State of Tennessee v. Shannon James Keener

04/26/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 20, 2019

STATE OF TENNESSEE v. SHANNON JAMES KEENER

Appeal from the Criminal Court for Davidson County

No. 2017-A-469 Steve Dozier, Judge

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No. M2018-00730-CCA-R3-CD

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The Appellant, Shannon James Keener, pled guilty in the Davidson County Criminal

Court to rape and received a ten-year sentence to be served in confinement. On appeal,

the Appellant claims that his sentence is excessive and that the trial court erred by

refusing to grant his request for alternative sentencing. Based upon our review of the

record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and J. ROSS DYER, JJ., joined.

Jeffrey A. DeVasher (on appeal) and C. Dawn Deaner and Georgia Sims (at hearings),

Nashville, Tennessee, for the appellant, Shannon James Keener.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant

Attorney General; Glen R. Funk, District Attorney General; and Jenny Charles, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In March 2017, the Davidson County Grand Jury indicted the Appellant for two

counts of rape of a child, a Class A felony. The indictment alleged that the offenses

occurred between April 1, 2013, and May 20, 2014. On December 7, 2017, the Appellant

pled guilty to one count of rape without consent, a Class B felony. At the plea hearing,

the State gave the following factual account of the crime:

[I]n June 2013 Shannon Keener moved into Mr. [R.A.]’s

home located at 801 Saxty Lake Drive (phonetic) in Davidson

County, Tennessee.1 The two men began a romantic

relationship, and Mr. [R.A.]’s adopted son, [A.A.,] was eight

years of age when Mr. Keener moved into the home. [A.A.]

has been diagnosed as having Dup15q syndrome rendering

him with [severe] developmental disabilities and he is on the

autism spectrum.

One morning in May of 2014, [A.A.] asked his father

[R.A.] if he was going to, quote, “suck on his wee wee the

way Shannon did”. Mr. [R.A.] confronted Mr. Keener about

the statement and Mr. Keener denied any wrong doing.

Shortly thereafter, Mr. [R.A.] ended the relationship with Mr.

Keener and Mr. Keener moved out of the residence. After

moving out, Mr. Keener left Mr. [R.A.] a card stating, quote,

“you know all of this is not true”.

On May 27th, of 2014, Mr. [R.A.] called the

Department of Children’s Services and he took [A.A.] to get a

forensic interview at the Nashville Children’s Alliance on

June 6th, of 2014. Forensic interviewer Lilly Kennedy noted

in a summary that [A.A.] denied that someone ever touched

his penis, but when he was asked if someone asked him to

keep a secret, he quote visibly shut down started sucking on

his arm and rocking back and forth.

On June 13th of 2014, [A.A.]’s regular babysitter by

the name of Erica Brobrige (phonetic), was watching him and

she reported that [A.A.] told her, quote, “Shannon pulled

[A.A.]’s pants down and put his mouth on his private parts.

He said Shannon told him it was a secret”. She said that

[A.A.] told her that occurred one time and then he told her

Mr. Keener’s private parts were larger than his own. [A.A.]

disclosed to her that Mr. Keener made him put his mouth on

Mr. Keener’s private parts. And when she asked him if it

occurred once or a lot, he said a lot.

On July 27th, of 2014, Mr. Keener drove to

Murfreesboro where he was arrested on the side of the

1

In order to protect the minor victim’s identity, we will refer to him and his parents by their

initials.

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interstate. A suicide note and a yellow notebook was located

in the car in which Mr. Keener was driving. The note was

written by Mr. Keener. In the letter Mr. Keener admits to

molesting [A.A.] and says, quote, “I am a thief, liar, rapist,

child molester and cheater. I take and take but never give”.

On November 23rd of 2016, a second forensic

interview was done at the Nashville Children’s Alliance.

[A.A.] stated to forensic interviewer Barbara Talen that Mr.

Keener bend his head over his own private part and quote

started sucking like a baby. Mr. Keener wanted [A.A.] to

suck his private part. [A.A.] told Ms. Talen he did not want

to. Mr. Keener shoved his head down. [A.A.] reported to

Ms. Talen that it happened quote a bunch. [A.A.] also

reported to Ms. Talen that Mr. Keener told him not to tell

anyone.

Pursuant to the plea agreement, the trial court was to determine the length and manner of

service of the sentence.

At the outset of the sentencing hearing, the State introduced the Appellant’s

presentence report into evidence. According to the report, the Appellant dropped out of a

Knoxville high school after the ninth grade in order to take care of his mother, who was

ill. He obtained his GED in 2006 and completed the Certified Nursing Technology

program at Tennessee Technology Center. The Appellant stated in the report that he had

a history of depression and that he became depressed when his relationship with R.A.

ended in May 2014. He said that he attempted suicide twice but received inpatient

counseling for a few days and that suicide was “no longer an issue” for him. He

described his mental health as “excellent.” The Appellant said in the report that he began

consuming alcohol when he was twenty-one years old and “drank to excess” but that he

had been sober since his arrest on July 27, 2014. The Appellant described his physical

health as “good” and did not report any problems. The report showed that the Appellant

worked as a hospice aid for Caris Healthcare from June 2012 to July 2014, that he began

working at Burger King in June 2015, and that he was still working at Burger King at the

time of the sentencing hearing. According to the report, the Appellant was convicted of

misdemeanor theft in October 2013 and received a sentence of eleven months, twenty-

nine days. The trial court granted judicial diversion and place him on probation. The

Appellant also had convictions for two counts of aggravated assault, one count of

unlawful possession of a weapon, and one count of driving while impaired. The four

convictions resulted from an incident on July 27, 2014, in which the Appellant entered

R.A.’s home while the victim was present, threatened to kill R.A., and put a gun to R.A.’s

brother’s head. In March 2015, the Appellant received an effective five-year sentence to

be served on community corrections.

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R.A. testified for the State that the victim was born in July 2004. R.A. was

married at that time, and he and his wife, M.C., adopted the victim when the victim was

two weeks old. R.A. and M.C. divorced in 2013, and the victim primarily lived with

R.A. The Appellant moved in with R.A. in June or July 2013. R.A. said that he trusted

the Appellant to be alone with the victim and that the Appellant would “watch” the

victim while R.A. was at work. The State asked if the Appellant also dressed and bathed

the victim, and R.A. answered, “He has before.” R.A. said that the Appellant’s crime

“pretty well devastated” the victim, that the victim went “through a lot of therapy,” and

that “[i]t’s been a hard road.” On cross-examination, R.A. testified that the Appellant

volunteered to look after the victim while R.A. was at work so that R.A. could save

money on babysitters.

M.C., the victim’s mother, testified that the victim was thirteen years old at the

time of the sentencing hearing. The victim was diagnosed with dup15q syndrome, a

genetic chromosomal disorder, when he was ten or eleven years old. The victim began to

speak when he was three years old, but he still had problems with verbal communication

and could not tie his shoes or ride a bike. M.C. said that the Appellant’s crime affected

her and the victim “tremendously” and that her heart was “broken.” She stated,

“Basically a person I’ve never met in my life or known has ruined my life.” On cross-

examination, M.C. testified that the victim also had a form of autism, that he was “on a

first grade level,” and that he received speech and communication therapy.

Officer Brad Brown of the Lenoir City Police Department testified that he

investigated a case of identity theft and check forgery. The case involved a check written

in the amount of $772.73 and purportedly signed by Faith Dale on November 14, 2016.

Officer Brown obtained a “still shot” that was taken by a surveillance camera at the TVA

Credit Union’s Turnkey Creek Branch on November 14, 2016, and developed the

Appellant as a suspect. Officer Brown tried to talk with the Appellant about the check,

but the Appellant requested legal counsel, so Officer Brown stopped speaking with him.

However, Officer Brown showed the Appellant a copy of the check. The Appellant

“didn’t try to deny anything” and “[j]ust seemed to accept it and go on.” On February 22,

2017, the case against the Appellant was dismissed upon the Appellant’s payment of

$772.73. The State introduced into evidence a copy of a Loudon County judgment,

showing that the Appellant was charged with criminal simulation and that the charge was

dismissed upon his payment of $772.73 in restitution.

On cross-examination, Officer Brown acknowledged that he arrested the Appellant

and brought him to the police department. Officer Brown tried to question the Appellant,

but the Appellant requested counsel, so Officer Brown stopped the interview. Officer

Brown said he then showed the Appellant the bank photograph and a copy of the check

“to let him know what I had and that we were placing him in custody.” The Appellant

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did not say anything and “just shook his head.” Officer Brown said that check was in the

Appellant’s mailbox because the Appellant was living at Faith Dale’s previous address.

Dr. Steven Montgomery testified for the Appellant as an expert in the

administration of psychosexual evaluations. Dr. Montgomery, a forensic psychiatrist at

Vanderbilt University Medical Center, performed a psychosexual risk assessment of the

Appellant and found him to be “open and honest” during the evaluation. However, the

Appellant’s version of the events differed from the victim’s version in that the Appellant

claimed the victim’s father was involved.

Dr. Montgomery testified that he used the Able Assessment for Sexual Interest

(AASI) to evaluate the Appellant. The assessment included a computerized test in which

the Appellant was shown 160 photographs of Caucasian and African-American males

and females in four age categories: preschool, grade school, adolescent, and adult. The

Appellant then rated each slide on scale of one to seven with a score of one being no

interest and a score of seven being high interest, and the test measured his visual reaction

time to the images. The Appellant showed a sexual interest in Caucasian adult males and

African-American males age five or less, African-American females age five or less,

African-American adult females, and African-American adult males. Dr. Montgomery

said the Appellant’s scores were unexpected for his own race group, Caucasian, because

the Appellant did not manifest any sexual interest in Caucasian children. The Appellant

scored in the medium risk group for recidivism, meaning that his risk to reoffend was one

percent at one year, four percent at five years, seven percent at ten years, and ten percent

at fifteen years.

Dr. Montgomery testified that he also scored the Appellant on the Static-99, an

assessment for recidivism, based on the Appellant’s history. The Appellant scored four

points, which put him in the above average risk category. The Appellant received one

point for his age, one point for having a conviction for a violent offense, one point for

being unrelated to the victim, and one point because the victim was male. Dr.

Montgomery explained that when the Appellant’s age increased to thirty-five in two

years, the Appellant’s score would drop to three points, putting him in the average risk

category. Dr. Montgomery stated that the recidivism rate for people in the above average

risk category was eleven percent at five years and that the recidivism rate for people in

the average risk category was eight percent at five years. Dr. Montgomery recommended

that the Appellant receive sex offender treatment, abstain from using alcohol and drugs,

and resume psychiatric treatment if he experienced further episodes of depression.

On cross-examination, Dr. Montgomery testified that the Appellant claimed he

never had any sexual attraction to children, which was inconsistent with results of the

Abel Assessment. The Appellant also claimed he engaged in child molestation “one time

with one victim,” which was inconsistent with the victim’s claim that the victim was

forced to engage in oral sex with the Appellant multiple times. Dr. Montgomery said that

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while the Appellant acknowledged the wrongfulness of his behavior with the victim, the

Appellant “still may have some distortions relating to the reason that it happened with the

other person being cooperating or being a [co-offender] or things about the victim being

sexually inappropriate or precocious or that kind of thing.” In the Appellant’s view, the

victim’s father was “a [co-offender]” or “somehow facilitate[ed] what was going on,” and

the Appellant went along with the inappropriate conduct because he did not want to lose

his relationship with the victim’s father.

Dr. Jessica Duis, an Assistant Professor of Pediatrics and a pediatric geneticist at

Vanderbilt Children’s Hospital, testified for the State that the victim was born with “15q

duplication syndrome,” meaning that “[A.A] has an extra piece of chromosome 15.” The

condition could not be treated or cured and resulted in autism and developmental delays.

Dr. Duis stated that the victim’s speech was delayed and that he “doesn’t relate to people

in the way that normal people do.” The victim was unable to think abstractly, “so . . . if

someone tells him to do something, he would do it. He doesn’t have any room to

understand sarcasm or joking.” The victim’s delays were present since birth, and school

testing showed he had an IQ of fifty-three, meaning he was “severely [a]ffected

intellectually.”

On cross-examination, Dr. Duis testified that she took over the victim’s care from

a colleague who left Vanderbilt, and she acknowledged that she met with the victim only

one time for one hour. Although children with 15q duplication syndrome were delayed

since birth, most parents did not notice the delays until the children were six months old.

Children usually were not diagnosed with the condition until they were two or three years

old.

Marty McKee was called to testify by the State. The State showed McKee a letter

he wrote to the trial court on behalf of the Appellant, and McKee said he wrote the letter

from a template provided to him by the Appellant. The Appellant obtained the template

from defense counsel and emailed the template to McKee and other people. McKee

explained, “They said use it as a guide to fill in the blanks. Because we didn’t want it to

be all over the place, so that’s what we did.” McKee acknowledged that the following

sentence in his letter came from the template: “I ask Your Honor to exercise compassion

in sentencing him.”

On cross-examination, McKee testified that he agreed with what was stated in the

letter. He said that if he had disagreed with something in the letter, he would have

changed it or omitted it. The Appellant did not coerce him into signing the letter. At the

conclusion of McKee’s testimony, defense counsel introduced into evidence nine letters,

including McKee’s letter, written on the Appellant’s behalf.

The Appellant read a statement to the trial court. In the statement, the Appellant

said he currently lived in Lenoir City, that he worked as the General Manager of a Burger

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King in Alcoa, and that the Alcoa restaurant was “one of the busiest” in the franchise. He

said that he was not using alcohol or drugs and that he had “no desire to ever come back

to Nashville or be around the victim or the victim’s family.” The Appellant apologized to

R.A. and A.A. “for what I have done” and said that “[m]y biggest regret in life was the

day I moved to Nashville.” The Appellant stated that he took “full responsibility” for his

crime and requested that he serve his sentence in community corrections.

The trial court found the following enhancement factors applicable to the

Appellant’s sentence: (1), that “[t]he defendant has a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate range”; (4), that the “victim of the offense was particularly vulnerable

because of age or physical or mental disability”; and (14), that the defendant abused a

position of public or private trust. Tenn. Code Ann. § 40-35-114(1), (4), (14). In

mitigation, the trial court applied factor (13), the “catch-all” provision, for the

Appellant’s “lack of record.” See Tenn. Code Ann. § 40-35-113(13). The trial court

sentenced the Appellant to ten years, the midpoint in the range for a Range I offender

convicted of a Class B felony. See Tenn. Code Ann. § 40-35-112(a)(2). The trial court

stated that the Appellant had done well in community corrections but found that

alternative sentencing was inappropriate in this case, stating,

[W]hat message is that sending to Mr. Keener or the young

child or anyone else in Lenoir City or Davidson County if a

rape of a child lands a person on community corrections? I’m

not saying that couldn’t happen, [I] just don’t think it’s the

right thing to do factually in this particular situation.

Accordingly, the trial court ordered that the Appellant serve his ten-year sentence in

confinement.

II. Analysis

A. Excessive Sentence

The Appellant claims that his sentence is excessive because the trial court

misapplied enhancement and mitigating factors. The State argues that the trial court

properly sentenced the Appellant. We agree with the State.

“[S]entences imposed by the trial court within the appropriate statutory range are

to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In sentencing a

defendant, the trial court shall consider the following factors: (1) the evidence, if any,

received at the trial and the sentencing hearing; (2) the presentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and

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characteristics of the criminal conduct involved; (5) evidence and information offered by

the parties on enhancement and mitigating factors; (6) any statistical information

provided by the administrative office of the courts as to sentencing practices for similar

offenses in Tennessee; (7) any statement by the appellant in his own behalf; and (8) the

potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;

see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on an

appellant to demonstrate the impropriety of the sentence. See Tenn. Code Ann. § 40-35-

401, Sentencing Comm’n Cmts.

Regarding the trial court’s application of enhancement factors, the Appellant

claims that the trial court erred by applying factor (1) for his previous history of criminal

convictions because he did not have any convictions at the time of the offense, four of his

five prior convictions occurred during a single episode on July 27, 2014, and three of the

five convictions were misdemeanors. However, as noted by the Appellant, trial courts

“‘can consider criminal convictions or any other criminal behavior which occurred prior

to the sentencing hearing as being “a previous history of criminal convictions or criminal

behavior” . . . regardless of whether the convictions or behavior occurred before or after

the criminal conduct under consideration.’” State v. Jordan, 116 S.W.3d 8, 24 (Tenn.

Crim. App. 2003) (quoting State v. Ed Waters, No. 01-C-01-9106-CR-00158, 1992 WL

28457, at *3 (Tenn. Crim. App. at Nashville, Feb. 20, 1992)). The Appellant had

multiple prior convictions at the time of sentencing, two of which were for violent

felonies involving the victim’s family. State v. Birge, 792 S.W.2d 723, 725 (Tenn. Crim.

App. 1995) (stating that aggravated assault is a violent crime). Therefore, the trial court

properly applied enhancement factor (1).

The Appellant contends that the trial court erred by applying enhancement factor

(4), that the victim was particularly vulnerable because of age or physical or mental

disability, because the proof did not show that he took advantage of the victim’s age or

physical or mental disability during the commission of the crime. We disagree with the

Appellant. The victim was approximately nine years old at the time of the offense, and

he was born with a genetic syndrome that caused him to be severely intellectually and

developmentally delayed from birth. He also was autistic. In applying this factor, the

trial court noted that the victim had an IQ of only fifty-three and received therapy for his

communication skills. At the time of the sentencing hearing, the victim was thirteen

years old but still could not tie his shoes or ride a bike. Thus, we have no hesitation in

concluding that the trial court properly applied enhancement factor (4).

The Appellant also contends that the trial court erred by applying enhancement

factor (14), that he abused a position of public or private trust, because the proof did not

establish the existence of a relationship that promoted confidence, reliability, or faith and

did not show that the offense occurred while he was acting as the victim’s caretaker.

Again, we disagree with the Appellant. Our supreme court has explained that a “court

must look to ‘the nature of the relationship,’ and whether that relationship ‘promoted

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confidence, reliability, or faith.’ A relationship which promotes confidence, reliability, or

faith, usually includes a degree of vulnerability.” State v. Gutierrez, 5 S.W.3d 641, 645

(Tenn.1999) (quoting State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996)). Notably,

[t]he position of parent, step-parent, babysitter, teacher, coach

are but a few obvious examples. The determination of the

existence of a position of trust does not depend on the length

or formality of the relationship, but upon the nature of the

relationship. Thus, the court should look to see whether the

offender formally or informally stood in a relationship to the

victim that promoted confidence, reliability, or faith.

Kissinger, 922 S.W.2d at 488. Here, the Appellant was in a romantic relationship with

the victim’s father and lived with the victim’s father and the victim for a year. During

that time, the Appellant served as the victim’s caretaker while the victim’s father was at

work. He even bathed and dressed the victim. Thus, we also have no hesitation in

concluding that the trial court properly applied enhancement factor (14).

Next, the Appellant claims that the trial court should have applied mitigating

factor (11), that “[t]he defendant, although guilty of the crime, committed the offense

under such unusual circumstances that it is unlikely that a sustained intent to violate the

law motivated the criminal conduct,” to his sentence because he became clinically

depressed “[a]t or about the time of the offense,” attempted suicide twice, and was

abusing alcohol. See Tenn. Code Ann. § 40-35-113(11). The trial court specifically

addressed this factor, stating that “these circumstances aren’t such that that mitigating

factor would apply.” We agree with the trial court. We note that the Appellant stated in

the presentence report that he became depressed when his relationship with R.A. ended in

May 2014. Thus, the evidence does not support his claim that he was depressed at the

time of the offense, which occurred before the relationship ended. In any event,

regardless of when the Appellant became depressed, we conclude that the trial court

properly refused to apply mitigating factor (11).

The Appellant also contends that the trial court erred by refusing to mitigate his

sentence under mitigating factor (13), the “catch-all” provision, based upon his being an

“exceptional employee in a management position”; his expression of remorse; and his

rehabilitation, which he has “shown through his exemplary performance on community

corrections.”

As to the Appellant’s potential for rehabilitation, Dr. Montgomery’s testimony

established that the Appellant’s version of the events differed from the victim’s version in

that the Appellant claimed the victim’s father was involved; the Appellant claimed he did

not have a sexual attraction to children, which was inconsistent with the results of the

Abel Assessment; the Appellant claimed he engaged in child molestation only one time

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with only one victim, which was inconsistent with the victim’s claim that he was forced

to engage in oral sex with the Appellant multiple times; and the Appellant had

“distortions” about his abuse of the victim. Moreover, the Appellant scored in the

medium risk group for recidivism on the Abel Assessment and in the above average risk

category for recidivism on the Static-99. In our view, the Appellant lacks potential for

rehabilitation.

As to the Appellant’s employment history, this court has held that employment

history should be considered favorably in sentencing. See State v. Kelley, 34 S.W.3d

471, 482-83 (Tenn. Crim. App. 2000). Likewise, genuine remorse may be entitled to

consideration. See State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995).

However, neither are statutory factors under Tennessee Code Annotated section 40-35-

113. “[I]t is left to the sound discretion of the trial court whether to apply the so-called

‘catch-all’ provision of section 40-35-113(13).” State v. Robert Allen Zaloba, No.

M2011-00855-CCA-R3-CD, 2012 WL 6690027, at *25 (Tenn. Crim. App. at Nashville,

Dec. 26, 2012). We conclude that the trial court did not abuse its discretion by refusing

to apply mitigating factor (13) for the Appellant’s employment history and remorse.

Regardless, as our supreme court has explained, a trial court’s “misapplication of an

enhancement or mitigating factor does not invalidate the sentence imposed. . . . So long

as there are other reasons consistent with the purposes and principles of sentencing, as

provided by statute, a sentence imposed by the trial court within the appropriate range

should be upheld.” Bise, 380 S.W.3d at 706. In this case, the trial court properly applied

enhancement factors (1), (4), and (14). Therefore, we conclude that the trial court did not

abuse its discretion in determining the length of the Appellant’s sentence.

B. Alternative Sentencing

Finally, the Appellant contends that the trial court erred by denying his request for

alternative sentencing because the record demonstrates that he is an excellent candidate

for rehabilitation, does not have an extensive criminal history, has expressed sincere

remorse, is a valued employee in a supervisory role, has performed well in community

corrections, and is not at a high risk to reoffend. The State argues that the trial court

properly ordered the Appellant to serve his ten-year sentence in confinement. We agree

with the State.

An appellant is eligible for alternative sentencing if the sentence actually imposed

is ten years or less. See Tenn. Code Ann. § 40-35-303(a). Moreover, an appellant who is

an especially mitigated or standard offender convicted of a Class C, D, or E felony should

be considered a favorable candidate for alternative sentencing absent evidence to the

contrary. See Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-

35-103(1) sets forth the following sentencing considerations which are utilized in

determining the appropriateness of alternative sentencing:

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(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.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,

“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant

should be considered in determining the sentence alternative or length of a term to be

imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal

conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for

alternative sentencing. Tenn. Code Ann. § 40-35-102(5). Our supreme court has

specifically held that the abuse of discretion standard, with a presumption of

reasonableness, also applies to a review of a denial of alternative sentencing. State v.

Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

Initially, we note that while the Appellant is eligible for alternative sentencing

because his sentence is ten years, he is not considered to be a favorable candidate for

alternative sentencing because rape is a Class B felony. In addition, we have already

expressed our concerns about the Appellant’s lack of potential for rehabilitation. The

trial court’s comments demonstrate that it found that confinement was necessary to avoid

depreciating the seriousness of the offense. In denying alternative sentencing on that

basis, the criminal act should be especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree. Zeolia, 928 S.W.2d at

462. The circumstances here, in which the Appellant forced a mentally disabled nine-

year-old child to engage in oral sex when the Appellant was supposed to be that child’s

caretaker, are indeed shocking and reprehensible. Thus, we conclude that the trial court

did not abuse its discretion by denying alternative sentencing.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial

court.

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NORMA MCGEE OGLE, JUDGE

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