The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2012
STATE OF TENNESSEE v. MONICA RANKIN
Direct Appeal from the Circuit Court for Williamson County
No. ICR115323 Robbie Beal, Judge
No. M2011-01849-CCA-R3-CD - Filed August 9, 2012
____________________________
The Defendant, Monica Rankin, pled guilty to two counts of sexual battery by an authority
figure, aggravated statutory rape, exploitation of a minor by electronic means, solicitation
to commit aggravated statutory rape, and solicitation to commit sexual battery by an authority
figure. The trial court sentenced the Defendant as a Range I, standard offender, to an
effective sentence of five years and ordered her to serve six months in confinement, followed
by supervised probation. On appeal, the Defendant argues that the trial court erred when it:
(1) applied enhancement factors and failed to apply mitigating factors; (2) denied her full
probation; and (3) denied her request for a variance from the probation rule prohibiting
internet access for sex offenders. Following our review, we affirm the trial court’s
judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R. and C AMILLE R. M CM ULLEN, JJ., joined.
Venus Niner, Franklin, Tennessee, for the appellant, Monica Rankin.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Kim Helper, District Attorney General; and Mary Katherine White, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
1
This case arises from the Defendant’s sexual conduct with a fifteen-year old male
victim.1 On November 8, 2010, a Williamson County grand jury indicted the Defendant for
four counts of sexual battery by an authority figure, two counts of aggravated statutory rape,
one count of solicitation to commit aggravated statutory rape, one count of solicitation to
commit sexual battery by an authority figure, and one count of exploitation of a minor by
electronic means. The Defendant pled guilty to all of the counts in the indictment, reserving
sentencing for the trial court. The pre-sentence report2 contained the following summary of
the Defendant’s offenses:
According to information in the District Attorney’s File, the [D]efendant
volunteered for the People’s Church as a youth group leader for a group of
Middle School Girls. The Group met for numerous engagements, including
activities not organized by the church such as movie nights held at the homes
of group members. Some of the girls’ male friends were also present at some
of the events. [The Defendant] reportedly became very involved with the social
aspects of the group, devoting a lot of time and money toward their activities
and acting as a matchmaker on behalf of the boys and girls. At one point, a
parent of one of the males even complained because [the Defendant] had been
texting late at night with his/her son (not the victim in this case) about a
personal problem of his, and the pastor requested that [the Defendant] stop
doing such.
The victim in the instant case (male, DOB 5/28/94) reportedly expressed
intimate feelings toward [the Defendant] and over time their interactions
became sexual. They exchanged sexual te[x]t messages and [the Defendant]
sent the boy approximately ten picture messages of herself scantily clad or of
her bare breasts or genitals. On August 11, 2009, during a movie night at [the
Defendant’s] home, [the Defendant] and the victim sat on a couch
masturbating one another beneath a blanket, unknown to a girl sitting on the
end of the couch or to other group members in the room. Another incident
whereby the [D]efendant and victim manually manipulated each other’s
genitals on [the Defendant’s] couch reportedly occurred in June 2009.
The illicit relationship was revealed when [the Defendant’s] husband’s divorce
lawyer alerted law enforcement that they had discovered [the Defendant’s]
1
To protect the identity of the minor victim, he will be referred to herein solely as “the victim.”
2
A transcript of the guilty plea submission hearing is not included in the record, thus, we rely
upon the facts provided in the presentence investigation report.
2
sexual text messages to an underage boy on the family computer. [The
Defendant’s] IPhone had been synchronized with the computer and stored the
messages in a file. (Ex. 1 at 5-6.)
At the sentencing hearing, the State offered into evidence the presentence report with
several attachments that included a victim impact statement, a psycho-sexual evaluation, sex
offender rules, and sex offender directives. The State also offered the testimony of Sergeant
Eric Anderson, a Franklin Police Department officer, who testified that he served as the
supervisor of the special victims unit, which investigated crimes involving families such as
domestic violence, child abuse, elder abuse, and the sexual exploitation of minors.
Sergeant Anderson testified that he participated in investigating the Defendant. He
explained that Steve Jackson, a local private investigator hired by the Defendant’s former
spouse during their divorce, filed a complaint against the Defendant. Sergeant Anderson
learned that Jackson conducted some computer forensic work on the family computer that
belonged to the Defendant’s former husband. The Defendant’s cellular phone electronically
synced with the family computer, so Jackson was able to view text messages and electronic
communications between the Defendant’s cellular phone and other individuals, including the
victim. Sergeant Anderson said that there were a “significant number” of ongoing text
messages between the victim and the Defendant that “were graphically sexual in nature,
solicitous in nature, and exploitive in nature.”
Sergeant Anderson testified that, due to the nature of the text messages and their
ongoing nature, he contacted the victim’s parents and interviewed the minor child on August
18, 2009. During this interview, Sergeant Anderson learned that the victim was fifteen years
old and that the victim knew the Defendant through his involvement at the People’s Church.
The victim explained to Sergeant Anderson that the Defendant was a leader of a girl’s youth
group at the church. Through various meetings and activities, such as events, “get-
togethers,” and movie nights at different homes or the church, the victim came to know the
Defendant. The victim told Sergeant Anderson that he and the Defendant began to engage
in text message communication regarding sexual matters and sexual conduct. The victim
said that he received nude images of the Defendant via picture messages on his cellular
phone. The most recent inappropriate text messages from the Defendant were received the
night before Sergeant Anderson’s interview with the victim.
Sergeant Anderson testified that the victim disclosed that fondling, genital
manipulation, and skin-to-skin contact occurred at the Defendant’s home on August 11,
2009. The victim said that the church youth group was watching a movie together in the
living room, and he and the Defendant were seated on the couch. The victim explained that
he and the Defendant were under a blanket to hide their physical contact from the other youth
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group members in the room. The victim and the Defendant masturbated one another while
simultaneously sending text messages. Sergeant Anderson said that, during the course of his
investigation, he confirmed the occurrence of these text messages. Sergeant Anderson said
that the victim told him that sexual contact occurred between he and the Defendant on “two
or three other occasions” at the Defendant’s house between June and August 2009.
Sergeant Anderson testified that he also interviewed the victim’s parents, who said
they allowed their son to attend these functions because of the Defendant’s position as a
leader in the church group. It was their understanding that these activities were through the
church and so they allowed the Defendant “authority” over their child.
Sergeant Anderson testified that he interviewed the Defendant, and he agreed that she
was “cooperative” during the interview. Sergeant Anderson said that the Defendant was
initially reluctant to admit her sexual contact with a minor child but eventually admitted to
her conduct. Sergeant Anderson said that it was his observation that the Defendant’s sexual
contact with the minor “weigh[ed] on her” and “bothered her.”
Sergeant Anderson testified that the Defendant told him that she worked with a group
of seventh-grade girls through the middle school student ministry. She explained that she
supervised camps, retreats, weekends, and “get-togethers” and communicated with the girls
regularly. She told Sergeant Anderson that it was “not uncommon” for her to communicate
with her youth group members through text messaging. The Defendant said that, even
though it was a girls group, often times boys would attend and participate in the activities.
The Defendant said that she and her husband at the time would provide rides for some of the
girls and boys to these group events. The Defendant acknowledged that she had driven the
victim to and from some of the group events and that the victim’s parents allowed her to do
so because of her role as a leader. The Defendant said that the victim initiated the text
messages with her, disclosing “some intimate personal feelings” that he felt for her. The
Defendant said that the victim requested nude pictures of the Defendant and that, eventually,
she “relented.”
Sergeant Anderson said that there was a fifteen year age difference between the victim
and the Defendant. The Defendant told Sergeant Anderson that, in June, during a movie
night, the victim attempted to fondle her breast. She said that she initially stopped him but
then she “relented.” Initially, the Defendant denied that any sexual conduct had occurred in
her home but then admitted to sexual contact with the victim during one of the movie nights
at her home. The Defendant disclosed that she and the victim had engaged in fondling,
genital manipulation, skin-to-skin contact, and masturbation. The Defendant said that other
children were in the room and, specifically, that another girl was sitting on the same couch
with them. The Defendant explained that the other children in the room were unaware of the
4
sexual contact because their movements were hidden by a blanket that was laid across their
waist area. The Defendant admitting taking pictures of herself both nude and in
undergarments and sending them to the victim. She said that there was “a lot” of sexual
communication through text messaging that included “graphic sexual conversations, stories,
[and] sexual fantasies.”
Sergeant Anderson testified that the Defendant told him about a previous event, in
which a parent complained of the Defendant’s text message communication with their son,
who, she said, was working through some personal problems. A church pastor asked her to
“stop engaging in that behavior,” and the Defendant said that she “stopped talking with boys
late at night after that request.”
On cross-examination, Sergeant Anderson agreed that the Defendant was
“cooperative” during the entire investigation. Sergeant Anderson said that, in his review of
the Defendant’s messages, he only focused on communication between the Defendant and
the victim, but he had no reason to believe that her conduct occurred outside the incidents
with the victim. Sergeant Anderson said that, other than the contact with the victim, the
Defendant denied any other sexual contact with persons under the age of eighteen.
Stephanie Cisco, a Franklin Police Department officer, identified the report for the
forensic exam conducted on the Defendant’s family computer. Over 33,000 text messages
were recovered from the computer, not all of which involved the victim. Detective Cisco
testified that text messaging between the Defendant and the victim began on July 17, 2009.
Three days later, on July 20, the content of the text messages became sexual. Cisco read
several of the text messages aloud, noting that the Defendant’s text messages were “very
descriptive” sexual narratives while the victim responded with one-word messages. Four
sheets of thumbnail photographs, sent by the Defendant to the victim, of the Defendant in
various stages of undress were entered into evidence. On July 22, 2009, another set of text
messages were exchanged containing sexual content. On July 23, text messages about a
“sexual fantasy” that involved girls from the Defendant’s church youth group were
exchanged between the Defendant and the victim. Detective Cisco said that “on more than
one occasion” there was a reference to the Defendant teaching the victim “things” of a sexual
nature. Detective Cisco said that text messages were exchanged daily, some of which were
“normal conversation, but most of it was sexual.”
Charles Barrineau, The People’s Church Middle School Ministries pastor, testified
that the Defendant was one of his adult volunteers in the middle school ministry. Pastor
Barrineau explained that adult volunteers help oversee and lead in different aspects of the
student ministry. Pastor Barrineau said that, in preparing volunteers to work with small
groups, he provided them a “small leader tool kit.” The kit contained a page titled “Two
5
things every small group leader needs to remember.” The first was, “You are the authority.”
Pastor Barrineau recounted several occasions in which he had to “caution” the Defendant
about her behavior. Pastor Barrineau learned, after one outing, that the Defendant had gone
to the movies with some students. Pastor Barrineau reminded the Defendant that he needed
to be aware of any group outings or events. The Defendant responded that it was not a
church activity and just “a group of kids going to the movies.” Pastor Barrineau explained
to the Defendant that, because she is a leader when she spends time with the students, it is
part of the ministry.
Pastor Barrineau testified that, on another occasion, a mother of one of the male
students told Pastor Barrineau that the Defendant was driving her son home in the evenings.
One of the volunteer guidelines is that female leaders are not to spend time alone with male
students. Pastor Barrineau spoke with the Defendant about the complaint, and she explained
that she was never in the car alone with the boy student because another girl student was
always present. The same mother was also concerned because she observed text messages
sent from the Defendant after midnight to her son’s cellular phone. Pastor Barrineau spoke
to the Defendant about the text messages, and she explained that she did not initiate the
contact but responded to a text message from the student. Pastor Barrineau told the
Defendant that there should be no contact with students after “appropriate hours.” On
another occasion, a parent was concerned that an “older woman,” the Defendant, showed up
at her house with some middle school girls to “hang out” with middle school boys.
Pastor Barrineau explained that he had a policy for swimming activities that boys wear
swim trunks and girls wear one-piece bathing suits. At one swimming function, the
Defendant wore a two-piece swimsuit. After a parent mentioned that it was inappropriate,
the Defendant put on a t-shirt, but the pastor was later notified of this incident.
Pastor Barrineau testified that he had spoken with the girls in the Defendant’s small
group and described some of the girls as “[v] ery upset as a result of understanding all the
things that had been going on that they weren’t aware of.” Some of the girls realized that
their relationship with the Defendant had become inappropriate, in that the Defendant
became more of a friend than a leader in the group.
The Defendant testified that her ex-husband’s pornography addiction placed a strain
on their marital relationship. After her ex-husband filed for divorce, she sought counseling
with Diane Marshall for issues related to these offenses and family counseling. The
Defendant said that, with the help of the counseling sessions, she believed she was more
emotionally stable than she was at the time she committed these offenses. Additionally, the
Defendant elected to seek sex offender therapy with Dr. Moore. The Defendant believed that
this counseling was also beneficial. The Defendant stated that she took responsibility for her
6
actions, and she believed she would not re-offend.
The Defendant testified that she had three children: a ten-year old daughter, of whom
she had primary custody, and two sons, with whom she had visitation rights. In addition to
caring for her children, the Defendant also helped care for her mother, who had suffered
multiple strokes beginning in 2003.
The Defendant testified that she understood the rules of probation and was prepared
to comply with those rules. She said that she sought a variance for the rule prohibiting
internet access, in order to finish a Business degree.
On cross-examination, the Defendant testified that she did not have a letter from her
current therapist, Dr. Moore, about her current progress in therapy. The Defendant
acknowledged that Dr. Moore indicated in the Defendant’s psycho-sexual evaluation that the
Defendant was “responding on the test in an attempt to fake good. This means she was
trying to give the appearance of being in control, adequate, and effective. She lacks insight
and understanding.” The evaluation further reflected that the Defendant is “at risk for sexual
re-offense, although [her] risk is low; [she is] in denial of [her] choices and responsibility for
[her] actions, although [she] admitted some factual details of [her] behavior.”
The Defendant testified that she was hired to do accounting for American Home
Patient but was recently terminated due to these offenses. The Defendant admitted that she
was alone in her car with boys even though she told Pastor Barrineau the contrary. The
Defendant agreed that the text messages with sexual content reflected that she was the one
providing the narration, the specific sexual acts, and fantasies. The Defendant agreed that
she was an “active participant” in the physical contact that occurred between her and the
victim. Regarding her conduct, the Defendant stated, “I think it’s terrible and should never
have happened, I hate that I did it, I hate that I didn’t have the control, and I hate that I didn’t
put an end to it.”
The Defendant admitted the use of marijuana and ecstacy while she was in high
school. The Defendant stated that she recently married a man who had two minor children,
ages seven and nine. When asked if the children’s mother was aware of the Defendant’s
convictions, she stated, “I don’t know.”
Diane Marshall, a Tennessee licensed marriage and family therapist, testified that she
first met with the Defendant in August 2009, after the Defendant had been accused of these
crimes and been served with divorce papers. Marshall said she treated the Defendant for
eighteen months until Dr. Moore “demanded” that the Defendant cease therapy with
Marshall. Marshall described the Defendant as “developmentally delayed” when she first
7
entered therapy, so Marshall worked to “emotionally mature [the Defendant] to her
chronological age.” Marshall said that the Defendant’s relationship with her husband caused
her to have a lack of sense of self. Marshall said that the Defendant felt “great shame” and
“remorse” about her conduct. Marshall testified that she had seen progress with the
Defendant, and she did not believe the Defendant would re-offend.
The victim’s mother testified that, before these incidents, her son was “fairly
outgoing,” played sports, was active in school, and was active in church. During the time
period in which these events occurred, the victim became more quiet, missed school more
often, and his grades dropped. During the course of the investigation, the police
recommended a therapist to the victim’s family. Initially, the victim and his family were
treated separately and then treated as a whole. The victim’s mother said that the victim
wrestled with feelings of embarrassment, anger, and shame. After the completion of the
counseling, she had noticed that the victim had begun interacting with his friends again and
participating at church.
After hearing the evidence, the trial court sentenced the Defendant as a Range I,
standard offender. Counts I and II, sexual battery by an authority figure, and Counts IV and
V, sexual battery by an authority figure, were merged, and the trial court imposed a five-year
sentence. The court ordered the Defendant to serve six months of incarceration, followed
by supervised probation. Likewise, the trial court merged Counts III and VI, aggravated
statutory rape, and imposed a four-year sentence, suspended to supervised probation after six
months confinement. For Count VII, exploitation of a minor by electronic means, and Count
VIII, solicitation to commit aggravated statutory rape, the trial court imposed a two-year
sentence, of which six months was to be served in confinement and the remainder was to be
served on probation. For Count IX, solicitation to commit sexual battery by an authority
figure, the trial court imposed a four-year sentence, suspended to supervised probation after
six months confinement. The trial court ordered that all sentences be served concurrently for
a total effective sentence of five years, six months of which was to be served in confinement
and the remainder of which was to be served on supervised probation. It is from these
judgments that the Defendant appeals.
II. Analysis
We first note that the Defendant failed to include a transcript of the guilty plea
submission hearing. It is the defendant’s duty to compile a complete record for appeal.
Tenn. R. App. P. 24(b). A recent panel of this Court held that the guilty plea hearing
transcript is vital to a de novo review of sentencing and, in the absence of an adequate record,
we will presume the trial court’s ruling were supported by sufficient evidence. See State v.
Christine Caudle, No. M2010-01172-CCA-R3-CD, 2011 WL 6152286 (Tenn. Crim. App.,
8
at Nashville, Dec. 8, 2011) perm. to app. granted (Tenn. April 12, 2012). Another panel of
this Court, however, concluded that, despite the absence of the guilty plea submission
hearing transcript, the record was adequate to afford appellate review. State v. Anna M.
Steward, No. E2010-01918-CCA-R3-CD, 2011 WL 4346659 at *5 (Tenn. Crim. App., at
Knoxville, Sept. 19, 2011), no Tenn. R. App. P. 11 application filed. Based upon the specific
facts of this case, we conclude that the record is sufficient to afford appellate review.
On appeal, the Defendant argues that the trial court erred when it: (1) applied certain
enhancement factors and failed to apply other mitigating factors; (2) denied her a sentence
of full probation; and (3) denied the Defendant’s variance request for internet access. The
State responds that the record fully supports the sentence in this case, and, therefore, the
Defendant is not entitled to relief.
When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review of the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2010). As the Sentencing Commission Comments to this section note, the burden
is on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401
(2010), Sentencing Comm’n Cmts. This means that, if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
1989 Sentencing Act, Tennessee Code Annotated section 40-35-103, we may not disturb the
sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn.
2001). The presumption does not apply to the legal conclusions reached by the trial court in
sentencing a defendant or to the determinations made by the trial court which are predicated
upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994).
In conducting a de novo review of a sentence, we must consider: (1) any evidence
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
sentencing, (4) the arguments of counsel relative to sentencing alternatives, (5) the nature and
characteristics of the offense, (6) any mitigating or enhancement factors, (7) any statements
made by the defendant on his or her own behalf and (8) the defendant’s potential or lack of
potential for rehabilitation or treatment. See T.C.A. § 40-35-210 (2010); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001).
A. Application of Enhancement and Mitigating Factors
The Defendant argues that the trial court should not have considered her “limited drug
9
use some ten years plus prior” to enhance her sentence. The Defendant also argues that the
trial court erred “in not applying mitigating factors” and, specifically, its finding that
mitigating factor (1), that her conduct did not cause or threaten serious bodily injury, was
inapplicable. The State responds that the trial court’s findings of fact are adequately
supported by the record. We agree with the State.
The trial court made the following findings as to enhancement factor (1):
[E]nhancement factor[ ]: (1) applies; “The Defendant does have a previous
history of some criminal behavior, in addition to those necessary to establish
the appropriate range.” That criminal behavior I don’t think needs to be
anything other than some limited drug use at a very young age. Obviously that
enhancement factor really had no true bearing on the Court’s decision.
Although the trial court acknowledged the Defendant’s drug use in high school, this
criminal behavior had “no true bearing on the Court’s decision.” Even so, the use of
marijuana and ecstasy is a criminal act, whether committed in high school or later, thus, it
was properly considered by the trial court.
As to the mitigating factors, the trial court declined to apply mitigating factor (1), that
the criminal conduct neither caused nor threatened serious bodily injury. T.C.A. 40-35-
113(1) (2010). The trial court stated, “the Court believes it did cause mental harm to the
child, and I don’t believe that it’s appropriate to use as a mitigating factor here.” The trial
court then found applicable mitigating factor (11), the defendant committed the offense
“under such unusual circumstances that it is unlikely that a sustained intent to violate the law
motivated the criminal conduct.” T.C.A. 40-35-113(11) (2010). The trial court also
considered that the Defendant had no prior criminal history, sought counseling, had family
support, and that the nature of the sexual conduct was limited and did not include oral sex
or intercourse.
The Defendant’s broad complaint that the trial court “erred in not applying mitigating
factors” is unfounded. Although the trial court chose not to apply mitigating factor (1), the
trial court did consider and apply other factors in determining the Defendant’s sentence. As
to the Defendant’s specific complaint that the trial court did not apply mitigating factor (1),
we conclude that the trial court’s decision is supported by the record.
Tennessee Code Annotated section 39-11-106(a)(34) defines “serious bodily injury”
to include substantial impairment of a mental faculty. This Court has held that
“[p]sychological problems can constitute serious bodily injury.” State v. William Marvin
Brown, No. M2001-02287-CCA-R3-CD, 2002 WL 31852853, at *7 (Tenn. Crim. App., at
10
Nashville, Dec. 18, 2002) perm. app. denied (Tenn. April 28, 2003) (citing State v. Smith,
910 S.W.2d 457, 461 (Tenn. Crim. App. 1995)). This Court has further held that “every
sexual offense is physically and mentally injurious to the victim.” State v. Johnny Shields,
No. W2001-01554-CCA-R3-CD, 2002 WL 927606, at *4 (Tenn. Crim. App., at Jackson,
May 3, 2002) no Tenn. R. App. P. 11 application filed (citing State v. Kissinger, 922 S.W.2d
482, 487 (Tenn. 1996)).
As a result of the victim’s inappropriate interactions with the Defendant, his behavior
changed, his grades dropped, and he experienced embarrassment, anger, and shame. The
victim sought counseling, individually and with his family, for a period of six months. Thus,
we conclude that the trial court’s refusal to apply mitigating factor (1) in this case was
proper.
Accordingly, we conclude that the trial court properly considered sentencing factors
and principles in determining the Defendant’s sentences for these offenses. The Defendant
is not entitled to relief.
B. Full Probation
The Defendant contends that the trial court erred when it ordered her to serve part of
her sentence in confinement. The State responds that the trial court sentenced the Defendant
within the applicable range and properly exercised its discretionary authority. We agree with
the State.
At the conclusion of the sentencing hearing, the trial court stated that its primary
concern was the seriousness of the offenses and the importance of not degrading the
seriousness of the Defendant’s conduct. In considering the nature and circumstances of the
Defendant’s crimes, the trial court noted that it was troubled that this occurred while the
Defendant was acting as a church leader and concerned for the impact on the victim of this
interaction through a church setting. The trial court further noted that the text messages sent
to the victim from the Defendant were “specifically designed so that this young man would
continue. . . his interest. [The Defendant] knew what she was doing every step of the way,
she underst[oo]d the nature of her actions, and she used her knowledge and the young man’s
youth to get, ultimately, his attention.” In considering sentencing for this case, the trial court
stated the following:
[The Defendant] obviously ha[s]n’t had criminal trouble before, I’ve
got three reports saying [the Defendant’s] risk of any re-offense is low, I’ve
got your [in] counsel[ing], I’ve got the psychosexual that’s been put on the
Pre-sentence Report saying your risk is low, and the investigator who prepared
the report, their own little probation charts, they rank your status as low. So
11
I’ve got someone that shouldn’t re-offend, I’ve got someone that hasn’t a
criminal history before, and then I’ve got a very unique set of circumstances
which the Court, I think, I hope has made clear that I don’t think would be
repeated. I’ve got to balance that against, basically, the harm that’s been
committed here, and there’s been a significant harm, and then I’ve also got to
balance that against what the community needs to recognize as the norms.
Again, I’m not lecturing you here, but you’re clearly outside those norms, and
you and I both know that. And that can’t be solved just simply by a probated
sentence.
Finding full probation inappropriate in this case, the trial court ordered the Defendant
to serve six months in confinement with the remainder of her sentence to be served on
probation.
To meet the burden of establishing suitability for full probation, a defendant must
demonstrate that full probation will subserve the ends of justice and the best interests of both
the public and the defendant. State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. 2001). The
following criteria, while not controlling the discretion of the sentencing court, shall be
accorded weight when deciding the defendant’s suitability for full probation: (1) the nature
and circumstances of the criminal conduct involved; (2) the defendant’s potential or lack of
potential for rehabilitation; (3) whether a sentence of full probation would unduly depreciate
the seriousness of the offense; and (4) whether a sentence other than full probation would
provide an effective deterrent to others likely to commit similar crimes. T.C.A. §§ 40-35-
103(1)(B), -103(5), -210(b)(4) (2010); see also Blackhurst, 70 S.W.3d at 97.
In the case under submission, the Defendant is eligible for full probation because her
sentence is ten years or less (subject to certain statutory exclusions not relevant here). T.C.A.
§ 40-35-303(a) (2010). Although full probation must be automatically considered by the trial
court as a sentencing alternative whenever the defendant is eligible, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b) (2010),
Sentencing Comm’n Cmts.
The trial court ordered the Defendant to serve six months of her five-year sentence in
confinement with the balance to be served on supervised probation. The trial court properly
considered the presentence report, the facts and circumstances surrounding the offense, the
Defendant’s amenability to probation, society’s interest, and the need for deterrence when
it denied full probation.
The Defendant, acting as a church leader to middle school girls, engaged in a
relationship with the victim which quickly turned sexual within three days of their first text
12
message exchange. The Defendant’s text messages were lengthy, descriptive, and graphic
as to the sexual encounters in which she wished to engage in with the victim. One of the
sexual fantasies she created involved not only the victim but other girls in her youth group.
Even after admonishments from her supervising pastor, she continued to blur boundaries and
act inappropriately in her role as a church leader. She further engaged in sexual contact with
the victim in the same room with other youth group members, under the guise of a “church
activity.” Her conduct not only negatively affected the victim and his family but was harmful
to the girls in her youth group who later learned of her conduct. The evidence does not
preponderate against the trial court’s finding that the nature and characteristics of the
criminal conduct warranted a sentence that included some confinement. See T.C.A. § 40-35-
210(b)(4) (2010).
Thus, because the Defendant has failed to demonstrate that full probation will
subserve the ends of justice and the best interests of both the public and herself, we conclude
the trial court properly denied the Defendant full probation, ordering her to serve six months
of the five-year sentence in confinement and the remainder on probation. See Blackhurst,
70 S.W.3d at 97. The Defendant is not entitled to relief on this issue.
C. Denial of Variance Request
The Defendant argues that the trial court improperly denied her variance request for
access to the internet. The State responds that the Defendant’s history of using electronic
media to commit her sexual offenses with the minor victim warrant the trial court’s denial.
We agree with the State.
Internet access is prohibited under the specialized probation conditions for sex
offenders unless waived by the court. Due to the nature of the Defendant’s offenses, she is
a sex offender and subject to these probation conditions. The Defendant requested the trial
court waive the condition prohibiting internet access, in order to continue pursuit of a college
degree. The trial court denied her request, stating:
The Court, because this is such a unique situation, did consider a variance
request at least for access to the internet over that time period. Obviously the
internet’s a way of life; however, I will say that based upon the psychosexual,
it appears like the Defendant has experimented to some degree with sexual
activity on the internet, one of the specific concerns that Ms. Moore had was
the internet, so the Court is not going to grant a variance as to that.
Our review of the psycho-sexual history reveals that the Defendant admitted using the
internet for sexual talk and met “one partner on Facebook.” Although not through the
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internet, the record bears out that the Defendant used electronic technology in the furtherance
of her crimes. In Dr. Moore’s report on the psycho-sexual evaluation, she recommended that
the Defendant’s “internet computer use be monitored. These restrictions should also apply
to any electronic devices such as a cellular telephone, iPhone, and Xbox.” She also made the
recommendation that the Defendant not “participate in internet sexual behavior such as
chatting online with others, including those who may be underage, viewing sexual images,
communicating via myspace or facebook accounts, using social networking sites, or using a
web camera.”
Accordingly, the record supports the trial court’s denial of the Defendant’s request for
a waiver of the condition of probation prohibiting internet access. The Defendant is not
entitled to relief as to this issue.
III. Conclusion
Based on the foregoing reasoning and authorities, we affirm the judgments of the trial
court.
___________________________________
ROBERT W. WEDEMEYER, JUDGE
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