IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 17, 2001 Session

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 pleaded guilty to sexual battery by an authority figure, a Class C felony. The

Defendant was 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 error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JERRY L. SMITH and

THOMAS T. WOODALL, 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 Attorney General; and Derek K. Smith, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On July 8, 1999, a Brentwood police officer discovered a van parked in a gravel lot near

Moore’s Lane. Inside the van, the officer found the fifty-eight year old Defendant, Victor D.

Neuenschwander, and the eighteen year old victim in a “compromising position.” An investigation

ensued and the Defendant ultimately pleaded guilty to sexual battery by an authority figure, a Class

C felony. The Defendant was 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 error, we affirm the judgment of

the trial court.
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At the plea hearing, the Defendant admitted to having sexual relations with the victim while

she was a resident at the Baptist Children’s Home where he worked as a “house parent.” The

Defendant testified that the relationship had been going on for approximately a year and a half when

they were discovered 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 denied penetration, he admitted to fondling 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 also admitted that he knew at the time of the abuse that he was 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 that she lived at the home for approximately four years because of an

earlier sexual abuse situation of which the Defendant was aware. The victim also testified that she

is now in counseling because of the abuse. She testified that she has difficulty trusting anyone and

that the Defendant’s actions “furthered [her] fear of men.” Although the victim does not want the

Defendant to spend extensive time 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 sentencing hearing. The report contained the following

conclusions and recommendations:

Test results revealed no evidence that Mr. Neuenschwander is a chronic or

habitual sex offender or pedophile. He is a somewhat naive individual with rigid

moral beliefs. He is able to distinguish right from wrong and does understand when

he engages in wrongdoing as occurred with the adolescent girl. The 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 public service is

recommended. Mr. Neuenschwander has already experienced a great deal of shame

and embarrassment. He appears motivated to comply fully with whatever sentence

is imposed and determined to never repeat his mistake. A program of group or

individual counseling for a period of 9-12 months is suggested. Mr.

Neuenschwander does not appear to present a serious risk of committing a future

sexual offense.
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ANALYSIS

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 offender 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 presumption 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 show such consideration, the

review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.

1992).

In making its sentencing determination, the trial court, at the conclusion of the sentencing

hearing, determines the range of sentence and then determines the specific sentence and the propriety

of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the

sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to

sentencing alternatives, (4) the nature and characteristics 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 about sentencing, and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(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 factors present.

Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start

at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and

then reduce the sentence in the range as appropriate for 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. Crim. App. 1992). However, the sentence must be adequately supported

by the record and comply with the purposes and principles of the 1989 Sentencing Reform 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 is to guarantee the preparation of a proper record for appellate

review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this

case indicates that the trial court adequately considered the enhancement and mitigating factors as

well as the underlying facts, our review is de novo with a presumption of correctness.
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Tennessee Code Annotated § 40-35-102(5) states that “[c]onvicted felons committing the 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 . . . .”

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If our review reflects that the trial court followed the statutory sentencing procedure, that the

court 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 findings of fact are

adequately supported by the record, then we may not modify the sentence "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 years or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be automatically

considered as a sentencing option for 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 grant or deny

probation, the trial court may consider the circumstances of the offense; the defendant’s criminal

record, background and social history; the defendant’s physical and mental health; the deterrent

effect on other criminal activity; and the likelihood that probation is in the best interests of both the

public and the defendant. 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 especially mitigated or standard offender convicted of a Class C,

D or E felony who does not fit within certain parameters1

 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 further note that even if a defendant is presumed to be a favorable candidate

for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory

presumption of an alternative sentence may be overcome if

(A) [c]onfinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) [c]onfinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrent 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 trial court stated that in making its sentencing determination, 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 and mitigating factors. Because the trial court did
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consider each of these factors, we must afford the trial court’s decision a presumption of correctness.

The trial court found that the Defendant had taken personal responsibility for his conduct and

that he exhibited genuine remorse for that conduct. As such, the trial court applied mitigating factor

number thirteen in this case. See id. § 40-35-113(13). Finding no enhancement factors, the trial

court sentenced the Defendant as an especially mitigated offender under Tennessee Code Annotated

§ 40-35-109.

In denying alternative sentencing, the trial court stated that incarceration was warranted in

this case to avoid depreciating the seriousness of the offense. The trial court found that the

Defendant had a supervisory role over children with troubled pasts and took advantage of that

position by engaging in sexual activity with the victim. The trial court determined that the

Defendant’s conduct in this case was “reprehensible,” “shocking,” and “needs serious punishment.”

We agree. The Defendant intentionally abused a position of trust. This Court notes that such

conduct was especially reprehensible because the Defendant knew that the victim had been sexually

abused in the past. In addition, the Defendant’s conduct continued for almost two years. We agree

with the trial court’s conclusion that incarceration was necessary to avoid depreciating the

seriousness of the offense.

The trial court also relied on the deterrent effect of sentencing the Defendant to confinement,

stating that in child sex abuse cases, the deterrent factor is self-evident by the nature of the offense.

However, the Tennessee Supreme Court recently overruled all prior cases which had found certain

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 deterrence before a defendant,

who is otherwise eligible for probation or other alternative sentence, 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 any reasonable person looking at the entire record could

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 need for deterrence is present and whether

incarceration is “particularly suited” to achieve that goal. These factors include: “(1) [w]hether other

incidents of the charged offense are increasingly present in the community, jurisdiction, or in the

state as a whole, (2) [w]hether the defendant’s crime was the result of intentional, knowing or

reckless conduct or was otherwise motivated by a desire to profit or gain from the criminal behavior,

(3) [w]hether the defendant’s crime and conviction have received substantial publicity beyond that

normally expected in the typical case, (4) [w]hether the defendant was a member of a criminal

enterprise, or substantially encouraged or assisted others in achieving a criminal objective, and (5)

[w]hether the defendant has previously engaged in criminal conduct of the same type as the offense

in question, irrespective of whether such conduct resulted in previous arrests or convictions.” Id.

at 9-12. Hooper also holds that additional factors may be considered by the sentencing court,

provided that (1) the sentencing court states these additional factors on the record with specificity,

and (2) the presence of these additional factors is supported by at least some proof.” Id. at 12.
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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 court correctly denied

alternative sentencing in this case to avoid depreciating the seriousness of the offense. 

Finally, the Defendant argues that the trial court erred by failing to grant him probation based

on his potential for rehabilitation. The psychological report noted that there is no evidence that the

Defendant is a chronic or habitual sex offender or pedophile and that the Defendant is genuinely

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 found that incarceration was appropriate. We find no error by the trial court.

Accordingly, the judgment of the trial court is AFFIRMED.

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ROBERT W. WEDEMEYER, JUDGE