IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 15, 2006 Session

STATE OF TENNESSEE v. ROBERT L. MYERS

Direct Appeal from the Criminal Court for Sullivan County

No. S49,260 Phyllis H. Miller, Judge

No. E2005-02576-CCA-R3-CD - Filed October 2, 2006 

The defendant, Robert L. Myers, pled guilty to two counts of attempted aggravated sexual battery,

a Class C felony, and was sentenced as a Range I, standard offender to six years on each count, to

be served concurrently. On appeal, he argues that the trial court erred in denying probation or

alternative sentencing. Following our review, we conclude that the trial court properly sentenced

the defendant and affirm the judgments of conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ALAN E.GLENN,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,J., joined.

GARY R. WADE, P.J., not participating.

Richard A. Spivey and Timothy R. Wilkerson, Kingsport, Tennessee, for the appellant, Robert L.

Myers.

Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Kent L. Chitwood, Jr. and William B. Harper,

Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

On June 9, 2004, a grand jury indicted the sixty-five-year-old defendant on two counts of

aggravated sexual battery, and he subsequently pled guilty to the lesser-included offenses of

attempted aggravated sexual battery. At the submission hearing, the State summarized the evidence

it was prepared to present had the matter gone to trial:

[O]n September 9th, 2003, Deputy Sherrie Ramsey of the Sullivan County Sheriff’s

Department received a referral of child sexual abuse from the Department of

Children’s Services. It was originated by a Kimberly Neece. She stated that at the

time Ms. Neece lived with the defendant, Mr. Robert Myers, and her five year-old

daughter, Emily; her daughter’s birthday, December 5th, 1997, and they lived at 750
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VI Ranch Road in Bristol, Tennessee. She stated that on September 6th, 2003 she’d

gotten off of work early and got home somewhere between 10:30 and 11 p.m., and

home is the address that I just mention[ed] . . . in Sullivan County. [Ms. Neece] went

into the house and was going to sneak up on the defendant and Emily and let them

know that she was home early. She stated that she walked up the stairs, could hear

them talking and laughing. The defendant’s bedroom door was half cracked and she

could clearly see inside the bedroom. She stated that she saw the defendant, who was

lying on the bed with his underwear pulled down, and he was holding his penis in his

hand. The five year-old, [Ms. Neece’s] five-year-old daughter was sitting on the bed

in front of him and she was also naked and she was leaning back on her knees and

she was laughing as if they were playing a game. [Ms. Neece] went into the room,

confronted them, took [the victim] to her own bedroom and then confronted the

defendant again with regard to what had happened. The defendant came in, gave a

statement to the Sullivan County Sheriff’s Department and stated that prior to Ms.

Neece . . . arriving home, that . . . [the victim] . . ., five years of age, had touched his

penis on two occasions. According to his statement the second time he did not make

her stop. Also, it would be the State’s contention that the [victim] made a statement,

and would make the statement had this case gone to trial, that they had been playing

a game and also and not at the same time in which she had touched his penis but on

the same night he had placed his mouth on both of her breasts and on her vagina with

regard to this game that they had played, and that would be the State’s proof in this

case. 

At the subsequent sentencing hearing, the defendant offered no proof and said that he was

relying, in part, on the presentence report and sex offender risk assessment from Counseling and

Consultation Services, which are in the record on appeal. The risk assessment stated that the

defendant posed a “moderate risk to re-offend” and that he provided differing versions of the

incident:

The willingness or ability to honestly discuss their sexual offending behavior

is the single most important factor associated with successful treatment. [The

defendant] provided different versions of the “truth” during the course of the

assessment. His statements were also significantly different than the victim[’]s. [The

defendant’s] self-report is considered unreliable and his lack of full disclosure is

associated with a poor treatment outcome. 

The trial court denied alternative sentencing, stating that the defendant’s sentence had

“already been mitigated enough by letting him plead to attempt.” Additionally, the court noted that

the victim, being five years old, had no choice about where to live and that the defendant blamed her

for the sexual contact:

[T]his little girl couldn’t leave. She couldn’t go out and find her another home, and

it was her home, the only place she had unfortunately to halfway, supposed to be safe
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in this world, was where she lives with her mother, and in that house is a man who

would abuse her the way this report reads. 

Now, . . . who does he blame? Does he take responsibility for it? No, he

blames the five-year-old. That’s what the Counseling and Consultation Services

report states. It states, number one, he’s a moderate range of risk. The next is he is

able to acknowledge some of the incident offense, however places the responsibility

for the sexual contact on the five year-old victim. 

The trial court applied enhancement factor (16), see Tenn. Code Ann. § 40-35-114(16) (Supp.

2005), finding that the defendant had “abused a position of private trust on more than one occasion,”

which the court gave great weight. As for mitigating factors, the court concluded that the

defendant’s lack of a criminal record was relevant but entitled to “very, very little weight in a crime

of this nature.” The trial court noted that the defendant had an excellent work history. However, in

summation, the trial court decided that incarceration was appropriate:

[C]ommunity corrections is out of the question. I don’t find that that would benefit

him or the community. He has no drug problem. There’s nothing that caused this

except his desire for sexual excitement and the five year-old was there to provide it.

So I’m denying alternative sentencing, [finding] that the enhancement factors that

I’ve found far outweigh any of the good work history and the no criminal record. So

he’s ordered to serve his sentence of six years [as a] Range I standard offender in the

Tennessee Department of Corrections. 

ANALYSIS

On appeal, the defendant argues that the trial court erred in denying probation or alternative

sentencing, saying the court “fail[ed] to properly weigh and balance established mitigating factors

with the single enhancement factor applicable to [the defendant], a presumptively favorable

candidate for probation or other alternative sentencing.” The State argues that the record supports

the trial court’s imposition of a sentence of confinement.

When reviewing the denial of probation, this court conducts a de novo review on the record,

“with a presumption that the determinations made by the court from which the appeal is taken are

correct.” Tenn. Code Ann. § 40-35-401(d) (2003) (amended 2005). 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). If appellate 

review “reflects that the trial court followed the statutory sentencing procedure,

imposed a lawful sentence after having given due consideration and proper weight

to the factors and principles set out under the sentencing law, and that the trial court’s
We cite to the 2003 version of the Code because it is the law properly applied to the defendant. See 2005 1

Tenn. Pub. Acts ch. 353, § 18. The defendant could have elected to be sentenced under the 2005 Act because his crimes

were committed prior to June 7, 2005, and he was sentenced after that date. See id. As the defendant did not so elect,

the 2003 probation provision applies in this case. However, we note that substantial changes came with the 2005

amendment, including increasing the maximum sentence length a defendant can receive and still be eligible for probation

from eight to ten years. Tenn. Code Ann. § 40-35-303(a) (2005).

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findings are adequately supported by the record, then we may not modify the

sentence even if we would have preferred a different result.”

 State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000) (quoting State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991)). 

A defendant shall be eligible for probation, subject to certain exceptions, if the sentence

imposed upon the defendant is eight years or less. Tenn. Code Ann. § 40-35-303(a) (2003)

(amended 2005). Even if eligible, however, the defendant is not automatically entitled to probation 1

as a matter of law. See Tenn. Code Ann. § 40-35-303(b). The burden is on the appellant to show

the denial of probation was improper. See State v. Summers,159 S.W.3d 586, 599-600 (Tenn. Crim.

App. 2004) (citing Ashby, 823 S.W.2d at 169); see also State v. Baker, 966 S.W.2d 429, 434 (Tenn.

Crim. App. 1997) (stating that “[a] criminal defendant seeking full probation bears the burden on

appeal of showing the sentence actually imposed is improper, and that full probation will be in both

the best interest of the defendant and the public”).

There is no bright line rule for determining when a defendant should be granted probation.

State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by

State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Every sentencing decision necessarily requires a caseby-case analysis. Id. Factors to be considered include the circumstances surrounding the offense,

the defendant’s criminal record, the defendant’s social history and present condition, the need for

deterrence, and the best interest of the defendant and the public. State v. Goode, 956 S.W.2d 521,

527 (Tenn. Crim. App. 1997). Another appropriate factor for a trial court to consider in determining

whether to grant probation is a defendant’s credibility or lack thereof, as this reflects on the

defendant’s potential for rehabilitation. Id. 

In this matter, it is clear that, in denying probation, the trial court considered the relevant

facts, circumstances, and sentencing principles; and, thus, its findings as to the sentence are entitled

to a presumption of correctness. In denying probation, the court found that the defendant had not

been candid as to the facts of the incident but had, in fact, “place[d] the responsibility for the sexual

contact on the five year-old victim.” As we have set out, a defendant’s lack of candor reflects on his

potential for rehabilitation. Further, according to the report from Counseling and Consultation

Services, the defendant’s “lack of full disclosure is associated with a poor treatment outcome.” In

essence, the defendant simply disagrees with the weight which the trial court afforded the
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enhancement and mitigating factors. However, it is within the discretion of the trial court as to the

weight to be afforded the factors. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).

We conclude that the record easily supports the trial court’s determination that the defendant did not

establish that he was a favorable candidate for probation.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of alternative sentencing.

___________________________________ 

ALAN E. GLENN, JUDGE