# FILED
March 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 02C01-9612-CR-00449 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. JOHN P. COLTON, JR., Judge DANIEL D. NAUGHTON, SR ., ) ) (Aggrava

ted Child Ab use) Appellant )
For the Appellant : For the Appellee : A C Wharton John Knox Walkup Public Defender Attorney General and Repor ter Tony N. Brayton Elizabeth T. Ry an Asst. Public Defender Assistant Attorney Gener al 201 Poplar St., Suite 201 Criminal Justice Div ision Memphis, TN 38103 450 James Robertson Parkwa y Nashville, TN 37243-0493 William L. Gibbons District Attorney General Robert Carter Asst. District Attor

ney General Criminal Justice Comple x, Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED: CONVICTION AFFIRMED;SENTENCE MODIFIED
David G. Hay

es Judge2 OPINION
The appellant, Daniel D. Naug hton, was found guilty of one count of aggravated child abus

e by a Shelby County

jury. Followi ng this verdict, th e trial court imposed the maximum sentenc e of twelve years c

onfinement in the Tennessee Department of Correction.In this appeal as of right,the appellant raises the following issues: I. Whether the evidence is sufficient to suppor t the jury’s ver

dict; II. Whether the trial court erroneousl y permitted the introducti on of hearsay testimony; and III. Whether the trial court’s imposition of a twelve year sentence was excessive.
After a review of the rec ord and the applicable law , we affirm the judgment of the trial court, but, for reasons discussed herein, the appellan t’s sentence is modified to reflect a term of nine years in the Departm ent of Correction. This case is remanded to the trial cour t for entry of judgment consi stent with this opinio n.

Background
At appro ximately 3 :00 a.m. on Novemb er 30, 199 1, the ap pellant , a Navy seaman, took his eleven w eek old son to the emergency room of Millington Nav al Hospital. When the appellan t arrived, the victim was crying inconsolably. The child was first examined by Dr. Richard O’Donnell, an expert in pediatric emergency medicine. Dr. O’Donnell testified that the appellant had tol d him that the child had fallen out of his stroller onto the floor. He furthe r testified that the fact that the child could not be consoled was a “red flag” that something of a serious physical nature had happened to the infant.3 Upon examinatio n, Dr. O’Donnell di scovered that th e child’s upper righ t thigh bone looked distorted. He further discovered a discolored area on the child’s chest that looked like a bruise. Dr. O’Donnell testified that the bruise had appeared to have the shape of an adult hand. After x -raying the child,Dr. O’Donnell determined that the right thigh bone had been completely fractured. He testified that the fracture was “fresh,” meaning that it had occurred within the last twelve hours, most likely within the last five to six h ours. Dr. O’Donnell t estified that a great deal of force ha d to have ca used the fracture . He furth er testif ied that the child would have been in a lot of pain from the injury. Because of the nature of the injuries, Dr. O’Donnell alerted the proper authorities about possible child abuse.
The possibil ity of abuse was inve

stigated by

Hershal Jo nes, who at the time was a sergea nt with the Millington Police Dep artment , and by Ga il Jackson Beasley, a special agent with the Naval Criminal I nvestigative Ser vice. Beasley test ified that she had spoken to Dr. O’Donnell and that she had been told the child had likely been abused. Beasley then ques tioned the appellant as to w hat had happened to the child. The appellant gav e Beasley a statement and the st atement was read to the jury at trial. In his statement, the appellant r elated that he and his wife had been watching vid eos until about 2: 00 a.m. wh en his wife left the house in o rder to sh ow a girlfriend her new ha irstyle. He said that the victim had been slee ping in his stroller in the living room. The appellant explained that, ar ound 2:20 a.m., he left the livin g room to go to the bathroom. While in the bathroo m, he heard his son “chuckle, ” heard a faint thump and then heard the str oller fall. He further stat ed that he emerged from the bathroom to find his tw o-year old daughter tr

ying to pick up the stroller. The defendant began to examine the child and noticed that his right leg felt warm and tight and that he “ felt the middle of the bone move a lit tle.” Thus, he decided to take the child to the emergency room. His wife arrived at the hospital a short time later.4 Because the naval hospital was not equipped to handle injuries to small children, the victim was transferred to Le Bonheur Children’s Medical Center in Memphis for further treatment. While there, he w as examined by Dr. R

obert V. Walling. Dr. Walling testified before the court as an expert in pediatric

child abuse. Dr. Walling testified that during his examination of the vic tim, he discovered unexplained bru ising about the f ace, chest and arm. He further found that th e thigh bone and collar bone had been fractured alon g with several ribs. The child had also suffered a “buckle fracture” on hi s wrist. Dr. Walling testified that numerous ribs were broken and that the ri b fractures as well as the wrist fracture had been caused by external force. He

further testified that a sign ificant impact had been the cause of the broke n thigh bo ne. Dr. W alling sta ted that the impa ct would ha ve had to h ave been much greater than the impact of the child’s own body weight falling onto a surface of less than six feet aw ay. He further testified that the injuries suffered by the victim had been nonaccidental and had been m ost likely caused by some form of abuse.
Dr. Thomas F. Boulden, a radiologist at Le Bonheur, testifie d as an expert in the field of pediatric radiolog y. He testified that he had s tudied the x-rays of the victi m and had d etermin ed that t he fract ure to th e thigh bone wa

s typi cal of a fractur e caused by a direct blow. He fu rther tes tified t hat a chil d’s fall c ould not have resulted in that type of inj ury. Dr. Boulden testi fied that the “buckle fracture” on the victim’s wris

t was a peculiar inj ury for such a young c hild. Generally, that type of injury is seen in an older child who has att empted to prevent a fall by c atching himself with his hands. As to the rib fractures, Dr.Boulden testified that six of the right ribs had been fractured while four of the left had also be en fractured. He testified that such fractures ar e typically caused by squeezing the r ib cage.
Dr. Boulden testified that he had also studied x-rays taken at the victim’s birth. He detected no injur ies to the child at that time.Dr. Boulden stated that5

abuse had been the cause of the vict im’s injuries and that the multiple fractures had been caused by multiple mechanisms over time. He further stated that it would have been apparent by the chi ld’s behavior that the c hild was in pain.
The appellant offered no proof, and the jury returned a guilty v

erdict.

I. Sufficiency of the Evidence
The appellant argues that the evidence is insufficient to support his conviction. Specifical ly, he contends that his c onviction was based entirely on circumstantial evidenc

e as there were no wi

tnesses to the alleged cr ime. In essence, the appellant argues that the “finger of guilt” does not point unerringly to him as the perpetrator of this c rime.
Initially, a defendant is c loaked with the presumptio n of innocence. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). However,a jury convicti on removes this presumption of innocence and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. Id . In determining the sufficienc y of the evidence, this c ourt does not reweigh or reev

aluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest l egitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellat e court's duty to affirm the conviction if the ev idence viewed under the se standards was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e)

. This rule is applicable t o findings of guilt predic ated upon direct evidence,1 Tenn. Code Ann. § 39-15-4 01(a) makes it an off ense for a person t

o “knowingly

other than by acci dental means, tr eat[] a child under

eighteen y

ears of age in such a manner as to inf lict injury or neg lect[] such a child so a s to adve rsely affec t the child’s he alth and w elfare. . . .”

2 "Serious bodi ly i njury” is defi ned as “bodily inj ury which involv es: (A) A substant ial risk of death; (B) Protra cted unconsciousness; (C) Extreme physi cal pain; (D) Protract

ed or obvious disfigurement; or (E) Protracted loss or substantial impairmen t of a function of a bodily member, organ o r men tal faculty.” Tenn. Code A nn. § 39-11-106(a)(33) (1991). 6 circumstantial evidenc

e, or a combination of both direct and circumstantial evi dence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Circumstantial evidenc e alone may be sufficient to support a conviction. See State v. Buttrey , 756 S.W.2d 718, 821 (Tenn. Crim. App. 1988); State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987); State v. Gilliam , No. 01C01-9603- CC-00105 (Tenn. Crim. App. at Nashville, May 7, 1997) ( for publication ). However, if a conviction is based p urely on circumstanti al evidence, the facts and circumstances must be so ov erwhelming as to ex

clude any other explanation except for the defendant's guilt. State v. Tharpe , 726 S.W.2d 896, 90 0 (Tenn. 1987); Cooper , 736 S.W.2d at 129. In addition, “it must establ ish such a certainty of g uilt of the accused as to convince the mind beyond a reasonable doubt that the [appellant] is the one who committed the crime.” Tharpe , 726 S.W.2d at 896. When reviewing the sufficiency of circumstantial evidence, this Court must reme mber that the jury decides the weight to be given to circumstantial evidence and that “[t ]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with gui lt and inconsistent with innocence are questions primarily for the jury.” Gilliam , No. 01C01-9603-CC-00105 (citations omitted).
Before the jury could find the ap pellant guilty of agg ravated child abuse, the State was required to

prove that the appellant committed the act of child abuse, as defined in Tenn. Code Ann. § 39-15-401 (1991), 1 which resulted in serious bodily injury to the child. 2 See Tenn. Code Ann. § 39-15-402 (1991) . In the present case,7

there is no dispute that the i nfant was the victim of abuse a nd that the infant suffered serious bodily inj ury in the form of several fractured bones which caus ed him extreme physical pain. Thus, the only quest ion is whether the appell ant is the perpetrator of the abuse.
The evidence established that the eleven week old child was in the primary care of t he appel lant and his wife, t he child’ s mother . At the ti me of th e injury, however, the appellant, by his own admissi on, alone was supervi sing the child and his two year old daug hter. The appellant explained that the injury to the v

ictim’s leg resulted from the stroller tipping over. The testi mony of medical experts contradicted this expla nation, rather, the medical pr oof found that the injuries sustained resulted from a direct blow applied by a “lot of force.” The ap pellant also conceded that the leg injur y occurred immediately preceding the initial trip to the emergency room for treatment. From these facts and circumstances, a rational jury could draw no other inferenc e save the guilt of the appel lant. See State v. Crawford , 470 S.W.2d 610, 613 (Tenn. 1971). Thus, we conclud e that, when viewed in the lig ht most favorable to the State, the evidence presented at tri al was sufficient to support the findings by the trier of fact finding that the appellant committed aggravated chi ld abuse beyond a reasonable doub t. Tenn. R. App. P. 13(e).
II. Hearsay Evidence
The appellant next contends that the trial court erred i n admitting hearsay evidence. Specifically , he argues that the court i mpermissibly allow ed Special Agent Beasley to repeat a statement Dr. O’Donnell had made to her in an effort to bolster the doctor’s cr

edibility, i.e. , that Dr. O’Donnell had t old her that he suspected child abuse as the cause of the v ictim’s injuries.8 At trial, Dr. O’Donnel l testified that he completed the i nitial examination of the victim at Millington Naval Hospital. After examining the victim, Dr. O’Donnell determined that the victim ha d suffered a traumatic mid-shaft fracture of the right femur and needed to be transferred to Le Bonheur Children’s Hospital for further medical attention. He also remarked that, because of the nature of the victim’s injuries, he “could not rule out the possibility of foul play.” On cross-examination, Dr. O’Donnell was confronted w ith an assessment diagnosis form he completed on November 30, 1991, which contained the words “r ule out foul play.” Despi te defense attempts to establish otherw ise, Dr. O’Donnell mai ntained that these words signified that he could not rule out t he possib ility of f oul play.
Sergeant Hershal Jones testified that he had spoken with Dr. O’Donnell during the course of his investigation. On cross-examination, he recalled that Dr. O’Donnell had stated that “he could not say that this was child abuse.”
On direct examination of Speci al Agent Gail Beasley , the State attempted to inquire as to statements made b y Dr. O’Donnell to Agent Beasley in the cour se of her investigation of thi s case. Whereupon, defense counsel objected claimi ng that O’Donnell’s statements to Be asley were hearsay

and, therefore, inadmissible. The State responded that they were trying to rehabilitate O’Donnell’s testimony, which had been questioned during th e testimony of Sergeant Jones.The court permitted Agent Beasley to continue.Agent Beasley testified that Dr. O’Donnell repor ted to her that he had suspected child abuse.
Although, generally, a prior consistent statement is not admissible to bolster a witness’ credibil ity, it is wel l-established in this s tate that a prior consistent statement is admissible to rehabil itate a witness after ins inuations of recent fabrication or deliberate falsehood or to respon d to impeachment by a prior i nconsistent statement. See Farmer v. State , 296 S.W.2d 879, 882 (Tenn. 1956); State v.9

Tizard , 897 S.W.2d 732, 746 (Tenn. Crim. App. 1994); State v. Meeks , 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993). See also N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 803(1.1).3, at 509-510 & n.61 ( 3d ed. 1995). However , the prior consistent statement must have been made be fore the motive to lie arose or before the inconsistent statement w as made. N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 803(1.1).3, at 509-510 & n.61.
Despite the appellant’s assertion, Dr. O’Donnell was not impeached by his assessment diagnosis form, although clearly that was defense counse l’s purpose in introducing the form. Nonethel ess, this background does permit the use of the prior consistent statement to Agent Beasley to negate defe nse counsel’s attack, albeit unsuccessful, on Dr. O’Donnel l’s credibility

. See Meeks , 867 S.W.2d at 374. Additionally, Sergeant Johnson, on cross-examination, related a statem ent of Dr. O’Donnell, received d uring the course of his in vestigation, whi ch was inconsistent with Dr. O’Donnell ’s in-court testimony . Again, evidence of Dr . O’Donnell’s prior consistent statement to Agent Beasley is admissible to rehabilitate the witness after introduction of the prior inc onsistent statement. See Tizard , 897 S.W.2d at 746. The trial court permitted i ntroduction of Dr. O’Donnell ’s prior consistent st atement through the testimony of Agent Beasley for the limited purpose of corroborating Dr. O’Donnell’s in-court

testimony. Such introduc tion was proper. A pr

ior consistent statement properly offered to rehab ilitate a witness does not constitute hearsay because it is not being offered to prove the truth of the matter asserted. Tenn. R. Evid. 801(c). This i ssue is without merit.

III. Sentencing
In his final issue, the appell ant contends that the trial cou rt erred in imposing3 The offe nse of ag grav ated child a bus e is a c lass B felo ny. Th us, th e app licable senten cing rang e for a ran ge I offen der is betw een eigh t and twelve years. Te nn. Cod e Ann. § 40-35-112(a)( 1) (1990). Additi onally , alt hough irrel evant to t he present case, we acknowledge that, ef fective July 1, 1994, aggravat ed child abu se of a chil d six year s old or y

ounger became a Class A felony. Tenn. Code A nn. § 39-15-402(b) (1994 S upp.).

4 Mr. Brown stat ed that hi s wife was the second cousin of t he appellant ’s wife. 10 the maximum sentence withi n the applicable range. 3 Specifically, he compla ins that the court failed to enter findings of facts on the record regar ding the applicability

of mitigating factors and by erroneously applyi ng one enhancement factor. Additionally, the appell ant argues that he should hav e been considered for alternative sentencing

.
A sentencing hearing w as held on May 30, 1996. Or lando Brown testified that he and his wife have been and remain the legal guardian of the victim in this
case. 4 Mr. Brown explained that, although their custody of the infant was initially temporary, the court ev entually ruled that it was in the best interes t of the child to remain in the Browns’ c are due to the appellant and his w ife’s failure to “meet whatever requir

ements they had to get him back. They failed to pay chil d support. They never visited .” Brown related that the infant remained in a half body c ast for about six to eight w

eeks after the incident. Brow n also stated that, because of the long drawn out battle ov er the custody of the child, psychological counse ling was required.
Lynn Peachy, the appellant’ s mother, testified that the appell ant was “raised in church” and “respect[ ed] [her] as a parent.” She s tated that the appellant has never been in any other trouble and “[h]e wouldn’ t even fight his brother

back.” She further stated that the appellant w as deserving of an alter native sentence.
The appellant testified on his own behalf. He state d that, presently he is twenty-four years

old, but, at the time of the incident leading to this conv iction, he was only nin eteen. He is original ly from Ne w York State and enlis ted in the Navy11

when he was eighteen upon graduation from high school. On the date of this offense, his occupational speciality was aviation electrician. After complet ing his enlistment period, he receiv ed a General Discharge u nder honorable conditions. Because this case was pending, the appellant was prohibited from re-enlisting. He stated that he has three childr en, not including the vi ctim in this case. Althoug h he expressed remorse to the court that his son was injured, he maintained that he did not commit this crime. The appellant stated that h is wife was the “major child-care provider,” while he attended school on the naval base. From the date of his discharge from the Navy until his conviction, the appellant was employed at W alMart on Austin Peay Hi ghway. On cross-examination, the appellant stated that, on the night of the incident, he hear d noises that sounded like tappi ng at the window. When he arose to investigate, “[he] st epped on [his] daughter’s toy and fell back on [the victim]. And that’s how the femur got broken.” He explained that, at the t ime of the incident, he was scar ed of losing his son, so he c ast the blame on his daughter.
The presentence report confirmed that the appellant had no prior his tory of criminal conduct nor did the appellant use either alcohol or illegal substances

. Attached to the report wer e sixteen letters from family, friends, and acquaintances attesting to the appellant’s positive attributes.
The trial court imposed a senten ce of twelve years in the Department of Correction, the maximum punishment for a range I off ender.
When the length, range, or manner of servi ce of sentence is challenged on appeal, this court conducts a de novo review conditioned

upon the presumption that the determination made by the tr ial court is correct . Tenn. Code Ann. § 40-35- 201(d)(1990). This presumpti on only applies, howev er, if the record demonstrates that the trial court proper ly considered relev

ant sentencing principl es. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the case before us, because of the12

incomplete findings of fact by the trial court, we cannot apply the presumption. On appeal, the appellant bears the bur den of showing that the sentenc e imposed was improper. Sentencing Commis sion Comments, Tenn. Code Ann. § 40-35- 401(d) (1990).
A. Length o f Sentence The appellant first contends that the trial court f ailed to include on the record whether it found any mitigating factors applicable. At the conclusion of the sentencing hearing, the trial court stated that no mitigating factors were presented in the presentence report, but did not explicitly r

ecite whether or not the c ourt found any mitigating factors applicable. However, the court’s written findings of fact reflect that no mitigating factors were applicable. The Senten cing Act directs that “[w]henever the court imposes a sentence, it shall place on the record either orally or in writing, w

hat enhancement or mitigating factors it found, if any . . . .” Tenn. Code Ann. § 40-35-210(f) (1990).This issue is witho ut merit.
Next, in determining the appropriate sentence for the appel lant’s conviction, the trial court applied tw o enhancement factors, i.e. , the defendant treated the victim with ex

ceptional cruelty duri ng the commission of the offense and the personal injuries inflic

ted upon the victim was particularly gr

eat. Tenn. Code Ann. § 40-35-114(5), -114(6) ( 1990). The appellant contests the applicability of enhancement factor (5), excepti onal cruelty.
Initially, we acknowledge that to be appli cable, enhancement factors must be “appropriate for the offense” and “not th emselves essential elements of the offe nse.” State v. Poole , 945 S.W.2d 93, 98 (T enn. 1997) (citation omitted). Thus, enhancement by Tenn. Code Ann. § 40-35- 114(6), that the injuries inflicted upon the victim were particularly great, is inapplicable to offenses where "serious bodily injury" is an element of the offense. See Poole , 945 S.W.2d at 98; State v. Jones ,13

883 S.W.2d 597, 602 (Tenn. 1994); State v. Cr owe , 914 S.W.2d 933, 939 (Tenn. Crim. App. 1995). Since “serious bodily injury” is an element of aggravated child abuse, as defined in the present case, use of enhancement factor (6) is erroneous.

However, in State v. Poole , our supreme court disting uished that “serious bodily injury” does not necessarily es tablish the enhancement factor of exc eptional cruelty. Poole , 945 S.W.2d at 98. “In othe r words, the facts in a case may support a finding of ‘exceptional cr uelty’ that ‘demonstrates a culpability disti nct from and appreciably greater than that incident to’ the crime of [aggravated child abuse.]” Id

. (citing Jones , 883 S.W.2d at 603). In such circumstances, “the trial court should state what actions of the defendant, apa rt from the elements of the offense, constituted ‘exceptional cruelty.’” Id . (citing State v. Goodwin , 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995)).
In the present case, the trial court did not make any findings to support application of this factor oth er than the inju ries inflicted u pon the victim. Alt hough the victim suffered multiple i njuries during his el even week life, no proof connec ted the appellant to any injur y other than the broken ri ght femur. Moreover, al beit the appellant’s actions wer e reprehensible and certainl y cruel, a finding of “ex ceptional cruelty” is usuall

y found in cases of long-ter m abuse or torture. See State v. Davis , 825 S.W.2d 109, 113 (Tenn. 1991). The facts before us do not impl icate the appellant’s involv

ement in a continuous pattern of abusi ve behavior towar

ds the victim. Additionally, immediately after the inci dent, the appellant rushed the chi ld to the emergency room for treatment. But see State v. Walton , No. 02C01-9610-CR00321 (Tenn. Crim. App. at Jacks on, Aug. 19, 1997) (upholding use of “exceptional cruelty” enhancement factor w here defendant failed to seek treatment for v ictim). Thus, the facts which giv e any support to this factor are the same facts used to elevate the offense to aggrav ated child abuse under the law . This case involved no extended length of torture, no weapons, nor any unusual type of abuse. Beyond the14

obvious cruelty i nherent in every inc ident of aggravated chil d abuse, we find no evidence in the rec ord to sup port a fi nding of exception al cruelt y. Thus, we conclude that the trial court erroneously applied this factor.
Notwithstanding these findings, we do find applicable enhanceme nt factor (4), that the victim was p

articularly vul nerable because of age, and enhancement factor (15), that the defendant abused a positi on of private trust. Tenn. Cod e Ann. § 40- 35-114(4), -114(15). See Poole , 945 S.W.2d at 96; State v. Hayes , 899 S.W.2d 175, 187 (Tenn.Crim. App. 1995). Additionally, the facts clearly suppo rt some consideration of the combination of the appellant’s lack of criminal history, good employment and social histor y, and military ser

vice as a mitigating

factor. Tenn. Code Ann. § 40-35-113(13) (1990)

. See, e.g. , State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995); State v. Joslin , No. 03C01-9510-CR-00299 (Tenn. Cr im. App. at Knoxville , Sept. 22, 1997); State v. Overton , No. 02C01-9510-CC-00303 (Tenn. Crim. App. at Jackson, June 2, 1997); State v. Cotham , No. 01C01-9509-CC-00287 ( Tenn. Crim. App. at Nashvi lle, Dec. 5, 1996), perm. to appeal denied , (Tenn. July 7, 1997); State v. Ivey , No. 03C01-9509- CR-00292 (Tenn. Crim. App. at Knoxville, Dec. 3,1996); State v. Yellowey es , No. 01C01-9407-CC-00256 (Tenn. Cr im. App. at Nashville, May 11, 1995), perm. to appeal denied , (Tenn. Sept. 25, 1995). In view of our finding that the trial court misapplied enhancing factors a nd failed to apply a mitiga ting factor, modification of the maximum sentence is necessa ry. Upon de novo review, aft er weighing t he two applicable enhancement factors found and the non-statutory mitigat or, we conclude that a sentence of nine years as a range I offender is justified. Tenn. Code Ann. § 40-35-210(e) (1990).

B. Alternat ive Sentence Although the trial court found the appellant ineligibl e for probation, presumably because a sentence in excess of eight y ears was imposed, the cour t,5 Effectiv e July 1, 1994 a defendant conv icted of a ggravated chi ld abuse is no longer eligible for probation. Tenn. Code Ann. § 40-35-303(a) (1994 Supp.). 15 otherwise, failed to make any appropriate consideration and findings relative t o the imposition of any other non-i ncarcerative sentencin g alternative. Tenn. Co de Ann. § 40-35-210(f). The appellant contends that he should have been consi dered for sentencing alternativ

es other than total incarcer ation.
Initially, we note that, because the appellant was convicted of a class B felony, he is not presumed to be a favorable candidate for altern ative sentencing. Tenn. Code Ann. § 40-35-102(6) (1990). Moreover, the appellan t is not eligible for a sentence involving probation because his sentence is in excess of eight years. 5 Tenn. Code Ann. § 40-35-303(a) (1 990). See also Tenn. Code Ann. § 40-35-306 (1990). Thus, the only remai ning alternative is a sentence to a community corrections program pur suant to the requirements of Tenn. C ode Ann. § 40-36-106 (1990).
The appellant does not meet the elig ibility requir ements for community corrections participation prescribed in Tenn. Code A nn. § 40-36-106(a), (b), and (c). Only persons “who are convicted of non-vi olent felony offenses” are elig ible for community corrections. Tenn. Code Ann. § 40-36-106(a)(3). Aggravated child abuse is a violent cri me, therefore, the appellant cannot meet the requirements of subsection (a). How

ever, even if inelig ible under subsection (a) , an offender may still be qualified for community corrections under subsection (c), if he demonstr ates a special need that is treatable and could best be serve d in the community, i.e. , chronic alcohol and drug abuse or mental health problems. Tenn. Code Ann. § 40- 35-106(c). The appellant has fail ed to establish a special need under subsection (c). Accordingly , the appellant is inelig ible for a community correc tions sentence. For these reasons, the only available sentence is o ne of total confinement.16 IV. Conclusion

For the reasons discussed herein, the judgment of convi ction entered by the trial court is affirmed. Ho wever, upon de novo

review of the appellant’ s sentence, we modify the sentence imposed by the trial court from tw elve years to nine y

ears to be served in the Department of Correction. This case is remanded to the trial court for entry of an order modifying the sentence in the mann er consistent with this opinion.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:
(See separate concurring opinion) JOHN H. PEAY, Judge

________________________________ PAUL G. SUMMERS, Ju dge