State of Tennessee v. James Dale Walker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 24, 2004

STATE OF TENNESSEE v. JAMES DALE WALKER

Appeal from the Circuit Court for Blount County

Nos. C-12949 and C-12950 D. Kelly Thomas, Jr., Judge

No. E2003-01372-CCA-R3-CD

March 25, 2004

The defendant, James Dale Walker, pled guilty in the Blount County Circuit Court to aggravated

sexual exploitation of a minor, a Class C felony, and sexual exploitation of a minor, a Class E felony.

Pursuant to the plea agreement, the defendant received concurrent sentences of six and two years,

respectively, as a Range I, standard offender. The manner of service of the sentences was to be

determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant

serve his sentences in total confinement. On appeal, this court reversed and remanded, ordering that

the trial court reconsider a sentencing alternative to confinement in the Department of Correction

(DOC). See State v. James Dale Walker, No. E2002-00263-CCA-R3-CD, Blount County (Tenn.

Crim. App. Oct. 18, 2002). After a second sentencing hearing, the trial court ordered that the

defendant serve six months in confinement and the remainder of his sentences on supervised

probation. The defendant appeals, claiming that he should have received full probation. We affirm

the judgments of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN

E. GLENN , JJ., joined.

Raymond Mack Garner, District Public Defender, for the appellant, James Dale Walker.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Michael L. Flynn, District Attorney General; and Robert L. Headrick, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This case relates to the defendant’s ordering a child pornography videotape as part of an

undercover law enforcement operation in May 2000. In the defendant’s original appeal, this court

stated the following facts:

An internet company based in Dallas, Texas, called “Landslide” had

been providing access to internet websites containing child

pornography. As a result of an investigation by postal inspectors and

other law enforcement personnel in Dallas, the company was put out

of business and taken over by law enforcement authorities as an

undercover operation.

During the investigation of Landslide, law enforcement

officers recovered a list of over one-hundred thousand names of

customers across the country who had utilized Landslide to access

child pornography websites. E-mails were sent to the twenty-five

people in Tennessee who had accessed the child pornography sites

most often. The Defendant was one of the twenty-five people on the

list in Tennessee to whom an e-mail was sent. The e-mail stated that

the Landslide company was back in business and offering the same

services previously provided. The Defendant responded to the e-mail

and was eventually given the opportunity to purchase child

pornography videotapes. The Defendant requested a list of videos

containing “pre-teen” pornography. A law enforcement officer sent

the Defendant a list of available titles, including a graphic description

of the sexual acts depicted in the videos and the ages of the actors.

The Defendant ordered a videotape entitled “Teen Sex,” which was

described as depicting a nine-year old girl having sex with her father

and his friend. The Defendant mailed a money order in the amount

of $49.95 and requested that the video be sent to his post office box.

Id., slip op. at 2. When the defendant picked up the videotape from the post office, authorities

stopped him in the parking lot. The defendant turned over his home computer to the police and told

the officers that he had a problem with child pornography. Id. He pled guilty to aggravated sexual

exploitation of a minor and sexual exploitation of a minor.

At the defendant’s first sentencing hearing, David Dirmeyer, a United States Postal Service

Inspector, testified that he confronted the defendant in the post office parking lot and that the

defendant gave a statement. He said that according to the defendant, the defendant would look at

child pornography over the Internet and download some of the pornographic images onto his

computer. He said that at some point, the defendant would become disgusted with himself, delete

the downloaded material, and “start the cycle back over again.” He said a search of the defendant’s

home computer revealed that the defendant had deleted downloaded files, which supported the

defendant’s story. He said the defendant had tried to stop accessing child pornography over the

Internet but could not. He said the defendant denied ever molesting children but admitted having

a sixteen-year-old girlfriend when the defendant was nineteen.

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On cross-examination, Inspector Dirmeyer acknowledged that the defendant was very

cooperative and voluntarily told the police about the pornographic downloads on the computer.

Inspector Dirmeyer said the defendant lived with his parents and allowed the police to search his

bedroom without a search warrant. He said that when the officers left the home, they forgot to take

the defendant’s computer. He said the defendant paged him and reminded him that the officers had

forgotten to take the computer with them.

Ronnie Hepperly, the pastor for Restoration International Outreach Church, testified that the

defendant had been a member of his church for about two years and told him about the criminal

charges. He said the defendant was very repentant and wanted Mr. Hepperly to pray with him. On

cross-examination, he testified that the defendant was not involved with any of the youth programs

at the church.

Joan Walker, the defendant’s mother, testified that the then twenty-eight-year-old defendant

had lived with her all his life. She said her three young grandchildren also lived in the home but that

none of them shared a bedroom with the defendant. She said that on May 31, 2000, the defendant

told her that he had accessed pornography over the Internet and that he was in trouble with the

police. She said that after the defendant’s bond hearing, he had his Internet access service

disconnected.

The defendant testified that as a result of the charges, he was suspended from his job at Wal-

Mart. He said he worked for his parents’ garbage service business for a while, got a job at

Hollywood Video, and was promoted to assistant manager of the video store. He said he originally

began looking at child pornography on the Internet because he was lonely after breaking up with his

girlfriend. He said he started attending church, realized what he was doing was wrong, and tried to

stop. He said he would delete the pornography from his computer periodically but could not stop

looking at it on the Internet. He said that the officers stopped him in the post office parking lot on

May 31, 2000; that he began counseling sessions with Dr. Michael Buckner in June 2000; and that

he was indicted for the crimes in October 2000. He said he began seeing Dr. Buckner because he

realized he needed help. He said that at the time of the sentencing hearing, he was still seeing Dr.

Buckner and that he would continue counseling if the trial court granted him probation. He said that

through his counseling sessions, he had learned that he was molested at least three times as a young

child. He said that he was sorry for what he had done and that he had not accessed the Internet or

viewed child pornography since May 31, 2000.

Dr. Michael Buckner testified that he is a licensed psychologist and began counseling the

defendant on June 26, 2000. He said that during one of the defendant’s counseling sessions, the

defendant suddenly remembered being raped by a family member when the defendant was eight or

nine years old. He said that a scout master also had had an inappropriate relationship with the

defendant when the defendant was ten or eleven years old. He said that these events could explain

the defendant’s desire for child pornography. He said that through counseling, people could change

their desires and that the defendant was progressing very well and was no longer having desires for

exposure to under-age sexual material. He said the defendant was immature but was “maturing more

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into age-appropriate kinds of behaviors.” He said that the defendant would need to continue

counseling for at least another year but that he thought the defendant’s likelihood of success was very

high.

According to the defendant’s presentence report, the defendant dropped out of high school

due to poor health, obtained his GED, and attended some college classes. The defendant described

his physical health as fair and stated that he suffered from migraine headaches, mouth ulcers, and

frequent sore throats. He described his mental health as good and stated that he did not drink alcohol

or use illegal drugs. A drug test conducted on December 27, 2001, was negative. At the time of the

report, the defendant was working for Hollywood Video. The report shows that he also had worked

for Blaine’s Garbage Service and Wal-Mart.

The trial court determined that enhancement factor (1), that the defendant “has a previous

history of . . . criminal behavior in addition to those necessary to establish the appropriate range,”

applied to his sentences. See T.C.A. § 40-35-114(1) (supp. 2001) (amended 2002).1 In mitigation,

the trial court considered that the defendant had been open and honest with the police, had taken

steps toward rehabilitation, had maintained steady employment, and had no prior criminal

convictions. See T.C.A. § 40-35-113(13). The trial court noted that the defendant was presumed

to be an appropriate candidate for alternative sentencing. See T.C.A. § 40-35-102(6). However, it

ruled that the state had overcome the presumption, stating as follows:

The reason being that you have been involved in this type of illegal

activity to such a degree over the last year and a half, or so, as to be,

as the witness testified, in the top 25 of the people in this whole state

when it comes to accessing these child-porn websites. If you had

bought, out of curiosity -- or whatever reason -- one videotape, and

that was it, then this would be an entirely different situation and I

would say that you ought to be placed on probation and do the kinds

of things that you’ve been doing . . . . But that is just not anywhere

close to what the facts are here.

A lack -- I think confinement is necessary to avoid

depreciating the seriousness of this offense. And that, in my mind,

outweighs the other things that I have considered.

On appeal, the defendant argued that the trial court erred by refusing to grant his request for some

type of alternative sentence. This court agreed, reversed the trial court’s ruling that the defendant

should serve his sentences in total confinement, and remanded the case for resentencing. See James

Dale Walker, slip op. at 7.

1

The legislature’s 2002 amendment to T.C.A. § 40-35-114 added as the new enhancement factor (1) that the

“offense was an act of terrorism” but changed the existing enhancement factors only by increasing their designating

number by one.

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During the second sentencing hearing, Michael Lane, a probation officer with the Board of

Probation and Paroles, testified that after the defendant’s first sentencing hearing, the defendant was

released on an appeal bond. He said the conditions of the defendant’s bond required that the

defendant report monthly to the Board of Probation and Paroles, have no Internet access, continue

counseling, neither possess nor be in a place that housed sexually explicit materials, undergo risk

assessment testing and regular polygraph testing, and live with the defendant’s aunt. He said that

he had supervised the defendant and that the defendant had complied with all of the conditions. He

said that the defendant had taken two polygraph tests and that neither test indicated deception. He

said the defendant no longer worked for Hollywood Video, had mowed yards during the summer,

and was trying to get a job with ProTemp. He acknowledged that the defendant had had steady

employment and that the defendant had cooperated fully with everything he and the trial court had

asked the defendant to do. On cross-examination, he acknowledged that the defendant’s Sex

Offender Risk Assessment stated that the defendant “presents a moderate risk to re-offend” and that

“without appropriate supervision, boundaries that limit his access to potential victims, and specific

sex offender treatment to address his sexual offending,” the defendant would likely act out sexually

in the future.

The defendant testified that he had not been charged with any other offenses. He said that

Hollywood Video had decreased his work hours and that he was looking for another job. He said

he was having difficulty obtaining employment, though, because he was a convicted felon and

because he no longer could access the Internet and apply for jobs online. He said that Dr. Buckner

was no longer counseling him but that he was being counseled by William Daniel. He said that he

had no problems complying with his appeal bond requirements and acknowledged that he could

follow any rules imposed by the trial court or his probation officer. On cross-examination, the

defendant acknowledged that he worked with Cassie Heatherly at Hollywood Video and that he

mowed Mrs. Heatherly’s neighbor’s yard. He also acknowledged that Mrs. Heatherly wrote a letter

to his probation officer in which she stated that the defendant had been alone with her eleven-year-

old daughter several times while he was mowing the neighbor’s grass. He said that he had had no

unsupervised contact with any children and that Mrs. Heatherly always was present when he was

with her daughter.

The trial court noted that although Dr. Buckner believed the defendant had a minimum

likelihood of reoffending, the defendant’s Sex Offender Risk Assessment characterized his risk to

reoffend as moderate. Thus, the trial court held that the defendant’s rehabilitation prognosis was

guarded. The trial court noted that the defendant’s work toward rehabilitation had been good and

that he had followed all of the conditions of his bond. However, it still determined that a lack of

confinement would depreciate the seriousness of the offenses and ordered that the defendant serve

six months in confinement and the remainder of his effective six-year sentence on supervised

probation.

The defendant appeals, claiming that the trial court should have granted his request for full

probation. He contends that the trial court erred by determining that his likelihood for rehabilitation

was guarded because he has no prior criminal record, had committed no subsequent offenses, had

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complied fully with his appeal bond requirements, was receiving counseling, had maintained steady

employment, and had passed two polygraph tests. In addition, he argues that the trial court should

not have denied his request for full probation based upon the need to avoid depreciating the

seriousness of the offenses because the circumstances of the offenses were not “especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree”

as required by State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). The state argues

that trial court properly resentenced the defendant. We agree with the state.

When a defendant appeals the manner of service of a sentence imposed by the trial court, this

court conducts a de novo review of the record with a presumption that the trial court’s

determinations are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness 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). The burden is on the appealing party to show that the sentence is improper. T.C.A. §

40-35-401(d), Sentencing Commission Comments. This means that if the trial court followed the

statutory sentencing procedure, made findings of fact that are adequately supported in the record, and

gave due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

When determining if incarceration is appropriate, a trial court should consider whether (1)

confinement is needed to protect society by restraining a defendant who has a long history of

criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to people likely to commit

similar offenses, or (3) less restrictive measures than confinement have frequently or recently been

applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. §

40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set

forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,

438 (Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s potential or

lack of potential for rehabilitation when determining if an alternative sentence would be appropriate.

T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438. In conducting a de novo review, we must

consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence

report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any

statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or

treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168.

In order for a trial court to deny alternative sentencing based upon a need to avoid

depreciating the seriousness of the offense, the “circumstances of the offense ‘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. Fields, 40 S.W.3d 435, 441 (Tenn. 2001) (quoting State v. Cleavor, 691 S.W.2d 541, 543

(Tenn. 1985) (quoting State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981)), overruled on other

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grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000)); Hartley, 818 S.W.2d at 374-75. In this

case, the trial court determined at the defendant’s first sentencing hearing that incarceration was

warranted because the defendant repeatedly accessed child pornography for over one and one-half

years and accessed it so frequently that he was one of the top twenty-five people to use Landslide

in Tennessee. During the defendant’s second sentencing hearing, the trial court held that those facts

still warranted a period of confinement. We agree that some confinement is appropriate to

emphasize to this defendant the seriousness of his actions. See State v. Butler, 880 S.W.2d 395, 401

(Tenn. Crim. App. 1994) (holding that the circumstances of the offense did not justify a sentence of

full confinement but did warrant some confinement to avoid depreciating the seriousness of the

offense). The proof shows that the defendant repeatedly viewed child pornography over the Internet

and frequently downloaded the pornographic images onto his computer. Although he was disgusted

with his behavior, the defendant failed to get any treatment for his addiction until the police stopped

him in the post office parking lot. We hold that the defendant’s criminal conduct justifies six months

in confinement to avoid depreciating the seriousness of the offenses.

Based upon the foregoing and the record as a whole, we affirm the judgments of the trial

court.

___________________________________

JOSEPH M. TIPTON, JUDGE

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