         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                  FILED
                              JUNE SESSION, 1994                  June 30, 1997

                                                           Cecil W. Crowson
STATE OF TENNESSEE,               )                      Appellate Court Clerk
                                          C.C.A. NO. 01C01-9402-CC-00038
                                  )
      Appellant,                  )
                                  )
                                  )       MAURY COUNTY
VS.                               )
                                  )       HON. WILLIAM B. CAIN,
CHRISTOPHER LANGLEY,              )       JUDGE
                                  )
      Appellee.                   )       (Sentencing)




                           DISSENTING OPINION



      I cannot join the opinion of my distinguished colleagues affirming the

sentence imposed by the trial court. I do not believe that the record in this case

“affirmatively” shows that the trial judge considered the sentencing principles and

all relevant facts and circumstances.         The trial judge’s brief reference to

enhancement factors is quickly followed by his statement as follows:

      The long and the short of it is, I’ve either got to apply the enhancing
      factors and send him to the penitentiary, or apply the minimum
      sentence and put him on eight years of probation. No matter how
      we try to cut it, that’s the alternative, and that’s all of the alternatives
      that are available to the court. No useful purpose will be served by
      confining him.

      W hile it is likely that the trial judge was aware of other sentencing

alternatives, this statement leads me to conclude that these were the only two

options “considered” by the court. Obviously, this “all or nothing approach” to the

manner in which sentences may be served disregards a wide array of sentencing

options, including split confinement, which are available for consideration. Tenn.

Code Ann. § 40-35-104(c); see State v. Barbara D. Frank, C.C.A. No. 03C01-
9209-CR-00303, Blount County (Tenn. Crim. App., Knoxville, Dec. 22, 1993).

Also, I do not believe that the trial judge properly considered the enhancement

factors and other relevant facts and circumstances applicable to the Defendant’s

sentence. The judge stated that “beyond these incidents involving these small

children,” the Defendant’s record was “exemplary.” The Defendant’s admitted

lengthy involvement with marijuana and other factors in his background do not

dem onstrate an “exemplary” record. In short, from this record, I cannot afford this

sentence the presumption of correctness and therefore, I believe it is my duty to

review this sentence de novo.



      Because the Defendant was convicted of a Class B felony, he does not

enjoy a presumption that he is a favorable candidate for alternative sentencing

options. See Tenn. Code Ann. § 40-35-102(6). I believe that the record supports

the existence of three enhancement factors applicable to the Defendant’s

sentence: (1) The Defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the appropriate

range, (2) a victim of the offense was particularly vulnerable because of age, and

(3) the Defendant abused a position of private trust. Tenn. Code Ann. §§ 40-35-

114(1), (4) and (15). There are some positive factors in the Defendant’s history

and background which might be considered in mitigation. Tenn. Code Ann. § 40-

35-113(13).



      The injuries inflicted upon the ten-month-old victim were serious. As the

trial judge stated, “One thing is crystal clear in this case, and that is that

somebody beat the hell out of [the victim].” Although the Defendant denied any

responsibility for the crime, the jury did not believe him and resolved the issue by

                                        -2-
finding him guilty. As noted by my colleagues, this record would easily support

a denial of probation. I believe this case calls for a sentence of incarceration.

Therefore, I respectfully dissent.



                                 ___________________________________
                                 DAVID H. WELLES, JUDGE




                                       -3-
