# FILED September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00220 ) Appellee, ) ) ) ANDERSON COUNTY VS. ) ) HON. JA MES B. SCOTT,JR. JOSEPH J. BROOKS, ) JUDGE ) Appe llant. ) (Prob ation D enial)

FOR THE APPELLANT : FOR THE APPELLEE : NANCY MEYER JOHN KNOX WALKUP Office of the Public

Defender Attorney Generaland Reporter 101 South Main Street Suite 450 MARVIN E. CLEMENTS, JR. Clinton, TN 37716 Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 JAMES N. RAMSEY Distri ct Attorney General JAN HICKS Assistant Distri ct Attorney 127 Anderson County Courthouse Clinton, TN 37716
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 It is the poli cy of this Court to refrain fro m disclosing the names of minor victi ms of sexual assault. Instead we wi ll ref er to the victi m by her initial s.

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## OPINION

An Anderson County grand j ury indi cted Appellan t on three co unts of rape of a c h il d and t hree counts of i ncest , al legi ng sex ual p enet rat ion of MT, Appe llant’s step-daugh ter. 1 On Au gust 19 , 1996, A ppellant e ntered a plea of nolo contende re to the re duce d cha rge of th ree co unts o f simp le rape, for an agreed sentence of eight years on each count , with t he sentences to berun concurrently. The trialcou rt cond ucted a probation hearing on February 7, 1997, after which the trialcourt deni ed probation an d ordered Appell ant to serv e his sentence i n the Tennessee Department of Corr ection
. Appellant appeal s from this denial of probation.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

When a defendan t com plain s of his or h er sente nce, we must co nduct a denovoreview wi th a presumpti on of correctness. Tenn. C ode Ann. § 40-35- 401(d). The burden of showing that the sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401(d) Senten cing C ommission Commen ts. This presumption,however, i s condi tioned upon an a ffirmative showing in the record that the trial court considered t he sentencing principl es and all the releva nt facts an d circum stance s. State v. Ash by , 82 3 S.W.2d 166, 169 (Tenn. 19 91).-3- The Sentencing Reform Act of 1989 established specifi c procedures which must be foll owed in sentenci ng. These procedures, codifi ed at Tennessee Code Annotated § 40-35-210, mandate the trialcourt’s considerati on of the fol lowing:
(1) The eviden ce, if any, re ce ived at t he trialand the sentencing hearing; (2) [t] he presen tence re port; (3) [t]he principl es of sentenci ng and arguments as to sentencing alternatives; (4) [t]he nature and c harac teris tics of the cr iminal cond uct invo lved; (5 ) [e]vide nce a nd info rmatio n offered by the parti es on the enhancementand mitigat ing factors in §§ 40-35-113 a n d 40-35-114; and (6) [a]ny statementthe defendant wishes to make in his ow n beh alf about sentenci ng.
Ten n. Code Ann. § 40-35 -210. In determ ining w hethe r incarc eration is appropriate the trial court must take i nto account the foll owing principles:
(1) (A) Confinem ent is necess ary to pro tec t societ y by rest raining a defend ant who has a lon g history of c riminal co nduct; (B) Confin eme nt is neces sary to avoid depreciating t he seriousness of th e offense or confinement i s particu larly suited to provide an effective deterrence to others l ikely to commit simila r offenses;or (C) Measures less restrictiv e than confin eme nt have freque ntly or recently b een ap plied uns uccess fully to the de fendan t; (2) The sentence imposed should be no gr eater than t hat deserved for the offense committed; (3) Inequalities in senten ces that a re unrela ted to a p urpos e of this chapter shoul d be avoided; (4) The senten ce i mp osed sho uld be the least se vere mea sure necessa ry to a chieve the pu rpose s for wh ich the sente nce is imposed; (5) The potential o r lack of po tential fo r the reh abilit ation or t reatment of the de fenda nt sho uld be considered in determining the sentence alternative or length of a term to beimposed . The length o f a term of probation may r

eflect the length of

a treatment or

reha bilit

ation program in which partici pation i s a conditi on of the sentence; and (6) Trial judges a re enco uraged to use altern atives to incarcerat ion that includereq u irements of reparati on, vict im compensation and/or community servi ce.-4-

Tenn. Code Ann. § 40-35-103. Apart fr om a stated desir

e to avoid depr

eciati ng the seriousness of

the offens e, and the need for d eterrence, the record does not reflect considerat ion bythe tri al judge of the criteria outlined abo ve. We therefore review de novo the determination to deny pr obation i n this case.
Irrespective of whether the sentence act ually i mposed by the tri al court is reviewed with or without a presumption of correct ness, on appeal t he burden of showing the impropri ety of t he sentence and theentitl ement to probati on remains with the defendant . Sentencing Commission Comments, Tenn. Code Ann. § 40- 35-210 (b)(3) (199 0); State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). As a Ra nge I, standard offen der, convicted of a Class B fel ony, Appell ant is not presu mptive ly entitl ed to a sentence ot her than conti nuous confinement f or the duration of

the term of

years imposed. Tenn. Code Ann. § 39-13-503(b)and § 40-35-10 2(6) (Supp. 1 994).
The presentence repor t indicates that the Appellant is a 47 year old man sufferi ng from alcoho lism. He has a history of arrests and c onvictio ns for p ublic intoxi cation and d rivi ng un der the influence of an i ntoxicant . Although he has been in and out of tr

eatment for al coholism since the 1970's, t hese effort s appear t o h ave been largely unsuccessfulup untilthe commission of the present offenses. Th e Appellant also has a poo r employm ent history.

The Ap pellan t prese nted p roof tha t he wa s, at the time o f sente ncin g , empl oye d andhad comp leted i n-p ati ent treat ment

for alcohol ism
. He was also partici pating in out- patient treatment and he h ad stayed away f rom M.T. The2 The State cit es in it s brief Tennessee Code Annot ated § 37-1-601(a) as a statement by the Gen eral A sse mb ly of Te nne sse e tha t the p ublic p olicy of Ten nes see favo rs se vere punis hm ent fo r child sex abusers. While this code section does embody a legislative expr ession of concern about the incidence of

child sexual

abuse, the General

Assembly has nevertheless seen fit to ret ain probat ion as an alternative sentence for many chil d sex abusers. -5- Appellant st

ated that he was not a danger to the community, and he presented two character

witnesses i n support of his request for probat ion.

At the close of

the hearing, the trial c ourt de nied p robatio n in ord er to av oid depreciati ng the seriou sness of the offens e and in order t o deter other

s from committing t he same type of of fense.
Need to Avoid Depreciating the Seriousness of t he Offense

When the legislature has determined that probation i s permissibl e for an offense, in order f

or probati on to be denied o n the b asis of a nee d to avo id depreciati ng the seriousness of the offense, “the cir

cumstances of the offense as committed mus t be es pecia lly violent, horrifyin g, sho cking , repre hens ib le , offensiv e, orotherwise of

a excessive orexaggerate d degree.” State v. Hartley , 818 S.W .2d 370, 374 (Tenn. Crim . App. 1991 ). 2 Although the Appellant’s acti ons in this case are disgustin g, we ca nnot sa y that, as co mm itted, this cas e mee ts the Hartley standard.

Need for Deterrence
Ordinarily, the denialof probati on based on the need for det erren ce of otherpotentialoffenders must be supported by specif ic evidence of the ne ed in the comm unity for deter rence in th e commission of crimes like t hose committed3 Although we have concluded that the need to det

er chil d sex abuse cases through i ncarcerati on is obv ious , the q ues tion o f the n eed for ex trinsic proo f on th is iss ue is t he su bjec t of so me disag reem ent in the cou rts. W hen ther e is abun dant em pirical and a necdo tal evidenc e conc erning the num ber of inc idents child s ex ab use in our com mu nities , law e nfor cem ent e fforts to cu rb it, an d the prob lem s ca use d by it, it esc ape s us why pr ose cuto rs in m any ins tanc es fa il to intro duc e suc h pro of wh en op pos ing pr oba tion in these types of case. -6- by the defen dant. State v. Ashby , 823 S.W .2d 166, 170 (Tenn. 199 1). However,
no extr i nsic proof

is requi red to establ ish the need for deterrence in the commission of certai n criminaloffenses; the need for incarceration of offen ders in these cases is se lf-evi dent. State v. Dam on W . Byrd , No. 01C01- 9503- CR00083 (Tenn

. Crim. A pp. Aug ust 1, 199 6); State v. Pinkham , No. 02C01-9502- CR-00040 (Tenn. Crim. App. May 24 , 1996); State v. Millsaps , 920 S.W.2d 267, 271 (Tenn. Crim. App. 1995). Sexualmole station of child ren is an offense w here the need fo r deterren ce is obvio us. See State v. Vines , No. 95 1991 WL 21603, at *1 (Ten n. Crim. A pp. Feb . 22, 1991 ); See also State v. K ratts , No. 193, 1988 WL 63351 2, at *4 (T enn. C rim. A pp. Ju ne 22 , 1988 )(com men ting tha t “there is
a public awareness of t he need to deter an indivi dual who would sexually abuse children”

and that “t he need to deter . . . i s obvious”) . Thus, we c onclude t hat pr obation w as properly denied on the basi s of the need to deter other s from
comm itting crime s similar to th ose of the Appella nt. 3
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE-7-

___________________________________ WILLI AM B. A CREE, JR. S PECIA L JUDGE