# FILED

March 9, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9804-CR- 00138 Appellee, * HAMBLEN CO UNTY VS. * Hon. John K. Byers , Senior Judge ROBERT EUGENE PFOFF, SR ., * (Two Coun ts of Sexu al Batte ry)

Appellant. *

For Appellant : For Appellee : Paul G. Whetstone John Knox Walkup Attorney Attorney General and Repor ter 502 North Jackson Street Morristown, TN 37814 Eric W. Dabb Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 Victor Vaughn and John Dug ger Assistant District A

ttorneys General 519 Allison Street Morristown, TN 37814

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE1 On Coun t Two, the defendant entered a be st interest plea of guilt under North Carolina v. Alford , 400 U.S . 25 (197 0). 2 OPINION The defendant, Robert Eugene Pfoff, Sr., was convicted on two count s of sexua l battery, a Class E f elony. 1 The trial court imposed concurrent Range I sentences of one year on each count , to be served in confinement, and denied any form of alternative sentence.

In this appeal of right, the defendant argues that the trial court should have grant

ed probation , placement i nto a Communit y Corrections progr

am, or some other form of alternative sentenc e. We affirm the judgment of the trial court.
The defendant, the legal guardian and custod ian of his sixteen-yearold granddaughter, w

as charged with sex

ual battery for incidents occurring April 13 and May 8 of 1995. The defendant and his w ife, Johnnie Pfoff, who had been married for forty-seven years, had been granted legal custody of the victim approximately six

months before the incidents occur red. The defendant admitted to the following facts contai ned in Count One of the indictment:

I walked into [the vi ctim's] bedroom. [She] was lying on her stomach with her cl othes on. [She] had on blue jeans and a black sweater. I asked [her] if she want ed me to rub her back and she said i t was [okay]. I'm not sure w[h]ere I started rubbing on top of her sweate r or under her sweater. I k

now I rubbed under her sw eater because I undi d her bra str ap. [She] sai d raise up my arm is pinned so [she] turned o ver. [Her] sweat

er was up over her breasts and her bra wasn't coveri ng her breast. My hand rubbed over [her ] breast. I reached down and kissed [her] breast. [She] said no.
The defendant denied any other sexual contact but entered an Alford plea on Count Two. A statement by the victim relativ

e to the second incident3 provides, in part, as follows:

The last time my grandfather .. . touched me was on the day I talked to JoAnne Park ins at school [on] May 8, 1995. Robert

came into my

bedroom and to uched my breast under the clothes and on t op of the clothes. [He] has touched me different times.

After ad judging th e defen dant guil ty as charge d on each of the two counts, the trial court denied probation. W hile conceding that incarceration would have a "devastating" effect upon the defendant, the trial court deter mined that the nature and circumstances of the cr ime were "grievous ," especially because of the position of trust between the defendant an d his granddaughter. The trial court rejected Community Corr ections and determined that judi cial diversion w as inappropriate due to the "terr ibly serious cri mes" involved.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the trial court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's4 potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the Act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are convicted of property- related, or5 drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are convicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demonstrate a pattern of committing violent offenses; and (7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Subsection (2) wou ld initially exclude t he defenda nt from receivin g a Community Corrections sentence because sexual batter y is a "crime[] agai nst the person" codified in "title 39, c hapter 13, parts 1-5." See Dwight Leat herwood v. State , No. 113 (Tenn. Crim. App., at Knoxville, Oct. 4, 1990). He is possibly eligible, however,under the special needs p rovision of the Act, w

hich allow

s some individuals who co mmit crimes against the per son to be placed on Community Corrections if they have special needs arising from mental health problems f or which treatment is available. Tenn. Code Ann. § 40-36-106(c).

The defendant made a persuasive case for j udicial diversion, probation, or Community Co rrections. Born Februar y 25, 1931, the defendant had been married almost a half century by the date of the sentencing h earing and had no prior cr iminal re cord. He co mpleted the eleve nth grade of schoo l in Clay Cou nty, Kentucky, received his GED in 1952, and attended coll ege for three years. H e had no history of alcohol or d rug abuse, he served i n the United States Air For ce, and he6 received an honorable dis charge. The defendant has been gainfull y employed throughout his adult life and, in 1961, went to work for Aid Budget Company. He has served in management in several finance companies and w as employed with the same business for over twenty-five years. The defendant suff ers from diabetes, an ulcer, sleep apnea, angina , migraine headaches, and other infirmities. He has had surgery on several occasions and suffers from depression, a cond ition for which he receives psychi atric treatment and medication. He testified at the sentencing hearing that he had thirteen p rescriptions for medicatio n. The victim submitted a letter acknowledgin g that the defendant had suffered emotionally, physically, and financially. She opposed a s entence of incarceration. Sev eral witnesses testi

fied to the defendant's good character. He was described as a mode l citizen.

Whil e the def endant m akes a com pelling ca se for an alternat ive sentence, there were tw o separate counts of sexual batt ery. The victim referr

ed to other instances of inappropriat e contact. As grandparent an d the legal custodian of the child, the defendant occupied a pos ition of trust and responsibi lity with regard to his sixteen-year-

old granddaughter; moreov er, the trial court deter

mined that the victim had had a "difficult chi ldhood" prior to being plac ed in defendant's custody. SeeTenn. Code Ann. § 40-35-114(4), ( 5).

The nature of the crime, under these ci rcumstances, is of particul ar concern. A term of confinement, in our view, is necessar

y to avoid depreciati ng the seriousness of the offenses. See Tenn. Code Ann. § 40-35-103(1)(B ). Thus, the term ordered is entirely appropriate.
Although not specifically raised as a separate issu e, the defendant has also complained that the trial court erred by denyi ng his request for judi cial7 diversion. See Tenn. Code Ann. § 40-35-313. This c ourt is limited to a determination of whether the tr ial court abused its discretion. Judicial div ersion necessarily preclude

s the entry of a judgment of gui lty and requires the imposition of immediate probation. State v. Vassar , 870 S.W.2d 543 (Tenn. Crim. App. 1993). Because we have concluded that the trial court acted within its discre tion in denying probation, it necessaril

y follows that there w

as no error in the denial o f judicial diversion.
Finally, the defendant committed a crime against a person an d is thus disqualified from considerati on for Community Correcti ons. Tenn. Code Ann. § 40- 36-106(a)(2). Because sex ual battery is defined as a v iolent offense, the Community Corrections program is not an alternative. See Tenn. Code Ann. § 40- 36-106(a)(3); State v. Staten , 787 S.W.2d 934 (Te nn. Crim. App. 1989). While depression may qualify the defendant under the "special needs" pr ovision of the Act, the medication and treatment req uired can be administered in confinement. In summary, because the trial judge saw and heard the w itnesses at the sentencing hearing and carefully c onsidered all of the controll ing factors, we must tr eat the judgment of the trial court as presumptively corr

ect.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge8 CONCUR:

_____________________________ James Curwood W itt, Jr., Judge

_____________________________ Norma McGee Ogle, Judg e