### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

une 27, 2001
STATE OF TENNESSEE v. DAVID WAYNE OSBORNE
Direct Appeal from the Criminal Court for Sullivan County Nos. S43,429 and S43,430 Phyllis H. Miller, Judge

No. E2000-03086-CCA-R3-CD July 31, 2001
The Defendant pled nolo contendere to one count of felony child neg lect, one count of possession of drug paraphernalia, one count of possession of marijuana, and two counts of public intoxication. At issue in this appeal is the sentenc e for felony child neglect, a Class D felony for which the Defendant

received a two-year Comm unity Corrections sentence. Subsequently, based upon a warrant alleging tha

t the Def endant had violate

d the terms and con

ditions of his Community Corrections sentence, the trial court revoked the Defendant’s Community

Corrections sentence and increased his original sentence from two years to four y ears, to be served with the Tennessee Department

of Correction. In this appeal, the Defendant argues that the trial cour timp roperly enhanced his two-year sen

tence for felony child neglect to four y ears and that the court erred by failing to impose some form of alternative sen tencin g. We conclude th at the trial court

properly increased the length of the Defendant’s sentence from two to four y ears and that the Defendant’s prison sentence w

as properly

imposed. Accordi

ngly, we a

ffirm the judgme

nt of the trial cour

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

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined.

Julie A. Rice (on appea

l), Knoxville, Tenne

ssee; and Les

lie Hale (at

trial), Blountville, Tennessee, for the Appellant, David Wayne Osborne.

Paul G. Summers, Attorne y General and Reporter; Pat

ricia C. Kussman, Assistant Attorne y General ; H. Greeley Wells, Jr., District Attorney General; and Te resa Murray-Smith, Ass istant District Attorney General; for the Appellee, State of Tennessee

. OPINION

On December 15, 19

99, the Defenda

nt was indicted by

the Sullivan County

Grand Jury for two counts of

public intoxication, one count of possession of marijuana, one count of possession of drug paraphernalia, and one count of felony child neglect. On March 8, 2000, the trial court accepted1 A transcript o f the sentencing h earing was no t made pa rt of the record on appe al.
-2- pleas of nolocontendere by the Defendant to each charge. On May 4, 2000, following a sentencing hearing, 1 the trial court sentenced the Defendant to eleven

months and twenty-nine days probation forposs ession of drug pa raphernalia; th

irty day s probation for bot

h convictions of pu

blic intoxication; eleven months and twenty-nine days proba tion for possession of

marijuana; and two yearsfor felony

child neglect. T

he two-yea

r sentence for f

elony child

neglect contained a provision whereby the Defendant was ordered to serve one hundred and twent y days “day

fo r day” in the county jail, with the balance to be served on C ommunity Corrections. In addition, the trial court ordered that the Defendant continue drug and alcohol treatment , submit to random dr ug screens, complete parenting classes, not use or possess alcoholic beverages, not use ille gal drugs, and maintain full-time employment.

On May 30, 2000, the trial court amended the “day for day” provision of the judgment to allow the Defendant to serve periodic confinement in conjunction with his job. On June 16, 2000, the trial court allowed an amended periodic confinement sch edu le f or t he D efen dan t. S ubs equ ent ly, the Defendant filed a petition for early relea se, which the trial court denied on July 10, 2000. On September

5, 2000, presumabl y after t he D efen dan t ha d se rved the one hun dred and twe nty d ays split-confinement

portion of

his sentence, the

trial court enter

ed an order setti

ng forth the terms and conditions of the Community Corrections sentence.

On November

6, 2000, a warra

nt was issued aga

inst the Defenda

nt, in which it was alleged that the Defendant had violated two rules of Community Corrections. First, it was alleged that the Defendant

had violated a Commu nity Correc

tions rule prohibiti

ng the use of into

xic ants, by allegedly possessing alcohol on October 6, 2000 and on November 3, 2000. Second, it was alleged that the De fendant had violated another Community Corrections rule by leaving the John R. Hay House, a treatment fac

ility, without p

ermission. The wa

rrant was serve

d on th e Defenda nt on November

6, 2000, and the trial court conducted a hearing on Novembe r 30, 2000. A t the conclusion of the hearing, the trial court revoked the Def

endant’s Community

Corrections sentence and imposed a sentence of four years with the Tennessee Department

of Correction for the felony child neglect conviction.

ANALYSIS

Inthis appeal, the Defendant does not challenge the trial court’s revocation of his Com munit y Corrections senten ce, but he does challeng e the trial court’ s enhancement of the length of his sentence from two years to four year s for the felony child neglect conviction. He also challenges the trial court’s unwillingness to consider an alternative sentence.
The Defendant insists that the trial court erred when it increased the length of his sentence from two years to four yea rs upon revoking his Community Correctionssentence. TheDefendant does not contest

the validity of the trial court’s revocation of his Community Corrections sentenc e. Nor does he contest the trial court’s authority generally to i nc rease the length of a revoked-3-

Community

Corrections sentence up to the maximum sentence w ithin the ap propriate s entence range for the offense. See Tenn. Code Ann. § 40-36-106(e)(2).

Our analysis begins with well-settled principles that govern our review of a sentence determ inat ion imposed under the Criminal Sentencing Reform Act of 1989. When a criminal defendant challenges the length, range, or manner of service of a sentence, the re

viewing court mu

st conduct a de novo review of thesentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40 -35-401(d). This

presumpti on, however, “is conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles andall relevant fac ts 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 pur ely 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 th

e specific sente

nce and the propr

iety of sentencing alternatives by considering (1) the e videnc e, if any, r

eceived at the trial and the sentencing hearing, (2) the presentence report, (3) theprinciples of sen tencing and ar

guments as to
se ntencing al ternatives, (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 defend ant 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 w ithin the applicabl e range unless there are enha ncement or mitiga

ting factors pr

esent. 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 enhanc ement 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. Shelton , 854 S.W.2d at 123. However, the sentence must be adequately supported by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act. Statev. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a s entence, th e trial cour t must mak e specific fi ndings of fact onthe record suppo rting t he 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
re cording the court’s reasoning is to guarantee the preparation of a proper r ecord for appel lat e review. State v. Ervin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). B ecause the rec ord in this case indicates that the trial court adequately considered the enhancement and mitigating factors as well as the under

lying fac ts, our review is de novo with a presumption o f correctness.-4-

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a l awful s entence after having given due consideration and proper weig ht 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 re cord, then we may not modify the sentenc e "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.

A. LENGTH OF SENTENCE

The Defendant first

contests the leng

th of his sentence . In sentenci ng the Defenda

nt, the trial courta pplied enhancement factor (1), that “[t]he [D]efendant has a previous history of criminal convictions or criminal behavior”; enhancement factor (4), that “[a] victim of the of fense was particul arly

vulnerable bec

ause of age”;

enhancement fa

ctor (8), that “[t]h

e [D]efendant has a previous history

of unwillingness

to comply with

the conditions of a sentence involving release in the community”; and enhancement factor (15), that “[t]he [D]efendant abused a position of public
or private trust . . . .” Tenn. Code Ann. § 40-35-114(1), (4), (8), (15). Thus, the trial court found that four enh anci ng fa cto rs a ppl ied in s ent enci ng th e Def end ant . Ad dit ion all y, the trial court found that no mitigating factors applied.

We agree with the trial court concerning each of the enhancement factors applied in this case. The record does indicate that the Defendant has a pr evi ous history of criminal convictions or criminal behavior, that he has a previous history

of unwillingness

to comply with the conditions of
a sentence involving release in the community, and that he abused a position of private trust

in the neglect of his two-year-old daughter. The trial court considere d and rejected each

of the mitigating factors proposed by the Defendant and found no other mitigating factors. The trial court’s findings in this regard are adequately supported by the recor d, and we will not disturb those findings on appeal.

With regard to the Defendant’s argument that the trial court improperly applied Tennessee Code Annotated § 40-35-114(4), regarding the particular vulnerability of the victim, we conclude that the trial court should not have applied this factor solely on the basis of the victim’s age be

cause the victim’s a ge is an element of the offense of felony child neglect. Ne vertheless, we conclude that the trial court

properly enhanced the Defendant’s sentence basedupon e nhanc ement facto r (4). In this case, the two-year-old victim was clearly particularly vulnerable because of her natura l physical and mental limitations. The trial court properly found that the two-ye ar-old baby could not resist the crime, summon help, or testify at a later date. The victim was totally dependent on the Defendant for her care. Thus, we agree with the State that the trial court did not err when it applied this factor to enhance the Defendant’s sentence. See State v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993).

B. ALTERNATIVE SENTENCIN G-5-

The Defendant next conte nds that the trial court should have granted him some form of alternative sen

tencing. Tenne

ssee Code Annotat

ed § 40-35-102(5)

provides as follow

s: In recogn ition that state pris

on capacities an

d the funds to

build and maintain them
are limited, convicted felons c ommitting the most severe offenses, possessing criminal histories evincing a cl ear d isr egar d fo r th e la ws a nd m oral s of soc iet y, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration . . . . A defend ant who does not fall within this class of offenders “and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felo

ny is presume

d to be a favorable candidate for

alternative sen

tencing in the absence of eviden ce to the contrary.” Tenn. Code Ann. § 40-35-102(6). Furthermore, u nless sufficient evidence rebuts the presumption, “[t]he trial court must presume that a defendant sentenced to e ight year s or less and not an offender for whom incarceration

is a priority is subject to alternat ive sentencing and that a sentence other than incarceration

would result in successful rehabilitation .

. . .” State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). T he Defendant, as a standard offender convicted of a Class D felony, is presumed to be a favorable candidate for a lternative sentencing.
However, all o f

fenders who meet the criteria are not entitled to relief; instead, sentencing issues must be determined by the facts and circumstances of each c ase. See Stat e v. Taylor , 744 S.W.2 d 919, 92 2 (Tenn. Cri m. App. 198 7) (citing State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a defend

ant is presumed to b

e a favorable c

andidate for alternative sentencing under Tennessee Code Anno tated § 40-35-102(6), the statutory presumption of an alternative sentence may be overcome if

(A) [c]onfinement i

s necessary

to protect society

by restraining a defendant who has a long his

tory of cri minal conduct; (B) [c]onfin ement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to prov ide an effectiv e deterrence t

o others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant . . . . Tenn. Code A nn. § 4 0-35- 103(1 )(A)- (C). In choosing among possible sentencing alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be considered

in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35- 103(5); State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). A lack of candor or untruthful testimony reflects poorly upon a defe ndant's potential for rehabilitation and therefore may be a proper basis

for the denial of probation. State v. Neely , 678 S.W.2d 48, 49 (Tenn. 1984); State
v. Nunley , 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); State v. Byrd , 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993).

The trial court stated on the record its reasons for denying an alternative sentence in this case. The trial court found that the Defendant lacked candor and credibility and

thus that he had little or-6-

no potential for reh

abilitation. The tr

ial court was cer

tainly in a be

tter position than th

is Court to
assess the candor and c

redibility of the Defendant, and our review of the record supports i ts findin gs in this regard. The trial court properly applied this consideration in deny ing analternative sentence. Add iti ona lly, it is abundantly clear from the record that m

easures less

restrictive than confinement had recently been applied unsuccessfully to this Defendant. See Tenn. Code Ann. § 40-35- 103( 1)(C). This factor was also properly applied by the trial court in imposing a sentence of incarceration.
Accordingly

, we AFFIRM

the judgment of th

e trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE