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
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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.
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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;
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(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
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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