             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                               JULY 1998 SESSION         September 17, 1998

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                 )
                                    )     C.C.A. NO: 02C01-9709-CR-00349
             Appellee,              )
                                    )     SHELBY COUNTY
VS.                                 )
                                    )     HON. CHRIS CRAFT
                                    )
DAVRON DINISH,                      )
                                    )     (Sentencing)
             Appellant.             )




FOR THE APPELLANT:                              FOR THE APPELLEE:


KEVIN KRAUSE                                    JOHN KNOX WALKUP
Attorney at Law                                 Attorney General & Reporter
142 North Third, Third Floor
Memphis, TN 38103                               GEORGIA BLYTHE FELNER
(At Trial & On Appeal)                          Counsel for the State
                                                Criminal Justice Division
                                                Cordell Hull Building, 2nd Floor
                                                425 Fifth Avenue North
                                                Nashville, TN 37243-0493

                                                WILLIAM L. GIBBONS
                                                District Attorney General

                                                JERRY R. KITCHEN
                                                Asst. District Attorney General
                                                201 Poplar Avenue, 3rd Floor
                                                Memphis, TN 38103




OPINION FILED:


AFFIRMED


ROBERT W. WEDEMEYER,
Special Judge
                                  OPINION
       The defendant pled guilty to one count of statutory rape and agreed to a one-year

sentence as a Range I offender. The trial court accepted this sentence and denied an

alternative sentence. In this appeal, the defendant argues that the trial court abused its

discretion in failing to grant judicial diversion, probation or a week-end sentence. Following

our review of the record, we affirm the trial court.



                                 SENTENCING HEARING

       The evidence offered at the sentencing hearing revealed that the victim and the

defendant were employed at the same restaurant and began dating. At that time, the

victim was sixteen-years-old and the defendant told the victim that he was twenty-two years

old. However, she later learned that he was twenty-seven or twenty-eight years old. Early

in the relationship, the victim and the defendant began having sexual relations. The victim

testified that at times the defendant would pick her up at her parent’s home at midnight or

1:00 a.m. and on other occasions would pick her up at school. The two would then go to

the defendant’s apartment and engage in sexual activities. On many occasions, the

defendant gave the victim marijuana while he drank alcohol and smoked marijuana. The

defendant would return the victim to her parent’s home before the parents could discover

the victim missing. One night, the victim and the defendant passed out and did not make

it back to the victim’s parent’s home. The victim’s mother called the police and told them

the victim was with the defendant.

       The victim said that she had difficulty staying awake and that her grades at school

began to drop. The victim impact statement represented that the victim had become

depressed and had low self esteem as a result of the sexual relationship with the

defendant.

       The defendant testified that he was twenty-eight or twenty-nine years old when he

met the victim at their mutual place of employment. Prior to engaging in sexual conduct

with the victim, the defendant knew the victim was sixteen year of age. He also admitted

that he knew having sex with a minor was against the law. However, the defendant

admitted that he lied to the victim about his age. He said that he feared the victim would

not date him if she knew his true age. The defendant and victim dated for approximately



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one and one half years. At one point in the relationship, the victim’s mother discovered the

defendant’s true age and told the defendant to stay away from her daughter. However, the

defendant continued seeing the victim and engaging in sexual relations with her until they

were caught.

       The defendant’s employer testified that the defendant was an outstanding employee

and had prospects for advancement. At the time of sentencing, the defendant was paying

child support and had only a conviction for driving on a revoked license. The defendant

admitted that he had lied to the probation officer who completed the presentence report

about his drug use.



                                    LEGAL ANALYSIS

       In this case, the defendant pled guilty to statutory rape -- a Class E felony and

agreed to a one-year sentence. Following an evidentiary hearing, the trial court denied the

defendant’s request for an alternative sentence. In this appeal, he argues that the trial

court erred in failing to impose probation, judicial diversion or week-end sentence.

       When the defendant challenges the manner of serving a sentence, it is the duty of

this Court to conduct a de novo review of the record with a presumption that the trial court’s

determinations are correct. Tenn. Code Ann. § 40-35-401(d). The “presumption of

correctness which accompanies the trial court’s action 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).

       In its review, this Court must consider the following: the evidence, if any, received

at trial and sentencing hearing, information contained in the presentence report, the

statutory principles of sentencing, counsel’s arguments as to sentencing alternatives, the

nature and characteristics of the criminal conduct, mitigating and statutory enhancement

factors, any statement that the defendant made on his own behalf, and the potential for

rehabilitation or treatment. Ashby, 823 S.W.2d 166, 168-69 (Tenn. 1991).

       If an accused is convicted of a Class C, D or E felony and is sentenced as a

standard offender, there is a rebuttable presumption that the accused is a favorable

candidate for alternative sentencing unless disqualified by some provision of the



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Tennessee Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-102(6).

The presumption may be successfully rebutted by facts contained in the presentence

report, evidence presented by the State, the testimony of the accused or a defense

witness, or any other source provided it is made a part of the record. State v. Bonestel,

871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). The defendant has the duty of convincing

this Court that the failure of the trial court to impose alternative sentencing was clearly

erroneous. Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401(d); State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher, 805 S.W.2d 785, 786

(Tenn. Crim. App. 1991).

         In a case where the defendant seeks probation, the Court must consider “the

accused’s criminal record, social history, present physical and mental condition, the

circumstances of the offense, the deterrent effect upon criminal activity of the accused as

well as others, and the accused’s potential for rehabilitation and treatment. State v.

Parker, 932 S.W.2d 945, 959 (Tenn. Crim. App. 1996). This Court has previously

determined that a negative finding of any one of these factors is sufficient to support a

denial of probation. State v. Bell, No. 02C01-9608-CR-00275 (Tenn. Crim. App. July 18,

1997).

         In the instant case, the trial court heard the testimony of the victim, the defendant,

the defendant’s mother, the defendant’s maternal grandmother and the defendant’s

manager at his place of employment. The trial court also reviewed the presentence report

and heard argument by counsel.

         The trial court found that the defendant intentionally and purposefully deceived the

victim by lying about his age so that the victim would go out with him. The court stated that

the defendant’s great age difference indicated his ability to toy with the emotions of a

young girl. The defendant told the court that he knew at the time that having sex with a

minor would be wrong. The court also noted that the defendant continuously had sexual

relations with the victim, even after the victim’s mother told the defendant to stay away from

the victim. Further, the defendant would assist the victim in sneaking out of her parent’s

house on school nights to engage in sexual activities.

         The court found that the defendant supplied the victim with marijuana so that he



                                               4
could use her body. All the while, the defendant consumed alcohol and marijuana. The

court also placed significance on the fact that the defendant lied to the probation officer

about his drug use. In considering the defendant’ social history, the court found that the

defendant had an illegitimate child and had exhibited his inability to live within his means

by filing bankruptcy.

       After making his finding of fact, the trial court recognized the presumption of

alternative sentencing. However, the court concluded that:


                [B]ecause of the circumstances of this offense and the willful
                conduct in all of these areas of this man who still today has no
                credibility, is lying on his presentence report, and sitting there
                now does not realize the wrong that he had done to this child,
                I just cannot give him any relief, cannot.


The trial court imposed a $500 fine and sentenced the defendant as a Range I offender

to one year in the local workhouse.

       It is abundantly clear from the record that the trial judge considered the law and

evidence before him and concluded that it was appropriate to deny an alternative sentence

in this case.    Having reviewed the testimony from the sentencing hearing and the

presentence report and having set out the trial court’s finding, this Court concludes that the

defendant has failed to meet his burden of showing that the trial court’s finding was clearly

erroneous.

                                        CONCLUSION

       Finding that the trial court properly considered the established sentencing

considerations and evidence, this Court AFFIRMS the sentence imposed by the trial court.




                                                    ROBERT W. WEDEMEYER,
                                                    Special Judge


CONCUR:



JOE G. RILEY, Judge



CURWOOD W ITT, Judge

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