        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 10, 2010

             STATE OF TENNESSEE v. BRIAN WESLEY LACEY

                 Appeal from the Criminal Court for Davidson County
                      No. 2007-D-3216     Seth Norman, Judge




               No. M2009-01914-CCA-R3-CD - Filed December 10, 2010


A Davidson County Criminal Court jury convicted the defendant, Brian Wesley Lacey, of
12 counts of the rape of a child, two counts of aggravated sexual battery, and one count of
sexual battery. The trial court imposed sentences of 20 years for each rape of a child
conviction, eight years for both aggravated sexual battery convictions, and one year for the
conviction of sexual battery and ordered partially consecutive sentencing for an effective
sentence of 60 years’ incarceration to be served at 100 percent. In this appeal, the defendant
contends that the trial court erred by admitting an audio recording into evidence without first
conducting a hearing outside the presence of the jury as required by Tennessee Rule of
Evidence 404(b) and by imposing consecutive sentences. We discern no error in the
defendant’s convictions but do find that the trial court erroneously ordered the defendant to
serve 100 percent of his convictions of aggravated sexual battery in counts one and nine as
a “child rapist.” The case is remanded to the trial court for the entry of a corrected judgment
for those counts. The remainder of the defendant’s sentences are affirmed, and the correction
of these judgments does not alter the total effective sentence.

    Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed as Modified;
                                   Remanded

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

David Christensen, Brentwood, Tennessee (on appeal); and Fikisha Swader and D. Chad
Hindman, Nashville, Tennessee (at trial), for the appellant, Brian Wesley Lacey.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Sharon Reddick, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                                  OPINION

               The convictions in this case relate to the defendant’s ongoing sexual abuse of
A.H. and her mentally disabled older brother, M.H., between March 1994 and September
2002.1 At trial, 19-year-old A.H. testified that when she was four years old, she and her
brother went to live with their grandmother, Shirley Lacey, and her husband, the defendant,
at their Nashville residence after A.H.’s mother and father lost custody of the children due
to their alcohol abuse. When the children went to live with the Laceys, Ms. Lacey worked
as a bartender five nights a week, and the defendant contributed to the family financially by
performing odd jobs. The defendant was responsible for the care of the children while Ms.
Lacey was at work.

              A.H. recalled that shortly after she moved in with her grandmother and the
defendant, the defendant forced her to place her hand inside his pants and touch his “private
parts.” She was four years old. On another occasion when A.H. was seven or eight years
old, the defendant placed his hand inside her pants and touched her genitals while he was
kissing her on the lips, neck, and chest. She stated that the defendant first penetrated her
vagina with his penis when she was six years old. Thereafter, he had sex with her more than
once a month. She specifically recalled that the defendant began performing oral sex on her
when she was five and a half years old. Around that same time, the defendant forced the
victim to perform oral sex on him for the first time. The defendant also forced her to view
pornographic movies for the purpose of learning how he wanted her to perform sexual favors
for him. On one occasion, the defendant performed oral sex on M.H. after A.H. refused to
do so.

             A.H. recalled that on one occasion, her grandmother returned home from work
early and caught the defendant and A.H. in a compromising position, half-clothed in the
defendant’s bedroom. Following this incident, Ms. Lacey promised to divorce the defendant
and make him leave the home but did not follow through on her promise. After that time,
Ms. Lacey frequently asked A.H. about the sexual abuse but refused to take any action.

              The abuse continued until September 2002, when the victim began
menstruating and her grandmother retired. At some point, when the victim was 15 years old,
she became frustrated with the defendant’s controlling behavior and reported the previous
sexual abuse to her best friend, who then told her own mother, Lori Smith. Ms. Smith called
police, and A.H. was removed from the Lacey home and placed in foster care, where she



        1
        As is the policy of this court, we will refer to the minor victims of sexual abuse only by their initials.
Additionally, A.H. had a different last name at the time of trial, but we will use her name as it appears in the
indictment for the sake of clarity.
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remained until the time of trial.

               Nicole Rogers and Lori Smith confirmed A.H.’s account of first revealing the
abuse, and Metropolitan Police Department Detective Gerald McShepard confirmed A.H.’s
account of telling the police about the abuse. All the State’s witnesses noted that A.H. had
been consistent in her details regarding the abuse.

              A.H.’s grandmother denied that the abuse had occurred and implied that A.H.
had made the allegations because she was unhappy with their strict parenting methods. Ms.
Lacey, in particular, stated that she had never considered that A.H.’s allegations might be
true.

              At the conclusion of the proof, the State voluntarily dismissed count 15, which
had charged the defendant with the sexual battery of M.H. while in a position of parental
authority over M.H. The jury convicted the defendant of rape of a child in counts two
through eight and counts 10 through 14, of aggravated sexual battery in counts one and nine,
and of the lesser included offense of sexual battery in the newly-renumbered count 15.

               Following a sentencing hearing, the trial court imposed a sentence of 20 years
for each of the defendant’s convictions of rape of a child, a sentence of eight years for each
conviction of aggravated sexual battery, and a sentence of one year for the defendant’s
conviction of sexual battery. The court ordered three of the 20-year sentences to be served
consecutively and the remainder of the sentences to be served concurrently, for a total
effective sentence of 60 years’ incarceration.

             The defendant filed a timely but unsuccessful motion for new trial, which was
followed by a timely notice of appeal in this court.

              In this appeal, the defendant alleges that the trial court erroneously admitted
into evidence an audio recording of a telephone conversation between the defendant and
A.H. without first complying with the requirements of Tennessee Rule of Evidence 404(b)
and by ordering partially consecutive service of the sentences. The State argues that there
was no error occasioned by the trial court’s failure to follow the procedural requirements of
Rule 404(b) because there was no evidence of the type governed by that rule contained in the
audio recording. The State also submits that consecutive sentencing was appropriate in the
defendant’s case. We agree with the State on both points.

                                     I. 404(b) Evidence

              The defendant complains that the trial court erred by admitting into evidence

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and playing for the jury an audio recording of a telephone conversation between the
defendant and A.H. without first holding a hearing outside the presence of the jury. The
defendant fails, however, to assert specifically what portion of the audio recording falls
within the ambit of Tennessee Rule of Evidence 404(b). That rule provides: “Evidence of
other crimes, wrongs, or acts is not generally admissible to prove that an accused committed
the crime in question.” Tenn. R. Evid. 404(b). Before such evidence may be admitted,
however, the following procedure must be followed:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and the
              reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or act
              to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4).

               Here, the challenged evidence consists of the audio recording of a telephone
conversation between A.H. and the defendant. A.H. placed the call to the Lacey residence
from the police station at the behest of Detective McShepard, who provided A.H. with
prompts designed to illicit incriminating information from the defendant. Despite A.H.’s
efforts, the defendant makes no revelation regarding his guilt of the charged offenses. Most
importantly for our analysis of this issue, however, although A.H. makes vague references
to “what [the defendant] did to” her in the past and the defendant discusses A.H.’s giving him
two back rubs, neither the defendant nor A.H. mentions specifically any other crimes,
wrongs, or bad acts of the defendant that would be barred from admission by Rule 404(b).
As such, any error in the trial court’s failure to hold a jury-out hearing before admitting the
evidence would be harmless.

              Moreover, any failure by the trial court to follow the procedure outlined in Rule
404(b) did not infringe upon the defendant’s constitutional right to due process of law. As
we have indicated, no evidence was admitted against the defendant that should have been
barred.

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                                           II. Sentencing

              The defendant also complains that the trial court erroneously imposed partially
consecutive sentencing in the absence of a specific finding that one of the provisions of Code
section 40-35-115 was applicable. The State contends that consecutive sentencing was
warranted under the terms of Code section 40-35-115(b)(5) (1994).

                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (1994).2 This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb 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 event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

                In making its sentencing decision, the trial court was required to consider:

                (1) The evidence, if any, received at the trial and the sentencing
                hearing;
                (2) The presentence report;
                (3) The principles of sentencing and arguments as to sentencing
                alternatives;
                (4) The nature and characteristics of the criminal conduct
                involved;
                (5) Evidence and information offered by the parties on the
                mitigating and enhancement factors set out in §§ 40-35-113 and
                40-35-114;
                (6) Any statement the defendant wishes to make in the



       2
        The defendant’s crimes spanned nearly nine years, from March 1994 through September 2002.
Despite his trial’s occurring in 2009, some four years after the passage of the 2005 amendments to the
Sentencing Act, the defendant did not execute a waiver of his ex post facto protections. Accordingly we
review his sentence under the version of the sentencing act in effect at the time of the earliest crime.
                                                  -5-
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should have also considered “[t]he potential or lack
of potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              Here, the trial court imposed the presumptive sentence within each range for
each of the defendant’s convictions, giving the defendant a 20-year sentence for each Class
A felony conviction, an eight-year sentence for each Class B felony conviction, and a one-
year sentence for the Class E felony conviction. The defendant does not contest the length
of any individual sentence.

             At the sentencing hearing, the State urged the imposition of consecutive
sentencing on the basis of Code section 40-35-115(b)(5), which provides:

              (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 of
              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). Although the trial court unintentionally referred to section 40-35-
115(b)(5) as “Count V,” the record establishes that the trial court based its imposition of
partially consecutive sentencing on that provision. Specifically, the court found:

              The [c]ourt is of the opinion that there are sections of the Code
              which apply to the defendant in this case as far as multiple
              offenses are concerned. I think that, as the General stated,
              Count V [sic] certainly applies in this particular case. There is
              a long history of sexual abuse, it was for a long period of time,
              and there is a conviction also for more than one individual or
              one victim in this particular case.



                                             -6-
On this basis, the trial court ordered that three of the defendant’s 20-year sentences be served
consecutively, for an effective sentence of 60 years.

                The record clearly supports the ruling of the trial court. The evidence adduced
at trial established that the defendant sexually abused A.H. consistently from March 1994
until September 2002. During that time, the defendant was the only father figure in A.H.’s
life and was responsible as her primary care giver while Ms. Lacey was at work. The
defendant’s abhorrent conduct went undetected for nearly eight years. As a result of the
abuse, A.H. spent years in counseling. She testified at the sentencing hearing that she
remains haunted by flashbacks of the abuse. Under these circumstances, we will not disturb
the sentencing decision of the trial court.

               Pursuant to our review, however, we observe that the trial court erroneously
ordered the defendant to serve his eight-year sentences for aggravated sexual battery at 100
percent as a “child rapist.” Code section 39-13-523 defines the term “child rapist” as “a
person convicted one (1) or more times of rape of a child as defined by § 39-13-522” and
provides that sentences for those rape of a child convictions must be served in their entirety
“undiminished by any sentence reduction credits such person may be eligible for or earn.”
T.C.A. § 39-13-523(a)(1), (b) (1994). This provision does not apply to convictions of
aggravated sexual battery. Moreover, although defendants convicted of aggravated sexual
battery under the current version of the Sentencing Act must serve 100 percent of any
sentence imposed, see id. § 40-35-501(i)(2)(H) (2006), that provision applies only to offenses
committed on or after July 1, 1995. Here, the defendant’s conviction of aggravated sexual
battery in count one occurred sometime between March 6, 1994, and March 6, 1995, clearly
before the effective date of the statute. His conviction of aggravated sexual battery in count
nine occurred sometime between March 6, 1994, and September 1, 2002; thus, it is possible
that the crime occurred at a time before the effective date of the statute. In consequence, the
trial court should not have ordered 100 percent service of these sentences. The record
establishes that the defendant is a Range I offender, and, as such, the judgments for counts
one and nine should be amended to reflect a 30 percent release eligibility percentage. The
modification of these sentences does not alter the total effective sentence.

              Accordingly, the judgments of the trial court are affirmed.




                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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