# FILED
November 4, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1997 SESSION

STATE OF TENNESSEE, * C.C.A. No. 01C01-9608-CR-00349 * Appellee, * DAVIDSON COUNTY * VS. * Hon. Seth W . Norman, Judge * STEVEN E. BAKER, * (Sexual Battery; Es pecially Aggrav ated * Sexual Exploitation of a Minor) Appellant. *

For Appellant: For Appellee: Richard McGee Charles W. Burson 601 Woodland Street Attorney General and Repor ter Nashville, TN 37206 Peter M. Coughlan Assistant General and Repor ter 450 James Robertson Parkwa y Nashville, TN 37243-0493 Lila Statom Assistant District A

ttorney General Washington Square Suite 500 222 Second Avenue, North Nashville, TN 37201-1649

OPINION FILED:__________________

AFFIRMED

GARY R. WADE, JUDGE1 It is the policy of this court to w ithhold the ide ntity of children in volved in se xual abu se. State v. Schimpf , 782 S.W .2d 186, 188 n.1 (Tenn. Crim . App. 1989). 2 OPINION The defendant, Steven Eugene Baker, pl ed guilty to one count of especially aggr

avated sexual exploi

tation of a minor and two counts of sexual battery. The trial cour

t imposed concurrent, Range I sentences of nine years and one year, respective ly. In this appeal of ri ght, the defendant challenges the length of the sente nce and the tria l court's denial o f alternative se ntencing.

We affirm the judgment of the trial court.
On the night before Thanksgiving in 1994, the defendant, a stepgrandfather

to the fourtee n-year-ol d female vic tim, 1 provided her with medication for a headache. Afterward, whi le the victim was a sleep in her grandmother's living room, the defendant videotaped himself touc hing the victim on her

breast and digitally penetrati ng her vagina. The v ictim never awoke and had no recollection of the occurrence.

Just prior to the Chris

tmas holidays in the same y ear, the defendant looked at the videotape in anticipation of a visit by the victim. Because he neg lected to remove the tape from his VCR , the victim's father lear ned of its content on the next day. There wer

e a number of pornographic vi deotapes and magazines found in the defendant's bedroom.

The defendant was charged with rape, sexual battery, and especially aggravated sexual

exploitation of a minor. In accordance with a plea ag reement,3 the state dropped the rape charg e and the defendant pled guilty to the remaining charges.
At the sentencing hearing , the victim testified that she and the defendant had enjoyed a close friendship. She related that when she was younger, she had often confided in the defendant and vi ewed him as somewhat of a father figure. By the time she was eleven, however, the defendant began to verbally abuse her. She claimed that the defendant "gave [her] guilt t rips" and pleaded to have sex with hi m so as to "help" his marriag e to her grandmother. As ti me passed, the incidents became more frequent and offensive to the victim. She testified that she was afraid to sleep at ni ght and experienced nig htmares. Because her grandmother refused to leave the defendan t after the sexual assault, the victim described her relationship with her grandmother as uncomfortable. The victim testified that she coped with her knowledge of the inci dent with counseling and involvement in school and church activities.

The victim's father and mother, Carl and Victoria Shackl eford, testified that relationships among the entire family had deterior ated. Family members had taken sides in the matter and felt stigmatized by the i ncident.

The defense proof included testimony by the defendant, his wife, and his counselor, psychol ogical evaluations, and eleven letters from friendsand coworkers showing

support for and confidence in the defendant. Nancy Baker, the defendant's wife and the victi m's grandmother, was full y supportive of her husban d. She believed that the defendant had ade quately acknowledged responsibility for his actions by expressing remorse, cooperating with the police, surrendering himself into custody, and seeking counseling.4 The forty-three-year-old defendant has no prior record and no history of violent behavior. He has a bachelors degree in engineering and has worked fairly steadily as an engineer and real estate agent. He has consistently paid child support payments to his tw o children from a prior marr iage. The defendant testified that he had benefitted by intensiv e counseling: "I know that I've created a gr eat deal of pain for a lot of people that I lov e. ... My actions hav

e separated their family." He expressed remorse for hi s actions and accepted full res ponsibility for the incident. The defendant claimed that he had tried to cooperate fully during the police investigati on and had agreed to the state's request for an evaluation at the Luton Mental Health Center of N ashville.

When asked if he ha d been guilty of improperly touching the victim prior to November of 1994, the defendant initially said no.He then explained that he had inadvertently touch ed, then continued to fondle, the vi ctim's breast while she slept on a single prior occasion. When asked if he had drugged the victim in November of 1994, he maintained that he had given the victim nothing stronger than Excedrin P.M. On further cross examination, the defendant admitted that he was not receiving sex

-offender specific treatment, as rec ommended by Luton Mental Health Center.

Dr. Scott Ericson, a Christian counselor, had conducted weekly sessions with the defendant for about a year following the charges. Dr. Eri cson reported that the defendant had wor ked diligently to face u p to the issue and that he did not believe that the defendant w ould reoffend. In contrast, the Luton M ental Health Center described th e defendant at "moderately high r isk for future sexual exploitation of other persons" and characterized the def endant's prognosis as fair5 with treatment and poor w ithout treatment; there wer e specialized recommendations:

It is recommended that Mr. Baker receive sex offenderspecific mental health treatment for his compulsive and addictive sexual behav iors, anxieties, and offenses. Treatment should include both indi vidual and group therapy services that are sex-offender specific i n format and conducted by a therapist( s) competent in the areas of sexual offender and sexual addiction issues. At this time, it appears that Mr. Baker is not in need of a securetype facility and that t reatment may be pursued at an outpatient, community-based facility which offers a specialized treatment pr ogram for sexual offenders and persons with significant sexual addiction issues. *** Due to his present level of insight and rationaliz ation of his sexual offense against an adolescent fem ale minor, it is recommended at this time that M r. Baker have no contact with female children under 18 years old unless they are under responsibl e adult supervision. *** Mr. Baker should be accountable...for his daily whereabouts. *** Mr. Baker should not purchase or use pornographic materials or frequent establishments where such materials are display

ed. *** Mr. Baker s hould at tend at le ast weekly a communi tybased self-help group for pers ons with sexual compulsions.

Detective Steve Cl eek, who questioned the defendant,testified that the defendant acknowledged his sexual attraction to the victim. Detectiv e Cleek recalled that the defendant admitted to fondling the victim's br east on a prior occasion while hugg ing her on the front porch. A t the sentencing hearing,the defendant denied that the incident ev er occurred.
While imposing sentence, the trial judge stated a belief that the abuse had been ongoing since the v ictim was eleven. The trial court specificall y found that the medication given in November of 1994 had an incapacitating ef fect on the victim6 and that the crime s had bee n commit ted for p urposes o f gratif ication. Thus, two enhancement factors were deemed appli cable:

(4) A victim of the offense was particularly vulnerable because of age or physical or mental disability ...; *** (7) The offense involved a v ictim and was committed to gratify the defendant's desir e for pleasure or excitement[.] Tenn. Code Ann. §§ 40-35-114 (4), ( 7) (Supp. 1995). The trial c ourt heard but rejected claims of mitigatin g factors . Whi le reject ing the no tion of c onsecut ive sentencing, the trial c

ourt denied the defendant's request for alternative sentencin g.

The defendant first contends th at the trial court erred by failing to apply nonstatutory mitigating circumstances to reduce his sentence to eight years. He also argues that the trial court should have allowed him to serve his sentence through Community Corr ections or strict proba

tion.
When there is a challenge to the length, range, or manner of servi ce 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 pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the7 nature and characteristic s 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, and - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of this offense, the presumptiv e sentence was the minimum in the range if there w ere no enhancement and mitigating factors. Tenn. Code Ann. §§ 40-35-210. Should the trial court find mitigating and enhancement factors, it must start at the mi nimum sentence in the range and enhan ce the sentence based upon any applicab le enhancement factors, and then reduce the sentence based upon any appropri ate mitigating factors. Tenn. Code Ann. § 40-35- 210(e). The weight g iven to each factor is w ithin the trial court's

discretion provided that the record supports it s findings and it complies with the Criminal Sent encing Reform Act of 1989. See Ashby , 823 S.W.2d at 169. The trial court should, however, make specific findings on the record w hich indicate its applic

ation of the sentencing principles.Tenn. Code Ann. §§ 40-35-209 and -210.

The defendant does not challenge applic ation of the two enhancement factors. He does argue that the trial court was required to reduce his sentence based on the following nonstatutory mitigating factors:

1. The defendant has no prior crimi nal history of any kind either as a juveni le or an adult. 2. The de fendan t immedi ately soug ht inten sive psychological counse ling for the mental illnes s which was the predicate for the commission of the of fense in this case. 3. The defendant is clearly r emorseful for the harm that he caused to the victim and both her family and his family. 4. The defendant cooperated with poli ce officers by giving a confession ev

en though he was instruc ted by the8 officers that any statements that he would make would be used agai nst him. 5. The defendant cooperated with the District Attorney's Office by voluntarily

participating in the ev

aluation at the Luton Mental Health Center at his own expense w

hen he was under no legal obl igation to do so. 6. The defendant has significant family and community support. 7. The defendant's prior employment history is excel lent. In our view, the defendant is entitled to some mitigation by virtue of each of th ese circumst ances. Ea ch facto r serves the defend ant in a f avorable manner. Yet two enhancement factors specifically apply. Moreover, the defendant was in a position to commit the crime because of his familial relation ship with the victim. The crimes, in our view, qual ify as breaches of a priv ate trust. Tenn. Code Ann. § 40-35- 114(15). Neither enhancement nor mitigating factors hav

e any particular w

eight. This court fully approv

es of the nine-year sentence, only one year above the minimum. Any entitlement to mitigation would be offset by the additional enhancement factor.

Further, we cannot say that th e trial jud ge erred in denying al ternative sentencing. The defendant argues that he is capable of rehabilitation, requires treatment for the mental illness that prompte d this offense, and would have a much greater probability of recovery under an alternative sentencing scheme. He also argues for imposition of a one-year incarceration period followed by especially restricted probation. The s tate contends that continuous confinement is required due to the seriousness of this offense and that there is a "moderately high risk" that the defendant will reoffend.

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E feloni es are, of course, p resumed to be favo rable can didates "for alt ernative9 sentencing options in the abs ence of evidence to the contrar y." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sente nce imposed is eight years

or less. Tenn. Code Ann. § 40- 35-303(b). Among the factors applicable to probatio n consideration are the cir cumstances of the offense, the defendant's criminal recor d, social history and present condition, and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285 (Tenn.1978).

Here, because we have u pheld the nine-year sentenc e, the defendant simply does not qualify for probation. See Tenn. Code Ann. § 40-35-303(a). Moreover, had he qualified, this court would have affirmed the denial. Th e nature and circumstances of the offenses may often be so egregious as to preclude the grant of probation. See State v. Poe , 614 S.W.2d 403 (Tenn. Crim. App. 1981). A lack of candor may also mil itate against a grant of pr obation. State v. Bunch , 646 S.W.2d 158 (Tenn. 1983). Here, the record demonstr ates an obvious reluctanc e on the part of the defendant to ackno wledge a prior incident of improper conduct involving this

victim.
The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn.1990). Even in cases w here the defendant meets the minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily entitled to be se ntenced under the Act as a10 matter of law or right

. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving cr imes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a) (emphasis adde d). Subpart (a)(2) above would initially exclude the defendant because sexual battery is classified as an “off ense against the person.” SeeTenn. Code Ann. § 39-13-505; see State v. Boston , 938 S.W.2d 435, 438 n. 5 (Tenn. Crim. App. 1996). However, subpart (c) creates a "specia l needs" category of eligibilit y:

Felony offenders not otherwi se eligible under subsec tion (a), and who would be usually considered unfit for probation due to histories of a c hronic alcohol, drug abuse, or mental health problems, but w hose special needs are treatable and could be s erved best in the community rather than in a c orrectional institutio n , may be considered eligible for punishment in the community under the provisions of this chapter. Tenn. Code Ann. § 40-36-106(c) (emphasis added ). Thus, the defendant would arguably be eligi ble for Community Corrections under this "special nee ds" category. However, to be elig ible for Community Correc tions under subpart(c), the defendant11 must first be eligible for probation under Tenn. Code Ann. § 40- 35-303. State v. Staten , 787 S.W.2d 934, 93 6 (Tenn. Crim. App. 1989).

Moreover, in Ashby , our supreme court encourag ed the grant of considerable discretionar y authority to our t rial courts in matters such as these. 823 S.W.2d at 171. See State v. Moss , 727 S.W.2d 229, 23 5 (Tenn.1986). "[E]ach case must be bottomed upon its ow n facts." Taylor , 744 S.W.2d at 922. "It is not the policy or purpose of this court to place trial judges in a judicial straight-jacket in this or any other area, and we are always reluctant to interfere w ith their traditional discretionary pow

ers." Ashby , 823 S.W.2d at 171. Here, the trial judge considered and rejected Community Cor rections, "[a]s a result of his sentence under [Tenn. Code Ann.] § 40-35-303, I do not feel that the defendant is eligible for any type of alternative sentencing . ... That's the judgment of the Cour t."

The defendant, while otherwi se described as a candidate for outpatient treatment, was diag nosed as a "moderately high risk for future sexual exploitation" by the Luto n Mental Health Center. While the defendant w as apparently willi ng to undergo sex-offender s pecific treatment, as opposed to that provided by Dr. Er

icson, he had not done so during the period of time between the offenses and the sentencing hearing

.

Thus, the trial judge, w ho observed the witness es first-hand, had an additional basis for rejecting a Community Corr ections sentence. Recogni zing that, this court must defer to the deter mination made by the trial c ourt.
Accordingly, the j udgment is affirmed.12 ______________________________________ Gary R. Wad e, Judge CONCUR:

_______________________________ David H. Wel les, Judge

_______________________________ Curwood Witt, Judge