# FILED January 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9710-CR-00410 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, HOWARD EPPS, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
PAUL A SKAHAN JOHN KNOX WALKUP 140 North Third St. Attorney General & Repor ter Memphis, TN 38103 DOUGLAS D. H IMES Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JAMES A. WA

X, JR. and GLEN BAITY Asst. District Attor

ney General 201 Poplar Ave., Third Fl. Memphis, TN 38103

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge1 The s entenc ing court d id leave op en the po ssibility that the de fendan t could be senten ced to a secured mental faci lit y. However, the transcript of the subsequent heari ng that was hel d on October 15, 1997, wi th regard t o this i ssue was not incl uded in the r ecord on appeal. The defendant conten ds that th is tran scrip t is irre levan t bec aus e not hing h app ene d at th at he aring exc ept th at the cour t’s judgment was executed and t he question of a secured mental faci lit y that would accept t he defendant was not addressed because t he defendant was rel eased on an appeal bond.

2 Although t he record is n ot enti rely cl ear as to exact ly how many t imes the defendant molest ed the vict im, it i s clear tha t the molestat ion occurred ov er a five year peri od and inclu ded several i ncidents. 3 The record on appeal included a letter writt en by the def

endant’s gr

anddaughter i n which she described at

least one i ncident where the defendant

touched her breasts and vagin al area but stopped whe n ask ed. T he de fend ant’s gran dda ugh ter als o wro te tha t the d efen dan t had neve r thre aten ed he r in 2 

### O P I N I O N

On February 20, 1996, the defendant was indicted for rape of child in violation of T.C.A. § 39-13-522. On September 16,1 997, the defendant pled guilty to rape pursuant to a plea bargain agreement and received an eight year sentence. After a sentencing hearing, the defendant was sentenced as a Rang e I offender to eight years to be served in the Tenn esse e Department of Correction. 1 On appeal, the defendant contends that the trial court err ed in denying him full pr obation rather than incarcer ation.

After a review of the recor d and the applicable law, w e affirm the defendant’s sentence.

The defendant was indicted for acts of molestation that occurred from 1990 through 1995. The proof showed that the defendant se xually molested his nex t doo r neighbor’s daughter on at least sev eral occasions. 2 The defendant was best friends with his neighbor and they often dran k b eer at each other’s house on w eek nights. The defendant’s wife would often b abysit fo r the neigh bors while they w ere at work. When the victim was about sev en years old, the defendant began to touch her vaginal area wi

th his mouth and hands. The defendant then told the victim if she told anyone he would kill her. 3 This abuse continued until th e victim re ached twelve years of age. It was at thisany w ay. 3

point that her parents began noticing behavioral probl ems and ended up sending her to Lakeside Hospital. It w as here that the victim final ly “told” on the defendant.

After the police were notified and the defendant was questioned with regard to the allegations, the defendant began to suffer from depression. The defendant was put into the hospital where h e attempte d suicide. It was at this point that he receiv ed electric shock therapy

as a treatment for his depression. This therapy apparently caused a temporary loss of memory. In addition, the defendant’s curr ent doctor

testified that he believesthe defendant is now suffering from Alzheimer’s disease which has resulted in the rap id and severe deterioration of the defendant ’s memory. The defendant also suffers from seve re hyperte nsive cardiovascular dis ease, myocardial ischemi a, angina, high blood pressure, and tremors.

The defendant now contends that the trial court erred in denying him full probation based on the nature of the offe nse when the offense was not of an excessi ve or exaggerate d degree a nd was not outweighe d by o ther factors and where the defendant has no memory of the offense and there is n o da nger of hi s committing another offense.

When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing th at the sentence is improper is upon the appealing party. T.C.A. § 40-3 5 - 401(d) Sentencing CommissionComments. This presumption, howeve r, “is conditioned upon the affirmative showing in the record that the trial court considered thesentencing pri nciples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166,4

169 (Tenn. 1991).

The defendant bears the burden of showing that the sentence was improper. Id. In determining whether the defendant has met this burden, this Court must consider (a) the eviden ce adduce d at trial and the sentencing hearing; (b) the presentence report; (c) the prin ciples of sent encing; (d) the arguments of counsel;(e) the nature and characteristics of the of fen se; and (f) the defendant’s potential or lack of potential for rehabilitation or treatment. T.C.A. § 40 -35-103(5), 40-35-210(b).

The defendant insists that he should have received full pr obation. We note that the defendant has the burden of establishing suitability

for full probation. T.C.A. § 40 -35-303(b). “To meet the burden of establishing suitability for full pr

obati on, th e defendant must demonstrate that probation will ‘subserve the ends of justice and the best interest of both the public and the defendant.’” State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995 ) (quoting State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). The defendant has not met this bur den.

The defendant argues that the only basis upon which the trial court reli ed in denying probation w

as the nature and circumstance of the offense which, in this cas e, was not enough to justify a denial of probation. The tri al judg e actually stated that “because of the enormity of this situation that it woul d depreciate theseriousness of this o ffense if the Court granted probati on in this matter at this ti me. I don’t think the defendant would benefit by the Cour t granting it either. Society wouldn’t .”

In order for a trial court to “deny an altern ative sentence based on the seriousness of the offense , ‘the circumstances of the offense as c ommitted must be4 The defendant not o nly per formed oral sex on an ei ght year o ld gir l, he t hen threatenedher with deat h if she told anyone.

5 These factors are set out by t he defendant as: lack of a pri or criminalhistory , excell ent social history , good work hist ory, t he bleakness of hi s present phy sical and mental

conditi on, physi cal and mental problems, t hat there would be no deterren t effect upon the defendant from incarcerat ion because he is no lo nger a threat to anyone, the defendant ’s incar ceration would not have a gener al deterr

ent effect, an d the def endan t’s lack of m emo ry regarding the offen se. The se facto rs are no t enough to outweigh t he nature of t his offense. 5 especiallyviolent, horrifyi ng, shocking, reprehens ible, offensive, or otherw ise of an excessive or

exaggerated degree,’ and the nature of the offense must outweigh all factors favoring a sent ence other than confinement.” Bingham , 910 S.W.2d at 454 (quoting State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). It is the opinion of this Court that the young ag e of the victim, the fact that this abuse occurred over

a span of five years, the vi olation of a position of privat e trust and the circumstances surrounding the incident 4 are enough to support a finding th at the defenda nt’s conduct was sh ocking, reprehen sible and o ffensive to such a degree that the nature of the offense outweighs all factors favoring a sentence other than co nf inement. 5 See State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Therefore, the record clearly sup ports the trial court’s finding that confinement was nec essary in order to av

oid dep reciatin g the seriousness of the offense.

The trial court’s denial of alternativ e sentencing is also suppor ted by the defendant’s long history of criminal conduct with regard to the victim (and evidently his granddaughter), indicating a lack of potenti al for rehabilitation. This indication is further supported by the allegations of abuse made by the def endant’s granddaughter.

We note that the defendant’s brief goes into detailed arg ument regarding the defendant’s lack of memory regarding the offense. The defendant argues that “[o]ne cannot be punished for something one does no t remember.” The defendant cites no authority for this proposition and this Court is unaware of any authority supporting this6

proposition. Th is contention is wholl y without merit. To al low a defendant to evade punishmentbased on the as sertion that he or she does not remember committing the crimewould be an injustice, not only to the victim but to society as w ell. A defendant who does not r emember past crimes is likely to “forget” about future crimes as well if he is able to avoid punishment the fir st time.

In light of the foregoing, i t i s clear the defendant has not established his suitability

for full probation. As such, it was not error for the trial court t o sentence the defendant to serve the eight y ear sentence in incarceration.
Accordingly, the defendant’ s sentence is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ L. T. LAFFERTY, Special Judge