           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                               AT KNOXVILLE
                                                                 December 27, 1999

                         AUGUST 1999 SESSION                     Cecil Crowson, Jr.
                                                                Appellate Court Clerk




STATE OF TENNESSEE,        )
                           )      C.C.A. No. 03C01-9809-CC-00332
     Appellee,             )
                           )      Cocke County
v.                         )
                           )      Honorable Ben W. Hooper, II, Judge
LONNIE STEPHEN DUNN,       )
                           )      (Sentencing)
     Appellant.            )




FOR THE APPELLANT:                FOR THE APPELLEE:

THOMAS V. TESTERMAN               PAUL G. SUMMERS
301 East Broadway                 Attorney General & Reporter
Newport, TN 37821
                                  GEORGIA BLYTHE FELNER
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  AL C. SCHMUTZER, JR.
                                  District Attorney General
                                  125 Court Avenue, Room 301-E
                                  Sevierville, TN 37862

                                  WILLIAM (BROWNLOW) MARSH, II
                                  Assistant District Attorney General
                                  339-A East Main Street
                                  Newport, TN 37821




OPINION FILED: ______________________________


AFFIRMED AS MODIFIED


ALAN E. GLENN, JUDGE
                                      OPINION


      The Cocke County grand jury indicted the defendant, Lonnie Stephen Dunn, on

three counts of statutory rape pursuant to Tenn. Code Ann. § 39-13-506 (1997). On

September 12, 1997, the defendant pleaded guilty to all three counts. After a sentencing

hearing, the trial court sentenced the defendant to two years on each of the three counts

with the sentences on counts one and two to be served concurrently and that on count

three to be served consecutively. The trial court ordered the defendant to serve one year

in the county jail, followed by three years of probation. The defendant timely appealed,

arguing the trial court’s sentence was excessive. Based on our review of this matter, we

affirm the sentence of two years in each count, but modify the judgment of the trial court

to reflect that all sentences will be served concurrently. Additionally, we modify the term

of split confinement to six months.



                                         FACTS

       The victim in this case was a 14-year-old girl with whom the 48-year-old defendant

established a relationship in December 1993. The defendant was a disc jockey at a radio

station where the victim called to make song requests. The defendant and the victim met

and became friends. In October 1994, the defendant and the victim had sexual intercourse

followed by two additional instances of sexual intercourse. The victim became pregnant

with the defendant’s child in May 1995. The child was born February 17, 1996.



                    I. LENGTH AND CONDITIONS OF SENTENCE

       When an appeal challenges the length, range, or manner of service of a sentence,

this court conducts a de novo review with a presumption that the determination of the trial

court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). 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). In the event that the record fails to demonstrate such consideration, review

of the sentence is purely de novo. Id. In conducting a de novo review of a sentence, the


                                            2
court must consider: (a) the evidence, if any, received 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) any statutory mitigating or enhancement factors; (f) any statement that the defendant

made on his own behalf; and (g) the potential or lack of potential for rehabilitation or

treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -210. See State v. Smith, 735 S.W.2d

859, 863 (Tenn. Crim. App. 1987). If appellate review reflects that the trial court properly

considered all relevant factors and its findings of fact are adequately supported by the

record, this Court must affirm the sentence, "even if we would have preferred a different

result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



       In the case sub judice, the trial court found the existence of at least five 1

enhancement factors listed in Tenn. Code Ann. § 40-35-114 (1997):

               (3)   The offense involved more than one (1) victim;

               (4)   A victim of the offense was particularly vulnerable
                     because of age or physical or mental disability,
                     including, but not limited to, a situation where the
                     defendant delivered or sold a controlled substance
                     to a minor within one thousand feet (1,000 ft.) of a
                     public playground, public swimming pool, youth
                     center, video arcade, low income housing project, or
                     church;

               (7)   The offense involved a victim and was committed to
                     gratify the defendant's desire for pleasure or
                     excitement;

               (15) The defendant abused a position of public or private
                    trust, or used a special skill in a manner that
                    significantly facilitated the commission or the
                    fulfillment of the offense; and

               (17) The defendant committed the offense while on
                    school property.



       The State concedes the trial court improperly applied factors (3) and (7), but argues


       1
        The State also argues the trial court properly applied enhancement factor (6), “The
personal injuries inflicted upon or the amount of damage to property sustained by or taken from the
victim was particularly great.” Tenn. Code Ann. § 40-35-114 (6) (1997). W hile this factor was not
discussed by number by the trial court, making it unclear whether it was applied, based upon our
de novo review, we have applied this enhancement factor.



                                                3
the trial court did not consider factors (4) and (17). Finally, the State argues the trial court

correctly applied factor (15). Although the trial court discussed the application of all five

factors, the record does not reflect upon which factors the trial court ultimately based its

decision. For this reason, we will review the application of each factor de novo.



       The defendant argues, and the State concedes, that enhancement factor (3) cannot

be applied. The trial court stated that the child produced by the victim and the defendant

could probably be considered a victim for purposes of enhancement. The Tennessee

Supreme Court has held the term “victim” as used in the statue “is limited in scope to a

person or entity that is injured, killed, had property stolen, or had property destroyed by the

perpetrator of the crime. Moreover, giving the term a generic meaning would deprecate

this factor and render it meaningless.” State v. Raines, 882 S.W.2d 376, 384 (Tenn.

1994). Although the child may suffer because of the circumstances of its birth, the child

may not be considered a victim of the defendant’s crime for enhancement purposes.



       Enhancement factor (4) was discussed but not applied by the trial court. Again, the

defense argues, and the State concedes, that this factor would not have applied. Factor

(4) can be applied in a statutory rape case if the State shows the victim was suffering from

something other than age alone that caused her to be “particularly vulnerable” to the crime.

State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). Enhancement under this factor “relates

more to the natural physical and mental limitations of the victim than merely the victim’s

age.” Adams, 864 S.W.2d at 35. “Particularly vulnerable" in this context means incapable

of resisting, summoning help, or testifying against the perpetrator. Id. The State bears the

burden of proving the victim's limitations rendering him or her particularly vulnerable. As

the State concedes, nothing in the record indicates the victim was particularly vulnerable

in comparison to others her age.



       Based upon our review, we conclude that enhancement factor (7) was properly

applied by the trial court. The circumstances of the crime, including the age difference

between the defendant and the victim, his continued contacts with her, and



                                               4
correspondence to her, support the application of this factor. However, it is not entitled to

great weight.



       Enhancement factor (15) was improperly applied. Application of this factor requires

a finding, first, that the defendant occupied a position of trust, either public or private. The

positions of “parent, stepparent, babysitter, teacher, coach are but a few obvious

examples.” Kissinger, 922 S.W.2d at 488. In this case, the trial court found the defendant

occupied a position of public trust as a radio disc jockey. The existence of a position of

trust does not depend on the length or formality of the relationship, but instead depends

upon the nature of the relationship. Id. “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. If the evidence supports that finding, then the court must

determine whether the position occupied was abused by the commission of the offense.”

Id. Although the defendant and the victim met through the defendant’s job as a disc

jockey, the record does not indicate that the defendant used his position to commit the

offenses in question or whether the position, in fact, could be utilized in that fashion.

Absent such a finding, enhancement factor (15) cannot be applied.



       Although the trial court stated that it could “probably be said” that enhancement

factor (17) applied, the court said that it was not going to “rely particularly” upon this factor.

The State concedes that it would have been erroneous for the trial court to apply this

factor. The victim testified she and the defendant first engaged in sexual intercourse at the

defendant’s home. The record does not indicate where the other two instances occurred.

Nothing in the record indicates any of the three offenses occurred on school property.

Therefore, this factor was not applicable.



       Having reviewed the record de novo, we hold that none of the five enhancement

factors discussed by the trial court were applicable. However, using our power of de novo

review, we hold that the record does support the application of enhancement factor (6):

“The personal injuries inflicted upon or the amount of damage to property sustained by or



                                                5
taken from the victim was particularly great.” Tenn. Code Ann. § 40-35-114 (6) (1997). It

is undisputed that the victim became pregnant and gave birth to a child as a result of the

sexual relations between herself and the defendant. This court has held "an unwanted

pregnancy . . . does . . . come within the definition of personal injury." State v. Smith, 910

S.W.2d 457, 461 (Tenn. Crim. App. 1995) (quoting State v. Jones, 889 S.W.2d 225, 231

(Tenn. Crim. App.), perm. app. denied (Tenn. 1994)). The victim testified she and the

defendant discussed having children when she reached 18 years of age, but the pregnancy

that resulted in the birth of their child was unwanted. Therefore, we hold that factor (6) is

appropriate for enhancement purposes.



       However, in our de novo review of the sentences, we hold that the that the trial court

erred in ordering that two of the sentences be served consecutively. None of the required

criteria are present for the sentences to be served consecutively. Tenn. Code Ann. § 40-

35-115 (1997). Thus, we modify the judgment of the trial court to reflect that the sentences

be served concurrently. Additionally, we hold that although the lengths of the defendant’s

sentences were proper, the defendant cannot be made to serve one year of actual

confinement, followed by three years of probation, as ordered by the trial court. Although

a defendant receiving split confinement ordinarily may be made to serve up to one year in

the local jail, followed by probation, Tenn. Code Ann. § 40-35-306(a), inmates such as this

defendant, with felony sentences of two years or less “shall have the remainder of their

original sentence suspended upon reaching their release eligibility date,” Tenn. Code Ann.

§ 40-35-501(a)(3), unless the district attorney general files a petition requesting denial of

the suspension of the sentence based upon, inter alia, disciplinary infraction occurring

while the defendant was incarcerated. Tenn. Code Ann. § 40-35-501(a)(6). Applying

these statutes, this court has ruled that the period which a defendant is ordered to serve

in split confinement cannot exceed what would otherwise be the release eligibility date.

State v. Glynnon Bradshaw, No. 01C01-9810-CR-00439, Wilson County, 1999 WL

737871, at *2 (Tenn. Crim. App., Knoxville, Sept. 22, 1999). Since the release eligibility

date for a Range I standard offender is 7.2 months, minus sentence credits, this defendant




                                              6
cannot be ordered to serve one year of a two-year sentence, because such a sentence

would exceed his release eligibility date. Thus, as did the court in Bradshaw, we set the

length of split confinement at six months.



       The defendant has also assigned, as error, the fact that the trial court did not utilize

alternative sentencing in this matter. However, since the defendant was convicted of

statutory rape, a crime against the person, he was not eligible for placement in a

community corrections program. Tenn. Code Ann. §§ 40-36-106(a)(2), 39-13-506.



       The defendant has argued, as well, that he should have been granted probation for

his entire sentence, rather than having split confinement imposed. The burden was on the

defendant to establish that he was a suitable candidate for probation. Tenn. Code. Ann.

§ 40-35-303(b). To meet this burden, he must show that probation will “subserve the ends

of justice and the best interest of both the public and the defendant.” State v. Bingham,

910 S.W.2d 448, 456 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995) (quoting State

v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). According to Bingham, the

sentencing court should utilize the following considerations in assessing a defendant’s

suitability for probation:

               (1)   “the nature and [circumstances] of the criminal
                     conduct involved,” Tenn. Code Ann. § 40-35-
                     210(b)(4) (1990 Repl.);

               (2)   the defendant’s potential or lack of potential for
                     rehabilitation, including the risk that during the
                     period of probation the defendant will commit
                     another crime, Tenn. Code Ann. § 40-35-103(5)
                     (1990 Repl.);

               (3)   whether a sentence of full probation would unduly
                     depreciate the seriousness of the offense, Tenn.
                     Code Ann. § 40-35-103(1)(B) (1990 Repl.); and

               (4)   whether a sentence other than full probation would
                     provide an effective deterrent to others likely to
                     commit similar crimes, Tenn. Code Ann. § 40-35-
                     103(1)(B) (1990 Repl.).

910 S.W.2d at 456.




                                              7
       The trial court may deny probation when the circumstances of the offense are “of

such a nature to outweigh all other factors which might favor probation.” State v. Fletcher,

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the case of this defendant, in addition

to the approximate thirty-four-year age difference between the defendant and the victim,

he persisted in having contact with the victim, sending cards and letters to her. These

contacts with the victim continued even after the defendant was charged with three counts

of statutory rape. In view of this, we conclude that the defendant has failed to carry his

burden of showing that he is entitled to total probation, and affirm, as modified, the trial

court’s ordering that a portion of his sentence be served in confinement.



                                      CONCLUSION

       We affirm the trial court’s sentencing the defendant to two years in each count, but

modify the judgment of the trial court to reflect that the sentences be served concurrently

and that the period of actual confinement be six months. This matter is remanded to the

trial court for entry of a judgment in accord with this opinion.




                                           ________________________________________
                                           ALAN E. GLENN, JUDGE

CONCUR:




____________________________________
JOSEPH M. TIPTON, JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




                                              8
