        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 21, 2010

               STATE OF TENNESSEE v. JAMES H. SAINT, JR.

                 Appeal from the Criminal Court for Davidson County
                    No. 2005-C-2234    Cheryl Blackburn, Judge




                  No. M2009-01278-CCA-R3-CD - Filed May 26, 2010


The Defendant, James H. Saint, Jr., was convicted of six counts of aggravated sexual battery,
a Class B felony. See Tenn. Code Ann. § 39-13-504(b). The trial court, applying the 2005
Amendments to our Sentencing Act, originally sentenced the Defendant to serve sixty-six
years in the Department of Correction. On his first appeal, however, we reversed his
sentences and remanded his case for resentencing under the 1989 Act. See State v. Saint,
284 S.W.3d 340, 348 (Tenn. Crim. App. 2008). Following a resentencing hearing, held on
May 14, 2009, the trial court again sentenced the Defendant as a Range I, standard offender
to eleven years for each of his six convictions, those sentences to be served consecutively to
one another, for a total effective sentence of sixty-six years in the Department of Correction.
On this appeal, the Defendant contends that the trial court erred in setting the length of his
sentences and in ordering him to serve them consecutively. After our review, we affirm the
judgments of the trial court.


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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Emma Ray Tennent, Assistant Public Defender, Nashville, Tennessee, for the appellant,
James H. Saint, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                  Factual Background

      In the Defendant’s first appeal, we summarized the facts underlying this case as
follows:

              The [D]efendant’s convictions relate to inappropriate touching of his
      daughter on various occasions between January 2000 and September 2004,
      during which time the victim was between four and eight years of age. At
      trial, the [S]tate’s evidence included the victim’s testimony regarding the
      incidents and the [D]efendant’s videotaped statements, in which he initially
      denied inappropriate contact, then said he did not remember it, but later
      admitted having the victim lie on top of him when he was lying in her bed for
      a bedtime “prayer session” and touching her. The [D]efendant admitted that
      he would become slightly aroused and stated that he wanted to touch and hug
      the victim more and wanted to show his love for the victim. He also admitted
      that the victim had touched his genitals. The [D]efendant testified at trial that
      he did not intentionally touch the victim. He said he had attempted to explain
      during the last interview that he might have rolled over to hug his daughter and
      accidentally touched her. He claimed he had no memory of touching the
      victim, but he acknowledged it might have occurred. He admitted he assisted
      the victim with bathing and undressing when she requested help, but he denied
      the victim’s allegation that he had fondled her while she was bathing. He said
      a note he wrote to the victim during the third interview in which he apologized
      to the victim was an apology for accidental, not intentional, touching and for
      the family’s financial difficulties.

             ....

              The record reflects that the [D]efendant was questioned by the police
      three times, in October 2004, March 2005, and April 2005. During the first
      two interviews, the [D]efendant denied any sexual misconduct with his
      daughter. He said during the first interview that he sometimes assisted his
      daughter with bathing in the evenings and would afterwards lie down, hug, and
      hold hands with her. The [D]efendant said he sometimes fell asleep and that
      the touching might have occurred while he was asleep, although he did not
      remember it. In the second interview, he again denied any inappropriate
      contact with his daughter. He said that if he ever touched her, it was when he
      was asleep or when they were play wrestling. The [D]efendant stated that he

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attended church regularly and did not believe in having contact of a sexual
nature with children.

        The third interview lasted approximately two and one-half hours and
was conducted by two detectives. The third interview took place at the police
station, although the [D]efendant arrived voluntarily and was told he was free
to leave at any time. A videotape of the interview is part of the record. The
detectives included in their discussion with the [D]efendant references to the
Bible, their religious beliefs, and the [D]efendant’s religion. These references
were interspersed in their discussion of: the victim’s allegations; the need for
the [D]efendant to admit and to take responsibility for his actions, both for the
victim’s and his own benefit; the detectives’ disbelief of the [D]efendant’s
previous statement that he did not remember touching the victim; and their
urgings to the [D]efendant to be forthcoming.

       ....

        Approximately one hour into the interview, the [D]efendant began
acknowledging misconduct with the victim, although he claimed to have no
memory of it. At this point, the detectives had made about half of the religious
references. The detectives continued prodding the [D]efendant to admit what
he had done. After about thirty more minutes of discussion that included
religious references, the [D]efendant began to admit in piecemeal fashion his
inappropriate touching of the victim. The [D]efendant continued to provide
detail, without further substantial religious references by the detectives, and
agreed to a summary of his admissions recounted by one of the detectives. He
then agreed to write a letter to the victim and asked questions about what
would happen next. He was allowed to leave at the conclusion of the
interview.

        Detective Kevin Cooley testified at the suppression hearing that he and
Detective Carrigan conducted the third interview of the [D]efendant. He said
the previous two interviews had yielded no admissions and that he “was out of
techniques” going into the third interview. He said that prior to conducting the
third interview, he knew several things about the [D]efendant, including that
the [D]efendant had worked as a laborer at the Law Enforcement Training
Academy for many years before becoming disabled, that the [D]efendant was
having marital troubles, that the [D]efendant attended a Southern Baptist
church, that the [D]efendant had considered suicide recently, and that the
[D]efendant and his family were experiencing financial difficulties. He said

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       that he usually did not talk about religion in interviews with suspects, but in
       this case, the detectives decided to do so because the allegation was that the
       [D]efendant had sexually abused his daughter while praying and lying in bed
       with her. He said Detective Carrigan, not he, was the person who made many
       of the statements about religion. He said that a common interviewing
       technique was “mirroring,” or aligning oneself with a suspect’s personality and
       body posture, and finding common ground to discuss.

              John Pickler testified for the [D]efendant at the suppression hearing that
       he had known the [D]efendant for over twenty years and was familiar with the
       [D]efendant’s beliefs. He said that he was a deacon at the [D]efendant’s
       church and that the [D]efendant attended church three times per week and
       assisted with maintenance tasks at the church. He gave his opinion that the
       [D]efendant was sincere and devout in his religious beliefs.

               The [D]efendant did not testify at the suppression hearing. At trial, he
       testified that he returned to the police station repeatedly for questioning
       “[b]ecause [he] was trying to help them to clear up the case to get back with
       [his] family.” He said that although the questions in the third interview were
       similar to the first two interviews, the detectives were “also going into
       religious belief and other type questions[.]” When asked whether he made the
       admissions in the third interview because of the way in which the detectives
       used religion, he replied, “That and a lot of other questions I imagine.”
State v. Saint, 284 S.W.3d 340, 342-45 (Tenn. Crim. App. 2008) (footnote omitted).

        No testimony was presented at either of the Defendant’s sentencing hearings. After
his second sentencing hearing, the Defendant was again sentenced to an effective sentence
of sixty-six years in the Department of Correction. He now appeals.

                                         Analysis
       The Defendant contends that the trial court erred in setting the length of his sentences
and ordering that they be served consecutively to one another. Before a trial court imposes
a sentence upon a convicted criminal defendant, it must consider (a) the evidence adduced
at the trial and the 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) evidence and information offered by the parties on the
enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s
own behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate review, the trial court is required to

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place on the record its reasons for imposing the specific sentence, including the identification
of the mitigating and enhancement factors found, the specific facts supporting each
enhancement factor found, and the method by which the mitigating and enhancement factors
have been evaluated and balanced in determining the sentence. See State v. Samuels, 44
S.W.3d 489, 492 (Tenn. 2001).

        Upon a challenge to the sentence imposed, 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. See Tenn. Code Ann. § 40-35-401(d). However, 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). 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 the presumption is
applicable, and we may not modify the sentence even if we would have preferred a different
result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991). We will uphold
the sentence imposed by the trial court if (1) the sentence complies with the purposes and
principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately
supported by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden
of showing that a sentence is improper is upon the appealing party. See Tenn. Code Ann. §
40-35-401, Sentencing Commission Comments; Arnett, 49 S.W.3d at 257.

       The presentence report in this case indicates that, at the time of sentencing, the
Defendant was fifty-six years old. He had no prior criminal record. He reported some health
problems, and had been employed by the State of Tennessee as a maintenance worker from
July 1972 to April 2004. He had attended Hume Fogg High School and Nashville State
Technical Community College.

I. Length of Sentence
        The Tennessee legislature recently amended several provisions of the Criminal
Sentencing Reform Act of 1989, those changes becoming effective June 7, 2005. The
Defendant’s conduct occurred prior to that date, and he was sentenced after it. As such, the
Defendant could have elected to be sentenced under the revised Act by executing a waiver
of his ex post facto protections. See Tenn. Pub. Acts ch. 353, § 18. He did not execute such
a waiver, however, and was therefore sentenced under the 2003 codification of the Act. That
codification violated the United States Supreme Court’s requirement that, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The statutory maximum “is not

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the maximum sentence a judge may impose after finding additional facts, but the maximum
he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296,
305-06 (2004). As such, a trial judge applying the 2003 codification of the Act normally may
impose a sentence that exceeds the presumptive sentence based only on the fact of a
defendant’s prior conviction(s) or on other enhancement factors found by the jury or admitted
by a defendant. Id. at 301-04.

       In this case, however, the Defendant waived the requirement that a jury determine
applicable enhancement factors, instead electing to have the trial court determine, beyond a
reasonable doubt, whether any such factors applied. As a Range I, standard offender, the
Defendant faced a sentencing range of eight to twelve years for each of his Class B felony
convictions. See Tenn. Code Ann. § 40-35-112(a)(2). In enhancing the Defendant’s
sentences above the presumptive minimum of eight years, the trial court found: that he had
a previous history of criminal behavior in addition to that necessary to establish the
appropriate range;1 that the “victim of the offense was particularly vulnerable because of age
or physical or mental disability” in that she suffered from attention deficit hyperactivity
disorder and alopecia; and that the Defendant, as the victim’s father, abused a position of
private trust. See Tenn. Code Ann. §§ 40-35-114(2), (5), (16) (2003).

        The Defendant concedes that the trial court correctly applied factors (2) and (16). He
argues that it incorrectly applied factor (5) and incorrectly failed to apply as a mitigating
factor that the Defendant’s “criminal conduct neither caused nor threatened serious bodily
injury.” See Tenn. Code Ann. § 40-35-113(1).

        We need not decide whether the trial court erred in finding that the victim was
particularly vulnerable because of age or physical or mental disability because we conclude
that the two enhancement factors found by the trial court, and conceded by the Defendant,
justify his eleven-year sentences. We note that the trial court gave “great weight” to the
enhancement factor that the Defendant, who was the victim’s father, abused a position of
private trust. Regarding the proposed mitigating factor, based on the facts and circumstances
of this case, we cannot conclude that the trial court erred by failing to apply as a mitigating
factor that the conduct neither caused nor threatened serious bodily injury. Even if
applicable, we conclude that this factor would be entitled to very little weight. The
Defendant is not entitled to relief on this issue.




        1
          Although the presentence report reflects no prior convictions, the trial court specifically found a
history of criminal behavior based upon testimony presented during the Defendant’s trial.

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II. Consecutive Sentencing
        The Defendant next contends that the trial court erred in ordering him to serve his
sentences consecutively to one another. Tennessee Code Annotated section 40-35-115(b)
provides that a trial court may, in its discretion, order sentences to run consecutively if it
finds any one of a number of criteria by a preponderance of the evidence. In this case, the
trial court imposed consecutive sentencing based on its finding of the criterion outlined in
Tennessee Code Annotated section 40-35-115(b)(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 of the
         sexual acts and the extent of the residual, physical and mental damage to the
         victim or victims[.]

        The Defendant is correct that consecutive sentences “should not routinely be imposed
in sexual abuse cases” as a result of section 40-35-115(b)(5). The record, however, supports
the trial court’s application of that section based on the specific aggravating factors outlined
therein: the Defendant is the victim’s father and his crimes went undetected for nearly four
years. We cannot conclude that the trial court erred in ordering the Defendant to serve his
sentences consecutively on this basis.

                                          Conclusion
         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.




                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




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