         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 25, 2002

               STATE OF TENNESSEE v. JAMES DALE WALKER

                       Appeal from the Circuit Court for Blount County
                        No. C-12949-50    D. Kelly Thomas, Jr., Judge



                                 No. E2002-00263-CCA-R3-CD
                                       October 18, 2002

The Defendant, James Dale Walker, pled guilty to aggravated sexual exploitation of a minor, a Class
C felony, and sexual exploitation of a minor, a Class E felony. Pursuant to the plea agreement, the
Defendant received concurrent sentences of six years and two years, respectively, with the manner
of service to be determined by the trial court. Following a sentencing hearing, the trial court denied
alternative sentencing and ordered the Defendant to serve his effective sentence of six years in the
Department of Correction. It is from this order that the Defendant now appeals as of right. We
reverse the trial court’s order that the Defendant serve his sentences in total confinement and remand
to the trial court for consideration of some form of alternative sentence.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Reversed; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

George Waters, District Public Defender, Maryville, Tennessee, and Steve McEwen, Mountain City,
Tennessee, for the appellant, James Dale Walker.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Mike
Flynn, District Attorney General; and John Bobo, Assistant District Attorney General, for the
appellee, State of Tennessee.
                                                       OPINION


        The Defendant, James Dale Walker, pled guilty to aggravated sexual exploitation of a minor,
a Class C felony, and sexual exploitation of a minor, a Class E felony. 1 His plea agreement provided
for concurrent sentences of six years and two years, respectively, as a Range I offender. The manner
of service of the sentences was to be determined by the trial court. After conducting a sentencing
hearing, the trial court denied any form of alternative sentence and ordered the Defendant to serve
his sentences in the Department of Correction. The Defendant appeals as of right, arguing that the
trial court erred by denying the Defendant an alternative sentence and ordering the Defendant to
serve his sentences in confinement. We reverse the order of the trial court and remand for
consideration of some form of alternative sentence.

        The instant case stems from a nationwide law enforcement operation called “Operation
Avalanche.” An internet company based in Dallas, Texas, called “Landslide” had been providing
access to internet websites containing child pornography. As a result of an investigation by postal
inspectors and other law enforcement personnel in Dallas, the company was put out of business and
taken over by law enforcement authorities as an undercover operation.

        During the investigation of Landslide, law enforcement officers recovered a list of over one-
hundred thousand names of customers across the country who had utilized Landslide to access child
pornography websites. E-mails were sent to the twenty-five people in Tennessee who had accessed
the child pornography sites most often. The Defendant was one of the twenty-five people on the list
in Tennessee to whom an e-mail was sent. The e-mail stated that the Landslide company was back
in business and offering the same services previously provided. The Defendant responded to the e-
mail and was eventually given the opportunity to purchase child pornography videotapes. The
Defendant requested a list of videos containing “pre-teen” pornography. A law enforcement officer
sent the Defendant a list of available titles, including a graphic description of the sexual acts depicted
in the videos and the ages of the actors. The Defendant ordered a videotape entitled “Teen Sex,”
which was described as depicting a nine-year old girl having sex with her father and his friend. The
Defendant mailed a money order in the amount of $49.95 and requested that the video be sent to his
post office box.

        A controlled delivery was arranged by law enforcement personnel at the post office. The
videotape that the Defendant ordered was put in an envelope and placed in his post office box. The
Defendant retrieved the videotape from his box and entered his vehicle to leave the post office. The
authorities then confronted the Defendant, identified themselves, and escorted him back inside the
post office, where he was interviewed. The Defendant signed a waiver acknowledging that he



         1
           W e note that in the transcript of the guilty plea, counsel for the Defendant pointed out to the trial court that
the Defendant’s name is actually Jamey Dale Walker. How ever, we will address the Defendant by his name as it appears
in the indictment, which is James Dale W alker.

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understood his rights. He admitted that he had ordered the child pornography tape off the internet
and that he had been struggling with child pornography for over a year.

        The Defendant then consented to a search of his residence. The authorities followed the
Defendant to his parents’ house where he lived. He took them to his computer, where more child
pornography was found. At that point, the Defendant described to the officers his problem with child
pornography. One of the officers who accompanied the Defendant to his house testified at the
sentencing hearing that the Defendant stated that his interest in child pornography began by looking
at pictures of teenage girls. He then progressed to viewing pictures of girls in bathing suits. That
led to looking for pictures of underage girls who were completely nude. Finally he went to sites
containing hard-core child pornography. The Defendant would then “get disgusted with himself .
. . and delete everything off his hard drive. And then, you know, start the cycle back over again.”
Apparently, this cycle had occurred several times. The Defendant told the officers that he had
deleted all the pornography from his hard drive approximately one week before his arrest.

        The presentence report reflects that, at the time of sentencing, the Defendant was twenty-
eight years old and single. Although he dropped out of high school for health reasons, he obtained
a GED and completed three quarters of study at “ITT Tech.,” in Knoxville. According to the
presentence report, the Defendant has no prior criminal history. Prior to his arrest, he had worked
at Wal-Mart. However, he was suspended from his employment with Wal-Mart when he informed
his supervisors of his arrest. He then worked for his parents, who own a garbage pickup service.
Eventually, the Defendant began a new job with Hollywood Video. Charles VanAuken, the manger
at Hollywood Video, wrote a letter to the trial judge, informing him that the Defendant had been
forthright with the circumstances surrounding the instant proceedings. Mr. VanAuken stated that
the Defendant told him that he had pled guilty to the charges of aggravated sexual exploitation of
a minor and sexual exploitation of a minor and received a sentence of six years. In the letter, Mr.
VanAuken praises the Defendant’s work ethic, noting that he has been promoted twice and is
currently the assistant manager of the store. He concludes by advising the court that if the Defendant
were placed on probation, he could continue to work at Hollywood Video.

        At the sentencing hearing, Ronnie Hepperly, the Defendant’s pastor, testified that he had
spoken to the Defendant regarding the conduct that led to the instant charges. Mr. Hepperly testified
that before the Defendant was arrested, he came to the church seeking counseling and prayer. The
Defendant acknowledged his problem with pornography, expressed his repentance, and stated his
desire “to do better.”

        Dr. Michael Buckner also testified for the Defendant at the sentencing hearing. Dr. Buckner
is a psychologist who has been counseling the Defendant at least bi-weekly since June 26, 2000. Dr.
Buckner explained that the Defendant has an issue with child pornography. Through the course of
the counseling, the doctor discovered that the Defendant had been raped by a family member when
he was between the ages of seven and nine. Also, the Defendant had been harmed and probably
molested by his scout master when he was ten or eleven years old. The doctor explained that, from
a psychological perspective, these traumatic events in the Defendant’s past explain his sexual desire


                                                 -3-
for children. Dr. Buckner called the Defendant’s problem “a mental illness.” However, when he
was asked how the Defendant was progressing, Dr. Buckner replied, “I think he’s progressed very
well. I think he’s to the point where he’s not having desires to have any kind of under-aged sexual
exposure.” In a letter to the Board of Probation and Parole, Dr. Buckner wrote, “[I]t is my opinion,
within a reasonable degree of psychological certainty, that Mr. Walker does not pose the likelihood
of committing sexual assaults nor do I believe that he poses any risk to minors. Additionally, with
continued therapy the likelihood of recidivism in Mr. Walker’s case is minimum.”

        The Defendant also testified at the sentencing hearing. He explained how he would view
child pornography on the internet and then feel guilty and delete the images from his hard drive. He
said, “I started seeing that it was wrong and was trying to get away from it.” When asked why he
had decided to see a psychologist about his problem, he responded, “Because I realized that I had
a problem that I was not able to help myself with. I had been trying to fix the problem myself by
deleting the hard drive, and I realized that it was a problem I could not overcome myself, that I
needed help.” In the presentence report, in the section marked “Defendant’s Version,” is the
following statement, made by the Defendant:
        I accept full responsibility for my actions. I am currently in treatment with Dr.
        Michael Buckner for this problem. Being a victim of child sexual abuse, I
        understand the severity of this offense and how my actions affect others. I apologize
        to my family and everyone involved for the pain that I have caused. By continuing
        my treatment and counseling[,] I know that I can be a productive member of this
        community.


        At the conclusion of the sentencing hearing, the trial court ordered that the Defendant serve
his effective six-year sentence in the Department of Correction. The judge based his decision on the
Defendant’s “history of criminal behavior greater than that that is necessary to establish the
appropriate range” and “that [the offense] involved a victim and was committed to gratify the
Defendant’s desire for pleasure or excitement.” The court also considered mitigating factors such
as the Defendant’s cooperation and honesty with law enforcement officers, the steps the Defendant
had taken towards rehabilitation, the Defendant’s lack of a prior criminal record, and his steady
employment history. However, the court found that the presumption that the Defendant was a
favorable candidate for alternative sentencing had been rebutted by the length and degree of the
Defendant’s involvement with child pornography. The court also stated that it believed that
confinement was necessary to avoid depreciating the seriousness of the offense.

        When an accused challenges the length, range, or 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. See Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).



                                                 -4-
         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that 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. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        A defendant who “is 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 options in the absence
of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). Guidance regarding what constitutes “evidence to the contrary” which would rebut
the presumption of alternative sentencing can be found in Tennessee Code Annotated section 40-35-
103(1), which sets forth the following considerations:
        (A) Confinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;
        (B) Confinement 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) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant[.]

See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991).

        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 measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

        Because the Defendant is a standard offender convicted of a Class C felony and a Class E
felony, he was entitled to a presumption that he was a favorable candidate for alternative sentencing
in the absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6); Lane, 3 S.W.3d
at 462. As we have already stated, the trial judge found that the presumption had been rebutted by


                                                  -5-
the degree to which the Defendant was involved in child pornography. For over a year the Defendant
had struggled with his desire to view child pornography, and he was one of Tennessee’s twenty-five
most frequent visitors of child pornography websites, according to the Landslide records. Also, the
trial court found that confinement of the Defendant was necessary to avoid depreciating the
seriousness of the offenses for which he had been convicted.

        It is clear from the record that the Defendant did exhibit a problem with child pornography.
Although we do not wish to minimize the seriousness of supporting and contributing to the evil of
child pornography, we conclude that the evidence preponderates against the trial court’s finding that
the State had rebutted the presumption that the Defendant is a favorable candidate for alternative
sentencing. The presumption in the Defendant’s favor is strengthened by the mitigating factors
outlined by the trial court at the close of the sentencing hearing. The record shows that the
Defendant has made a substantial effort toward rehabilitating himself by attending church and
voluntarily seeking counseling with Dr. Buckner. Immediately after his bond hearing, he had his
internet service terminated and has not been on the internet since his arrest. He has maintained
employment throughout and has earned two promotions at his current job. The record is void of any
evidence of a prior criminal record or any indication of other criminal activity such as drug use.
Finally, the Defendant’s pastor and Dr. Buckner testified that they are encouraged by the Defendant’s
progress, and Dr. Buckner wrote in his letter to the Board of Probation that, in his opinion, the
Defendant poses no risk of sexual assaults or harm to minors and the likelihood of recidivism in the
Defendant’s case is minimal.

        In State v. Dennis Harry Johnson, No. M2000-03047-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 820, at *1 (Nashville, October 12, 2001), the defendant was charged with two counts of
sexual exploitation of a minor. The charges were based on the defendant’s possession of videotapes,
photographs, and computer discs containing images of nude minors, some of whom were engaged
in sexual acts.2 In that case, this Court affirmed the trial court’s ruling that the presumption in favor
of alternative sentencing had been overcome. The trial court based its ruling on the extreme youth
of the victims, the defendant’s involvement in an organization dedicated to the dissemination of
child pornography, and the defendant’s lack of remorse and lack of candor, which suggested a lack
of potential for rehabilitation. Id. at *9.

         The instant case is readily distinguishable. The record reflects that the Defendant has not
been involved in the manufacture of child pornography in any way. Several witnesses testified at
the sentencing hearing regarding the Defendant’s remorse and repentance for his actions and his
efforts to overcome his problem. The officer who testified at the hearing stated that the Defendant
had been completely honest and cooperative with respect to their investigation of his illegal
activities. Dr. Buckner testified that the Defendant’s chances for successful rehabilitation are very
high.



        2
         The videotapes depicted the defendant and a young boy placing doll clothing on their erect penises and
manipulating their penises to background music.

                                                     -6-
         We agree with the Defendant that the State did not present sufficient evidence to rebut the
statutory presumption that the Defendant is a favorable candidate for alternative sentencing. Given
all the circumstances presented in this case, we conclude that an alternative sentence is appropriate
in relation to the severity of the offenses and would be the least severe measure necessary to deter
the Defendant’s future criminal conduct, to protect society, and to deter others who are similarly
situated and may be likely to commit similar offenses.

       Therefore, we reverse the trial court’s order that the Defendant serve his sentences in total
confinement and remand to the trial court for consideration and imposition of some form of
sentencing alternative other than confinement in the Department of Correction.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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