            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                          JUNE SESSION, 1998         FILED
                                                      August 10, 1998

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9708-CR-00361
      Appellee              )
                            )    SULLIVAN COUNTY
vs.                         )
                            )    Hon. Phyllis H. Miller, Judge
LARRY DALE RAMSEY,          )
                            )    (Sentencing)
      Appellant             )



For the Appellant:               For the Appellee:

Cary C. Taylor                   John Knox Walkup
547 East Sullivan Street         Attorney General and Reporter
Kingsport, TN 37660
                                 Sandy C. Patrick
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 H. Greeley Wells, Jr.
                                 District Attorney General

                                 Barry Staubus
                                 Asst. District Attorney General
                                 Blountvile, TN 37617




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, Larry Dale Ramsey, appeals the decision of the Sullivan

County Criminal Court imposing an effective eight year Department of Correction

sentence following entry of his guilty pleas to one count of rape and two counts of

sexual battery. In this appeal, the appellant contends that the trial court erred in

denying him a non-incarcerative alternative sentence.



       After a review of the record, we affirm the sentence imposed by the trial court.




                                     Background



       The appellant’s convictions result from the appellant’s ongoing sexual abuse

of the thirteen year old daughter of his live-in girlfriend. The appellant conceded that

his aberrant behavior began in June 1994.

       When we lived in Bristol Heights, about 15 months or so ago. [The
       victim] was fourteen years old and we were laying on the couch
       together, I had been watching tv when she came over to lay down.
       She asked me to rub her back and I was rubbing it. I thought she was
       awake, but she might have dozed off. I believe she was wearing
       shorts and a shirt. The shirt was pulled up so I could rub her back. I
       was almost asleep myself, but I remember putting my hand down the
       back of her shorts and rubbed her [vagina]. After I rubbed it, I put my
       finger in her. I only left it in her for a couple of seconds and I stopped
       because I knew what I was doing was wrong. I don’t know if she was
       awake or not when I did it, but she did wake up later and get (sic) up to
       go to bed. I never touched her again until we moved to 416 Hilltop Rd.
       I have never put my finger in her since then. I have rubbed her
       breasts over her clothes maybe 12 times over the last year. I have
       also rubbed her [vagina] over her clothes and under her clothes quite a
       few times over the last year. I’ve never done any of these things to her
       with her permission or while I thought she was awake. I never wanted
       to hurt [her] and I’m not sure why I did this to her.


Since the occurrence of these offenses, the victim and her mother have moved out

of the appellant’s home.




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      Although charged with one count of rape and thirteen counts of sexual

battery, the appellant pled guilty, on January 6, 1997, to one count of rape and two

counts of sexual battery. The negotiated plea agreement provided that the

appellant would be sentenced to eight years for rape and to one year for each count

of sexual battery, all to run concurrently. The manner of service of the sentences

were to be submitted to the trial court. On May 2, 1997, a sentencing hearing was

conducted.



      No witnesses were called by the State or the appellant at the sentencing

hearing. Rather, the parties submitted and relied upon the presentence report and

letters of good character from the appellant’s ex-wife and his employer. The

presentence report revealed that the appellant is a forty-four year old high school

graduate with no prior criminal record. He is in good physical and mental condition

and does not drink alcohol nor does he use illegal drugs. The appellant has two

adult children from a prior marriage that ended in 1980. Since 1982, he has

maintained stable employment as an electrician.



      Included in the presentence report was a statement made by the victim:


      If you grew up without a father you would probably understand how I
      feel. There’s nothing worse than the feeling of seeing all of these
      family’s [sic] happy and knowing that your family isn’t completely
      complete without a father. Then when you have the chance to have a
      real family, everything just goes away just like it was a dream. I don’t
      know if the judge will put him on probation or send him to prison but I
      do know that if there is any way possible that I could still have contact
      with him I would be the happiest girl in the world. I wouldn’t care if
      there had to be someone with us at all times when I see him, just as
      long as I still got to see him. I always believed that you learn from your
      mistakes. In this case its a big one but that doesn’t mean you have to
      be punished for every mistake that you made. I know that if I got sent
      off for every big mistake that I made I would be sent off until I’m 50.
      So what I’m saying is or should I say asking is, please don’t put him in
      prison.

      The trial court also had the benefit of a psycho sexual evaluation of the

appellant completed by Counseling and Consultation Services, Inc., a private non-

profit counseling center in Johnson City. The clinical interview of the appellant

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indicated that the appellant “appears to have significantly objectified his victim giving

minimal thought to how his offending was affecting her. He is unaware of how his

being sexual with his victim has negatively affected her despite reporting of her

running away, being placed in detention, etc.” The evaluation concluded that the

appellant was in need of Specialized Sexual Offender Treatment, which could be

maintained on an out-patient basis, and, more significantly, that the appellant

“should have no contact with anyone under the age of 18. . . .” (emphasis in

original).



       The court, in a thorough application and consideration of relevant sentencing

principles, found:

       So, [the victim] was just less than a month, maybe, two, three weeks
       past her thirteenth birthday when this all started. . . . [Y]ou [stated], . . .
       ‘What I did was wrong. . . . This sort of thing . . . will never happen
       again.’ Well, now, I am assuming that statement went to what
       happened in 1994. But it happened in 1995 twice, and that’s just what
       you pled guilty to. That’s two more sexual battery offenses against the
       same victim in 1995. You had a whole year to think about it. . . . You
       state, I care about [the victim] and her mother very much; and if I am
       put on probation, I believe that I pose no threat to anyone. You have
       lived and worked in the community for the past twenty-five years. And
       have never caused problems for anyone before this incident. Now, her
       mother was your live-in girlfriend for seven years. The little girl said, ‘It
       didn’t really hurt me mentally until I found out that Larry may go to
       prison. . . . “ Now, that is pitiful. . . .

       She’s fifteen years old. She is still too young to have any judgment
       about what you did to her. . . . Seven years, she was what, six years
       old when you started living with her mother. . . . And the probation
       report states no mitigating factors. It lists two enhancing factors, it
       involved a victim, was committed to gratify the defendant’s desire for
       pleasure or excitement. You abused a position of public or private
       trust. . . .

       You have no prior record. You completed high school. You went to a
       vocational school to become an electrician. That’s all in your favor.
       But then again, you know, you could be a bank president, and be
       beating your wife . . . because this is a secret crime. . . . You are not
       taking any drugs, no alcohol since 1989. . . . You have an ex-wife, two
       grown sons. . . .

       . . . If you had to pick victims, this little girl is probably the epitome of
       the definition of victim. She has nobody, nobody. So let me see what
       enhancement factors there are. The victim of the offense was
       particularly vulnerable because of age, or physical or mental disability.



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        . . .[1] Age is not an element in this crime of rape. . . . Number seven
        applies. . . it involved a victim, was committed to gratify your desire for
        pleasure or excitement.[2] And number fifteen, you abused a position
        of private trust. . . . [3] You had a little girl who didn’t have a Daddy. . .
        . But - - - and she wanted a Daddy, and she had lived with you from
        the time that she was six, and in her mind, she was your daughter.
        You were the closest thing she ever had to a Daddy. And so, I give
        great weight to those enhancement factors. . . . Nothing exists to
        excuse or justify your conduct. . . . You are old enough to know better.
        [T]here are no mitigating factors. And on community corrections, . . .

        . . . You are not eligible for community corrections. I didn’t think it
        applied to sex offenders. So, should you be placed out in the
        community. . . .

        So, now, whether or not you should get probation.

        ...

        Now, this is a B felony. You are not presumed to be a favorable
        candidate for alternative sentencing options. . . . I find that the
        presumption - - - let’s see, you are not presumed to be a favorable
        candidate. So, I find that, number one, confinement is necessary to
        protect society. Number two, in your case, confinement is necessary
        to avoid depreciating the seriousness of the offense. you don’t go out
        and steal and plunder, rape women on the street; but you raped a little
        girl in what was the only home she had. So, probation is denied.




                                               Analysis



        Again, the appellant contests the trial court’s order denying him a non-

incarcerative sentencing alternative. Specifically, he asserts that the trial court

incorrectly applied enhancement factors and unjustly rejected mitigating factors in

determining that a sentence of confinement was necessary to protect society and to

avoid depreciating the seriousness of the offense.



        When a sentencing determination is challenged on appeal, this court

conducts a de novo review with consideration of the evidence received at the



        1
            See State v. Walton, 958 S.W .2d 724, 729 (Tenn. 1997 ).

        2
         See State v. Carico, No.03S01-9610-C R-0009 (Ten n. at Knoxville, Apr. 27, 1998) (for
publication).

        3
            See Carico, No. 03S01-9610-CR-0009.

                                                  5
sentencing hearing, the presentence report, the principles of sentencing and

arguments to sentencing alternatives, the nature and characteristics of the criminal

conduct involved, any statutory enhancing or mitigating factors, any statement that

the defendant made on his own behalf, and the potential or lack of potential for

rehabilitation or treatment. Tenn. Code Ann. §§§ 40-35-102 (1995 Supp.); 40-35-

103 (1990); 40-35-210 (1995 Supp.). Although a de novo review is conducted by

this court, the trial court’s determination is presumed correct on appeal, conditioned

upon an affirmative showing in the record that the trial court properly considered

relevant sentencing principles. Tenn. Code Ann. § 40-35-401(d) (1990); State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the present case, this court could not

have conducted a more thorough and complete review of the applicable sentencing

considerations. The presumption of correctness applies. Moreover, the appellant

bears the burden of showing that the sentence imposed by the trial court is

improper. See Tenn. Code Ann. § 40-35-210(b)(3).



       Because rape is a class B felony, the appellant is not presumed to be a

favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-

102(6). Moreover, even though the presumption applies to his two remaining class

E felonies, this presumption may be overcome by “evidence to the contrary.” See

Tenn. Code Ann. § 40-35-102(6); Tenn. Code Ann. § 40-35-103(1) (1990) (defining

what constitutes sufficient evidence to the contrary). Inasmuch as they are relevant

to establishing sufficient “evidence to the contrary,” the trial court may consider any

applicable statutory mitigating and enhancing factors set forth in Tenn. Code Ann.

§§ 40-35-113 (1990); and -114 (1995 Supp.). See State v. Zeolia, 928 S.W.2d 457,

461 (Tenn. Crim. App. 1996). We find no error in the application of enhancement

factors nor in the rejection of any mitigating factors.



       In reviewing the propriety of the sentence imposed by the trial court, we do

not find error in the court’s application of the relevant sentencing principles. We do


                                          6
find the appellant's offenses reprehensible and offensive. Moreover, we find the

offenses excessive and exaggerated based upon the extended period over which

the sexual abuse occurred. We also take into account the relative ages of the

appellant and the victim and the relationship between the two. Furthermore, as

indicated by the psycho sexual evaluation, we find the appellant to be a poor

candidate for rehabilitation.



       The appellant has failed to establish that the sentencing decision of the trial

court is improper. The record fully supports the trial court’s determination denying

the appellant a non-incarcerative sentence. We agree with the trial court that a

sentence of incarceration is justified.



       The judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:



_______________________________
JOHN H. PEAY, Judge



_______________________________
JOSEPH M. TIPTON, Judge




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