           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                               Assigned on Briefs February 23, 2010

              STATE OF TENNESSEE v. DANIEL ROSS McCLELLAN

                     Appeal from the Criminal Court for Hawkins County
                        No. 07CR0247     John F. Dugger, Jr., Judge


                       No. E2009-00698-CCA-R3-CD - Filed July 8, 2010


The Defendant, Daniel Ross McClellan, was convicted of rape of a child, a Class A felony,
and incest, a Class C felony. He was sentenced as a Range II, multiple offender to serve
forty years as a child rapist for the rape conviction and ten years for the incest conviction,
with the sentences to be served concurrently. On appeal, he argues that the trial court erred
in sentencing him as a multiple offender. We hold that the trial court properly sentenced the
Defendant as a Range II offender for the incest conviction but erred in sentencing him as a
Range II offender for the rape of a child conviction. We remand the case to the trial court
for resentencing in accordance with this opinion.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
              Affirmed in Part; Reversed in Part; and Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Daniel Ross McClellan.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; J. Douglas Godbee and Alex
Pearson, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                  OPINION

       The Defendant’s convictions are the result of sexual assaults committed against his
daughter, S.M.,1 the victim. The State’s proof at trial established that in 1995, the victim and
her three brothers lived with their grandmother, Mary Voss, in Mooresburg, and the

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           It is the policy of this court to refer to victims of sexual abuse by their initials only.
Defendant and his wife, Voss’s daughter, lived in a trailer behind the Cloud 9 fertilizer plant.
On occasions in 1995 when the victim was five years old and visiting the Defendant at his
trailer, the Defendant molested the victim. The incidents occurred in the bedroom and the
bathroom, but primarily in the bathroom. The Defendant “would pick [the victim] up and
set [her] on his shoulders and he would stick his tongue in [her] vagina” and move it around.
The victim referred to her vagina as her “turtle” when she was younger.

       On one occasion, when she was six or seven years old, one of the victim’s brothers,
Thomas, walked in on the Defendant molesting the victim. Thomas saw the victim lying on
a bed and the Defendant “[l]icking her privates,” or vagina. When the Defendant saw that
Thomas was in the room, he physically kicked Thomas out of the room and out of the trailer.

        Meanwhile, Voss noticed that when she bathed the victim following a visit with the
Defendant, the victim said her “turtle” burned and that the area was very red and irritated.
Voss became aware that something might have happened to the victim when a neighbor
overheard a conversation between the victim and Voss’s other granddaughter. Voss took
the victim to the Department of Human Services (DHS) and also to the sheriff’s department.
The Defendant and his wife moved to North Carolina for a period of three years, and Voss
notified the authorities immediately upon the Defendant’s return to Hawkins County.

        The State presented evidence that the sheriff’s department prepared an offense report
in this matter on November 1, 1995. According to DHS records, the victim was referred to
DHS on December 29, 1995, and sent to Greeneville Women’s Clinic for a medical
examination on January 10, 1996. The records indicated that a Child Protective
Investigative Team believed that an incident occurred but that the perpetrator was
“unfounded.” The records further indicated that the team was unable to interview the
alleged perpetrator because he moved to North Carolina before an interview could be
completed.

        On April 26, 2007, the Defendant voluntarily appeared at the Hawkins County
Sheriff’s Department and gave a statement to Detective Randall Collier about an incident
with the victim in 1995. In his statement, the Defendant said that one day when he lived in
a trailer in the Cloud 9 area, he took the victim into a bedroom, removed her clothes, and
started kissing and licking her vagina. He said that this went on for a couple of minutes and
that his son, Thomas, walked in.

       The following day, the Defendant gave a statement to Detective Cliff Evans of the
Hawkins County Sheriff’s Department, in the presence of Detective Jeff Greer. In that
statement, the Defendant said that his wife’s nieces had made allegations against him but
that he did not remember having done anything to them. He stated that the only child he

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could remember doing anything to was his daughter, S.M., in Hawkins County. The
Defendant admitted that he had a “serious problem” when it came to little girls.

        The Defendant testified that in late 1995 or early 1996, he went to North Carolina to
see his brother and “was pulled over while driving on a revoked, and . . . was stranded there”
for approximately three years. His going to North Carolina had nothing to do with the
victim’s allegations. The Defendant admitted meeting with the various detectives but said,
“I never said anything. Everything was written up and I just signed it, and that was done
under duress.” The Defendant denied ever touching the victim’s private parts or kicking his
son out the door of his trailer. On cross-examination, the Defendant denied having a
fascination with young girls.

        The jury found the Defendant guilty of the charged offenses of rape of a child and
incest. The jury found that the following enhancement factors in effect at the time were
applicable: the personal injuries inflicted upon the victim were particularly great, T.C.A. §
40-35-114(6) (Supp. 2004); the offense involved a victim and was committed to gratify the
Defendant’s desire for pleasure or excitement, id. § 40-35-114(7); and the Defendant abused
a position of private trust. Id. § 40-35-114(15). The jury did not find any mitigating factors
applicable.

       At the sentencing hearing, the State urged the court to sentence the Defendant as a
multiple offender and introduced certified copies of two judgments from Bradford County,
Florida, a 1983 conviction for lewd assault and a 1984 conviction for attempted lewd
assault. Acknowledging that Tennessee does not have the felonies of lewd assault or
attempted lewd assault, the court looked at the elements listed in the indictments and
determined that the offenses were the equivalent of aggravated sexual battery and attempted
aggravated sexual battery. The court determined that the Defendant qualified as a multiple
offender and sentenced him as such to forty years for the rape of a child conviction and to
ten years for the incest conviction.

        On appeal, the Defendant argues that the trial court erred in sentencing him as a
multiple offender because the trial court compared the elements of the out-of-state
convictions to current Tennessee law, not Tennessee law as it existed at the time of the prior
convictions. In reviewing the issue, we consider the sentencing law as it applied at the time
of the Defendant’s offenses. Appellate review of sentencing is de novo on the record with
a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d)
(2003) and -402(d) (1997). As the Sentencing Commission Comments to these sections
note, the burden is now on the appealing party to show that the sentencing is improper. This
means that if the trial court followed the statutory sentencing procedure, made findings of
fact that are adequately supported in the record, and gave due consideration and proper

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weight to the factors and principles that are relevant to sentencing, we may not disturb the
sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

       However, “the presumption of correctness which accompanies the trial court’s action
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 this respect, for the purpose of meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e) (1991 &
Supp. 1995).

       Also, in conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical
information provided by the administrative office of the courts as to sentencing practices for
similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102 (2003), -103
(2006), -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn.
1986).

        The trial court may sentence a defendant as a Range II, multiple offender when it
finds beyond a reasonable doubt that the defendant has received “[a] minimum of two (2)
but not more than four (4) prior felony convictions within the conviction class, a higher
class, or within the next two (2) lower felony classes.” T.C.A. § 40-35-106(a)(1) (2003).

                      Prior convictions include convictions under the laws of
              any other state, government, or country which, if committed in
              this state, would have constituted an offense cognizable by the
              laws of this state. In the event that a felony from a jurisdiction
              other than Tennessee is not a named felony in this state, the
              elements of the offense shall be used by the Tennessee court to

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              determine what classification the offense is given.

T.C.A. § 40-35-106(b)(5) (2003). “The appropriate analysis of prior convictions is under
Tennessee law as it existed at the time of the out-of-state conviction.” State v. Brooks, 968
S.W.2d 312, 313-14 (Tenn. Crim. App. 1997).

       The trial court did not refer to the Tennessee statutes in effect at the time of the
Florida offenses. Instead, it examined the Tennessee aggravated sexual battery statute as it
existed at the time of sentencing. However, the elements of aggravated sexual battery were
essentially the same in 1983 as at the time of sentencing. Aggravated sexual battery is
presently defined as the “unlawful sexual contact with a victim by the defendant or the
defendant by a victim accompanied by any of the following circumstances: . . . (4) The
victim is less than thirteen (13) years of age.” T.C.A. § 39-13-504(a) (2006). Aggravated
sexual battery is a Class B felony. Id. § 39-13-504(b). In 1983, aggravated sexual battery
was defined as “unlawful sexual contact with another accompanied by any of the
circumstances listed in § 39-2-603(a).” T.C.A. § 39-2-606 (1982) (repealed 1989). The
accompanying circumstances included, “The victim is less than thirteen (13) years of age.”
T.C.A. § 39-2-603(a)(4) (1982) (repealed 1989). For classification purposes, aggravated
sexual battery, a Class X felony in 1983, would currently be considered a Class B felony.
See T.C.A. § 40-35-118 (2006). Thus, the Defendant was not prejudiced by the trial court’s
not applying 1983 law with regard to the Defendant’s 1983 conviction.

        Turning to the Defendant’s 1984 Florida conviction for attempted lewd assault, the
trial court determined that the Tennessee equivalent was attempted aggravated sexual
battery, a Class C felony. However, in 1984, Tennessee did not classify attempts in the same
manner as at the time of sentencing in the present case. Presently, “[c]riminal attempt is an
offense one (1) classification lower than the most serious crime attempted[.]” T.C.A. § 39-
12-107(a) (2006). In 1984, the statute addressing an attempt to commit a felony stated:

                      If any person attempts to commit any felony or crime
              punishable by imprisonment in the penitentiary, where the
              punishment is not otherwise prescribed, he shall, on conviction,
              be punished by imprisonment in the penitentiary not exceeding
              five (5) years, or, in the discretion of the jury, by imprisonment
              in the county workhouse or jail not more than one year, and by
              fine not exceeding five thousand dollars ($5,000).

T.C.A. § 39-1-501 (1982) (repealed 1989). An attempt to commit a felony was considered
a felony. See Rafferty v. State, 16 S.W. 728, 728 (Tenn. 1891) (stating that “[t]he fact that
the punishment for the attempt is in the alternative . . . does not make it any less an offense

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punishable by imprisonment in the penitentiary, or take from it the characteristic of a
felony”); see also State v. Standard Oil Co. of Kentucky, 110 S.W. 565, 579-80 (Tenn.
1908). An attempt to commit a felony would currently be considered a Class E felony. See
T.C.A. 40-35-118 (2006). In addition, there was a specific statute that proscribed an
“[a]ssault with intent to commit or attempt to commit sexual battery.” T.C.A. § 39-2-608(b)
(1982) (repealed 1989). An assault with intent to commit or attempt to commit sexual
battery would currently be considered a Class E felony. See T.C.A. 40-35-118 (2006).

        We are unable, however, to determine whether the Defendant’s Florida conviction
for attempted lewd assault would qualify as an assault with intent to commit or attempt to
commit sexual battery, or as an attempt to commit a felony. We are unable to make this
determination because, as noted by the Defendant, the record does not contain a statement
of facts to which the Defendant pled nolo contendere. Instead, the record contains only the
facts recited in the information charging him with sexual battery upon a child eleven years
old or younger, and he pled to a lesser charge. “‘The determinative factor is the elements
of the conviction offense, not the facts or the elements of the originally charged offense.’”
State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007) (quoting State v. Jasper L.
Vick, No. W2005-00467-CCA-R3-CD, Shelby County, slip op. at 12 (Tenn. Crim. App.
Mar. 22, 2006)) (emphasis in original).

        Because the proof failed to establish the elements of the Florida attempted lewd
assault conviction, the issue becomes one of the sufficiency of the State’s proof beyond a
reasonable doubt that the Defendant qualified as a Range II offender for the two convictions
for which he was sentenced in this case. The proof is sufficient to show beyond a reasonable
doubt that the Defendant’s lewd assault conviction was the equivalent of assault with intent
to commit or attempt to commit sexual battery, see T.C.A. § 39-2-608(b) (1982) (repealed
1989), the equivalent of a Class B felony. Conviction of a Class B felony qualifies as one
prior conviction for Range II classification purposes for the Defendant’s present convictions
of Class A and Class C felonies. See T.C.A. § 40-35-106(a)(1) (2006). The proof shows
beyond a reasonable doubt that the Defendant’s Florida conviction for attempted lewd
assault was either the equivalent of assault with intent to commit or attempt to commit
sexual battery, a Class E felony, or the equivalent of attempt to commit a felony, also a Class
E felony. See T.C.A. § 39-1-501 (1982) (repealed 1989). Under either circumstance, the
Defendant has the requisite two prior convictions of the same, higher, or within two lower
classifications necessary for Range II sentencing for his incest conviction. However, for his
rape of a child conviction, the proof shows that the prior attempted lewd assault conviction
was the equivalent of a Class E felony. See Vick, 242 S.W.3d at 796. Thus, the State failed
to prove beyond a reasonable doubt that the Defendant was a Range II offender for this
offense. As a result, we must remand for the trial court to resentence the Defendant as a
Range I offender for rape of a child conviction. See id.

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       In consideration of the foregoing and the record as a whole, the judgment of the trial
court for rape of a child is reversed, and the case is remanded for resentencing the Defendant
as a Range I offender. The judgment for the incest conviction is affirmed.


                                               ___________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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