### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs Octobe r 29, 2002 STAT E OF T ENNES SEE v. RIC KY LEE INS CORE Direct Appeal from the Criminal Court for Sullivan County

No. S45,095 R. Jerry Beck, Judge

No. E2002-01005-CCA-R3-CD December 18, 2002 The defendant, Ricky

Lee I nscore, pled nolo contendere to aggravated burglary an d s ex ua l b at te ry. The Sullivan County trial court sentenced the defendant to three years for aggravate d burglary and two years f

or sexual ba tteryas a Range I standard offender to be served conc urrently in the Department

of Correction. In this appeal of r ight, the defendant presents the issue of whe ther t he trial court erred in deny

ing him probation or alternative sentencing. Af ter reviewing the record, w e affirm t he judg ments of th

e trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed J OE G. R ILEY , J., delive

red the o pinion of t

he court , in which G ARY R. W ADE , P.J., and R OBER T W. W EDEMEYER , J., joined. David W. Tipton, Bristol, Tennessee, for the appellant, Ricky Lee I nscore. Paul G. Summers, Attorney Genera l and Repo

rter; Ka thy D. Asling er, Assis tant Attor ney Genera l; H. Greeley

Wells, Jr., District Attorn ey Gene ral; and Joseph Eugene Perrin, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.
OPINION During the defendant’s plea hearing , th e parties stipulated the state’s evidence to be the follo wing: On February the 16th, of 2001, . . . after three o’clock in the morni ng, the defe

ndant . . . went to the

home of Jami e and Ro bert Hilliard . . . in Bristol, Tennessee. The defen dant ent ered into the homewithout the permission of the Hilliards and went into the bedroom where Jam

ie Hilliard was asleep in bed. The defendant sat on the bed and began

to rub Ms. Hilliard on her buttocks, as well as her chest ar ea. Ms. H

illiard wa s awake

ned by th e defen dant’s presence. At

first, she thought i twas her husband, then realizing that-2- her husbandwas still at work . . . immediately sat up and recognized the defendant, who she v aguely knew as . . . a coworker of her husband.

. . . [T ]he defe

ndant had visited at the home o f the cou

ple on different occasions when her husband wa s there. She . . . told the defendant to quit touc hin g her, to leave her home. The defendant

refused to leave her

home. She got up; she put on some paja

ma pants a

nd went ov er to her

computer that she had left on when she had fallen asleep. The compu ter was still logg ed onto the internet into the America Online’s Tri-City chat room and she began to ty

pe into the computer several requests for help. The defendant briefly

left the ro om, went and got a beer out of the refrigerator, as we

ll as a drink for

the victim, returned back to the computer

where th e victim, M

rs. Hilliard, was sitting and at that time continued to rub her in the chest area, as well as in the va ginal area. Th e defenda

nt kept as king the

victim to ha

ve sex with h

im , kept telling the victim how much she would enj oy h avin g sex with him. Mrs. Hilliard continuously told the victim no . . . and requested the defendant to leave her home, which he r efused to do. The defenda

nt . . . grabbed the victim and forced her onto the bed where he proceeded to continue to fondle he r in her vaginal area, as well as in

her chest area. She

continued to scream at the defendant to leave he

r home an d told him t

hat what he was doing she . . . considered

to be rap e. The de

fendant st at ed that he was not raping her because he had not had intercourse with her. The defendant then

. . . l eft the home and went to his own home, which was approxima

tely four hous es up . . . f

rom the victim’s. While this was going on , several people who were in the America Online’s chat room, saw the victim’s cri e s for help, contact ed law enforcement and met law enforc ement in the nearby area, . . . where

they procee ded with

law enfo rcemen t to the Hill

iards’ home. Lawenforcement, upon arriving at the Hilliards’ home, found Jamie Hilliard t

o be extremely upset. She told the officers what had occurred. The offi cers, based on the information they rec eived, went to the defendant’s home, found the defendant. Thedefendant agreed to go to th

e police departm ent for purposes o f giving a stateme

nt.-3- The defendant went to the police department and after being advised of

his constit

utional ri ghts per the Miranda decision and waiving those rig

hts stated that he a

nd his friend had been out drinking the evening before.

. . . [T]hen had p roceed ed on to his home. . . . As they passed the

Hilliard home, he saw a light at the house.

. . . He sai d he walk

ed back to the hous e from his own home after he had parked his car, knocked on the door a nd no bo dy answered the door

. He . . . admitted that he opened the door without permission, went into the bedroom where he found his friend’s wife in be d. He askedher , are you asleep? She said, no. He proceeded to tell the police that she went to the computer and began

typ ing some

thing int o the computer . He is not able to read very well, so he never

picked up that th ey wer

e cries for help coming from the victim. He a dmitted that he began rubbing her

back while she was at the computer, that he began kissing her and that he began rubbing her in the breast area,

. . . according to the defendant, she ne ver did resist doing this. H e continued rubbin g her for awhile. He did admit that the victim had said several times that you’ ll have to rape me before I co me t o the bed or what you have

done is considered

rape, but he thought

that the victi m . . . was ki ddin g. He admitted that

. . . he got worried about the situation when

. . . the victim said for the second time that y ou have raped me. And at that poi nt he we nt ahead and left the house

and proc eeded to

his own home where he was arrested by police. The defendant was charge d with ag gravated burglary and rape. Pursuant to a plea agree ment, he entered a plea

of nolo contendere to aggravated burglary and sexual battery. The tr ial court sentenced the defendant

as a Range I

standard offender to three y ears for aggr

avated burglary and two years f

or sexual battery to be se

rved concurrently . The trial court also denied the defendant alternative sentencing and order ed his sentence to be served in the Department of Corr ection. During the senten cing he aring, the trial court ide

ntified both favor

able and unfavor able factors in determining the manner in which the def endant must serve his sentence. The trial court first noted Counseling and Consultation Services, Inc., examined the def endant and found he poses a moderate risk to reoffend. I n addition, the t rial co urt considered the defendant’s prior criminal record and history of alcohol/drug abuse. The trial court found the defendant’s employment history to be a positive factor. The trial court weig hed both the positive and negative factors and denied the defend ant al ternat ive se ntenc ing. We conclude the trial cour t co nsidered the sentencing principles and all re levant facts and circumstances in making its decision. Theref

ore, our standar d of revi ew is de novo with a presumpt ion of cor rectne ss.-4- STANDARD

OF REVIEW The defendant contends that the trial court erred in de nying him alterna

tive sentencing and ordering him to serve his sentence in the Depa rtment of Correction. We disagree. A defe ndant who challenges his or her sentence has the burden of proving the senten c e imposed by t

he trial c ourt is impr

oper. Te nn. Code A

nn. § 40-3 5-401, Se

ntenc ing Commission Comments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). It is th is court’ s duty

to conduc t a de novo review of the record with a presumption the trial cour t’s determination s a re correct when a defendant appeals the length, rang e, or manner of service of his or her se ntence. Tenn. Code Ann. § 40-35-40 1(d). The presum ption of c orrect

ness is conditionedupon the affirmative showing in the record tha t the tri al court considered the sentencing princ iples and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999). Under the Criminal Sentencing Reform Act of 198 9, trial judgesare enc ourag ed to use alternatives to incarceration. An especially mitiga

ted or standard

offende r convic ted of a Cl ass C, D or E felony is pre sumed to be a favorable candidate for a lternative sentencing options in t h e absence of evidence to the contrar y. Tenn. Code Ann. § 40-35- 102(6). Under the 1989 Sentencing Act, sentences which involve confinement

are to be based on the following considerations contained in Tennessee Code Annota ted section 40-35-103(1): (A) [c]o nfine ment i s neces sary to pr otect socie ty by restrai ning a defenda nt who has a long h

istory of crimin al conduct; (B) [c]onfinement is necessary to avoid de

precia ting the seriousness of the offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or (C) [ m]easu res less restrictive than confinement have fre quently or recent ly b een app lied unsuc cessfully to the defe ndant. Statev. Grigsby , 957 S.W.2d 54 1, 545 (Te nn. Crim. A

pp. 1997) ; State v. Millsaps , 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995). A court’s determi

nation of whether the defe ndant is e ntitled to a

lternati ve sente

ncing r equir e s a different inquiry

from whether the defend ant is entitled to full probation. Stat e v. Boggs , 932 S. W.2d 467, 4 77 (Tenn. Crim. App. 1996). The state has the burden of overc oming the statutory presumption in favor of alternative sentencing where the

defendant is entitled to such a presumption. See Tenn. Code Ann. § 40-35-102(6); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). However, the defendant has the burden of establishing suitability for total probation, evenif the defenda nt is entitle d to the statutory presumption of alterna tive sentencing. Tenn. Code Ann. § 40-35-3 03(b) ; State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995).-5- ANALYSIS In the case at bar, the first circumstance, “ [c]onfinement is necessary to prote ct society by restraining a defendant who has a long history of criminal conduct,” applies. See Tenn. Code Ann. § 40-35-103(1)(A). The

defendant has a history

of criminal misconduct, which includes four prior misdemeanor

convicti ons. I

n addition , th e eval uation report prepared by Counseling and Consultation Services, Inc., states the de fendant poses a moder ate risk to reoffend. The report further states tha t the def endant is consider

ed a poor candida te for tr eatment. In addition, confinement is necessary in order to avo id depreciating the seriousness of the offense s. Se e Tenn. Cod e Ann. § 40 -35-103( 1)(B). The def endant e ntered t he victim’ s home without her permission and sexually touched her despite her objections, thus committing aggr avated bu rg la ry, a Class C felony, and sexual battery , a Class E felony. See Tenn. Code Ann. §§ 3 9-13- 505; -14-403. The facts and circumstances surr ounding the commi ssion of these offenses are particu larly

disturbing. It further a

ppears from the evaluat

ion repo rt that the defendant had “no empathy for the victim” and conside red himse lf the vic tim of fal se accu sations. Fi na ll y, measures less restrictivethan confinement have been unsuccessfully a

pplied to the defenda nt. See Tenn. Code Ann. § 40-35-103(1)(C). For each of the defendant’s prior

misdemeanor convicti ons, he was ordered to serve minimum jail time with the remainder of his sentences served on probation. However, despite these less restrictive measur es, the defendant

has co ntinued to commit var

ious criminal offe

nses. Therefore, we conclude the trial court properly denied alternative sentencing. We affirm the judgmen ts of the tr

ial cour t.

____________________________________ JOE G. RILEY, JUDGE