# FILED May 21, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9804- CR-00152 ) Appellee, ) ) SULLIVAN COUNTY V. ) ) ) HON. R.JERRY BE CK, JU DGE FRANKI E LEE LUNSFORD, ) ) Appe llant. ) (CHILD A BUSE)

FOR THE APPELLANT : FOR THE APPELLEE : TERRY C. FRYE, JOHN KNOX WALKUP 1969 Lee Highway Attorney General& Reporter Bristol , Virgi nia 24201 ELIZABETH B.MARNEY Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 H. GREELEY WELLS, JR. Distri ct Attor ney General TERESA MURRAY-SMITH Assistant Distri ct Attor ney General P.O. Box 526 Blountvi lle, TN 37617

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Fran kie Lee Lunsford, appe als as of right f rom his sentenci ng in the Sullivan County Cr iminal Court . Defendant was cha rged with one ( 1) count of Class D felony

child abuse and pled guil ty on February 23, 19 98. As agre ed to by the State and t he Defendant as part of the pl ea agreem ent, the trial co urt was to determine the mannerof service o f a three (3) year sentence f or the Defendant

as a Range I Standard Offender. The State agreed not to oppose Defendant’s request foralternat ive sentenci ng. The trialcourt deni ed any form of al ternati ve sentencin g, and sentenced the Defend ant to serve three (3 ) years in the Tennessee Depart ment of Corre ction. W e affirm the judgm ent of the tria l court.

When an accused chall enges the lengt h, range or t he manner of service of a sentence, this cour

t has a duty t

o conduct a de novo review of the sentence wit h a presumption that thedeterminati ons made by the tri al court ar e correct. Tenn. Code Ann. § 40-3 5-401 (d). Th is presumption i s “condit ioned upon the aff irmative showing in the record that

the tri al court considered thesentencing pr incipl es and all rel evant facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence , this court must consider: (a) the evidence, if any, received at the trialand the sentenci ng hearing; (b) the pr esentence report; (c) theprinciples of senten cing and argum ents as to sentencing alternat ives; (d) the nature and characterist ics of the criminal condu ct involved; (e) any statutory mitigati ng or enhancement factors; (f) anystatem ent tha t the de fenda nt ma de on his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.-3-

Tenn. Code Ann. § 40-35-1 02, -103 , and -21 0; see State v. S mith , 735 S.W.2d 859, 863 (Ten n. Crim. App . 1987).

If our rev iew refle cts tha t the trial court followed the statut

ory sentenci ng procedure, imposed a lawful sentence after hav ing given due considerati on and properweight to the factors and princi ples set out under the s entencing l aw, and made findings of fact adequatel y supported by therecord, then we may no t modify the senten ce even if we wou ld have p referred a different res ult. State v . F letcher , 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).

A defendant who “i s an especially mitigated or standard of fender convi cted of
a Class C, D or E felony is presu med to be a favo rable c andid ate for alternative sentencing options i n the absence of ev idence to t he cont rary.”Tenn . Code Ann. § 40-35-1 02(6). Our sentencing l aw also provi des that “conv icted fe lons committi ng the most severe offenses, possessing cri minal histories evincing a clea r disregard forthe laws and moral s of societ y, and evi ncing fai lure of past effor ts at rehabili tation, sha ll b e given fi rst pri ority regarding sentences invol ving incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to eight(8) years or l ess who is not an offender for who m inc arcera tion is a priority is presumed eligible for alt ernat ive sentenci ng unless suff icient evidence rebut

s the presumption. However, the ac t does not pr

ovide that all offen ders who meet the criteria are entit led to suc h relief ; rather , it r equires that

sentencing i ssues be determined by the facts and circu mstan ces pre sented in each c ase. See State v. Taylor , 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).-4- Additional ly, t he principl es of sentenci ng reflect that the s entence should be
no greater than that deserved for the offense committed and should be the l east
severe mea sure n eces sary to achie ve th e purp oses for whic h the s enten ce is imposed. Tenn . Code Ann. § 40-35-103(3) - (4). The court should also consider t he potentialfor rehabi litat ion or treatment of

the defendant

in determin ing the sentence alternative. T enn. C ode An n. § 40-3 5-103(5 ).

At the sentencing hea ring, the Defen dant testif ied in his own b ehalf. H e is marri e d to Tamm y Michelle Luns ford and the victim , Isaiah Alexand er Lunsford (“Alex”), is thei r son. The Defendant admitted t hat in Februar y 1997 he was an alcohol ic and wa s havin g troub le con trolling h is ang er. He was ta king ca re of his
son on Fe bruar y 12, 19 97, wh ile his wi fe was at work, and Alex had been cry ing. Defendant explained t hat “due to po or judgm ent,” he tos sed Ale x onto the bed. Alex appa rently fell, hit hi s head on the foot board b eside the bed an d then flipp ed onto the floor. D efend ant pic ked h im up and la id him back onto th e bed . Defe ndan t’s wife called at

that ti me and when Defendant returned to the room where Alex l ay on the bed, his son was unconscious and hi s wife advi sed him to call911. Defendant explained that he was not attempting to throw Al ex at the bedpost oronto the floor, or trying to inju re him in a ny man ner.

Defenda nt explai ned th at he lo ved his son a nd ha d regu larly car ed for h im until that tim e while his wife worked. Alex had never previousl y been injur

ed nor had there been any reports of chil d abuse fil ed against Defendant to his know le dge. When the rescue squad ar rived at his home, Defendant state d he was in tear s and was very scare d. Alex was in the h ospital for a total of n ine (9) d ays follo wing th is incident, partially due to the fact tha t a foster h ome had to be fou nd for A lex. W hile-5-

Defendant has not h ad custody of Alex since t he criminal incident , he had vis ited with him on a regular

basis. Al so, Defendant had unde rgone alcohol treatment and counseling, including AA and classes in abuse alternatives, anger management and parenting. Defendant stated th at he has not had any al cohol to dr ink since enr olling in his alcoh ol treatm ent class
.
Defendant described t hat he had been regul arly employed since th is incident at Taco Bell, and was em ployed p rior to this incid ent. Defendant admitted to earli er incidents of abuse during w hich he s truck his w ife. He also admi tted to two (2) other offenses, includi ng disorderl y conduct and res istinga stop, frisk o r halt. Defendant explained thathe had been drinki ng and could not cont rol his own actions, although he den ied any p hysical alte rcations w ith the police
. Tammy Lunsford, t he Defendant’s wi fe, test ified t hat on February 12, 1997, she was working at

the time Alex

was injured. She called home on her br eak, and Defendant advised her t hat Alex had fallen of f the bed. Tammy Lunsford adv i sed the Defen dant, wh o was u pset, to call911 whi le s he found a way home from work. When she arrived ho me, the y were pu tting Alex into the ambu lance. Mrs. Lun sford described that Defendan t ha d bee n active ly involve d in the careta king o f his child since his birth as she ret urned to work only two (2) weeksafter Alex was born. They agreed that

one (1)of th em would stay ho me with Al ex to care for him. She had
neverpersonally wit nessed any incidents of abuse or obse rved any thing to ind icate thatAlex had been abused i n an y way by the De fendant. Tam my Luns ford descr ibed Defendant’s al cohol abuse, i ncluding dai ly dri nking and the r esulti ng pro ble ms with his an ger. She describe d that they would b e “at eac h other’s th roat,” and thatDefendant had smacked her as a result

on past occasi ons. However, s he-6-

did not beli ev e tha t Defendant was act ually at tempting to physically harm her and
was never inj ured by the abuse. Since Defendant had stoppeddrinkingalcohol and had taken the anger management class es, he contr olled hi s angerwhen they fought by going to a differen t room a nd calm ing dow n.

On cross-examinat ion, Tammy Lunsford admitted that she c hose to stay with the Defendant rat her than to r egain custody

of her son Alex. S he admitted t hat Defendant was untruthf ul with he r on the da y Alex was i njured about how the incident occurred.

In senten cing the D efenda nt, the trial cou rt stated tha t Defe nda nt was presumed to be a favor able candidate for alternative sentencing. The trial court stated the facts of

the case as follows: The alleged victim in the ca se was a six (6) m onth old bab y. Initially, the baby received a -- it was determined by medi cal experts the baby ha d received a f ractured skul l and subdural hematoma. The repor t indicat es this wa s a very seriou s injury. T his type of injury, p articula rly to a child, is known to the court that a chi ld’s skul l of that age would be more flexible a nd it would -- t han say that of an adu lt. The De fendan t, evidently, threwthe child into a bed. The chil d allegedl y hit a post and fell to the floor. The Defendant, af ter being - - fir

st inter viewed by t he police, just i ndicated t he child had f allen fr om the bed and that hecame in and found the baby l aying on thefloor on its back. And Mr. Lunsford advised authorities that he assumed the baby had fall en off the b ed. Initially the tri al court ob served that this was a crime of viol ence and t he Defendant was inelig ible for Co mm unity Cor rections d ue to the nature of t he c ri me involved. The trial court then o bserved that the Defendant was not t ruthfulin making his first statement to the poli ce. Eventually, the De fenda nt did a dmit th at “he lo st it and he pitched t he ba by, and the baby struck its head on a square bedpost footboard, which had jagged edges on it. The baby then fl ipped onto t he floor, and the baby eventuall y wound up on its s tomac h.” Defen dant also admitted other ac ts-7-

of violenc e in the prese ntenc e repo rt, in clud ing stri king his wi fe while s he was pregnant resulti ng in two (2)black eyes and a busted nose as noted by the tri al court. The detec tive who investig ated th e cas e indic ated in the presenten ce report thatthere were various d omest ic viol ence calls i n September, October and Novem ber 199 6.

As the chil d was partic ularly vulnerabl e because of his age and having no way to protect or d efend hi mself f rom his own father, the tria l court foun d that a priva te trustwas violated. The tri al court noted that according to Defendant’s pr ior cri minal record of misdemeanors, Defendant had been p lace d on som e type of alternative sentencing for each of these p rior offense s. The pre sentence report further indicat ed that theDefendant had not completed his high scho ol edu cation due to his involvement in fig hts and had used alcohol since the age of thirteen (13) and marijuanasince the age of f ifteen ( 15) or sixteen (16). At the time of

preparati on of the presentence rep ort, t he trialcourt noted that Defendant admitted his last

usage of marijua na was approxim ately one (1) mon th prior to the report.

Factors favori ng an alternat ive s ent ence included t hat Defendant was seek ing to “chan ge his wa ys . . . loves th e child and . . . shows remorse at t he injury .” The Defendant does have a histor y of empl oyment. Whil e there we re some favora ble factors, the trial co urt found that the unfavo rable fa ctors o utweig hed th e favor able ones and that al ternati ve sentencin g should be denied.

When impos ing a sen tence o f total confine ment, o ur Crim inal Sen te nci ng Reform Act man dates the trial court to bas e it s decision on the consider ations set f o rth in Tennessee Code Annotated section 40-35-103. These considerations which-8-

militate against alternat ive sentencing incl ude: the need to protect society by restrai ning a defendant havi ng a long history of cr iminal conduct , whether confinementis partic ularly appro priate to effective ly deter oth ers likely to co mm it a similar offense, th e need to avoid depreciati ng the seri ousness of the of fense, and the need to order confinement in cases in which less rest ricti ve measures have often or recently

been unsuccessful ly appli ed to the defendant. Tenn. Code Ann. § 40-35- 103(1). In the case sub judice , the trialcourt a ppare ntly relied upon the De fenda nt’s previouscriminal history , incl uding pr ior abusi ve assaults upon his wife while she
was pregna nt, to justify a sentence of total conf inement. I n additi on, the trial court
correc tly noted that the Defendant had recei ved alter native sentences for pri or convicti ons and had continued t o fail to conform hi s conduct to the law. Where a defen dant’s history

indicates a clear disregard for the l aw and morals of soci ety and
a failur e of past ef

forts to rehabili tate, t he tri al cou rt did no t abus e his d iscretio n in denying probatio n. State v. Chrism an , 885 S.W.2d 834, 840 (Tenn. Cr im. App. 1994).

In determining whether to gr ant probati on, the judge must cons ider the nature and circumstances of the offens e, the defenda nt’s cri minal record , his background and social history , his pres ent condit ion, inc luding hi s physical and mental conditi on, the deterrent

effect on other cri minal acti vity, and the li kelihood t hat proba tion is in the best intere sts of both the pu blic and the defend ant. Stiller v. State , 516 S.W.2d 617, 620 (Ten n. 1974). The burden is on t he defendant to show that t he sentence he received i s improper and t hat he is entitled to pr obation
. Ashby , 823 S.W.2d at 169. Defendant has failed to co nvince us tha t the trial c ourt er red. P articula rly relevant is Defe ndan t’s lack of t ruthful ness regardingthis of fense. While Defendant did initi ally l ie to hi s wife and to the police as to how Alexwas injured, he did corr ect-9-

his version of

the events at

a later date. However, i n his statement submitted on May 5, 199 7 for the prese ntenc e repo rt, Defe ndan t stated that he “accid entally bumped” his son ’s head on the bedp ost. Th is is contrary to an earli er versi on of the facts in which Defendan t admitted to pitchi ng the baby and i t stri king its head on the bedpost foot board. As aptly noted by the t rial court, truthfulnessby a de fenda nt is
a factor t hat may be consider ed in determi ning the approp riateness of probati on. State v. Dykes , 803 S.W .2d 250, 259 (Tenn. Crim . App. 1990 ). This is sue is without merit.

Final ly, it appears from Defendant’ s brief t hat he asserts variou s enhancemen t and mitigati ng factors wer e not appropri ately appl ied by thetrialcourt. However , as s ta ted within t he sentencing hearing, the Defendant pled gui lty pur suant to a negotiated plea agreement to a sentence of three (3) years as a Range I O ffender. W hile Defen dant m ay conte st the ma nner of s ervice of his sentence, there is no indicat ion that he di d not voluntarily agree to the l ength of the sentenc e. The sentencing hearing was hel d for the sol e purpose of al lowing the trialcour t to determine whether Defendant was eligi ble for alternative sentencing. Any argum ents as to the length of Defen dant’s se ntence are mo ot.

After a thoro ug h review of the brief , the recor

d and the law, we affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge-10-

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ L. T. LAFFERTY, Senior Judge