          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE                 FILED
                             APRIL 1998 SESSION               August 7, 1998

                                                            Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk



STATE OF TENNESSEE,                   )
                                      ) C.C.A. No. 03C01-9707-CR-00285
      Appellee,                       )
                                      ) Knox County
V.                                    )
                                      ) Honorable Richard Baumgartner, Judge
                                      )
WILLIAM L. ROBINSON,                  ) (Denial of Probation)
                                      )
      Appellant.                      )



FOR THE APPELLANT:                       FOR THE APPELLEE:

Mark E. Stephens                         John Knox Walkup
District Public Defender                 Attorney General & Reporter

Paula R. Voss                            Todd R. Kelley
John Halstead                            Assistant Attorney General
Assistant District Public Defenders      Criminal Justice Division
1209 Euclid Avenue                       425 Fifth Avenue, North
Knoxville, TN 37921                      Nashville, TN 37243

                                         Randall E. Nichols
                                         District Attorney General

                                         Charme P. Johnson
                                         Assistant District Attorney General
                                         400 Main Street, P.O. Box 1468
                                         Knoxville, TN 37901-1468




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                                  OPINION
      The appellant, William L. Robinson, entered a best interest plea to one

count of aggravated child abuse, a Class B felony. After a hearing, the Criminal

Court at Knox County denied the appellant’s application for probation and

sentenced him to eight (8) years in the Tennessee Department of Correction.

He appeals. The issue is whether the evidence supports the court’s decision.

We affirm the judgment of the trial court.



       In 1991, the appellant was paralyzed from the neck down in a drive-by

shooting. He became depressed. After rehabilitation, he regained the use of his

arms. In March 1993, the appellant was living with his girlfriend and her three-

year-old daughter, the victim. The appellant testified that on the morning of

March 19, 1993, the victim complained of a stomachache. Thinking that the

victim’s stomach problems were caused by something that she had eaten the

previous evening, the appellant sent the child to her room. Later, the appellant

heard the child “dry heaving.” He then heard her fall. The appellant testified that

the victim told him that she hit her head and that her stomach was still hurting.

Since March 19th, the appellant has spent time around children without incident.



       The child was treated in the emergency room later that evening. She

was placed in the pediatric intensive care unit until the 23rd of March. The child

was diagnosed with right occipital skull fracture and multiple contusions. She

had considerable bruising and swelling to her head and face, and bruising on her

neck, arms, hands, and back. The medical records indicate that these injuries

were probable child abuse. There was evidence of a previous clavicular fracture,

a burn on her foot, and multiple bruises of different ages. The medical records

indicate that these injuries were consistent with ongoing abuse and neglect. The

victim remained in the hospital for additional tests until the 25th when she was

discharged to the custody of the Department of Human Services.




                                        -2-
       The medical records reflect that the victim said that the appellant told her

to say that she hurt herself when she fell out of bed. She also said that the

appellant hit her and that he hit her with “the wall.”



       When a defendant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. §

40-35-401(d) (1990). The presumption is conditioned upon the trial court’s

following the principles of sentencing. State v. Ashby, 823 S.W.2d 166 (Tenn.

1991). This review extends to sentencing issues concerning probation. State v.

Dykes, 803 S.W .2d 250, 258 (Tenn. Crim. App. 1990). In conducting our review,

this Court considers (a) any evidence received at the trial and/or sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel relative to these principles; (e) the nature and

circumstances of the offense; (f) any mitigating and/or enhancement factors;

(g) any statement made by the defendant in his or her own behalf; and (h) the

defendant's potential or lack thereof for rehabilitation. Tenn. Code Ann. §

40-35-210(b) (1990).



       When probation is at issue the court must consider the circumstances of

the offense, the defendant's criminal record, social history, present condition and

where appropriate, his or her physical or mental condition. State v. Kear, 809

S.W.2d 197, 198 (Tenn. Crim. App. 1991). In addition, the deterrent effect upon

other criminal activity may be considered. State v. Lewis, 641 S.W.2d 517, 521

(Tenn. Crim. App. 1982). Also, the lack of truthfulness is probative of a

defendant's prospects for rehabilitation and is a proper consideration. State v.

Chestnut, 643 S.W.2d 343, 353 (Tenn. Crim. App. 1982).



       The evidence at the sentencing hearing consisted of the testimony of the

appellant and his mother, a presentencing report, the child’s medical records,



                                          -3-
and photos that showed the child’s injuries when she was in the hospital. As

previously stated, the appellant testified that the child’s injuries were caused by a

fall. He denied hitting the victim. The photos of the child’s injuries were

shocking. The child had swollen “racoon eyes” and bruising and swelling on her

neck. The photos also showed other bruises and injuries. The defense attorney

told the court that the bruising around the eyes was caused by the type of

fracture sustained by the child. The court rejected this explanation, citing the

medical records and the injuries depicted in the photos. The evidence does not

preponderate against this finding as urged by the appellant.



       The trial court stated that the appellant was eligible for probation, but

denied the appellant’s request for alternative sentencing. See Tenn. Code Ann.

§ 40-35-303(a) (1990). The court found that the appellant had been previously

convicted of driving without a license, soliciting prostitution, and possession of a

controlled substance. The court noted that the appellant was placed on Project

First Offender for solicitation of prostitution. He apparently failed to complete the

program and had his status revoked. He received suspended sentences for his

other two convictions. The court said that, while the appellant did not have a

long history of criminal conduct, measures less restrictive than confinement had

recently been applied unsuccessfully to him.



       The court found that confinement was necessary to avoid depreciating the

seriousness of the offense. The court found that the three-year-old victim was

vulnerable, that she had received extensive physical abuse, and that the injuries

inflicted upon her were particularly great. The court found that the child had

been severely beaten. The court described the offense as an “abhorrent crime”

and “an incredibly serious offense.” The court further noted that the appellant

violated the position of trust that he held in caring for the child.




                                          -4-
       The court also found that the appellant lied about how the child was

injured. The court noted that the appellant had given two inconsistent stories to

the police during the investigation of the case, and the appellant had continued

to deny injuring the child when he testified in court. The court found no

applicable mitigating factors, stating that the appellant’s physical condition did

not reduce his culpability for the offense.



       The appellant argues that the presumption of correctness should not

attach to the trial court’s findings because he failed to follow the sentencing

principles. We disagree. The appellant also argues that serious injury is an

element of aggravated child abuse, and, that the nature of the offense should not

be used to deny probation. See Tenn. Code Ann. § 39-15-402 (1991). We

disagree. The court also took into consideration the child’s young age, her

vulnerability, and the position of trust in which the appellant was placed in caring

for the child. Lastly, the appellant argues that the court cannot deny probation

based upon the seriousness of the offense unless the nature of the offense

outweighs all factors favoring probation. See State v. Hartley, 818 S.W.2d 370

(Tenn. Crim. App. 1991). This issue is without merit because the trial court did

not deny probation solely on the basis of the offense.



       The evidence does not preponderate against the findings of the trial court.

The court’s findings that the offense was abhorrent and that the appellant was

untruthful are particularly compelling.



       The judgment of the trial court is AFFIRMED.




                                                __________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:




____________________________


                                          -5-
JERRY L. SMITH, Judge



____________________________
CURWOOD W ITT, Judge




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