State v. Buckner, No. M2003-01010-CCA-R3-CD (TN 4/7/2005)
| Decision Date | 07 April 2005 |
| Docket Number | No. M2003-01010-CCA-R3-CD.,M2003-01010-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. TERRY WAYNE BUCKNER. |
| Court | Tennessee Supreme Court |
Ralph O. Frazier, Jr., Nashville, Tennessee, (on appeal); and Tony L. Maples, Murfreesboro, Tennessee, (at trial), for the appellant, Terry Wayne Buckner.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Jason Michael Ponder, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Joseph M. Tipton and Alan E. Glenn, JJ., joined.
Following a jury trial, Defendant, Terry Wayne Buckner, was convicted of two counts of sexual battery. Defendant was sentenced to serve one year in confinement for each offense, with the sentences to run concurrently with each other. On appeal, Defendant challenges the trial court's failure to order alternative sentencing and the trial court's consideration of enhancement factors which were not submitted to a jury. After a thorough review, we modify Defendant's sentence for each conviction to a sentence of one year of split confinement with three months to be served in confinement and the balance to be served on probation, with the sentences to run concurrently with each other.
The victims of the Class E felony offenses were Defendant's then fourteen-year-old stepdaughter, J.B., and her fourteen-year-old best friend, B.T. Because the victims are minors, their initials rather than their full names will be used throughout this opinion.
One summer afternoon, J.B. and B.T. were at J.B.'s grandparents' home, which was next door to where J.B.'s mother and her husband, Defendant, lived. B.T. had argued with her boyfriend the night before and wanted to meet him to talk. Because the girls knew J.B.'s mother and grandparents would not allow them to meet B.T.'s boyfriend, the two waited until J.B.'s mother had left for work, then lied to J.B.'s grandparents, saying they were going to visit a neighbor. J.B.'s grandparents discovered the girls were not at the neighbor's, and drove down the road to pick them up. They saw Defendant on the way back home, and the grandparents told him what had happened. After a lecture by Defendant and J.B.'s grandparents, Defendant took the girls to the neighbor's home so they could apologize to her. In the car, instead of continuing to lecture the girls, Defendant told them that they "should have come to [him] first" and that if they had, he would have allowed them to meet B.T.'s boyfriend without J.B.'s mother knowing. Defendant asked J.B. if he could trust B.T. When she said he could, he offered to allow the girls to do a lot of things they would not normally be allowed to do, such as go skating or meet boyfriends, and also to buy things for them, without telling anyone.
J.B. testified that after Defendant and her mother had been married for about two years, (when J.B. was twelve years old), Defendant had similarly promised to cover for her. He would allow J.B. to go to parties, meet a boyfriend, or purchase alcohol for her, and then lie to her mother on her behalf. In exchange, J.B. had to prove to him that he could trust her not to tell her mom or "get him into trouble." In order to prove he could trust her, Defendant would force J.B. to expose her breasts, model her bras and panties for him, and let him touch her vaginal area and breasts. Defendant would call this the "trust palette." J.B. testified that this happened on a daily basis for two years, but she did not tell anyone. When Defendant asked J.B. if he could trust her friend, B.T., J.B. believed he was referring to this "trust palette" and whether or not "he could trust her like he trusted me into letting him do things."
When Defendant, J.B., and B.T. returned home from the neighbor's house, Defendant sent J.B. outside so he could talk to B.T. alone. B.T. testified that when she was left alone with Defendant, he promised to let her and J.B. go skating, meet her boyfriend, give her money, or let her do what she wanted to do without telling anyone. Defendant then told B.T., "[s]o I can trust you, . . . there is something you have got to do for me." He turned off the lights, knelt in front of her, lifted up her shirt, and grabbed her breasts with both hands. She tried to get up, but Defendant grabbed her arm to prevent her from doing so, apologized, and said he wanted to talk. When B.T. sat back down, Defendant tried to unbutton her pants, but she got up from the chair.
Defendant went to get J.B. from outside, and B.T. went next door, where she tried to call her boyfriend. When Defendant was alone with J.B., he told her to sit next to him and he put his hand on the inside of her thigh. When she told him she was "on her period," he reached up and touched her breasts. At that point, Defendant's nephew pulled up to the house, and J.B. jumped up and ran outside to meet him.
At trial, Defendant denied ever inappropriately touching either B.T. or J.B. He denied ever making any sexual comments or talking inappropriately to either girl. He stated that he loved his step-daughter, J.B., very much and thought they had a good relationship.
Following a sentencing hearing, Defendant was sentenced to serve two concurrent one-year sentences as a Range I, standard offender. Defendant was ordered to serve this presumptive one-year minimum sentence in confinement, at thirty percent. On appeal, Defendant argues that the trial court erred by: (1) failing to sentence Defendant to alternative sentencing such as probation, (2) failing to apply judicial diversion when sentencing Defendant, and (3) applying the enhancement factors of "vulnerability" and "abuse of a position of private trust" without submission of proof of these factors to a jury.
This court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (2005). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make on the defendant's own behalf about sentencing.
Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the need to protect society by restraining a defendant having a long history of criminal conduct, the need to avoid depreciating the seriousness of the offense, whether confinement is particularly appropriate to effectively deter others likely to commit similar offenses, and whether less restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A court may also consider the mitigating and enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the defendant's potential or lack of potential for rehabilitation when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); Boston, 938 S.W.2d at 438.
There is no mathematical equation to be utilized in determining sentencing alternatives. Not only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case basis, tailoring each sentence to that particular defendant based upon the facts of that case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).
Defendant first argues that the trial court erred by denying alternative sentencing and ordering Defendant to serve his effective one-year sentence in confinement. A defendant is eligible for probation if the sentence received by the defendant is eight years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). As noted earlier, an especially mitigated or standard offender convicted of a Class C, D or E felony is...
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