1 W e identify the minor victims of sex crime s by their initials.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Septem ber 24, 200 2 Session
STATE OF TENN ESSEE v. JERRY W. SOUDER
Appeal from the Criminal Court for Sullivan County No. S44,088 R. Jerry Beck, Judge

No. E2001-02658-CCA-R3-CD November 15, 2002

The Defendant, Jerry

W. Souder, pled nolo contendere to one count of attempted agg ravated sexual ba tt er y. As part of the plea agree ment, the Defendant was sentenced as a Range I I offender to six ye ars, with the manner

of service to be determined by the trial court. After a hearing, the trial cour t ordered the Defendant to serve his sentence in the Department

of Correction. The Defendant now appealsas of rig

ht, alleg ing that the trial court e rred b y deny

ing him an alternative sentence, specific ally

probatio n. We aff

irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined. Wayne Culbertson, Kingspor t, Tennessee, for the appellant, Jerry W. Souder.

Paul G. Summers , Attorne y General and Repor

ter; Eliza beth B. M arney , Assistan

t A ttorney Ge neral; Greeley Wells, District Attorney

Genera l; and JamesGoodwin, Assistant District A

ttorney Genera l, for the appellee, State of Tennessee.
OPINION

The Defendant’s conviction arose out of alleg ations by S.P., 1 a nine-yea r old female n eighbor, that the Defend ant had f

ondled he r breas ts. When initially contacted by the police, the Defendant admitted the allegations. At the plea and sentencing hearings, however, the Defendant contended that the allegations were false and tha t he was pleading guilty

to save the victi m from further embarrassment.

At the time of

sentenc ing, the

Defend ant was si xty-s even y ears old . He has a

single conviction of indecent exposure, which c onvicti on occurred in 1977 and involved a victim under2 The Fifth Amendment to the United States Constit ution provides that “[n]o perso n . . . shall be c omp elled in any crimina l case to be a w itness aga inst himse lf.” Similar ly, Arti cle I, S ecti on 9 of the Tenness ee Consti tut ion provi des that a crim inal de fenda nt “shall no t be co mpe lled to g ive evid ence against h imself.”

3 S.P .’s mother f

iled a victim im pac t stateme nt which pro vides , in releva nt part, that S.P . “has ha d to d eal with a lot of emotional iss ues” as a resul t of t he Defendant ’s conduct , th at she was “s ad and afrai d,” and t hat S. P.’s mother took her to c ouns eling. S.P.’ s mother a lso expre ssed concer n for ot her chi ldren in t

he neig hborhood, and expl ained that

(con tinued ...)
-2- thirteen years of

age. He has been marr

ied for over forty

years a nd has a high school education followed by military

service and steady

employment.

The criminal conduct at issue was alleged to have oc curred on or about May 1, 2000

. On May 9, 2000, the Defendant gave a state ment about the incident to the Depa rtment of Children’s Serv ices an d to the Kin gsport Po lice Dep artment. In bo th stateme nts the De

fendant admitted t

o having touched S.P.’s breasts. He also admitted to having sexually molested y oung girls many

years ago.
In conjunct

ion with the

Defend ant’s pr

esentence inves tigatio n , he was evaluated by Tennessee Sex Offen der Boa rd Appro ved Provid

ers Thoma s R. Herin gton, M. A., and J. Michael Adler, Ph.D., of

Counseling and Consultation Services, Inc. The evaluation was performed for the purpose o f assess ing the D efenda nt’s risk t o re-of fend, histreatme

nt needs, and his am

enability to sex offender treatment. This evaluation states in part that the Def endant’s “level of honesty is low,” that he “presents a [h]igh risk to re-offend,” and that he is “a poor candidate for Sex Offender Treatment.” In a letter summarizing the evaluation of the Defendant, the e xamining clinicia

ns state that the Defendant “is not consider ed a candidate

for treatment in a community ba se[d] program,” and that he “should be referred to the Specia l Needs Prison for Sex Offender Treatment.”

The Defend ant testif

ied at the sentenc ing hea

ring. Co ntrary

to his ear

lier st ateme nts, the Defendant testified that upon further reflection, he “realized there is no way in the world that [he] could have touched that girl’s breasts that high up on he r shoulder

. ” The Defendant continued, stating that “every

bit of this is a lie,” that he had been “charged wrongfully ,” and thought he “ought to be vindicated of this thing.” The Defendant a dmitted that he “had done a lot of bad

things” over twenty years a go, but averred that he had since “got[ten] [his] life straightened out,” and had “got[ten] out of that.” On cross-examination, the prosecutor asked the Defe ndant, “[s]o, you’re not into this kind of thing now?” to which the Defendant replied, “[t]hat’s right. I left that stuff yea

rs ag o.” Th e prosecutor

then asked, “[b]utyou have molested other children in the past?” The Defendant refused to answer this question and invoked his right not to incriminate himself under the Fifth Amendment to the United States Constitution. 2

The trial court denied the De fendant an alter native se ntence a nd order ed him to se

rve his sentence in the Department of Corre ction. Ta king the victim impa

ct statem ent into a ccount, 3 the3 (.. .cont inu ed) the fam ily felt it necessa ry to sell their house beca use they liv ed ne xt do or to th e D efend ant. -3- court found that “to grant probation would diminish the seriousness of the crime.” The court al so placed heavy re liance on the Defendant’s prior conviction. With respect to the Defendant’s refusal to answer the State’s question, the court “considere[d] that as notputting his best foot forward and allowing the Court to make a rational decision.” Finally , th e court noted the “very negative” evaluation as a basis for deny ing probation.

The Defendant contends on appeal that the trial court erred in sentencing him to confinement and that it improperly weig hed enhancement and mitigating fa ctors. When a convicte d defendant challen ges the manner of service of a sentenc e, this Court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considere d the senten cing principles and all relevant fac ts and circumstances.” State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ). The record in th is case supports the presumption of correctness.

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, re ceived at the trial and sentencing hea ring; (b) the presentence re port; (c) the principles of
se ntenc ing and arguments as to sentencing a lternatives; (d) the nature and characteristics of the criminal conduct involv ed; (e) an y statutory mitigating or enhancement fac tors; (f) any sta tement made by the defe ndant rega rding sen tencing; and (g) the potential or lac k of potential for rehabi litation or treatment. See Tenn. Cod e Ann. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W .2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 838, 844 (Ten n. Crim

. App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due cons iderati on and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely suppo rt ed by the record, then we may not modify the sentence

even if we would have preferred a different result. See Sta te v. Pike , 978 S.W.2d 90 4, 926-27 (Tenn. 1 998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

With respect to the Def

endant’s complain

ts about the trial court’s application of enhancement and mitigati ng fac tors, the State responds that, because the Defend ant is not challenging the l ength of his sentence, the trial court’s application of these factors is irrelevant. Howeve r, this Court has recent ly recognized that enhancement and mitiga ting factors are relevant to the tria l court’s de termination of the manner in which a felony sentence is to be served. See State v. Bol ling , 7 5 S.W. 3d 418 , 421 ( Tenn. Crim . App. 2001) . Accor dingl y, we will review the tr ial co urt’s findi ngs in this regard.4 We note that t he Defendant’s prior misdemeanor conviction w as not the ba sis f

or the Defendant’s being senten ced as a Range I I mult iple of fender; rathe r, he w as sent enced as a Range II mul tipl e offe nder as part of hi s plea agree men t. Acc ord ingly, the trial co urt was e ntitled to rely on the pri or conviction as one “in addit ion to those necessary to estab lish the ap pro priate range .” Te nn. Co de A nn. § 4 0-35 -114 (1).

5 The trial court referenced the Defendant’s milit ary service, hi s employment history, his schooling, his l imit ed prior re cord, hi s heal th proble ms and his age. -4- The trial court found as an enhancement factor that the Defendant has a previous history of criminal convictions in addition to thos e n ec es sa ry to establish the appropriate range. SeeTenn. Code Ann. § 40-35-114(1). Indeed, the trial court weighed this factor “hea v[ily]” in deny

in g an alternative sentence. The Defendant argues tha t the trial court placed too much weight on this factor because the Defendant’s single prior conviction occurred in 1977. 4

Provided the trial court complies with the purpos es and principles of the Criminal Sentencing Reform Act of 19 89 and its f

indings a re adeq uately supporte d by

the rec ord, the w eight a

fforde d to enhancement

and mitig ating f

actors isleft to the trial court’s discretion. See, e .g. , State v. Alder , 71 S.W.3d 299, 306 ( Tenn. Cri m. App. 200 1); Statev. Kelley , 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000). In thi s case, t

he Defe ndant hasfailed to

demonstrate that the trial court abused its discretion in the weight

it placed on the enh anceme

nt facto r for pr evious cr iminal con

victions. Although the prior convicti on is old, it a

rises fr om conduc t similar to

that for which the Defendant now stands convicted. Furthermore, the enhancement fa ctor applies n ot only

where there is a history

of previous criminal convictions, but also where there is a histor y of previouscriminal behavior

. See Tenn. Code Ann. § 40- 35-114(1 ). The De fendant ’s statem

ents inclu de confe ssions to mul tiple inci dents of moles ting c hildr en sometime in the past. Accordingly , we agree with the trial court that the Defendant’s history

of crimin al convictions and c riminal be

havior le nds suppor

t to the denial of an alterna tive sente nce. Thi s issue is w ithout mer it.

The Defendant

also contends that the trial court erred by applying e

nhancement factor (7), that he committed the offense to gratify his desire for pleasure or excitement. SeeTenn. Code Ann. § 40-35-114(7). However, the trial court did not rely on this fac tor in determining how the Defend ant should

serve hi s sentenc e. This iss ue is, the refore , without me

rit.

The Defendan t al so contends that the trial court did not consider as mitigating fac tors that the Defendant’s conduct neither caused nor threatened serious bo di ly i nj ur y, see id. § 40-35-113(1), and that he cooperated with the authorities. See id. § 40-35-113(13). He further contends that the trial court gave insufficient weig ht to the mitigating factors that the trial court did recog nize. 5 However, we ag ree with the trial court that the negative fa ctors adduced in conjunction with the D efendant’s sente ncing h earing f ar out weigh a ny and all miti gating f actors that m igh t otherwi s e support an alternative sentence. Accordingly, this issue is without merit.

W ith res pect to the Defe

ndant’s c halleng e to the tr

ial cour t’s deter mination th at he should serve hi s sentenc e in the De partmen t of Correction, we

first note that the Defendant is eligible for probation. See Tenn. Code Ann. § 40-35-303(a). Beca use he was sentenced as a Range I I offender,-5-

however, the Defendant is not entitled to a statutory presumption in favor of an alternative sentence. See id. § 40-35-102(6). To be entitled to a sente nce of pr obation, t he Defe ndant must

demonstr ate that probatio n would “s ubserve the ends o f ju stice and the best interest of both the public and the defendant.” State v. Dykes , 803 S.W.2d 250, 259 (T enn. C rim. A pp. 19 90) (q uoti ng Hooper v . State , 297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds , State v. Hooper , 29 S.W.3d 1 (Tenn. 2000). Further

more, in d

etermini ng whet

h er to grant p robation, the trial court must consider the nature and circumstances of the offense; the def endant’s criminal record; his or her backgr ound and social history; his or her prese nt condition, includ ing p hysical and mental c ondition; and the deterrent effect on the defendant

. See State v. Kendrick , 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999). The court should also consider the potential for rehabilitation or treatment of the defendant in determining the appropriate sentence. See Tenn. Code Ann. § 40-35-103(5).

The principle s of sente

ncing r eflect t hat the se ntence s hould

be no greater than that

deserved for the offense committed and should bethe leas tsevere measure necessar y to achieve

the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). However, probation is proper ly d enied und er the f ollowing circumst ances: (A) Confinement

is necessary

to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) Confineme

nt is nece ssary

to avoid depreciating the seriousness of the offense or confinement

is particularly suited to provide a n effective deterrence

to others lik

ely to commit similar offenses; or (C) Measures less restrictive than confinement have f requen t ly or rec ently been applied unsuccessfully

to the defendant[.]

Tenn. Code Ann. § 40-35-103(1). See State v. Hooper , 29 S.W.3d 1, 5 (Tenn. 2 000); State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991). The Defendant argues tha t the trial court erred in deny ing probation on the grounds that to do so wo ul d d ep re ci at e t he se ri ou sn es s o f t he of fe ns e, be ca us e i t w as no t “ es pe ci al ly violent , horri fying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated deg

ree,” and of such a

nature a s to outwei gh all ot her factors fav oring a

sentenc e other t

han conf inement. Statev. Hartley , 818 S .W.2d 37 0, 374-75 (Tenn. Crim. App. 1991). We agree that the cr iminal conduct at issue w as not so reprehens ible as to justify, in and of itself, the denial of pr obation. However, this was only

one factor relied upon by the trial court

in its deci sion. Othe

r evidence in the re cord i s more than sufficient to justify the de nial of probation, and this issue is, therefore, without me

rit.

The Defendant also contends that the trial court committed error w hen it reli ed on his assertion of his rights a

gainst s elf-inc

riminatio n in denying

probation. The trial court characterized the Defendant’s refusal to answer the prosecutor’s questionabout whether he had molested children in the past, as “not putting his best foot forward.”-6-

The United States Supreme Court has recently made clear that a criminal defendant reta ins his or her right to assert the Fifth Amendment privi lege agains t self -incr imin ation durin g sente ncing. See Mitchell v. United States , 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed. 2d 424 (1999). Moreover, the sentencing court may

draw no adverse inferen ce from the de fendant ’s silenc e in dete rmining facts about the crime which bear upon the severity of the

sentence. Id. , 526 U.S. at 316-17. However, the Courtspecifically declined to opine as to whether the defendant’s silence ma y bear upon his or her lack of remor se or acceptance of responsibility for the crime in setting the defendant’s sente nce. Id. , 526 U.S. at 330.

In the case

before us, the tr ia l co urt did not draw any a dverse inferences about the facts of the crime fromthe Defendant’s refusal to answer the State’s question. Rather, the trial court included the Defe

ndant’s s ilence in

its overall calculus for determining whether the Defendant was
a suitable candidate for probation. As set for th above, a criminal defendant’s rehabilitative potential is a factor to be consider ed in the g rant or d enial of probatio n. Candor

is a rele vant factor in assessing a defendant’s potential for rehabilitation, see State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994), and the lack of candor militates aga inst the g rant of probation. See, e .g. , State
v. Kendrick , 10 S.W.3d at 656. The burden of proving suitability f or probation rests with the defenda nt. Tenn. Code Ann. § 40-35-303(b). Accordingly , we conclude that the trial court did not infri nge upon the Defendant’s rights under the Fifth Amendment to the United States Constitution,
or Artic le I, Section 9 of the Tennessee Constitution, when it relied, in part, on the Defendant’s assertion of those r

ights at sentenc ing, in

order to deny probatio n. This issu e is, therefore, without merit.

The record

in this case ove

rwhelmin gly

supports t he trial c ourt’s de

nial of pr obation. I n spite of his confessions to authorities shortly after committing the criminal conduct at issue, the Defendant claimed comple te innocen ce at his sentencing hearing , blamed the victim, refused to accept any responsi bility for his a ctions, a nd was pr ofoundly unrepentant. While acknowledging past cr iminal conduct of a like nature, the Defendant steadfa stly maintained that such behavior w as behind him

. The evaluation performed on the Defendant indica ted him to be at high risk for re-offending and a poor candidate for sex offender trea tment. The evaluation further recommended ag ainst the Defendant’s re le as e i nt o t he co mm un it y. The trial judge rightly concluded that incarceration is the proper manner in which the Defendant should serve his agreed-upon sentence. The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE