        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 11, 2014 Session

          STATE OF TENNESSEE v. BRIAN GARRETT WALLACE

              Appeal from the Circuit Court for Robertson County
             No. 74CC3-2012-CR-23 John H. Gasaway, III, Judge



               No. M2013-01172-CCA-R3-CD - Filed May 12, 2014


Appellant, Brian G. Wallace, pled guilty to five counts of attempted especially aggravated
exploitation of a minor and one count of attempted sexual battery. The plea was an open
guilty plea, and the trial court sentenced Appellant to an effective sentence of eighteen years
which included consecutive sentencing. On appeal, Appellant argues that the trial court erred
in imposing consecutive sentences. After a thorough review of the record, we affirm the
judgments of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,
and N ORMA M CG EE O GLE, JJ., joined.

Roger E. Nell, District Public Defender and Ann M. Kroeger, Assistant District Public
Defender, for the appellant, Brian Garrett Wallace.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; John W. Carney, District Attorney General and Jason White, Assistant
District Attorney General, for the appellee, State of Tennessee.




                                         OPINION

                                    Factual Background

      On January 18, 2012, the Robertson County Grand Jury indicted Appellant for
seventeen counts of especially aggravated exploitation of a minor and two counts of
aggravated sexual battery. On January 7, 2013, Appellant pled guilty to five counts of
attempted especially aggravated exploitation of a minor and one count of attempted
aggravated sexual battery. He pled guilty as a Range II, multiple offender and pursuant to
the plea agreement agreed to be sentenced from a minimum sentence of eight years to a
maximum sentence of thirty-two years.

      The following facts were recited at the guilty plea hearing:


               [T]he facts would show that at the time – December 11 of last year – of
      2011, [Appellant] was living with [the victim’s mother] and her children and
      [the victim’s mother] had a little girl, [the victim], at the age of I believe eight
      or nine at the time. [The victim’s mother], it was late at night, and there had
      been some previously some – they had shared phones and [Appellant] had
      taken a SIM card or SD card out of a phone – a card that contains pictures and
      prevented [the victim’s mother] from looking at it. Another occasion, [the
      victim’s mother] picked it up and said something about it and [Appellant] did
      not want her to – acted like he didn’t want her to see what was on the pictures
      so that night, December 11, [the victim’s mother] was up late and changing out
      his wallet and finds this SD card in his pants pocket. More out of curiosity,
      puts it in the phone and begins looking at what is on the SD card and discovers
      that there are pictures taken of [the victim] of a sexual or lascivious nature.

              Count Two, Your Honor, we can date – November 14, 2011 . . . and it
      is of basically [the victim’s] buttocks – this point her pajamas are pulled down
      and it shows her underwear and we do have that distinct pair of underwear that
      we would – at a jury trial, show that it is her underwear. Count five, Your
      Honor, is another picture taken that same day too, . . . and this time of naked
      buttocks of [the victim], and we would be able to say it is [the victim] because
      of the distinct underwear. Also, the Mom would be able to identify the
      bedspread and blanket that is in the picture. As well, [Appellant] admitted in
      a statement that it was of the victim and he did take these pictures.

             As to – and that specifically, the admission is specifically to – two, five
      and eight. Count eight, Your Honor, is another picture taken November 14
      2011, . . . it shows a more distinct picture of compete pull down of the panties
      and another picture of the naked buttocks. Once again, we could determine the
      victim based on her clothing, bedspread and also based on an admission.




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        Also, Your Honor, as related – and the reason – in the order it is, Count
nineteen, refers to that same event of November 14, in his confession,
[Appellant] admits while he was pulling these panties down and taking these
different shots of the victim that he rubbed her buttocks. This was – the victim
all accounts was asleep, does not remember anything but his confession would
be corroborated by the pictures because they are consistent with him – with the
panties in one position and pulling them down and pulling them down again,
which is consistent with him rubbing the buttocks as he described in his
confession. So there would be enough evidence, Your Honor, to corroborate
on what [Appellant] is admitting to or admitted to as far as the aggravated
sexual – attempted aggravated sexual battery as to the confession.

        As to count nine, Your Honor, it’s a picture of a different date. It’s a
– the phone had been set in a particular location and [Appellant] is seen getting
the victim dressed and he’s got the phone positioned in a manner in which
when the victim – he pulls the victim’s panties off, it showed – it creates a
picture clearly of her vagina, of her naked vagina. [Appellant], once again –
this can be ID’d by the mother who can ID the child and ID the blankets in the
picture and ID the bedroom, can ID everything [of that] nature. [Appellant]
admits in his confession to the picture. The one thing he does say about this
picture though is he says he didn’t realize the phone was on. At a trial, the
State would challenge that, Your Honor, based on the location of the phone
and the distinctness of the picture that was created. The phone had to be in a
certain position to get that picture. But he does acknowledge, that he was
aware of it and didn’t know.

         As to count sixteen, Your Honor, it’s a different picture – you can’t tell
it’s a different date from the two through nineteen range and the count nine
incident, but it is a picture of the victim’s buttocks with her pants pulled down,
it’s of jeans and a t-shirt and we can ID that and it was on the same phone, LG
phone as well that contained – the same card that contained all these other
pictures.

      The expert, Your Honor, at T.B.I., at the trial would be able to say that
something happened – nine and sixteen he cannot say where they were taken
from but he can say that two, five and eight were taken off the phone that was
recovered at the scene and that the defendant admitted was his phone.

       That would be the facts, Your Honor.



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       The trial court held a sentencing hearing on April 11, 2013. At the conclusion of the
hearing, the trial court sentenced Appellant to concurrent sentences of nine years and six
months for the three counts of attempted especially aggravated exploitation of a minor and
the count of attempted aggravated sexual battery. The trial court sentenced Appellant to
eight years and six months for the two remaining counts of attempted especially aggravated
exploitation of a minor to be served concurrently. The trial court ordered that the eight year
and six month sentence be served consecutively to the nine year and six month sentence.
Therefore, Appellant’s effective sentence was eighteen years to be served at thirty-five
percent.

       Appellant appeals his sentence.

                                         ANALYSIS

       Appellant argues that the trial court erred in ordering Appellant to serve consecutive
sentences. The State disagrees.

       Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012).

        In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5)
(2010); State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

       The trial court is still required to 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 Bise, 380 S.W.3d at 706 n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, a sentence should be upheld so long as it is within the appropriate range and


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the record demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, that, “(5) [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 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). When imposing a consecutive sentence, a trial court should also consider
general sentencing principles, which include whether the length of a sentence is justly
deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d 698,
708 (Tenn. 2002). Our supreme court recently confirmed that the standard of appellate
review for consecutive sentencing is abuse of discretion accompanied by a presumption of
reasonableness. State v. James Allen Pollard, No. M2011-00332-SC-R11-CD, ___ S.W.3d
___, 2013 WL 6732667, at *9 (Tenn. Dec. 20, 2013). Our supreme court stated:


       So long as a trial court properly articulates reasons for ordering consecutive
       sentences, thereby providing a basis for meaningful appellate review, the
       sentences will be presumed reasonable and, absent an abuse of discretion,
       upheld on appeal. See Tenn. R. Crim. P. 32(c)(1) (“The order [for consecutive
       sentences] shall specify the reasons for this decision and is reviewable on
       appeal.”); see also Bise, 380 S.W.3d at 705.


James Allen Pollard, 2013 WL 6732667, at *9.

       Appellant argues that the trial court erred in basing consecutive sentences on
Tennessee Code Annotated section 40-35-115(b)(5), because he was convicted of “attempt
offenses, not completed offenses.” Appellant argues the offenses of attempted sexual
exploitation of a minor and attempted sexual battery do not constitute sexual abuse under
Tennessee Code Annotated section 40-35-115(b)(5).

       Appellant has cited to no authority that specifically supports his argument. He cites
to State v. Kevin Allen Gentry, No. E2009-02041-CCA-R3-CD, 2011 WL 2936403 (Tenn.


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Crim. App., at Knoxville, Jul. 21, 2011), to support his argument. Kevin Allen Gentry holds
that sexual exploitation of a minor is considered sexual abuse under T.C.A. § 40-35-
115(b)(5). This case does not support his argument that “attempt offenses” do not constitute
sexual abuse under the statute in question. Appellant has not cited to any authority that
directly supports his argument that “attempt offenses” cannot be considered sexual abuse
under Tennessee Code Annotated section 40-35-115(b)(5).

        Furthermore, this Court has previously upheld consecutive sentences based upon
“attempt offenses” as sexual abuse under Tennessee Code Annotated section 40-35-
115(b)(5). See State v. David Earl Offutt, No. M2010-01296-CCA-R3-CD, 2011 WL
2566383, at *14 (Tenn. Crim. App., at Nashville, Jun. 30, 2011) (affirming imposition of
consecutive sentences for three convictions of attempted incest after remand for trial court
to sentence the defendant for the attempted incest convictions that had been erroneously
merged into the defendant’s attempted rape convictions); State v. David E. Offutt, No.
M2007-02728-CCA-R3-CD, 2009 WL 2567870, at *1 (Tenn. Crim. App., at Nashville, Aug.
20, 2009) (affirming imposition of consecutive sentences for three convictions of attempted
rape); State v. Joseph Vermeal, No. M2005-00568-CCA-R3-CD, 2005 WL 3543417, at *7
(Tenn. Crim. App., at Nashville, Dec. 28, 2005) (affirming the imposition of consecutive
sentence stemming from a conviction of attempted aggravated sexual battery to a previous
conviction of aggravated sexual battery). Therefore, we conclude that there is precedence
for the imposition of consecutive sentences based upon Tennessee Code Annotated section
40-35-115(b)(5) when the convictions involved are “attempt offenses.”

       Appellant also argues that “the statutory factors weigh against consecutive sentences.”
The trial court made the following findings:


       The Court may order sentences to run consecutively if the Court finds by a
       preponderance of the evidence that – under subpart five – the defendant has
       been convicted of two or more statutory offenses involving sexual abuse of a
       minor, which he has, with the Court making – considering the aggravating
       circumstances arising from the relationship between the defendant and the
       victim if there is one.

               Well, the aggravating circumstances as contemplated by this statute, the
       Court believes, would be – if it existed would be the circumstance brought on
       by the fact that he was in the household by invitation; that his care of the child
       from time to time was entrusted to him by the mother; that he was either alone
       or virtually alone with a child, sufficiently enough to take multiple depictions
       of her body. So the Court has considered that circumstance. I might say that


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the Court has also considered that very same thing when it made a finding that
there was a violation of the private trust that took . . . that was given to him by
the mother.

       The statute goes on to say not only should the Court consider the
circumstances that – that might be aggravating because of the relationship that
the parties had, but the Court should also consider the time span of the
defendant’s undetected sexual activity. Well, the time span of the Defendant’s
undetected sexual activity for the offenses that he pled guilty to and for which
he was convicted is a few months. You’ve got four counts occurring on
November the 14th of 2011, and the remaining two counts occurring, based on
the best or only evidence that the Court has, around August of 2011. So these
six counts occurred within that time frame, two in – two in or close to August
of 2011 and four in November of 2011. So that is the time span of the
Defendant’s undetected sexual activity.

        Now, there may be a belief that his sexual activity occurred longer
[than] that. That may be true. But for sentencing purposes the Court can only
consider the time span of what he is convicted of, and the Court cannot assume
other facts that are not in evidence and which have not been established
beyond a reasonable doubt.

        The Court is also – has to consider the nature and the scope of the
sexual acts, and the extent of the residual, physical and mental damage to the
victim. First of all, with respect to the nature and the scope of the sexual acts,
the – the nature of the acts was five counts of taking photographs of a portion
of the child’s body, and one count of actual contact with the child which makes
out the sexual battery. That’s the scope of – that’s the nature of the acts.

        The scope of the acts are, in this case, virtually the same as the nature
of the acts. The depictions are all basically the same. One is more graphic
than others, but they are basically photographs of the – of the bottom of this
child, and one then of the vaginal area of the child.

       And the Court is also to consider the extent of any residual, physical
and mental damage to the victim. Well, there hasn’t really been any – well,
there’s been some testimony about physical damage, and I – I will categorize
wetting one’s self as a physical damage; it also, I guess, could be categorized
as a mental damage, but certainly in the – in the realm of mental damage to the
victim, based on the testimony that I heard, there has been observations both


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       by the mother and the grandmother of – of the child changing in the sense that
       – becoming more shy at times, becoming – obviously concerned or dissatisfied
       if something that she’s doing is controlled by or dictated by a man instead of
       a woman; expressions of concern by the child as to who was going to be
       around when she goes somewhere, those are – those are all residual effects on
       the victim. Now, they may change, and hopefully – hopefully they will change
       over time and – but as far as what the Court has been exposed to by way of
       evidence, that is probative of residual damage, the Court finds that there has
       been some residual damage to the victim; mainly mental as opposed to
       physical as I have referred to.


       The trial court’s findings meet the criteria set out in James Allen Pollard. The trial
court “properly articulate[d] reasons for ordering consecutive sentences” and “provid[ed] a
basis for meaningful appellate review . . . .” We conclude that the sentences imposed were
reasonable and there was no abuse of discretion. Therefore, we affirm the sentences on
appeal.
                                      CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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