FILED

September 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CC-00220

)

Appellee, )

)

) ANDERSON COUNTY

VS. )

) HON. JAMES B. SCOTT, JR.

JOSEPH J. BROOKS, ) JUDGE

)

Appellant. ) (Probation Denial)

FOR THE APPELLANT: FOR THE APPELLEE:

NANCY MEYER JOHN KNOX WALKUP

Office of the Public Defender Attorney General and Reporter

101 South Main Street

Suite 450 MARVIN E. CLEMENTS, JR.

Clinton, TN 37716 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

JAMES N. RAMSEY

District Attorney General

JAN HICKS

Assistant District Attorney

127 Anderson County Courthouse

Clinton, TN 37716

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
1

It is the policy of this Court to refrain from disclosing the names of minor victims of sexual

assault. Instead we will refer to the victim by her initials.

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OPINION

An Anderson County grand jury indicted Appellant on three counts of rape

of a child and three counts of incest, alleging sexual penetration of MT,

Appellant’s step-daughter.1

 On August 19, 1996, Appellant entered a plea of nolo

contendere to the reduced charge of three counts of simple rape, for an agreed

sentence of eight years on each count, with the sentences to be run concurrently.

The trial court conducted a probation hearing on February 7, 1997, after which

the trial court denied probation and ordered Appellant to serve his sentence in the

Tennessee Department of Correction. Appellant appeals from this denial of

probation.

After a review of the record, we affirm the judgment of the trial court.

When a defendant complains of his or her sentence, we must conduct a

de novo review with a presumption of correctness. Tenn. Code 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) Sentencing Commission

Comments. This presumption, however, is conditioned upon an affirmative

showing in the record that the trial court considered the sentencing principles and

all the relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).
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The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tennessee Code

Annotated § 40-35-210, mandate the trial court’s consideration of the following:

(1) The evidence, if any, received at the trial and the

sentencing hearing; (2) [t]he presentence report; (3) [t]he

principles of sentencing and arguments as to sentencing

alternatives; (4) [t]he nature and characteristics of the

criminal conduct involved; (5) [e]vidence and information

offered by the parties on the enhancement and mitigating

factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny

statement the defendant wishes to make in his own behalf

about sentencing.

Tenn. Code Ann. § 40-35-210. In determ ining whether incarceration is

appropriate the trial court must take into account the following principles:

(1) (A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness

of the offense or confinement is particularly suited to provide an

effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant;

(2) The sentence imposed should be no greater than that deserved for

the offense committed;

(3) Inequalities in sentences that are unrelated to a purpose of this

chapter should be avoided;

(4) The sentence imposed should be the least severe measure

necessary to achieve the purposes for which the sentence is

imposed;

(5) The potential or lack of potential for the rehabilitation or treatment

of the defendant should be considered in determining the sentence

alternative or length of a term to be imposed. The length of a term

of probation may reflect the length of a treatment or rehabilitation

program in which participation is a condition of the sentence; and

(6) Trial judges are encouraged to use alternatives to incarceration that

include requirements of reparation, victim compensation and/or

community service.
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Tenn. Code Ann. § 40-35-103. Apart from a stated desire to avoid depreciating

the seriousness of the offense, and the need for deterrence, the record does not

reflect consideration by the trial judge of the criteria outlined above. We therefore

review de novo the determination to deny probation in this case.

Irrespective of whether the sentence actually imposed by the trial court is

reviewed with or without a presumption of correctness, on appeal the burden of

showing the impropriety of the sentence and the entitlement to probation remains

with the defendant. Sentencing Commission Comments, Tenn. Code Ann. § 40-

35-210 (b)(3) (1990); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.

1995). As a Range I, standard offender, convicted of a Class B felony, Appellant

is not presumptively entitled to a sentence other than continuous confinement for

the duration of the term of years imposed. Tenn. Code Ann. § 39-13-503(b) and

§ 40-35-102(6) (Supp. 1994).

The presentence report indicates that the Appellant is a 47 year old man

suffering from alcoholism. He has a history of arrests and convictions for public

intoxication and driving under the influence of an intoxicant. Although he has

been in and out of treatment for alcoholism since the 1970's, these efforts appear

to have been largely unsuccessful up until the commission of the present

offenses. The Appellant also has a poor employment history.

The Appellant presented proof that he was, at the time of sentencing,

employed and had completed in-patient treatment for alcoholism. He was also

participating in out-patient treatment and he had stayed away from M.T. The
2

The State cites in its brief Tennessee Code Annotated § 37-1-601(a) as a statement by the

Gen eral Assemb ly of Te nnessee that the p ublic p olicy of Ten nes see favors se vere punis hm ent fo r child

sex abusers. While this code section does embody a legislative expression of concern about the

incidence of child sexual abuse, the General Assembly has nevertheless seen fit to retain probation as an

alternative sentence for many child sex abusers.

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Appellant stated that he was not a danger to the community, and he presented

two character witnesses in support of his request for probation.

At the close of the hearing, the trial court denied probation in order to avoid

depreciating the seriousness of the offense and in order to deter others from

committing the same type of offense.

Need to Avoid Depreciating the Seriousness of the Offense

When the legislature has determined that probation is permissible for an

offense, in order for probation to be denied on the basis of 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 a excessive or exaggerated degree.” State v. Hartley,

818 S.W.2d 370, 374 (Tenn. Crim. App. 1991).2

 Although the Appellant’s actions

in this case are disgusting, we cannot say that, as committed, this case meets the

Hartley standard.

Need for Deterrence

Ordinarily, the denial of probation based on the need for deterrence of

other potential offenders must be supported by specific evidence of the need in

the comm unity for deterrence in the commission of crimes like those committed
3Although we have concluded that the need to deter child sex abuse cases through incarceration

is obv ious , the q ues tion of the n eed for ex trinsic proo f on th is issue is the 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 enfor cem ent efforts to curb it, an d the prob lem s caused by it, it

escapes us why pr osecuto rs in m any ins tanc es fa il to intro duce suc h pro of wh en op pos ing pr obation in

these types of case.

-6-

by the defendant. State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991). However,

no extrinsic proof is required to establish the need for deterrence in the

commission of certain criminal offenses; the need for incarceration of offenders

in these cases is self-evident. State v. Damon W. Byrd, No. 01C01-9503-CR00083 (Tenn. Crim. App. August 1, 1996); 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). Sexual molestation of children is an offense where

the need for deterrence is obvious. See State v. Vines, No. 95 1991 WL 21603,

at *1 (Tenn. Crim. App. Feb. 22, 1991); See also State v. Kratts, No. 193, 1988

WL 633512, at *4 (Tenn. Crim. App. June 22, 1988)(commenting that “there is

a public awareness of the need to deter an individual who would sexually abuse

children” and that “the need to deter . . . is obvious”). Thus, we conclude that

probation was properly denied on the basis of the need to deter others from

comm itting crimes similar to those of the Appellant.3

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE
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___________________________________

WILLIAM B. ACREE, JR. SPECIAL JUDGE