            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  Assigned on Briefs May 21, 2002

                        STATE OF TENNESSEE v. DAVID SALTZ

                   Direct Appeal from the Criminal Court for Sullivan County
                            No. S44,304    Phyllis H. Miller, Judge



                                      No. E2001-02422-CCA-R3-CD
                                           September 3, 2002

The defendant pled guilty to three counts of incest and was sentenced as a Range II multiple
offender to three concurrent terms of eight years. The defendant appeals the trial court’s
imposition of various enhancement factors and denial of alternative sentencing. We affirm the
trial court’s judgment.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and NORMA MCGEE OGLE , JJ., joined.

Stephen M. Wallace, District Public Defender (at trial); Leslie S. Hale, Assistant District Public
Defender (at trial); and Steve McEwen, Mountain City, Tennessee (on appeal), for the appellant,
David Saltz.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; Teresa Murray-Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                                  OPINION

        The Sullivan County Grand Jury indicted the defendant, David Saltz, on three counts of
rape, Class B felonies, and three counts of incest, Class C felonies. Pursuant to a plea
agreement, the defendant pled guilty to the incest charges, and the rape charges were dismissed.
The defendant agreed to be sentenced as a Range II multiple offender even though he was
actually a Range I offender.1 A sentencing hearing was held, and the defendant was sentenced to
three concurrent eight-year terms in the Tennessee Department of Correction. His request for



        1
           State v. Mahler, 735 S.W.2d 226 (Tenn. 1987) (defendant can knowingly and voluntarily plea to sentence
within the statutory range as Range II offender, even though not tec hnically q ualified above Range I status).
alternative sentencing was denied. This appeal timely followed. The defendant asserts that the
trial court erred in denying his request for alternative sentencing.

                                              Facts

        The defendant, David Saltz, pled guilty to incest, admitting that he had sexual intercourse
with his fifteen- year-old stepdaughter on three occasions. The defendant’s wife, the mother of
the victim, was charged with facilitation of felony rape and failure to report child sexual abuse
for a period of three years. Mrs. Saltz pled guilty and was granted judicial diversion. The trial
judge sentenced the defendant as a Range II multiple offender to three concurrent eight-year
terms. A probation hearing was held to determine the manner of service of the sentence. The
evidence before the trial court included a presentence report prepared by the Tennessee
Department of Correction and a sex offender risk assessment report prepared by Counseling and
Consultation Services, Inc. (CCS).

        The presentence report lists one prior felony (grand larceny) and several misdemeanors,
including possession of marijuana, unlawful possession of drug paraphernalia, theft, and driving
under the influence. Numerous probation violations for prior offenses are also contained in the
report. The report reveals that the defendant has been in drug treatment programs on previous
occasions. The defendant is currently employed at a temporary employment agency.

        The risk assessment of this defendant found that he is a moderate risk to re-offend and a
fair candidate for sex offender treatment. The assessment concluded that the defendant is an
appropriate candidate for a community based out-patient treatment program. However, CCS
found that the defendant’s level of risk may be difficult to manage through probation.
According to CCS, the defendant’s sexual response to minors is considered deviant. The
defendant acknowledged sexual contact with five other minor girls.

        CCS concluded that the defendant: (1) used his position of authority to gain access to the
minor, (2) used intimidation and coercion to commit the offenses, and (3) demonstrated no
regard for the pain he was inflicting on his daughter. The assessment stated that an offender’s
“willingness or ability to honestly discuss their sexual offending behavior is the single most
important factor associated with successful treatment.” The defendant initially only admitted
sexual contact with two other minors. He only admitted contact with three additional minors
after a polygraph test. CCS found that the defendant’s “understanding of the harm he has caused
was superficial.”

        The assessment also indicated that the defendant admitted having sexual encounters with
several prostitutes. He stated that he had sexual encounters with his brother’s wife, and he and
his wife had two previous sexual encounters with his brother’s wife.

         The defendant testified that he became sexually active at a very young age. He testified
that his two older brothers had initiated oral sex with him when he was a child. Additionally, he
testified that older boys in the neighborhood forced him to have intercourse with them when he
was thirteen years old. The defendant testified that he knew what he did with his stepdaughter

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was wrong, but he thought that she wanted to have sex with him. He stated that he wanted
counseling for his problems. He testified that he had recently failed a drug test, and he was
currently on probation for possession of marijuana. The defendant stated that he had not
successfully stopped using drugs.

        Eugene Worley, the defendant’s landlord, testified as a character witness for the
defendant. He testified that he had known the defendant all of his life and that he did not think
the defendant was a danger to the community. Upon cross-examination, Worley indicated that
he was not fully aware of the charges against the defendant, and he did not read the probation
report.

        The court found five enhancement factors and no mitigating factors. The court found
that the defendant (1) has a history of criminal convictions and criminal behavior, (2) was a
leader in the commission of an offense, (3) committed the offense to gratify his desire, (4) has a
history of noncompliance with probation, and (5) violated a position of trust. Tenn. Code Ann. §
§ 40-35-114(1), (2), (7), (8), and (15).

                                             Analysis

        The defendant argues that the trial court erred in sentencing him to incarceration and
denying him any form of alternative sentence. This Court’s review of the sentence imposed by
the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)
(1997). This presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencing principles and all relevant facts and circumstances. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory
directives, there is no presumption of correctness, and our review is de novo. State v. Poole, 945
S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments.

        In conducting a de novo review of a sentence, this Court must consider (1) the evidence,
if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles
of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made
by the defendant in his own behalf; and (7) the defendant’s potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863
(Tenn. Crim. App. 1987).

                                      Enhancement Factors

          Although the defendant does not expressly challenge the resulting length of his
sentence, he asserts that the trial court misapplied two enhancement factors. Specifically, the
defendant contends that the trial court erroneously applied enhancement factors (1), the
defendant has a history of criminal convictions in addition to those necessary to establish the
appropriate range, and (2), the defendant was a leader in the commission of an offense involving
two or more actors. Tenn. Code Ann. § 40-35-114 (1), (2). He first contends that the application

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of enhancement factor (1), Tennessee Code Annotated section 40-35-114, was inappropriate
because his “criminal record consists mainly of misdemeanors involving marijuana possession.”
We disagree. In addition to the misdemeanor convictions for marijuana possession, a review of
the defendant’s criminal record reveals that the defendant has two convictions for driving under
the influence of an intoxicant, one conviction for theft, and one conviction for grand larceny.
The trial court’s application of this factor was appropriate.

       Next, the defendant alleges that the trial court incorrectly applied enhancement factor (2),
Tennessee Code Annotated section 40-35-114, to enhance the defendant’s sentence. We
disagree. The trial court found

       [The defendant’s wife] was involved in it with [the defendant]. The two of you
       worked together. It would not surprise me if she wasn’t deriving some sort of
       sexual pleasure out of this, too, considering what you said in your statement at
       [CCS]. But anyway, she was assisting you in this . . .

Moreover, the record reflects that the defendant’s wife, who is also the victim’s mother, pled
guilty to facilitation of rape and failure to report child abuse for three years. Although the record
before us does not contain her plea agreement, the presentence report, which is included in the
record and referenced by the trial court, notes that the victim’s mother “encouraged the victim to
have sex with the defendant.” Also in the record are references to tape recorded conversations
between the mother and the victim during which the mother tells the daughter to be quiet about
the offenses and uses the two-year old sister as a reason to cooperate.

        We conclude that the record supports the trial court’s application of enhancement factor
(2). It clear from the mother’s guilty plea to facilitation of rape that she was a participant in the
defendant’s offense. Furthermore, while his wife encouraged the victim to have intercourse with
the defendant and urged her not to report the abuse, the defendant was the person who actually
engaged in sexual intercourse with the victim. Accordingly, the trial court could conclude that
the defendant was a leader in the commission of the offense. This issue is without merit.

                                  Denial of Alternative Sentence

        Turning to the defendant’s argument that the trial court erred in denying an alternative
sentence, we recognize that trial judges are encouraged to use alternatives to incarceration under
the Criminal Sentencing Reform Act of 1989. Moreover, an especially mitigated or standard
offender convicted of a Class 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). Because the instant defendant is a Range II multiple offender, he is not entitled to
the statutory presumption in favor of an alternate sentence. However, due to the length of his
sentence, the defendant is statutorily eligible for probation. A defendant is eligible for probation
if the actual sentence imposed upon the defendant is eight years or less and the offense for which
the defendant is sentenced is not specifically excluded by statute. Tenn. Code Ann. §
40-35-303(a). Probation is to be automatically considered as a sentence alternative for eligible
defendants; however, the burden of proving suitability for probation rests with the defendant. Id.

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§ 40-35-303(b). A defendant seeking full probation bears the burden on appeal of showing the
sentence imposed 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). Additionally, a court should consider the defendant’s potential, or lack of
potential, for rehabilitation when determining if an alternative sentence would be appropriate.
Tenn. Code Ann. § 40-35-103(5). The defendant’s lack of credibility is also an appropriate
consideration and reflects on a defendant’s potential for rehabilitation. State v. Dowdy, 894
S.W.2d 301, 306 (Tenn. Crim. App. 1994). A court may also consider the mitigating and
enhancing factors set forth in Tennessee Code Annotated sections 40-35-113 and -114 as they
are relevant to the section 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5); State
v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

        In the instant case, the trial court found that, due to the defendants long history of
criminal conduct, confinement was necessary to protect society and to avoid depreciating the
seriousness of the offense. Tenn. Code Ann. § 40-35-103(1) (A)-(C). In concluding that the
defendant had not established his suitability for probation, the trial court relied on the
defendant’s lengthy criminal history, including numerous failed attempts at probation, the
findings contained in the sex offender risk assessment, and the circumstances of the offense. The
record supports the trial court’s conclusions. The defendant did not carry his burden of proving
that he should receive probation, and the trial court did not err or abuse his discretion in denying
the defendant’s request. This issue is without merit.

                                         CONCLUSION

       Accordingly, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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