State v. Lane

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE
FILED
September 27, 1999

Cecil Crowson, Jr.
STATE OF TENNESSEE, Appellate Court Clerk
) FOR PUBLICATION
)
Appellee, ) FILED: September 27, 1999
)
v. ) BRADLEY COUNTY
)
DAVID KEITH LANE, ) HON. R. STEVEN BEBB, JUDGE
)
Appellant. ) NO. 03-S-01-9802-CC-00013

For Appellant: For Appellee:

KENNETH F. IRVINE, JR. JOHN KNOX WALKUP
Knoxville, TN Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

TIMOTHY F. BEHAN
Assistant Attorney General
Nashville, TN

JERRY N. ESTES
District Attorney General
Athens, TN

REBBLE S. JOHNSON
Asst. District Attorney General
Cleveland, TN

OPINION

AFFIRMED BIRCH, J.
 We granted review in this case in order to resolve two

sentencing issues. In the first, the defendant, David Keith Lane,

contends that the trial court should have used the criteria set

forth in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), (rather

than the provisions of Tenn. Code Ann. § 40-35-115(b)(5)(1997)) to

determine whether to impose consecutive sentences. In the second,

the defendant asserts that he should have been granted alternative

sentencing, contending that the trial court’s denial of alternative

sentencing was based, at least in part, upon a consideration of a

conviction since dismissed and expunged from his record. Because

we find that the trial court properly applied the laws and

principles governing sentencing in both issues, we affirm the

judgment of the Court of Criminal Appeals.

I

The complainant, E. S.,1 a sixteen-year-old female, was

placed in the custody of the Tennessee Department of Human Services

(DHS) in January 1992. Lane was employed by DHS, and his duties

included the counseling of foster-care children in Cleveland. In

January 1993, he was assigned as E. S.’s counselor, and he assisted

in her foster-care placement with her aunt and uncle.

In August 1994, the foster-care placement was terminated

after E. S.’s uncle discovered marijuana under her bed. As her

counselor, Lane’s duties included transferring E. S. to a Knoxville

1
Due to the age of the complainant and the nature of the
offense, we identify by her initials only.

2
shelter. Before reaching the shelter, Lane engaged in sexual

intercourse with E. S. in the car. He told her not to tell anyone

what they had done and that if she did “people would just think

that she was a whore.”

This was the first act of a continuing course of unlawful

activity between Lane and E. S. The next encounter occurred after

E. S. had run away from a Sevierville facility to which she had

been transferred. At that time, she contacted Lane, who picked her

up and drove her to his friend’s home in Chattanooga. En route,

Lane encouraged E. S. to smoke marijuana with him. After arriving

at the friend’s home, Lane smoked more marijuana with E. S. and

engaged in sexual intercourse with her.

After that encounter, E. S. surrendered to the

authorities in Cleveland and was released to the custody of her

grandfather. Lane continued to pursue E. S. while she was living

with her grandfather, and he engaged in sexual intercourse with her

on three occasions during this period.

Following an investigation, Lane was indicted for three

counts of statutory rape2 and three counts of unlawful exercise of

official power3 (all Class E felonies). He entered pleas of guilty

to all counts and was sentenced to the Department of Correction for

two years on each count with the statutory rape sentences running

consecutively to the sentences for official misconduct, an

2
Tenn. Code Ann. § 39-13-506 (1997).
3
Tenn. Code Ann. § 39-16-402 (1997).

3
effective sentence of four years. The trial court denied

probation. The Court of Criminal Appeals affirmed the trial

court’s sentence.

II

As stated, the trial court imposed consecutive sentencing

pursuant to Tenn. Code Ann. § 40-35-115(b)(5) (sexual abuse of a

minor). Lane first asserts that this was error because there were

insufficient “aggravating circumstances” to warrant consecutive

sentencing under this section. Specifically, he argues that (1)

his status as an “official” should not be considered because it

provided the basis for the official misconduct convictions; (2) the

time span of the offenses was short; (3) the nature and scope of

the sexual acts were “limited”; (4) there was no “residual physical

damage” to E. S.; and (5) the “mental damage was minimal.” See

Tenn. Code Ann. § 40-35-115(b)(5).

Our review of whether sufficient aggravating

circumstances existed to meet the requirements of Tenn. Code Ann.

§ 40-35-115(b)(5) is governed by Tenn. Code Ann. § 40-35-

401(d)(1997). Accordingly, our review is de novo on the record

“with a presumption that the determinations made by the court from

which the appeal is taken are correct.” Id. The burden of showing

that the sentence is improper is thus upon the defendant. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

4
 The Criminal Sentencing Reform Act of 1989 establishes

categories of offenders who are eligible for consecutive

sentencing. As stated, the trial court based consecutive

sentencing in this case on the fifth category, which provides:

The defendant is convicted of two
(2) or more statutory offenses
involving sexual abuse of a minor
with consideration of the
aggravating circumstances arising
from the relationship between the
defendant and victim or victims, the
time span of defendant’s undetected
sexual activity, the nature and
scope of the sexual acts and the
extent of the residual, physical and
mental damage to the victim or
victims.

Tenn. Code Ann. § 40-35-115(b)(5).

Our review of the record demonstrates the following

circumstances which support the imposition of the consecutive

sentences. First, the relationship between Lane and E. S. was one

wherein she, and the State, entrusted her welfare to Lane. As

E. S.’s DHS counselor, he was bound to counsel and protect her.4

Instead, Lane exploited the relationship by smoking marijuana with

her and by engaging in sexual intercourse with her.5 Furthermore,

4
The fact that this relationship also led to the convictions
for official misconduct is irrelevant for purposes of consecutive
sentencing. Tenn. Code Ann. § 40-35-114 (1997) prohibits the use
of an “essential element of the offense” as an enhancement factor.
However, no such prohibition is found concerning consecutive
sentencing under Tenn. Code Ann. § 40-35-115.
5
The victim impact statement included the following assertion
by E. S.:

I was a child of 16; I didn’t have anyone else at that
time so [the defendant] used his position above me to
sleep with me, and managed to make me believe it was all

5
Lane persisted in this egregious conduct for over a month and

terminated it only when he was confronted by the Tennessee Bureau

of Investigation. Without question, the nature and scope of the

sexual acts between Lane and E. S. were reprehensible. Finally,

the record supports the trial court’s finding that E. S. suffers

from “residual mental damage” as a direct result of Lane’s abuse.6

Accordingly, the State has proven sufficiently aggravating

circumstances accompanying the sexual offenses, as required by

Tenn. Code Ann. § 40-35-115(b)(5).

Lane next asserts that even if sufficient aggravating

circumstances were proven, the trial court erred in imposing

consecutive sentences without first complying with the requirements

of State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Lane relies on

Wilkerson to support the proposition that before a court may order

consecutive sentencing of any defendant under Tenn. Code Ann. § 40-

35-115(b), it must make specific findings that “an extended

sentence is necessary to protect the public” and is “reasonably

related to the severity of the offenses committed.” See id. at

939. The Court of Criminal Appeals rejected this argument, stating

that “the opinion in Wilkerson may be fairly construed to apply

only to consecutive sentencing of dangerous offenders.”7

my fault and I was a bad person and needed what was
coming toward me with being sent off.
6
By the time of sentencing, E. S. had undergone counseling and
continued to suffer from sleeplessness and other emotional problems
resulting from Lane’s acts.
7
Lane was not adjudicated a “dangerous offender” as defined
under Tenn. Code Ann. § 40-35-115(b)(4). However, the appellate
court went on to find that even if the reasoning of Wilkerson did
apply to the sentencing of this defendant, consecutive sentencing

6
 Thus, the instant case presents us with the opportunity

to clarify the limits of the Wilkerson holding. We review this

question of law de novo with no presumption of correctness. See

id. at 935. To resolve this issue, we must examine our holding in

Wilkerson and review the statutory principles of consecutive

sentencing.

As previously noted, the Sentencing Act sets forth the

categories of offenders eligible for consecutive sentencing. See

Tenn. Code Ann. § 40-35-115. The Act also includes general

principles of sentencing which trial courts must consider in

determining the length of a defendant’s sentence. The relevant

provisions are that the length of the sentence must be “justly

deserved in relation to the seriousness of the offense”8 and

“should be no greater than that deserved for the offense

committed.”9

In Wilkerson, the defendant satisfied the statutory

definition of a “dangerous offender” under Tenn. Code Ann. § 40-35-

115 (b)(4).10 Id. at 937-38. However, the facts of that case did

not support the consecutive confinement imposed.11 We thus

was appropriate in this case.
8
Tenn. Code Ann. § 40-35-102(1)(1997).
9
Tenn. Code Ann. § 40-35-103(2)(1997).
10
The defendant’s conduct indicated no regard for human life
and no hesitation before committing a crime in which the risk to
human life was high. Wilkerson, 905 S.W.2d at 937-38.
11
According to the opinion, the defendant was a first-time
offender convicted of vehicular homicide and vehicular assault
after a drunk-driving accident. Id. at 934. The defendant’s
erratic behavior around the time of the accident, however, was

7
concluded that satisfying the definition of subsection 115(b)(4),

was not, in and of itself, “sufficient to sustain consecutive

sentences.” Id. at 938. Under the Sentencing Act, there must also

exist “particular facts” which show that consecutive sentencing is

“reasonably related to the severity of the offenses” and serves to

protect society “from further . . . aggravated criminal conduct.”

Id. In order to limit the use of the “dangerous offender” category

to cases where such “particular facts” exist, this Court held that

sentencing courts must make specific findings regarding the

severity of the offenses and the necessity to protect society

before ordering consecutive sentencing under Tenn. Code Ann. § 40-

35-115(b)(4). Id. at 939.

The requirement that a court make these specific findings

before imposing a consecutive sentence on a “dangerous offender”

arises from the fact that of all of the categories for consecutive

sentencing, the dangerous offender category is the most subjective

and hardest to apply. Section 40-35-115(b)(5) on the other hand,

is illustrative of the self-contained limits found in the other

categories for consecutive sentencing. Under subsection 115(b)(5),

before the perpetrator of more than one sexual offense against a

minor can be exposed to consecutive sentencing, the court must

consider the previously discussed aggravating circumstances. Thus,

by definition, Tenn. Code Ann. § 40-35-115(b)(5) is limited to

those defendants whose conduct justifies extended confinement under

the principles of the Sentencing Act. Accordingly, the Court of

attributed to a manic-depressive disorder which was under control
by medication by the time of sentencing. Id. at 937.

8
Criminal Appeals correctly held that Wilkerson is limited to cases

involving consecutive sentencing of “dangerous offenders.”

Consequently, the trial court did not err in ordering consecutive

sentencing in this case.

III

Lane’s next issue is whether the trial court erred in

denying alternative sentencing. Specifically, he contends that the

trial court improperly considered a previously expunged12 out-of-

state conviction. Although we have addressed the use of such

convictions in the context of judicial diversion, this is an issue

of first impression as it relates to alternative sentencing under

Tenn. Code Ann. § 40-35-102.

At sentencing, Lane sought probation or a sentence of

split confinement.13 The trial court denied these alternative

sentences and imposed a sentence to the Department of Correction.

The trial court’s decision was based, at least in part, on the

criminal behavior which led to a theft conviction in North Dakota,

since expunged but included in the presentence report.

In State v. Schindler, 986 S.W.2d 209 (Tenn. 1999), this

Court addressed the use of expunged convictions in the sentencing

12
Expungement removes from certain official records information
relating to the defendant’s arrest, indictment, trial, finding of
guilt, and dismissal and discharge. Tenn. Code Ann. § 40-35-313(a)
(2)(b)(Supp. 1998).
13
See Tenn. Code Ann. § 40-35-306 (1997)(Split confinement -
Probation following partial service of sentence).

9
process. The defendant in that case was denied judicial diversion14

based on the trial court’s consideration of two expunged out-of-

state convictions.

In Schindler, this Court examined the status of an

expunged conviction. We stated as follows:

Expungement returns the person to
the position “occupied before such
arrest or indictment or
information.” Tenn. Code Ann. § 40-
35-313(b). Expungement does not
return a person to the position
occupied prior to committing the
offense. . . . Accordingly, the law
would blind itself to reality if the
law refused to recognize these
criminal acts and accord them any
legal significance whatsoever.

Id. at 211. Because expungement does not erase the underlying

conduct or behavior, we held that “the testimony and evidence of

the criminal acts . . . are admissible as evidence of prior bad

acts or evidence of social history even if expungement is later

obtained.” Id.

Although the issue in Schindler was raised in the context

of judicial diversion, its reasoning and analysis are equally

applicable. Accordingly, the principles outlined in Schindler

compel us to conclude that the criminal acts underlying an expunged

conviction may properly be considered to determine whether a

defendant is a suitable candidate for alternative sentencing. To

14
Under this form of diversion, a defendant’s conviction is
dismissed and the record expunged upon successful completion of the
conditions imposed by the trial court. Tenn. Code Ann. § 40-35-313
(Supp. 1998).

10
the extent that the trial court’s decision in this case can be

construed as dependent on the mere fact of conviction (as compared

to the underlying conduct), we find error in denying alternative

sentencing on that basis.

Our inquiry does not stop here. To determine whether the

defendant is eligible for alternative sentencing, we must conduct

a de novo review of this record, guided by the relevant statutory

principles of alternative sentencing. See Tenn. Code Ann. § 40-35-

401(d); Ashby, 823 S.W.2d at 169 (Tenn. 1991).

Under the Sentencing Act, a defendant who does not

possess “criminal histories evincing a clear disregard for the laws

and morals of society” and is “convicted of a Class C, D or E

felony,” is “presumed to be a favorable candidate for alternative

sentencing options.” Tenn. Code Ann. § 40-35-102(5), -102(6). The

presumption may be overcome, however, by “evidence to the

contrary.” Tenn. Code Ann. § 40-35-102(6). Such evidence may

include evidence that confinement is necessary to avoid

depreciating the seriousness of the offense or is particularly

suited to provide an effective deterrence to others likely to

commit similar offenses. State v. Davis, 940 S.W.2d 558, 560

(Tenn. 1997).15

15
“To sustain the denial of probation based solely upon the
nature of the offense, the criminal act, as committed, must be
‘especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree,’ and
the nature of the offense must outweigh all factors favoring
probation.” State v. Cleavor, 691 S.W.2d 541, 543-44 (Tenn.
1985)(quoting State v. Travis, 622 S.W.2d 529 (Tenn. 1981)). To
sustain a denial of probation based on its suitability for
providing deterrence, the “finding of deterrence cannot be

11
 Besides the expunged theft conviction and two unserved

warrants for passing worthless checks, the record also indicates

that there were two uncharged incidents of statutory rape and four

uncharged incidents of official misconduct emanating from the

relationship with E. S. Furthermore, the defendant provided

marijuana and cigarettes to a minor under his supervision knowing

her history of substance abuse. Moreover, he facilitated the

complainant’s escape from her custodial placement. The fact that

Lane was, at all pertinent times, E. S.’s DHS counselor makes his

conduct especially disturbing. As the Court of Criminal Appeals

found: “The nature and circumstances of the defendant’s conduct

. . . outweigh all other factors favoring alternative sentencing

and, therefore, confinement is necessary to avoid depreciating the

seriousness of the offense.” Thus, the abundance of evidence in

this case fully rebuts any presumption Lane may have had to

alternative sentencing.

IV

In conclusion, we find that because Wilkerson is limited

to cases involving consecutive sentencing of “dangerous offenders,”

the trial court properly imposed consecutive sentencing. We also

conclude that the Court of Criminal Appeals adhered to proper

statutory sentencing procedures and duly weighed and considered all

appropriate factors. The abundance of egregious evidence fully

rebuts Lane’s entitlement to an alternative sentence.

conclusory only but must be supported by proof.” Davis, 940 S.W.2d
at 560 (quoting State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991)).

12
 Costs of appeal are taxed to the defendant.

______________________________
ADOLPHO A. BIRCH, JR., Justice

Panel:

Anderson, C.J.
Drowota, Holder, JJ.

J. Barker, not participating

13