         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE           FILED
                      OCTOBER 1997 SESSION
                                                  November 5, 1997

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )   NO. 01C01-9701-CR-00015
      Appellee,                     )
                                    )   DAVIDSON COUNTY
VS.                                 )
                                    )   HON. SETH NORMAN, JUDGE
PERCY BROWN,                        )
                                    )   (Sentencing - Sexual Battery)
      Appellant.                    )



FOR THE APPELLANT:                      FOR THE APPELLEE:

KARL DEAN                               JOHN KNOX WALKUP
Public Defender                         Attorney General and Reporter

JEFFREY A. DeVASHER (on appeal)         LISA A. NAYLOR
HOLLIS I. MOORE, JR. (at hearing)       Assistant Attorney General
Assistant Public Defenders              450 James Robertson Parkway
1202 Stahlman Building                  Nashville, TN 37243-0493
Nashville, TN 37201
                                        VICTOR S. JOHNSON, III
                                        District Attorney General

                                        JAMES W. MILAM
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 Second Avenue, North
                                        Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                         OPINION



       The defendant, Percy Brown, appeals the sentences imposed by the

Davidson County Criminal Court following his guilty plea to two (2) counts of sexual

battery. The trial court sentenced defendant as a Range I, Standard Offender, to

two (2) years confinement on each count and ordered that the sentences run

consecutively. On appeal, defendant argues that the trial court erred in (1) denying

alternative sentencing, and (2) imposing consecutive sentences. We affirm the

judgment of the trial court.



                                          FACTS



       Defendant was the live-in boyfriend of the victim’s mother. The victim stated

the defendant sexually assaulted her four (4) times while she was between the ages

of ten (10) and thirteen (13).

       Defendant was indicted for one (1) count of aggravated sexual battery and

two (2) counts of sexual battery.1 He subsequently entered guilty pleas to two (2)

counts of sexual battery.

       At the sentencing hearing, the defendant did not deny that he sexually

assaulted the victim. He claimed that he suffered from seizures that caused

memory blackouts. He alleged that if he did assault the victim, the attacks must

have occurred during his seizures.

       Pursuant to the plea agreement, defendant was to receive a sentence of two

(2) years as a Range I, Standard Offender, for each count of sexual battery. There

was no agreement as to concurrent/consecutive sentences, or whether defendant

would receive some type of alternative sentence.                At the conclusion of the

sentencing hearing, the trial court denied alternative sentencing and ordered that


       1
          One count of sexual battery concerned defendant sexually abusing the victim’s
friend one night as she was sleeping at the victim’s home. This count was dismissed by the
state as part of defendant’s plea agreement. Although the victim alleges that the defendant
sexually assaulted her on four (4) occasions, the state chose to indict the defendant for only
two (2) instances of sexual abuse.

                                              2
the sentences run consecutively.



                     SENTENCING STANDARD OF REVIEW



       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). 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 our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and the trial

court’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).




                             TRIAL COURT FINDINGS




                                          3
      The trial court’s findings consisted only of the following: (1) the defendant

was untruthful in stating he did not recall committing the offenses; and (2) “[t]his

Court doesn’t have any tolerance for anybody who is sexually abusing young

children.” No other principles of sentencing were addressed.

       Since the record does not show that the trial court considered the relevant

sentencing principles, we are unable to afford the sentences a presumption of

correctness. We are now required to review the sentences de novo. State v. Poole,

945 S.W.2d at 96.



                         CONTINUOUS CONFINEMENT



      In his first assignment of error, defendant claims that the trial court erred in

imposing a sentence of continuous confinement. He argues that he is presumed

to be a suitable candidate for alternative sentencing because he was convicted of

a Class E felony. Therefore, he contends that the trial court should have placed him

on immediate probation or probation following a period of confinement.

                                         A.

       Under the 1989 Sentencing Act, sentences which involve confinement are

to be based on the following considerations contained in Tenn. Code Ann. § 40-35-

103(1):

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

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

       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 in the

absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court

must presume that a defendant sentenced to eight years or less and who is not an


                                         4
offender for whom incarceration is a priority is subject to alternative sentencing.

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further

presumed that a sentence other than incarceration would result in successful

rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.

       However, although a defendant may be presumed to be a favorable

candidate for alternative sentencing, the defendant has the burden of establishing

suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must be

automatically considered, “the defendant is not automatically entitled to probation

as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission

Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).

       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); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

       Probation may be denied based solely upon the circumstances surrounding

the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995);

Hartley, 818 S.W.2d at 374.      However, the circumstances of the offense as

committed must be especially violent, horrifying, shocking, reprehensible, offensive

or otherwise of an excessive or exaggerated degree; and the nature of the offense

must outweigh all factors favoring probation. Hartley at 374-75.

       There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467

(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of

alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). In summary, sentencing must be determined on a case-by-case basis,

tailoring each sentence to that particular defendant based upon the facts of that



                                         5
case and the circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235

(Tenn. 1986).

                                         B.

       In making its determination of the defendant’s sentence, the trial court

focused on the nature of the offense. The defendant sexually abused a young child

over a long period of time. Clearly, the trial court placed great weight on the need

to avoid depreciating the seriousness of the offense. Although the trial court’s

sentence is not entitled to a presumption of correctness, we agree that this

sentencing principle is entitled to great weight.

       Moreover, in considering the circumstances of the offense, a court may look

behind the plea agreement and consider the true nature of the offenses committed.

State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983); State v. Biggs, 769

S.W.2d 506, 507 (Tenn. Crim. App. 1988). As to Count One, there is no dispute

that the victim was under thirteen (13) years of age, making it an aggravated sexual

battery. See Tenn. Code Ann. § 39-13-504. Had the defendant been convicted of

or pled to aggravated sexual battery, he would not be eligible for probation. Tenn.

Code Ann. § 40-35-303(a). Although sexual battery is a probation eligible offense,

this Court still may consider the true nature of the offense in determining whether

probation is appropriate.

       Furthermore, the trial court found that defendant was less than candid in his

account as to how the sexual abuse occurred. The defendant's lack of credibility

is 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); State

v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). We also agree with

the application of this sentencing principle.

       In considering these factors along with all the other principles of sentencing,

we agree with the denial of alternative sentencing.



                            CONSECUTIVE SENTENCING




                                          6
       Defendant also alleges that the trial court erred in imposing consecutive

sentences. He asserts that the state failed to establish that consecutive sentences

are warranted in this case. As a result, he contends that his sentences should run

concurrently.

       Tenn. Code Ann. § 40-35-115(b)(5) provides that a court may order

sentences to run consecutively if the court finds by a preponderance of the

evidence that:

       [t]he defendant is convicted of two (2) or more statutory offenses
       involving sexual abuse of a minor with consideration of the
       aggravating circumstances arising from the relationship between the
       defendant and victim or victims, the time span of defendant's
       undetected sexual activity, the nature and scope of the sexual acts
       and the extent of the residual, physical and mental damage to the
       victim or victims.

Furthermore, the court is required to determine whether the consecutive sentences

(1) are reasonably related to the severity of the offenses committed; (2) serve to

protect the public from further criminal conduct by the offender; and (3) are

congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d

933, 939 (Tenn. 1995).

       We find the evidence supports consecutive sentencing. The victim testified

at the sentencing hearing that she suffered a significant decline in her school work

as a result of this abuse and eventually dropped out of high school. She stated that

she had an estranged relationship with her mother and had been in the custody of

the Department of Human Services for at least six (6) months at the time of

defendant’s sentencing.

       The victim testified that she had not lived with her mother since she was

thirteen (13). Although she was in her mother’s legal custody, she lived with various

relatives due to her deteriorating relationship with her mother. Additionally, the

victim’s mother testified that the victim suffered from emotional problems as a result

of these assaults.

       Furthermore, defendant abused a position of trust with the victim as he was

living in her home at the time of the abuse. The abuse occurred several times over

a three (3) to four (4) year period.



                                          7
      Considering all the factors set forth in Tenn. Code Ann. § 40-35-115(b)(5),

we find that consecutive sentencing is justified. See generally State v. Melvin, 913

S.W.2d 195, 205 (Tenn. Crim. App. 1995).

       We also find that the effective four (4) year sentence is reasonably related

to the severity of the sexual abuse of the young child and serves to protect the

public from further misconduct by the defendant.

       In summary, we find that consecutive sentences were appropriate in the case

sub judice. This issue is without merit.



                                  CONCLUSION



      Based upon the foregoing, the judgment of the trial court is affirmed.




                                                JOE G. RILEY, JUDGE


CONCUR:




JOE B. JONES, PRESIDING JUDGE




WILLIAM M. BARKER, JUDGE




                                           8
