            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                     Assigned on Briefs January 8, 2008

                   STATE OF TENNESSEE v. JEFFREY LEE TURNER

                  Appeal from the Humboldt Law (Circuit) Court for Gibson County
                               No. H 8319  Clayburn Peeples, Judge


                            No. W2007-01364-CCA-R3-CD - Filed May 8, 2008


The Appellant, Jeffrey Lee Turner, appeals the sentencing decision of the Humboldt Law Court for
Gibson County. Turner pled guilty to one count of aggravated statutory rape, fifteen counts of
statutory rape, and two counts of contributing to the delinquency of a minor. After a sentencing
hearing, the trial court sentenced Turner to an effective term of eleven years, eleven months, and
twenty-eight days. On appeal, Turner challenges the length of his sentences, specifically alleging
(1) that the trial court misapplied enhancement and mitigating factors and (2) that the trial court erred
in imposing partial consecutive sentences. After a thorough review of the record and the briefs of
the parties, we affirm.

  Tenn. R. App. P. 3; Judgment of the Humboldt Law Court for Gibson County Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C. MCLIN ,
JJ., joined.

Mike Mosier, Jackson, Tennessee, for the Appellant, Jeffrey Lee Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Garry G. Brown, District Attorney General, for the Appellee, State of Tennessee.

                                                        OPINION

                                  Factual Background & Procedural History

        On October 10, 2006, a Gibson County grand jury returned an eighteen-count indictment
charging the Appellant with one count of aggravated statutory rape, a Class D felony; fifteen counts
of statutory rape, Class E felonies; and two counts of contributing to delinquency of a minor, Class
A misdemeanors. The indictment alleged that the sexual offenses involved two minor male victims,
M.T. and R.G.,1 and that the offenses occurred on numerous dates from December of 2004 to July
of 2006. The misdemeanor counts for contributing to delinquency of a minor corresponded to the


        1
            It is the policy of this court to refer to minor victims of sexual crimes by their initials.
Appellant’s purchase of alcohol for victim M.T. and another minor, J.E., on July 15, 2006. On
January 26, 2007, the Appellant waived his right to jury trial and entered “open” pleas of guilty to
all of the indicted offenses.

        The transcript of the guilty plea hearing is not included in the record on appeal, but the facts
established at the sentencing hearing and by the presentence investigative report, are as follows. The
Appellant was between thirty-two and thirty-four years old when he committed the offenses during
the time period from December of 2004 to July of 2006, and the minor victims, M.T. and R.G., were
between the ages of sixteen and seventeen. During this period, the Appellant was a tax preparer for
the parents of M.T., and he also worked in their travel agency as an office manager.

        The presentence report reflects that a police investigation was initiated based upon the
complaint of M.T.’s mother that the Appellant had engaged in inappropriate contact with her son.
M.T. informed police that the Appellant had performed oral sex on him on at least three occasions
between January and April of 2006 at his parents’ business. The Appellant admitted to police that
he performed oral sex on M.T. “during tax season” at the business location on more than one
occasion, that he additionally performed oral sex on M.T. at another Gibson County address, and that
on another occasion in July of 2006 at a residence under construction in Medina. Another victim,
R.G., informed police that the Appellant had fondled him and performed oral sex on him at the
aforementioned business location during the week of December 20, 2004, and January 5, 2005. R.G.
additionally stated that the Appellant performed oral sex on him at least five or six times between
January and April of 2005, and again between January and April of 2006 at the business location.
The Appellant further admitted that on July 15, 2006, he purchased two cases of “Bud Light” beer
and two six-packs of “Smirnoff Triple Black,” for $55, and delivered the alcoholic beverages to the
minor, J.E., behind the convenience store where it was purchased. The Appellant stated that J.E.
paid him $21 for the alcoholic beverages. The Appellant additionally stated that he purchased the
alcoholic beverages for both J.E. and M.T.

       At the sentencing hearing held on May 29, 2007, the Appellant testified that the offenses
“were consensual incidents.” He recalled that the sexual incidents with R.G. occurred first, and he
claimed:

       [R.G.] had came onto me [sic] and . . . the state of mind I was in, I was just not in the
       right state of mind and allowed it to continue and then the incidents with [M.T.]
       occurred due to the fact that [M.T.] and [R.G.] were also messing with each other and
       that allowed me to be able to mess with [M.T.].

The Appellant claimed to have been sexually abused by his stepfather between the ages of eight and
fifteen years old. On cross-examination, the Appellant denied that he was blaming anyone for the
crimes he committed, but he stated that he “felt that [his own molestation] may have had an impact
on how [he] lived [his] lifestyle.” The Appellant acknowledged that he was recently arrested in
Madison County for possession of methamphetamine with intent to sell or deliver, possession of a



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Schedule III drug with intent to sell or deliver, possession of a Schedule IV drug with intent to sell
or deliver, and possession of drug paraphernalia.

        At the conclusion of the sentencing hearing, the trial court imposed the maximum sentence
of four years for the aggravated statutory rape conviction, the maximum sentence of two years for
each of the fifteen convictions for statutory rape, and the maximum sentence of eleven months and
twenty-nine days for each of the two misdemeanor convictions for contributing to the delinquency
of a minor. The trial court ordered that the sentences for counts one, two, six, seven, seventeen, and
eighteen run consecutively, with the remaining counts running concurrently, resulting in an aggregate
sentence of eleven years, eleven months, and twenty-nine days.

                                               Analysis

         The Appellant challenges the length of the sentence imposed by the trial court, specifically
its application of enhancement and mitigating factors and its decision to impose consecutive
sentencing. When a defendant challenges the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d)
(Supp. 2005). The burden is on the appealing party to show that the sentencing is improper. T.C.A.
§ 40-35-401, Sentencing Comm’n Comments. This means that if the trial court followed the
statutory sentencing procedure, made findings of facts that are adequately supported in the record,
and gave due consideration and proper weight to the factors and principles that are relevant to
sentencing, we may not disturb the sentence even if a different result was preferred. State v. Ross,
49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing a defendant or to the determinations made by the trial court that are
predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994). In conducting a de novo review of a sentence, we must consider: (1) any
evidence received at the trial and/or sentencing hearing; (2) the presentence report; (3) the principles
of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
offense; (5) any mitigating or enhancement factors; (6) any statements made by the defendant on his
or her own behalf; and (7) the potential for rehabilitation or treatment. T.C.A. § 40-35-210 (Supp.
2005); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

I. Enhancement and Mitigating Factors

        The Appellant contends that the trial court misapplied enhancement and mitigating factors
to increase each of his sentences to the maximum term within the applicable ranges. Counsel for the
Appellant conceded at sentencing that enhancement factor (14), “[t]he defendant abused a position
of public or private trust[,]” was applicable. See T.C.A. § 40-35-114(14) (Supp. 2005). However,
the Appellant now contends that, in addition to considering this single factor, the trial court
erroneously applied two additional factors, specifically enhancement factor (3), “[t]he offense
involved more than one (1) victim,” and enhancement factor (4), “[a] victim of the offense was
particularly vulnerable because of age or physical or mental disability.” See id. at (3), (4). He

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additionally contends that the trial court erred in rejecting all of his proposed mitigating factors
except for factor (1), “[t]he defendant’s criminal conduct neither caused nor threatened serious
bodily injury.” See T.C.A. § 40-35-113(1) (Supp. 2005). The Appellant submits that the rejected
factors, “[s]ubstantial grounds exist tending to excuse or justify the defendant’s criminal conduct,
though failing to establish a defense,” see id. at (3), and “[t]he defendant was suffering from a mental
or physical condition that significantly reduced the defendant’s culpability for the offense,” see id.
at (8), should have been applied due to his own alleged sexual abuse as a child.

       The State argues that the Appellant has waived his claims on appeal for failure to include the
guilty plea hearing transcript in the record. Alternatively, the State argues that the record
demonstrates that the trial court determined that the single enhancement factor significantly
outweighed the single mitigating factor and that it appropriately enhanced each of the Appellant’s
convictions to the statutory maximum for each conviction.

        Aggravated statutory rape constitutes a Class D felony. T.C.A. § 39-13-506(d)(3) (2006).
For a Range I, Standard Offender, the sentence range for this offense is two to four years. The trial
court imposed a four-year sentence for this conviction of the Appellant. Statutory rape constitutes
a Class E felony. T.C.A. § 39-13-506(c). For a Range I, Standard Offender, the sentence range for
this offense is one to two years. The trial court imposed sentences of two years for each of these
convictions. For each of the two convictions for contributing to the delinquency of a minor, a Class
A misdemeanor, see T.C.A. § 37-1-156 (2006), the trial court imposed a sentence of eleven months
and twenty-nine days in the county jail.2

        At the conclusion of the sentencing hearing, the trial court stated:

                 Let me start with mitigating factors. You have listed three, the first of which
        is that the [Appellant’s] conduct neither caused nor threatened serious bodily injury.
        I think the State would concede that that mitigating factor does, in fact, exist under
        the current definitions of serious bodily injury.

                I do not think that substantial grounds exist to excuse or justify or explain the
        [Appellant’s] actions, nor do I believe that they were caused by the fact that he was
        suffering from any mental or physical condition that significantly reduced his

        2
            This court has held that

        [t]he misdemeanant, unlike the felon, is not entitled to the presumption of a minimum sentence. . .
        . However, in determining the percentage of the sentence to be served in actual confinement, the
        court must consider enhancement and mitigating factors as well as the purposes and principles of the
        Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d). The court should not impose such
        percentages arbitrarily. T.C.A. § 40-35-302(d).

State v. Creasy, 885 S.W.2d 829, 832-33 (Tenn. Crim. App. 1994) (citations omitted).




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         capability or capacity for following the law, so I find the single mitigating factor in
         this case.

                  With regard to aggravating factors, my reading of the law, [Defense Counsel],
         indicates to me that you are correct with regard to your analysis about more than one
         victim; however, I do believe that the [Appellant] did, in fact, abuse a position of
         trust when he committed these offenses. I do believe that I am required to consider
         the fact that there was more than one victim; that more than one victim is involved
         in the sentencing today. I do believe that I am required to consider the ages of the
         victims. Even through these are crimes that are age specific, there are differences
         among age differences, and so I find that the aggravating factor of abuse of position
         of trust exist [sic].

                 I find that due to the nature of the way in which that position of trust was
         violated repeatedly over many, many months, that that aggravating factor
         significantly outweighs the mitigating factor in this case.

Notwithstanding the Appellant’s reliance on the somewhat ambiguous statement of the trial court
regarding multiple victims and the age of the victims, the record clearly demonstrates that the trial
court found only one enhancement factor applicable in this case: “[t]he defendant abused a position
of public or private trust . . . .” See T.C.A. § 40-35-114(14). Moreover, the trial court clearly found
that this enhancement factor significantly outweighed the single mitigating factor found by the court.

        Although only one enhancement factor was applicable in this case, the weight assigned to
that factor “is left to the discretion of the trial court so 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.
Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001) (citing State v. Moss, 727 S.W.2d 229, 238
(Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); T.C.A. § 40-35-210
Sentencing Comm’n Comments). It is unclear from the record whether the Appellant was sentenced
under the 1989 Sentencing Act as it existed in 2004 or under the post-2005 amendments.3
Nonetheless, our supreme court has held that, under the 1989 Sentencing Act, upon the finding of
even one enhancement factor, “the statute affords to the judge discretion to choose an appropriate
sentence anywhere within the statutory range.” State v. Gomez, 163 S.W.3d 632, 659 (Tenn. 2005).
Additionally, effective June 7, 2005, the Tennessee General Assembly, in response to the United
States Supreme Court case of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), amended
Tennessee Code Annotated sections 40-35-102, -210, and -401 to reflect the advisory nature of
enhancement factors. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 6, 8. The 2005 amendment deleted
appellate review of the weighing of the enhancement and mitigating factors, as it rendered the
enhancement and mitigating factors merely advisory, not binding, on the trial courts. Accordingly,
irrespective of which sentencing provision was employed for each of the Appellant’s convictions,


         3
          Six of the Appellant’s sexual battery convictions were committed prior to June 7, 2005, and ten sexual battery
convictions (including the single aggravated sexual battery conviction) were committed after June 7, 2005.

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the record demonstrates proper consideration of the enhancement and mitigating factors by the trial
court. The Appellant concedes that the only enhancement factor applied in this case was applicable.
We conclude that the trial court’s enhancement to the maximum number of years within the range
for each conviction was justified. Accordingly, the Appellant’s argument is without merit.

II. Consecutive Sentencing

        The Appellant argues that “the consecutive sentences ordered by the trial court were
excessive when considering all the facts and circumstances of this case . . . .” The State responds
by noting that the trial court based its decision regarding consecutive sentencing on the following
statutory criteria:

       (b) The court may order sentences to run consecutively if the court finds by a
       preponderance of the evidence that:
               ....
               (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 or the sexual acts and
       the extent of the residual, physical and mental damage to the victim or victims.

T.C.A. § 40-35-115(b)(5) (Supp. 2005). The State contends that the record supports the trial court’s
decision on this issue. We agree.

        The Appellant, presumably referring in part to the holding of State v. Wilkerson, 905 S.W.2d
933 (Tenn. 1995), asserts: “In order to impose consecutive sentences . . . proof must also show that
the terms imposed are reasonably related to the severity of the offenses committed and are necessary
in order to protect the public from further criminal acts by the [Appellant].” This argument is
misplaced. In State v. Lane, a case in which consecutive sentencing was imposed pursuant to
Tennessee Code Annotated section 40-35-115(b)(5), our supreme court clarified the limits of the
Wilkerson holding as follows:

               As previously noted, the Sentencing Act sets forth the categories of offenders
       eligible for consecutive sentencing. See Tenn. Code Ann. § 40-35-115. The Act also
       includes general principles of sentencing which trial courts must consider in
       determining the length of a defendant’s sentence. The relevant provisions are that
       the length of the sentence must be “justly deserved in relation to the seriousness of
       the offense”[] and “should be no greater than that deserved for the offense
       committed.”[]

               In Wilkerson, the defendant satisfied the statutory definition of a “dangerous
       offender” under Tenn. Code Ann. § 40-35-115 (b)(4).[] Id. at 937-38. However, the
       facts of that case did not support the consecutive confinement imposed.[] We thus


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       concluded that satisfying the definition of subsection 115(b)(4), was not, in and of
       itself, “sufficient to sustain consecutive sentences.” Id. at 938. Under the Sentencing
       Act, there must also exist “particular facts” which show that consecutive sentencing
       is “reasonably related to the severity of the offenses” and serves to protect society
       “from further . . . aggravated criminal conduct.” Id. In order to limit the use of the
       “dangerous offender” category to cases where such “particular facts” exist, this Court
       held that sentencing courts must make specific findings regarding the severity of the
       offenses and the necessity to protect society before ordering consecutive sentencing
       under Tenn. Code Ann. § 40-35-115(b)(4). Id. at 939.

                The requirement that a court make these specific findings before imposing a
       consecutive sentence on a “dangerous offender” arises from the fact that of all of the
       categories for consecutive sentencing, the dangerous offender category is the most
       subjective and hardest to apply. Section 40-35-115(b)(5) on the other hand, is
       illustrative of the self-contained limits found in the other categories for consecutive
       sentencing. Under subsection 115(b)(5), before the perpetrator of more than one
       sexual offense against a minor can be exposed to consecutive sentencing, the court
       must consider the previously discussed aggravating circumstances. Thus, by
       definition, Tenn. Code Ann. § 40-35-115(b)(5) is limited to those defendants whose
       conduct justifies extended confinement under the principles of the Sentencing Act.
       Accordingly, the Court of Criminal Appeals correctly held that Wilkerson is limited
       to cases involving consecutive sentencing of “dangerous offenders.” Consequently,
       the trial court did not err in ordering consecutive sentencing in this case.

3 S.W.3d 456, 460-61 (Tenn. 1999) (footnotes omitted).

       The trial court made the following findings in support of its decision to impose consecutive
sentences:

              Clearly, we’re talking about two or more statutory offenses involving sexual
       abuse of minors.

               As I read the law, the statute, I am required to inquire into the nature of the
       relationship, which we have already – a determination is one of trust. I’m required
       to determine whether or not manipulation existed, which did. I’m required to inquire
       into the nature of the relationship – inquire into the nature of the time period involved
       and I’m required to inquire into the extent of residual mental damage to the victims.
       I’m required to inquire into the nature and scope of the sexual acts involved.

               I do not find from the [Appellant]’s testimony that an indication that he is
       accepting responsibility. I thought I heard him actually, in at least an indirect if not
       direct way, blame one of these victims. I think the term he used was “[c]oming onto



                                                 -7-
       him,” and the [Appellant] claimed that he should be responsible for not saying no,
       in effect. That was my interpretation of what he said.
               ....
               I do find . . . that consecutive sentences are appropriate in this case.

        In M.T.’s victim impact statement, he attested that “ever since [the offenses] happened . . .
[he could] not trust anyone” and that he has “lots of anger, and also anxiety attacks, loss of self
esteem[,]” and nightmares. M.T. stated that the Appellant bought him cigarettes and “dip” in
exchange for his secrecy regarding the sexual activity. M.T. further stated that he had to change
schools because it hurt him “to know that other kids knew what had happened to [him].” M.T. also
reported that he started seeing a psychiatrist and taking medication to help cope with his anger and
anxiety. M.T.’s parents, in their statements, corroborated these characterizations of M.T.’s mental
anguish, and they additionally stated that they “trusted [the Appellant] with [their] business affairs
and even the welfare of the children he molested.” In the victim impact statement by R.G.’s father,
he stated that R.G. appeared to be ashamed and sad and that his grades in school had suffered. He
further described the behavior of the Appellant, who was a friend of the family, as deceitful, in that
the Appellant “performed oral sex [on the victim] during the work day” while other family members
and customers were in the building. The Appellant’s psychosexual evaluation included within the
presentence report provided that the Appellant “had multiple excuses for his behavior,” that there
were “clear indications of a tendency to justify the current sexual behavior,” and that the Appellant
tended to view himself as the victim in the current situation. The Appellant’s testimony at
sentencing also supports the trial court’s finding that he attempted to divert blame for his own
conduct to one of the victims.

        After review, we conclude that the record supports the findings of the trial court on this issue
and that the trial court followed the statutory sentencing procedure and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing. Accordingly, we do not
disturb the trial court’s decision to impose consecutive sentencing. The Appellant’s argument is
without merit.
                                           CONCLUSION

       Based upon the foregoing, the judgments of the Humboldt Law Court for Gibson County are
affirmed.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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