was accepted by the court on June 29, 2000.
As part of the plea, the defendant and the State agreed that the sentences were to run concurrently.
A sentencing hearing was held on August 11, 2000, to determine the length of the defendant’s
sentence. The defendant received a sentence of twelve years in the Department of Correction on the
aggravated sexual battery charge and six years on each of the attempted aggravated sexual battery
charges. Pursuant to the agreement, the sentences were ordered to run concurrently.

       The defendant appeals only the length of his sentences, claiming that the trial court failed to
sentence him in accordance with the Criminal Sentencing Reform Act of 1989. Specifically, the
defendant contends that the trial court incorrectly applied enhancement factors (7) and (15) in
sentencing him to the maximum sentence within each range. After careful review, we modify the
defendant’s sentence.

                                               Facts

         The defendant was eighteen years old at the time of the offenses. He was unknown to the
victims and their parents until the night of the incident. Although the defendant was invited to a
church function known as “council fire,” he was not invited to spend the night. After the “council
fire,” approximately six adults and ten to fifteen young people were camping in tents on the church
grounds. One tent in which the victims were staying became noisy and very talkative. When the
father of one of the victims became concerned, he went to the tent and discovered the defendant.
The defendant was then advised he could not stay in the tent with the other boys, but was welcome
to stay with the adults. Although the defendant was quarrelsome about sleeping with the adults, he
ultimately went to the adult tent. While in the adult tent, he was very talkative. At one point he
described a situation when he was a counselor at a church and while at an event similar to this one,
he went to sleep and some boys “did things.” When questioned about what he meant by “did
things,” he responded, “You know, touching each other.” Moments later the defendant said he was
having an anxiety attack and then left. The adults then met and decided that because the
circumstances presented were strange, they were going to post guards around the campsite for the
rest of the night.

        The next day, the boys reported what happened in the tent to their parents and eventually to
police. The first victim, age eight, stated that the defendant came into the tent at the campsite where
the four young boys were and touched him on his genital area over his clothing. He also stated that
the defendant tried to touch two other boys, who were awake, on their private parts. The defendant,
at a submission hearing on June 19, 2000, agreed that these facts were true.

        The sentencing hearing was held on August 11, 2000. The father of the victim of the
aggravated sexual battery testified on behalf of the State. He testified about the events that occurred
at the campsite on July 17, 1999, and described how this incident has affected him and his son. The
trial court also referred to a victim impact statement that apparently was submitted on behalf of the
mother of one of the victims. However, no such statement is included in the pre-sentence report or
elsewhere in the record on appeal. Nonetheless, upon reviewing the transcript of the sentencing
hearing, the trial court considered the statement but did not apply it to the existence of any
enhancement factors that he ultimately found.




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         The defendant’s mother testified on the defendant’s behalf. She described the defendant’s
long history of learning disabilities and attention deficit disorder with hyperactivity. She also
described the defendant’s history of being in and out of state custody, several hospitals, and
institutions for his problems. She testified that these placements have not helped him with his
problems. She also described how she has had trouble communicating with him throughout his life.

         Finally, the defendant read an allocution statement during the hearing. In this statement, he
described his troubled childhood and how he was emotionally, physically, and sexually abused while
attending these various placement programs. He expressed a need for help for his problems and his
belief that he could not receive such help in prison. He also claimed he had remorse for the victims
in this case because he had gone through the same thing when he was young.

        After hearing all the testimony at the sentencing hearing, reviewing the pre-sentence report,
detailing the defendant’s unstable background, and considering the victim impact statement, the trial
court found the existence of two enhancement factors and no mitigating factors. The trial court
sentenced the defendant to twelve (12) years on the aggravated sexual battery count, to be served at
100 percent, and to six (6) years on each attempted aggravated sexual battery count. Each sentence
was the maximum within each range and all were ordered to be served concurrent with each other.

                                               Analysis

         The defendant challenges the length of his sentence by asserting that the trial court incorrectly
considered statutory enhancement factors (7) and (15). See Tenn. Code Ann. § 40-35-114(7), (15).
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). However, if the trial court
fails to comply with the statutory directives, there is no presumption of correctness. State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
               (1) [t]he evidence, if any, received at the trial and the sentencing
               hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
               and arguments as to sentencing alternatives; (4) [t]he nature and
               characteristics of the criminal conduct involved; (5) [e]vidence and
               information offered by the parties on the enhancement and mitigating
               factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
               defendant wishes to make in the defendant’s own behalf about
               sentencing.



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         If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be
the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors
do exist, a trial court should start at the minimum sentence, enhance the minimum sentence within
the range for enhancement factors, and then reduce the sentence within the range for the mitigating
factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial
court complies with the purposes and principles of the sentencing act and its findings are supported
by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,
848 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210, 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.
Fletcher, 805 S.W.2d at 789.

        The trial court found that the evidence at the sentencing hearing supported the application
of enhancement factors (7) and (15). Enhancement factor (7) allows sentence enhancement for
offenses “committed to gratify the defendant’s desire for pleasure or excitement.” Tenn. Code Ann.
§ 40-35-114(7). Enhancement factor (15) allows sentence enhancement when the crime is
committed by a defendant while abusing a position of private trust. Tenn. Code Ann. § 40-35-
114(15). The trial court determined that the defendant failed to prove the existence of any
mitigating factors. After this determination, the trial court found that the existence of the
enhancement factors required that the defendant be sentenced to the maximum sentence within each
applicable range.

                                       Enhancement Factor (7)

        The defendant asserts, and the State, in its brief, agrees that the trial court incorrectly applied
enhancement factor (7), which allows sentence enhancement for offenses “committed to gratify the
defendant’s desire for pleasure or excitement.” Tenn. Code Ann. § 40-35-114(7). Our Supreme
Court, in State v. Kissenger, 922 S.W.2d 482, 489 (Tenn. 1996), held that because sexual contact
is a necessary element of an aggravated sexual battery offense and is defined as an “intentional
touching . . . for the purpose of sexual arousal or gratification,” it cannot be used as an enhancement
factor in such cases. Therefore, the trial court incorrectly applied enhancement factor (7) to enhance
the defendant’s sentence.

                                       Enhancement Factor (15)




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        Although the defendant does not contest the application of enhancement factor (15), an abuse
of a position of private trust, we are compelled, in our de novo review, to evaluate the trial court’s
reliance on that factor in sentencing the defendant. See Tenn. Code Ann. § 40-35-114(15). Our
Supreme Court also addressed the application of enhancement factor (15) in Kissenger, 922 S.W.2d
488-89. The court stated:
        [A]pplication of [this] factor requires a finding, first, that defendant occupied a
        position of trust, either public or private. The position of parent, step-parent,
        babysitter, teacher, coach are but a few obvious examples. The determination of the
        existence of a position of trust does not depend on the length or formality of the
        relationship, but upon the nature of the relationship. Thus, the court should look to
        see whether the offender formally or informally stood in a relationship to the victim
        that promoted confidence, reliability, or faith.
Kissinger, 922 S.W.2d at 488.

         In reviewing the record before us, we find no evidence of a relationship between the
defendant and any of the victims. Further, it appears that the defendant was merely a guest at this
campout, not a mentor, chaperon, or counselor. See, e.g., State v. Gutierrez, 5 S.W.3d 641, 645
(Tenn. 1999). Although age may have been a factor in the trial court’s finding of an abuse of private
trust, age would apply in most every aggravated sexual battery case predicated upon the involvement
of a victim under age thirteen, an element of the crime. See Kissinger, 922 S.W.2d at 489, fn 11.
Therefore, in our de novo review, we hold that the trial court incorrectly applied enhancement factor
(15) to enhance the defendant’s sentence.

        In addition, based upon the proof submitted, we decline the State’s request to apply
enhancement factor (6): “personal injuries inflicted upon . . . the victim [were] particularly great.”
See Tenn. Code Ann. § 40-35-114(6). Besides the testimony of the parents of one of the victims,
the record is devoid of any proof, such as expert testimony, that the victim suffered “particularly
great” personal injuries. The State did not pursue this enhancement factor, and the trial court did not,
sua sponte, find the existence of such factor. We also decline, in our de novo review, to apply this
enhancement factor.

                                          CONCLUSION

        After thoroughly reviewing the record before us, we hold that the trial court incorrectly
applied enhancement factors (7) and (15). Accordingly, because we find that no enhancement factors
are present, we modify the defendant’s sentence to the statutorily required presumptive sentence of
eight (8) years in the Department of Correction at 100 percent for the aggravated sexual battery
offense and to three (3) years on each attempted aggravated sexual battery offense. See Tenn. Code
Ann. § 40-35-210(c); State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805
S.W.2d 785, 788 (Tenn. Crim. App. 1991). Each of these sentences are to run concurrent with one
another.




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      _______________________________________
        JOHN EVERETT WILLIAMS, JUDGE




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