# FILED
August 7, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9707-CR-00285 Appellee, ) ) Knox County V. ) ) Honorable Richa rd Baumgartner, Judge ) WILLIAM L. ROBINSON, ) (Denial of Probation) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Mark E. Stephens John Knox Walkup District Public Defender Attorney General & Reporter Paula R. Voss Todd R. Kelley John Halstead Assistant Attorney Gener al Assistant District Public Defenders Criminal Justice Div ision 1209 Euclid Avenue 425 Fifth Avenue, North Knoxville, TN 37921 Nashville, TN 37243 Randall E. Nichols District Attorney General Charme P. Johnson Assistant District A

ttorney General 400 Main Street, P.O. Box 1468 Knoxville, TN 37901-146 8

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, William L. Robinson, entered a bes t interest plea to one count of aggravated chil d abuse, a Class B felony. A fter a hearing, the Crimin al Court at Knox County d enied the appellant’s application for probation and sentenced him to eight (8) years in the Tennessee Depar tment of Correction. He appeals. The issue is w hether the evidence supports the court’s decision. We affirm the judgment of the trial court.
In 1991, the appellant was par alyzed from the neck dow n in a drive-by shooting. He became depressed. After rehabilitation, he regained the use of his arms. In March 1993, the appell ant was living with his girlfri end and her threeyear-old daughter, the victim. The appellant testi fied that on the morning of March 19, 1993, the victi m complained of a stomachache. Thinking that the victim’s stomach probl ems were caused by somethi ng that she had eaten the previous evening, the appellant sent the child to her room. Later, the appellant heard the child “dry he

aving.” He then heard

her fall. The appellant testified that the victim told him that s he hit her head and that her stomach was still hurting

. Since March 19th, the appella nt has spent time around childr en without incident.

The child was treated in the emergency room later that evening. She was placed in the pediatric intensive care unit until the 23rd of March. The child was diagnosed with right occipital sk ull fracture and multiple contusions. She had considerable bruising and swelling to her

head and face, and bruising on her neck, arms, hands, and back. The medi cal records indicate that these injuries were probable child abus e. There was evidence of a pr evious clavicular

fracture, a burn on her foot, and multiple bru ises of different ages. The medical r ecords indicate that these injuri es were consistent w ith ongoing abuse and negl ect. The victim remained in the hos pital for additional tests until the 25th when she w as discharged to the custody of the Department of Huma n Services.-3- The medical records reflect that the victim said that the appellant told her to say that she hurt herse lf when she fell out of bed. She als o said that the appellant hit her and that he hit her with “the wal l.”

When a defenda nt chall enges t he length, rang e, or man ner of se rvice of a sentence, this Court conducts a de novo review with a presumption that the determinations made by the tri al court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The presumption is conditioned u pon the trial court’s following the princi ples of sentencing. State v. Ashby , 823 S.W.2d 166 (Tenn. 1991). This review extends to sentencing is sues concerning probation. State v. Dykes , 803 S.W .2d 250, 258 (Ten n. Crim. A pp. 1990 ). In cond ucting ou r review, this Court considers (

a) any evidence recei

ved at the trial and/or s entencing hearing; (b) the presentence report; (c) the pri nciples of sentencing; (d) the arguments of counsel relativ e to these principles; (e) the nature and circumstances of the offense; (f ) any mitigating and/or enhancement factors; (g) any statement made by the defendant in his or her ow n behalf; and (h) the defendant's potential or lack ther eof for rehabilitation. Tenn. Code Ann.§ 40-35-210(b) (1990).
When probation is at issue the court must cons ider the circumstances of the offense, the defendant's criminal rec ord, social history , present condition and where appropriate, his or her physical or ment al condition. State v. Kear , 809 S.W.2d 197, 198 (Tenn. Crim. App. 1991). In additi on, the deterrent effect upon other criminal activ

ity may be considered. State v. Lewis , 641 S.W.2d 517, 521 (Tenn. C rim. App . 1982). Also, t he lack of truthf ulness i s probative of a defendant's prospects for rehabili tation and is a proper consi deration. State v. Chestnut , 643 S.W.2d 343, 35 3 (Tenn. Crim. App. 1982).
The evidence at the sentencing hearing consisted of the testimony of the appellant and his mother, a presentencing report, the child’s me dical records,-4- and photos that showed the chil d’s injuries when s he was in the hospital. As previousl y stated, the appe llant tes tified t hat the c hild’s inj uries were c aused by a fall. He denied hitting the victim. The photos of the child’s injuries were shocking. The child had sw ollen “racoon eyes” and bruising and swell ing on her neck. The photos also showed o ther bruises and injuri es. The defense attorney told the court t hat the b ruisin g aroun d the ey es was caused b

y the ty pe of fracture sustained by the ch ild. The court rejected thi s explanation, citing the medical records and the inj uries depicted in the photos. The evidence does not preponderate against this find ing as urged by the appellant.

The trial court stated that the appellant was eligi ble for probation, but denied the appellant’s reques t for alternative sentenci ng. See Tenn. Code Ann. § 40-35-303(a) (1990). The court found that the appellant had been previously convic ted of dr iving without a lice nse, sol icitin g prost itution , and pos sessio n of a controlled substance. The court noted that the ap pellant was placed on Project First Offender for solicitati on of prostitution. He apparentl y failed to complete the program and had his status revoked. He received suspended sentences fo r his other two convicti ons. The court said that, w hile the appellant did not hav e a long history of crimi nal conduct, measures less r estrictive than confinement ha d recently been applied unsuccessful ly to him.

The court found that confinement was neces sary to avoid depreciating the seriousness of the offense. The court found that the three-year-old v ictim was vulnerable, that she had r eceived extensive physical abuse, and that the injuries inflicted upon her were par ticularly great.The court found that the child had been severely beaten. The c ourt described the offense as an “abhor rent crime” and “an incredibly ser

ious offense.” The court further noted tha t the appellant violated the position of tr ust that he held in caring for the child.-5- The court also found that the appellant lied about how the child w as injured. The court noted that the appellant had given tw o inconsistent stories to the police during the inv estigation of the case, and the appe llant had continued to deny injuring the c

hild when he testified in c ourt. The court found no applicable mitigating factors, stating that the appellant’s physical condition did not reduce his culpabilit y for the offense.
The appellant argues that the pr esumption of correctness should n ot attach to the trial court’ s findings because he failed to foll ow the sentencing principles. We disagree. The appellant also argues that serious injury is an element of aggravated chil d abuse, and, that the nature of the offense should not be used to deny probation. See Te nn . C od e A nn . § 39 -1 5- 40 2 ( 19 91 ). We disagree. The court also t ook into consideration the ch ild’s young age, her vulnerability, and the position of trust in w hich the appellant was pl aced in caring for the child. Lastly, the appellant argues that the c ourt cannot deny probation based upon the seriousness of the off ense unless the nature of the offe nse outweighs all factors

favoring probation. See State v. Hartley , 818 S.W.2d 370 (Tenn. Crim. App. 1991). This issue is without merit because the trial court did not deny probation solely on the basis of the offense.
The evidence does not preponderate against the findings of the tr ial court. The court’s findings that the offense w as abhorrent and that the appellant was untruthful are particularl y compelling.
The judgment of the trial court is AFFIRMED.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

____________________________-6- JERRY L. SMITH, Jud ge

____________________________ CURWOOD W ITT, Judge