            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1997       FILED
                                                     October 22, 1997

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9610-CC-00367
      Appellee              )
                            )    BLOUNT COUNTY
vs.                         )
                            )    Hon. D. KELLY THOMAS, JR., Judge
SUSAN RENEAU,               )
                            )    (Facilitation of Rape)
      Appellant             )



For the Appellant:               For the Appellee:

Mack Garner                      Charles W. Burson
District Public Defender         Attorney General and Reporter
419 High Street
Maryville TN 37804               Janis L. Turner
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 Michael L. Flynn
                                 District Attorney General

                                 Kirk Andrews
                                 Asst. District Attorney General
                                 363 Court Street
                                 Maryville, TN 37804




OPINION FILED:

REVERSED AND REMANDED



David G. Hayes
Judge
                                       OPINION



              The appellant, Susan Reneau, appeals the sentence imposed by the

Blount County Circuit Court upon her plea of guilty to the offense of facilitation of

rape, a class C felony. Pursuant to a negotiated plea, the appellant received a

sentence of three years as a range I offender. The manner of service of the

sentence was submitted to the trial court for determination. Following a sentencing

hearing, the trial court denied any form of alternative sentence and imposed a

sentence of incarceration in the Department of Correction. The appellant now

appeals this decision.



       After a review of the record, we reverse the judgment of the trial court. The

appellant’s sentence is modified to reflect a sentence of probation.




                                    I. Background



       The facts of this case stem from the conduct of the appellant in permitting her

mentally retarded thirteen- year old daughter to cohabit, over a three month period,

with a twenty-nine year old man. The appellant, during this period, was thirty-five

years of age and the single parent of four teenage children. The victim possessed

the mental capabilities of a seven-year old. The appellant received various social

security disability and AFDC benefits which served as her sole source of income.

These benefits totaled approximately $900.00 per month, including $382.00

received on behalf of the victim.



       The proof at the sentencing hearing established that, between March and

May of 1995, the appellant's neighbor introduced the victim to Christopher

Bernstein, who was twenty-nine years of age. The victim and Bernstein began


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dating, secretly meeting at this neighbor's residence, until the appellant's older

daughter informed her of the victim's relationship. The appellant instructed the

victim to end her involvement with Bernstein, but the victim continued to meet with

him. At this point, although not confirmed, the appellant suspected that the victim

was having sexual relations with Bernstein.



        Subsequently, the victim informed the appellant that she intended to move

into a house with Bernstein and his parents. The appellant "knew [this relationship]

was wrong and had tried to talk [the victim] out of doing it, but [the victim] went

ahead and did it anyway." The appellant explained that, because she was afraid of

losing custody of her daughter, she did not seek help from the court or the

Department of Human Services to deal with her daughter's unruliness. Eventually,

the appellant agreed that the victim could live with Bernstein and his parents "until

school started in the fall." Soon thereafter, the victim told the appellant that she and

Bernstein were sharing the same bed and that she was pregnant.1 On two more

occasions, the appellant attempted to persuade her daughter to return home, but

the victim refused. The appellant explained that "she did not know [her actions]

were a crime or illegal, but she knew it wasn't right."



        The appellant has no prior criminal history or convictions. She has no record

of drug or alcohol abuse.2 She cooperated with the Department of Human Services

after the facts of this case were developed. The appellant completed the eighth

grade, prematurely terminating her education to care for her two younger siblings

while her mother worked, and gave birth to her first child when she was seventeen

        1
         The victim resided with Bernstein from June to August 1995. T he victim’s child was born
on December 13, 1995. On August 10, 1995, Bernstein and his mother contacted the Department
of Human Services in an effort to obtain SSI benefits on behalf of the victim. In an attempt to get
the bene fits, Berns tein confe ssed to having s exual rela tions with the victim an d was a rrested.
The appellant was interviewed by law enforcement officials the following day and was
subsequently arrested on the present charge.


        2
         The presentence report indicates that the appellant tested positive for barbiturates in a
pre-interview drug screen. She stated, however, that the only drugs that she had take n were
ibuprofen and some "arthritis medicine" to relieve the pain of a toothache.

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years old. At the time of the sentencing hearing, the appellant had remarried. Her

current husband is employed as a shoe repairman.



       The appellant testified that three of her children, her husband's son, and two

grandchildren currently reside with her and her husband. She has no behavioral

problems with these children. After the victim's relationship with Bernstein was

revealed to authorities, the victim was placed in a foster home, where she remains

with her baby. Expressing remorse over her actions, the appellant avers that she

never intended to hurt her daughter. She states that, despite this incident, she

maintains a healthy and happy relationship with the victim, visiting her twice a month

at her foster home. The appellant also has completed a three month program

involving counseling and parenting classes and she is not being monitored by the

Department of Human Services or any other governmental agency regarding the

care of her children. Moreover, she stated that she would abide by any and all

conditions imposed in connection with an alternative sentence.



       In denying an alternative sentence, the trial court found that a sentence of

"[c]onfinement is necessary to avoid depreciating the seriousness of the offense."

He stated that

       I just can't think that the legislature intended for a mother to do this to
       their child and not be punished by incarceration. There's no other
       punishment. I mean, her child has been removed, but having a
       conviction and being on probation is no punishment to this lady. She
       doesn't work.


Additionally, the court found that

       her potential or lack of potential for rehabilitation or treatment is
       questionable. What needs to be rehabilitated is questionable. And
       how it could be done is questionable.




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                                      II. Analysis



              When a defendant challenges the manner of service of her sentence,

this court must conduct a de novo review with the presumption that the

determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d)(1990). This presumption only applies, however, if the record shows that the

trial court properly considered relevant sentencing principles. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).



       In determining the appellant's suitability for an alternative sentence, we first

decide whether the appellant is entitled to the statutory presumption that she is a

favorable candidate for alternative sentencing. State v. Bingham, 910 S.W.2d 448,

453 (Tenn. Crim. App.), perm. to app. denied to appeal denied, (Tenn. 1995) (citing

State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993)). To be eligible for

the statutory presumption, a defendant must meet three requirements. The

defendant must be convicted of a class C, D, or E felony. Tenn. Code Ann. § 40-35-

102(6) (1994 Supp.). She must be sentenced as a mitigated or standard offender.

Id. And, the defendant cannot have a criminal history evincing either a "clear

disregard for the laws and morals of society" or "failure of past efforts at

rehabilitation." Tenn. Code Ann. § 40-35-102(5). The appellant satisfies these

criteria. Accordingly, she is entitled to the presumption favoring alternative

sentencing.



       This presumption may be rebutted by "evidence to the contrary."

Guidance as to what constitutes "evidence to the contrary" may be found in the

sentencing considerations codified at Tenn. Code Ann. § 40-35-103 (1990). Such

evidence may be found in the presentence report, the evidence presented by the

State, the testimony of the accused, or any other source provided that it is part of




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the record. Bonestel, 871 S.W.2d at 167; see also Tenn. Code Ann. § 40-35-

102(6).



       In the present case, the trial court denied alternative sentencing based upon

the seriousness of the offense. A trial court's denial of an alternative sentence on

this ground can only be upheld if there is evidence in the record that indicates that

the circumstances of the offense, as committed, were especially violent, horrifying,

shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree, and the nature of the offense outweighs all factors favoring a sentence

other than confinement. Bingham, 910 S.W.2d at 454 (citations omitted). Although

we do not condone the appellant's behavior, we find the record absent of any proof

to support the conclusion that the appellant's actions were "especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree." See, e.g., State v. Mitchell, No. 03C01-9411-CR-00418

(Tenn. Crim. App. at Knoxville, July 24, 1995).



       We are unable to conclude that the appellant falls within that class of

“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 . . . “ Tenn. Code Ann. § 40-35-102(5). Indeed, the

appellant has no criminal history and has never been placed in a rehabilitative

program. Accordingly, we conclude that the State has failed to present sufficient

proof to overcome the presumption that "a sentence other than confinement would

result in successful rehabilitation." Mitchell, No. 03C01-9411-CR-00418 (citations

omitted). Under the facts of this record, the appellant and society would best be

served by granting a sentence other than total confinement. See Mitchell, No.

03C01-9411-CR-00418. The trial court's order imposing a sentence of incarceration

in the Department of Correction is reversed. The appellant’s sentence is

suspended and she is placed on intensive probation for three years. The


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appellant’s household is to be monitored for review of appropriate parenting skills

and for imposition of any other conditions reasonably related to the purpose of this

sentence including community service. This case is remanded for entry of judgment

consistent with this opinion.




                                  ___________________________________
                                  DAVID G. HAYES, Judge




CONCUR:



____________________________________
JOHN H. PEAY, Judge



____________________________________
WILLIAM M. BARKER, Judge




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