State of Tennessee v. David Wayne Phillips

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 9, 2012

STATE OF TENNESSEE v. DAVID WAYNE PHILLIPS

Appeal from the Circuit Court for Bedford County
No. 17084 Robert Crigler, Judge

No. M2011-01920-CCA-R3-CD - Filed July 13, 2012

David Wayne Phillips (“the Defendant”) pleaded guilty to twenty-six counts of sexual
exploitation of a minor after a computer that he gave someone was discovered to contain
child pornography. Nineteen of the counts were for possessing in excess of one hundred
images of a minor, all Class B felonies, and the remaining seven counts were for possessing
images of a minor, all Class D felonies. The guilty plea agreement did not include an
agreement with the State as to sentencing. After a sentencing hearing, the trial court ordered
the Defendant to serve an effective thirty-five year sentence and ordered the sentence to run
consecutively to the Defendant’s prior twenty-five year sentence. The Defendant appeals,
arguing that the trial court erred by: (1) failing to merge the Defendant’s twenty-six
convictions into a single Class B felony; and (2) imposing an excessive sentence. After a
careful review of the record and applicable law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the appellant,
David Wayne Phillips.

Robert E. Cooper, Jr., Attorney General & Reporter; Meredith Devault, Senior Counsel;
Charles Crawford, District Attorney General; Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

Background Facts and Procedure

The Defendant was indicted on twenty-six counts of sexual exploitation of a minor.
On February 14, 2011, he pleaded guilty to the indicted counts as follows: nineteen counts
of knowingly possessing in excess of one hundred images of a minor engaged in sexual or
simulated sexual activity; and seven counts of knowingly possessing images of a minor
engaged in sexual or simulated sexual activity. The state summarized the factual basis for
the guilty plea as follows:

[I]n April of 2009 the [D]efendant’s sister brought a laptop computer
to the sheriff’s department. She said the [D]efendant had given it to her. At
the time it didn’t have a power cord that worked properly. She had obtained
a new power cord for it and when she turned it on she saw that there were
images of child pornography on the computer. She shut it down and brought
it to the sheriff’s department.

....

It was sent to the technical services unit at the Tennessee Bureau of
Investigation. They did an examination of the contents of the hard drive and
determined that indeed there were a number of images of suspected child
pornography. There were 1,919 still images of suspected child pornography
and there were seven video files on the computer that appeared to be child
pornography.

The trial court accepted the guilty plea, which did not include an agreement with the
State as to sentencing. At the sentencing hearing, the State introduced a presentence report
containing the Defendant’s criminal record. Notably, on November 16, 2009, the Defendant
was convicted of five counts of violation of the sex offender registry, two counts of
aggravated sexual battery, and one count of rape of a child. He was sentenced to twenty-five
years’ incarceration at 100%. In addition, the Defendant previously had been convicted on
March 22, 1995, of two counts of sexual battery and one count of aggravated sexual battery.
He had served his nine-year sentence on these latter convictions. The Defendant also had ten
misdemeanor convictions for passing worthless checks. The Defendant offered no proof.

The trial court found the Defendant to be a Range I standard offender on counts one
through nineteen, all Class B felonies. Thus, the sentencing range on these convictions was
between eight and twelve years. On counts twenty through twenty-six, all Class D felonies,

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the trial court found the Defendant to be a Range II multiple offender, which carries a
sentencing range of between four and eight years.

The trial court found no applicable mitigating factors.1 Regarding enhancement
factors, the trial court found the Defendant to have a previous history of criminal convictions
or criminal behavior in addition to that necessary to establish the appropriate range. The trial
court placed “enormous weight” on this factor.

The trial court also reviewed the applicable sentencing principles and determined that
confinement was necessary. First, the trial court found that confinement was needed to
protect society by restraining a defendant with a long history of criminal conduct. The court
also found that confinement was needed to avoid depreciating the seriousness of the offense
and to provide an effective deterrent to others likely to commit similar offenses. Lastly, the
court found that measures less restrictive than confinement had been frequently and recently
applied unsuccessfully to the Defendant.

The trial court next considered whether consecutive sentencing was appropriate and
found that the following two criteria applied: (1) the Defendant is an offender whose record
of criminal activity is extensive; and (2) the Defendant is a dangerous offender whose
behavior indicates little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high. The court specifically found that either one of
these criteria standing alone would support its decision to impose consecutive sentences.

After making its findings on the record, the trial court sentenced the Defendant to
incarceration as follows:

Counts 1-10: Eleven years concurrent.
Counts 11-15: Twelve years concurrent but consecutive to counts 1-10.
Counts 16-19: Twelve years concurrent but consecutive to counts 1-15.
Counts 20-26: Eight years concurrent to all other counts.

Thus, the trial court effectively sentenced the Defendant to thirty-five years on the
instant offenses. The court ordered this sentence to run consecutively to the Defendant’s prior
existing twenty-five year sentence for a total combined sentence of sixty years.

On appeal, the Defendant raises two issues. First, he argues that the twenty-six sexual
exploitation of a minor counts should have merged into one Class B felony conviction.
Second, he argues that his sentence is excessive and contrary to law.

1
The Defendant did not argue that any mitigating factors applied.

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 Analysis

Issue One: Merger

The Defendant argues that the trial court erred by failing to merge his twenty-six
convictions into a single count of sexual exploitation of a minor. The Defendant contends
that possession of more than one hundred images of a minor engaged in actual or simulated
sexual activity gives rise to only a single Class B felony. Thus, according to the Defendant,
his multiple convictions violate the principles of double jeopardy.2

The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall
. . . be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V.3 Similarly, the Tennessee Constitution provides that “no person shall, for the
same offence, be twice put in jeopardy of life or limb.” Tenn. Const. art. 1, § 10. Our
supreme court has recognized the Double Jeopardy Clause to provide three fundamental
protections: “(1) protection against a second prosecution for the same offense after acquittal;
(2) protection against a second prosecution for the same offense after conviction; and (3)
protection against multiple punishments for the same offense.” State v. Watkins, 362 S.W.3d
530, 541 (Tenn. 2012); see also State v. Pickett, 211 S.W.3d 696, 705 (Tenn. 2007). This
case concerns the last of these three categories.

In State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), the Tennessee Supreme Court
discussed the doctrine of multiplicity:

2
We are aware that there is some disagreement on this Court as to whether, and under what
circumstances, a guilty plea may waive a double jeopardy claim. See State v. Rhodes, 917 S.W.2d 708, 710-
11 (Tenn. Crim. App. 1995); but see State v. Franklin, 919 S.W.2d 362, 368 (Tenn. Crim. App. 1995). We
discern the prevailing view to be that when the double jeopardy claim is apparent from the face of the record,
the issue is not waived. See, e.g., State v. Ronald Woods, Jr., No. W2009-02580-CCA-R3-CD, 2010 WL
4117165, at *4-5 (Tenn. Crim. App. Oct. 20, 2010); State v. Walter Jude Dec, No. M2009-01141-CCA-R3-
CD, 2010 WL 2977875, at *3-4 (Tenn. Crim. App. Jul. 30, 2010); State v. Milton Spears, Jr., No. C.C.A.
02C01-9606-CR-00197, 1997 WL 381569, at *1 (Tenn. Crim. App. Jul. 10, 1997).

We decline to resolve the issue of waiver in this case because the State has not argued that the
Defendant’s double jeopardy claim has been waived and the claim is apparent from the record. Thus, we will
review the double jeopardy issue on its merits.
3
The Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the
Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969); State v. Watkins, 362 S.W.3d 530,
540 n.20 (Tenn. 2012).

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 Multiplicity concerns the division of conduct into discrete offenses, creating
several offenses out of a single offense. Several general principles determine
whether offenses are “stacked” so as to be multiplicitous:

1. A single offense may not be divided into separate parts;
generally, a single wrongful act may not furnish the basis for
more than one criminal prosecution;

2. If each offense charged requires proof of a fact not required
in proving the other, the offenses are not multiplicitous; and

3. Where time and location separate and distinguish the
commission of the offenses, the offenses cannot be said to have
arisen out of a single wrongful act.

Id. at 665 (internal citations and footnotes omitted).

“Additional factors such as the nature of the act; the time elapsed between the alleged
conduct; the intent of the accused, i.e., was a new intent formed; and cumulative punishment
may be considered for guidance in determining whether the multiple convictions violate
double jeopardy.” Pickett, 211 S.W.3d at 706 (citing State v. Epps, 989 S.W.2d 742, 745
(Tenn. Crim. App. 1998)).

Legislative intent, however, remains the focus of a court’s double jeopardy analysis
when multiple punishments are imposed in a single prosecution. Watkins, 362 S.W.3d at 542
(citing Albernaz v. U.S., 450 U.S. 333, 344 (1981) (“[T]he question of what punishments are
constitutionally permissible is not different from the question of what punishments the
Legislative Branch intended to be imposed. Where Congress intended . . . to impose multiple
punishments, imposition of such sentences does not violate the Constitution.”)) (other
citations omitted). Thus, our legislature may create multiple “units of prosecution” within
the same statutory offense. State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997). However,
courts must determine “what the legislature intended to be a single unit of conduct for
purposes of a single conviction and punishment.” Watkins, 362 S.W.3d at 543 (citation
omitted). When the legislature fails to signal its intentions “clearly and without ambiguity,”
we will resolve the ambiguity in favor of lenity. Id. at 543-544; Lewis, 958 S.W.2d at 739.
This so-called “rule of lenity” means that a court will construe any ambiguity in the
legislature’s definition of a unit of conduct for prosecution “against the conclusion that the
legislature intended to authorize multiple units of prosecution.” Watkins, 362 S.W.3d at 543.

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 In this case, the Defendant was convicted of violating Tennessee Code Annotated
section 39-17-1003. Under a prior version of section 39-17-1003, courts of this state have
found multiple convictions arising under this criminal statute to be multiplicitous. See, e.g.,
Pickett, 211 S.W.3d at 705-706; State v. Wade McKinley Staggs, Sr., No. M2007-01228-
CCA-R3-CD, 2009 WL 363323, at *13-15 (Tenn. Crim. App. Feb. 13, 2009); State v.
Michael T. Sharp, No. E2006-00638-CCA-R3-CD, 2007 WL 4355466, at *7-8 (Tenn. Crim.
App. Dec. 13, 2007).4

For example, in Pickett, the defendant was convicted of eleven counts of sexual
exploitation of a minor based upon eleven images that were found on his computer depicting
child pornography. 211 S.W.3d at 700. The Tennessee Supreme Court held that the eleven
convictions were multiplicitous and that the evidence only supported one conviction. Id. at
706. The supreme court noted in this regard that the State’s proof did not “attempt to
distinguish the offenses by showing that the crimes were separated by time or location or by
otherwise demonstrating that [the defendant] formed a new intent as to each image.” Id.
Importantly, under the former statute, the supreme court noted that the State failed to
establish that the “legislature intended cumulative punishment.” Id.

In 2005, the legislature amended section 39-17-1003. The following amended
version of the statute was in effect at the time of the instant offenses:

(a) It is unlawful for any person to knowingly possess material that includes
a minor engaged in:

4
The version of the statute at issue in each of these cases was enacted in 1990 and provides as
follows:

(a) It is unlawful for any person to knowingly possess material that includes a minor
engaged in:

(1) Sexual activity; or

(2) Simulated sexual activity that is patently offensive.

(b) In a prosecution under this section, the trier of fact may infer that a participant is a minor
if the material through its title, text, visual representation or otherwise represents or depicts
the participant as a minor.

(c) A violation of this section is a Class E felony.

Tenn. Code Ann. § 39-17-1003 (2003).

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 (1) Sexual activity; or

(2) Simulated sexual activity that is patently offensive.

(b) A person possessing material that violates subsection (a) may be charged
in a separate count for each individual image, picture, drawing, photograph,
motion picture film, videocassette tape, or other pictorial representation.
Where the number of materials possessed is greater than fifty (50), the person
may be charged in a single count to enhance the class of offense under
subsection (d).

(c) In a prosecution under this section, the trier of fact may consider the title,
text, visual representation, Internet history, physical development of the person
depicted, expert medical testimony, expert computer forensic testimony, and
any other relevant evidence, in determining whether a person knowingly
possessed the material, or in determining whether the material or image
otherwise represents or depicts that a participant is a minor.

(d) A violation of this section is a Class D felony; however, if the number of
individual images, materials, or combination of images and materials, that are
possessed is more than fifty (50), then the offense shall be a Class C felony.
If the number of individual images, materials, or combination of images and
materials, exceeds one hundred (100), the offense shall be a Class B felony.

(e) In a prosecution under this section, the state is not required to prove the
actual identity or age of the minor.

Tenn. Code Ann. § 39-17-1003 (2006).

Of relevance to this case, the 2005 amendment added subsection (b) to reflect that the
State may charge a defendant in a separate count for each individual image or, when the
number of images is greater than fifty, may combine the images into a single count for
enhancement purposes. Subsection (d) was revised to reflect this tiered penalty approach.
Rather than being a Class E felony, as under the old statute, an offense under the amended
statute is a Class D felony. Id. § 39-17-1003(d). If indicted as a single offense, possession
of between fifty-one and one hundred images is a Class C felony, and possession of over one
hundred images is a Class B felony. Id.

A panel of this Court previously construed amended section 39-17-1003 in a case
presenting an identical issue. See State v. Walter Jude Dec, No. M2009-01141-CCA-R3-CD,

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2010 WL 2977875 (Tenn. Crim. App. July 30, 2010), perm. app. denied (Tenn. Dec. 8,
2010). In Dec, the defendant was found with approximately 2,595 images of child
pornography. Id. at *1. He pleaded guilty to twenty-five counts of possessing over one
hundred images, one count of possessing between fifty and one hundred images, and fifteen
counts of possessing less than fifty images. Id. He was sentenced on each conviction and
appealed, arguing that the trial court erred by not merging the forty-one counts into a single
conviction. Id. Upon review, this Court concluded that the statute granted the State the
discretion to indict for each illicit image separately or to group them into a single count. Id.
at *5. As we explained in Dec:

In overruling the defendant’s merger motion, the trial court determined
that the inclusion of the word “may,” as used in Tennessee Code Annotated
section 39-17-1003(b), in referring to filing charges pursuant to this statute,
gives the State discretion as to whether each image is the basis of a separate
count or whether a number would be combined into a single count. As we will
explain, we concur with this determination by the trial court.

In State v. Siliski, 238 S.W.3d 338 (Tenn. Crim. App. 2007), this court
explained the process which appellate courts must follow in construing a
statute:

A court’s role in construing a statute is to ascertain and give
effect to legislative intent. State v. Goodman, 90 S.W.3d 557,
563-64 (Tenn. 2002); State v. Flemming, 19 S.W.3d 195, 197
(Tenn. 2000). Whenever possible, legislative intent is to be
ascertained from the natural and ordinary meaning of the
language used. Flemming, 19 S.W.3d at 197; Carson Creek
Vacation Resorts, Inc. v. State, Dep’t of Revenue, 865 S.W.2d
1, 2 (Tenn. 1993). “The legislative intent and purpose are to be
ascertained primarily from the natural and ordinary meaning of
statutory language, without a forced or subtle interpretation that
would limit or extend the statute's application.” State v.
Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000) (citing State v.
Pettus, 986 S.W.2d 540, 544 (Tenn. 1999)). If the language of
a statute is not ambiguous, we may apply the plain language of
the statute to resolve the issue. Goodman, 90 S.W.3d at 563-64;
Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000).

Under the plain language of Tennessee Code Annotated section 39-17-
1003(b), the State has discretion as to whether each image results in a separate

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 count of an indictment or whether a number of images are grouped into a
single count. Thus, the manner in which the defendant was indicted was
permitted by the statute. Accordingly, we conclude that the counts of the
presentment are not multiplicitous and that the defendant is not entitled to
relief on the basis of this issue.

Dec, 2010 WL 2977875, at *5.

Upon our review of Dec, we conclude that section 39-17-1003 allows charges to be
brought by the State in the manner utilized in this case. The Defendant’s convictions are not
multiplicitous. Therefore, the Defendant is not entitled to relief on this issue.

Issue Two: Sentencing

The Defendant next argues that he received an excessive sentence. When a defendant
challenges the length, range, or manner of service of a sentence, the applicable standard of
review is de novo on the record with a presumption of correctness. Tenn. Code Ann. § 40-
35-401(d) (2006). However, 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). If the trial court did not
do so, then the presumption fails, and this Court’s review is de novo with no presumption of
correctness. State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004). If the trial court considered
the statutory criteria, imposed a lawful but not excessive sentence, stated its reasons for the
sentence on the record, and its findings are supported by the record, then this Court is bound
by the trial court’s decision. State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). On appeal,
the party challenging the sentence has the burden of demonstrating that it is improper. Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; Carter, 254 S.W.3d at 344.

In this case, the record demonstrates that the trial court carefully considered the
sentencing principles and all relevant facts and circumstances. Therefore, in our review of
the Defendant’s sentence, we will apply a presumption of correctness.

In conducting appellate review of a sentence, we must consider the following: (a) any
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments of counsel regarding sentencing alternatives; (d) the
nature and characteristics of the criminal conduct; (e) any enhancement or mitigating factors
as provided in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement made by the defendant on his

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or her own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2006); see also
Carter, 254 S.W.3d at 343.

The principles of sentencing reflect that a sentence of confinement should be based
upon the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2006); see also Carter, 254 S.W.3d at 347. Additionally,
the principles of sentencing reflect that the sentence should be no greater than that deserved
for the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Id. § 40-35-103(2), (4). A trial court should also
consider a defendant’s potential for rehabilitation or lack thereof when determining the
length of sentence. Id. § 40-35-103(5).

In imposing a sentence within the appropriate range of punishment, the court shall
consider, but is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the sentence that
should be imposed, because the general assembly set the minimum length of
sentence for each felony class to reflect the relative seriousness of each
criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, by
the presence or absence of mitigating and enhancement factors set out in §§
40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2) (2006). From this, “the trial court is free to select
any sentence within the applicable range so long as the length of the sentence is ‘consistent
with the purposes and principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343
(quoting Tenn. Code Ann. § 40-35-210(d)).

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 Tennessee Code Annotated section 40-35-115 provides, in pertinent part, that a trial
court may impose consecutive sentences if it finds by a preponderance of the evidence that
one of the following criteria are met: “(2) [t]he defendant is an offender whose record of
criminal activity is extensive; [or] (4) [t]he defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation about committing a crime in
which the risk to human life is high” Tenn. Code Ann. § 40-35-115(b)(2), (4) (2006). If the
trial court finds that one or more of the statutory criteria are met, then the decision whether
the defendant should be sentenced consecutively or concurrently is left to the sound
discretion of the trial court. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984).

In the instant case, the trial court sentenced the Defendant as a Range I standard
offender on each of his nineteen Class B felony convictions and as a Range II multiple
offender on each of his seven Class D felony convictions. On appeal, we discern no
argument from the Defendant that these classifications were improper. Accordingly, the
appropriate sentencing ranges were between eight and twelve years for the Class B felonies
and between four and eight years for the Class D felonies. See Tenn. Code Ann. § 40-35-
112(a)(2), (b)(4) (2006).

The trial court then determined whether any mitigating or enhancement factors were
present. The trial court found no mitigating factors applied. As an enhancement factor, the
court placed “enormous weight” on the Defendant’s prior criminal record which included,
inter alia, the rape of a child, multiple counts of aggravated sexual battery, and multiple
violations of the sex offender registry laws. On appeal, the Defendant does not contest these
specific findings, but instead argues that the weight given to them contravenes the purposes
and principles of the Sentencing Act. However, when the trial court’s findings are supported
by the record, the weight given to mitigating and enhancement factors is left to the trial
court’s discretion and is not a basis for reversal by this Court. Carter, 254 S.W.3d at 345-46.
Upon review, we conclude that the trial court’s findings as to mitigating and enhancement
factors are supported by the record. Thus, we decline to grant the Defendant relief on this
basis.

The Defendant’s principal issue is that the trial court did not order his sentences to run
concurrently but instead ordered partial consecutive sentences. In determining whether to
impose consecutive sentences, the trial court found two of the statutory criteria applied: (1)
that the Defendant is an offender whose record of criminal activity is extensive; and (2) that
the Defendant is a dangerous offender whose behavior indicates little or no regard for human
life and no hesitation about committing a crime in which the risk to human life is high. See
Tenn. Code Ann. § 40-35-115(b)(2), (4). As stated above, the existence of any one of the
seven criteria in Tennessee Code Annotated section 40-35-115(b) is sufficient to justify
consecutive sentencing. State v. Alder, 71 S.W.3d 299, 307 (Tenn. Crim. App. 2001).

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Consequently, we need not determine whether the trial court properly determined that the
Defendant is a dangerous offender. Based upon the trial court’s finding that the Defendant
has an extensive criminal record, a finding that is amply supported by the record, we
conclude that the trial court properly imposed consecutive sentencing.

Accordingly, because the trial court considered the statutory criteria, imposed a lawful
but not excessive sentence, stated its reasons for the sentence on the record, and its findings
are supported by the record, we are bound by the trial court’s decision. Carter, 254 S.W.3d
at 346. Moreover, we agree with the trial court that the Defendant’s sentence was justly
deserved in relation to the seriousness of the offenses and no greater than deserved under the
circumstances. Consequently, the Defendant is not entitled to relief on this issue.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________
JEFFREY S. BIVINS, JUDGE

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