### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs N ove m be r 18, 200 3

STA TE OF TEN NES SEE v. FR EDE RIC K T. PO INTE R

Appeal f romthe Circ uit Court for Willi am son Coun ty No. I-802-303 D onald P . Harris, Judge

No. M2003- 00893-CCA -R3-C D - F iled March 26, 2004

Th e de fe nd a nt ple d g uil ty in the Willi a mso n Coun ty Cir c uit Cou rt to se xua l bat te ry by a n auth or ity fi g ur e a ndinc e st, Cla ss C fe lon ie s. Af te r a se nte nc ing he ari ng , th e tr ia l cour t sen tenc e d h im a s a Rang e I , standard of

fende r to conc urre nt sentence s of four y ear s for e ach c onviction to be ser ved as elev e n mo n th s , tw e n ty

- n in e d a y s a t s e v e n ty

- f iv e p e r c e n t in th e c o u n ty ja il a n d th e r e ma inder on

su pe rv ise d p ro ba tio n. Th e de fe nd a nt a pp e a ls, c la imi ng that th e tr ia l c ou rt erred by de ny ing his

re qu e st f or fu ll p ro ba tio n. We a ff

ir m th e jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OS EP H M. T I PTON , J ., delivere d the opi nion of t he court, in which J ER R Y L. S MI TH and R OB E R T W. W EDEMEYER , J J ., joined.

J ohn H. Henderson, Dist rict P ublic Def ender ; and Eug ene J. Honea, A ssistant P ublic Def ender , for the appe llant, Fre deric k T. Pointer.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Kathy D. As lin g e r, As sis ta nt A tto rn e y Ge ne ra l; Ronald L . Davis, Dist ri ct At torney Gene ral; and Shar on E. Guff ee, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case rela tes to the defendant’s sex ually abusing his thirteen-y ear -old stepdaug hter. At the g uiltyplea he aring
, the s tate gave the foll owing fac tual acc ount of t he crimes: I n Fe bruary 2002,
t h e d e f e n d a n tb e g a n t o u c h i n g t h e v i c t i m u n d e r n e a t h h e r c l o t h e s a n d b e t w e e n h e r

l e g s

. O c c a s i o n a l l y, the def endant would put his fing ers inside her vag ina. At some point, the defe ndant stopped abusing the vic tim

a ndtol d h e r h e wa s so rry

. Ho we ve r, in Ma y 20 02 , h e pe rf

or me d o ra l se x on th e vic tim at least twice . The victim told a teac her at sch o o l ab o u t the abuse , and someone at the school

c on ta c te d th e De pa

rt me nt of Chi ldr e n’ s Se rv ic e s ( DC S) . Wh e n th e de fe nd a nt l e arn e d th a t th e vic tim ha d r e ve a le d th e abu se , h e imm e diate ly we nt t o th e F ra nk lin City Pol ic e De pa

rt me nt a nd g a ve a

fu ll confe ssion.-2-

At the se nte nc ing he ari ng , E ri c F og e l, a c lin ic a l th e ra

pis t a t t he Ra pe andSe xua l A bu se Center, testified tha t he counse led the victim once a wee k from June to October 2002. He said that in J uly 2002, the victim threate ned to commit suicide, was hospitalized at Vande rbilt, and was plac ed

on me dic a tio n. He sa id that the vic tim ha d be e n dia g no se d with bip ola r te nd e nc ie s and that she a lso suffe red f rom Post Traumatic Stress Disorde r and a mood disorde r. He said that the victim talked with him about the abuse but that she did not t alk about it in detail. He said the victim was conf used

a nda ng ry a nde xpre sse d sha me a ndg uil t ov e r the abu se . H e sa id s he a lso wa s h a vin g pr ob le ms i n

sc ho ol. He sa id se xua l abu se by fa mil y me mbe rs wa s mor e da ma g ing tha n abuse b yno nfamily members. He said the victim missed the defe ndant, which wa s not surprising be cause the def endant had ac ted as the vic tim’s father f or many y ear s. He said he st opped meeting with the victim when sh e we nt t o li ve wi th h e r b iol og ic a l f a the r. He sa id tha t th e fa mil y wa nte d to be re un ite d bu t th a t it would need c ontinued thera py in order f

or that to happe n. He sa id that ch i l d re n u s ually suffe red long- term ef

fec ts from this ty pe of a

buse and tha t the victim would need the rapy for a long time. He

a c kn ow le dg e d th a t th e se xua l a bu se wo uldha ve a

g re a t ps y c ho log ic a l impa c t on the vic tim

.

On cr oss-examination, Mr. Fog el testified that the victim had e x presse d an ger t o wa rd her
mothe r a ndwo uld no t ob e y ru le s a t ho me or a t sc ho ol. He sa id he didno t kn ow if the se pr ob le ms exis ted bef

ore the abuse started. He sa id the victim also was sexuallyabused by her biolog ical father wh e n s he wa s f

ou r o r f ive y e ars old . H e sa id the vic tim ’s re a c tio n to the de fe nd a nt’ s se xua l a bu se was not si gn i fica ntly

differ ent from other

children’ s rea ctions to sex ual abuse . He sa id that the victim wanted the defenda nt to be punis hed but that sending the def endant to prison would be ha rd on her.

Detec tive Be cky

J ohnson of t he Franklin City Police Depa

rtment testified that in May 2002, she re ceive d a fa csimile ref err al from the DC S and a telephone call from a DCS employ ee r eg arding the vic tim ’s a lle g a tio ns . Sh e sa id that sh e c on ta c te d L isa Poi nte r, the vic tim ’s mothe r, a ndthat Mr s. Pointer ag ree d to bring the victim to the police depa rtment for a n interview. She sa id that while she

was wa iting for

Mrs. Pointer and the victim to arrive, she was informed that the defendant was at the police depa

rtment. She said s he met with the def endant in an inter view room a nd asked w hy he wa s there . She said t h e d ef

endant told her

that he had moleste d the victim. She said that she re ad the de fe nd a nt h is rig hts a ndthat he tol d h e r the fo llo wi ng abo ut the c ri me s: T he de fe nd a nt w ou ld

wre stle on the floor with the victim, her y oung er brother, and the def endant’ s son. Sometim es, the defe ndant would touch the victim a ccide ntally and these touching s resulted in fee lings that led to the abuse. The defe ndant beg an sexuallyabusing the victim in J anuary or F ebrua ry 2002. He wa s sorry for the a buse and had tried not to abuse the vic tim aga in. Howeve r, the a buse continued on a nd off fo r f ive mon ths . T he de fe nd a nt perf orm ed o ra l se x on th e vic tim a t le a st t wi c e a nddig ita lly penetr ated he r vag ina. T h e most rece nt episode of a buse had oc curr ed the we ekend be fore the de f e n d a n t’ s p o li c e in te r v ie w

. D e te c ti v e Jo h n s o n s a idth e v ic ti m’ s a c c o u n t o f th e ab u s e w a s very simil ar to the de fenda nt’s acc ount. On cross-e x amination, she testified that th e d ef en d an t was cooper ative and that she thoug ht he was be ing tr uthful. She said that althou gh m o s t perpe trators tried to hide their c rimes, that was not true in this case.-3-

L isa Pointer, the victim’s mother, testified that she a nd the de fe n d an t had bee n marrie d

a lmo st s e ve n y e ars a t th e tim e of the he ari ng . Sh e sa id s he le arn e d a bo ut the abu se wh e n th e vic tim
te le ph on e d h e r at w or

k a ndtol d h e r a

bo ut i t. S he sa id sh e did no t be lie ve the vic tim a t f ir st b e c a us e the victim was “c ommonlytry ing to make alleg ations about diffe rent thing s.” She said that she talked to the def

endant a nd that he admitted the a buse. She said the defe ndant t old her he was g oing to turn himself in to t h e p o l i ce. She said the defe ndant’s sexually abusing the victim was out of char acte r for

the def endant a nd did not thi n k i t wo u l d h appen a g ain. She said that the victim had been se x ually

abused by

the victim’s biologica l father when the vic tim was six y ear s old and that the victim would talk about that abuse a s if it was happe ning c urre ntly . She said that t h e victim g ot counseling for the a

buse by her biolog ical father but that he was never char g ed with a crime. She said that she and the defe ndant wer e employ ed, that she would like for the fa milyto be re united, and
t h at every one in the fa milywould g et counse ling. She sa id the victim had g one to live with her biologica l father

beca use she wa s “totally

defia nt” and ha d g otten expelled from school.

On cr oss-examination, Mrs. Pointer acknow ledg ed that the def endant we nt to the police af ter the victim had disclosed the a buse. She said that she did not blame the victim for the abuse and
ag ree d that the victim would need long -term ther apy . She said that the def endan t curr ently

lived with the family , that the victim ca m e to visit every other we ekend, a nd that the def endant lef t the home when the victim was there

.

L arry Watkins testified that he has a master’ s deg ree in g uidance and counse ling a nd beg an

cou ns e lin g the de fe nd a nt i n M a y 20 02 . H e sa id tha t a t th e tim e of the he ari ng , h e wa s st ill counseling the def

endant and had met with the defe ndant for about twenty -two hours. He sa id that the d efendant had ma de tre mendous prog ress a nd that L isa Pointer had attende d many of the defe ndant’s counse ling se ssions. He said he wa s helping to reprog ram the de fenda nt’s m i nd and helping the def

endant lea rn how to control certain is sues. He said that the defendant ha d littl e to no risk of re offe nding, that the defe ndant n ee d ed long-term therapy , and that the de fenda nt was g enuinely remorse ful. On cr oss-examination, he testified that he ha d s ee n the def endant’ s psy chosexual evalua tion report, which states that the def endant ha s a low risk of r eoff ending , and that he believe d the def

endant ne eded se x ual offe nder counseling . He sa id that he was not astateapprove d psy cholog ist and that he had no spe cific tra ining f or counse ling se x ual offe nders.

Allen Clark testified that he is the pastor at B rentwood Churc h of the Na zarene and that the defe ndant and Lisa Pointer attended his church. H e said he had not known the de fenda nt very long but was shocke d when he hear d about t he sex ual abuse. He a cknowledg ed that the a buse wa s out of cha rac ter for the def endant, that the de fenda n t wa s a good person, a nd that the def endant ha d expressed g enuine r emorse f or the c rimes.

The de fenda nt testified that he knew what he did to the victim was wrong and that he turned himself in to the police beca use he did not know what e lse to do. He said that he had tried to a chieve

a mor a lly up ri g ht fa mil y a nd that he wa s de va state d by wh a t he ha d d on e . H e sa id tha t th e vic tim had had faith i n him and that he let her down. He said that he believed t he abuse took place from April to May

2002, not J anuary

to May , but that he could have the dates wrong

. He sa id that he tried-4-

to make an a

ppointment for a psy chosexual evalua tion before he wa s char g ed with the crimes and that he planne d to continue re ceiving thera py

.

On cr oss-examination, the defenda nt testified that he used marijuana from 1981 to 1986. He said that in 1983, he was char g ed with a ssault and battery for pulling down a woma n’s shorts. He said that he pull ed down the shorts as a joke a nd apolog ized to the woman but that she went to the
po lic e . H e sa id tha t he ple d g uil ty , r e c e ive d a se nte nc e of

on e y e ar on pr ob a tio n, a ndsu c c e ssf ull y

c omp le te d h is s e nte nc e . H e sa id the lon g e st he ha d wor ke d for on e e mpl oy e r w a s tw o y e ars . H e sa id that he had been laid of f re peate dly

and that he a lso had bee n g oing to sc hool full tim e. He

a c kn ow le dg e d b e ing fi re d f ro m N a tio nli nk

fo r m isu sin g ele c tr on ic ma il a ndsa id tha t he c ur re ntl y

was wor king fo r C ompUSA. He also a cknowledg ed that he w ent to the police de partment a nd confe ssed to a

busing the victim after he learned that she ha d reve aled the a buse to her mother . He said the abuse occur

red at n i gh t wh i l e the victim was in be d. He sa id that he would g o into the victim’s bedroom to talk to he r, that they would wre stle, and that she would pull him back whe n he tried to leave

. He said that he would tickle the victim’s ha nds and leg s and that the a buse prog resse d from ther e. He said that he ha d never touched the othe r childre n in the family and that he kne w the victim’s biologica l father had sexually

abused he r.

Acc ording to the defe ndant’s pre senten ce re p ort, the then thirty -eig ht-y ear -old defe ndant
g raduated from hig h school and a ttended colleg e cla sses. He r eporte d that his phy sical heath was
g ood and that he suf

fer ed fr om arthritis in his right hand a nd back p robl ems. The de fenda nt described his mental hea lth as fair and s aid that he wa s “working throug h some addictive be havior
pr ob le ms. ” Th e de fe nd a nt s ta te d th a t he us ed mariju a na fr om 1 98 1 to 19 86 bu t de nie d c ur re ntl y using the drug . The de fenda nt also stated that he beg an drinking alcohol when he was sixt een y ear s old and that hi s drinking incre ased until 1994. He sa id that at the time of the re port, he dra nk four or five drinks per month. The report show s that the defe ndant attended family counseling in 1993 and fr om J une to J uly

2001.

I n a psy chosexual evalua tion that is att a c h e d to th e p r e s e n te nce r eport, the de fenda nt admitted being attrac ted to fema les thirteen y ear s old a nd y oung er. The evalua tion provides that althoug h the defe ndant admitted to abusing the victim se x ually
, “his [rationale] a nd description of the offe nses sug g est that he place s some blame on the victim.” Acc ording to the report, the defe ndant has a low ri sk of re c idi vis m.

The trial c ourt stated that it ha d considere d the testimony
, prese ntence report, psy chosexual
report, enhanc ement and mitig ating fac tors, and the statutory sentenc ing pr ocedur es. It noted that
t h e d ef en d an twa s p re s u m ed t o b e afa v o ra b l e can d i d at e f o r a l t er n at i v e s en t en ci n g an d t h at t h e r an ge of punishment f

or a Rang e I offe nder convicted of a Class C felony is thre e to six y ear s. See T.C.A. §§ 40-35-102( 6), -112( a)( 3). The trial court d et er m i n ed that enhance ment fac tor (2), tha t the de fe nd a nt “ ha s a pr e vio us his tory of c ri min a l c on vic tio ns or c ri min a l be ha vio r i n a dd iti on to tho se

nece ssary to establish the appropriate rang e,” applied t o his sentence s. See T.C.A. § 40-35- 114(2). The trial c ourt stated that it also had considered mit igating factor (1), that the defenda nt’s “criminal conduct ne ither caused nor thre atene d seriou s b o dily injury ,” but re fused to g ive that fa ctor a ny-5-

weig ht because of the sexual a buse’s eff ects on the victim. I t sentence d the def endant to four

y ear s fo r e a c h c on vic tio n to ru n c on c ur re ntl y . T he tr ia l c ourt no ted tha t a lth ou g h th e de fe nd a nt w a s a “pre tty g ood” ca ndidate for

alternative sentenc ing, a senten ce o f spl it confinement wa s more appropriate in this case. T he trial c ourt determined that the def endant c ould have be en cha rg ed and convicted of

rape and that in orde r to avoid depr ecia ting the se riousness of t h e o ffe nses, the de fe nd a nt s ho uldse rv e e le ve n mo nth s, tw e nty -n ine da y s a t se ve nty -f ive pe rc e nt i n ja il.

Th e de fe nd a nt a

pp e a ls, c la imi ng that th e tr ia l c ou rt imp ro pe rl y

re fu se d to gi ve we ig ht t o mit ig a tin g fa c tor

(1 ) a ndimp ro pe rl y

re fu se d to app ly

mit ig a tin g fa c tor

(1 1) , th a t th e de fe nd a nt,

“ a lth ou g h g uil ty

of the c ri me , c omm itt e d th e of fe ns e un der su ch un us ua l c ir c ums ta nc e s th a t it is unlikely that a sust ained intent to violate t he law motivated the criminal conduct,” and factor ( 13), that the defe ndant turned himself in to police and cooper ated with a uthorities. See T.C.A. § 40-35- 113(11), ( 13). I n addition, he contends that the trial court incorre ctly determined that he could ha ve be e n c on vic te d o f r ape a nd , th e re fo re , th a t fu ll pr ob a tio n wa s no t app ro pr ia te in thi s c a se in o rd e r t o avoid depr eciating the se riousness of the of fenses. He c laims that as a re sult of the trial court’ s

er r o r s , th is c o u r t s h o u ld r e v ie w h is s e n te n c e s d e n o v o w ith n o p r e s u mp ti o n o f c o rr e c tn e s s and

se nte nc e him

to f ull pr ob a tio n. Th e state c la ims that th e tr ia l c ou rt pr op e rl y se nte nc e d the de fe nd a nt. We ag ree with the state.

Whe n a de fe nd a nt app e a ls the ma nn e r of se rv ic e of a se nte nc e imp os e d by the tr ia l c ou rt , th is
court c onducts a de novo revie w of the r ecor d with a pre sumption t hat the trial c ourt’s de te rm inatio ns are c or

re c t. T .C. A. § 4 0- 35 -4 01 (d ). Ho we ve r, the presu mpt ion of c or re c tne ss i s “conditioned up on the af

firmative showing in the rec ord that the trial c ourt consider ed the se ntencing principles and a ll releva nt fac ts and circumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). The bur den is on the appe ali n g p ar t y t o s how that the sente nce is improper . T.C.A. § 40-35-401( d), Sentenc ing Commission Com ments. This means that if the trial c ourt followed the statutory sentenc ing pr ocedur e, made finding s of fa ct t hat are ade quately supported in the re cord, a nd
g ave due consideration and proper weig ht to the fac tors and princ iples that are rele vant to sentencing under the 1989 Sentencing Act, we may not disturb the sentenc e even if a differ ent resul t wer e pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. When determining if incar cer ation is appropria te, a tria l court should consider w hether (1) confine ment is neede d to protect socie ty by restra i ning a

defe ndant who has a

long history

of criminal conduc t, (2) conf inement is neede d to avoid deprecia ting the se riousness of the of fense or

c on fi ne me nt i s p art ic ula

rl y su ite d to pr ov ide a n e ff e c tiv e de te rr e nc e to p e op le lik e ly to c omm it simil ar of fense s, or (3) less restric tive measure s than confine ment have fre quently or re cently been applied unsucc essfully

to the defe ndant. Ashby , 8 2 3 S

. W

. 2 d at 169 (c iting T.C.A. § 40-35-103( 1)(A) -(C)) . The trial c o u rt m ay al s o consider the mitigating and enha ncing fac tors 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). I n addition, a trial court should consider a def endant’ s potential or lack of potential for r ehabilitation when determining if an alternative sente nce w ould be appr opriate. T. C.A . § 40 -35-1 03 (5) ; Bos ton , 9 38 S.W. 2da t 43 8. I n c on du c tin g a de no vo re vie w, we mus t consider ( 1) the e vidence , if any , rec eived at the t ri al and sentencing hearing, ( 2) the pre sentenc e-6-

report, (3) the principles of sentenc ing and arg uments as to se ntencing alternatives, (4) the nature a nd char acte ristics of the criminal conduct, (5) a ny mitigating or statutory enhanc ement fa ctors, (6) any statement th a t th e d e f

e n d a n t ma d e o n h is o w n b e h a lf
, a n d ( 7 ) th e p o te n ti a l f

o r r e h ab il it a tion or
trea tment. T.C.A. §§ 40-35-102, -103, - 210; see Ashby , 823 S.W .2d at 168.

I niti al l y , we n o t e t h at t h e t ri al co u rt ’s d et er m i n at i o n s as t o the sentenc es ar e entitled to a presumption of corr ectne ss be cause the re cord r efle cts that in deny ing f ull probation, the trial court considere d the re levant fa cts, circ umstances, and sentenc ing principles. R eg arding the def endant’ s claim that t he trial court should have g iven weig ht to mit igating f actor (1), a s long a s the trial court followed the sentenc ing purposes and principles, the weig ht to be aff orded an exis ting f

actor is left to the trial court’ s discret i o n

. As t o t h e def endant’ s claim that the trial court should have applied mitigating fac tors (11) and (13), we hol d that even if those fac tors wer e applica ble in this case, the trial court wa s justified in deny ing the defe ndant’s reque st for full proba tion. W e note that the tr ial

c ou rt c ou ld h a ve ap pl ied e nh a nc e me nt f a c tor (1 6) , th a t th e de fe nd a nt a bu se d a po sit ion of

pr ivate trust, to his sentences. See T.C.A. § 40-35-114( 16). More over, w e agr ee w ith the trial court’s d e n y in g a n a lt e r n a ti v e s e n te n c e b a s e d u p o n th e n e e d to a v o id d e p r e c iati n g th e s e r io u s n e s s of the of fe ns e . I n o rd e r f

or thi s p ro vis ion to a

pp ly , th e c ir c ums ta nc e s o f the of fe ns e mus t be “ e sp e c ia lly violent, hor

rify ing, shocking
, repr ehensible, offe nsive, or otherwise of an excessive or exagg erated deg ree .” State v. Tra vis, 622 S.W

. 2 d 5 2 9
, 5 34 (Tenn. 1981) ; State v. Hartley , 818 S.W .2d 370, 374-75 (Te nn. Crim. App. 1991). I n this case, the defe ndant di g itally penetr ated a nd perf

ormed ora l

se x on h is thirte e n- y e ar- oldste pd a ug hte r o ve r a pe ri odof fi ve mont hs. H e a lso abu se d h e r w hil e knowing that she had be en sexually abused by

her biolog ical father a s a y oung child. We conclude that th e de fe nd a nt h a s n ot o ve rc ome the pr e su me d c or re c tne ss o f h is s e nte nc e s.

Ba sed upon the for eg oing a nd the re cord a s a whole, w e af firm the judg ments of the trial
court.

___________________________________ J OSEPH M. TI PTON, J UDGE