        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             November 18, 2009 Session

            STATE OF TENNESSEE v. JOSEPH S. RITTENBERRY

             Direct Appeal from the Criminal Court for Sumner County
                      No. 615-2006    Dee David Gay, Judge


                 No. M2008-01308-CCA-R3-CD - Filed April 28, 2010


The Defendant-Appellant, Joseph S. Rittenberry, pled nolo contendere in Sumner County to
three counts of attempted aggravated sexual battery, a Class C felony. The trial court
sentenced Rittenberry to six years in the Tennessee Department of Correction for each
conviction, to be served concurrently. On appeal, Rittenberry claims 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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

James Robin McKinney, Jr., Nashville, Tennessee, for the Defendant-Appellant, Joseph S.
Rittenberry.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       Background. Rittenberry was indicted by the Sumner County Grand Jury for three
counts of aggravated sexual battery. He pled nolo contendere to the amended charges of
attempted aggravated sexual battery. The record does not include a transcript of the plea
hearing; however, we find the transcript from the sentencing hearing is sufficient to
determine if the trial court erred in sentencing. See State v. Keen, 996 S.W.2d 842, 844
(Tenn. Crim. App. 1999) (finding that despite the absence of the transcript from the plea
hearing, the record was sufficient to address the issue of sentencing).
       The first witness to testify at the sentencing hearing was Detective John Denny
Coarsey of the Hendersonville Police Department. Detective Coarsey was contacted by the
Department of Children’s Services (DCS) about the possible sexual abuse of a minor. The
DCS had interviewed the victim, who claimed that at age twelve, she was sexually abused
by her stepfather, Joseph Rittenberry. The State questioned Detective Coarsey as follows:

      THE STATE: Was [the victim] interviewed concerning what had occurred
      between herself and her stepfather?

      DETECTIVE COARSEY: Yes. [The victim] with DSC basically conducted
      the interview. She related three instances over a period, I believe, was
      November 2005. I think the second one was in January of ’06, and if my
      memory recalls, the third one was in about May of ’06.

      THE STATE: And during these reports by [the victim], did she relay to [DCS]
      and then later to, I think, us in a meeting that she had been touched by her
      stepfather?

      DETECTIVE COARSEY: Yes, she did.

      THE STATE: In what areas of the body was he touching her?

      DETECTIVE COARSEY: The incident started with horseplay. I believe it
      was her first instance she reported in the living room when Mom was gone in
      which he was on top of her and put his hands under her shirt, touching her
      breast area.

      THE STATE: And in the other occasions?

      DETECTIVE COARSEY: The other two were in the laundry room of the
      residence on two separate occasions in which he pulled down the victim’s
      pants and touched her on the breast and vaginal area, the last time skin to skin,
      no penetration.

      THE STATE: After the last incident occurred – I believe that last incident was
      in May of ’06. That very weekend she told a friend; is that correct?

      DETECTIVE COARSEY: Correct. My recollection is she reported it to a
      school teacher, and also that weekend she went to spend the night with a



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       family friend who had a daughter her age, and she confided in the daughter
       who told the mother.

       After Detective Coarsey received this information from the DCS, he interviewed
Rittenberry at his residence. Detective Coarsey stated:

              Mr. Rittenberry denied any knowledge. He said anyone that would do
       that was sick. He told me that he had been accused in the past with his
       stepdaughter of – by family members. That was over a family dispute, the
       way I took it, but basically denied any involvement.

              He said that he had removed her from the church or wasn’t allowing her
       to go to her church. She was upset over that, and then I’m trying to recall.
       There was one other that she was upset about and he was basically indicating
       those were the reasons she might have made these allegations against him.

        On a later date, Detective Coarsey telephoned Rittenberry and requested that he come
to the police station for computer voice stress analysis and another interview. Rittenberry
came to the station accompanied by his wife, who is the mother of the victim. The wife was
not present during the interview. Rittenberry admitted on tape that the victim’s allegations
were true. He said he spoke with his preacher, and the preacher had set up counseling.
Rittenberry testified that before the incidents of sexual abuse, he fantasized about the victim.
After the interview, Detective Coarsey told Rittenberry’s wife that her husband confessed to
the alleged crimes. She became upset and asked Rittenberry why he confessed to something
he did not do. Rittenberry told her “it was just the best thing to do at this time.” Detective
Coarsey asked Rittenberry whether his confession was truthful. Rittenberry did not provide
a definitive response until his wife walked off. He then reaffirmed that the allegations were
true, but he wanted to “leave [his wife] out of it.”

       Detective Coarsey testified that Rittenberry was “very cooperative” during the
investigative process, despite the initial denial. Detective Coarsey learned that the victim
now lives in Alabama with her grandparents. He believed she was moved because her
mother was upset with her for raising the allegations. The State introduced a juvenile court
order showing that the victim’s grandparents have joint custody of the victim with the
victim’s mother.

       Scott Little of the Tennessee Probation and Parole office testified that he met with
Rittenberry and discussed the rules and directives of probation and parole. Little said he
informed Rittenberry that prior to his sentencing, he needed to register with the Tennessee
Bureau of Investigation sex offender registry. Rittenberry responded that he had a court

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order stating he did not have to register. He did not, however, provide a copy of this order.
Later, Little informed Rittenberry that he was in violation of a statute requiring that he
register as a sex offender. Rittenberry again responded that he had an order, which he failed
to produce. Little informed the Henderson Police Department that Rittenberry was refusing
to register. Little said Rittenberry eventually registered three months after entering his plea
petition.

        Dr. Donna Moore testified that she is a licensed psychologist and has conducted over
1,300 psychosexual interviews. She evaluated Rittenberry and reported her findings in a
report entitled “Psychosexual Risk Assessment.” The “Summary and Conclusions” section
states:

       Mr. Joseph Scott Rittenberry is a 37-year-old, married, Caucasian male who
       was referred for a presentence psychosexual evaluation. He left high school
       and has been employed in construction, landscaping, and iron work before
       starting his business as a handyman. He admitted a history of substance abuse
       including use after he completed substance abuse treatment at the age of 17.
       He admitted a history of criminal misconduct including convictions for
       stealing automobile stereos as well as domestic violence against his first wife.
       Mr. Rittenberry has accepted a plea agreement to three sexual offenses against
       his stepdaughter who was 12 years old at the time of the offenses. He denied
       he did anything sexual to her but reported he admitted he did so to the
       detective during questioning in order to go home. He reported he was not
       allowed to have an attorney, and once he retained an attorney, was informed
       that he could do nothing but accept the guilty plea due to his confession.

       Mr. Rittenberry denied any misconduct with his stepdaughter. Testing
       indicated a deliberate attempt at impression management and trying to appear
       as if he had no problems. Risk assessment estimated his risk for sexual
       recidivism to be in the low category when considering static traits. When
       considering dynamic factors his risk is enhanced. Risk can be managed
       through an appropriate containment model of supervision, treatment, and
       polygraphy. As Mr. Rittenberry denied he engaged in sexual misconduct, he
       is not appropriate for treatment services at this time. If he is willing to admit
       his deviance and work to manage his risks, he could participate in a
       community-based sex offender treatment program. Mr. Rittenberry should be
       provisionally accepted once he admits his offense to a therapist and [is]
       monitored for compliance.

The report offered nine recommendations for Rittenberry, the first of which stated:

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       It is recommended that Mr. Rittenberry receive sex-offender-specific mental
       health treatment once he admits to a sexual deviance problem. Treatment
       should be conducted by therapists competent in the area of sexual offender
       dynamics and who are currently approved by the Sex Offender Treatment
       Board. At this time, it appears that Mr. Rittenberry is not in need of a secure-
       type facility.

        At the hearing, Dr. Moore’s testimony was consistent with the conclusions of her
report. She said Rittenberry displayed poor insight, which speaks to one’s awareness of a
problem. Rittenberry denied sexually assaulting or fantasizing about the victim, although he
admitted to “engaging in horseplay” and accidentally seeing her naked. In Rittenberry’s
psychosexual history, he admitted having over 100 sexual partners and group sex. Dr. Moore
testified that Rittenberry scored very high on the lie scale, which generally indicates one’s
failure to appreciate the consequences of his behavior. She did not recall Rittenberry
exhibiting empathy for the victim. Dr. Moore marked Rittenberry under the low category of
sexual recidivism partly because the research shows “incest offenses are at a lower risk than
somebody who goes out and abducts a stranger.” Dr. Moore said she was not aware of any
Tennessee treatment program that would accept someone who denied committing the acts
for which he sought treatment.

       On cross-examination, Dr. Moore testified that most defendants charged with sexual
abuse are in denial. She stated, however, that there are varying levels of denial. Rittenberry
denied that he committed the illegal acts. This level of denial is distinguishable from those
who accept responsibility for their actions but are in denial of the harm caused to the victim
or the seriousness of the offense. The trial court asked Dr. Moore about the effect of
Rittenberry’s denial. Dr. Moore responded, “If he’s not able to admit that he did something
sexual, for a sexual motive, he would not be appropriate to even get started on that process
of those other pieces of denial.”

       Rittenberry’s stepfather, Garland Edward Flatt, testified that Rittenberry moved into
his house after the allegations of sexual misconduct surfaced. Rittenberry lost his job and
was forced to sell his home. Flatt stated that Rittenberry attends religious services each week
and has not appeared drunk or under the influence of illegal drugs. Flatt said he would
continue to provide his stepson with a place to stay if placed on probation. Flatt did not
believe that Rittenberry was a pedophile. Flatt described the victim as difficult to talk to and
possibly bi-polar. Flatt said Detective Coarsey told Rittenberry that he would probably get
a year’s probation and counseling if convicted.

       At the conclusion of the hearing, the trial court sentenced Rittenberry to six years for
each count of attempted aggravated sexual battery, to be served concurrently. It found three

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enhancement factors under Tennessee Code Annotated section 40-35-114 were present.
First, it determined that enhancement factor one was applicable because of Rittenberry’s
history of criminal convictions and criminal behavior. His history includes stealing stereos
from automobiles, domestic violence, and illegal drug use. The trial court also found that
enhancement factor four was present because of the victim’s vulnerability as a twelve-year
old. Lastly, the trial court determined that enhancement factor fourteen was applicable
because Rittenberry abused a position of private trust as the victim’s stepfather. The trial
court placed “great weight” on this last factor. It did not find that any mitigating factors were
present. It also determined that consecutive sentencing was not appropriate.

       Next, the trial court addressed the issue of alternative sentencing. It stated:

              Now, that leaves us with what are we going to do? Are we going to
       give him alternative sentencing, are we going to give him split confinement,
       or are we going to send him to the Tennessee Department of Correction?
       There are numerous factors that I must look at in this consideration.

               First and foremost here, along the list of factors in cases is his physical,
       mental and social history. His physical condition is good. His mental
       condition is – although technically there doesn’t appear to be anything wrong,
       he’s in a state of denial, and I have a problem with that because I don’t see
       how anybody can [be] helped – I can try to extend my hand in rehabilitation
       – if he doesn’t want to be helped or if he doesn’t admit a problem.

              The social history is absolutely horrendous, 10th grade education, no
       significant employment history, no employment now, and bankruptcy.

              I’ve also considered the facts and circumstances surrounding the
       offense and the nature and circumstances of the conduct involved. You’ve got
       a stepfather and a stepdaughter, and I have told you how I feel about that
       relationship. You’ve got three instances over a six-month period where he ran
       his hands up her shirt, kissed her breasts; another instance, ran his hands over
       her vagina with her panties on. In the last incident he did it skin to skin.
       That’s inexcusable. And then you put on top of that the effect, the nature and
       circumstances of the criminal conduct.

               Mr. Rittenberry, your stepdaughter said, I told what was happening and
       I lost my mother. Do you know what it’s like to lose your mother and father
       under these circumstances when you’re kicked out?



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        I didn’t know what to do. I didn’t know what to tell my little sister. We
were put in foster care, and I didn’t do anything wrong. She’s kicked out;
you’re at home; and she didn’t do anything wrong. Can you even appreciate
that? I have not seen one iota anywhere that you appreciate what’s happened
to this little girl. Although I might not be able to point with my finger to a
report saying this, this, this, this, and this are the effects, she’s got to live with
that every day of her life. Her stepfather abused her. Her mother kicked her
out of the house and chose you. I consider that in the nature and circumstances
of the criminal conduct involved.

       I’ve considered your prior criminal history. I’ve considered your
actions and character. Where are your other children? They’re not in your
life. You haven’t seen them in eight years. Your two children you have here
got out of the house and are in Alabama.

      There’s denial of right and wrong, a failure to address right and wrong.
There’s a failure to embrace the truth. Truth is not what you want it to be. It’s
not what you spin it to be. It’s that which is real, that which is reality, that
which conforms with reality. That is not present in your life.

       You didn’t register as a sex offender when you were asked to do it.
They talked [to] you at probation. Your attorney can’t take the blame for that.
They gave you time to do it, and they went there again and you still didn’t do
it. We had to tell you to bring in tax returns and your wife finally did it. Your
character, integrity is zero, zip, nada.

        Reasonably expected to be rehabilitated, I don’t see any reasonable
expectation of rehabilitation. I don’t see any need to try because you haven’t
tried yet. It’s been two years, and you haven’t taken one step to acknowledge
that.

       I’ve considered the possibility of protecting others from you. I’ve
considered the seriousness of the offense and the deterrent effect. The
deterrent effect is terrible. It’s a sad state of affairs when a little girl 12 years
old has the memories of what you did to her and the fact that she was kicked
out of the house. The deterrent effect is great. Those like you need to be
deterred.

      Therefore, I’m denying probation. The sentence will be six years at 30
percent on each count. They will run concurrently with each other, and you’ll

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       serve that in the Tennessee Department of Corrections, and that will be the
       order of the Court. You’ll be in custody and you may go.

After entry of the judgments, Rittenberry filed a timely notice of appeal.

                                         ANALYSIS

       Alternative Sentencing. Rittenberry claims the trial court erred in denying
alternative sentencing. Specifically, he argues the trial court failed, under Tennessee Code
Annotated section 40-35-103(5), to consider his “potential or lack of potential” for
rehabilitation or treatment. Rittenberry requests this court to vacate his sentence and order
his release to probation. In response, the State argues the trial court did consider
Rittenberry’s potential for rehabilitation, and that Rittenberry failed to prove he was a
suitable candidate for alternative sentencing. Upon review, we agree with the State.

        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2005). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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). The defendant, not the State, has the burden
of showing the impropriety of the sentence. T.C.A. § 40-35-401(d) (2005), Sentencing
Commission Comments.

       Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). A trial court, when sentencing
a defendant or determining alternative sentencing, must consider the following:

       (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 mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;




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       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b) (2005); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002);
State v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

       Tennessee Code Annotated section 40-35-102(5) (2005) gives courts guidance about
the types of individuals who should be required to serve their sentence in confinement:

       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 to past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration[.]

      In determining whether a defendant should be required to serve a sentence of
confinement, the trial court must consider if:

       (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[.]

T.C.A. § 40-35-103(1)(A) - (C) (2005); see also Ashby, 823 S.W.2d at 169. The sentence
imposed by the trial court should be the least severe measure necessary to achieve the
purpose for which the sentence is imposed. T.C.A. § 40-35-103(4). Additionally, the court
should examine the defendant’s potential for rehabilitation or treatment. See T.C.A. §
40-35-103(5). If a defendant is an especially mitigated or standard offender convicted of a
Class C, D, or E felony, he should be viewed as a favorable candidate for alternative
sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-102(6).




                                              -9-
        A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See T.C.A. § 40-35-303(a) (2005). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants; however,
the defendant bears the burden of proving his or her suitability for probation. T.C.A. §
40-35-303(b) (2005). No criminal defendant is automatically entitled to probation as a matter
of law. Id., Sentencing Commission Comments; see State v. Davis, 940 S.W.2d 558, 559
(Tenn. 1997). Rather, the defendant must demonstrate that probation would serve the ends
of justice and the best interests of both the public and the defendant. See State v. Souder,
105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citation omitted).

       When considering probation, the trial court should also examine the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, his present condition, including physical and mental condition, and the
deterrent effect on the defendant. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim.
App. 1999). Moreover, our supreme court has held that “truthfulness is certainly a factor
which the court may consider in deciding whether to grant or deny probation.” State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).

       Here, Rittenberry claims the trial court violated a principle of the Criminal Sentencing
Reform Act by not considering his potential or lack of potential for rehabilitation. See
T.C.A. § 40-35-103(5). He argues the trial court failed to consider this principle because it
ignored Dr. Moore’s “unrebutted proof” that he needed rehabilitation and that he did not
require a secure-type facility. Upon review, Rittenberry’s claim is not supported by the
record. In the trial court’s findings, it stated:

       There’s denial of right and wrong, a failure to address right and wrong.
       There’s a failure to embrace the truth. Truth is not what you want it to be. It’s
       not what you spin it to be. It’s that which is real, that which is reality, that
       which conforms with reality. That is not present in your life.

              ....

       Reasonably expected to be rehabilitated, I don’t see any reasonable expectation
       of rehabilitation. I don’t see any need to try because you haven’t tried yet. It’s
       been two years, and you haven’t taken one step to acknowledge that.

These statements were made in response to Dr. Moore’s testimony about the effect of
Rittenberry’s denial. Dr. Moore testified that Rittenberry would not be accepted for
rehabilitation until he admitted sexually abusing his stepdaughter. The record shows that the

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trial court considered Rittenberry’s potential for rehabilitation and found that his persistent
denial prevented him from being a suitable candidate for rehabilitation at the time of
sentencing. This finding is consistent with the testimony of Dr. Moore who said Rittenberry
needed treatment, but was not yet ready.

       We acknowledge that the trial court did not expressly address under section 40-35-
103(C), whether “[m]easures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]” However, the record shows that the trial
court considered the other applicable sentencing principles in section 40-35-103, as well as
the nature and circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, his present condition, including physical and mental
condition, and the deterrent effect on the defendant. See Kendrick, 10 S.W.3d at 656.
Additionally, Rittenberry’s lack of truthfulness weighed heavily in the trial court’s decision.
Bunch, 646 S.W.2d at 160. Following our review, Rittenberry has not shown that the trial
court erred by denying alternative sentencing. Therefore, he is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing, the judgments of the trial court are affirmed.




                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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