# FILED
September 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1998 SESSION

STATE OF TENNESSEE, * No. 01C01-9707-CC-00261

Appellee, * Rutherford County
vs. * Hon. James K. Cla yton, Jr., Judge MARK LOGAN, * (Sentencing)

Appellant. *

For Appellant : For Appellee : Stephen W. Pate John Knox Walkup Attorne y Attorney General & Repor ter 218 West Main Street Murfreesboro, TN 37130 Lisa A. Naylor Assistant Attorney Gener al 425 Fifth Avenue North Cordell Hull Buildi ng, Second Floor Nashville, TN 37243-0493 William C. W hitesell District Attorney General Third Floor Judicial Bui lding Murfreesboro, TN 37130 John W. Price Assistant District A

ttorney General Rutherford County Judici al Building Murfreesboro, TN 37130

OPINION FILED:___________________________
AFFIRMED GARY R. WADE, PRESIDING JUDGE1 It is the policy of this court to w ithhold the ide ntity of children in volved in se xual abu se. State v. Schimpf , 782 S.W .2d 186, 188 n.1 (Tenn. Crim . App. 1989). 2 OPINION The defendant, Mark Logan, entered ple as of guilt to attempted aggravated sexual

battery. The trial cour t imposed a Range I sentence of thr ee years. In this appeal of r ight, the defendant claims the tr ial court committed error by failing to grant probati on.

We affirm the judgment of the trial court.
Although the record does not include a transcript of the s ubmission hearing, the underlyi ng facts of the crime are apparent from the statement of the defendant. Pertinent portions provide as follows:

[The defendant] stated that he was ly ing on the sleeper sofa between [seven-year-old HM, a child of a neighbor] 1 and his daughter .... [He] stated that he started tickl ing [HM] and touched her on her bott om. [He] stated he starting rubbing on her

breast and then he stuck his h and down into her panties and s tarting rubbing her v

agina. [The defendant] stated he didn't penetrate i nto the vagina. [He] stated tha t he kissed her on the cheek and starting blowing

on her abdomen and he pulled her panties midway down , and blew on her bikini line. ...
Indicted for aggravated sexual battery, a Cl ass B felony, the defendant pled to a reduced charge as part of a plea bargain agreement. An attempt to commit aggravated sexual battery is a Cla ss C felony, which ha s a sentencing ran ge of three to six years for a Range I offender. Tenn. Code Ann. § 39- 12-107(a).

The defendant, twenty-nine years of age, has been ma rried for nearly ten years and has three young children. Although he did not complete high school, he attended Knoxville Ar ea Vocational School and earned a c ertificate in gasoline3 engine repair in 1989. The defendant works for Spaulding C omposites Company as a full-time maintenance helper, a position he ha s held since August of 1996. He gives his entire paycheck to his wife. He has good physical health, drinks only moderately, and, although he admitted to experimental use of mar ijuana in the past, he denied any present use of il legal drugs. Since September of 1996, he has attended counseling sessions at the Rutherford County Gui dance Center where a psychological ev

aluation of the defendant was performed. H e has no prior criminal record.
At the sentencing hearing , the defendant testified that a Safety Or der from the Department of Human Services required him to reside with his parents un til his counselors approved his return to his family home. In the interim, he vi sits with his children in the presence of his wife and a social worker on a weekly basis. He maintained that he had never abuse d either of his two daughte rs and had never abused any other child prior to committing this offense. H e maintained that this was an isolated incident.

The defendant attends group counseling once per week and testified that he has benefited as a result of hi s treatment. He expresse d a desire to participate in the sexual offender rehabilitation program so he could learn more about his problem and prevent any future incidents. He apo logized to the vic tim and her mother and recognize d that he had caused them pain and embarr assment.
When asked whether he had inappropriate impul ses toward young girls, including

his daughter, he informed the tr ial court that he did not. O n further questioning by the s

tate, however, he admitted that he had occasionally struggled with such thoughts. The psychological evaluation concluded as follows:4 The [defendant] denies any other episo des of sexual perpetration but admits he had "struggled" with the desire to perform sexual activ ity with a minor s ince his daughter was approximately one year old. He stated that his daughter had typically

been the focus of such thoughts prior to this incident, though he had always successfully resisted acting on this

impulse. The evaluation also indicat ed that the defendant may suffer from a learnin g disability.
Michael L. Logan, father of the defend ant, described his son as very quiet, reserved, and insecure. He testified that he had noticed improveme nt in these areas since the defendant had obtai ned counseling. Mr. Logan stated that he had observed the defendant with his daughters on numerous oc casions and never noticed any abnormal behavi or. While expressing "a very small reservation" about the defendant returning to liv e with his daughters,he informed the court that the defendant could live with him indefinitely. Incar ceration, he explained, w ould be a "catastrophe because [the defendant] is the sole breadwinner. .. . There would be no other income." Mr. Logan offered to help make sure the defendant complied w ith conditions of probation, if gr anted.
Mattie E. Logan, wife of the defendant, testif ied that she was unaware of the defendant's problem and had not witnessed any inappropriate behavior on his part. Although she and her dau ghters are aware of the i ncident, they do not feel threatened and want the defendant to come home. She stated that if the defendant were incarcerated, sh e would have no means of support and would lose her home.
Catina Lawrence, mother of the victim, testified that M H has experienced nightmares and is fearful of playing outdoors. Ms. Lawrence acknowledged that, althoug h the defendant did not physicall y injure MH, she w

as5 emotionally and mentally scarred as a result of his actions. Ms. Lawrence requested that the court deny probation.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the trial court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, and present condition, and the deterrent eff ect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

Especially mitigat

ed or standard offenders convict ed of Class C, D, or E felonies are presumed to be favor able candidates "for alternativ e sentencing6 options in the absence of evidenc e to the contrary." Tenn. Cod e Ann. § 40-35- 102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upo n its own facts." State v. Taylor , 744 S.W.2d 919, 922 (T enn. Crim. App. 1987).

The trial court denied probati on: [I]f he did what he said he did,with the child being seven years old, he's guil

ty of aggravated sex

ual battery, a class B felony .... [H]e's being convicted of a Class C felony for whatever r

eason. And I always c onsider probation. I have problems considering probation w ith sex offenders, however, because, ... the chances of him being rehabilitated are s lim. ... And I don't think he's been entirely honest with the Court. ... He may hav e been entirely honest [during

] the psychological evaluation. ... [T]he diagnostic impressions are pedophilia, and that's extremely hard to do any thing with.... The trial court ordered the defendant to participa te in counseling and to serve his sentence at the Rutherford County Workhouse.

The defendant contends that the trial cour t erred by failing to state the statutory basis for the deni al of probation. The 1989 Act does prov ide that the record of the sentencing hearing "shall include specific findin gs of fact upon which application of the sentencing pr inciples was based." Tenn. Code Ann. § 40-35-209(c). We are able to conclude that the record and the findings of the trial court are adequate to support the denial of probation.7 The nature and circumstances of the of fense may often be so egregious as to precl ude the grant of probation. See State v. Poe , 614 S.W.2d 403 (Tenn. Crim. App. 1981). Here, the defendan t sexually assaulted a seven-year-old girl entrusted to the care of him and his wife. The circumstances involved could have resulted in a conv iction of a Class B felony ha d the defendant proceeded to trial. A lack of candor may also militate against a grant of probation. State v. Bunch , 646 S.W.2d 158 (Te nn. 1983). The record supports the trial judge's conclusion that the defendant was reluctant to acknowledge his sexual impulses toward his own daughter. While denying having had sexual impulses toward his child, he had informed his counsel ors otherwise, as ev idenced by the psycholog ical evaluation.

Moreover, the trial court imposed a minimum sentence of thr ee years. Although an important sentencing consideration is to impose the least severe punishment necessary, the g rant of probation might tend to depr eciate the seriousness of this offense. Tenn. Code An n. § 40-35-103(1)(B).

Because sentencing requires an individualized, case-by-case approach, that method of analysis necessarily embodies the exercise of discretion at the trial court lev

el. See Moss , 727 S.W.2d at 235; State v. Fletcher , 805 S.W.2d 785 (Ten n. Crim. A pp. 1991 ). Thus, t here is a so und basi s for the presump tive correctn ess stand ard of ap pellate review:

It is not the policy or

purpose of this Court to plac e trial judges in a judicial s

trai[gh]t-jacket in this or any other area, and we are always reluctant to interfere with their traditional discretionar

y powers. Ashby , 823 S.W.2d at 171. That principle prevails here on the matter of probation. In our view, the tr

ial court acted withi n its discretion in deny ing probation.8 Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_________________________________ David G. Hayes, Judge

_________________________________ Jerry L. Smith, Jud ge