### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs F eb ru ar y 24, 200 4

STA TE OF TEN NES SEE v. JAM ES D ALE WAL KER

Appeal f romthe Circ uit Court for Blou nt County Nos. C-12949 and C-12950 D. K elly Thomas, Jr ., Judge

No. E2003-01372-CC A-R3- CD Marc h 25, 2004

The de fenda nt, J ames Da le Walker, pled g uiltyin th e Bl o u n t C o unty Circuit Court to agg ravated

s e x u a l e x p l o i t a t i o n o f

a m i n o r , a C l a s s C f e l o n y, a n d s e x u a l e x p l o i t a t i o n o f a m i n o r , a C l a s s E f e l o n y. Pur su a nt t o th e ple a

a g re e me nt, the de fe nd a nt re c e ive d co nc ur re nt se nte nc e s of six a ndtw o y e ars , respe ctively , as a Rang e I , standard of fende r. The ma n n er o f s er v i ce of the sentenc es wa s to be determined by

the trial court. After a

sentenc ing he aring , the trial court order ed that the de fenda nt

serve his sentence s in total confine ment. On appe al, this court re verse d and re manded, or dering that the trial court rec onsider a se ntencing alt er n at i v e to confineme nt in the Department of Correc tion (DOC). See State v. J ames Da le Walker, No. E2002- 00263-CCA-R3-CD, Blount County(Tenn. Crim. App. Oct. 18, 2002). Af ter a second se ntencing hearing, the trial court or dere d that the defe ndant serve six months in confinement and the r emainder of his sent en ce s o n supervised probation. The de fenda nt appea ls, claiming tha t he should have r ece ived full probation. We af firm the jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE and A L AN E. G L EN N , J J ., joined.

Ray mond Mack Ga

rner , District Public Defe nder, f or the a ppellant, J ames Da le Walker.

Paul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; Michae l L . Fly nn, District Attorney Gene ral; and Robert L . Hea drick, As s istant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case relates to the defe ndant’s orde ring a child pornog raphy videotape as part of a n underc over la w enforce ment operation in May 2000. I n the def

endant’ s orig inal appea l, this court
state d th e fo llo wi ng fa c ts:-2- An interne t company

based in Da llas, Texas, called “ L andslide” ha d be e n p rov iding a c c e ss t o in te rn e t w e bs ite s c on ta ini ng c hil d pornog raphy . As a result of an investigation by postal inspectors and other law enfor ceme nt personnel in Da llas, the company was put out of business and take n over by law enf o rce ment authorities as a n underc over ope ration.

During the inves tigation of L andslide, law e nforc ement offic er s rec overe d a list of over one -hundre d thousand names of

c us tom e rs a c ro ss the c ou ntry wh o ha d u til ize d L a nd sli de to a c c e ss child pornog raphy

web s i t es. E-mails were se nt to the twenty -five people in Te nnessee who had a cce ssed the child pornog raphy sites most often. The De fenda nt was one of the t wenty -five people on the list i n Tenne ssee to whom an e -mail was se nt. The e- mail stated that the L a nd sli de c omp a ny

wa s back in b us ine ss andof

fe ri ng the sa me

se rv ic e s pre vio us ly

pr ov ide d. Th e De fe nd a nt r e sp on de d to the e -m a il

a ndwa s e ve ntual lyg ive n th e op po rtun ity to p ur c ha se c hil d pornog raphy

videotapes. The Def

endant r equeste d a list of videos containing “pre -tee n” pornogr aphy . A law e nforc ement off icer sent the Def endant a list of available titles, including a g raphic description of the se xua l a c ts d e pic te d in the vid e os a nd th e ages of th e a c tor s. The De fenda nt ordere d a videotape entitled “Te en Sex ,” which w as described as de picting a nine-y ear old gir l having sex wit h her f ather and his friend. The Defendant mailed a money order in the amount

o f $ 4 9

. 9 5 a n d r e q u e s te d th a t th e v id e o b e s e n t to h is p o s t o f f ic e b o x.

I d., slip op. a t 2

. Wh e n th e d e f e n d a n t p ic k e d u p th e v id e o ta p e f r o m th e p o s t o f

f ic e , a u th o r it ies
sto pp e d him in the pa

rking lot

. Th e de fe nd a nt turne d ove r his ho me c omp ute r to the po lic e a ndtol d the offic ers that he had a pr oblem with child pornog raphy

. I d. He pled g uiltyto ag g ravated sexual exploi tation of a minor and se x ual exploit ation of a minor.

At the def endant’ s first sentenc ing hearing, David Dirmey er, a United States Postal Service I nspector, te stified that h e co n fr o n t ed the def endant in the post off

ice pa rking lot and that the defe ndant g ave a

statement. He said that ac cording to the defe ndant, the def endant would look at

c hil d p orno g ra

ph y ov e r the I nte rn e t a nddo wn loa d s ome of t he por no g ra ph ic ima g e s o nto his

c omp ute r. He sa id that a t some po int , the de fe nd a nt w ou ld b e c ome dis g us te d w ith him se lf, d e le te the downloaded materia l, and “start the cy cle ba ck over ag ain.” He said a sea

rch of the def endant’ s home computer

reve al ed that the de fenda nt had delete d downloaded f iles, which supported the defe ndant’s story

. He s ai d t h e defenda nt had tried to stop acc essing child pornog raphy over the I nterne t but could not. He said the de fenda nt denied eve r molesting c hildren but admitted having a six teen- y ear -old g irlfriend w hen the de fenda nt was ninetee n.-3-

On cross

- e xa mi n a ti o n , I n s p e c to r D irme y e r

a c k n o w le d g e d th a t th e d e f e n d a n t w a s v e ry cooper ative and vol u n t arily told the police about the pornog raphic downloads on the c omputer. I ns pe c tor Di rm e y e r s a id the de fe nd a nt l ive d w ith his pa re nts a nda llo we d th e po li ce to searc h h is bedroom without a sea

rch warr ant. He said that when the office rs left the home , they forg ot to take the def endant’ s computer. He said the defe ndant pag ed him a nd reminded him that the of fice rs had fo rg ott e n to take thec omp ute r w ith the m.
Ronnie Heppe rly , the pastor f or Restoration I nterna tional Outrea ch C hurch, te stified that the defe ndan t h ad b ee n a member of his churc h for a

bout two y ear s and told him about the criminal char g es. He said the def

endant wa s very

repe ntant and wa nted Mr. He pperly to pray with him. On

c ro ss- e xami natio n, he te sti fi e d tha t the de fe nd a nt wa s not inv olv e d with a ny of the y ou th p ro g ra ms at the chur ch.

J oan Walker, the defe ndant’s mother, te stified that the then twenty -eig ht-y ear -old defe ndant had lived with her

all his life. She said her thr ee y oung g randc hildren also lived in the home but that none of the m shared a bedroom with the defe ndant. She said that on May 31, 2000, the def

endant told her that he ha d acc essed pornog raphy over th e I nterne t and that he wa s in trouble with the police. She said that a fter the defe ndant’s bo n d hearing, he had his I nterne t acc ess servic e disconnec ted.

Th e de fe nd a nt te sti fi e d tha t as a re su lt of the c ha rg e s, he wa s susp e nd e d fr om his job a t Wa lM ar t

. He sa id he worke d for his par ents’ g arba g e ser vice business for a while, g ot a job at Ho lly wo odVi de o, a nd wa s pr omo te d to a ssi sta nt ma na g e r of the vid e o sto re

. He sa id h e orig ina lly be g a n lo oking a t c hil d p orno g ra ph y on the I nte rn e t be c a us e he wa s lon e ly a ft e r br e akin g up wi th h is g ir lf ri e nd . H e sa id h e sta

rt e d atte nd ing c hu rc h, re a lize d w hat he wa s d oin g wa s wr on g , a nd tr ie d to stop. He said he would dele te the pornog raphy from his computer pe riodically but could not stop looking at it on the I nterne t. He said that the office rs stopped him in the post of fice parking lot on May 31, 2000; that he beg an counseling sessions w ith Dr

. Michae l B uckner in June 2000; and that he wa s indicted for the crimes in O ctober 2000. He sa id he beg an see ing D r. B uckner beca use he

rea liz ed he ne eded he lp. H e said that a t the time of the sentenc ing he aring , he wa s still seeing Dr. Buc kner a nd that he would continue counseling if the trial court g rante d him probation. He said that throug h his counseling sessions, he had learned that he was molested at least three times as a y oung child. He sa id that he was sor ry for what he had done and that he had not acc essed the Interne t or viewed c hild pornog raphy since May

31, 2000.

Dr. Micha el B uckner

testified that he is a lice nsed psy cholog ist and beg an counse ling the defe ndant on J une 26, 2000. He said that during one of the defe ndant’s counseling se ssions, the defe ndant suddenly

reme mbere d being rape d by a family member when the defe ndant was e ight or nine y ear s old. He s ai d t h at a scout master also had ha d an inappr opriate r elationship with the de fe nd a nt w he n th e de fe nd a nt w a s te n o r e le ve n y e ars old . H e sa id that the se e ve nts c ou ld e xpla in
t h e d ef en d an t ’s d es i re fo r c h i l d p o rn o gra p h y

. He s ai d t h at t h ro u gh co u n s el i n g, p eo p l e c o u l d ch an ge their desire s and that the defe ndant was prog ressing very well and wa s no longe r having desires f or exposure to under- ag e sex ual m aterial. He said the defendant was immature but was “ maturing moreT he l egi sl at ure’ s 2 0 0 2 am end m ent t o T

. C

. A

. § 4 0

- 3 5

- 1 1 4 ad d ed as t he new enhanc em ent f act o r ( 1 ) t hat t he 1

“of fense was an act of t errori sm” b ut changed t he exi st ing enhanc em ent f act o rs only by i ncreasi ng t hei r desi gnat i ng

n u m b e r b y o n e

.
-4- into age-a

ppropriate kinds of behavior s.” He said that the def endant would ne ed to continue counseling for at least another y ear but that he thought the defe ndant’s likelihood of succ ess was ve ry high.

Acc ording to the defe ndant’s prese ntence report, the defe ndant dropped out of high sc hool due to poor health, obtained his GED, and attended some colleg e cla sses. The de fenda nt describe d his phy sical hea lth as fair a nd stated that h e s uffe red f rom migr aine he adac hes, mouth ulcers, a nd fre quent sore thr oats. He de scribed his menta l health as g ood and st ated that he did not drink alcohol or use illeg al drug s. A drug test conducte d on Dec ember 27, 2001, was neg ative. At the t ime of the report, the defe ndant was w orking for Holly wood Video. The report show s that he also ha d worke d for B laine’s Ga

rbag e Servic e and Wal-Ma rt.

The trial c ourt determined that enhanc ement fa ctor (1) , that the def endant “ has a pr evious history of . . . criminal behavior in addition to those nece ssary to establish the appropriate ra ng e,” applied to his sentence s. See T.C.A. § 40-35-114( 1) (supp. 2001) (ame nded 2002). I n mitigation, 1 the trial court considere d that the def endant ha d been open an d honest with the police, ha d taken steps toward r eh ab i litation, had maintained steady employ ment, and had no prior criminal convictions. See T.C.A. § 40-35-113( 13). The trial court noted that the def endant wa s presumed to b e a n a pp ro pria te c a nd idate fo r al te rn a tiv e se nte nc ing

. Se e T. C.A . § 40 -3 5- 10 2( 6) . How e ve r, it

ru le d th a t th e state ha d o ve rc ome the pr e su mpt ion , s ta tin g a s f oll ow s:

The re ason being that y ou have been i nvolved in this ty pe of illeg al activity to such a de g ree over the last y ear and a half, or so, a s to be,

a s th e wi tne ss te sti fi e d, in the top 25 of the pe op le in this wh ole state when it comes to a cce ssing these child-porn we b s i t es . I f y ou had boug ht, out of cur iosity-- or whateve r re ason -- one videotape , and that w a s it
, th e n th is w o u ld b e a n e n ti r e ly d if f e r e n t s itu a ti o n and I would say

that y ou oug ht to be place d on probation and do the kinds of thing s that y ou’ve be en doing . . . . But that is just not any wher e close to what the fac ts are he re. A la c k

-- I thi nk c on fi ne me nt is ne c e ssa ryto a vo id depre ciating the seriousne ss of this offense

. An d that, in my mind, outweig hs the other thing s that I have c onsidered.

On app e a l, the de fe nd a nt ar g ue d tha t the tr ia l c ou rt e rr e d b y re fu sin g to g rant h is r e qu e st f or so me type of a lternative se ntence . This court ag ree d, reve rsed the trial court’s ruling that the def endant should serve his sente nces in total conf inement, and rema nded the case for r esente ncing . See James Dale Walker , slip op. at 7.-5-

During the sec ond sentenc ing hearing, Michael L ane, a proba tion officer with the Boa

rd of Probation and Paroles, testified that afte r t he defenda nt’s first sentenc ing he aring , the def endant wa s rele ased on a n appea l bond. He said the c o n d i t i o n s o f the def endant’ s bond require d that the defe ndant re port monthlyto the Boa rd of Probation and P arole s, have no Interne t acc ess, continue

c ou ns e lin g , n e ith e r p os se ss n or be in a pla c e that ho us e d s e xua lly e xplic it m a te ri a ls
, un dergo risk assessment testing and re g ular poly g raph te sting, a nd live with the defe ndant’s aunt. He said that he had supe rvised the de fenda nt and that the def endant ha d complied with all of the conditions. H e said that the def

endant ha d taken two poly g raph te sts a nd that neither test indicated de ception. He said the def

endant no long er w orked f or Holly wood Video, had mowed y ards during the summer, and wa s try ing to g et a job with ProTemp. He acknow ledg ed t h at t h e d efendant had ha d steady employ ment and that the defenda nt had cooperated full y with every thing he and the trial court ha d asked the defe ndant to do. On cr oss-examination, he acknow ledg ed that the d ef en d an t’s Sex Offe nder Risk Assessment stated that the de fenda nt “pre sents a modera te risk to re- offe nd” and that

“ wi tho ut a

pp ro pria te su pe rv isi on , bou nd ari e s tha t limit his a c c e ss to p ote nti a l vi c tim s, a ndsp e c if ic

se x off e nd e r t re a tme nt t o a dd re ss h is se xua l of fe nd ing ,” the de fe nd a nt w ou ld l ike ly a c t ou t se xua lly in the future.

The de fenda nt testified that he had not been char g ed with any other off enses. He said that Ho lly wo odVi de o ha d de c re a se d his wo rk ho ur s and that he wa s looking fo r ano the r j ob . H e sa id he was having difficulty obtaining employ ment, though, beca use he was a convicte d fe l o n and beca use he no longe r could acc ess the I nterne t and apply for jobs online. He said that Dr. B uckner was no long er c ounseling him but that he was being counsele d by Wil liam Daniel. He said that he ha d n o p ro ble ms c omp ly in g wi th his app e a l bo ndre qu ir e me nts a nda c kn ow le dg e d th a t he c ou ld follow any

rules imposed by

the trial court or his probation offic er. O n cr o s s -e x amination, the defe ndant ac knowledg ed that he w orked w ith Cassie Heathe rly at Holly wood Video an d that he mowed Mrs. He ather ly ’s neig hbor’s y ard. H e also a cknowledg ed that Mrs. He ather ly wrote a letter to his probation office r in which she stated t hat t he defenda nt had bee n alone with her eleve n-y ear

old daug hter seve ral times while he w as mowing the neighbor’ s g rass. He said that he had had no unsupervised c ontact with any children a nd t h at M rs. Heatherly alway s was pre sent when he was with her daug hter.

The tria l c o u r t n o te d th a t a lth o u g h D r

. B u c k n e r b e li e v e d th e d e f

e n d a n t h a d a

mi n imum lik e lih oo d o f re of

fe nd ing , the de fe nd a nt’ s Sex Of fe nd e r R isk

As se ssm e nt c ha

ra c te ri zedhis ri sk

to reof fend a s moderate . Thus, the trial cou rt h el d that the def endant’ s reha

bilitation prognosis was g uarde d. The trial c ourt noted that the defe ndant’s work toward reha bilitation had been g ood and that he had f

ollowed all o f t h e conditions of his bond. Howeve r, it still determined that a lac k of confine ment would depre ciate the seriousness of the offe nses and order ed that the def endant se rve six months in confinement and the r emainder of hi s ef fe ct ive six -y ear

sentenc e on super vised probation.

Th e de fe nd a nt a

pp e a ls, c la imi ng that the tr ia l cou rt sh ou ld h a ve g rante d h is r e qu e st f or fu ll probation. He contends that the trial court erre d by determining that his likelihood for reha bilitation was g uarde d beca

use he has no prior criminal recor d, had committed no subsequent of fense s, had-6-

complied fully

with his appeal bond re quirements, wa s rec eiving counseling
, had maintained ste ady

e mpl oyme nt, a ndha d p a sse d tw o po ly g ra ph te sts

. I n a dd iti on , he arg ue s th a t th e tr ia l c ou rt sh ou ld not have de nied his reque st for full proba tion based upon t h e n ee d to avoid depre ciating the

se ri ou sn e ss o f the of

fe ns e s b e c a us e the c ir c ums ta nc e s of the of fe ns e s we re no t “ e sp e c ia lly vio le nt, horrifying, shoc king, r epre hensible, off ensive, or othe rwise of an excessive or e x ag g erated deg ree ” as required by State v. Hartley
, 818 S.W .2d 370, 374-75 (Tenn. Crim. App. 1991). The state a rg ues that trial court pr operly

rese ntence d the def

endant. We ag ree with the state.

Whe n a de fe nd a nt a

pp e a ls the ma nn e r o f s e rv ic e of a se nte nc e imp os e d by the tr ia l c ou rt , th is
court c onducts a de novo revie w of the r ecor d with a pre sumption t hat the trial c ourt’s de te rm inatio ns are c or

re c t. T .C. A. § 4 0- 35 -4 01 (d ). Ho we ve r, the pr e su mpt ion of c or re c tne ss i s “conditioned upon the a ffirmative showing in the rec ord that the trial c ourt consider ed the se ntencing principles and a ll releva nt fac ts and circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). The bur den is on the appe aling p ar t y t o s h o w that the sentenc e is improper. T.C.A. § 40-35-401( d), Sentenc ing Commission Com ments. This means that if the trial c ourt followed the statutory sentenc ing pr ocedur e, made finding s of fa ct that ar e ade quately supported in the re cord, a nd g ave due consideration a nd proper weig ht to the f actor s and principles tha t are rele vant to sentenc ing under the 1 9 8 9 Sentencing Act, we may not disturb the sentence even if a diffe rent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. When determining if incar cer ation is appropria te, a tria l court should consider w hether (1) confine ment is neede d to protect socie ty by restra ini n g a def

endant who ha s a long history of criminal conduc t, (2) conf inement is neede d to avoid depre ciating the s eriousness of the offe nse or

c on fi ne me nt i s p art ic ula

rl y su ite d to pr ov ide a n e ff

e c tiv e de te rr e nc e to peo ple lik e ly to c omm it simil ar offense s, or (3) less restric tive measure s than confine ment have f reque ntly or re cently

been applied unsucc essfully

to the defe ndant. Ashby , 823 S.W .2d at 16 9 (c i t i n g T.C.A. § 40-35-103( 1 ) ( A )

- ( C) )

. T h e tria l c o u r t m a y a ls o c o n s id e r

th e mi ti g a ti n g a n d e n h a n c in g f a c to r s set forth in T .C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210( b)(5) ; State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). I n addition, a trial court should consider a de fenda nt’s potential or lack of potential for r ehabilitation when de termining if an alternative sentence w ould be appr opriate. T. C.A . § 40 -3 5- 10 3( 5) ; B os ton , 9 38 S.W. 2da t 43 8. I n c on du c tin g a de no vo rev ie w, we mus t consider ( 1) the e vidence , if any , rec eived at the tr i al and sente ncing hearing, ( 2) the pre sentenc e report, ( 3) the principles of sentenc ing and ar g uments as to sentenc ing a lternatives, ( 4) the nature a nd char acte ristics of the criminal conduct, (5) any mitigating or statutory enhanc ement fac tors, (6) a ny statement that the de fenda n t m ad e o n h i s own beha lf, and (7) the potential for r ehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, - 210; see Ashby , 823 S.W .2d at 168.

I n o rd e r f

or a tr ia l c ou rt

to d e ny a lte rn a tiv e se nte nc ing ba se d u po n a ne e d to a vo id de pr e c ia tin g the se ri ou sn e ss o f the of fe ns e , the “ c ir c ums ta nc e s o f the of fe ns e ‘a s c omm itt e d, mus t be “espe cially

violent, horrifying, shoc king, r epre hensible, off ensive, or othe rwise of

an excessive

or ex ag g erated degr ee,” and the nature of t he offense must outweig h all fac tors favoring pr obation.’” State v. Fields, 40 S.W.3d 435, 441 (Tenn. 2001) (quoting State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985) (quoting State v. Travis, 622 S.W .2d 529, 534 (Tenn. 1981)), overr uled on o t h er-7-

g ro un ds by

Sta te v. Ho op e r, 29 S.W. 3d 1, 9 (T e nn

. 20 00 )) ; Ha rt le y , 81 8 S.W. 2d a t 37 4- 75

. I n th is

case , the trial court determ i n ed at t he def endant’ s first sentenc ing he aring that incar cer ation was

wa rr a nte d b e c a us e the de fe nd a nt re pe a te dly a c c e sse d ch ildpo rn og ra ph y fo r o ve r o ne a ndon e -h a lf
y ear s and ac cesse d it so freque ntly that he wa s one of the top twe nty -five pe ople t o use L andslide in T e nn e sse e . D uring the de fe nd a nt’ s sec on d sen te nc ing he ari ng , the tr ia l cou rt he ld that th os e fa c ts sti ll w arr a nte d a

pe ri odof

c on fi ne me nt. We a g re e that so me c on fi ne me nt i s a pp ro priate to emphasize to this defenda nt the seriousness of his a ctions. See State v. Butler , 880 S.W .2d 395, 401 (Tenn. Crim. App. 1994) (holding that the circumstances of the offe nse did not justifya sente nce of full confineme nt but did warra nt some confineme nt to avoid depre ciating the s eriousness of the offe nse). The proof shows that the def endant r epeatedly

viewed c hild pornog raphy over the I nterne t and fr equently

downloaded the pornog raphic imag es onto his computer. Although he was disg usted with his behavior
, the defe ndant failed to g et any trea tment f or his a ddiction until the police stopped him in the post office parking lot. We hold that the defe ndant’s criminal conduct justifies six months in c on fi ne me nt t o a vo id d e pr e c ia tin g the se ri ou sn e ss o f the of fe ns e s.

Ba sed upon the for eg oing and the re cord a s a whole, w e af firm the judg ments of the trial

c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE