### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 17, 2001 S ession

STATE OF TENNESSEE v. VICTOR D. NEUENSCHWANDER
Direct Appeal from the Circuit Court for Williamson County No. II-999-330 Timothy L. Easter, Judge

No. M2000-01334-CCA-R3-CD - Filed May 8, 2001

The Defendant plea

ded guilty t

o sexual battery

by an author

ity figure , a Class C f

elo ny. The Defendant

was sentenced as an especially mitigated offende r to two years and

seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying him alternativ e sentencin g. Finding no erro r, we affirm the

judgment of the tr

ial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W E DEMEYE R , J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS T. W OODALL , JJ., joined.
Gene Honea, Assistant Public Defender, for the appellant, Victor D. Neuenschwander.

Paul G. Summers , Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Ronald L. Davis, District Attorne y General ; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION

FACTUAL BACKGROUND

On July 8, 1999, a Brentwood police officer discov ered a van park ed in a gravel lot near Moore’s Lane. In

side the van, the o

fficer found the

fifty-eig ht year old D

efendant,Victo r D. Neuenschwander, and the eighteen year old victim in a “compromising position.” An investigation ensuedand the Defendant ultimately pleaded guilty to sexual battery by

an authority

figure, a Class C felony. The Defendant w as sentenced as

an especially

mitigated offender to two years and seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in

denying him alternative sentencing. Finding no er ror, we affirm the

judgment of the trial court.-2-

At the plea hearing, the Defendant admitted to having sexual re

lations with

the victim while she was a resident at the Baptist Children’s Ho m e where he worked as a “house parent.” The Defendant

testified that the

relationship had b

een going on f

or approximately

a year an d a half when they were discovere

d in the van. The sexual abuse began when the victim was sixteen or seventeen years old and continued until just after her eighteenth birthday

. Although the Defendant de nied penetration

, he admitted to fon

dling or touching

the victim ten to fifteen times. The Defendant testified that he only touched the victim under her clothes once or twice. The Defendant admitted that there was some oral sexual contact on two occasions. The Defendant al so admitt ed that he kn ew at the ti me of the abu se that he wa s wrong.

The Defendant testified that he felt ashamed of his actions and that nothing like that had ever happened before. The Defendant apologized for the abuse. He stated that he had acted stupidly and had no excuse. However, the Defendant also testified that the victim should take responsibility for her role in the relationship.

The victim testified tha

t she li ved at the home for approximately four year s because of an earlier sexual abuse situation of which the Defen

dant was aware . The victim also testified that she is now in counseling be

cause of the abuse. She testified that she has difficulty trusting any one and that the Defendant’s actions “furthered [her] fear of men.” Although the victim does not want the Defendant

to spend extensive ti

me in jail because of his health problems, she does not ever want to see him again.

In addition to

the testimony

of the Defendant and the victim, a psychological evaluation of the Defendant was also submitted at the s entencing he aring. The report contained the following conclusions and r

ecommendations:

Test results revealed no ev ide nce that Mr. Neuenschwander is a chronic or habitual sex offen d er or pedophile. He is a somewhat na

ive individual with r

igid moral beliefs. He is

able to distinguish right from wrong and does understand when he engages in wrongdoing as occurred with the adolesce nt girl. T he remorse he described appears to

be genuine. He insists that he learned a painful lesson and

will be quite vigilant in the future to prevent even the appearance of any sort of impropriety. Current Global Assessment of Functioning is 57.

A suspended sentence with supervised probation and p ublic service is recommended. Mr. Neuenschwander has already experience d a great deal o

f shame and embarrassment. He appears motiv ated to comply

fully with

whatever sentence is im posed and determined to never repeat his mistake. A program of gro up o r individu al couns eling for a period of 9-12 months is suggested. Mr. Neue nschwander

does not appear to present a serious risk of committing a futur e sexual offense.-3- ANALYS IS

The Defendant argues that the trial court erred in denying him some kind of alternative sentencing. The trial court sentenced the Defendant as an especially

mitigated offen

der to two years and seven months incarceration in the Tennessee Department of Correction (TDOC).

When a criminal defendant challenges the length,range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a p r esumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40 -35-401(d). This presumption, however, “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). In the event that the record fails to s how such consideration, the review of t he s ent ence is p urel y de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing det ermination , the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and the

n determines the s

pecific sentenc

e and the proprie

ty of sentencing alternatives by considering (1) the evidence, if any , received at the trial and the sentencing hearing, (2) the presentence report, (3) the principle

s of sentencing

and arguments a

s to sentencing alternatives, (4) the nature and characteris tics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statements

the defendant wishes to make in the defendant's behalf a bout sentencing, and (7) the potential for rehabilitation or tre atment. Tenn. Code Ann. §§ 4 0-35-210(a), (

b), -103(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sentence to be imposed by the trial court for a Class B , C, D or E felony is the minimum within the applicable range unless there are enhancement or

mitigating fac

tors present. Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating fa ctors, the court must start at the presumptive sentence, enhance the sentence as appropriate for the enhanc ement factors, and then reduce the s entence in t he range as appropriate f or the mitigating

factors. Id. § 40-35-210(e). The weight to be given each factor is left to the discretion of the trial judge. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Cri m. App. 1992). However, the sentence must be adequately supported by the rec ord an d comply with t he purposes and pr

inciples of the 198

9 Sentencing Ref

orm Act. State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific

findings of fact on the record supporting the sentence. Tenn. Code Ann. § 40-35-209(c ). The record should also include any enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of recording the court’s reasoning i s to gu arant ee the prepara tion of a proper r

ecord for appe

llate review. Statev. Ervin , 939 S.W.2d 581, 584 (Tenn. Crim. Ap p. 1996). Becau

se the record in t

his

case indicates that

the trial court adequately considered the enhancement and mitigating factors as well as the under

lying fac ts, our review is de novo with a presumption o f correctness.1 Tennessee Code Annotated § 40-35-102(5) stat es that “[ c]onvicted felons committing t he most severe offenses, possessing criminal

histories evincing a

clear disregard for the laws and m orals of society, and evincing failure of past efforts at rehab ilitation shall be give n first priority regar ding sentenc ing involving inc arceration . . . .”
-4- If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a l awful s entence after having given due consideration and proper weig ht to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the re cord, then we may not modify the sentenc e "even if we would have preferred a different result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

With certain exceptions, a defendant is eligible for probation if the sentence actually imposed is eight yea

rs or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatic

ally considered

as a sentencing optionfor eligible defendants, the defendant is not automatically entitled to probation as a matter of law.’” State v. Davis , 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn. Code Ann. § 40-35-303(b) sentencing comm’n cmts). In determining whether to g rant or deny probation, the trial court may consider the circumstances of the offense; the de fendant’s criminal record, background and social history; the defendant’s phy sical an d ment al health; the deterrent effect on o the r cri min al a cti vit y; and the likelihood t hat probation is in th

e best interests of

boththe public and the defen dant. State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The Defendant

has the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b); Ashby , 823 S.W.2d at 169. An e specially mi

tigated or stand

ard offender c

onvicted of a Clas s C, D or E felony who does not fit within certain parameters 1 is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. Tenn. Code Ann. § 40- 35-102(6).
However, we fu

rther note that even if a def

endant is presume

d to be a favorab

le candidate for alternative sentencing under Tenn es see Code Annotated § 40-35-102(6), the statutory presumption of an a

lternative sente

nce may be

overcome if (A) [c]onfinement i

s necessary

to protect society by restraining a defendant who has a long his

tory of cri minal conduct; (B) [c]onfinement is ne cessar y to avoid depreciating the seriousness of the offense or con finement is particularly suited to provide a

n effective det

errent to others likely to commit similar offenses; or (C) [m]easures less

restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant . . . . Id. § 40-35-103(1)(A)-(C).

In this case, the tria

l court stated that

in making its sentencing de termination, it had considered

the principles and considerations of the sentencing act, as well as the testimony from the sentencing hearing, the presentence report, arguments of counsel, the nature and circumstances of the crime, and the applicable enhancement an d mitigat ing factors. B ecause the tria l court did-5-

consider each of these fa

ctors, we must afford the trial court’s decision a presum ption of correct

ness.

The trial court

found that

the Defendant had taken personal responsibility for his conduct and that he exhibited genu

ine remorse for

that conduct. As such, the trial court applied mitigating factor

nu mberthirteen in this case. See id. § 40-35-113(13). Finding no enhancement factors, the trial court sentenced the Defendant as an especially mitigate d offender under Tennessee Code Annotated § 40-35-109.

In denying

alternative sentencing, the trial court stated that incar

ceration was wa

rranted in this case to avoid dep

reciating the s

eriousness of the

offense. The tr

ial c ourt found that the Defendant

had a supervisory role over children with trou bl ed pasts and took advantage of that position by engag

ing in sexual activ

ity with the vi

ctim. The trial cou

rt determi

ned that the Defendant’s conduct in this cas e was “reprehensible,” “shocking,” and “needs serious punishment.” We agree . The De fendant intentionally abused a position of trust. This Court notes that such conduct was especially reprehensible because the Defendant knew that

the victim had bee

n sexually abusedin the past. In addition, th e Defendant’s c

onduct continued f

or almost two years. We agree withthe trial court’s conclusion that incarceration w as nec essary to avoid depreciating the seriousness of the offense.

The trial court also relied onthe deterrent effect of sentencing th

e Defendant to c

onfinement, stating that in child sex abuse cases, the deterrent factor is self-evident by the nature of the offense. However, the TennesseeSupreme Court rec ently overr

uled all prior cases whic

h had found certa

in crimes to be “deterrable per se.” State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). In doing so, the court held that “the record must contain some proof of the need for deterr

ence before a

defendant, who is otherwise elig

ible for probatio

n or other alt

ernative sen tence, may be incarcerated.” Id. Hooper holds that a trial court’s decision to incarcerate a defendant based on a need for deterrence will be presumed correct so long as an y reasonable per

son looking at the

entire record c

ould conclude that (1) a need to deter similar crimes is present in the particular community, jurisdiction,

or in the state as a whole, and (2) incarceration of the defendant may rationally serve as a deterrent to others similarly situated and likely to commit similar crimes. Id. Hooper further provides factors to be considered by trial courts in deciding whether a nee d for deterrence is pre sent and whether incarceration

is “particularly

suited” to achieve that goal. These factors include: “(1) [w]hether other incidentsof the charged offense are increasingly present in the community, jurisdiction, or in the state as a whole, (2) [w]h

ether the defen

dant’s crime was the result of intentional, knowing or reckless conduct or was otherwise

motivated by

a desire to profi

tor gain from the criminal behavior, (3) [w]hether the defendant’s crime and conviction have received substantial publicity beyond that normally expected in the ty

pical case, (4)

[w]hether th

e defe ndant was a member of a criminal enterprise, or substantially encouraged or assisted others in achieving a criminal objective, and (5) [w]hetherthe defendant has previously engaged in criminal conduct of the same ty

pe as the offense in que stion, irrespective of whether such conduct resulted in previous arrests or convictions.” Id

. at 9-12. H ooper

also holds that additional factors may be considered by the sentencing cour

t , provided tha t (1 ) th e sen ten cin g cou rt s tat es t hes e add iti ona l fa cto rs o n th e rec ord wit h sp eci fic ity, and (2) the presence of these additional factors is supported by a t least some proof.” Id. at 12.-6-

There is insufficient evidence in the record to show that incarceration will serve as deterrence in this case. However, as stated previously, we conclude that the trial cour t correctly denied alternative sentencing in this case to avoid depreciating the seriousness of the offense.

Fin all y, the Defendant a

rgues that the tr

ial court erred

by failing to grant him probationbased

on his potential for r

ehabilitation. The

psycholog

ical report note

d that there is

no evidence that the D efendant

is a chronic or habitual sex offender or pedophile and that the Defendan t is genuinel y remorseful. The report

also “recommended” a “suspended sentence with supervised probation and public service.” The

trial court considered the psychological report along with the other evidence in this case, and f

ound that incarce

ration was appro

priate. We find no e

rror by the

trial court.
Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE