IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1998 SESSION FILED January 13, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9710-CR-00410 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, HOWARD EPPS, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
PAULA SKAHAN JOHN KNOX WALKUP 140 North Third St. Attorney General & Reporter Memphis, TN 38103 DOUGLAS D. HIMES Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JAMES A. WAX, JR. and GLEN BAITY Asst. District Attorney General 201 Poplar Ave., Third Fl. Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
On February 20, 1996, the defendant was indicted for rape of child in
violation of T.C.A. § 39-13-522. On September 16, 1997, the defendant pled guilty to
rape pursuant to a plea bargain agreement and received an eight year sentence. After
a sentencing hearing, the defendant was sentenced as a Range I offender to eight years
to be served in the Tennessee Department of Correction.1 On appeal, the defendant
contends that the trial court erred in denying him full probation rather than incarceration.
After a review of the record and the applicable law, we affirm the
defendant’s sentence.
The defendant was indicted for acts of molestation that occurred from 1990
through 1995. The proof showed that the defendant sexually molested his next door
neighbor’s daughter on at least several occasions.2 The defendant was best friends with
his neighbor and they often drank beer at each other’s house on week nights. The
defendant’s wife would often babysit for the neighbors while they were at work. When
the victim was about seven years old, the defendant began to touch her vaginal area with
his mouth and hands. The defendant then told the victim if she told anyone he would kill
her.3 This abuse continued until the victim reached twelve years of age. It was at this
1 The s entenc ing court d id leave op en the po ssibility that the de fendan t could be senten ced to a secured mental facility. However, the transcript of the subsequent hearing that was held on October 15, 1997, with regard to this issue was not included in the record on appeal. The defendant contends that th is tran scrip t is irre levan t bec aus e not hing h app ene d at th at he aring exc ept th at the cour t’s judgment was executed and the question of a secured mental facility that would accept the defendant was not addressed because the defendant was released on an appeal bond.
2 Although the record is not entirely clear as to exactly how many times the defendant molested the victim, it is clear that the molestation occurred over a five year period and included several incidents.
3 The record on appeal included a letter written by the defendant’s granddaughter in which she described at least one incident where the defendant touched her breasts and vaginal area but stopped whe n ask ed. T he de fend ant’s gran dda ugh ter als o wro te tha t the d efen dan t had neve r thre aten ed he r in
2 point that her parents began noticing behavioral problems and ended up sending her to
Lakeside Hospital. It was here that the victim finally “told” on the defendant.
After the police were notified and the defendant was questioned with regard
to the allegations, the defendant began to suffer from depression. The defendant was
put into the hospital where he attempted suicide. It was at this point that he received
electric shock therapy as a treatment for his depression. This therapy apparently caused
a temporary loss of memory. In addition, the defendant’s current doctor testified that he
believes the defendant is now suffering from Alzheimer’s disease which has resulted in
the rapid and severe deterioration of the defendant’s memory. The defendant also
suffers from severe hypertensive cardiovascular disease, myocardial ischemia, angina,
high blood pressure, and tremors.
The defendant now contends that the trial court erred in denying him full
probation based on the nature of the offense when the offense was not of an excessive
or exaggerated degree and was not outweighed by other factors and where the
defendant has no memory of the offense and there is no danger of his committing
another offense.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
any w ay.
3 169 (Tenn. 1991).
The defendant bears the burden of showing that the sentence was
improper. Id. In determining whether the defendant has met this burden, this Court must
consider (a) the evidence adduced at trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the
nature and characteristics of the offense; and (f) the defendant’s potential or lack of
potential for rehabilitation or treatment. T.C.A. § 40-35-103(5), 40-35-210(b).
The defendant insists that he should have received full probation. We note
that the defendant has the burden of establishing suitability for full probation. T.C.A. §
40-35-303(b). “To meet the burden of establishing suitability for full probation, the
defendant must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990)). The defendant has not met this burden.
The defendant argues that the only basis upon which the trial court relied
in denying probation was the nature and circumstance of the offense which, in this case,
was not enough to justify a denial of probation. The trial judge actually stated that
“because of the enormity of this situation that it would depreciate the seriousness of this
offense if the Court granted probation in this matter at this time. I don’t think the
defendant would benefit by the Court granting it either. Society wouldn’t.”
In order for a trial court to “deny an alternative sentence based on the
seriousness of the offense, ‘the circumstances of the offense as committed must be
4 especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1998 SESSION FILED January 13, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9710-CR-00410 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, HOWARD EPPS, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
PAULA SKAHAN JOHN KNOX WALKUP 140 North Third St. Attorney General & Reporter Memphis, TN 38103 DOUGLAS D. HIMES Asst. Attorney General 425 Fifth Ave., North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JAMES A. WAX, JR. and GLEN BAITY Asst. District Attorney General 201 Poplar Ave., Third Fl. Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOHN H. PEAY, Judge OPINION
On February 20, 1996, the defendant was indicted for rape of child in
violation of T.C.A. § 39-13-522. On September 16, 1997, the defendant pled guilty to
rape pursuant to a plea bargain agreement and received an eight year sentence. After
a sentencing hearing, the defendant was sentenced as a Range I offender to eight years
to be served in the Tennessee Department of Correction.1 On appeal, the defendant
contends that the trial court erred in denying him full probation rather than incarceration.
After a review of the record and the applicable law, we affirm the
defendant’s sentence.
The defendant was indicted for acts of molestation that occurred from 1990
through 1995. The proof showed that the defendant sexually molested his next door
neighbor’s daughter on at least several occasions.2 The defendant was best friends with
his neighbor and they often drank beer at each other’s house on week nights. The
defendant’s wife would often babysit for the neighbors while they were at work. When
the victim was about seven years old, the defendant began to touch her vaginal area with
his mouth and hands. The defendant then told the victim if she told anyone he would kill
her.3 This abuse continued until the victim reached twelve years of age. It was at this
1 The s entenc ing court d id leave op en the po ssibility that the de fendan t could be senten ced to a secured mental facility. However, the transcript of the subsequent hearing that was held on October 15, 1997, with regard to this issue was not included in the record on appeal. The defendant contends that th is tran scrip t is irre levan t bec aus e not hing h app ene d at th at he aring exc ept th at the cour t’s judgment was executed and the question of a secured mental facility that would accept the defendant was not addressed because the defendant was released on an appeal bond.
2 Although the record is not entirely clear as to exactly how many times the defendant molested the victim, it is clear that the molestation occurred over a five year period and included several incidents.
3 The record on appeal included a letter written by the defendant’s granddaughter in which she described at least one incident where the defendant touched her breasts and vaginal area but stopped whe n ask ed. T he de fend ant’s gran dda ugh ter als o wro te tha t the d efen dan t had neve r thre aten ed he r in
2 point that her parents began noticing behavioral problems and ended up sending her to
Lakeside Hospital. It was here that the victim finally “told” on the defendant.
After the police were notified and the defendant was questioned with regard
to the allegations, the defendant began to suffer from depression. The defendant was
put into the hospital where he attempted suicide. It was at this point that he received
electric shock therapy as a treatment for his depression. This therapy apparently caused
a temporary loss of memory. In addition, the defendant’s current doctor testified that he
believes the defendant is now suffering from Alzheimer’s disease which has resulted in
the rapid and severe deterioration of the defendant’s memory. The defendant also
suffers from severe hypertensive cardiovascular disease, myocardial ischemia, angina,
high blood pressure, and tremors.
The defendant now contends that the trial court erred in denying him full
probation based on the nature of the offense when the offense was not of an excessive
or exaggerated degree and was not outweighed by other factors and where the
defendant has no memory of the offense and there is no danger of his committing
another offense.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
any w ay.
3 169 (Tenn. 1991).
The defendant bears the burden of showing that the sentence was
improper. Id. In determining whether the defendant has met this burden, this Court must
consider (a) the evidence adduced at trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the
nature and characteristics of the offense; and (f) the defendant’s potential or lack of
potential for rehabilitation or treatment. T.C.A. § 40-35-103(5), 40-35-210(b).
The defendant insists that he should have received full probation. We note
that the defendant has the burden of establishing suitability for full probation. T.C.A. §
40-35-303(b). “To meet the burden of establishing suitability for full probation, the
defendant must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990)). The defendant has not met this burden.
The defendant argues that the only basis upon which the trial court relied
in denying probation was the nature and circumstance of the offense which, in this case,
was not enough to justify a denial of probation. The trial judge actually stated that
“because of the enormity of this situation that it would depreciate the seriousness of this
offense if the Court granted probation in this matter at this time. I don’t think the
defendant would benefit by the Court granting it either. Society wouldn’t.”
In order for a trial court to “deny an alternative sentence based on the
seriousness of the offense, ‘the circumstances of the offense as committed must be
4 especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors
favoring a sentence other than confinement.” Bingham, 910 S.W.2d at 454 (quoting
State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). It is the opinion of
this Court that the young age of the victim, the fact that this abuse occurred over a span
of five years, the violation of a position of private trust and the circumstances surrounding
the incident4 are enough to support a finding that the defendant’s conduct was shocking,
reprehensible and offensive to such a degree that the nature of the offense outweighs
all factors favoring a sentence other than confinement.5 See State v. Boston, 938
S.W.2d 435, 438 (Tenn. Crim. App. 1996). Therefore, the record clearly supports the trial
court’s finding that confinement was necessary in order to avoid depreciating the
seriousness of the offense.
The trial court’s denial of alternative sentencing is also supported by the
defendant’s long history of criminal conduct with regard to the victim (and evidently his
granddaughter), indicating a lack of potential for rehabilitation. This indication is further
supported by the allegations of abuse made by the defendant’s granddaughter.
We note that the defendant’s brief goes into detailed argument regarding
the defendant’s lack of memory regarding the offense. The defendant argues that “[o]ne
cannot be punished for something one does not remember.” The defendant cites no
authority for this proposition and this Court is unaware of any authority supporting this
4 The defendant not only performed oral sex on an eight year old girl, he then threatened her with death if she told anyone.
5 These factors are set out by the defendant as: lack of a prior criminal history, excellent social history, good work history, the bleakness of his present physical and mental condition, physical and mental problems, that there would be no deterrent effect upon the defendant from incarceration because he is no longer a threat to anyone, the defendant’s incarceration would not have a general deterrent effect, an d the def endan t’s lack of m emo ry regarding the offen se. The se facto rs are no t enough to outweigh the nature of this offense.
5 proposition. This contention is wholly without merit. To allow a defendant to evade
punishment based on the assertion that he or she does not remember committing the
crime would be an injustice, not only to the victim but to society as well. A defendant who
does not remember past crimes is likely to “forget” about future crimes as well if he is
able to avoid punishment the first time.
In light of the foregoing, it is clear the defendant has not established his
suitability for full probation. As such, it was not error for the trial court to sentence the
defendant to serve the eight year sentence in incarceration.
Accordingly, the defendant’s sentence is affirmed.
______________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ DAVID G. HAYES, Judge
______________________________ L. T. LAFFERTY, Special Judge