The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
November 5, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9701-CR-00015
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. SETH NORMAN, JUDGE
PERCY BROWN, )
) (Sentencing - Sexual Battery)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
JEFFREY A. DeVASHER (on appeal) LISA A. NAYLOR
HOLLIS I. MOORE, JR. (at hearing) Assistant Attorney General
Assistant Public Defenders 450 James Robertson Parkway
1202 Stahlman Building Nashville, TN 37243-0493
Nashville, TN 37201
VICTOR S. JOHNSON, III
District Attorney General
JAMES W. MILAM
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Percy Brown, appeals the sentences imposed by the
Davidson County Criminal Court following his guilty plea to two (2) counts of sexual
battery. The trial court sentenced defendant as a Range I, Standard Offender, to
two (2) years confinement on each count and ordered that the sentences run
consecutively. On appeal, defendant argues that the trial court erred in (1) denying
alternative sentencing, and (2) imposing consecutive sentences. We affirm the
judgment of the trial court.
FACTS
Defendant was the live-in boyfriend of the victim’s mother. The victim stated
the defendant sexually assaulted her four (4) times while she was between the ages
of ten (10) and thirteen (13).
Defendant was indicted for one (1) count of aggravated sexual battery and
two (2) counts of sexual battery.1 He subsequently entered guilty pleas to two (2)
counts of sexual battery.
At the sentencing hearing, the defendant did not deny that he sexually
assaulted the victim. He claimed that he suffered from seizures that caused
memory blackouts. He alleged that if he did assault the victim, the attacks must
have occurred during his seizures.
Pursuant to the plea agreement, defendant was to receive a sentence of two
(2) years as a Range I, Standard Offender, for each count of sexual battery. There
was no agreement as to concurrent/consecutive sentences, or whether defendant
would receive some type of alternative sentence. At the conclusion of the
sentencing hearing, the trial court denied alternative sentencing and ordered that
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One count of sexual battery concerned defendant sexually abusing the victim’s
friend one night as she was sleeping at the victim’s home. This count was dismissed by the
state as part of defendant’s plea agreement. Although the victim alleges that the defendant
sexually assaulted her on four (4) occasions, the state chose to indict the defendant for only
two (2) instances of sexual abuse.
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the sentences run consecutively.
SENTENCING STANDARD OF REVIEW
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
and arguments as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after giving due consideration and proper
weight to the factors and principles set out under sentencing law, and 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. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
TRIAL COURT FINDINGS
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The trial court’s findings consisted only of the following: (1) the defendant
was untruthful in stating he did not recall committing the offenses; and (2) “[t]his
Court doesn’t have any tolerance for anybody who is sexually abusing young
children.” No other principles of sentencing were addressed.
Since the record does not show that the trial court considered the relevant
sentencing principles, we are unable to afford the sentences a presumption of
correctness. We are now required to review the sentences de novo. State v. Poole,
945 S.W.2d at 96.
CONTINUOUS CONFINEMENT
In his first assignment of error, defendant claims that the trial court erred in
imposing a sentence of continuous confinement. He argues that he is presumed
to be a suitable candidate for alternative sentencing because he was convicted of
a Class E felony. Therefore, he contends that the trial court should have placed him
on immediate probation or probation following a period of confinement.
A.
Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tenn. Code Ann. § 40-35-
103(1):
(A) [c]onfinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
An especially mitigated or standard offender convicted of a Class C, D or E
felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court
must presume that a defendant sentenced to eight years or less and who is not an
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offender for whom incarceration is a priority is subject to alternative sentencing.
State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further
presumed that a sentence other than incarceration would result in successful
rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.
However, although a defendant may be presumed to be a favorable
candidate for alternative sentencing, the defendant has the burden of establishing
suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must be
automatically considered, “the defendant is not automatically entitled to probation
as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission
Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, the
defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
Probation may be denied based solely upon the circumstances surrounding
the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995);
Hartley, 818 S.W.2d at 374. However, the circumstances of the offense as
committed must be 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 probation. Hartley at 374-75.
There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the
offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467
(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of
alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). In summary, sentencing must be determined on a case-by-case basis,
tailoring each sentence to that particular defendant based upon the facts of that
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case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235
(Tenn. 1986).
B.
In making its determination of the defendant’s sentence, the trial court
focused on the nature of the offense. The defendant sexually abused a young child
over a long period of time. Clearly, the trial court placed great weight on the need
to avoid depreciating the seriousness of the offense. Although the trial court’s
sentence is not entitled to a presumption of correctness, we agree that this
sentencing principle is entitled to great weight.
Moreover, in considering the circumstances of the offense, a court may look
behind the plea agreement and consider the true nature of the offenses committed.
State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983); State v. Biggs, 769
S.W.2d 506, 507 (Tenn. Crim. App. 1988). As to Count One, there is no dispute
that the victim was under thirteen (13) years of age, making it an aggravated sexual
battery. See Tenn. Code Ann. § 39-13-504. Had the defendant been convicted of
or pled to aggravated sexual battery, he would not be eligible for probation. Tenn.
Code Ann. § 40-35-303(a). Although sexual battery is a probation eligible offense,
this Court still may consider the true nature of the offense in determining whether
probation is appropriate.
Furthermore, the trial court found that defendant was less than candid in his
account as to how the sexual abuse occurred. The defendant's lack of credibility
is an appropriate consideration and reflects on a defendant's potential for
rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994); State
v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). We also agree with
the application of this sentencing principle.
In considering these factors along with all the other principles of sentencing,
we agree with the denial of alternative sentencing.
CONSECUTIVE SENTENCING
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Defendant also alleges that the trial court erred in imposing consecutive
sentences. He asserts that the state failed to establish that consecutive sentences
are warranted in this case. As a result, he contends that his sentences should run
concurrently.
Tenn. Code Ann. § 40-35-115(b)(5) provides that a court may order
sentences to run consecutively if the court finds by a preponderance of the
evidence that:
[t]he defendant 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 victims, the time span of defendant's
undetected sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental damage to the
victim or victims.
Furthermore, the court is required to determine whether the consecutive sentences
(1) are reasonably related to the severity of the offenses committed; (2) serve to
protect the public from further criminal conduct by the offender; and (3) are
congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d
933, 939 (Tenn. 1995).
We find the evidence supports consecutive sentencing. The victim testified
at the sentencing hearing that she suffered a significant decline in her school work
as a result of this abuse and eventually dropped out of high school. She stated that
she had an estranged relationship with her mother and had been in the custody of
the Department of Human Services for at least six (6) months at the time of
defendant’s sentencing.
The victim testified that she had not lived with her mother since she was
thirteen (13). Although she was in her mother’s legal custody, she lived with various
relatives due to her deteriorating relationship with her mother. Additionally, the
victim’s mother testified that the victim suffered from emotional problems as a result
of these assaults.
Furthermore, defendant abused a position of trust with the victim as he was
living in her home at the time of the abuse. The abuse occurred several times over
a three (3) to four (4) year period.
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Considering all the factors set forth in Tenn. Code Ann. § 40-35-115(b)(5),
we find that consecutive sentencing is justified. See generally State v. Melvin, 913
S.W.2d 195, 205 (Tenn. Crim. App. 1995).
We also find that the effective four (4) year sentence is reasonably related
to the severity of the sexual abuse of the young child and serves to protect the
public from further misconduct by the defendant.
In summary, we find that consecutive sentences were appropriate in the case
sub judice. This issue is without merit.
CONCLUSION
Based upon the foregoing, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
WILLIAM M. BARKER, JUDGE
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