         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs June 27, 2001

             STATE OF TENNESSEE v. DAVID WAYNE OSBORNE

                 Direct Appeal from the Criminal Court for Sullivan County
                    Nos. S43,429 and S43,430   Phyllis H. Miller, Judge



                                 No. E2000-03086-CCA-R3-CD
                                         July 31, 2001

The Defendant pled nolo contendere to one count of felony child neglect, one count of possession
of drug paraphernalia, one count of possession of marijuana, and two counts of public intoxication.
At issue in this appeal is the sentence for felony child neglect, a Class D felony for which the
Defendant received a two-year Community Corrections sentence. Subsequently, based upon a
warrant alleging that the Defendant had violated the terms and conditions of his Community
Corrections sentence, the trial court revoked the Defendant’s Community Corrections sentence and
increased his original sentence from two years to four years, to be served with the Tennessee
Department of Correction. In this appeal, the Defendant argues that the trial court improperly
enhanced his two-year sentence for felony child neglect to four years and that the court erred by
failing to impose some form of alternative sentencing. We conclude that the trial court properly
increased the length of the Defendant’s sentence from two to four years and that the Defendant’s
prison sentence was properly imposed. Accordingly, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Julie A. Rice (on appeal), Knoxville, Tennessee; and Leslie Hale (at trial), Blountville, Tennessee,
for the Appellant, David Wayne Osborne.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith, Assistant District
Attorney General; for the Appellee, State of Tennessee.

                                            OPINION

       On December 15, 1999, the Defendant was indicted by the Sullivan County Grand Jury for
two counts of public intoxication, one count of possession of marijuana, one count of possession of
drug paraphernalia, and one count of felony child neglect. On March 8, 2000, the trial court accepted
pleas of nolo contendere by the Defendant to each charge. On May 4, 2000, following a sentencing
hearing, 1 the trial court sentenced the Defendant to eleven months and twenty-nine days probation
for possession of drug paraphernalia; thirty days probation for both convictions of public
intoxication; eleven months and twenty-nine days probation for possession of marijuana; and two
years for felony child neglect. The two-year sentence for felony child neglect contained a provision
whereby the Defendant was ordered to serve one hundred and twenty days “day for day” in the
county jail, with the balance to be served on Community Corrections. In addition, the trial court
ordered that the Defendant continue drug and alcohol treatment, submit to random drug screens,
complete parenting classes, not use or possess alcoholic beverages, not use illegal drugs, and
maintain full-time employment.

         On May 30, 2000, the trial court amended the “day for day” provision of the judgment to
allow the Defendant to serve periodic confinement in conjunction with his job. On June 16, 2000,
the trial court allowed an amended periodic confinement schedule for the Defendant. Subsequently,
the Defendant filed a petition for early release, which the trial court denied on July 10, 2000. On
September 5, 2000, presumably after the Defendant had served the one hundred and twenty days
split-confinement portion of his sentence, the trial court entered an order setting forth the terms and
conditions of the Community Corrections sentence.

        On November 6, 2000, a warrant was issued against the Defendant, in which it was alleged
that the Defendant had violated two rules of Community Corrections. First, it was alleged that the
Defendant had violated a Community Corrections rule prohibiting the use of intoxicants, by
allegedly possessing alcohol on October 6, 2000 and on November 3, 2000. Second, it was alleged
that the Defendant had violated another Community Corrections rule by leaving the John R. Hay
House, a treatment facility, without permission. The warrant was served on the Defendant on
November 6, 2000, and the trial court conducted a hearing on November 30, 2000. At the
conclusion of the hearing, the trial court revoked the Defendant’s Community Corrections sentence
and imposed a sentence of four years with the Tennessee Department of Correction for the felony
child neglect conviction.

                                                     ANALYSIS

        In this appeal, the Defendant does not challenge the trial court’s revocation of his Community
Corrections sentence, but he does challenge the trial court’s enhancement of the length of his
sentence from two years to four years for the felony child neglect conviction. He also challenges the
trial court’s unwillingness to consider an alternative sentence.

       The Defendant insists that the trial court erred when it increased the length of his sentence
from two years to four years upon revoking his Community Corrections sentence. The Defendant
does not contest the validity of the trial court’s revocation of his Community Corrections sentence.
Nor does he contest the trial court’s authority generally to increase the length of a revoked


       1
           A transcript o f the sentencing h earing was no t made pa rt of the record on appe al.

                                                           -2-
Community Corrections sentence up to the maximum sentence within the appropriate sentence range
for the offense. See Tenn. Code Ann. § 40-36-106(e)(2).

        Our analysis begins with well-settled principles that govern our review of a sentence
determination imposed under the Criminal Sentencing Reform Act of 1989. When a criminal
defendant challenges the length, range, or manner of service of a sentence, the reviewing court must
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, however, “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 the event that the record fails to show such consideration, the review of the sentence is
purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court must start
at the presumptive sentence, enhance the sentence as appropriate for the enhancement factors, and
then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e).
The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d
at 123. However, the sentence must be adequately supported by the record and comply with the
purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237
(Tenn. 1986).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.




                                                -3-
        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

                                    A. LENGTH OF SENTENCE

        The Defendant first contests the length of his sentence. In sentencing the Defendant, the trial
court applied enhancement factor (1), that “[t]he [D]efendant has a previous history of criminal
convictions or criminal behavior”; enhancement factor (4), that “[a] victim of the offense was
particularly vulnerable because of age”; enhancement factor (8), that “[t]he [D]efendant has a
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community”; and enhancement factor (15), that “[t]he [D]efendant abused a position of public
or private trust . . . .” Tenn. Code Ann. § 40-35-114(1), (4), (8), (15). Thus, the trial court found that
four enhancing factors applied in sentencing the Defendant. Additionally, the trial court found that
no mitigating factors applied.

        We agree with the trial court concerning each of the enhancement factors applied in this case.
The record does indicate that the Defendant has a previous history of criminal convictions or
criminal behavior, that he has a previous history of unwillingness to comply with the conditions of
a sentence involving release in the community, and that he abused a position of private trust in the
neglect of his two-year-old daughter. The trial court considered and rejected each of the mitigating
factors proposed by the Defendant and found no other mitigating factors. The trial court’s findings
in this regard are adequately supported by the record, and we will not disturb those findings on
appeal.

         With regard to the Defendant’s argument that the trial court improperly applied Tennessee
Code Annotated § 40-35-114(4), regarding the particular vulnerability of the victim, we conclude
that the trial court should not have applied this factor solely on the basis of the victim’s age because
the victim’s age is an element of the offense of felony child neglect. Nevertheless, we conclude that
the trial court properly enhanced the Defendant’s sentence based upon enhancement factor (4). In
this case, the two-year-old victim was clearly particularly vulnerable because of her natural physical
and mental limitations. The trial court properly found that the two-year-old baby could not resist the
crime, summon help, or testify at a later date. The victim was totally dependent on the Defendant
for her care. Thus, we agree with the State that the trial court did not err when it applied this factor
to enhance the Defendant’s sentence. See State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993).

                                B. ALTERNATIVE SENTENCING




                                                   -4-
        The Defendant next contends that the trial court should have granted him some form of
alternative sentencing. Tennessee Code Annotated § 40-35-102(5) provides as follows:
        In recognition that state prison capacities and the funds to build and maintain them
        are limited, 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
        sentencing involving incarceration . . . .
A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less and not an offender for whom
incarceration is a priority is subject to alternative sentencing and that a sentence other than
incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80
(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard
offender convicted of a Class D felony, is presumed to be a favorable candidate for alternative
sentencing.

         However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under
Tennessee Code Annotated § 40-35-102(6), the statutory presumption of an alternative sentence may
be overcome if
                 (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 . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent
part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). A lack of candor or
untruthful testimony reflects poorly upon a defendant's potential for rehabilitation and therefore may
be a proper basis for the denial of probation. State v. Neely, 678 S.W.2d 48, 49 (Tenn. 1984); State
v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); State v. Byrd, 861 S.W.2d 377, 380 (Tenn.
Crim. App. 1993).

        The trial court stated on the record its reasons for denying an alternative sentence in this case.
The trial court found that the Defendant lacked candor and credibility and thus that he had little or


                                                   -5-
no potential for rehabilitation. The trial court was certainly in a better position than this Court to
assess the candor and credibility of the Defendant, and our review of the record supports its findings
in this regard. The trial court properly applied this consideration in denying an alternative sentence.
Additionally, it is abundantly clear from the record that measures less restrictive than confinement
had recently been applied unsuccessfully to this Defendant. See Tenn. Code Ann. § 40-35-
103(1)(C). This factor was also properly applied by the trial court in imposing a sentence of
incarceration.

       Accordingly, we AFFIRM the judgment of the trial court.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                 -6-
