         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 19, 2002

                    STATE OF TENNESSEE v. JERRY McGAHA

                       Appeal from the Criminal Court for Cocke County
                            No. 8195    Ben W. Hooper, II, Judge



                                  No. E2001-01547-CCA-R3-CD
                                          April 3, 2002

The Defendant, Jerry McGaha, pled guilty, pursuant to a plea agreement, to nine counts of rape of
a child. After a sentencing hearing, the trial court sentenced the Defendant to twenty-five years for
each count with counts one through seven running concurrently with each other and counts eight and
nine running concurrently with each other. However, counts eight and nine were to be served
consecutively to counts one through seven. On appeal the Defendant contends that the trial court
erred in sentencing him to twenty-five (25) years on each count and in ordering counts eight and nine
to be served consecutively to counts one through seven. We modify the sentences imposed by the
trial court.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

Edward C. Miller, Public Defender, Dandridge, Tennessee, for the appellant, Jerry McGaha.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Alfred C. Schmutzer, Jr.; and Ronald C. Newcomb, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                              OPINION

        The statement of facts presented by the State at the plea hearing revealed that, on at least nine
different occasions during the summer of 1999 and January of 2000, the thirty-four-year old
Defendant forced the victim, his ten year old cousin, to perform oral sex on him and digitally
penetrated the victim’s anus. The Defendant threatened to kill the victim and the victim’s family if
he told anyone of the abuse. Once discovered, the Defendant confessed to the crimes.
        The Defendant pleaded guilty to nine counts of rape of a child. The plea agreement provided
that the sentences for counts one through seven would run concurrently with one another and that
the sentences for counts eight and nine would run concurrently with one another. The trial court was
to determine the length of the sentences and whether the sentences for counts eight and nine should
run consecutively to the sentences for counts one through seven.

                                           SENTENCING

        The Defendant contends that the trial court erred in applying two enhancement factors in
sentencing the Defendant. When an accused challenges the length, range, or manner of service of
a sentence, this Court has a duty to conduct a de novo review of the sentence 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that 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. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        Rape of a child is a Class A felony. See Tenn. Code Ann. § 39-13-522(b). A Range I
sentence for a Class A felony is not less than 15 nor more than 25 years. See id. § 40-35-112(a)(1).
The presumptive sentence for a Class A felony is the midpoint of the range if there are no
enhancement or mitigating factors. See id. § 40-35-210(c). If there are enhancement and mitigating
factors, the court must start at the midpoint of the range, enhance the sentence within the range as
appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate
for the mitigating factors. See id. § 40-35-210(c).

       The presentence report reflects that at the time of sentencing the Defendant was a thirty-four
year old, divorced male with one child. The Defendant did not complete high school, but has



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maintained a steady employment history. The Defendant also reported in the presentence report that
he was sexually abused by a relative when he was approximately the same age as the victim.

       In sentencing the Defendant, the trial court applied two enhancement factors:
       (1) the victim of the offense was particularly vulnerable because of age or physical
       or mental disability. . .
       (2) the Defendant abused a position of public or private trust. . .

See Tenn. Code Ann. § 40-35-114 (4) and (15). The trial court noted as mitigating factors the
Defendant’s lack of a criminal record, his good work record and the fact that he accepted
responsibility for his actions. See Tenn. Code Ann. § 40-35-113(13).

        The Defendant argues that there is no evidence in the record that the victim was “particularly
vulnerable” because of his age, and correctly asserts that proof of the victim’s age alone is not
sufficient to establish “particular vulnerability.” In State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993),
our supreme court held that trial courts may enhance the sentence of one convicted of rape of a child
based upon the vulnerability of the victim due to age or disability, however, proof of age alone will
not suffice as proof of that vulnerability. Based on Adams, we are required to agree with the
Defendant. The record is devoid of any evidence concerning the victim’s vulnerability other than
the victim’s age. Accordingly, we must conclude that the trial court erred in applying enhancement
factor (4) to the Defendant’s conviction.

        However, the trial court properly applied enhancement factor (15) in finding that the
Defendant abused a position of private trust in committing the offense. See Tenn. Code Ann. § 40-
35-114(15). The Defendant was the victim’s cousin, and convinced the victim’s grandmother to
allow the victim to spend the night with him on the night the abuse began. The Defendant used his
position as a family member to spend time alone with the victim. Accordingly, we find that the
record supports the trial court’s application of enhancement factor (15).

       However, due to the misapplication of enhancement factor (4), we are constrained to modify
the Defendant’s sentence. After a review of the record, presentence report and the transcript of the
sentencing hearing, we modify the sentence to twenty-three (23) years on each count.

                                CONSECUTIVE SENTENCING

      The Defendant also challenges the trial court’s imposition of consecutive sentences.
Tennessee Code Annotated section 40-35-115(b)(5) authorizes consecutive sentences when
      [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 the
      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 victim[.]



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        In imposing consecutive sentences, the trial court acknowledged the mental damage suffered
by the victim because of the Defendant’s abuse. Valerie Tucker, the victim’s case manager at
Cherokee Health Systems, testified at the sentencing hearing that as a result of the abuse, the victim
suffers from post-traumatic stress disorder and attention deficit disorder. Both disorders manifest
themselves in behavioral and anger problems. The victim’s own statement revealed nightmares and
flashbacks. Ms. Tucker described the victim’s mental difficulties as long term, if not permanent.

       While the trial court did not mention the aggravating factors arising from the relationship
between the Defendant and the victim, the time span of the undetected sexual abuse, or the nature
or scope of the sexual acts, we readily conclude that all the factors support the trial court’s
imposition of consecutive sentences.

        Accordingly, we find no error in the trial court’s imposition of consecutive sentences. This
issue is without merit. The Defendant’s sentence is modified to twenty-three (23) years for each
count. Pursuant to the plea agreement, counts one through seven are to be served concurrently with
one another, and counts eight and nine are to be served concurrently with one another. However,
counts eight and nine are to be served consecutively to counts one through seven for an effective
sentence of forty-six (46) years.

                                          CONCLUSION

        For the foregoing reasons, we modify the sentence imposed by the trial court from twenty-
five (25) years on each count to twenty-three (23) years on each count with counts eight and nine to
run consecutively to counts one through seven for an effective sentence of forty-six (46) years.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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