State of Tennessee v. Jerry W. Souder

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 24, 2002 Session

STATE OF TENNESSEE v. JERRY W. SOUDER

Appeal from the Criminal Court for Sullivan County

No. S44,088 R. Jerry Beck, Judge

No. E2001-02658-CCA-R3-CD

November 15, 2002

The Defendant, Jerry W. Souder, pled nolo contendere to one count of attempted aggravated sexual

battery. As part of the plea agreement, the Defendant was sentenced as a Range II offender to six

years, with the manner of service to be determined by the trial court. After a hearing, the trial court

ordered the Defendant to serve his sentence in the Department of Correction. The Defendant now

appeals as of right, alleging that the trial court erred by denying him an alternative sentence,

specifically probation. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.

GLENN, JJ., joined.

Wayne Culbertson, Kingsport, Tennessee, for the appellant, Jerry W. Souder.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;

Greeley Wells, District Attorney General; and James Goodwin, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

The Defendant’s conviction arose out of allegations by S.P.,1 a nine-year old female neighbor,

that the Defendant had fondled her breasts. When initially contacted by the police, the Defendant

admitted the allegations. At the plea and sentencing hearings, however, the Defendant contended

that the allegations were false and that he was pleading guilty to save the victim from further

embarrassment.

At the time of sentencing, the Defendant was sixty-seven years old. He has a single

conviction of indecent exposure, which conviction occurred in 1977 and involved a victim under

1

W e identify the minor victims of sex crime s by their initials.

thirteen years of age. He has been married for over forty years and has a high school education

followed by military service and steady employment.

The criminal conduct at issue was alleged to have occurred on or about May 1, 2000. On

May 9, 2000, the Defendant gave a statement about the incident to the Department of Children’s

Services and to the Kingsport Police Department. In both statements the Defendant admitted to

having touched S.P.’s breasts. He also admitted to having sexually molested young girls many years

ago.

In conjunction with the Defendant’s presentence investigation, he was evaluated by

Tennessee Sex Offender Board Approved Providers Thomas R. Herington, M.A., and J. Michael

Adler, Ph.D., of Counseling and Consultation Services, Inc. The evaluation was performed for the

purpose of assessing the Defendant’s risk to re-offend, his treatment needs, and his amenability to

sex offender treatment. This evaluation states in part that the Defendant’s “level of honesty is low,”

that he “presents a [h]igh risk to re-offend,” and that he is “a poor candidate for Sex Offender

Treatment.” In a letter summarizing the evaluation of the Defendant, the examining clinicians state

that the Defendant “is not considered a candidate for treatment in a community base[d] program,”

and that he “should be referred to the Special Needs Prison for Sex Offender Treatment.”

The Defendant testified at the sentencing hearing. Contrary to his earlier statements, the

Defendant testified that upon further reflection, he “realized there is no way in the world that [he]

could have touched that girl’s breasts that high up on her shoulder.” The Defendant continued,

stating that “every bit of this is a lie,” that he had been “charged wrongfully,” and thought he “ought

to be vindicated of this thing.” The Defendant admitted that he “had done a lot of bad things” over

twenty years ago, but averred that he had since “got[ten] [his] life straightened out,” and had

“got[ten] out of that.”

On cross-examination, the prosecutor asked the Defendant, “[s]o, you’re not into this kind

of thing now?” to which the Defendant replied, “[t]hat’s right. I left that stuff years ago.” The

prosecutor then asked, “[b]ut you have molested other children in the past?” The Defendant refused

to answer this question and invoked his right not to incriminate himself under the Fifth Amendment

to the United States Constitution.2

The trial court denied the Defendant an alternative sentence and ordered him to serve his

sentence in the Department of Correction. Taking the victim impact statement into account,3 the

2

The Fifth Amendment to the United States Constitution provides that “[n]o perso n . . . shall be comp elled in

any crimina l case to be a witness against himself.” Similarly, Article I, Section 9 of the Tennessee Constitution provides

that a crim inal defendant “shall no t be co mpe lled to give evid ence against himself.”

3

S.P.’s mother filed a victim im pact statement which provides, in relevant part, that S.P . “has had to d eal with

a lot of emotional issues” as a result of the Defendant’s conduct, that she was “sad and afraid,” and that S.P.’s mother

took her to counseling. S.P.’s mother also expressed concern for other children in the neighborhood, and explained that

(continued...)

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court found that “to grant probation would diminish the seriousness of the crime.” The court also

placed heavy reliance on the Defendant’s prior conviction. With respect to the Defendant’s refusal

to answer the State’s question, the court “considere[d] that as not putting his best foot forward and

allowing the Court to make a rational decision.” Finally, the court noted the “very negative”

evaluation as a basis for denying probation.

The Defendant contends on appeal that the trial court erred in sentencing him to confinement

and that it improperly weighed enhancement and mitigating factors. When a convicted defendant

challenges the manner of service of a sentence, this Court has a duty to conduct a de novo review

of the sentence with a presumption that the determinations made by the trial court are correct. See

Tenn. Code Ann. § 40-35-401(d). This presumption 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, 169 (Tenn. 1991). The record in this case

supports the presumption of correctness.

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,

if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875

S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.

App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence even if we would have

preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

With respect to the Defendant’s complaints about the trial court’s application of enhancement

and mitigating factors, the State responds that, because the Defendant is not challenging the length

of his sentence, the trial court’s application of these factors is irrelevant. However, this Court has

recently recognized that enhancement and mitigating factors are relevant to the trial court’s

determination of the manner in which a felony sentence is to be served. See State v. Bolling, 75

S.W.3d 418, 421 (Tenn. Crim. App. 2001). Accordingly, we will review the trial court’s findings

in this regard.

3

(...continued)

the family felt it necessary to sell their house beca use they lived ne xt door to the Defendant.

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The trial court found as an enhancement factor that the Defendant has a previous history of

criminal convictions in addition to those necessary to establish the appropriate range. See Tenn.

Code Ann. § 40-35-114(1). Indeed, the trial court weighed this factor “heav[ily]” in denying an

alternative sentence. The Defendant argues that the trial court placed too much weight on this factor

because the Defendant’s single prior conviction occurred in 1977.4

Provided the trial court complies with the purposes and principles of the Criminal Sentencing

Reform Act of 1989 and its findings are adequately supported by the record, the weight afforded to

enhancement and mitigating factors is left to the trial court’s discretion. See, e.g., State v. Alder, 71

S.W.3d 299, 306 (Tenn. Crim. App. 2001); State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App.

2000). In this case, the Defendant has failed to demonstrate that the trial court abused its discretion

in the weight it placed on the enhancement factor for previous criminal convictions. Although the

prior conviction is old, it arises from conduct similar to that for which the Defendant now stands

convicted. Furthermore, the enhancement factor applies not only where there is a history of previous

criminal convictions, but also where there is a history of previous criminal behavior. See Tenn.

Code Ann. § 40-35-114(1). The Defendant’s statements include confessions to multiple incidents

of molesting children sometime in the past. Accordingly, we agree with the trial court that the

Defendant’s history of criminal convictions and criminal behavior lends support to the denial of an

alternative sentence. This issue is without merit.

The Defendant also contends that the trial court erred by applying enhancement factor (7),

that he committed the offense to gratify his desire for pleasure or excitement. See Tenn. Code Ann.

§ 40-35-114(7). However, the trial court did not rely on this factor in determining how the

Defendant should serve his sentence. This issue is, therefore, without merit.

The Defendant also contends that the trial court did not consider as mitigating factors that

the Defendant’s conduct neither caused nor threatened serious bodily injury, see id. § 40-35-113(1),

and that he cooperated with the authorities. See id. § 40-35-113(13). He further contends that the

trial court gave insufficient weight to the mitigating factors that the trial court did recognize.5

However, we agree with the trial court that the negative factors adduced in conjunction with the

Defendant’s sentencing hearing far outweigh any and all mitigating factors that might otherwise

support an alternative sentence. Accordingly, this issue is without merit.

With respect to the Defendant’s challenge to the trial court’s determination that he should

serve his sentence in the Department of Correction, we first note that the Defendant is eligible for

probation. See Tenn. Code Ann. § 40-35-303(a). Because he was sentenced as a Range II offender,

4

W e note that the Defendant’s prior misdemeanor conviction was not the basis for the Defendant’s being

sentenced as a Range II multiple offender; rather, he was sentenced as a Range II multiple offender as part of his plea

agree ment. Accordingly, the trial court was entitled to rely on the prior conviction as one “in addition to those necessary

to estab lish the ap propriate range.” Te nn. Co de A nn. § 4 0-35 -114 (1).

5

The trial court referenced the Defendant’s military service, his employment history, his schooling, his limited

prior record, his health problems and his age.

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however, the Defendant is not entitled to a statutory presumption in favor of an alternative sentence.

See id. § 40-35-102(6). To be entitled to a sentence of probation, the Defendant must demonstrate

that probation would “subserve the ends of justice and the best interest of both the public and the

defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State,

297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds, State v. Hooper, 29 S.W.3d 1 (Tenn.

2000). Furthermore, in determining whether to grant probation, the trial court must consider the

nature and circumstances of the offense; the defendant’s criminal record; his or her background and

social history; his or her present condition, including physical and mental condition; and the

deterrent effect on the defendant. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.

1999). The court should also consider the potential for rehabilitation or treatment of the defendant

in determining the appropriate sentence. See Tenn. Code Ann. § 40-35-103(5).

The principles of sentencing reflect that the sentence should be no greater than that deserved

for the offense committed and should be the least severe measure necessary to achieve the purposes

for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). However, probation

is properly denied under the following circumstances:

(A) Confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to others likely

to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1). See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v.

Ashby, 823 S.W.2d 166, 170 (Tenn. 1991).

The Defendant argues that the trial court erred in denying probation on the grounds that to

do so would depreciate the seriousness of the offense, because it was not “especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,”

and of such a nature as to outweigh all other factors favoring a sentence other than confinement.

State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). We agree that the criminal

conduct at issue was not so reprehensible as to justify, in and of itself, the denial of probation.

However, this was only one factor relied upon by the trial court in its decision. Other evidence in

the record is more than sufficient to justify the denial of probation, and this issue is, therefore,

without merit.

The Defendant also contends that the trial court committed error when it relied on his

assertion of his rights against self-incrimination in denying probation. The trial court characterized

the Defendant’s refusal to answer the prosecutor’s question about whether he had molested children

in the past, as “not putting his best foot forward.”

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The United States Supreme Court has recently made clear that a criminal defendant retains

his or her right to assert the Fifth Amendment privilege against self-incrimination during sentencing.

See Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed. 2d 424 (1999). Moreover,

the sentencing court may draw no adverse inference from the defendant’s silence in determining facts

about the crime which bear upon the severity of the sentence. Id., 526 U.S. at 316-17. However, the

Court specifically declined to opine as to whether the defendant’s silence may bear upon his or her

lack of remorse or acceptance of responsibility for the crime in setting the defendant’s sentence. Id.,

526 U.S. at 330.

In the case before us, the trial court did not draw any adverse inferences about the facts of

the crime from the Defendant’s refusal to answer the State’s question. Rather, the trial court

included the Defendant’s silence in its overall calculus for determining whether the Defendant was

a suitable candidate for probation. As set forth above, a criminal defendant’s rehabilitative potential

is a factor to be considered in the grant or denial of probation. Candor is a relevant factor in

assessing a defendant’s potential for rehabilitation, see State v. Dowdy, 894 S.W.2d 301, 306 (Tenn.

Crim. App. 1994), and the lack of candor militates against the grant of probation. See, e.g., State

v. Kendrick, 10 S.W.3d at 656. The burden of proving suitability for probation rests with the

defendant. Tenn. Code Ann. § 40-35-303(b). Accordingly, we conclude that the trial court did not

infringe upon the Defendant’s rights under the Fifth Amendment to the United States Constitution,

or Article I, Section 9 of the Tennessee Constitution, when it relied, in part, on the Defendant’s

assertion of those rights at sentencing, in order to deny probation. This issue is, therefore, without

merit.

The record in this case overwhelmingly supports the trial court’s denial of probation. In spite

of his confessions to authorities shortly after committing the criminal conduct at issue, the Defendant

claimed complete innocence at his sentencing hearing, blamed the victim, refused to accept any

responsibility for his actions, and was profoundly unrepentant. While acknowledging past criminal

conduct of a like nature, the Defendant steadfastly maintained that such behavior was behind him.

The evaluation performed on the Defendant indicated him to be at high risk for re-offending and a

poor candidate for sex offender treatment. The evaluation further recommended against the

Defendant’s release into the community. The trial judge rightly concluded that incarceration is the

proper manner in which the Defendant should serve his agreed-upon sentence.

The judgment of the trial court is affirmed.

___________________________________

DAVID H. WELLES, JUDGE

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