         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 26, 2005

            STATE OF TENNESSEE v. DARRYL EUGENE WATTS

                Direct Appeal from the Criminal Court for Davidson County
                      No. 2003-C-1754    J. Randall Wyatt, Jr., Judge



                  No. M2004-01958-CCA-R3-CD - Filed September 2, 2005



Pursuant to a plea agreement, the defendant, Darryl Eugene Watts, pled guilty to rape, furnishing
alcohol to a minor, and exposing a minor to pornography. He was sentenced to an effective eight-
year sentence in confinement. On appeal, the defendant argues that the trial court erred in denying
alternative sentencing. Following our review, we affirm the judgments of the trial court.

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

J.C. MC LIN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID H.
WELLES, J., joined.

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Darryl Eugene Watts.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bernard F. McEvoy, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        Following the entry of the defendant’s guilty pleas, a sentencing hearing was held to
determine how the defendant would serve his eight-year sentence. At the sentencing hearing, the
defendant testified that he graduated high school with honors and began attending Nashville Tech
before dropping out to start his own business. The defendant stated that he was attending Free Will
Baptist Bible College and belonged to Faith Church, Incorporated.

        The defendant testified that he had been married to the victim’s mother, Jan Watts, for eight
years before getting a divorce. The defendant stated that his divorce was “pretty messy.” With
regard to his present convictions, the defendant explained that he had received a phone call from his
ex-wife, who told him that their fourteen-year-old daughter was infatuated with a seventeen-year-old
boy. As the defendant explained, his ex-wife was concerned about their daughter’s relationship with
this boy and asked him to speak to her.

        According to the defendant, he picked his daughter up, went home, and cooked dinner.
While preparing dinner, he poured himself an alcoholic beverage. When asked by his daughter if
she could have a drink, he let her have some of his drink. After dinner, he asked his daughter if she
was having sexual relations with the boy. The defendant stated that after his daughter denied having
sex, he decided to demonstrate how to use a condom by placing it on a plastic cigar. He also showed
her what lubrication looked like by placing some on his finger. The defendant then discussed
various sexually transmitted diseases with his daughter. The defendant stated that he showed his
daughter part of a pornographic videotape in order to “gross her out” and deter her from having sex.
The defendant denied touching his “daughter in the way that she said [he] touched her.”

        The defendant testified that he pled no contest to the crime of rape because he feared being
humiliated at trial and feared a jury would find him guilty. The defendant stated that he had a
psychosexual evaluation, and he agreed to participate in a treatment program if released. The
defendant admitted to having a drug problem but insisted that he was trying to recover. The
defendant stated that he was willing to undergo alcohol and drug treatment. The defendant also
indicated his desire to stay with his mother in order to help care for his father, who became disabled
after surviving an aneurysm.

         On cross-examination, the defendant admitted that he was divorced in 1994, and on two
occasions in 1994, he was convicted of assaulting his wife. The defendant stated that he was placed
on probation for eleven months and twenty-nine days for each offense. The defendant also admitted
that he was later convicted of aggravated burglary which violated his probation sentence for his
assault convictions. The defendant acknowledged that he was given a five year probation sentence
for his aggravated burglary conviction. The defendant also acknowledged that he was convicted of
attempt to commit burglary of a building in 2001, which violated his probation sentence for his
aggravated burglary conviction. The defendant further acknowledged that he had used crack cocaine
on an off since 1994, but he claimed that he had not used drugs for “almost a year and a half.”

        The defendant’s mother, sister, and brother testified that they would help the defendant by
providing him with a place to live and help him comply with the terms and conditions of probation.
A psychosexual evaluation and a letter from the defendant’s pastor were also admitted into evidence
at the sentencing hearing.

        The defendant’s daughter, the victim, testified that on the night of the offense, the defendant
picked her up from home and then stopped by a liquor store. The victim stated that once they arrived
at the defendant’s house, the defendant offered her a mixed drink and she drank it. The victim also
stated that the defendant gave her the rest of his drink. According to the victim, she began to feel
bad and “couldn’t really stand up.” The defendant then indicated that he wanted to talk to her, and
they sat down on the bed. The defendant asked her if she had kissed or had sex with an older boy



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she had been talking to. The defendant then showed her a pornographic tape and asked her if she
had given “anyone head.” She said no.

        The victim testified that the defendant asked her if she knew how to use a condom.
According to the victim, the defendant gave her a large candy cane, and she demonstrated how to
put a condom on. He then showed her lubricant and asked her if she knew what it was used for. She
said yes. The defendant then directed her to take her pants off, but she refused. However, the victim
stated that she blacked out, and when she woke up, her pants and underwear were down around her
ankles.

        The victim testified that the defendant placed lubricant on his finger and placed his finger on
her vagina. She stated: “He was moving it up and down. And he said, did that feel good? And I
said nothing. And he tried to put his finger up inside. And I said that hurts. And he said, well, you
are tight. You are a virgin.” The victim testified that she pulled her pants up. She also stated that
the defendant told her that she was too drunk to go home, so she remained at the defendant’s house
the rest of the night, lying in bed beside the defendant. She further stated that she could not sleep
because of what happened to her.

        Jan Watts, the victim’s mother and the defendant’s ex-wife, testified that she was married
to the defendant for eight years and that he was the father of the victim. She stated the defendant’s
drug use was partly responsible for the divorce. In describing events that led up to the defendant’s
aggravated burglary conviction, she explained that after the defendant had been placed on probation,
he came to the house in violation of a protective order and broke into the basement. She stated:

       I ran out of the house, ran down the street, screaming for someone to help me. I’m
       pretty fast, but I wasn’t fast enough. [The defendant] caught me, drug me back to the
       house, got to the driveway. I had a knife in my hand . . . just in case . . . something
       would happen. . . . I was still screaming. I still had the knife in my hand. And he
       started shovelling [sic] gravel in my mouth, to make me shut up, and had me in a
       choke hold at the same time and drug me back in the house and held me there. I
       stabbed him in the leg in the process. It didn’t stop him. He drug me back to the
       house and held me there until . . . daylight . . . . I managed to talk him out of - - he
       was very tired. I guess he hadn’t slept in days. And I managed to convince him that
       everything was going to be okay. We were going to be all right. I needed to go to
       work and to get the kids to school. At that point, he - - he allowed me to go. . . . I
       made a phone call to the District Attorney’s Office . . . . And they helped me out.
       And that was just one of the episodes.

Ms. Watts then explained that she had experienced other episodes of domestic violence that preceded
this episode.

      At the close of Ms. Watt’s testimony, the trial judge prefaced his ruling with some closing
remarks. The trial judge first apologized to the victim, stating:


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       First of all, I'm sorry . . . that the Court had to put you through this here today. And
       I'm sorry for your mother having to . . . [deal] with this. But . . . in a way, [I'm] glad
       that I did, because I got more to the truth of this today. And you're a fine person.
       You should leave here today with your head up high, because I think you've been as
       credible as any witness that's come in here this week. . . . You don't have anything
       to be feeling ashamed of or guilty about. You didn't do anything at all other than get
       taken advantage of by the last person in the world that should have been, your own
       father. . . .

              Now, the reason that I’m glad that I did get to hear from you, though, is
       because the other day I was here, and I always try to be fair and listen to everyone.
       And I was here, listening to [the defendant’s testimony]. He didn’t say this. He
       admitted that he had, maybe, provided his daughter with some alcohol and admitted
       something about the pornography, but played it all down and played everything else
       down . . .

The trial judge then explained that he knew that the defendant “had two prior felony convictions and
had been revoked off probation previously.” According to the trial judge, after he heard the
testimony of the defendant’s mother, sister, and brother, he began to think that “maybe some of this
ha[d] been exaggerated” and began to “consider[ ] certain things.” However, the trial judge stated
that after hearing the testimony of the victim, he was extremely impressed with her credibility.
Accordingly, the trial judge denied probation, stating that it would be inappropriate in light of the
present offenses, and the defendant’s previous record and probation violations.

        On appeal, the defendant argues that the trial court erred in denying probation or community
corrections by failing to consider the relevant sentencing principles and not affirmatively articulating
its reasons for the denial of these sentencing alternatives. Specifically, the defendant argues that he
should have received probation or, in the alternative, community corrections under the “special
needs” provision of Tennessee Code Annotated section 40-36-106(c).

        Appellate review of a challenged sentence is a de novo review of the record with a
presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption of correctness 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. Pettus,
986 S.W.2d 540, 543-44 (Tenn.1999). However, if the record shows that the trial court failed to
consider the sentencing principles and all relevant facts and circumstances, then review of the
challenged sentence is purely de novo without the presumption of correctness. State v. Ashby, 823
S.W.2d 166, 169 (Tenn.1991). On appeal, the defendant has the burden of showing that the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission
Comments. In conducting our review, this Court considers: (1) the evidence, if any, received at the
trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing; (4) the
arguments of counsel relative to sentencing alternatives; (5) the nature and characteristics of the
criminal conduct involved; (6) any mitigating or enhancement factors; (7) any statements made by


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the defendant in his or her own behalf; and (8) the defendant's potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; Ashby, 823 S.W.2d at 168.

        A defendant is eligible for probation if the actual sentence imposed is eight years or less and
the offense for which the defendant is sentenced is not specifically excluded by statute. See Tenn.
Code Ann. § 40-35-303(a). In addition, a defendant is presumed to be a favorable candidate for
alternative sentencing if the defendant is an especially mitigated or standard offender convicted of
a Class C, D, or E felony and there exists no evidence to the contrary. Id. § 40-35-102(6). However,
this presumption is unavailable to a defendant who commits the most severe offenses, has a criminal
history showing clear disregard for the laws and morals of society, and has failed past efforts at
rehabilitation. Id. § 40-35-102(5); State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001).

        A trial court shall automatically consider probation as a sentencing alternative for eligible
defendants. Tenn. Code Ann. § 40-35-303(b). A trial court must also presume favorable candidacy
for alternative sentencing unless it is presented with evidence sufficient to overcome this
presumption. See Ashby, 823 S.W.2d at 169. The presumption in favor of alternative sentencing
may be overcome by facts contained in the presentence report, evidence presented by the state, the
testimony of the accused or a defense witness, or any other source, provided it is made a part of the
record. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Moreover, entitlement to
probation is not automatic and the defendant still bears the burden of proving suitability for full
probation. Tenn. Code Ann. § 40-35-303(b), Sentencing Commission Comments; State v. Davis,
940 S.W.2d 558, 559 (Tenn. 1997).

       Guidance as to whether the trial court should grant alternative sentencing or incarcerate is
found in Tennessee Code Annotated section 40-35-103. Sentences involving confinement should
be based upon the following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;

       (B) Confinement 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) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant. . . .

Tenn. Code Ann. § 40-35-103(1).

       In this case, the defendant is not entitled to the presumption for alternative sentencing
because he was convicted of rape, a Class B felony, and has a criminal history. See id. §
40-35-102(5) & (6). Furthermore, the defendant is not eligible for community corrections under
Tennessee Code Annotated section 40-36-106(a)(1)(B) and (C) because his conviction involves a


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crime against a person. However, as the defendant contends, he is eligible for community
corrections under section 40-36-106(c), which provides:

        Felony offenders not otherwise eligible under subsection (a), and who would be
        usually considered unfit for probation due to histories of chronic alcohol, drug abuse,
        or mental health problems, but whose special needs are treatable and could be served
        best in the community rather than in a correctional institution, may be considered
        eligible for punishment in the community under the provisions of this chapter.

To be eligible for community corrections under subsection (c), the defendant must be eligible for
probation. State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Because the defendant
has an eight-year sentence, the defendant is eligible for probation, and thus eligible for community
corrections under subsection (c). See id. If a defendant is eligible for community corrections
sentencing, then the following facts must be determined:

        (1) the offender has a history of chronic alcohol, drug abuse, or mental health
        problems, (2) these factors were reasonably related to and contributed to the
        offender's criminal conduct, (3) the identifiable special need (or needs) are treatable,
        and (4) the treatment of the special need could be served best in the community rather
        than in a correctional institution.

Id. at 439.

         Arguing eligibility, the defendant points to his psychosexual evaluation, which was
introduced as an exhibit at the sentencing hearing. According to the evaluation, the defendant
received a low score used to predict sexual offense recidivism and was considered a moderate to low
risk for reconviction of a sexual or violent offense. Based upon this score, the psychologist
conducting the evaluation stated that the defendant could comply with the conditions of probation
if supervised closely. The defendant also contends that he established he had a “long history of
alcohol and crack cocaine abuse,” and “was under the influence of alcohol at the time this incident.”
The defendant also points to the testimony of his mother, sister, and brother, as evidence of his
eligibility for community corrections or probation.

         Initially we note that the trial court questioned the defendant regarding his psychosexual
evaluation and his amenability to treatment but failed to specify any findings as to the defendant’s
rehabilitation potential. Given that the trial court failed to articulate for the record whether it
considered all the relevant facts surrounding the defendant’s potential for rehabilitation, our review
is a de novo review of the record without the presumption of correctness afforded to the trial court’s
sentencing determinations. However, upon review of the record, we conclude that the trial court did
not err when denying alternative sentencing. The defendant has the burden of proving eligibility for
community corrections under the “special needs” provision, or, in the alternative, suitability for
probation. Although the defendant provided some evidence at the hearing that he had a history of
substance abuse, no substantial evidence was presented indicating that the defendant’s substance


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abuse “reasonably related to and contributed” to the defendant’s conduct of rape. See Boston, 938
S.W.2d at 439. There is a significant distinction between meeting the minimum eligibility
requirements for alternative sentencing and demonstrating entitlement to such relief. See generally,
State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Here, the record reflects that the
trial court thoroughly considered the witness testimony and premised its denial on the basis of the
seriousness of the present offenses, the defendant’s previous probation violations, and the
defendant’s history of criminal convictions including assault, attempted burglary, and aggravated
burglary. The record also reflects that the defendant violated the trust of his daughter in committing
the present offenses. The record supports the trial court’s decision to deny alternative sentencing.
Therefore, looking at the record in its entirety, we are in agreement with the trial court that the
defendant is not a suitable candidate for probation or community corrections and confinement is
warranted. Accordingly, the judgments of the trial court are affirmed.




                                                       ___________________________________
                                                       J.C. McLIN, JUDGE




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