        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs March 2, 2010

          STATE OF TENNESSEE v. MICHAEL MARTEZ RHODES

             Direct Appeal from the Criminal Court for Davidson County
                    No. 2007-B-1384     Cheryl Blackburn, Judge


               No. M2009-00077-CCA-R3-CD - Filed December 8, 2010


The defendant, Michael Martez Rhodes, pursuant to a plea agreement, entered an Alford
“best interest” plea of guilty to two counts of attempted aggravated sexual battery, a Class
C felony. The agreement provided for a four-year sentence for each conviction, with the
manner of service to be determined by the trial court. Following a sentencing hearing, the
trial court imposed consecutive sentences for a total effective sentence of eight years, to be
served in the Department of Correction. On appeal, the defendant argues that the trial court
erred in denying probation and in imposing consecutive sentences. After careful review, we
affirm the judgments from the trial court. However, we note the transcript shows an Alford
“best-interest” guilty plea. The judgment reflects a plea of nolo contendere. We remand for
a correction of the judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                                  and Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.

J. David Wicker, Nashville, Tennessee, for the appellant, Michael Martez Rhodes.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General; and Katrin Miller, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       Had the State proceeded to trial, it would have presented the following facts. On
April 5, 2006, the eleven-year-old victim disclosed to her mother that her stepfather, the
defendant, had grabbed her breasts. The victim’s mother, who was the defendant’s wife,
immediately reported this to the Department of Children’s Services and the Metro Police
Department. A controlled telephone call between the victim’s mother and the defendant was
arranged by the detective assigned to investigate this case. During the telephone call, the
defendant admitted that he had pinched the victim’s breasts and had touched the outside of
the victim’s vagina. He claimed the touches were not sexual in nature but, rather, were
playful and were intended to show her where she needed to shave and that she needed to start
wearing a bra.

       In another recorded telephone conversation between the victim’s mother and the
defendant, he made the same admissions and urged her not to reveal the information. He
asked her to speak to the victim and instruct her not to tell anyone that he had touched her
vagina. However, the defendant told the victim’s mother that the victim could tell that he
had touched her breasts.

       The detective’s testimony would have been that he recorded an interview with the
defendant in which the defendant acknowledged that he pinched the victim’s nipples but
denied that the touching was sexual in nature. During the plea hearing, the defendant
acknowledged the accuracy of the facts recited by the State. The defendant entered a nolo
contendere plea to two counts of attempted aggravated sexual battery in exchange for two
four-year sentences, with the manner of service to be determined by the trial court.

       During the sentencing hearing, the victim testified that she was eleven years old when
the defendant, her ex-stepfather, touched her vaginal area. She said that she would like to
see the defendant go to jail. The victim testified that she told her mother and her best friend
what had happened and, further, said that the incidents “ruined [her] life.” She said that she
told her friend because she thought her friend would not tell anyone; however, people at
school learned about the incidents, pointed at her, and talked about how she was molested.
She testified that she had been in counseling since the defendant touched her.

       During cross-examination, the victim acknowledged that she also made similar
allegations against another man and that she had been in counseling prior to making the
underlying allegations. She did not recall how long she had been in counseling before she
made these allegations. She testified that there were three people living in their home in
addition to herself: the defendant, his son, and her mother.

        The victim testified that the defendant walked around the home in his boxers. She
testified that they all shared the same bathroom and that the defendant would enter the
bathroom while she was showering. He told her that he did this when the victim’s
stepbrother needed to use the bathroom to ensure that the stepbrother was not looking at her
because they used a transparent shower curtain. The victim thought it was inappropriate for

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the defendant to enter the bathroom while she was showering.

        The victim testified that on both occasions when the defendant pinched her breasts,
he told her that she needed to talk to her mother about wearing a bra. The victim testified
that the defendant was wearing boxers when he touched her breasts. She testified that he
touched her vaginal area while she was in the shower. The defendant told her she needed to
start shaving “down there because [she] was starting to get a lot of hair right there.” She
testified that she wanted to shave and had discussed it with her mother but had not discussed
it with the defendant.

       The victim testified that a neighbor had also entered a guilty plea to touching her. The
neighbor touched her repeatedly when he assaulted her. She said that was different from the
touching in the instant case. The victim reiterated that she was shaving her legs in the
shower when the defendant entered. The defendant opened the shower curtain when he
walked into the bathroom. He told the victim to bend over and said she needed to start
shaving her vaginal area. She said that she was blow drying and brushing her hair in the
bathroom when the defendant entered and touched her breast. She said that the defendant
would enter the bathroom “out of the blue” to wash his hands or use the restroom while she
was taking a shower. She said that whenever she was in the shower, “he always seemed to
kind of come in there . . . he always did that when [I] was in the shower.” She said that the
defendant said he entered the bathroom because his son needed to use the bathroom and the
defendant was shielding him from seeing the victim.

       The victim was not sure how much time passed between the touches but thought it
was probably a couple of months. She complained to her mother about the touches after the
third incident. The victim testified that she did not complain to the defendant about the
touches because he was the disciplinarian in the home and was not very nice to her. She said
that he had previously spanked her with a belt, causing bruises on her legs.

       The defendant testified that he was employed and was living in Kentucky with his
mother. In May 2006, when the underlying events occurred, he was a manager at Christie’s
Cabaret, which he characterized as “a strip club,” and the victim’s mother worked at a
different “strip club.” He said that it was common for him to walk around the home wearing
only his boxers. He said the victim always wore a shirt, but her mother would sometimes
walk around in boxers and a tank top with “no kind of support.” He said that the entire
family used the same restroom and that, until he was charged with the crimes, he did not see
it as a problem to enter the restroom while it was occupied. He testified that he now
understood that what they were doing was wrong and maintained that it was not done for
sexual gratification.



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       The defendant acknowledged that he touched the victim on her breast and told her she
needed to wear a bra. He said that the victim’s mother had several conversations with him
about the victim’s need to shave her vaginal area. He testified that he told the victim’s
mother that the victim could hurt herself if the mother did not show her what to do. He
acknowledged that he was the disciplinarian of the household, and he agreed that it was
inappropriate for him to touch the victim.

        He testified that he entered a best interest plea because he was facing eight to twelve
years in prison and hoped to be placed on probation. The defendant underwent a
psychosexual evaluation, which concluded that he denied, defended, or repressed the truth
of the events that occurred. The psychologist also made a finding that the defendant might
have some sexual deviance or disorder resulting from his attitude toward women. The
defendant said he was willing to get treatment, if necessary. He attributed some of his
problems to his prior employment in the adult entertainment industry but testified that he had
left that field of work. The psychosexual evaluation classified his risk for sexual recidivism
as low but noted that he had some enhancing factors present in the low category, including
a need to control his anger and negative emotions. He acknowledged that there had been two
incidents involving his temper in his current job but stated that neither incident resulted in
physical violence. He also said that he was working on his anger issues with the victim’s
mother and that he had no desire to talk to her about any issue other than his son. The
psychosexual report also indicated that it was unclear if the defendant had a sexual interest
in young girls or a disorder related to his attitudes toward females.

         During cross-examination, the defendant acknowledged that he did not tell the
detective that he touched the victim to educate her on how to shave. He said that he was
afraid to talk to the police and also acknowledged that he instructed the victim’s mother not
to tell anyone that he had touched the victim. He agreed that in the psychosexual report, he
said that the victim’s breasts were “barely formed” even though he testified that “she walked
around with tank tops and they would pop out.” The defendant testified that on two prior
occasions, he had been placed on probation. He was also convicted of possession of a
controlled substance while in possession of a firearm. He testified that, even though he did
not have a carry permit, he carried a firearm on occasion when he worked at the “strip clubs.”
He also testified that it had been sixteen months since he last used drugs.

        The victim’s mother testified that she discussed shaving with the victim and told her
not to shave anything between her legs. She acknowledged that she told the defendant she
was not comfortable talking to the victim about shaving but stated she did not ask him to talk
to the victim about it. She told her daughter not to shave there because she did not want her
to get cut and because it was inappropriate to discuss such things with an eleven-year-old.



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      The trial court sentenced the defendant to two consecutive four-year sentences and
ordered the sentences to be served in confinement. This appeal followed.

                                          Analysis

       On appeal, the defendant argues that the trial court erred in ordering his sentences to
run consecutively and in denying him full probation. First, we will consider the issue of
consecutive sentencing. A court may order sentences to run consecutively if the court finds
by a preponderance of the evidence that:

       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of [the] defendant’s undetected sexual activity, the nature and scope
       of the sexual acts and the extent of the residual, physical and mental damage
       to the victim or victims;

T.C.A. § 40-35-115(b)(5) (2006); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
In imposing consecutive sentences, the trial court found that: the defendant was convicted
of two or more sexual offenses against a minor; the offenses occurred several months apart
before the crimes were detected; and the defendant caused emotional distress to the victim
because he was the undisputed chief disciplinarian in the household.

       Here, although the victim testified that she had been undergoing counseling for an
unrelated incident, she stated that the assaults by the defendant caused her to seek additional
counseling and to suffer unwanted attention at school from her peers, making it necessary
for her to change schools. The victim characterized these crimes as “ruining her life.” The
defendant regularly entered the bathroom while the victim was vulnerable because she was
naked and showering. The record supports the trial court’s finding that there were
circumstances present to impose consecutive sentences. We also note this court’s decision
in State v. Brandon Raymond Bartee, No. M2004-02637-CCA-R3-CD, 2005 Tenn. Crim.
App. LEXIS 1045, at **11-12 (Tenn. Crim. App. at Nashville, Sept. 20, 2005), where the
defendant entered guilty pleas to three counts of sexual battery as lesser included offenses
of the indicted offenses of aggravated sexual battery. The defendant in Bartee was a
registered sex offender who deceived his neighbors into allowing him to play with their
children. While wrestling with the children, he touched a six-year-old victim’s breasts,
buttocks, and genitalia. The defendant in Bartee contended that the trial court should not
have imposed consecutive sentences, but this court concluded that the predatory nature of the
defendant’s actions, together with the psychological effects incurred by the victim, were
sufficient to warrant consecutive sentences. Here, on multiple occasions, the defendant, who

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was an authority figure in the victim’s life, entered the bathroom while the victim was
showering and touched her bare breasts. He also touched her on the outside of her vagina
while she was undressed in the bathroom. Though this defendant was not a registered sex
offender, he exhibited predatory behavior by touching the victim when she was at her most
vulnerable. Therefore, we conclude that the nature of the defendant’s actions, combined with
the parties’ relationship as parent and child and the victim’s other issues, warrant an
imposition of consecutive sentences.

        Next, the defendant argues that he should have been sentenced to probation. When
a defendant challenges the manner of the service of a sentence, this court conducts a de novo
review of the record with a presumption that the determinations made by the sentencing court
are correct. T.C.A. § 40-35-401(d) (2006). If our review reflects that the trial court followed
the statutory sentencing procedure, that it imposed a lawful sentence after duly considering
and weighing the factors and principles set out under the sentencing law, and that its findings
are adequately supported by the record, then we may not disturb the sentence even if we
would have preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).
However, if the trial court failed to comply with the statutory guidelines, we must review the
sentence de novo without a presumption of correctness. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997). The defendant bears the burden of proving the sentence is improper. T.C.A.
§ 40-35-401, Sentencing Comm’n Comments.

       A trial court must impose a sentence within the applicable range of punishment,
determined by whether the defendant is a mitigated, standard, persistent, career, or repeat
violent offender. T.C.A. § 40-35-210(c) (2006). In conducting our review, we are required,
pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the following
factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2)
       [t]he presentence report; (3) [t]he principles of sentencing and arguments as
       to sentencing alternatives; (4) [t]he nature and characteristics of the criminal
       conduct involved; (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in [sections] 40-35-113 and 40-35-114;
       and (6) [a]ny statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

The trial court’s weighing of various mitigating and enhancement factors is left to its sound
discretion, as the factors are merely advisory. State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008). Our Sentencing Act provides that a defendant who does not possess a criminal history
showing a clear disregard for society’s laws and morals, who has not failed past rehabilitation
efforts, and who “is an especially mitigated or standard offender convicted of a Class C, D,

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or E felony, should be considered as a favorable candidate for alternative sentencing options
in the absence of evidence to the contrary.” T.C.A. § 40-35-102(6) (2006); see also State v.
Fields, 40 S.W.3d 435, 440 (Tenn. 2001).

      Even though probation must be automatically considered, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b) (2006),
Sentencing Comm’n Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App.
1991). On appeal, a defendant seeking full probation bears the burden of showing that the
imposed sentence is improper and that full probation will be in the best interest of the
defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

       In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history
and present condition, the need for deterrence, and the best interest of the defendant and the
public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237,
244 (Tenn. Crim. App. 1995). The defendant’s lack of credibility is also an appropriate
consideration and reflects on a defendant’s potential for rehabilitation. State v. Nunley, 22
S.W.3d 282, 289 (Tenn. Crim. App. 1999). Under Tennessee’s revised Sentencing Act, the
provision that certain defendants should be considered favorable candidates for alternative
sentencing is an “advisory sentencing guideline” that the trial court “shall consider, but is not
bound by. . . .” T.C.A. § 40-35-102(6)(D). The Tennessee Supreme Court has held that it
is proper for a trial court to look beyond a plea bargain and consider the “true nature of the
offenses committed.” State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983).

        Here, the trial court did not find credible the defendant’s explanation that he did not
understand that his actions were wrong. The court did not accept the defendant’s argument
that he was trying to instruct the victim that she needed to begin shaving and wear a bra.
Instead, the trial court concluded that the defendant engaged in the touching for sexual
gratification because it was not necessary for the defendant to enter the bathroom on multiple
occasions while the victim was showering to deliver those instructions. Further, the victim
testified that the defendant was aroused when he touched her breasts.

        The trial court also found that the defendant abused a position of trust because it was
testified to that he was the disciplinarian in the household. Additionally, the defendant had
two 1997 convictions in Tennessee for possession of drugs and for a weapons offense. He
received probation for these convictions. The trial court also noted that the defendant had
tried to mislead the police about these crimes.

       The defendant argues that the trial court erred in finding Tennessee Code Annotated
section 40-35-103(1)(c) applicable because he successfully completed his probation for the

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1997 convictions. This argument supports a position that as long as a defendant completes
a sentence of probation without incident that, upon his return to society, he can continue to
commit crimes and remain eligible for probation. This argument should fail because the
defendant’s behavior indicates a disregard for the law and reflects that his prior period of
probation did not serve to rehabilitate him from committing future violations of the law.

        As previously stated, the trial court is free to look behind the plea agreement and
consider the true nature of the crimes. Here, the defendant was indicted for aggravated
sexual battery after he touched the eleven-year-old victim on her breasts on two separate
occasions and on her vagina on one occasion. The statute governing eligibility for probation
specifically excludes those convicted of aggravated sexual battery. T.C.A. § 40-35-303(a).
The defendant asserts that the trial court made no finding as to his prospects for
rehabilitation. The trial court stated that it did not find the defendant credible in his
explanation of his motives for committing the crimes. The trial court found that the
defendant’s lack of candor would have an effect on his ability to successfully complete
probation. As previously stated, a defendant’s credibility is an appropriate consideration and
reflects on a defendant’s potential for rehabilitation. Nunley, 22 S.W.3d at 289. In light of
the above, the trial court properly denied probation.

        We also note the transcript and the judgment contain a differing description of the
type of plea entered by the defendant. The transcript presents a “best interest” guilty plea,
pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970), and the judgment refers to the
guilty plea as nolo contendere. We remand only this issue to the trial court for correction of
judgment.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court and remand to the trial court for correction of the judgment.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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