          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                          OCTOBER SESSION, 1998         March 9, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,               )   C.C.A. NO. 03C01-9802-CR-00071
                                  )
            Appellee,             )
                                  )   SULLIVAN COUNTY
V.                                )
                                  )
                                  )   HON. PHYLLIS H. MILLER, JUDGE
CHRISTOPHER WAYNE CURTIS,         )
                                  )
            Appe llant.           )   (CHILD ABUSE)



FOR THE APPELLANT:                    FOR THE APPELLEE:

TERRY C. FRYE                         JOHN KNOX WALKUP
2001 Euclid Avenue                    Attorney General & Reporter
Bristol, Virginia 24201
                                      ELIZABETH B. MARNEY
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      H. GR EELE Y WE LLS, J R.
                                      District Attorney General

                                      BARRY P. STAUBUS
                                      Assistant District Attorney General
                                      140 Blountville Bypass
                                      P.O. Box 526
                                      Blountville, TN 37617




OPINION FILED ________________________

AFFIRMED AS MODIFIED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       Christopher Wayne Curtis, the De fenda nt, app eals a s of righ t followin g his

sentencing hearing in the Sullivan Coun ty Crimina l Court. Defend ant pled g uilty to

one (1) count of child abuse, a Class D felony. Following his sentencing hearing,

Defendant was senten ced to two (2) yea rs as a Range I Standard Offender. The

Defe ndan t appe als on the ba sis of th e trial co urt’s denial of any form of alternative

senten cing. W e affirm the judgm ent of the tria l court.



       When an accused challenges the length, ran ge or the mann er 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. 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 circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence , this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and chara cteristics of the criminal co nduct involved; (e) an y statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-102, -103, and -210; see State v. Smith , 735 S.W.2d

859, 863 (T enn. Crim. A pp. 1987).




                                             -2-
        If our review reflects tha t the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, the n we m ay not m odify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

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



        The presentence report, which was made an exhibit at the sentencing hearing,

included a statement given by Defe ndan t to inves tigating officers six (6) days after

the comm ission of the criminal o ffense. In that statemen t, Defendan t told the officers

that he ha d bee n cleaning house all afternoon on the day of the offense and was

upset that his wife never clean ed ho use. W hile folding clothes in the bedroom, he

noticed the twen ty (20) m onth o ld victim stand ing on a coffe e table which was also

located in the bedroom. Defendant took the victim off the table and returned to

folding clothes. The victim again climbed on top of the table and was removed by

the Defendant fo r the second time. The victim again climbed on top of the coffee

table and was standing up. Defendant stated that he became angry, and he

forcefu lly pulled a pair of jogging pants, upon which the victim was standing, out from

under the victim’s fe et. This caused the victim to fall into a wardrobe beside the

coffee table. A s a res ult, the vic tim fell onto a co ncrete floor, hitting the back of her

head.    Defendant told the officers that the victim did not cry very much, and

therefore, he thought that she was not injured. When she became sleepy, the

Defen dant pu t the victim to bed.



        At the se ntenc ing he aring, D efend ant’s pasto r, Reve rend J esse Neil, testified

that he had k nown the De fenda nt all his life. Reverend Neil testified that Defendant

                                             -3-
was active in church activities, singing in a gospel group and visiting nursing homes.

He desc ribed Defen dant as an “e xcellent, good pe rson.”



      Chris ty Hood , engaged to marry the Defendant, testified as to his good

relation ship with her and her child. Hood stated that she a llowed Defen dant to care

for her child when she was away and did not have any reason to think that he might

harm the child. Hood recalled that Defendant was employed by Grindstaff Chevrolet

and supported her and her child. She had never seen any indication that he had a

proble m with ange r contro l.



      Earl Curtis, the Defendant’s father, is a minister.         He testified that the

Defendant was raised in a Christian home and that he always went to church. He

recalled that Defendant sang in a gospel group at nursing homes as often as

possible. Defendant had been employed since he was sixtee n (16) yea rs of age .

Curtis ha d never k nown th e Defe ndant to use dru gs or alco hol.



      The Defe ndan t testified on his own be half. He w as ba bysitting the ch ild, his

step-daugh ter, when the offense occurred. He a nd the child’s m other, A ngela

Vicars, had been married approximately three (3) weeks at the time of the offense.

Defendant admitted that “wha t I done [sic] about pulling, getting the pants, and

pulling from under her, it was not --- it was bad judgment on my behalf; but I in no

way, mea nt in an y way to caus e this to happ en, you know . I got the pants , and I d id

not have one hint of anything in my mind that she was going to fall.” Defendant

stated that he frequently babysat for his stepdaughter and his other relatives’

children. Defendant was living w ith Ang ela Vic ars an d her c hild prio r to their

weddin g date o f Novem ber 1, 19 98.

                                           -4-
       Defendant stated that he was currently employed by Grindstaff Chevrolet and

was top salesman for the past two (2) months. Since the age of sixteen (16),

Defendant had be en con stantly em ployed. H e has n ever bee n convicte d of any

criminal offenses and was very involved in his church, singing and visiting the

elderly.



       Ange la Vicars, the mother of the victim, testified that the victim was twenty

(20) months old at the time of the offense. Vicars was at work and trusted the

Defendant to care for h er child as they were married . The child was fine and was

sleeping when V icars le ft for wor k. W hen V icars re turned , the victim was s till

sleeping and she qu estioned the Defe ndant a s to whether she had been asleep the

entire time Vicars was away. The Defendant told Vicars th at the victim had been

asleep the entire time she was at work. As the victim looked fine, Vicars and the

Defendant went into the other room and watched a movie. Vicars recalled that

Defendant was laughing and never mentioned any incident in which the ch ild might

have be en injured .



       At 5:30 a.m. the victim awoke, screaming and unable to open her eyes. When

Vicars felt the back of her h ead, she noticed it was swollen and she called the

doctor. The D efend ant still m aintain ed tha t nothin g had happ ened to the vic tim wh ile

he was watch ing her. After taking the victim to the hospital, they were advised that

there would be an investigation. At that time, Defendant stated he was shaving

when he heard the victim scream, he walked into her room and fo und th e victim in

the floor beside her bed. After talking with the victim’s doctor and learning of the

victim’s injuries to both the front and back of her head, it was determined that the

injuries we re not a re sult of a fall from the bed .

                                             -5-
      The victim was in the hospital for seven (7) days. Due to the amount of brain

swelling, the victim was put on steroids and they did not know if she would live. She

was in intensive care for a total of three (3) days, with her whole head swollen and

unab le to open her eyes . Even after beginning to recover, both of the victim’s eyes

were black. Th rougho ut this time , Defend ant con tinued to d eny that a nything had

happe ned to the victim while in his care .



      A defen dant w ho “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorab le candidate for a lternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). Our sentencing law also provides that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clear disregard

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall   be given     first priority   regarding   sentences    involving

incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circu mstan ces pre sented in each c ase. See State v.

Taylor, 744 S.W .2d 919 , 922 (T enn. C rim. App . 1987).



      Additionally, 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 necessa ry to ach ieve the purpo ses fo r which the se ntenc e is

imposed. Tenn. Code Ann. § 40-3 5-103(3)-(4). The court should also consider the

                                           -6-
potential for rehab ilitation o r treatm ent of th e defe ndan t in determining the sentence

alternative. Tenn . Code An n. § 40-35-10 3(5).



       The trial court found that although the Defendant was presumed eligible for

alternative senten cing, that th e Defe ndant was not a good cand idate a nd his

sentence should be served in the Tennessee Department of Correction. In denying

an alternative sentenc e, the trial court ultimately reasoned that Defendant had a lack

of potential for rehabilitation and that confinem ent wa s nec essa ry to avo id

deprec iating the s eriousn ess of the offense.



       The considerations which militate against alternative sentencing include: the

need to protect society by restraining a defendant having a long history of criminal

condu ct, whether confinement is particularly appropriate to e ffectively deter others

likely to com mit a similar offense, the need to avoid depreciating the seriousness of

the offense, and the ne ed to order co nfinemen t in cases in which less restrictive

measures have often or recently been unsuccessfully applied to the defendan t.

Tenn . Code Ann. § 4 0-35-10 3(1).



       In reviewing Defendant’s presentence report, the trial court found that his

statem ents to the police conflicted with his testimony and his initial denials of

wrongdoing to the victim’s mothe r. At the sentencing hearing, Defendant testified

that the victim’s mother had a bad temper and that the injuries could have occurred

prior to her leaving for work. The trial court reasoned that his continued testimony

that he “did not mean to do” the acts was an indication that he failed to take

respon sibility for his actions. Defend ant’s failure to assume responsibility reflected

upon his lack of appreciation of the seriousness of the offense which he committed.

                                            -7-
In addition, h is lack of ho nesty de mons trates little pote ntial for reha bilitation.

Defe ndan t’s credibility and failure to accep t respon sibility for his crim e were b oth

circumstances germa ne to his rehab ilitation poten tial. State v. Zeolia , 928 S.W.2d

457 (Ten n. Crim. App . 1996) (citations om itted).



       The Community Corrections Act allows ce rtain eligible o ffenders to participa te

in community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-103.

A defendant must first be a suitable candidate for alternative sentencing. If so, a

defendant is then eligible for participation in a community corrections program if he

also satisfies several minimum eligibility criteria set forth at Tennessee Code

Annotated section 40-36 -106(a).



       However, even though an offender meets the requirements of eligibility, the

Act does n ot provide that the offe nder is au tomatica lly entitled to su ch relief. State

v. Grandbe rry, 803 S.W.2d 706, 707 (Tenn . Crim. A pp. 199 0); State v. Taylor, 744

S.W .2d 919, 922 (Tenn. Crim. App. 1987). Rather, the statute provides that the

criteria shall be interpreted a s min imum stand ards to guide a trial co urt’s

determination of whether that offender is eligible for community corrections. Tenn.

Code Ann. § 40-36 -106( d). Th e trial court correc tly determ ined that C omm unity

Corrections was not an appropriate alternative due to the fact that Defendant

committed a violent, felony offense against a twenty (20) month old child. Tenn.

Code A nn. § 40-36-1 06(a)(3).



       The burden is on the defendant to show that the sente nce h e rece ived is

improper and that he is entitled to p robation . Ashby, 823 S.W.2d at 169. Upon




                                            -8-
review of the record, the presentence report, and the briefs in the case sub judice,

we find no error in the trial court’s denial of alternative sentencing.



       In essence, the trial court’s findings of fact that Defendant lacked candor and

failed to assum e respo nsibility for his crim inal acts ar e sufficient to deny alternative

sentencing in this case.



       The judgment reflects that Defendant was convicted of the Class D felony of

child abuse in violation of Tennessee Code Annotated section 39-15-404 (emp hasis

added). The judgment should have reflected that he was convicted of Class D

felony child abuse in violation of Tennessee Code Annotated section 39-15-401.

The jud gmen t is modified solely to co rrect this typo graphic al error.



       We affirm the judgment of the trial court as modified.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




                                            -9-
