          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                            AUGUST SESSION, 1998       September 25, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,                )    C.C.A. NO. 03C01-9802-CR-00070
                                   )
            Appellee,              )
                                   )    CUMBERLAND COUNTY
V.                                 )
                                   )
                                   )    HON. LEON C. BURNS, JR., JUDGE
DON L. ADKINS,                     )
                                   )
            Appe llant.            )   (AGGRAV ATED S EXUAL BATTE RY)



FOR THE APPELLANT:                      FOR THE APPELLEE:

DAVID NEAL BRADY                        JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

JOE L. FINLEY, JR.                      CLINT ON J. M ORG AN
Assistant Public Defender               Assistant Attorney General
215 Reagan Street                       2nd Floor, Cordell Hull Building
Cookeville, TN 38501                    425 Fifth Avenue North
                                        Nashville, TN 37243

                                        WILLIAM EDWARD GIBSON
                                        District Attorn ey Ge neral

                                        DAVID A. PATTERSON
                                        Assistant District Attorney General
                                        145 South Jefferson Avenue
                                        Cookeville, TN 38501




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Defendant, Don L. Adkins, appeals as of right following his sentencing

hearing in the Cu mberla nd Co unty Criminal Court. The Defendant was indicted on

four (4) counts of aggravated sexual battery. In an agreement with the District

Attorn ey’s office, Defendant agreed to plead guilty to one (1) count of attempted

aggravated sexual battery, a Class C felony. Defendant also agreed to a sentence

of six (6) years with the trial co urt to deter mine th e manner o f service of his

sentence. Following the se ntencing he aring, the trial court o rdered D efenda nt to

serve his en tire sen tence in the Department of Correction. Defendant argues that

the trial court erred in denying a sentence of split confinement. We affirm the

judgm ent of the tria l court.



       Bill Johnson, a prob ation o fficer for th e State who p repar ed De fenda nt’s

presentence report, testified that Defendant initially denied doing anything wrong.

Howeve r, in Defe ndan t’s state men t in the presentence report, Defendant admitted

touching one of the children on her private parts. Because Defendant was a friend

of the victim ’s family and was acting as a babysitter, Johnson submitted that

Defendant had abused a position of private trust. The Defendant does not have a

prior criminal record, has a good history of employment and is a high school

gradua te.



       June Estep, mo ther of the victim and friend of Defend ant’s family, testified that

the victim was twelve (12) years of age when the offense occurred. Estep had

trusted the Defendant with her children and he had cared for them on prior

occasions. Since this incident of sexual abuse, the victim has changed. She does

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not want to leave the house, is afraid and depressed. Due to her depression, the

victim has been hospitalized twice because she wanted to commit suicide. She has

missed many days of school and is currently receiving mental health treatment. Due

to her da ughter’s fe ar of testifying , they agre ed to De fendan t’s plea ag reeme nt.



       The Defenda nt testified that he was forty-five (45) years of age and has known

the victim for three (3) years. He admitted that he touch ed the victim on her p rivate

parts, indicating her breasts and between her legs. Defendant admitted remorse for

his actions. However, he indicated in his testimony that the victim tease d him after

taking a shower, asking for a towel while standing naked , and then hid unde rneath

the cove rs and a sked h im to find h er.



       During cross-examination, Defendant admitted that in h is state men t he sa id

that he committed these acts on three (3) different occasions. Defendant continued

to deny touc hing th e victim ’s sister , althou gh he adm itted sig ning a statem ent in

which he sta ted tha t he als o sexu ally touc hed th e siste r. Defe ndan t is not cu rrently

seeking or receiving any treatment for his sexual problems.



       When an accused challenges the length, range or the manner of service o f a

sente nce, th is court has a duty to conduct a de novo review of the sentence with a

presumption that the deter mination s mad e by the trial c ourt are c orrect. Tenn. Code

Ann. § 40-3 5-401 (d). Th is pres ump tion 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).




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       In conducting a de novo review of a senten ce, this court mu st 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 characteristics of the criminal conduct involved ; (e) any 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. S mith, 735 S.W.2d

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



       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, then we ma y not mo dify

the sentence even if we would have preferred a different resu lt. State v. Fletcher,

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



       Defendant does not dispute the length and range of the sentence because he

agreed to both upon his plea of guilty. Defendant challenges the manner of service

of his sentence, arguing that he should have received alternative sentencing rather

than service of the entire sentence in the Tennessee Department of Correc tion. In

determining whether or not alternative sentencing is appropriate, a defendant who

“is an es pecia lly mitigated or stan dard offende r convicted of a C lass C, D or E felony

is presumed to be a favorable candidate for alternative sentencing options in the

absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6).                   Our

sentencing law als o prov ides th at “con victed felons com mitting the mo st severe

offenses, possessing criminal histories evincing a clear disregard for the laws and

                                             -4-
mora ls of society, and evincing failure of past efforts at rehabilitation, shall be given

first priority regarding sentences involving incarceration.” Tenn. Code Ann. § 40-35-

102(5). Thus, a defendant sentenced to eight (8) years or less who is not an

offender for whom inc arceration is a priority is presu med eligible for altern ative

sentencing unless su fficient eviden ce rebu ts the pres umptio n.           Pursu ant to

Defe ndan t’s presentenc e report and lac k of prior criminal history, he qualifies as an

offender presu med eligible for alternative sentencing under the parameters of these

statutes.



      Howeve r, the act does not pro vide that all offenders w ho mee t the criteria are

entitled to such relief; rather, it requires that sentencing issues be determined by the

facts and circumstances presen ted in eac h case . See State v. Taylor, 744 S.W.2d

919, 922 (Tenn. C rim. App. 1987). The State may overcome the presumption by

providing evidenc e that: (1) confinement is necessary to protect society by

restraining a defenda nt who has a long history of criminal conduct; (2) confinement

is necessary to avoid depreciating the serious ness of the offen se or is neces sary

to provid e an e ffective d eterre nce to others likely to com mit similar offenses; or (3)

measures less restrictive than confinement have frequently or recently been applied

unsuc cessfully to the defen dant. Te nn. Co de Ann . § 40-35 -103(1).



       First, the trial c ourt no ted tha t due to his con viction for a crime against the

person, attempted aggravated sexual battery, the Defendant was n ot eligib le for the

Com munity Corrections program.           Tenn. Cod e Ann. § 40-36-1 06(a)(1) .         In

consideration of a sentence of proba tion versu s confine ment, the trial court stated

within its findings that these type s of cases in wh ich young ch ildren are involved are

tragic, leaving a deep scar for the children to carry the rest of their lives. The trial

                                            -5-
court noted that this was a very serious offense, particularly as the mother of the

victim placed her confidence in the Defendant to care for her children . Obviously,

the record demonstrated to the trial court the pain the victim was experiencing as the

trial court exp ressed its desire tha t she rece ive coun seling an d treatm ent.



         W hile the Defe ndant d id state that his acts were wrong, the trial court sensed

some hesitation on his be half to fu lly adm it his conduct. T ruthfulness is certainly a

factor which the court m ay cons ider in dec iding whe ther to grant or deny probation.

State v. Bunch, 646 S.W.2d 158, 160 (T enn. 1983 ) (citing State v. Poe, 614 S.W.2d

403, 404 (Ten n. Crim. App . 1981)). The trial court indicated that it did not place

much credibility in portions of Defendant’s testimony as Defen dant wa s “hesitan t to

come to grips w ith a full admission of what went on.” The Defendant’s lack of candor

when giving con flicting acco unts to Bill Johnson in the presentence report and to the

trial court wh ile under o ath is probative on the issue of amenability to rehabilitation,

the motivation for probation pursuant to Tennessee Code Annotated section 40-35-

103(5). See State v. Dowdy, 894 S.W .2d 301 (Tenn . Crim. A pp. 199 4). For this

reason alone, the decision of the trial court to order incarceration in the Department

of Correction in this case is justified. We therefore affirm the judgment of the trial

court.


                                    ____________________________________
                                    THOMAS T. W OODALL, Judge




                                            -6-
CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




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