IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED JULY 1998 SESSION September 17, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. NO: 02C01-9709-CR-00349 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT ) DAVRON DINISH, ) ) (Sentencing) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN KRAUSE JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 142 North Third, Third Floor Memphis, TN 38103 GEORGIA BLYTHE FELNER (At Trial & On Appeal) Counsel for the State Criminal Justice Division Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JERRY R. KITCHEN Asst. District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103
OPINION FILED:
AFFIRMED
ROBERT W. WEDEMEYER, Special Judge OPINION The defendant pled guilty to one count of statutory rape and agreed to a one-year
sentence as a Range I offender. The trial court accepted this sentence and denied an
alternative sentence. In this appeal, the defendant argues that the trial court abused its
discretion in failing to grant judicial diversion, probation or a week-end sentence. Following
our review of the record, we affirm the trial court.
SENTENCING HEARING
The evidence offered at the sentencing hearing revealed that the victim and the
defendant were employed at the same restaurant and began dating. At that time, the
victim was sixteen-years-old and the defendant told the victim that he was twenty-two years
old. However, she later learned that he was twenty-seven or twenty-eight years old. Early
in the relationship, the victim and the defendant began having sexual relations. The victim
testified that at times the defendant would pick her up at her parent’s home at midnight or
1:00 a.m. and on other occasions would pick her up at school. The two would then go to
the defendant’s apartment and engage in sexual activities. On many occasions, the
defendant gave the victim marijuana while he drank alcohol and smoked marijuana. The
defendant would return the victim to her parent’s home before the parents could discover
the victim missing. One night, the victim and the defendant passed out and did not make
it back to the victim’s parent’s home. The victim’s mother called the police and told them
the victim was with the defendant.
The victim said that she had difficulty staying awake and that her grades at school
began to drop. The victim impact statement represented that the victim had become
depressed and had low self esteem as a result of the sexual relationship with the
defendant.
The defendant testified that he was twenty-eight or twenty-nine years old when he
met the victim at their mutual place of employment. Prior to engaging in sexual conduct
with the victim, the defendant knew the victim was sixteen year of age. He also admitted
that he knew having sex with a minor was against the law. However, the defendant
admitted that he lied to the victim about his age. He said that he feared the victim would
not date him if she knew his true age. The defendant and victim dated for approximately
2 one and one half years. At one point in the relationship, the victim’s mother discovered the
defendant’s true age and told the defendant to stay away from her daughter. However, the
defendant continued seeing the victim and engaging in sexual relations with her until they
were caught.
The defendant’s employer testified that the defendant was an outstanding employee
and had prospects for advancement. At the time of sentencing, the defendant was paying
child support and had only a conviction for driving on a revoked license. The defendant
admitted that he had lied to the probation officer who completed the presentence report
about his drug use.
LEGAL ANALYSIS
In this case, the defendant pled guilty to statutory rape -- a Class E felony and
agreed to a one-year sentence. Following an evidentiary hearing, the trial court denied the
defendant’s request for an alternative sentence. In this appeal, he argues that the trial
court erred in failing to impose probation, judicial diversion or week-end sentence.
When the defendant challenges the manner of serving a sentence, it is the duty of
this Court to conduct a de novo review of the record with a presumption that the trial court’s
determinations are correct. Tenn. Code Ann. § 40-35-401(d). 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 its review, this Court must consider the following: the evidence, if any, received
at trial and sentencing hearing, information contained in the presentence report, the
statutory principles of sentencing, counsel’s arguments as to sentencing alternatives, the
nature and characteristics of the criminal conduct, mitigating and statutory enhancement
factors, any statement that the defendant made on his own behalf, and the potential for
rehabilitation or treatment. Ashby, 823 S.W.2d 166, 168-69 (Tenn. 1991).
If an accused is convicted of a Class C, D or E felony and is sentenced as a
standard offender, there is a rebuttable presumption that the accused is a favorable
candidate for alternative sentencing unless disqualified by some provision of the
3 Tennessee Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-102(6).
The presumption may be successfully rebutted by facts contained in the presentence
report, evidence presented by the State, the testimony of the accused or a defense
witness, or any other source provided it is made a part of the record. State v. Bonestel,
871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). The defendant has the duty of convincing
this Court that the failure of the trial court to impose alternative sentencing was clearly
erroneous. Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401(d); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher, 805 S.W.2d 785, 786
(Tenn. Crim. App. 1991).
In a case where the defendant seeks probation, the Court must consider “the
accused’s criminal record, social history, present physical and mental condition, the
circumstances of the offense, the deterrent effect upon criminal activity of the accused as
well as others, and the accused’s potential for rehabilitation and treatment. State v.
Parker, 932 S.W.2d 945, 959 (Tenn. Crim. App. 1996). This Court has previously
determined that a negative finding of any one of these factors is sufficient to support a
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED JULY 1998 SESSION September 17, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) C.C.A. NO: 02C01-9709-CR-00349 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT ) DAVRON DINISH, ) ) (Sentencing) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
KEVIN KRAUSE JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 142 North Third, Third Floor Memphis, TN 38103 GEORGIA BLYTHE FELNER (At Trial & On Appeal) Counsel for the State Criminal Justice Division Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JERRY R. KITCHEN Asst. District Attorney General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103
OPINION FILED:
AFFIRMED
ROBERT W. WEDEMEYER, Special Judge OPINION The defendant pled guilty to one count of statutory rape and agreed to a one-year
sentence as a Range I offender. The trial court accepted this sentence and denied an
alternative sentence. In this appeal, the defendant argues that the trial court abused its
discretion in failing to grant judicial diversion, probation or a week-end sentence. Following
our review of the record, we affirm the trial court.
SENTENCING HEARING
The evidence offered at the sentencing hearing revealed that the victim and the
defendant were employed at the same restaurant and began dating. At that time, the
victim was sixteen-years-old and the defendant told the victim that he was twenty-two years
old. However, she later learned that he was twenty-seven or twenty-eight years old. Early
in the relationship, the victim and the defendant began having sexual relations. The victim
testified that at times the defendant would pick her up at her parent’s home at midnight or
1:00 a.m. and on other occasions would pick her up at school. The two would then go to
the defendant’s apartment and engage in sexual activities. On many occasions, the
defendant gave the victim marijuana while he drank alcohol and smoked marijuana. The
defendant would return the victim to her parent’s home before the parents could discover
the victim missing. One night, the victim and the defendant passed out and did not make
it back to the victim’s parent’s home. The victim’s mother called the police and told them
the victim was with the defendant.
The victim said that she had difficulty staying awake and that her grades at school
began to drop. The victim impact statement represented that the victim had become
depressed and had low self esteem as a result of the sexual relationship with the
defendant.
The defendant testified that he was twenty-eight or twenty-nine years old when he
met the victim at their mutual place of employment. Prior to engaging in sexual conduct
with the victim, the defendant knew the victim was sixteen year of age. He also admitted
that he knew having sex with a minor was against the law. However, the defendant
admitted that he lied to the victim about his age. He said that he feared the victim would
not date him if she knew his true age. The defendant and victim dated for approximately
2 one and one half years. At one point in the relationship, the victim’s mother discovered the
defendant’s true age and told the defendant to stay away from her daughter. However, the
defendant continued seeing the victim and engaging in sexual relations with her until they
were caught.
The defendant’s employer testified that the defendant was an outstanding employee
and had prospects for advancement. At the time of sentencing, the defendant was paying
child support and had only a conviction for driving on a revoked license. The defendant
admitted that he had lied to the probation officer who completed the presentence report
about his drug use.
LEGAL ANALYSIS
In this case, the defendant pled guilty to statutory rape -- a Class E felony and
agreed to a one-year sentence. Following an evidentiary hearing, the trial court denied the
defendant’s request for an alternative sentence. In this appeal, he argues that the trial
court erred in failing to impose probation, judicial diversion or week-end sentence.
When the defendant challenges the manner of serving a sentence, it is the duty of
this Court to conduct a de novo review of the record with a presumption that the trial court’s
determinations are correct. Tenn. Code Ann. § 40-35-401(d). 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 its review, this Court must consider the following: the evidence, if any, received
at trial and sentencing hearing, information contained in the presentence report, the
statutory principles of sentencing, counsel’s arguments as to sentencing alternatives, the
nature and characteristics of the criminal conduct, mitigating and statutory enhancement
factors, any statement that the defendant made on his own behalf, and the potential for
rehabilitation or treatment. Ashby, 823 S.W.2d 166, 168-69 (Tenn. 1991).
If an accused is convicted of a Class C, D or E felony and is sentenced as a
standard offender, there is a rebuttable presumption that the accused is a favorable
candidate for alternative sentencing unless disqualified by some provision of the
3 Tennessee Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-102(6).
The presumption may be successfully rebutted by facts contained in the presentence
report, evidence presented by the State, the testimony of the accused or a defense
witness, or any other source provided it is made a part of the record. State v. Bonestel,
871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). The defendant has the duty of convincing
this Court that the failure of the trial court to impose alternative sentencing was clearly
erroneous. Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401(d); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher, 805 S.W.2d 785, 786
(Tenn. Crim. App. 1991).
In a case where the defendant seeks probation, the Court must consider “the
accused’s criminal record, social history, present physical and mental condition, the
circumstances of the offense, the deterrent effect upon criminal activity of the accused as
well as others, and the accused’s potential for rehabilitation and treatment. State v.
Parker, 932 S.W.2d 945, 959 (Tenn. Crim. App. 1996). This Court has previously
determined that a negative finding of any one of these factors is sufficient to support a
denial of probation. State v. Bell, No. 02C01-9608-CR-00275 (Tenn. Crim. App. July 18,
1997).
In the instant case, the trial court heard the testimony of the victim, the defendant,
the defendant’s mother, the defendant’s maternal grandmother and the defendant’s
manager at his place of employment. The trial court also reviewed the presentence report
and heard argument by counsel.
The trial court found that the defendant intentionally and purposefully deceived the
victim by lying about his age so that the victim would go out with him. The court stated that
the defendant’s great age difference indicated his ability to toy with the emotions of a
young girl. The defendant told the court that he knew at the time that having sex with a
minor would be wrong. The court also noted that the defendant continuously had sexual
relations with the victim, even after the victim’s mother told the defendant to stay away from
the victim. Further, the defendant would assist the victim in sneaking out of her parent’s
house on school nights to engage in sexual activities.
The court found that the defendant supplied the victim with marijuana so that he
4 could use her body. All the while, the defendant consumed alcohol and marijuana. The
court also placed significance on the fact that the defendant lied to the probation officer
about his drug use. In considering the defendant’ social history, the court found that the
defendant had an illegitimate child and had exhibited his inability to live within his means
by filing bankruptcy.
After making his finding of fact, the trial court recognized the presumption of
alternative sentencing. However, the court concluded that:
[B]ecause of the circumstances of this offense and the willful conduct in all of these areas of this man who still today has no credibility, is lying on his presentence report, and sitting there now does not realize the wrong that he had done to this child, I just cannot give him any relief, cannot.
The trial court imposed a $500 fine and sentenced the defendant as a Range I offender
to one year in the local workhouse.
It is abundantly clear from the record that the trial judge considered the law and
evidence before him and concluded that it was appropriate to deny an alternative sentence
in this case. Having reviewed the testimony from the sentencing hearing and the
presentence report and having set out the trial court’s finding, this Court concludes that the
defendant has failed to meet his burden of showing that the trial court’s finding was clearly
erroneous.
CONCLUSION
Finding that the trial court properly considered the established sentencing
considerations and evidence, this Court AFFIRMS the sentence imposed by the trial court.
ROBERT W. WEDEMEYER, Special Judge
CONCUR:
JOE G. RILEY, Judge
CURWOOD W ITT, Judge