IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 18, 2003

STATE OF TENNESSEE v. FREDERICK T. POINTER

 Appeal from the Circuit Court for Williamson County

No. I-802-303 Donald P. Harris, Judge

No. M2003-00893-CCA-R3-CD - Filed March 26, 2004

The defendant pled guilty in the Williamson County Circuit Court to sexual battery by an authority

figure and incest, Class C felonies. After a sentencing hearing, the trial court sentenced him as a

Range I, standard offender to concurrent sentences of four years for each conviction to be served as

eleven months, twenty-nine days at seventy-five percent in the county jail and the remainder on

supervised probation. The defendant appeals, claiming that the trial court erred by denying his

request for 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 JERRY L. SMITH and ROBERT W.

WEDEMEYER, JJ., joined.

John H. Henderson, District Public Defender; and Eugene J. Honea, Assistant Public Defender, for

the appellant, Frederick T. Pointer.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;

Ronald L. Davis, District Attorney General; and Sharon E. Guffee, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This case relates to the defendant’s sexually abusing his thirteen-year-old stepdaughter. At

the guilty plea hearing, the state gave the following factual account of the crimes: In February 2002,

the defendant began touching the victim underneath her clothes and between her legs. Occasionally,

the defendant would put his fingers inside her vagina. At some point, the defendant stopped abusing

the victim and told her he was sorry. However, in May 2002, he performed oral sex on the victim

at least twice. The victim told a teacher at school about the abuse, and someone at the school

contacted the Department ofChildren’s Services (DCS). When the defendant learned that the victim

had revealed the abuse, he immediately went to the Franklin City Police Department and gave a full

confession.
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At the sentencing hearing, Eric Fogel, a clinical therapist at the Rape and Sexual Abuse

Center, testified that he counseled the victim once a week from June to October 2002. He said that

in July 2002, the victim threatened to commit suicide, was hospitalized at Vanderbilt, and was placed

on medication. He said that the victim had been diagnosed with bipolar tendencies and that she also

suffered from Post Traumatic Stress Disorder and a mood disorder. He said that the victim talked

with him about the abuse but that she did not talk about it in detail. He said the victim was confused

and angry and expressed shame and guilt over the abuse. He said she also was having problems in

school. He said sexual abuse by family members was more damaging than abuse by nonfamily

members. He said the victim missed the defendant, which was not surprising because the defendant

had acted as the victim’s father for many years. He said he stopped meeting with the victim when

she went to live with her biological father. He said that the family wanted to be reunited but that it

would need continued therapy in order for that to happen. He said that children usually suffered

long-term effects from this type of abuse and that the victim would need therapy for a long time. He

acknowledged that the sexual abuse would have a great psychological impact on the victim.

On cross-examination, Mr. Fogel testified that the victim had expressed anger toward her

mother and would not obey rules at home or at school. He said he did not know if these problems

existed before the abuse started. He said the victim also was sexually abused by her biological father

when she was four or five years old. He said the victim’s reaction to the defendant’s sexual abuse

was not significantly different from other children’s reactions to sexual abuse. He said that the

victim wanted the defendant to be punished but that sending the defendant to prison would be hard

on her.

Detective Becky Johnson of the Franklin City Police Department testified that in May 2002,

she received a facsimile referral from the DCS and a telephone call from a DCS employee regarding

the victim’s allegations. She said that she contacted Lisa Pointer, the victim’s mother, and that Mrs.

Pointer agreed to bring the victim to the police department for an interview. She said that while she

was waiting for Mrs. Pointer and the victim to arrive, she was informed that the defendant was at the

police department. She said she met with the defendant in an interview room and asked why he was

there. She said the defendant told her that he had molested the victim. She said that she read the

defendant his rights and that he told her the following about the crimes: The defendant would

wrestle on the floor with the victim, her younger brother, and the defendant’s son. Sometimes, the

defendant would touch the victim accidentally and these touchings resulted in feelings that led to the

abuse. The defendant began sexually abusing the victim in January or February 2002. He was sorry

for the abuse and had tried not to abuse the victim again. However, the abuse continued on and off

for five months. The defendant performed oral sex on the victim at least twice and digitally

penetrated her vagina. The most recent episode of abuse had occurred the weekend before the

defendant’s police interview. Detective Johnson said the victim’s account of the abuse was very

similar to the defendant’s account. On cross-examination, she testified that the defendant was

cooperative and that she thought he was being truthful. She said that although most perpetrators

tried to hide their crimes, that was not true in this case.
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Lisa Pointer, the victim’s mother, testified that she and the defendant had been married

almost seven years at the time of the hearing. She said she learned about the abuse when the victim

telephoned her at work and told her about it. She said she did not believe the victim at first because

the victim was “commonly trying to make allegations about different things.” She said that she

talked to the defendant and that he admitted the abuse. She said the defendant told her he was going

to turn himself in to the police. She said the defendant’s sexually abusing the victim was out of

character for the defendant and did not think it would happen again. She said that the victim had

been sexually abused by the victim’s biological father when the victim was six years old and that the

victim would talk about that abuse as if it was happening currently. She said that the victim got

counseling for the abuse by her biological father but that he was never charged with a crime. She

said that she and the defendant were employed, that she would like for the family to be reunited, and

that everyone in the family would get counseling. She said the victim had gone to live with her

biological father because she was “totally defiant” and had gotten expelled from school. 

On cross-examination, Mrs. Pointer acknowledged that the defendant went to the police after

the victim had disclosed the abuse. She said that she did not blame the victim for the abuse and

agreed that the victim would need long-term therapy. She said that the defendant currently lived

with the family, that the victim came to visit every other weekend, and that the defendant left the

home when the victim was there.

Larry Watkins testified that he has a master’s degree in guidance and counseling and began

counseling the defendant in May 2002. He said that at the time of the hearing, he was still

counseling the defendant and had met with the defendant for about twenty-two hours. He said that

the defendant had made tremendous progress and that Lisa Pointer had attended many of the

defendant’s counseling sessions. He said he was helping to reprogram the defendant’s mind and

helping the defendant learn how to control certain issues. He said that the defendant had little to no

risk of reoffending, that the defendant needed long-term therapy, and that the defendant was

genuinely remorseful. On cross-examination, he testified that he had seen the defendant’s

psychosexual evaluation report, which states that the defendant has a low risk of reoffending, and

that he believed the defendant needed sexual offender counseling. He said that he was not a stateapproved psychologist and that he had no specific training for counseling sexual offenders. 

Allen Clark testified that he is the pastor at Brentwood Church of the Nazarene and that the

defendant and Lisa Pointer attended his church. He said he had not known the defendant very long

but was shocked when he heard about the sexual abuse. He acknowledged that the abuse was out

of character for the defendant, that the defendant was a good person, and that the defendant had

expressed genuine remorse for the crimes. 

The defendant testified that he knew what he did to the victim was wrong and that he turned

himself in to the police because he did not know what else to do. He said that he had tried to achieve

a morally upright family and that he was devastated by what he had done. He said that the victim

had had faith in him and that he let her down. He said that he believed the abuse took place from

April to May 2002, not January to May, but that he could have the dates wrong. He said that he tried
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to make an appointment for a psychosexual evaluation before he was charged with the crimes and

that he planned to continue receiving therapy. 

On cross-examination, the defendant testified that he used marijuana from 1981 to 1986. He

said that in 1983, he was charged with assault and battery for pulling down a woman’s shorts. He

said that he pulled down the shorts as a joke and apologized to the woman but that she went to the

police. He said that he pled guilty, received a sentence of one year on probation, and successfully

completed his sentence. He said the longest he had worked for one employer was two years. He said

that he had been laid off repeatedly and that he also had been going to school full time. He

acknowledged being fired from Nationlink for misusing electronic mail and said that he currently

was working for CompUSA. He also acknowledged that he went to the police department and

confessed to abusing the victim after he learned that she had revealed the abuse to her mother. He

said the abuse occurred at night while the victim was in bed. He said that he would go into the

victim’s bedroom to talk to her, that they would wrestle, and that she would pull him back when he

tried to leave. He said that he would tickle the victim’s hands and legs and that the abuse progressed

from there. He said that he had never touched the other children in the family and that he knew the

victim’s biological father had sexually abused her.

According to the defendant’s presentence report, the then thirty-eight-year-old defendant

graduated from high school and attended college classes. He reported that his physical heath was

good and that he suffered from arthritis in his right hand and back problems. The defendant

described his mental health as fair and said that he was “working through some addictive behavior

problems.” The defendant stated that he used marijuana from 1981 to 1986 but denied currently

using the drug. The defendant also stated that he began drinking alcohol when he was sixteen years

old and that his drinking increased until 1994. He said that at the time of the report, he drank four

or five drinks per month. The report shows that the defendant attended family counseling in 1993

and from June to July 2001. 

In a psychosexual evaluation that is attached to the presentence report, the defendant admitted

being attracted to females thirteen years old and younger. The evaluation provides that although the

defendant admitted to abusing the victim sexually, “his [rationale] and description of the offenses

suggest that he places some blame on the victim.” According to the report, the defendant has a low

risk of recidivism.

The trial court stated that it had considered the testimony, presentence report, psychosexual

report, enhancement and mitigating factors, and the statutory sentencing procedures. It noted that

the defendant was presumed to be a favorable candidate for alternative sentencing and that the range

of punishment for a Range I offender convicted of a Class C felony is three to six years. See T.C.A.

§§ 40-35-102(6), -112(a)(3). The trial court determined that enhancement factor (2), that the

defendant “has a previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range,” applied to his sentences. See T.C.A. § 40-35-114(2).

The trial court stated that it also had considered mitigating factor (1), that the defendant’s “criminal

conduct neither caused nor threatened serious bodily injury,” but refused to give that factor any
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weight because of the sexual abuse’s effects on the victim. It sentenced the defendant to four years

for each conviction to run concurrently. The trial court noted that although the defendant was a

“pretty good” candidate for alternative sentencing, a sentence of split confinement was more

appropriate in this case. The trial court determined that the defendant could have been charged and

convicted of rape and that in order to avoid depreciating the seriousness of the offenses, the

defendant should serve eleven months, twenty-nine days at seventy-five percent in jail.

The defendant appeals, claiming that the trial court improperly refused to give weight to

mitigating factor (1) and improperly refused to apply mitigating factor (11), that the defendant,

“although guilty of the crime, committed the offense under such unusual circumstances that it is

unlikely that a sustained intent to violate the law motivated the criminal conduct,” and factor (13),

that the defendant turned himself in to police and cooperated with authorities. See T.C.A. § 40-35-

113(11), (13). In addition, he contends that the trial court incorrectly determined that he could have

been convicted of rape and, therefore, that full probation was not appropriate in this case in order to

avoid depreciating the seriousness of the offenses. He claims that as a result of the trial court’s

errors, this court should review his sentences de novo with no presumption of correctness and

sentence him to full probation. The state claims that the trial court properly sentenced the defendant.

We agree with the state.

When a defendant appeals the manner ofservice 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
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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. 

 Initially, we note that the trial court’s determinations as to the sentences are entitled to a

presumption of correctness because the record reflects that in denying full probation, the trial court

considered the relevant facts, circumstances, and sentencing principles. Regarding the defendant’s

claim that the trial court should have given weight to mitigating factor (1), as long as the trial court

followed the sentencing purposes and principles, the weight to be afforded an existing factor is left

to the trial court’s discretion. As to the defendant’s claim that the trial court should have applied

mitigating factors (11) and (13), we hold that even if those factors were applicable in this case, the

trial court was justified in denying the defendant’s request for full probation. We note that the trial

court could have applied enhancement factor (16), that the defendant abused a position of private

trust, to his sentences. See T.C.A. § 40-35-114(16). Moreover, we agree with the trial court’s

denying an alternative sentence based upon the need to avoid depreciating the seriousness of the

offense. In order for this provision to apply, the circumstances of the offense must be “especially

violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree.” State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Hartley, 818 S.W.2d 370,

374-75 (Tenn. Crim. App. 1991). In this case, the defendant digitally penetrated and performed oral

sex on his thirteen-year-old stepdaughter over a period of five months. He also abused her while

knowing that she had been sexually abused by her biological father as a young child. We conclude

that the defendant has not overcome the presumed correctness of his sentences.

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

court. 

___________________________________ 

JOSEPH M. TIPTON, JUDGE