                                                                                         05/31/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                    January 24, 2018 Session

                    STATE OF TENNESSEE v. JOHN BASKINS

                    Appeal from the Criminal Court for Knox County
                          No. 105862 Bob R. McGee, Judge


                                 No. E2017-00795-CCA-R3-CD


The defendant, John Baskins, appeals his Knox County Criminal Court guilty-pleaded
convictions of rape of a child and especially aggravated sexual exploitation of a minor,
claiming that the trial court erred in the misapplication of an enhancement factor and that
the 40-year sentence imposed was excessive. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joshua Hedrick, Knoxville, Tennessee, for the appellant, John Baskins.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

              The Knox County Grand Jury charged the defendant with seven counts of
rape of a child, seven counts of incest, five counts of especially aggravated sexual
exploitation of a minor, and two counts of sexual exploitation of a minor arising out of
the sexual assaults of the defendant’s six-year-old niece, C.B.1 The defendant pleaded
guilty to one count of rape of a child and one count of especially aggravated sexual
exploitation of a minor in exchange for dismissal of the remaining charges. The plea
agreement provided for the sentence to be determined by the trial court and included the
parties’ agreement that the sentences should be concurrently aligned.


1
       To protect the anonymity of the minor victim, we refer to her by her initials.
            At the defendant’s sentencing hearing, the State, in addressing
enhancement factors, offered the following facts:

                    At the time of the offense, the defendant was
             babysitting [C.B.]. The mother of this child and her
             boyfriend had left the niece, the victim in this case, with the
             defendant under the belief that he was going to babysit her,
             that he was going to treat her well, that he was going to
             protect her, and he did exactly the opposite, Your Honor.

                     ....

             [T]his offense occurred on March the 23rd of 2015. [B.B.,2]
             who’s . . . the mother of the victim . . . and her boyfriend at
             the time, Reggie Jones, came home from work early. . . .
             [T]he defendant had been left caring for [C.B.] the six-year-
             old child in this case. When Reggie walked upstairs, he saw
             the defendant with his pants down, and six-year-old [C.B.]
             was performing oral sex on this defendant.

                    Obviously things in the house got very heated, and the
             defendant in this case fled to a bridge off of Asheville
             Highway where KPD responded. This defendant called 911,
             said he was going to jump from the bridge. He also called the
             victim’s mother, [B.B.], and talked to her about what he was
             going to do.

                     ....

             He was talked down by crisis negotiation, and then he was
             taken to the hospital. The mother calls 911 and reports that
             her six-year-old daughter has been raped.

                    The defendant has been taken to KPD, and he is
             interviewed by Detective Shelley Clemons. Importantly he
             denies doing anything to this child at that time. Further proof
             showed that the defendant’s penis was swabbed after
             Detective Clemons received a search warrant. This was sent
             to the Tennessee Bureau of Investigation, and Marla Wright

2
     We refer to the minor victim’s mother by her initials as well.
                                               -2-
             who is a special agent with the TBI performed forensic
             analysis. The swab of his penis indicated the presence of
             Alpha-Amylase which is a component of saliva on this
             defendant’s penis.

              The State introduced into evidence the defendant’s presentence report,
which stated that the 24-year-old, unemployed defendant had a ninth-grade education and
a lengthy history of alcohol and drug abuse. The defendant reported that he first used
alcohol at the age of 10 and that his longest stretch of sobriety was one to two weeks. He
also reported using marijuana three to four times per week since the age of 12 and
claimed to have used opiates daily between the ages of 14 and 19. The defendant rated
his mental health condition as poor, claiming to suffer from suicidal ideation, auditory
hallucinations, schizophrenia, and bipolar disorder. Although the defendant had no prior
criminal convictions, he had a juvenile record which included probation revocations and
“informal adjustments” for truancy, theft, and assault.

              The defendant’s forensic psychological evaluation, which was admitted
into evidence, indicated that the defendant suffered from depression and anxiety. The
defendant stated his mother had used methamphetamines until his birth but then “got
clean.” The defendant also reported “a history of severe trauma, noting that his dad had
committed suicide in front of him when” the defendant was eight years of age. With
respect to his alcohol and drug use, the defendant stated that he had engaged in binge
drinking for over 10 years and that he had used marijuana “essentially daily” from the
age of 11 until his incarceration. The defendant also reported regular use of narcotic pain
medication from the age of 13 until “the night of his incarceration” and stated that he had
“tried cocaine” and “used LSD on at least one occasion during adolescence.”

              In the defendant’s psychosexual evaluation, which was also admitted into
evidence, the defendant revealed that he had been forcing the victim to engage in fellatio
“for over two months before he was caught on March 23, 2015.” The defendant told the
evaluator that he had photographs on his cellular telephone of the victim’s genitals, as
well as videos “of the victim being forced to perform sexual acts.” The defendant
described how he “bribed” the victim, demonstrating “no empathy or remorse as
evidenced by voice tone and facial expression” while doing so. The defendant “reported
that he did not care that he could get into trouble at the time he was” raping the victim.
The defendant then “stated he was accused by his family of raping ‘some girl’ but denies
doing this,” followed by a statement that he “‘might as well go ahead and do it,’ meaning
he should rape someone as he was already being accused of the offense. After
administering several tests to the defendant to evaluate his risk of reoffending and level
of dangerousness, the evaluator stated that the tests showed that the defendant possessed
“a highly deviant perception of relationships with children” and that the defendant lacked
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“appropriate understanding of sexual boundaries and healthy sexual relationships.”
Although the defendant was rated at a low to moderate risk for reoffending, he scored at a
high risk for dangerousness, “meaning he would be of great risk to the community if
released” and “no level of community supervision available” could ensure that the
defendant would not “pose a risk to others.” The evaluator concluded that the defendant
was “a danger to his community and require[d] a high level of supervision found only in
incarceration.”

             Knoxville Police Department Officer Scott Sheppard testified that he
performed a forensic analysis of the defendant’s cellular telephone and its attached
memory card. Officer Sheppard’s analysis revealed the defendant’s internet search
history, which included dozens of pornography websites that, according to the website
addresses and descriptions, involved sexual acts between and among close family
members.

              D.V.H.3 testified that she was 13 years old and that, when she was four
years of age, the defendant was her brother’s best friend. D.V.H. testified that the then-
16-year-old defendant sexually assaulted her by placing his penis on her buttocks. The
defendant also covered D.V.H.’s face with a pillow to prevent her from screaming.
D.V.H. stated that she had reported the incident to her mother and brother and that she
had spoken to the police about it but admitted that she had never gone to court about the
offense.

              The State introduced into evidence a letter from the victim which stated that
the defendant had threatened to harm her or her family if she told anyone about the abuse;
that the defendant had taken photographs of her “and others on his phone on his lap with
his clothes off”; and that the defendant forced her to “get on top of him” while both her
clothing and the defendant’s clothing were removed. The victim’s mother read her
victim impact statement aloud to the court:

                     This has tor[n] my whole family apart. I was supposed
              to be able to trust him. He’s my brother. And the sad case is
              that I don’t even like to say that. I told my children this is
              someone you trust, someone you love, and he betrayed them.
              Of all people, he betrayed the children that looked up to him,
              that loved him. He helped raise them. And now they’re
              confused; they’re hurt. Now they don’t even know who to
              trust.


3
      Again, we refer to minors by initials.
                                               -4-
                     Hurt me, flipped my life upside down. They are my
              world. And if you hurt them, you hurt me. My life will never
              be the same because I have to know that I let a monster
              around my family. And it hurts me more than ever to know
              that my kids will never be the same from this, ever. They’ll
              never be able to probably trust someone like that again.

             At the conclusion of the sentencing hearing, the trial court found that two
enhancement factors were applicable: the defendant’s criminal history, specifically his
sexual abuse of D.V.H., and his abuse of a position of trust as the victim’s uncle. See
T.C.A. § 40-35-114(1), (14). The trial court found the results of the defendant’s
psychosexual evaluation to be “[v]ery troubling,” stating as follows:

              [T]here is no level of community supervision available to
              ensure the [defendant] does not pose a risk to others. In legal
              terms, although it’s not one of the enhancement factors, it is
              important I think and fundamental to law in general that in
              determining how long a person should be separated from
              society the issue of rehabilitation should be given some
              consideration.

                     And in this case, the expert appears to be telling us
              there isn’t any way to supervise him. That suggests this is
              permanent. In other words, there’s very little possibility of
              any rehabilitation in this case – and his lack of remorse all
              suggest that the Court should provide to this community as
              much protection from this defendant as it possibly can.

The trial court found there was “some mitigation in that [the defendant] did suffer a head
injury,” that the defendant “had been traumatized by his father’s suicide,” and that “he
does have developmental limitations.” The court went on to state that these mitigating
factors were “far outweighed” by the enhancement factors. Finding that “the interest of
the community in being protected from [the defendant] is paramount” and “controlling,”
the court sentenced the defendant to the maximum Range II sentence of 40 years for the
rape of a child conviction. The trial court also imposed a 12-year sentence for the
especially aggravated sexual exploitation of a minor conviction, to run concurrently with
the defendant’s 40-year sentence, for an effective sentence of 40 years to be served at 100
percent by operation of law.

              Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal.
                                           -5-
              In this appeal, the defendant contends only that the trial court erred in its
application of the criminal history enhancement factor and that the sentence imposed for
the defendant’s rape of a child conviction was excessive.

               Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we 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). The application of the purposes and principles of sentencing involves a
consideration of “[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.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to ‘place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

               With respect to the issue of the misapplication of the criminal behavior
enhancement factor, the defendant argues that the behavior erroneously relied on by the
trial court was a prior juvenile act which did not result in an adjudication of delinquency.
We need not tarry long, however, over the defendant’s claim because, even assuming that
the trial court misapplied this factor, “a trial court’s misapplication of an enhancement or
mitigating factor does not invalidate the sentence imposed unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. Nothing in
the record suggests that the trial court in this case “wholly departed from” the Sentencing
Act. To the contrary, the record reflects that the trial court considered all the relevant
principles associated with sentencing, including the enhancement and mitigating factors,
when imposing the sentences in this case, and the defendant concedes that the court
appropriately applied the enhancement factor of the abuse of a position of trust.

               With regard to the defendant’s claim that the trial court erred by imposing
the maximum in-range sentence of 40 years, the defendant essentially asks this court to
reweigh the enhancement and mitigating factors to arrive at a lesser sentence. “A trial
court’s weighing of various mitigating and enhancement factors [is] left to the trial
court’s sound discretion,” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008), and this
court is not free to reevaluate the weight and value assigned to the factors found by the
trial court. The trial court considered the mitigating factors advanced by the defendant
and determined that the enhancement factors far outweighed any mitigation. Moreover,
                                            -6-
the trial court found the need to protect the community from the defendant to be
“paramount” in its decision to impose a 40-year sentence. In our view, the trial court did
not abuse its discretion by imposing this within-range sentence after thorough
consideration of the purposes and principles of sentencing.

             Based upon the foregoing analysis, we affirm the judgments of the trial
court.

                                                 _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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