           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                              MAY 1999 SESSION


STATE OF TENNESSEE,                 *    No. 01C01-9801-CC-00036
                                                  October 12, 1999
      Appellee                      *    CANNON COUNTY

V.                                  *    Hon. J. S. Daniel, Judge
                                                        Cecil Crowson, Jr.
JAMES FRAZIER,                      *    (Incest)
                                                     Appellate Court Clerk
      Appellant.                    *


For Appellant                            For Appellee

Scott Daniel                             John Knox Walkup
P.O. Box 960                             Attorney General and Reporter
Murfreesboro, TN 37133-0960              425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         Daryl J. Brand
                                         Associate Solicitor General
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         David Puckett
                                         Assistant District Attorney General
                                         303 Rutherford County Judicial
                                         Building
                                         Murfreesboro, TN 37130


OPINION FILED:


AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                                    OPINION

                   On January 17, 1997, the appellant, James Frazier, was indicted by a

Cannon County Grand Jury for twenty-four counts of raping his minor daughter, GF, 1

and twelve counts of incest with his daughter, the offenses occurring in 1995. On

August 28, 1997, the appellant submitted a petition to enter pleas of guilt to six

counts of incest in return for the State’s dismissal of the remaining counts of the

indictment and in return for consecutive sentences of three years for each conviction

of incest. The parties agreed that the trial court would determine whether the

appellant should receive a sentencing alternative to incarceration. Following a

sentencing hearing, the trial court accepted the plea agreement, imposing an

effective sentence of eighteen years in the Tennessee Department of Correction,

but declined to grant alternative sentencing. On appeal, the appellant challenges

both the imposition of consecutive sentencing and the trial court’s denial of an

alternative sentence. Following a thorough review of the record, we affirm the

judgment of the trial court.



                                          I. Factual Background

                   The trial court conducted the appellant’s sentencing hearing on

November 7, 1997. The proof at the sentencing hearing established that the

appellant grew up in Cannon County and was a member of a closely knit family.

Indeed, the appellant left high school after completing the tenth grade in order to

work for his father in the family logging business. The appellant worked in the family

logging business and also worked with his family farming tobacco and raising cattle

until 1987, when he began working with the Tennessee Farmer’s Co-op in nearby

Rutherford County. The appellant maintained employment at the Tennessee



         1
        Con siste nt with the p olicy of this c ourt, we w ill withh old th e iden tity of ch ildren involv ed in
sexual abuse cases, identifying them only by their initials.

                                                          2
Farmer’s Co-op until his arrest for the instant offenses. The record further reflects

that, other than two traffic violations, the appellant possesses no criminal record.

Moreover, at the sentencing hearing, both the appellant and several family members

testified that the appellant has never abused alcohol or drugs. The appellant does

take medications for the treatment of diabetes and hypertension.



              At the time of these offenses, the appellant was married and had three

biological children and two step-children. The appellant confessed at the

sentencing hearing that, prior to the instant offenses, he had sexually abused a

minor step-daughter for a period of one year. Due to this episode of sexual abuse,

the Department of Children’s Services removed the appellant’s step-daughter and

his biological daughter, GF, from the appellant’s home. The appellant apparently

avoided criminal prosecution, agreeing to undergo counseling which comprised fifty-

seven group counseling sessions between 1993 and 1995 and additional individual

counseling. On July 28, 1995, the appellant was diagnosed with “pedophilia, limited

to incest.” Nevertheless, in 1995, the Department of Children’s Services returned

the appellant’s biological daughter, GF, to the appellant’s home. According to the

appellant, he began sexually abusing his minor daughter approximately six months

after her return to the home.



              During the ensuing year, the appellant engaged in sexual intercourse

with his daughter approximately once every week. In a statement to the police, the

appellant indicated that his daughter repeatedly asked that he cease his sexual

advances. However, he also denied using anything other than verbal coercion upon

his daughter. At the sentencing hearing, the appellant expressed remorse for his

crimes and indicated a willingness to again undergo counseling.




                                           3
              Azero Frazier, the appellant’s father, testified on the appellant’s behalf.

He stated that, during the appellant’s employment by the family business, the

appellant was a hard worker. Moreover, Mr. Frazier recalled that the appellant

never posed a disciplinary problem for his parents. Mr. Frazier concluded that, if his

son were granted an alternative sentence, he would provide the appellant with a

home, employment, and supervision.



              Finally, the appellant’s daughter, GF, submitted a Victim Impact

Statement. She indicated that she did not oppose the imposition of an alternative

sentence providing for the appellant’s release from incarceration after September

20, 1998. GF asserted her belief that the appellant does not pose a danger to her

or other members of the community.



              At the conclusion of the hearing, the trial court entered the following

findings of fact:

              This Court has carefully considered the probation report,
              the attachments to that report, the testimony presented
              at this hearing as well as the plea. After considering
              arguments of counsel, this Court determines that the
              application for a suspended sentence should be denied.
              In making this determination a careful consideration of
              the circumstances of the various offenses has greatly
              weighed upon the Court’s determination. In this case the
              Defendant is convicted of incest against his natural child
              over an extended period of time. This criminal activity
              occurred after the Defendant had been identified as
              being involved in an incestuous relationship with a step-
              daughter and had completed an extensive course of
              psychological treatment over approximately a year before
              having obtained the custody of the child victim in the
              current cases.

               In addition, this record demonstrates that although the
               Defendant has no prior criminal record of convictions, the
               Defendant engaged in numerous acts of uncharged
               criminal conduct by having sexual intercourse with his
               natural daughter, sexually assaulting the step-daughter,
               and that he has engaged in a continued course of
               pedophilia within his family.

                                           4
                Therefore, to suspend all or a portion of this sentence
                would be to depreciate the seriousness of the continued
                course of criminal activity against these children . . . .




                                            II. Analysis

                We first conclude that the appellant waived his right pursuant to Tenn.

Code. Ann. § 40-35-401 (1997) to appeal the imposition of consecutive sentencing

in his case. State v. McKissack, 917 S.W.2d 714, 715 (Tenn. Crim. App. 1995);

State v. Jaco, No. 01C01-9802-CC-00091, 1998 WL 917805, at *5 (Tenn. Crim.

App. at Nashville, December 21, 1998), perm. to appeal denied, (Tenn. 1999);

Tenn. R. App. P. 3(b)(2); Tenn. R. Crim. P. 37(b)(2). 2 Moreover, we conclude that

the trial court properly denied the appellant a sentencing alternative to incarceration.



                Appellate review of the manner of service of a sentence is de novo.

Tenn. Code. Ann. § 40-35-401(d). In conducting its de novo review, this court

considers the following factors: (1) the evidence, if any, received at the trial and the

sentencing hearing; (2) the pre-sentence 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

enhancement and mitigating factors; (6) any statement by the defendant in his own

behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code. Ann. § 40-

35-102, -103, -210 (1997). See also State v. Ashby, 823 S.W.2d 166, 168 (Tenn.

1991). The burden is upon the appellant to demonstrate the impropriety of his

sentences. Tenn. Code. Ann. § 40-35-401, Sentencing Commission Comments.

Moreover, if the record reveals that the trial court adequately considered sentencing

principles and all relevant facts and circumstances, this court will accord the trial

        2
       We reject the appellant’s argument, set forth in his reply brief, that the terms of the plea
agreement in this case are ambiguous.

                                                   5
court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d

at 169.



              In this case, the appellant received sentences of less than eight years

for each conviction of incest and, accordingly, is eligible for probation. State v.

Langston, 708 S.W.2d 830, 832-833 (Tenn. 1986); State v. Goode, 956 S.W.2d

521, 527 (Tenn. Crim. App. 1997). Moreover, the appellant meets the eligibility

criteria for alternative sentencing under the Community Corrections Act. Tenn.

Code. Ann. § 40-36-106(a) (1995). Nevertheless, the trial court concluded that

granting an alternative sentence would depreciate the seriousness of the appellant’s

offenses. Tenn. Code. Ann. § 40-35-103(1)(B).



              The appellant contends that the trial court, in denying an alternative

sentence, failed to accord the appellant the statutory presumption in favor of

alternative sentencing as required by Tenn. Code. Ann. § 40-35-102(6) and did not

adequately consider applicable mitigating circumstances. We note that the record

does not reflect whether the trial court accorded the appellant the presumption in

favor of alternative sentencing. Therefore, we will not presume that the trial court

correctly sentenced the appellant.



              Nevertheless, even assuming that the presumption of alternative

sentencing is applicable in this case, the need to avoid depreciating the seriousness

of the appellant’s offenses, Tenn. Code. Ann. § 40-35-103(1)(B), overcomes the

presumption. Tenn. Code. Ann. § 40-35-102(6). Moreover, we have previously

observed that “[w]hile the statute speaks in terms of overcoming the presumption,

sufficient contrary evidence, typically, also defeats the defendant’s claim to

alternative sentencing.” State v. Lane, No. 03C01-9607-CC-00259, 1997 WL


                                            6
332061, at *10 (Tenn. Crim. App. at Knoxville, June 18, 1997), perm. to appeal

granted, (Tenn. 1998). The contrary evidence in the record currently before this

court overwhelmingly defeats any claim of the appellant to alternative sentencing.



              Under Tenn. Code. Ann. § 40-35-103(1)(B) and Tenn. Code. Ann. §

40-35-210(b)(4), the nature and circumstances of an offense may serve as the sole

basis for denying a sentencing alternative to incarceration if the offense was

especially violent, horrifying, reprehensible, offensive, or otherwise of an excessive

or exaggerated degree, and the nature of the offense outweighs all factors favoring

a sentencing alternative to incarceration. State v. Grissom, 956 S.W.2d 514, 520

(Tenn. Crim. App. 1997)(citing State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim.

App. 1995)). In this case, the appellant was convicted of multiple counts of incest

with his daughter. State v. Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996).

Moreover, the record reflects that the appellant admitted to multiple uncharged

incidents of sexual intercourse with his daughter. The appellant persisted in his

sexual advances despite his daughter’s repeated pleas. According to the record,

the incidents occurred approximately once every week over as much as one year.

Moreover, in evaluating the seriousness of this appellant’s offenses, we may apply

mitigating and enhancement factors set forth in Tenn. Code. Ann. § 40-35-113

(1997) and -114 (1995). Tenn. Code. Ann. § 40-35-210(b)(5); Zeolia, 928 S.W.2d

at 461. As the victim’s father, the appellant clearly occupied and abused a position

of private trust. Tenn. Code. Ann. § 40-35-114 (15). Moreover, the appellant had

previously sexually molested his minor step-daughter. Tenn. Code. Ann. § 40-35-

114 (1). In short, the nature and circumstances of the appellant’s offenses are

thoroughly reprehensible, outweighing all other factors favoring alternative

sentencing.




                                           7
             Additionally, the potential or lack of potential for rehabilitation must be

considered in determining whether a defendant is an appropriate candidate for

alternative sentencing. Tenn. Code. Ann. § 40-35-103 (5). Again, the appellant

underwent counseling for two years following his sexual abuse of his minor step-

daughter. Only six months after completing his treatment, he began sexually

abusing his biological daughter.



                                   III. Conclusion

             For the foregoing reasons, we affirm the judgment of the trial court.




                                                 Norma McGee Ogle, Judge


CONCUR:



David G. Hayes, Judge




Jerry L. Smith, Judge




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