           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                 Assigned on Briefs December 4, 2007

                         STATE OF TENNESSEE v. TONY HOOVER

                      Direct Appeal from the Criminal Court for Shelby County
                          Nos. 05-04655, 05-04656 W. Mark Ward, Judge




                        No. W2007-00326-CCA-R3-CD - Filed January 7, 2008




The Defendant, Tony Hoover, pled guilty to two counts of rape and two counts of incest for actions
against two of his daughters. The trial court sentenced him to four years on each incest count, and
ten and one-half years on each rape count. The incest sentences were run concurrently with the rape
convictions, but the rape sentences were run consecutively, for an effective sentence of twenty-one
years. The Defendant challenges the trial court’s decision to run his sentences consecutively. Upon
review, we affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and DAVID G. HAYES, J., joined.

Michelle Lynn (at trial) and Garland Ergüden (on appeal), Memphis, Tennessee, for the Appellant,
Tony Hoover.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David
H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; Scot Bearup,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                                       OPINION
                                                        I. Facts

        In indictment number 05-04655, the Defendant was charged with one count of incest and one
count of rape of his daughter, A.M.1 In indictment number 05-04656, the Defendant was charged
with one count of incest and one count of rape of his daughter, J.M. The Defendant pled guilty to
these charges with the court to set the sentence.

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           As is the custom of this Court, we will use initials to refer to the two minor victims in this case.
        At the sentencing hearing, the following evidence was presented: A.M., sixteen at the time
of the hearing, testified she was fourteen when she was raped by her father. She lived with her
mother at that time and visited her father for Thanksgiving, along with her two sisters and her
brother. A.M. testified that she was sitting in a back room watching television when the Defendant
came in and repeatedly asked her to have sex with him. Eventually, because A.M. grew tired of his
asking, she had sex with the Defendant. A.M. stated that this was not the first time she had sex with
the Defendant and that all the previous instances also occurred at his residence. A.M. testified that
the previous instances involved digital penetration “a lot” and oral sex “several” times. A.M. also
described a card game where she, her half-sister, T.H., and the Defendant all took off their clothes
throughout the game. By the end, they were all naked. All of these acts occurred over a period of
“five or six” years.

        A.M. testified that she did not tell anyone about these acts because she was scared of the
Defendant. In describing how this affected her, A.M. stated that she no longer trusted men and did
not like to be around men or talk with them.

        J.M., fifteen at the time of the hearing, testified that she was thirteen at the time of these acts.
The Defendant, her father, touched her vagina, chest, and buttocks when she visited him in
Memphis. J.M. stated that he digitally penetrated her vagina “many times,” he performed oral sex
on her, and he also engaged her in penile intercourse more than three times. J.M. testified that the
Defendant used a condom “[a] few times.”

        Angela Matthews, the victims’ mother, testified that she allowed her two oldest children,
A.M. and J.M., to visit their father, the Defendant, in Memphis. Prior to 2004, she had no worries
about the Defendant and their children. She described her relationship with the Defendant as “really
good” and said he was one of her best friends. After Thanksgiving 2004, her daughters came to her
and described their problems with the Defendant. Matthews stated that, prior to learning of the
situation, she witnessed J.M.’s behavior change drastically: J.M. had been outgoing and no longer
was, and her grades and behavior both declined. A.M. asked not to go to Memphis anymore, but she
would not explain why.

        Since Matthews discovered what was happening, J.M. has “gotten better.” Although she has
attempted suicide three times, counseling has allowed her to move past her issues. A.M.’s attitude
has also improved, but she still has nightmares that involve seeing the Defendant’s face. Matthews
stated that both victims have attended counseling, which has improved them overall. On cross-
examination, Matthews stated that the last time they went to counseling was a year prior.

        Josephine Anderson, the mother of the Defendant’s daughter, T.H., who was fifteen at the
time of these crimes, testified that T.H. was frequently at the Defendant’s house, often when A.M.
and J.M. were also there. One time, T.H. arrived home with a “hicky,” which she attributed to the
Defendant. Anderson, however, thought nothing of it. Some time later, she received a phone call
from Matthews, after which she, her husband, and her sister-in-law discussed the situation with T.H.


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T.H. broke down and told Anderson “everything,” so Anderson called the police. Anderson said
that, since the incidents, T.H.’s grades have declined, and she has become rebellious. Anderson
stated that she no longer trusts most men around her daughter.

        T.H. testified that she visited her father, the Defendant, when her sisters, A.M. and J.M., were
at his house. She recalled a card game where players who lost were required to remove an article
of clothing. She, her two sisters, and the Defendant all played; they all ultimately removed all their
clothes. After the card game, the Defendant asked T.H. to touch his penis, which she did. T.H.
stated that the Defendant touched her vagina more than once with his fingers, and once with his
mouth. Additionally, the Defendant touched her breasts and buttocks, and he gave her a “hicky.”
She stated she did not initially tell her mother because she was scared. Ultimately, she told her
mother, step-father, and aunt after Matthews called her mother and explained the situation. On
cross-examination, T.H. stated that both her sisters were in the room when the Defendant touched
her after the card game.

        After hearing argument, the trial court determined the Defendant was a Range I offender.
The court found the Defendant had a previous history of criminal convictions, a D.U.I., but it placed
little weight on that factor. The court, however, put some weight on the fact that T.H. alleged
additional criminal conduct that was unrefuted. The court also found the offenses were committed
to gratify the Defendant’s desire for pleasure or excitement. As to mitigating factors, the court
placed some weight on the fact that the Defendant’s conduct neither caused nor threatened serious
bodily injury, and great weight on the Defendant’s guilty plea. The court also gave mitigating weight
to the Defendant’s lack of a significant criminal record and his employment. Taking these
considerations into account, the court sentenced the Defendant to ten and one-half years on each rape
conviction and four years on each incest conviction.

        Under Tennessee Code Annotated section 40-35-115(b), the trial court ordered the
Defendant’s sentences to run consecutively. First, the court found the father/daughter relationship
weighed heavily in favor of consecutive sentencing. Second, the time span – five to six years – also
weighed in favor of consecutive sentencing. Third, the nature of the acts – penile, oral, and digital
penetration – weighed in favor of consecutive sentencing. Finally, the court determined the final
factor – residual physical or mental damage – was close because there was no expert testimony on
the issue. However, the totality of the circumstances justified consecutive sentencing. The court
also found consecutive sentencing was necessary to protect society, and it was reasonably related to
the offenses. The court ordered the incest sentences to run concurrently with the rape sentences, and
the rape sentences to run consecutively, for a twenty-one year sentence.

                                             II. Analysis

        On appeal, the Defendant only challenges the trial court’s determination that the rape
sentences should be run consecutively. When a defendant challenges the length, range or manner
of service of a sentence, this Court must 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-


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35-401(d) (2006). As the Sentencing Commission Comments to this section note, the burden is now
on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing
Comm’n Cmts. This means that if the trial court followed the statutory sentencing procedure, made
findings of facts which are adequately supported in the record and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,
T.C.A. § 40-35-103 (2006), we may not disturb the sentence even if a different result were 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 which 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 sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)
the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the
offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his
or her own behalf and (8) the defendant’s potential or lack of potential for rehabilitation or treatment.
See T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

       The trial court ordered the sentences to run consecutively under Tennessee Code Annotated
section 40-30-115(b)(5). That statute allows consecutive sentencing if the court finds by a
preponderance of the evidence, among other things, the following:

        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 was convicted of two counts of rape of his minor daughters. One daughter explained
that the acts occurred over a number of years, “five or six.” The Defendant’s acts in this case
included a number of instances of penile sexual penetration, oral sex, and digital penetration. Based
on these three factors, and general sentencing principles, the trial court determined the sentences
should be run consecutively.

        We note that the trial court determined the final factor was neutral because no testimony was
presented to establish the damage was “residual.” The wording of the statute is somewhat unclear
on this issue. The statute reads “residual, physical or mental damage.” T.C.A. § 40-35-115(b)(5)
(2007). The logical wording of the statute would indicate that the mental or physical damage must
be residual to be considered, as the trial court found. See State v. Woodcock, 922 S.W.2d 904, 914-
15 (Tenn. Crim. App. 1995) (affirming consecutive sentencing after showing of residual mental
damage by psychologist); State v. Anderson, 880 S.W.2d 720, 727 (Tenn. Crim. App. 1994) (“the
victim would suffer residual effects of the abuse.”). If the legislature intended to include both


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residual and non-residual damage, it seems as though it would have omitted “residual” or stated
“residual or non-residual damage.” However, the comma after “residual” indicates the “residual”
portion is independent of “physical” and “mental” damage. See State v. Taylor, 739 S.W.2d 227,
230 (Tenn. 1987) (“There was also evidence that the child had suffered emotional damage.”). In
other words, if the legislature had intended to make “residual” modify both “physical” and “mental,”
there would be no need for the comma after “residual.” Thus the sentence would read: “to the extent
of the residual physical and mental damage.” Ultimately, our decision in this case does not rest on
a determination of this issue as we agree with the trial court’s final decision.

        In our view, the trial court properly considered every relevant issue and made clear findings
of fact and conclusions of law. We agree that the Defendant should receive consecutive sentences
for the reasons stated by the trial court. The Defendant is not entitled to relief on this issue.

                                         III. Conclusion

        Upon a thorough review of the record and applicable law, we affirm the judgments of the trial
court sentencing the Defendant to an effective twenty-one years in prison.


                                                           ________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




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