            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                        SEPTEMBER 1998 SESSION
                                                     November 30, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 03C01-9710-CC-00462
            Appellee,            )
                                 )    BLOUNT COUNTY
VS.                              )
                                 )    HON. RICHARD R. BAUMGARTNER,
GERALD V. KESSLER,               )    JUDGE (By Interchange)
                                 )
            Appellee.            )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


JOE COSTNER                          JOHN KNOX WALKUP
315 High St.                         Attorney General & Reporter
Maryville, TN 37804
                                     ELIZABETH B. MARNEY
                                     Asst. Attorney General
                                     425 Fifth Ave., North
                                     2nd Floor, Cordell Hull Bldg.
                                     Nashville, TN 37243-0493

                                     MICHAEL L. FLYNN
                                     District Attorney General

                                     MS. KIRK ANDREWS
                                     Asst. District Attorney General
                                     Blount County Courthouse
                                     363 Court St.
                                     Maryville, TN 37804-5906



OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                         OPINION



                On July 28, 1998, the defendant pled guilty to statutory rape and, pursuant

to a plea bargain agreement, received a sentence of one year as a Range I standard

offender.    On September 12, 1997, the trial court held a sentencing hearing and

sentenced the defendant to serve three months of his sentence in custody under a work

release program and nine months on probation. The defendant now appeals this

sentence.



                After a review of the record and the applicable law, we affirm the

defendant’s sentence.



                The defendant’s conviction stems from his involvement with a young girl.

In September of 1995, the defendant met the victim at a football game when she was

fifteen years old. Several months later, the defendant began coaching a girls’ indoor

soccer team. The victim was also involved in soccer and her team often practiced with

the team the defendant coached.



                A few months later, the defendant and the victim began contacting each

other away from soccer practice. They often spoke on the phone or exchanged letters.

The defendant would tell the victim “bedtime stories” at night over the phone.1 On one

occasion the defendant, while picking up his daughter from school, gave the victim a

sexually explicit letter entitled “Lover’s Dream.”



                The defendant continued his involvement with the victim even after the



        1
            These “bedtime stories” were described at the sentencing hearing as “phone sex” between
the d efen dan t and the vic tim.

                                                  2
victim’s father had asked the defendant not to have any contact with the victim. In June

of 1996, the defendant went to a church where the victim was a leader in a Girl Scout

Day Camp. The defendant went inside the church and asked one of the adult leaders

if he could speak with the victim. The victim left the classroom and went into the hallway

where she and the defendant embraced. It was during this embrace that the defendant

put his fingers in her vagina.



              The defendant now contends that the trial court did not properly consider

the sentencing principles and all relevant facts and circumstances and therefore this

Court should review this case upon a standard of de novo without a presumption of

correctness. Further, the defendant contends he is entitled to full probation or at least

a reduction in the time he is required to serve.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-

401(d) Sentencing Commission Comments. This presumption, however, “is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).



              The defendant bears the burden of showing that the sentence was

improper. Id. In determining whether the defendant has met this burden, this Court must

consider (a) the evidence adduced at trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the

nature and characteristics of the offense; and (f) the defendant’s potential or lack of

potential for rehabilitation or treatment. T.C.A. §§ 40-35-103(5), 40-35-210(b).


                                            3
              The defendant contends that this Court “should review the trial court’s

sentencing decision upon a standard of de novo without a presumption that the trial

court’s decision was correct because the trial court did not properly consider the

sentencing principles and all relevant facts and circumstances.”           Specifically, the

defendant argues that the trial court did not properly consider the sentencing principle

that requires it to presume that the defendant is a favorable candidate for alternative

sentencing options, that the trial court improperly based its sentence upon the need for

deterrence of others likely to commit similar crimes, and that the trial court improperly

sentenced the defendant based on the need to avoid depreciating the seriousness of the

crime.



              Although the defendant is correct in that the trial judge did not expressly

state that the defendant was entitled to a presumption of suitability for alternative

sentencing, after a review of the record it is clear the trial judge considered sentencing

principles, the defendant’s criminal history, the history of this type of crime in the

community, the seriousness of the offense as affecting public morals, the defendant’s

suitability for rehabilitation, and applicable mitigating and enhancement factors. It also

appears that the trial judge did presume the defendant was a good candidate for

alternative sentencing as the defendant was sentenced to nine months of full probation

and three months in a work release program. In light of the foregoing, the trial court’s

sentence is entitled to a presumption of correctness even though the presumption of

suitability for alternative sentencing was not specifically stated by the trial judge.



              The defendant further insists that he should have received full probation or

a reduced sentence of incarceration “because the offense did not involve force or

physical harm and because the defendant who supports two children and is an active


                                             4
member in his church and community, has no significant criminal history, has cooperated

with the police in the investigation of the offense, has taken initiative to seek

rehabilitation, and has expressed remorse for his actions.”



              We note that the defendant has the burden of establishing suitability for full

probation. T.C.A. § 40-35-303(b). “To meet the burden of establishing suitability for full

probation, the defendant must demonstrate that probation will ‘subserve the ends of

justice and the best interest of both the public and the defendant.’” State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259

(Tenn. Crim. App. 1990)). The defendant has not met this burden.



              The defendant’s argument that the absence of force or physical harm in this

case should be considered as a factor in granting probation is meritless. The defendant

pled guilty to statutory rape. This offense does not require the use of force or physical

harm.



              The defendant’s contention that because he supports two children he

should be granted full probation is meritless as well. The defendant was sentenced to

a work release program while in custody. As such, it is clear the defendant can continue

to support his children.



              The defendant also contends that because he is an active member in his

church and the community he should be granted full probation. We note that it was, in

part, the defendant’s active participation in the community as a coach on a local team

that helped him become acquainted with the victim. This contention is also without merit.



              The defendant argues that since he has no significant criminal history, has


                                             5
cooperated with the police in the investigation, has taken the initiative to seek

rehabilitation, and has expressed remorse for his actions, he should be granted full

probation. These contentions are also without merit. We note that the defendant

continued his relationship with the victim even after her father had asked that he stay

away from her. The defendant also gave the victim a Christmas present after he had

been in counseling for several months. The defendant actively pursued the victim even

going so far as to stand on the top of a hill close to a swimming pool the victim frequented

with signs counting the days until her sixteenth birthday. 2



                 In light of the foregoing, it is clear the defendant has not established his

suitability for full probation. As such, it was not error for the trial court to sentence the

defendant to three months in custody on a work release program and nine months on

probation.



                 Accordingly, the defendant’s sentences are affirmed.



                                                            ______________________________
                                                            JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




        2
       Appar ently, the victim ’s sixteen th birthday wa s the day the defend ant and th e victim w ere to
consummate their relationship.

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