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State v. Dunn12/27/1999
The Cocke County grand jury indicted the defendant, Lonnie Stephen Dunn, on three counts of statutory rape pursuant to Tenn. Code Ann. § 39-13-506 (1997). On September 12, 1997, the defendant pleaded guilty to all three counts. After a sentencing hearing, the trial court sentenced the defendant to two years on each of the three counts with the sentences on counts one and two to be served concurrently and that on count three to be served consecutively. The trial court ordered the defendant to serve one year in the county jail, followed by three years of probation. The defendant timely appealed, arguing the trial court's sentence was excessive. Based on our review of this matter, we affirm the sentence of two years in each count, but modify the judgment of the trial court to reflect that all sentences will be served concurrently. Additionally, we modify the term of split confinement to six months.
FACTS
The victim in this case was a 14-year-old girl with whom the 48- year-old defendant established a relationship in December 1993. The defendant was a disc jockey at a radio station where the victim called to make song requests. The defendant and the victim met and became friends. In October 1994, the defendant and the victim had sexual intercourse followed by two additional instances of sexual intercourse. The victim became pregnant with the defendant's child in May 1995. The child was born February 17, 1996.
I. LENGTH AND CONDITIONS OF SENTENCE
When an appeal challenges the length, range, or manner of service of a sentence, this court conducts a de novo review with a presumption that the determination of the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption 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 the event that the record fails to demonstrate such consideration, review of the sentence is purely de novo. Id. In conducting a de novo review of a sentence, the court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & -210. See State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If appellate review reflects that the trial court properly considered all relevant factors and its findings of fact are adequately supported by the record, this Court must affirm 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 case sub judice, the trial court found the existence of at least five enhancement factors listed in Tenn. Code Ann. § 40-35- 114 (1997):
(3) The offense involved more than one (1) victim;
(4) A victim of the offense was particularly vulnerable because of age or physical or mental disability, including, but not limited to, a situation where the defendant delivered or sold a controlled substance to a minor within one thousand feet (1,000 ft.) of a public playground, public swimming pool, youth center, video arcade, low income housing project, or church;
(7) The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement;
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