# FILED
June 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE CRIMINA

L COURT OF APPEALS OF TENN ESSEE AT KNOXVILLE JANUARY SESSION 1997

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9607-CC-00259 ) vs. ) Bradley County ) DAVID KEITH

LANE, ) Honorable R. Steven Bebb, Judge ) Appellant. ) (Statutory rape; official misconduct) )
For the Appellant : For the Appellee : At trial: JOHN KNOX WALKUP SCOTT KANA

VOS Attorney General & Reporter 166 N. Ocoee Street Cleveland, TN 37364 TIMO THY F . BE HAN Assistant Attorney General On motion to rehear: 450 James Robertson Par kway ROBERT W. RITCHIE Nashville, TN 37243-0493 P.O. Box 1126 Knoxville, TN 37901-1126 JERRY N. ESTES District Atto rney General On appeal: 10th Judicial Circuit KENNETH F. IRVINE, JR. 606 W. Main Street, Suite 350 REBBLE JOHNSON P.O. Box 84 Asst. Distri ct Attorney General Knoxville, TN 37901-008 4 10th Judicial Circuit

P.O. Box 1351 Clev

eland, TN 37364-1351

OPINION FILED: _____________

AFFIRMED
CURWOOD WITT, JUDGE1 As a matter of policy, this court does not name minors w ho are victims of sexual abuse. See State v. Schimpf , 782 S.W.2d 186, 188 n.1 (Tenn. Cr im. App. 2 OPINION

The defendant, Davi d Keith Lane, directly appeals from the sentencin g determination of the Bradley County C riminal Cour t. He wasindicted for three
cou nts of statutory rape (Tenn. Code A nn. § 39-13-506) and three counts of unlawful exercise of official power (Tenn. Code Ann. § 39-16-402), all being Class E felonies. The trial court accepted guilty pleas on all counts, andafter a sentencing hearing, the cou rt sentenced the appellant as a s tandard (Range I) offender to a two-year sentence on each of the six count s. T he three sentences for statutory rape were set to run concurrently, and the three sentences for off icial misconduct
were likewise set to ru n concurrently; however, the effective two-year sentence for the statuto ry rape cha rges wa s set to run consecutively to the official misconduct sentence. The resu lting eff ective aggregate sentence is four years to be served in the Tennessee Department of Correction

. In this appeal, the defendant raises the following sentencing issues:

(1) whether the trial court erred in app lying certain enhancement factors ; (2) whether the trial court erred in orde ring consecutive senten cing; and (3) whether the trial court erre d in failing to grant alternative se ntencing.

After a thorough review

of proceedi ngs i n the trial court and for the reasons explained below , the trial court’s ju dgment is affirmed.

At the time the offenses were commit ted in 1994, the defendant was approximately 29 years of age. He held a 1993 degree in psychology. H e was married and employed as a foster-care counselor

by the Tennessee Department of Human Services (DHS). His caseload included a l arge number of clients who were young people with a wide rang e of problems. One of these clients w as E.S., 1 a1989). 3

sixteen-year-old female who cam e to DHS because of a number of personal problems, including substance abuse and conflicts with her mother, a single parent. While serving as DHS c ounselor for E.S., defendant engaged in sexual intercourse with her on five occasions. On two occ asions he provided marij uana to E.S., and
on other occasions he provi ded her with cigaret tes. The victim testified at the sentencing hearing that she underwen t sixty-one days of inpatient counseling after these epi sodes occ urred, followed by additional counseling at Vander bilt. She testified that the defendant’s actions necessitated the co u nseling, at least in par t. Her mother testified that since thes e episodes E.S. has difficulty slee ping and is afraid to trust anyone. She asser ted that E.S. had looked to t he defendan t as a father figure in the absence of her real father. She stated that E.S. had drug- related problems prior to her sex ual activity w

ith the defendant.

The defendant’s father testified tha t the defendant is gainfully employed with the father in Virg inia, that the defendant is ver y remorseful and humiliated by his actions, and that the defendant is trying to hold together his family that includes his wife and young daughter. The defendant’s wife testified that she
was pregnant at

the time of the defendant’s sexual relationship with E. S. and that, at that time, he was under a lot of stress and was depressed. She acknowledged, however, her suspicion that defendant used marijuana. She stated that, at the time of the sentencing hearing, th e defendant was receiving counseling.

The defendant testified at the sentencing hea ring. He statedthat at the time of the illicit rel ationship withE.S. he was stressed by financial pressures, his wife’s physical pr

oblems, and a heavy casel oad at DHS. He was drinking excessivel y. He said that E.S. had drug and al cohol problem s and had a long historywith DHS before being assigned to him in 1993. At s ome pointhe realized she was becoming infatuated with h im. He testified that she initiated the sexual contact which began on August 9, 1994. He admitted that he knew on and before4

this date tha

t E.S. w as in a v

ulnerab le state . The defe ndant and E.S. fi rst h ad sexual relations in Knox County when the defendant tr ansported E.S. to a runaway shelter in Knoxvil le.

The presentence report shows that a few weeks after the defendant delivered E.S. to the Knoxville shelter, she called him and stated she had run away from the foster care in Sevier County in w hich she had been placed. The defendant wentto Sevier County l ate at night, picked her up in his car, and drove her to Hamilton County where they slept together at the ho use of one of his friends. During this last e pisode, th e appellant twice gav e marijuana to E.S. There are a total of five sexual encounters, th e first one in Knox County, the next one in Hamilton County, and the last three in Bradley County in October, 1994. In addition to supp lying the vi ctim with marijuana, the defendant gave her cigar ettes. After
rumors of these activitie s led to official inquiri es, the defendant admitted he had engaged in the sexual c onduct.

All of t h e issues raised by the defendant pertain to the sentence imposed by the court below. When there is a challen ge to the length, range, or
manner of service of a sentence, it i s the duty of this court to c onduct a d e novo review of the record with a pres umption that the d ete rminations made by the tri al court are correct. Tenn. Code Ann. §40-35-401(d) (1990). This presumption is “conditioned upon the affirm ative showi ng in the record that the trial court considered the se nte ncing principles and al l relevant facts and cir cumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the appellant.” Id . In the event the record fai ls to demonstrate the required consideration by the trial court, review of the sentence is purely de novo

. Id . If appellate review r eflects the trial court pr

operly considered

all relevant factors and its

findings of fact are adequately supported by the record, this court must aff irm the se ntence, “even if we wo uld have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).5 In making its sente ncing determination, the tr ial court, at the conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and the prop riety of sente ncing alternatives by considering (1) the evidence, if any, received at the trial and the sen tencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sent encing a lternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence andinformation offered by the parties on the enhancement and m i tigating factors; (6) any statements the defendant wi shes to make in the defendant’s behalf about sentencing; and (7) the potential for rehabilita tio n or treatment. Ten n. Code Ann. §40-35-210(a), (b) (Supp. 1996); Tenn. Code Ann. §40-35-103(5) (1990); State v. Holland , 860 S.W.2d 53, 60 (T enn. Cri m. App. 1993).

I. Sentence Enhancement.

The sentencing range for ea ch of th e Class E felonies of which the appellantwas convict ed is one t o two years. He was sentenced to the max imum of two years on each count and compl ains that these sentences are ex cessive. Specifi cally, he cites as error the tr ial court’s reliance upon each of the following enhancement factors :

(1) The defendant has a previous h istory of criminal convictions or cri minal behavior in additi on to those necessary to establish the appropriate range.(4) A victim of the offense was particularly vulnerable bec ause of age or physi cal or men tal disab ility.
(15) The defendant abused a position of public or private trust, or used a special skillin a manner that significantly facilitated the commission or the fulfillment of the offense. Tenn Code Ann. § 40-35-114(1), (4), (15) (Supp. 1996).

T he trial judge stated on the record that he relied upon the a bov e2 Defendant cites State v. Pete Fuqua , No. 01C01-9003-CC-00076 ( Tenn. Crim. App., Nashvill e, April 26, 1991), perm. app. denied (Tenn. 1991), for the proposition that records of pr ior criminal charges

which have been dismis sed cannot serve to justify

a finding of a history of cr iminal behavior. Pete Fuqua , slip. op. at 16. Howev

er, in Fuquathis court held that the record supported the trial judge’s finding of a prior history of criminal behavior. We note d that such record included, in part,a criminal trespass conv iction which was

“dismissed” after the defendant had “made restitution and paid the court costs.” Id

. 6 enhancementfactors. As a mitigating factor, he relie d upon the fact that the defendant cooperated with the investigating officer. The trial court supported its use of the various factors with findings of fact. Therefore, we review the trial court’s sentence determination with a presumption of correctn ess.

a. Enhancement factor (1).

In finding t hat the d efenda nt had a p revi ous his tory of criminal behavior, the trial court reli ed upon an expunged North Dak ota felony the ft conviction. The record reflects that the judgment of this conviction was entered in 1984 upon the defendant’s guilty plea.The defendant was placed on probati on for
a period of five years. The or der provided that, upon completion of probation, the defendant could apply to the North Dakotacourt to withdraw the pl ea, dissolve the judgmentof conviction, and have the re cord expu nged. The defendant took this action, and the North Dakota c ourt dismissed the proceeding on March 4, 1993.

The state in its

appellate brief concedes that the trial court should not have used the

North Dakota co nvicti on as evidence o f a p rior history of cri minal convictions

. However, the trial courtview ed the plea as evidence supp orting a finding of prior

history of criminal behavior

. 2 A previous history of criminal behavior maybe shown by

competent evidence of such behav ior, even though the behav ior did not result in any criminal convict ion. Tenn. R. Evid. 404(b) . A form of competentevidence in this regard is an admission of a party under Tennessee Rule of Eviden ce 803(1 .2). A g uilty plea, su ch as the one ente red in t he defe nd ant’s3 Based upon the distinction made in Pizzillo v. Pizzillo , 884 S.W.2d 749,

755 (Tenn. App. 1994), between jud icial diversion, Tenn.Code Ann. § 40-35-313 (Supp. 1996), and pretrial di version, Tenn. Code Ann. § 40- 15-101 to -105 (Supp. 1996), the North Dakot a procedure was more aki n to the Tennessee judicial diversion because, like our judicial diversion, a guilty plea is entered

. However, this dis

tinction has no impact on the i ssues now under revi ew. Pizzillo , 884 S.W.2d at 755.
7 North Dakota case, is suc h an admission; however, “[s]tatues may affect whether
a particular statement is an evidentiary admiss ion.” Neil P. Cohenet al, Tennessee Law of Evidence § 803(1.2).10 (3rd ed. 1995). It is obvious from the record of the North Dakota conviction that the plea, the probation, the withdrawal of the

plea, and the dismissal of the charges were governed by North Dakota statutes which a llowed fordismis

sal of th e case an d expungement of the re cord upon successful completion of probation. These statutes have an application and effect similar t o Tennessee’s pretrial diversi on under Tennessee Code Annotated sections 40-15- 101 to-105. 3 In Pizzillo v. Pizzillo , 884 S.W.2d 749 (Tenn. App. 1994) , th e issue was the admissibility of inculpatory statements of a party that were contained in a memorandum of understanding that was fil ed in a pretr ial diver sion of a previous criminal proceeding. In Pizzillo, the court held that “records expung ed following the successful completion of a pretri al dive rsion program cannot be used as judicial admissionsor to impeach a person’s credibility.” Id. at 755. Based on Pizzillo the North Dakota gu ilty plea, even as an admission apart from the convi ction, is not admissible as evidence of cr iminal behavior of the appell ant.

13 b. Factor (4)

.
The trial court relied upon the particular vulner ability of the victi m as an enhancement factor because “of her age, and because of her mental condition.” In its brief the

state concedes this factor is not applicable. The

victim was six

teen years of a ge at th e time the offenses were committed. Although there was proof that t he victim was in need of counseling and other remedial assistance p rior t o8

August 9, 1994, there is no proof she labored under a mental or physica l disabili ty. There is no contradiction that the sexual activity between the defendant and victim
was consensual, and in some instanc es, it is clear that she i n itiated t he activit y. Based upon the record, the enhancement of the sentenc es through factor (4) is not justified. The enhancement factor is applicable in a sex

-offense case when a victim,
as a result of age or n at ural physical or mental limitations, is unable to resist the commission of the offense, to summon help, or to testify against the offender. State
v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995). In the case before us, there are no such inabilities. See State v. Chad Douglas Poole , ____ S.W.2d

____ (No. 02-S-01-9607-CC-00064 (Tenn., atJackson, May 12, 1997); State v. Ada ms , 864 S.W.2d 31, 35-36 (Tenn. 1993).

c. Factor (15)

.

The trial cou rt found that factor (15) applies becaus e defendant abused a position of

public or private trust. The enhancement factors enumerated in Tennessee Code Annotated section 40-35-114 are not

applicable when they are “themselves

essential elements o f the offense.” Tenn. Code Ann. § 40-35-114 (Supp. 1996). Three of defendant’s convic tions were basedupon Code section 39- 16-402 which, in part, provides:

(a) A public servant commits an offense who,with intent to obtai n a benef it or to ha rm anoth er, inten tionally o r knowingly:

(1) Commits an act relating to the servan t’ s office or employment

that constitutes an una uthorized exercise of official power; (2) Commits an act under color of office or employment that exceeds the servant’s official power;

(3) Refrains from performing a duty that is imposed by law or that is clearly

inherent in the nature of the p ublic servant’s office or employment;

(4) Violates a law relating to thepublic servant’s office or employment; or

(5) Receives any benefit not otherwise auth ori zed by law. (b) For purposes of subdivis ion (a)(2), a public servant commits an act u nde r color of office or employment w ho acts or purports to act in an official capacity or takes adva ntage of such actual or purporte d capacit y.4 Despite the state’s inv itation, we decline to c

onsider whether the defendant, while acting under color of office or authority, may also have abused a privatetrust. There was evidence to support the defendant’s role as a “fath er” figure, and this role may have had its origin in his personal, as opposed to his professional, relationship t o the victim. Howev

er, this is a very

subtle distinction, and the mental gymnastics r equired to sort it out ar e, we confess, too balletic for us to master! 9 Tenn. Code Ann. § 39-16-402 (1990). The abuse of a p osition of public trust is clearlyan element of the offense as alleged in the i ndictment under section 39-16- 402. As such, factor (15) is not available to enhance the sentences for the official misconduct convictions. 4 The factor is available to enhanc e the st atutory rape sentences. In the sentencing hearing , however, the trial judge did n ot limit his consideration of factor (15) to the statutory rape cases.

d. Application and weight of the factors.

The record supports the en hance ment of the statutory rape sentenc es through factor (15). Even tho ug h the official misconduct sentences may not be enhanced by the use of this factor, and ev en though none of the sentences may be
en hanced throug h the use of factor (4), we find that all of the senten ces are enhanced through the use of factor (1). We hold that the use of factor (1) is proper and is entitled to significant w eight, despite our conclu sion, discussed in section I(a), supra , that the trial court shoul d not have used the ex punged North Dakota conviction as a basis for applying this factor.

Upon ou r de novo review we may consider any enhancement (or mitigating) factors supported by the record even if such factors were not re lied upon bythe trial court. State v. Ada ms , 864 S.W.2d 31, 34 (T enn.1993). We readily di sce rn from the record evidence of pri or criminal behavior which was either confessed by the defendant or was not c ontroverted. The defendant’s gui lty pleas in the case before us embrace three episodes o f illicit sexual i ntercourse that occurred in October, 1994, in Bradley County. These episodes w ere preceded,10

however, by similar episodes which occurred in August, 1994, in Knox County and
a few weeks later in H amilton County . Furthermore, there is e vidence that the defendant not only possessed and used mar ijuana but

i llegally distri buted the controlled substance on two occasion s to the minor victim. Also, the d efen dant contributed to the delinquency of this victim by surr eptiti ously removing her from Sevier County after sh e abscon ded from h er law fu l custodia l placement. These actions demonstrate a previous his tory of criminalbehavior that justifies the use of factor (1) to enhance the sentences i n this case. After considering the record as a whole, together with all applicable enhancement factors and th e mitigatingfactor,
we hold that th e enh ancement of each sentence to the m aximum of two years is appropriate. The trial court ’s determi nation in this regard, therefore, will not be disturbed.

II. Consecutive Sentencing

.

The trial court basedits consecutive sentenc ing determination upon Tennessee Code Annotated section 40-35 -115(b)(5), which provides:

(b) The court may order s entences to run consecutiv ely if the court finds by a preponderanc e of the evidence that :

. . . (5) The defen dant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating circumstances arising from the

relationship between the defendant and victim or victi ms, the time span of defendant’s undetected sexual activity, the nature and scope of the sexual acts and the ex tent of the residual, physical and mental damage to the victim o r victims. Tenn. Code Ann. § 40-35-115(b)(5) (1990) (emphasis added). The circumstances which the court found tosupport itsreliance on section 40-35- 115(b)(5) are: (1) The time span between the offens es, although not great, is significant; (2) the relationship between the defendant and the victim was a special relati onship; and (3) there w

as residual

physical or mental dam age to the v ictim.

The defendant relies upon Wilkerson , 905 S.W.2d 933. He contends th e trial court did not find nor does the record support a findi ng that consec utiv e11

sentences were necessary to protect the public from further criminal conduct ofthe defendant and that the aggregate length of the sentences is related to the severity of the offenses. Indeed, the record contains no findings on either account.

It is not cogently clear, however, that Wilkerson applies to any case other than on e involvin g the sentencing of a danger ous offender under § 40-35- 115(b)(4). The opinion in Wilkerson may be fai rly construe d to apply only to
consecu tive sentencing of dangerous offende rs. It held that “the impositi on of
consecu tive sentences on an offender found to be adangerous offender requires, in addition to the applicat ion of the gene ral principles of sentencing, the finding that
an extended sentence is necess ary to protect the publi c ... and that [i t] m ust reasonably relate to the severity of the o ffe nses committed.” Wilkerson , 905 S.W.2d at 939 (emphasis added).

Pre- Wilkerson law is equivocal on the issue of the non-statutory requirements

applying to consecuti

ve sentencing und ersection 40-35-115(b)(5). The genesis of the requirement that the trial court make a finding “that confinement for su ch a term is necessary in order to protect the public from further cri mina l conduct by the defendant” is Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976), but Gray is also a dangerous offender cas e. It was reasonable to under stand Gray

to applyonly to con secutive sentencing for dangerous offenders or otherwise only

to the five categories of offenders for w hom consecutive sente ncing sho uld be reserved under Gray . When the supreme court added a consecuti ve sentencing categoryfor offenders committing two or more offenses of sexual abuse to minors in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), it made no mention of the requirement

that the trial court find that consecutiv e sentenc ing is necessary t o protect the p ublic (although it did indicate the trial court should bear “in mind the general objectives set

forth in Gray”.) Id . at 230. Taylor contributed the requirement that the aggregate

of the co nsecutive sentences must be reasonably related to the severity of the offenses, but when the legisl ature codified the categories established5 In David L. McClure , the time for filing an applic ation for permission to appeal to the supreme court does not expire until 60 days

after April 30, 1997. Tenn. R. Crim. P. 11(b). 12 in Gray and Taylor , see Tenn. Code Ann. § 40-35-115(b)(1990), it made no mention of any requirement for the tri al court to make either finding

. But see Tenn. Code Ann. § 40-35-115, Sentencing Comm’n Commen ts (1990).

After the 1989 sentencing enactment, this c ourt reviewed a number of cases in whi ch consec utive sent ences we re ord ered under section 40-35- 115(b)(5 ), and ess entially t wo different approac hes emer ged. In so me cases , we indicated the trial c ourt should have considered w hether extended terms of confinement were necessary to protect the pub lic and that such terms could be imposed only wh ere this necessity was pr esent. See State v. John James , No. 01C01-9601-CR-00016, slip op. at15-17 (Tenn. Crim. App., Nashvil le, March 27, 1997); State v. Jer nigan , 929 S.W.2d 391, 399 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996); State v. Desirey , 909 S.W.2d 20 (Tenn. Crim

. App.), perm. app. denied (Tenn. 1995) ; State v. Barry Woodcock , No. 01C01-9503-CC-00087, slip op. at 18-20, (Tenn. Crim. App.,N ash ville, December 15, 1995) ; State v. Edward Frank Henry , N o. 01C01-900 3-CC-00050 , slip op. at 10-12 (Tenn. Crim. App., Nashville, Nove mber 29, 1990), affirmed i n relevant part, 834 S.W.2d 273 (Tenn. 1992). (Woodcock was filed December 15,1995, after Wilkerson , but did not refer to Wilkerson .) In other § 40-35-115(b) (5) cases, we a ffirme d consecu tive sentencing if sufficient statutor y aggravating

circumstances were pr esent, without referring to the r

equire ments of Gray , W ilkerson , and Taylor that additional elements be present. See State v. David L. McClure , No. 01C01-9505-CR-00145, slip op. at 15-1 6 (Ten n. Crim. App., Nashvil le, April 30, 1997) 5 ; State v. Charles David Castro , No. 01C01-9408-C C-0027 3 (Tenn. Crim. App., Nashv ille, April 13, 1995); State v. Perry Riley , No. 01C01-9201-CR-00040 ( Tenn. Crim. App., Nashville, October 22 , 1992), perm. app. denied (Tenn. 1993).

We note in passing that the Tennessee Criminal Sentencing Reform13

Act of 1989 essentially captures the Taylor

(and Wilkerson ) requirement t hat the aggregate

length of the sente n ce must reasonably relate to the severity of the crimes. One of the principles of the Act is to assure that defendants be punished “by the imposition of a

sentence justly deserv ed in relation to the seri ousness of the offense.” Tenn. Code Ann. § 40-35-102(1) (Supp. 1996). Further, the Act provides that the “sentence imposed should be no greater than that deserved for the offense committed.” Tenn. Code Ann. § 40-35-103(2) (1990). Trial courts which conside r the principles of

sentencing in their sentencing determinations, as they are requir ed t o do pu rsuant to Code section 40-35- 210(b), automatically c onsider the factor announced in Taylor

.

In our view, the consecutive sentencing in this case must be affirmed based upon either of

two grounds. Fir

st, as noted above, we find no constraint that Wilkerson applies to the sentencing in this case. We note that the reason for the rule in Wilke rson , that consecutive sentencing be supported by a need to protect society from further criminal acts of the defendant, is not as evident in cases, such6 The defendant in the case bef ore us was sentenced as a standard

(Range I) offender. The Release El igibility Date for the effective four-year sentenc e is 7.2 mo nths long er than th e Release Eligibilit y Date for an effe ctive sentence of two years. Tenn. Code Ann. § 40-35-501(c) (Supp. 19 96). In Barry Woodcock , slip op. at 1, the effective sentence is 18 years; in Jernigan , 929 S.W.2d at 393, 10 years; in Henry , 834 S.W.2d at 274, 5 0 years; and in Desirey , 909 S.W.2d at 23, 18 years.
14 as the one now

before us, in which the established sentences are relatively short

. The need to protect society has a rational connection to orderi ng the service of longer sentences i n seriatim.However, wher e the aggregate time to be served in confinement does not varysignificantly w hether the sentences

run concurrently or consecutively, the reason for the rule is less compelling. 6 In Taylor , the supreme court acknowledged that the formul aic regimen set forth in Gray was inadequate to deal with multiple cases of sexual abuse of a minor. Similarily, the r ule of Wilke rson m ay be inapposite to the sentenc ing requirements for cas es involving short sentences.

Further elucidation by the supreme court would be well-receiv ed, but if Wilkerson is not applicable to the case at bar, the presumption of correctness of the trial court’s ruling is intact, and the consecutiv e sentencing is supported in the record. We agree with the trial court that

the record supports

the findings that (1) the relationship between the defendant and the victim, being an official relationship,
was important; (2) the

time span of t he offense s, although short, was “significant”; and (3) mental damage to the vi ctim, alt hough not proven to be ex tensive, was established in the record. These facts support a finding that sufficient agg ravating circumstances exist under section 40-35-115(b)(5).

The s econd ground supporting t he consecutive sentencing in this case
assumes the applic

abilit y of Wilkerson

. Under this approach, in our de novo review of the trial court’s action we first exami ne the relationship of the aggrega te effe ctive sentence to the severity of the offense committed. In view of the ex istence of a number of uncha rged off enses, a nd given th e fact th at the se x o ffen ses were7 We re cognize th at a more logical ord ering of t he sente nces would have

linked a statutory rape conviction with an official misconduct conviction to run concurrently. Had thes e three effective sentences of tw o years each been set to run consecutively, the aggregate sentence would have been six years. 15 exacerbated by the defendant furn ishing a controlled substance to the juvenile victim, we hold the

aggregate length of

the sentences is reasonably related to the severity of these offenses.

Next, we must examine the record to determine if the exten ded terms of confinement are necessary to protect the public from further criminal conduct of the appellant. We are aware that a number of witnesses testified at the sentencing hearing, one of whom was the defendant. Furthermore: The trial court, as the

trier of fact at sentencing hearings , has the opportunity to observ e the manner and the demeanor of witnesses. Consequently, this court gives great w eight to the det erminationsmade by the trial co urt concerning th e credibility of witnesses[.] State v. Melvin , 913 S.W.2d 195, 202 (Tenn. Crim. App.), perm. app. denied (Tenn. 199 5). We find that under the unique facts of this case, the as sessment of credibili ty, particularly the cr edibility of the defendant, is critical in determini ng the necessity

of protecting the

public from further criminal acts of the defendant. The trial judge made no f indi ngs on these issues and did not reflect upon the need to protect the public, but in commenting upon the evidence at

a hearing that was held upon the defendant’s motion for a new sent encing hearing, the trial judge expressed his view that the defendant was more remorseful abo ut what had happened to him than about what had happene d to the vic

tim.

Furthermore we are troubled that the defendant’s test i mony is not attenti ve to the issues of possessing , using, and distributi ng to aminor a controlled substance. The defendant’s testimony evinces a lack of accountabi lity for at least t his aspect of his conduct. We hold that the lack of remor se and respons ibilit y supports a finding that the limited 7 consecut ive sentencing is necessary to protect the public from further criminal conduct of the defendant.16 Accordin gly, the trial court’s setting of consecutive sentenc es will not be disturbed.

III. Alternative Sen tencing.

The trial court’s decision to deny alternative sent

encing is stated in the record without elaboration ex cept that the trial court refers to deterrence and to the North Dakot a conviction (that w as dissolved and expunged). No reference was made to the sentencing princi pl es nor were there any o ther findings of fact. For these reasons, this aspect of the sentencing determination co mes to us for de novo review, without the presumption of correctness.

Initiallywe note that, for the reasons stated in Section I of this opinion, neither the North Dakota co nviction nor the underly ing admission of theft may be considered for purposes of denial of alternativ e senten cing. Furthermore, the record is devoid of

any proof of any particularized need for deterrence in the case before us, and for this reason, denial of alternat ive sentencing based on deterrence is not justified. State v. Zeoila , 928 S.W.2d 457, 461 -62 (Tenn. Crim. App. 1996); State v. Bingham , 910 S.W. 2d 448 , 4 55 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995).

The defendant is clearly eligible f or altern ative sentencing in general, Tenn. Code Ann. §40-35-102(5), (6) (Supp. 1996), and he is eligibl e for probation
as a particular alternati

ve to confinement. Tenn. Code Ann. § 40-35-102(6) (Su pp. 1996). The trial court is automati cally required to consider probation as a “ part of the sentencing determination a t the conclusion of

the sentencing hearing.” Tenn. Code Ann. § 40-35-303(b) ( Supp. 1996). The presumption of suitabi lity for alternatives

to confinemen t m ay be overcome by ev idence to the contrary. Id

. Although defendant

is pres umed to be

a fa vorab le candid ate for a lternati ve sentencing, the burden rests with the defendant to

show suitability

for probation as17

a particular form of alternativ e sentencing. Id .; State v. Kyte , 874 S.W.2d 631, 633 (Tenn. Crim. App. 1993).

When the defendant has requested alternativ e sentencing, we look first to the presumption of favorable candidacy and to the presence or absence of evidenc e t hat would overcome the pr esumption. Our analysis includes the considerations

enumerated in Tennessee Code Annotatedsections 40-35-210(b) and 1 03(5). One of these considerations is the “nature and characteris tics of the criminal conduct involved.” Tenn. Code Ann. § 4 0-35-210(b)(4) (Supp. 1996) ; Ashby , 823 S.W.2d at 169. In addition, we utiliz e the cons iderations for ordering confinement that appear in Code section 40- 35-103( 1). One of these is semantically linked to the nature and cir cumstances of the offense. It is the consideration found in § 40-35-103(1)(B): C onfinement may be orderedwhen it is “necessaryto avoid depreciating the seriousness of the

offense.” Tenn. Code Ann. § 40-35-103(1)(B) (1990)

.

The nexus between the nature and circumstances of the offense and sentencing to avoid depreciatingthe seriousness of the offense is w ell recognized, State v. Hartley , 818 S.W.2d 370, 375 ( Tenn. Cri m. App. 1991). The nature and circumstances

of the offense may se rve as the sole basis for denying probation when they

are “especially violen t, horrifying, shocking, reprehensibl e, offensive or otherwise of an excessive o rexaggerated degree;and it would have to be clear that, therefore, the nature of the offense, as committed, outweighed a ll other factors

... which might

be favorable to a grant of probation.” State v,. Travis , 622 S.W.2d 529, 534 (Tenn. 1981); see also State v. Clea vor , 691 S.W.2d 541, 543 (Tenn. 1985). “This standard has essentially been codified in the fir st part of T.C.A. Section 40-35-103(1)(B) which provides for confinement if it is necessary to avoid depreciating the seriousnes s of t he offense.” Hartley , 818 S.W.2d at 375. T hus, under the first clause of section 40- 35-102(1)(B), the Travis qua li fiers assist the court in determining when the need to avoid dep reciati ng the seriousness of the18

offense overcomes the presumption of suitability for alternative sentencing. While the statute speaks in terms o f overcom ing the presumption , sufficient contrary evidence, typicall

y, also defeats the defenda nt’s claim to alte rnative sentenc ing.

In the case now before us, the r ecord shows ample evi dence to
over c ome the presu mption o f suitab ility for a lternati ve senten cing and t o justif y a denial of same. There were two uncharged incidents of statutory rape and at least fouruncharged incidents of official miscond uct , including, in additi on to sexual intercourse between a DHS counselor and a juv enile girl who was placed in his care, two i ncidents whe n t hi s c ou ns el or di st ri bu te d i ll eg al dr ug s to t he ch il d. We observe that

this was a girl

who was under DHS supervision in the beginning due to her involvement

with controlled substances. The defendant provided marijuana to the victim while the victim was in fli ght from her custodial placement, that flight bein g facilitated late at night b y the defendant. If, arguendo , none of the othe r Travis qualif iers can be said to apply, the nature and circumstances of the defendant’s conduct toward the vi ctim from August through October, 1994, are clearlyreprehensible. We find that they outw eigh all other factors fav oring alternat ive sentencing and, the re fore, confinement is necessary to avoid depreciating the seriousness of the offens e. Furthermore, as we no ted in the preceding section, a lack of remor se , State v. Pierson , 678 S.W.2d 905 (Tenn. 1984) and an unwillingness to acceptresponsibility for one’s criminal conduct, State
v. Andrew H. Leone , No. 02C01-92 06-CR- 00148, slip op. at 3 (Tenn. Cri m. App., Jackson, September 9, 1993), may serv e as g rounds to deny probation, and the record reflects a basis for applying these factors . For these reasons, we hold tha t the trial court’s denial

of alternative sentencing will not be disturbe

d

IV. Conclusion.
The judgment of the trial court i s affirmed.19 ________________________ Curwood Wi tt, Judge

CONCUR:

________________________ Gary R. Wad e, Judge

________________________ William M. Barker, Judge