          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          FEBRUARY SESS ION, 1999         May 21, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,                )   C.C.A. NO. 03C01-9804-CR-00152
                                   )
            Appellee,              )
                                   )   SULLIVAN COUNTY
V.                                 )
                                   )
                                   )   HON. R. JERRY BECK, JUDGE
FRANKIE LEE LUNSFORD,              )
                                   )
            Appe llant.            )   (CHILD ABUSE)



FOR THE APPELLANT:                     FOR THE APPELLEE:

TERRY C. FRYE,                         JOHN KNOX WALKUP
1969 Lee Highway                       Attorney General & Reporter
Bristol, Virginia 24201
                                       ELIZABETH B. MARNEY
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       H. GREELEY WELLS, JR.
                                       District Attorney General

                                       TERESA MURRAY-SMITH
                                       Assistant District Attorney General
                                       P.O. Box 526
                                       Blountville, TN 37617




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Defendant, Frankie Lee Lunsford, appeals as of right from his sentencing

in the Sullivan County Criminal Court. Defendant was charged with one (1) count

of Class D felony child abuse and pled guilty on February 23, 1998. As agre ed to

by the State and the Defendant as part of the plea agreem ent, the trial co urt was to

determine the manner of service o f a three (3) year sentence for the Defendant as

a Range I Standard Offender. The State agreed not to oppose Defendant’s request

for alternative sentencing. The trial court denied any form of alternative sentencing,

and sentenced the Defend ant to serve three (3 ) years in the Tennessee Department

of Corre ction. W e affirm the judgm ent of the tria l court.



       When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-3 5-401 (d). Th is presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence , this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of senten cing and argum ents as to sentencing alternatives;

(d) the nature and characteristics of the criminal condu ct involved; (e) any statutory

mitigating or enhancement factors; (f) any statem ent tha t the de fenda nt ma de on his

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.



                                             -2-
Tenn. Code Ann. § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d 859,

863 (Ten n. Crim. App . 1987).



      If our rev iew refle cts that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

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

made findings of fact adequately supported by the record, then we may no t modify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).



      A defendant who “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presu med to be a favorable c andid ate for alternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-1 02(6). Our sentencing law also provides that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clea r disregard

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall   be   given   first   priority regarding   sentences    involving

incarcer ation.” Tenn . Code Ann. § 4 0-35-10 2(5). Th us, a defendant sentenced to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be

determined by the facts and circu mstan ces pre sented in each c ase. See State v.

Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).




                                             -3-
       Additionally, the principles of sentencing reflect that the sentence should be

no greater than that deserved for the offense committed and should be the least

severe mea sure n eces sary to achie ve the purp oses for whic h the s enten ce is

imposed. Tenn . Code Ann. § 40-35-103(3) - (4). The court should also consider the

potential for rehabilitation or treatment of the defendant in determining the sentence

alternative. T enn. C ode An n. § 40-3 5-103(5 ).



       At the sentencing hearing, the Defendant testified in his own behalf. H e is

married to Tamm y Michelle Luns ford and the victim , Isaiah Alexand er Lunsford

(“Alex”), is their son. The Defendant admitted that in February 1997 he was an

alcoholic and was havin g troub le con trolling h is ang er. He was ta king ca re of his

son on Fe bruar y 12, 19 97, wh ile his wife was at work, and Alex had been crying.

Defendant explained that “due to po or judgm ent,” he tos sed Ale x onto the bed. Alex

appa rently fell, hit his head on the footboard b eside the bed an d then flipp ed onto

the floor. D efend ant pic ked h im up and la id him back onto th e bed . Defe ndan t’s

wife called at that time and when Defendant returned to the room where Alex lay on

the bed, his son was unconscious and his wife advised him to call 911. Defendant

explained that he was not attempting to throw Alex at the bedpost or onto the floor,

or trying to inju re him in a ny man ner.



       Defendant explained th at he lo ved his son a nd ha d regu larly car ed for h im

until that tim e while his wife worked. Alex had never previously been injured nor had

there been any reports of child abuse filed against Defendant to his knowledge.

When the rescue squad arrived at his home, Defendant stated he was in tears and

was very scare d. Alex was in the h ospital for a total of n ine (9) d ays follo wing th is

incident, partially due to the fact tha t a foster h ome had to be fou nd for A lex. W hile

                                            -4-
Defendant has not had custody of Alex since the criminal incident, he had visited

with him on a regular basis. Also, Defendant had undergone alcohol treatment and

counseling, including AA and classes in abuse alternatives, anger management and

parenting. Defendant stated that he has not had any alcohol to drink since enrolling

in his alcoh ol treatm ent class .



       Defendant described that he had been regularly employed since th is incident

at Taco Bell, and was em ployed p rior to this incid ent. Defendant admitted to earlier

incidents of abuse during w hich he s truck his w ife. He also admitted to two (2) other

offenses, including disorderly conduct and resisting a stop, frisk o r halt. Defendant

explained that he had been drinking and could not control his own actions, although

he den ied any p hysical alte rcations w ith the police .



       Tammy Lunsford, the Defendant’s wife, testified that on February 12, 1997,

she was working at the time Alex was injured. She called home on her break, and

Defendant advised her that Alex had fallen off the bed. Tammy Lunsford advised

the Defen dant, wh o was u pset, to call 911 while she found a way home from work.

When she arrived ho me, the y were pu tting Alex into the ambu lance. Mrs. Lun sford

described that Defendant had bee n active ly involve d in the careta king o f his child

since his birth as she returned to work only two (2) weeks after Alex was born. They

agreed that one (1) of them would stay home with Alex to care for him. She had

never personally witnessed any incidents of abuse or obse rved any thing to ind icate

that Alex had been abused in any way by the De fendant.              Tam my Luns ford

described Defendant’s alcohol abuse, including daily drinking and the resulting

problems with his an ger. She describe d that they would b e “at eac h other’s th roat,”

and that Defendant had smacked her as a result on past occasions. However, she

                                            -5-
did not believe that Defendant was actually attempting to physically harm her and

was never injured by the abuse. Since Defendant had stopped drinking alcohol and

had taken the anger management classes, he controlled his anger when they fought

by going to a differen t room a nd calm ing dow n.



       On cross-examination, Tammy Lunsford admitted that she c hose to stay with

the Defendant rather than to regain custody of her son Alex. She admitted that

Defendant was untruthful with her on the day Alex was injured about how the

incident occurred.



       In senten cing the D efenda nt, the trial cou rt stated tha t Defendant was

presumed to be a favorable candidate for alternative sentencing. The trial court

stated the facts of the case as follows:

       The alleged victim in the ca se was a six (6) m onth old bab y. Initially,
       the baby received a -- it was determined by medical experts the baby
       had received a fractured skull and subdural hematoma. The report
       indicates this wa s a very seriou s injury. T his type of injury, p articula rly
       to a child, is known to the court that a child’s skull of that age would be
       more flexible a nd it would -- than say that of an adu lt. The De fendan t,
       evidently, threw the child into a bed. The child allegedly hit a post and
       fell to the floor. The Defendant, after being -- first interviewed by the
       police, just indicated the child had fallen from the bed and that he came
       in and found the baby laying on the floor on its back. And Mr. Lunsford
       advised authorities that he assumed the baby had fallen off the bed.

       Initially the trial court observed that this was a crime of violence and the

Defendant was inelig ible for Co mm unity Cor rections d ue to the nature of the crime

involved. The trial court then observed that the Defendant was not truthful in making

his first statement to the police. Eventually, the De fenda nt did a dmit th at “he lo st it

and he pitched the baby, and the baby struck its head on a square bedpost

footboard, which had jagged edges on it. The baby then flipped onto the floor, and

the baby eventually wound up on its s tomac h.” Defen dant also admitted other ac ts

                                             -6-
of violenc e in the prese ntenc e repo rt, including striking his wife while she was

pregnant resulting in two (2) black eyes and a busted nose as noted by the trial

court. The detec tive who investig ated th e cas e indic ated in the presenten ce report

that there were various domestic violence calls in September, October and

Novem ber 199 6.



      As the child was particularly vulnerable because of his age and having no way

to protect or defend himself from his own father, the tria l court foun d that a priva te

trust was violated. The trial court noted that according to Defendant’s prior criminal

record of misdemeanors, Defendant had been placed on som e type of alternative

sentencing for each of these p rior offense s.        The pre sentence report further

indicated that the Defendant had not completed his high scho ol edu cation due to his

involvement in fights and had used alcohol since the age of thirteen (13) and

marijuana since the age of fifteen (15) or sixteen (16). At the time of preparation of

the presentence report, the trial court noted that Defendant admitted his last usage

of marijua na was approxim ately one (1) mon th prior to the report.



      Factors favoring an alternative sentence included that Defendant was seeking

to “chan ge his wa ys . . . loves th e child and . . . shows remorse at the injury.” The

Defendant does have a history of employment. While there were some favora ble

factors, the trial court found that the unfavo rable fa ctors o utweig hed th e favor able

ones and that alternative sentencing should be denied.



      When impos ing a sen tence o f total confine ment, o ur Crim inal Sen tencing

Reform Act man dates the trial court to bas e its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

                                           -7-
militate against alternative sentencing include: the need to protect society by

restraining a defendant having a long history of criminal conduct, whether

confinement is partic ularly appro priate to effective ly deter oth ers likely to co mm it a

similar offense, th e need to avoid depreciating the seriousness of the offense, and

the need to order confinement in cases in which less restrictive measures have often

or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1). In the case sub judice, the trial court a ppare ntly relied upon the De fenda nt’s

previous criminal history, including prior abusive assaults upon his wife while she

was pregna nt, to justify a sentence of total confinement. In addition, the trial court

correc tly noted that the Defendant had received alternative sentences for prior

convictions and had continued to fail to conform his conduct to the law. Where a

defen dant’s history indicates a clear disregard for the law and morals of society and

a failure of past efforts to rehabilitate, the trial cou rt did no t abus e his d iscretio n in

denying probatio n. State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim. App.

1994).



         In determining whether to grant probation, the judge must consider the nature

and circumstances of the offense, the defendant’s criminal record , his background

and social history, his present condition, including his physical and mental condition,

the deterrent effect on other criminal activity, and the likelihood that proba tion is in

the best intere sts of both the pu blic and the defend ant. Stiller v. State , 516 S.W.2d

617, 620 (Ten n. 1974). The burden is on the defendant to show that the sentence

he received is improper and that he is entitled to pr obation . Ashby, 823 S.W.2d at

169. Defendant has failed to convince us tha t the trial c ourt er red. P articula rly

relevant is Defe ndan t’s lack of truthfulness regarding this offense. While Defendant

did initially lie to his wife and to the police as to how Alex was injured, he did correct

                                              -8-
his version of the events at a later date. However, in his statement submitted on

May 5, 199 7 for the prese ntenc e repo rt, Defe ndan t stated that he “accid entally

bumped” his son ’s head on the bedp ost. Th is is contrary to an earlier version of the

facts in which Defendant admitted to pitching the baby and it striking its head on the

bedpost footboard. As aptly noted by the trial court, truthfulness by a de fenda nt is

a factor that may be considered in determining the appropriateness of probation.

State v. Dykes, 803 S.W .2d 250, 259 (Tenn. Crim . App. 1990 ). This is sue is without

merit.



         Finally, it appears from Defendant’s brief that he asserts various enhancement

and mitigating factors were not appropriately applied by the trial court. However, as

stated within the sentencing hearing, the Defendant pled guilty pursuant to a

negotiated plea agreement to a sentence of three (3) years as a Range I O ffender.

W hile Defen dant m ay conte st the ma nner of s ervice of his sentence, there is no

indication that he did not voluntarily agree to the length of the sentence.        The

sentencing hearing was held for the sole purpose of allowing the trial court to

determine whether Defendant was eligible for alternative sentencing.               Any

argum ents as to the length of Defen dant’s se ntence are mo ot.



         After a thorough review of the brief, the record and the law, we affirm the

judgm ent of the tria l court.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




                                           -9-
CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
L. T. LAFFERTY, Senior Judge




                               -10-
