        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                January 21, 2015 Session

                  STATE OF TENNESSEE v. MICHAEL WISE

                 Appeal from the Criminal Court for Sullivan County
                         No. S61337 R. Jerry Beck, Judge


                  No. E2014-00712-CCA-R3-CD – Filed June 4, 2015


The Defendant, Michael Wise, pleaded guilty to sexual battery by an authority figure, a
Class C felony. See T.C.A. § 39-13-527 (2014). The trial court sentenced him as a
Range I, standard offender to three years‟ confinement in the Tennessee Department of
Correction. On appeal, the Defendant contends that the court abused its discretion by
denying him alternative sentencing and that a presumption of reasonableness should not
apply to its findings. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Mark D. Harris, Kingsport, Tennessee, for the appellant, Michael Wise.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Barry P. Staubus, District Attorney General; and Julie Canter, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

       On February 24, 2014, the Defendant entered a best interest guilty plea pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970), to sexual battery by an authority figure. At
the guilty plea hearing, the State summarized the basis for the plea: Bristol police officers
responded to Windsor Avenue on August 16, 2012, regarding a reported sexual assault.
The victim, the Defendant‟s stepdaughter, told police that four to six months earlier, the
Defendant entered her bedroom, slipped his hand down her pants, and touched her. She
told officers that a few days after this incident, the Defendant again entered her bedroom
and touched her similarly. The victim told her mother of the incident, but her mother told
her that the Defendant was taking medications and could not recall the incident.

       The victim told the police that she and the Defendant previously were in a vehicle
together and that he told her that one of his sexual fantasies was to “sleep with a virgin”
and that he wanted her to “finger herself.” She refused.

       The Defendant told the police that the victim had recently confided in him that she
was having “issues with her sexuality.” The Defendant was taking antidepressant and
anxiety medications and was having odd dreams, thoughts, and hallucinations. The
Defendant told the police that one night around February 1, he awoke and that while
walking around his house, he accidentally went into the victim‟s bedroom. The
Defendant lay down on the victim‟s bed, positioned himself against the victim, and put
his hand down her pants, touching the bare skin of her vagina.

      The Defendant stipulated to the factual basis for the guilty plea, and the trial court
accepted the plea and imposed the agreed three-year sentence.

       At the sentencing hearing on April 11, 2014, a presentence report, a sex offender
risk assessment report, and a victim impact statement were received as exhibits. The
Defendant did not testify.

        The presentence report contained information relating to the incident and the
Defendant‟s background. The investigating officer‟s initial version of the incident
showed that the Defendant could not remember the incident due to the medications he
was taking. The Defendant explained that the victim had recently “come out about being
a lesbian” and admitted to him that she and her girlfriend touched each other sexually
while in a restroom at school. The victim also said a boy at school told her about his
fantasy of sleeping with a virgin. The Defendant said every man had the same dream.
He then told his wife about the victim‟s statements and informed the victim that he would
alert the school about the victim‟s sexual acts. The victim said she would call the police.

       In the Defendant‟s statement provided to the police on August 22, 2012, and
included in the report, the Defendant said that his doctor began changing his medications
in January 2012. He explained that the reason he touched the victim‟s vagina was
because he thought he was in his own bedroom. Once the Defendant realized the victim
was not his wife, he left the victim‟s bedroom. A few days later, the Defendant‟s wife
asked the Defendant about the incident, and out of embarrassment, he replied that he did
not remember the incident but that if it occurred, it was due to his medications. The
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Defendant told the police that he was sorry for what he did, that he did not mean to touch
the victim‟s vagina, and that he did not ask the victim to touch herself sexually in front of
him.

        The report showed the thirty-seven-year-old Defendant had previous convictions
for petit larceny in Virginia at age eighteen and for traffic offenses that occurred between
ages twenty-two and thirty-seven. The Defendant completed the tenth grade but did not
graduate or obtain a high school equivalency certificate.

       The report showed the Defendant‟s mental health was fair while his physical
health was good. The Defendant took Paxil for anxiety and depression. The Defendant
suffered from knee pain, hypertension, high triglycerides, arthritis, and degenerative disk
disease. As a juvenile, the Defendant received treatment for behavioral problems. The
Defendant reported that his only use of alcohol occurred when he and his wife celebrated
their anniversary, and he denied any illegal drug use. He never sought or received
psychiatric treatment or mental health counseling.

       The Defendant had been married for twelve years and had two biological children,
who were in the fourth and seventh grades. He reported that if granted probation, he
would continue to live with his wife and two children. The victim had been living with
her aunt since August 2012.

       The Defendant was currently employed as a driver and had worked for almost nine
years. He chose not to give a statement for the presentence report.

        The sex offender risk assessment report contained the statement the Defendant
made during a clinical interview, in which he denied engaging in sexual contact with the
victim. The victim, whom the Defendant had known since she was three years old, was
fifteen at the time of the allegations. The Defendant stated that after the victim told her
mother about the incident, the victim‟s mother asked the victim “if she wanted her to tell
the authorities and she said no,” that he bought an alarm for the victim‟s door, and that he
believed the victim reported him because she was angry with him and wanted him out of
the house in order to “run over her mother and do what she want[ed].” He explained that
he signed the police statement under duress and due to threats by the officer to take his
other two children. The Defendant claimed that during the police questioning, he was not
asked if he would like an attorney present.

       The risk assessment report also showed the Defendant‟s polygraph examination
verified that he was truthful when he stated during the clinical interview that he did not
engage or attempt to engage in sexual contact with the victim. The Defendant also
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denied engaging in sexual contact with minors since turning eighteen years old, and no
other allegation of sexual abuse had been made against him.

       The report showed the Defendant functioned within the below average to average
range of intelligence. The Defendant was “[j]ust about deaf” in his right ear, had no
difficulties with his vision, and had not been given a formal mental health diagnosis. He
denied having a history of hallucinations.

        The Defendant stated that he first “use[d]” alcohol and marijuana at age seventeen
 or eighteen, last used alcohol around age thirty-three, and last used marijuana at age
 eighteen or nineteen. The risk assessment report noted the Defendant‟s prior record
included a domestic assault in 2001, although the report does not reflect whether the
Defendant was convicted.

       The Defendant reported that he was physically and emotionally abused by his
stepfather. The Defendant reported that his relationship with his sister was good and
denied having difficulty with developing honest, intimate relationships with people his
age.

       The risk assessment report showed the Defendant was tested and determined to
have deviant sexual arousal responses to minors. The Defendant exhibited “clinically
significant arousal” to six- to twelve-year-old females in “persuasive scenarios” and
thirteen- to seventeen-year-old males in persuasive scenarios.

      The report concluded that the Defendant presented a “[l]ow risk to sexually act
out” and that he could be treated in an outpatient program in the community with the
appropriate structure and support. The report also recommended family therapy as well
as ongoing therapy and medication management treatment.

       The victim impact statement showed the victim believed she was once able to trust
the Defendant as her own father but no longer knew him. She did not have “much of a
relationship” with her mother or her siblings since the incidents occurred, and her family
was “torn to shreds” because of the Defendant‟s actions. She feared that the Defendant
would return her to that “awful reality.” She was having “horrible nightmares” that
brought her to tears and was seeing a counselor because of the “emotional hurt.”

      The trial court noted the Defendant‟s age, statements to the police, previous
convictions, education, health, employment history, and finances. Relative to the
Defendant‟s employment, defense counsel clarified that the Defendant had changed
employment and was a machinist at the time of the sentencing hearing. Relative to the
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Defendant‟s previous convictions, the court noted the most serious crime was the
misdemeanor theft, for which the Defendant received twelve months‟ probation.

        The trial court noted the sex offender risk assessment report was “fairly favorable .
. . in regards to reoffending.” Defense counsel then mentioned the Defendant passed a
polygraph examination and explained that the Defendant entered a best interest guilty
plea because he did not think he could overcome his admission and did not want to put
the victim through a trial. The court noted it would consider the victim‟s emotional
stress.

       The trial court found as follows:

               The Defendant gave [a statement which] I‟ve read portions of it into
       the record as to when he confessed to the police. He basically said he did
       it. Said he did it because [his] doctor was changing his medications around.
       It‟s detailed.

              ....

              But in this case I‟m going to send the Defendant back with two other
       children that . . . he intends to live with . . ., as I understand it. And he
       admitted to the . . . police he did it. He denied he did it to the Counseling &
       Consultation Services . . . .

               I just can‟t be assured what the outcome would be. If it wasn‟t for
       that factor, I would place him on supervised probation. . . .

              I‟m going to deny probation, all forms and kinds.

       This appeal followed.

       The Defendant contends that the trial court abused its discretion by denying him
alternative sentencing and that the presumption of reasonableness should not apply to its
findings. He argues that (1) the court failed to properly consider the sex offender risk
assessment report as “persuasive” and (2) the court failed to consider the purposes and
principles of sentencing. The State responds that the court properly considered the
purposes and principles of sentencing and properly concluded that the circumstances of
the offense and the presence of the Defendant‟s children in his home weighed against
alternative sentencing. Alternatively, the State argues that a de novo review of the record
supports the denial of alternative sentencing.
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       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant
sentenced to ten years or less. T.C.A. § 40-35-303(a) (2014). The burden of establishing
suitability for probation rests with a defendant, who must demonstrate that probation will
“„subserve the ends of justice and the best interest of both the public and the defendant.‟”
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

       A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant‟s background. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); see State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court
is permitted to sentence a defendant to incarceration when:

       (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[.]

T.C.A. § 40-35-103(1)(A)-(C) (2014); see Trotter, 201 S.W.3d at 654.

       Relative to the Defendant‟s first argument that the trial court should have regarded
the sex offender risk assessment report as persuasive, the Defendant explains that

       the examiner had substantial doubt that the offense with which [the
       Defendant] was charged and convicted actually occurred . . . . [T]he trial
       court reached an erroneous conclusion constituting a breach of discretion
       by finding the conflict between the statement [the Defendant] gave to the
       police and his adamant denial of sexual contact with [the victim] should be
       held against him. . . . It was therefore reversible error for the trial court not
       to have weighed the likelihood the offense had not been committed based
       upon the sentencing phase evidence, especially in the context of an [Alford]
       plea. . . .

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             . . . [The Defendant] consistently denied having engaged or
       attempted to engage in sexual contact with [the victim] and passed [the
       polygraph examination] confirming his denial for risk assessment purposes.
       The professional examiner did not question the reliability of the polygraph
       examination results.

(internal citations omitted).

        The Defendant, thus, does not argue in his brief that the trial court should have
found the sex offender risk assessment report persuasive because the report showed that
he presented a low risk to reoffend and could be treated in the community. Rather, the
Defendant argues that the court should have “weighed the likelihood the offense had not
been committed based upon the sentencing phase evidence,” i.e., the methodology,
results, and opinion of the professional examiner. To decide the offense had not been
committed, the examiner would have had to rely upon the results of the polygraph
examination. Our supreme court has explicitly held, however, that neither polygraph
examination results nor parts of a risk assessment report relying upon such results may be
the basis for a sentencing decision. See State v. Pierce, 138 S.W.3d 820, 821 (Tenn.
2004) (holding that “[b]ecause polygraph examinations are inherently unreliable, . . . trial
courts may not consider polygraph examination results or any portion of a risk
assessment report that relies upon polygraph examination results when imposing
sentences”).

        The record reflects that the trial court mentioned but did not rely upon the results
of the polygraph examination. The court was correct not to base its decision upon the
results, and the Defendant‟s argument is without merit.

       The Defendant‟s second argument is that the trial court failed to consider the
purposes and principles of sentencing. While the record reflects that the court noted the
Defendant‟s inconsistent statements and proposed living environment, the record does
not reflect the court‟s adequate consideration of the purposes and principles of sentencing
contained in Tennessee Code Annotated sections 40-35-102 or 40-35-103. As a result,
we find a de novo review of the record appropriate.

       In conducting a de novo review, this court must consider any evidence received at
the trial and sentencing hearing, the presentence report, the principles of sentencing,
counsel‟s arguments as to sentencing alternatives, the nature and characteristics of the
criminal conduct, any mitigating or statutory enhancement factors, statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee, any statement that the defendant made on his own behalf, and the
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potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168 (Tenn.
1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727 S.W.2d 229,
236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see T.C.A.
§ 40-35-102 (2014).

       We have considered the aforementioned factors as well as the purposes and
principles of sentencing. See T.C.A. § 40-35-102, -103, -210(b). Based upon our de
novo review, we initially note the Defendant, a Range I, standard offender sentenced to
three years for a Class C felony, would be eligible for probation and would be considered
a favorable candidate for alternative sentencing, absent evidence to the contrary. See id.
§§ 40-35-303(a), -102(6)(A) (“A defendant who does not fall within the parameters of
subdivision (5), and who is . . . [a] standard offender convicted of a Class C . . . felony,
should be considered as a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary[.]”). We further note that although the record reflects
the Defendant‟s multiple traffic offenses and a single petit larceny conviction, the record
does not reflect a long history of criminal conduct, a need for deterrence, or the frequent
or recent unsuccessful application of measures less restrictive than confinement. See id.
§ 40-35-103(1)(A)-(C). The record, however, shows that the thirty-seven-year-old
Defendant pleaded guilty to an especially shocking, reprehensible, or offensive offense:
intimate sexual contact with his teenage stepdaughter. See id. § 40-35-103(1)(B); see
also State v. Max Eugene Martin, No. 01C01-9609-CR-00415, 1998 WL 188856, at *4
(Tenn. Crim. App. Apr. 20, 1998) (citing State v. Jackie B. Richardson, No. 85-140-III,
1985 WL 4044, at *1 (Tenn. Crim. App. Dec. 4, 1985) (“Clearly, the sexual abuse of a
nine (9) year old child is especially shocking, reprehensible, and offensive.”)). The need
to avoid depreciating the seriousness of the offense weighs against probation. See id. §
40-35-103(1)(B).

       Even though the sex offender assessment reports the Defendant as a low risk to
sexually reoffend and that he could be treated in the community, the Defendant‟s
providing inconsistent versions of the incident also weighs against probation. See T.C.A.
§ 40-35-103(5). In the Defendant‟s first statement to the police, he said he could not
remember the incident due to his medications. About one week later, the Defendant
admitted to the police that he touched the victim‟s vagina. Finally, during the clinical
interview, the Defendant denied engaging in any sexual contact with the victim. Given
these inconsistences, the Defendant was untruthful in at least one statement, which
supports the denial of probation. See State v. Sharp, 327 S.W.3d 704, 716 (Tenn. Crim.
App. 2010) (stating that a “trial court may consider a defendant‟s untruthfulness and lack
of candor as they relate to the potential for rehabilitation” under Tennessee Code
Annotated section 40–35–103(5)). Untruthfulness alone is sufficient for the denial of
probation. See State v. Dowdy, 894 S.W.2d 301, 305-06 (Tenn. Crim. App. 1994)
                                             8
(stating that “untruthfulness of a defendant can be the basis for a denial of probation” and
explaining that it would be “unrealistic to assume that someone who has just pled guilty
to a felony conviction, who then offers perjured testimony to the court, denies any
criminal wrongdoing for the offense for which they have just pled, and is in general
unrepentant is someone who could immediately return to their community”).

       The Defendant‟s reported sexual arousal to minors is also relevant for sentencing
purposes and weighs against probation. See Pierce, 138 S.W.3d at 827 (considering “the
defendant‟s sexual attraction to minors, as documented in his risk assessment,” as a factor
supporting the denial of probation where the defendant pleaded guilty to attempted rape
of a child). Here, the sex offender risk assessment report reflects that the Defendant
exhibited clinically significant sexual arousal to six- to twelve-year-old females in
persuasive scenarios and thirteen- to seventeen-year-old males in persuasive scenarios.
Although the Defendant had a low risk to reoffend, the presence of two young children
within the home would increase the likelihood he would act on his arousal to minors
documented in the risk assessment report. Accordingly, based upon the above
considerations, we determine that the Defendant should be ordered to serve his sentence
in the Department of Correction. The Defendant is not entitled to relief.

      In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.


                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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