State v. David Ryan Swanson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE v. DAVID RYAN SWANSON Direct Appeal from the Criminal Court for Hamilton County Nos. 213832-213843; 216727-216740 Douglas A. Meyer, Judge No. E1998-00041-CCA-R3-CD - Decided May 16, 2000 The defendant, David Ryan Swanson, pled guilty to 19 counts of burglary, one count of theft of property over $500.00, and three counts of theft of property under $500.00. The trial court sentenced the defendant to two years on each burglary charge, two years on the charge of theft of property over $500.00, and 11 months and 29 days on each charge of theft of property under $500.00. Four of the sentences were ordered to be served consecutively for an effective sentence of eight years. On appeal, the defendant argues that the trial court erred in its determination of enhancement factors, erred in its imposition of consecutive sentences, and improperly denied an alternative sentence. We affirm the defendant's convictions, but modify the sentences for burglary and theft of property over $500.00 from two years to one year and order that six of the sentences be served consecutively for an effective sentence of six years. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed as Modified WADE, P.J., delivered the opinion of the court, in which SMITH and WITT, JJ., joined. Johnny D. Houston, Jr., (on appeal) and Laurie J. Hadwyn (at trial), Chattanooga, Tennessee, for the appellant, David Ryan Swanson. Paul G. Summers, Attorney General & Reporter, Michael J. Fahey II, Assistant Attorney General, H. C. Bright, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION As part of a plea agreement, the defendant, David Ryan Swanson, pled guilty to nineteen counts of burglary, one count of theft of property over $500.00, and three counts of theft of property under $500.00. The state and the defense agreed that the defendant should be sentenced as a Range I offender to no more than an aggregate of eight years. All other sentencing issues were to be resolved by the trial court. At the conclusion of a hearing, the trial court sentenced the defendant to two years on each burglary charge, two years on the charge of theft of property over $500.00, and 11 months and 29 days on each charge for theft of property under $500.00. The trial court ordered that four of the two-year sentences be served consecutively to one another and concurrently to all other sentences, thereby imposing an effective sentence of eight years, the maximum possible. In this appeal of right, the defendant contends that the trial court committed errors in its determination of enhancement factors, erred in its imposition of consecutive sentences, and improperly denied an alternative sentence under the Community Corrections Act. The sentences for burglary and theft of property over $500.00 are modified from two years to one year. The misdemeanor theft sentences of 11 months and 29 days are affirmed. The defendant shall serve six of the sentences for burglary consecutively, with the remainder of his sentences to be served concurrently. The effective sentence is, therefore, modified from eight to six years. During the time period between January 1994 and June 1996, 19 women reported that their purses had been stolen from vehicles parked in recreational areas near Signal Mountain. Law enforcement officials received information that a red or orange truck having wooden panels was used by the perpetrator. While on patrol near the area of the thefts, Officer Greg Hill of the Signal Mountain Police Department received information that a man driving the suspected truck had just stolen a purse from a parked car. Officer Hill then saw the truck and began pursuit. When he activated his emergency lights, the driver refused to stop. Officer Hill placed a call to the fire department and the officers were able to stop the truck by blocking its path with a fire engine. The defendant was the driver of the truck. Officer Hill, a K-9 officer, approached the truck with his dog. The dog alerted. A search yielded two purses which had been stolen in the area, one of which contained narcotics. After his arrest, the defendant admitted to stealing the 19 purses. He explained that he had been diagnosed as a "sex addict" and that he took the purses in order to satisfy his sexual desires and fantasies. The defendant informed the officers that he would "masturbate to these [stolen] purses." He revealed that he had begun the practice of looking into girls' purses while in high school. With the defendant's cooperation, officers located 31 stolen purses in the defendant's possession, only 19 of which had been reported as missing. In addition to the purses, the officers found a large box containing items such as drivers' licenses, diaries, and photographs. The defendant explained that he did not keep all of the purses that he had stolen because he lost sexual interest in them, but decided to keep the contents of the purses because he believed he had a "personal relationship" with the female victims and their families. He said that he used the cash from the purses and kept the remainder of the contents. Officers were able to identify a total of 65 victims from the materials the defendant kept in his possession. At the sentencing hearing, it was established that the defendant, age 30, had been married since 1994. The couple had no children together. The defendant's first marriage, which ended in divorce in 1993, produced one son, age three at the time of the defendant's arrest. The child resides with his mother and the defendant regularly provides support of $50.00 per week. After completing high school, the defendant enrolled in courses at Chattanooga State Community College where he has studied mathematics and maintained a high grade point average. He has a good employment record, including work as a teachers' aide at the community college, as a substitute -2- teacher for the Hamilton County School System in 1995 and 1996, and as a woodworker at a cabinet shop. The defendant has a variety of health problems, which include depression, anxiety, obesity, back pain, cluster headaches, and cardiomegaly (enlarged heart). He has one prior offense, a misdemeanor assault conviction in 1993. The defendant claimed that he had a "sex and love addiction." He explained that he "created these fantasy relationships that weren't real" and that his low self-esteem causes him to seek out unhealthy relationships. He contended that he had been making significant progress with a 12- step program designed to combat his problems. He apologized to his family and the victims of the crimes. The defendant's wife and father both testified that they were unaware of his "sexual addiction" at any time before his arrest. Several women whose purses had been stolen by the defendant also testified at the sentencing hearing. None, however, were victims of the 19 burglaries or the four thefts to which the defendant pled guilty. Each of the women expressed the feeling that she had been violated by the defendant. They were particularly concerned about the defendant obtaining their personal information, which included their addresses, social security numbers, and photographs. The women also testified that their children were afraid that the defendant might attempt to break into their homes. At least one of the purses the defendant had stolen contained keys to the victim's home. Each of the women testified to the inconveniences of cancelling credit cards, dealing with stolen checks, and replacing drivers' licenses and social security cards. They also testified as to the value of their stolen property and the break-in damage to their vehicles. The women testified that all of their personal belongings had been returned to them, with the exception of any cash. The only information relating to the actual victims of the crimes for which the defendant was convicted is contained in two victim impact statements. In the section marked "Victim's Property Loss," Mary Seay, one of the burglary victims, wrote the following: "Van side window smashed–$150.00, I think. Purse and contents stolen. A year later, I got everything back except the money–about $20.00. Locks on doors to house changed–$60.00. My husband did this himself–cost him his time, inconvenience." Jennifer Scoggins, a burglary and misdemeanor theft victim, reported that her stolen purse had an estimated value of $40.00. The pre-sentence report indicates that the investigating officer mailed victim impact statement forms to six additional victims, but none of these forms were returned to the officer. I Initially, the defendant argues that the trial court erred in its application of statutory enhancement factors. The state argues that the enhancement factors were properly applied. When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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. -3- 1991); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Because the trial court committed error in sentencing the defendant, our review of the defendant's sentence is de novo, without an accompanying presumption of correctness. Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). In calculating the sentence for felony convictions committed before July 1, 1995, the presumptive sentence is the minimum within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c) (1990) (amended July 1, 1995, to provide that the presumptive sentence for Class A felony as the midpoint in the range). If there are enhancement factors but no mitigating factors, the trial court may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range by any weight assigned to the mitigating factors present. Id. The weight given to each factor is within the trial court's discretion provided that the record supports its findings and it complies with the Sentencing Act. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). For a Range I offender, the applicable range for the offense of burglary of an automobile, a Class E felony, is from one to two years. Similarly, the range for the Class E felony offense of theft of property over $500.00 is from one to two years. The maximum sentence for misdemeanor theft of property is 11 months and 29 days. At the conclusion of the sentencing hearing, the trial court set two-year sentences for each burglary conviction and for the single felony theft conviction. A sentence of 11 months and 29 days was imposed for each of the three misdemeanor theft convictions. Because four of the two-year sentences were ordered to be served consecutively, the effective sentence was eight years. The trial court found the following enhancement factors applicable, but did not specify whether the factors applied to the burglaries or to the thefts: (1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (3) The offense involved more than one (1) victim; -4- (6) The personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great; and (7) The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement. Tenn. Code Ann. § 40-35-114. Trial courts must make separate findings as to which enhancement factors apply to which convictions. State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994). In this case, it appears that the trial court may have intended to apply each of the cited enhancement factors to all of the defendant's convictions. The trial court found the following mitigating factors: (1) The defendant's criminal conduct neither caused nor threatened serious bodily injury; and (10) The defendant assisted the authorities in locating or recovering any property or person involved in the crime. Tenn. Code Ann. § 40-35-113. The trial court complimented the defendant for helping the police "in clearing all the cases that he had committed. And also, I will give him credit for continuing to seek help, even though his own counselor says that he was only going through the motions." Because the punishment for the offense of theft is enhanced based upon the amount taken by the defendant, Tenn. Code Ann. § 40-35-114(6) may not be applied to any of the theft offenses. State v. Grissom, 956 S.W.2d 514 (Tenn. Crim. App. 1997). Any enhancement of the theft convictions based upon that factor was erroneous. Moreover, none of the 19 victims of the crimes for which the defendant was convicted were called upon to testify as to the value of the property which was lost or damaged. The only information relating to the victims of the offenses is contained in the victim impact statements of Mary Seay and Jennifer Scoggins. Jennifer Scoggins reported $40.00 as her amount of loss and Mary Seay wrote that her stolen purse contained approximately $20.00 in cash, that her van side window cost approximately $150.00, and that replacement locks for her home totaled $60.00. Thus, the aggregate amount of damage sustained by the victims of the crimes at issue was not "particularly great," as that term is contemplated by Tenn. Code Ann. § 40-35-114(6). Therefore, the "amount of damage" factor is not applicable. In State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994), this court ruled that the multiple victims factor, Tenn. Code Ann. § 40-35-114(3), is not applicable when convictions are entered for each victim, as in this case. Furthermore, trial courts may not infer dual ownership of property. In State v. Shannon Renee Davis, No. 03C01-9311-CR-00387 (Tenn. Crim. App., at -5- Knoxville, Nov. 14, 1995), aff'd 940 S.W.2d 558 (Tenn. 1997), the defendant damaged the home and automobile of a co-worker. While acknowledging that "it would probably be reasonable for this Court to infer from the record that either [the husband or the wife] had a property interest in the house or automobile," this court refused "to infer dual ownership based on this record." Id. at 8. Moreover, this court declined "to broaden the application of who is a