# FILED
September 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE SEPTEMBER 1995 SESSI ON
STATE OF TENNESSEE, ) ) Appellee, ) NO. 03C01-9502- CR-00037 ) ) BLOUNT COUNTY V. ) NO. C-8150 ) ) HON. D. KELL

Y THOMAS, J UDGE ROBERT L. MILLER, ) ) (incest, one count) ) Defendant/Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : Kevin Shepherd Charles W. Burson 404 Ellis Av

enue Attorney Gen eral and Repor ter Maryv ille, Tennessee 37801 Lisa A. Yac uzzo Robert C. Edw

ards Assistant Att orney Gener al 707 Market Str

eet 404 James Roberts on Parkway Knoxvil le, Tennessee 37902 Nashvil le, Tennessee 37243 Mike Fly nn Distric t Attorney General Blount County Courthouse Maryv ille, Tennessee 37801

OPINION FILE D: _______________

Affirmed

Lee Russ ell, Spe cial Judge

OPINION2 This case is an appeal as a matter of ri ght by R obert L. Mil ler (“Appel lant”), w ho
was convicted of one count of incest in viol ation of Tennessee Code A nnotated § 39-15- 302. The Appellant appe als from the judgment of the Hon. D. Kelly Thomas, Jr., Judge of the C ircui t Cou rt of Blou nt Co unty, Tennessee, who denied th e Appellant’s application forprobation and i mposed a sentence of five years i n the local jail w ith work release. The Appellantchallenges

both the denial of probation and the l ength ofthe sentence gi ven. We affirm the trial judge’s denial of probation and the i mposition of the five year sentence. On January 31, 1994, the Blount County Grand Jury i ndicted the Appellant on a single count of incest. The indictment alleged that the Appellant sexually penetrate d his daughter, Amanda J. Mil ler, in Ma y of 1993. The Appellant waived his right toa trial by juryand entered aplea ofguilty on August 2, 1 994. A sentencin g hearing was conduc ted
on September 27, 1994, at which theState presented n o live w itnesses but r ather relied upon the Presentence Report. The Appel lant also offered n o live test imony but re lied upon the Presentence Report and on a l etter from a Bill Tille ry, a licensed c linical s ocial worker. The report of a Dr. Abraha m Brietstein, Ph.D., w ith Clini cal and School Associates, w

as part of the Pres entence Report.
The trial judge found two enhancing fa ctors that he said would cause the sentence to be i ncrease d fr om the mi nimum sentence of three years up to six years. These enhancing factors were the fact that th e victim was pa rticularl y vulnerable due to h er age and that the Appella nt abused a positi on of trust that si gnificantly facilitat ed th e commission or fulfillment of the offense . The trial court also f ound as a sentenci ng consideration under Tennessee Cod e Annotated § 40 -35-103 (1)(B) th at incarcer ation
was necessary

to avoid depr

eciating t he seriousness of the offense and that confinement
was part icula rly sui ted t o pro vide a n ef fec tive deterrence to others likely to commit simi lar offenses. The trial j udge found two mi tigating factors present whi ch caused him to reduce the sentence from six years back down to five years, which is the sentenc e that
was ultimately imposed. The judge allowed the sen tence to be served in the local jail and3

granted the Appe llant wor k release con tingent on hi s ability to find employment.
The Appellant argues that the two enhan cing factors applied by the trial court should not have been app lied because the y were not supported by the evid ence and because they are el ements of the offense of incest. The Appellant arg ues thatthe trial judge trea ted t he two miti gatin g fac tors pres ent h ere a s onl y one, when t hey sh ould have been trea ted a s two, spec ific ally, cooperation i n the invest igation under Tennessee Code Annotated § 40-35-1 13(9) a nd voluntar y partic ipation in cou nseling under Tennessee Code Annotated § 40-35- 113(13). The Appel lant argues that the trial judge improperly relied upon the nature of the o ffense itself in refus ing to grant probat ion. Finall y, the Appellantargues that Tennessee Code Annotated § 40-35-102(6) and § 40-35-303(a ) create a presumption i n favor of probati on which w as not overcome a t the se ntencing hearing.
The standard of review

of the denial of probati on and of the length of the sentence given in this case is set out in Tennessee Code Annotat ed § 40-35-401(d) as being a de
novo review

on the record w ith a presumpti on that the determi nations made by the court from which theappeal was taken are corr ect. The req uirementthat the appellate court pr esume the correct ness of the determinat ions made by t he trial cour t is conditi oned upon the a ff irma tive showing in the record that the trial court consi dered the sentenci ng principles

and all relevant facts and circ umstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting this de novo review of a sentence, the appel late court must consider any evidence received at the sentenci ng hearing, the presentence report, the principl es of sentencing , the arguments of counsel rel ative to sentencing alternatives, the nature and characteristics of the offense, any mitig ating and enhanc ing factors, any statements made by the defendant in his own behalf, and the def endant’s potential or lack of potential for reha bilitation or treatment, the fact o rs set out in Tennessee Code Annotated § 40- 35-210(b) for th e trial jud ge to consid er in setti ng the specific sentence and the app ropriate sentencing alt er natives. See Ashby; State v. Thomas, 755 S.W .2d 833 (Tenn. Crim. App . 1988).4 Incest i s a class C felony and carries a s entence of three to s ix yea rs. The tria l judge properly began his determination of the Appellant’s sentence with the lowest figure in the range, three years. Tennessee CodeAnnotated §40-35 -210(c). The trial court then found two enhanci ng factors to r aise the sentenc e tentat ively to six years. Appellant’s challenge t o the application of these enhancing factors and his objection to the sentence of five year s is entirely contr

ary to the position taken by his cou nsel atthe sentencing hearing. Defense counsel told the trial judge at the sentencing hea ring, “[T]o start with the enhancing and mi tigating factors, I ag ree with [Distric t Attorney] General Flynn that the two factors that he c ited today w ould apply i n this case.” The two factors cited by General Flynn were the same two enhancing factor s ultimately

applied by the trial judge. The Appellant’s counsel concede d at the sentencing hearing that “the cou rt
can set the sentence above the mini mum range and would be justified under the law in doing so. . . .” The Appel lant’s counsel at the sentenci ng hearing even went so far as to suggest a sentence “somewhere in the fo ur-to-f ive year range ,” where the trial judge ultimately

set the sentence.
The Appellant now

cites the cas e of State v. Adams, 864 S.W .2d 31 (Tenn. 1993 ), forthe proposition that age alone i s not a sufficient bas is for enhancement abs ent proof of actual natural physical and mental limitations of the victi m. This enhancing factor can be used on ly if the vict im, bec ause of his or her a ge or physi cal or mental condition, was in fact “particu larly v ulnerable,”that is , incapable of res isting, s ummoning help, or testifying against the perpetrator

. Id. at 35. The State bear s the burden of prov ing the victim’s limitations

rendering him or her par ticularly vulnerabl e. Id. The Supre me Court in Adamsheld that the record woul d not support the c onclusion that the victims were particularlyvulnerable, in spite of the fa ct that the victims were onlyfou r, fi ve, an d twel ve years of age. This court has appl ied Adams to hold that the mere proof that a victim is twelve is insufficient

to support appli cation of the vu lnerabilit y enhancement factor . See State v. Hayes

, 899 S.W .2d 175, 185 (Tenn . Crim. App. 1995).
The record from theAppellant’s sentencing hearing is devoid of an y evidence of5

the victim’ s mental or phy sical attr ibutes. However, the larg e physical size of the Appellant, that h e is six feet one inch tall and weighs 265 pounds, is in evidence. Also in evidence is the fact that the Ap pellant was thirt y- three years of age when the incest
was committed, ascompared with the victim, who was only twelve at the time. This court has held that ev idence of age alon e, without proof of the specifics of thevictim’ s physical and mental limitat ions, is suffici ent to sustain applicati on of the vulner ability enhancement factor where the perpetrator i s relatively much ol der. See State v. Bea chboard, No. 03C01-9302-CR -00041, 1993 Ct . Cri m. App. LEXIS 629 (victi m was fifteen and perpetrator

was thir ty-four). In the case sub judice , the perpetrator w as n ot only years older but was al so of very

large si ze and was quite i ntoxicated at the time of the incide nt, supporting t he trial cour t’s conclus ion that the v ictim was vulnerabl e in relati on to the Appellant.
The Appellant’s argument that vulnerability is a necessary element ofincest and therefore cannot

be cons idere d as an enhanci ng fact or unde r the t erms of Te nness ee Code Annotated § 40-35-114(4) is likew ise wit hout merit. Theincest statut e makes no reference to the age of the v ictim or to the physical or mental vulnerability of the victim
or to the relati ve physi cal or mental strength or relative ages of the v ictim and the perpetrator. This court has expressly held that vulnerability due to age is not an element of the crim e of incest

. State v. Prui tt, No. 10C 01-930 4-CR -00012 3, 1994 Tenn. C rim. App. LEXIS 198 at

p. 7.
The second enhancing factor applied was the ass ertion that the Appellant abus ed
a position of pri vate trust in a manner

that signi ficantly facil itated the commiss ion of the offense. The record supp orts the appli cati on o f this factor. The Appel lant is the biological and legal father of the victi m. The Appellant l ived in th e same household w ith the child and had authority over her. The exerci se of thatauthority allowed h im to be wi th her alone, which allowed t he abuse to occur . The Appellant argues that the position of trust cannot be used as an enhanci ng factor under Tennessee Cod e Annotated § 40-35- 114(15) in an incest case because the e xistence of the trust is an essential element of6

the crime. This court has held that the existence of a position of tru st is not an es sential element of the crime of incest b ecause Tennessee CodeAnnotated § 39-15- 302 prohibitssexual penet ration among a wide rang e of relations, i ncluding a p a re nt and child. Pruitt at 7.
The record does not support the claim that the trial judge f ailed to consi der the Appellant’s cooperation i n the inve stigation of the crime and his voluntary

participati on in counseling as separate mit igating factors. Examination of the record reveal s that the trial judge did consider

both of these mitigating factors separately, and th e record reveals that neither the Appellant’s coop eration in the investigation nor his participation in counseling was total o r entirely volu ntary. Th e trial jud ge expressl y stated on the record
as follows: “The mitigating factors that t he court finds to be appropriate a re the ones listed in the presentence report invol ving the cooperation of

the Defendant an d the fact that he h as also e ngaged in counseling.” [emphasis adde d] The Presentence Repo rt reads as follows as to mitigating factors: Mitigating factors: The following mitigatingfactors wer e filed by the defense: 1. The Defendant cooperated w ith investigating authorities to the fullest extent possi ble in reg ard to the offense. 2. The Defendant volunt arily e ngaged in counseling to address the circumstances

for this offense and has r eceived a favorable report fr o m the counselor. It is apparent that the trial judge took both of these mitig ating factors into account.
The Defendant’s cooper ation was less than comple te in that he never admitted recalling any

details of what he did to his daughter. In the preparation of the Prese ntence Report, he is

quoted asinitiall y reporti ng concerni ng the inci dent, “I have no version or reason.” Hethen denied reca lling the incident and ex plained that he had a “borderl ine multiple personality

” disorder . D r. Br ietstein’s report states that the Appella nt claimed that he could not recall the inc ident because he w as too intoxicated to recall the details. Dr. Brietstein concludes that “ his explan ation i s unlikely to be true, it being much more7

lik elythat he remembers more than he is w illing to tell. “ The trial judg e no ted that th e Appellant“says he thinks his daughter is

telling the truth, but h e wo n’t take enoug h of the responsibility to acknowledge that he knows what he did and was aware of it while he did it.”
Th e Appellant’s cooperation in counseling was lik ewise le ss than complete and volun tary. He did part icipate in counsel ing bef ore he was ever indicted, and he did participatein both gro up counse ling and family counseling with his wife and daughter. However, the counselingdid not begi n unti l after the accus ations of sexual abuse had been made. Dr. Brietstein reports th at the Appellant “was referred subseque nt to all egati ons by his daughter that he had sexually abused her.” Mr. Tillery’s report indicatesthat he saw the Appellant on a referral from a Mar yvil le Police D epartment detective, suggesti ng that counsel ing followed an investi gation of the inc ident, making it less voluntary than it would have been had i t been sought pr ior to commencement of an investig ation.
More importantly , even at the time of the sent e ncing heari ng, the Appell ant had not sought or

participated in an alcohol treatm ent program of any kind, in spite of the fact that severe i ntoxicati on was one ex planation he gave for not recalling the details of the incest. Dr. Brietstein’s report indicated that the App ellant “does appear lik ely to b e an alcoholic.”

The do ctor chron icled “q uite a histor y of alcohol a buse” dating back to the age of thirteen. By

seventeen, th e Appellant was dri nki ng h eav ily , and for a per iod of a year he dr

ank a case of beer

or a fifth of liqu or each day. He admitted pr ior use of cocaine, amphetamines, L SD (fifteen to seventee n times), and marijuana. The tria l judge complained about the failure of the Appellant to seek treatment for

his substanceabuse. The trial judg e correctl y consider ed the mitigat ing and enhanci ng factors, and the weig ht given to those factors is left to the trial j udge, prov ided that he complies with the purposes and princi ples o f the Sentencing Ref orm Act of 1989 and provided his findings are supported by the record. See State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995). The sentence is affirmed.8 The final issue to be determined is whether th e trial jud ge erred i n failing to grant the Appellant probation. A trial cour t must presume that

a defendant sentenced to eight years or less w ho is not an offender for w hom incarcerat ion is a pri ority i s subject to alte rnat ive sentencing. See State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further

presumed that a s entence other than incarceration would result in successful rehabilitat ion unless rebutted by suffici ent evidence in the record. Id. at 380. Ho wever, although a defendant may be presumed to be a favorable candi date for alte rnat ive sentencing, the defen dant has the burden of establishing suitability for full probation under Tennessee Cod e Annotated § 40-35- 303(b). See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App . 1996). Even though probation mu st automatically be considered, the defendant is not au tomatically entitled to pro bati on as a mat ter o f law. See State v. Hart

ley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991); see also Sentencing Commission Comment s to Tennessee Code An notated § 40-35-303 (b).
The trial judge not o nly co nsid ered alte rnat ive se nten cing b ut di d in f act gr ant t wo forms of a ltern ative sentencing. Tennessee Code Annotat ed § 40-35-104( c) lists the varioussentencing alte rna tives av ailable to a t rial judg e. Subsection ( c)(5) of that statute lists as

a sentencing alternative a “sentence of continuo us confinement in a local jai l or wor khouse.” The tr ial judge here used this alternative. Subsection ( c)(6)

of the s ente ncin g alte rnat ive statute lis ts work release as s uch an alternative. The trial judge in the case here used t his alternati ve also.
This court has held that a tria l judge hasmet the statutory presumption cr

eated byTennessee Code Annotat ed § 40-35-102(6) in favor of alt ernative s enten cin g if the court selects oneof the sentencing alternat i ves listed in Tennessee Co de Annotated § 40-35-104. See State v. Allison, No. 03C01-9403- CR-00106, 1995 Tenn. Crim. App. LEXIS 260. If one of these alternat ives is applied, the argument th en becomes whet her
or not the corre ct alternati ve was selected. Id. The Allison court held that where thetrial court has selected a

sentencing alternative listed in Tennessee Code Annotated § 40-35-9

104, the appellate cour t will not second-guess the sentencing decision of the trial court
as to the particular alternative chosen unless the record establishescompelling reasons fordoing so. The court in Allison, relyingheavily on State v. Ashley

, 823 S. W.2d 16 6 (Tenn. 1987), upheld a senten ce of split confinem ent in a case in which thedefendant argued for full probation.
The Appellant asse rts that the tr ial judge did not consider probation and that he denied probation entirely on the basis of th e nature of the crime of incest. The nature of the crime alone i s not grounds to deny prob ation. See State v. Hart ley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991) (fact th at substance inv olved was cocaine did notin and of itself justify deny ing probati on). How ever, the t rial court i n the cas e sub judice did not bas e his denial on ly on the nat ure of the crime of i ncest. He ci ted a number of other consideration s and e xpressl y fo und th at confinemen t was necessary to avoid depreciating the seriousnes s of the offense, a sentencingprinciple found at Tennessee Code Annotated § 40-35- 103(1)(B). The trial cour t also consi dered the potential or lack of potential for the rehabilitati on or treatment of the Appellant and cons idered the deterrent effect of the in carceration.

The trial judge found that the Ap pellant was less than entirely candid about his recollecti on of the incident and tha t h e was les s than straig htforward i n accepting responsibil ity

for his actions. A de fendant’s truthfulness in provi ding informati on for his sentencing hearing i s probative of the defendan t’s atti tude towar d soc iety a nd pr oba tive of his prospects for rehabilitati on. See State v. Byrd, 861 S.W.2d 377 (Tenn. Crim. App. 1993). Dr. Bri etstein’s report confirms th e trial judg e’s conclusi on that the Appell ant was not truthful about his

recollecti ons of the incident. The Ap pellant contin ued to drink and did not seek treat ment for alcohol abus e, which w as a major cons ideration by the trial judge

. The evidence concerning the incident of in cest and the ev idence of the Appellant’s history

of alcohol and dru g abuse suppor t the trial judge’s co nclusion that the Appellantneeded treatment. The f ailure to seek alcohol treatmen t and a defenda nt’s10

insistence on continuing to drink after committing a crime in w hich alcohol was inv olved bear upon the defendant’s pros pects for rehabi litation. Se e State v. Karnes , No. 01C01- 9606-CR-00249, 1997 Tenn. Crim. A pp. LEXIS 486.
The trial cour

t also noted that the A ppe llant could ha ve been conv icted of aggravated rape under Tennes see Code Annotated § 39-13-502(a)(4) since the victim of the crime was under the age of thirteen. Aggravated rape is a class A felony , and the Appellanttherefore could have received a senten ce of fifteen to twenty-five years as a Range I offender. A trial court is al lowed to l ook behind the plea barg ain and consider the true nature of the offense committed in making s entencing deter minations. See State v. Holling

sworth, 647 S.W .2d 937, 939 (Tenn . 1983).
The alternative sentencing imposed in this case was proper, and the A ppellant failed to meet his bur

den of proof to establish that he was entitled to pr

obation. The tri al judge properly sentenced the Appellant under the Sentencing Ref orm Act, and the length of t he sentence imposed was proper and was bas ed on the factors to be cons idere d under that statut ory scheme. The judgment below is affirmed.

LEE RUSSELL, SPE CIAL JUDGE

CONCUR:

____________________________ WILLIAM M. BARKER, JUDG E

____________________________ JOHN K. BY ERS, SENIOR JUDGE