         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 27, 2004

               STATE OF TENNESSEE v. MICHAEL WAYNE POE

                     Appeal from the Criminal Court for Hamilton County
                           No. 237715    Douglas A. Meyer, Judge



                      No. E2003-00417-CCA-R3-CD - Filed July 19, 2004


Indicted for aggravated child abuse, the defendant, Michael Wayne Poe, was convicted by a jury of
child abuse, a Class D felony. The trial court sentenced the defendant to four years, with all but 11
months, 29 days suspended. In this appeal of right, the defendant argues that the evidence was
insufficient, that the sentence was excessive, and that the trial court erred by denying full probation.
The sentence is modified to three years; otherwise, the judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER, JJ., joined.

Ardena J. Garth, District Public Defender; and Donna Robinson Miller (on appeal), Karla Gothard
(at trial), and William Dobson (at trial), Assistant District Public Defenders, for the appellant,
Michael Wayne Poe.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
Yolanda Mitchell, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        On the evening of April 1, 2001, Dr. Ralph Smith, an emergency room physician at T.C.
Thompson Children’s Hospital, treated the twelve-day-old victim, Taylor Poe, who appeared
lethargic, had multiple bruises and abrasions, and cried out in pain when touched. Dr. Smith
detected bruising and tearing to the rectum, as well as some purulent discharge, all consistent with
digital anal penetration. A spinal tap ruled out meningitis and blood testing excluded any other
bacterial infection. Dr. Smith found fractures of the right ninth, tenth, and eleventh ribs. There were
also fractures of the left eleventh and twelfth ribs, the left clavicle, and the right tibia. It was Dr.
Smith’s opinion that the injuries were not accidental or self-inflicted and were instead the result of
child abuse.
        Dr. Patrick Francis Keegan, who later admitted the victim into the hospital’s pediatric
intensive care unit, concluded that the rib fractures would have required application of a “significant
amount of force” and that the tibia fracture, which was spiral, would have required a rotational force
far more significant than would be applied during a diaper changing. Because Dr. Keegan found no
family history of bone or bleeding abnormalities, it was his opinion that the injuries were the result
of abuse.

        In an examination conducted days before the injuries were discovered, Dr. Michael Estep,
a pediatrician, found that the eight-day-old victim looked “generally well” but had some redness in
the diaper area and a fissure, or tear, at the anal opening. Dr. Estep recommended discontinuation
of the use of baby wipes and application of diaper rash ointments.

        Dr. Blaze Baxter, a radiologist at T.C. Thompson Children’s Hospital, described the victim’s
fractures as “acute” and stated that there were two additional fractured ribs not previously identified
by Dr. Smith. It was Dr. Baxter’s conclusion that the victim sustained “classic [abuse] injury
patterns.”

        Kevin Akins, a detective with the Chattanooga Police Department child abuse unit, testified
that he arrived at the hospital shortly before midnight, just prior to the arrival of the defendant, the
victim’s biological father. Detective Akins recalled that the defendant, who appeared “extremely
nervous” and “jittery,” initially denied any knowledge of the victim’s injuries. Later, in a recorded
statement that was played for the jury at trial, the defendant contended that the night before the
victim’s hospitalization, he and his wife, Rachel Poe, had returned to their residence in separate
vehicles at about 10:20 p.m. Ms. Poe had returned with the victim from the residence of her sister,
Donna Ensley. After informing the detective that the family was asleep when the victim awoke
crying at about 2:00 a.m., the defendant claimed that he “took [the victim] in the front room and
rocked him in the rocking chair, and . . . might have put that bruise on [the victim] because [he]
patted [the victim] too hard or something.” The defendant told the detective that after the victim had
fallen asleep and been put back down, he again awoke crying:

               “And then he started crying again, so I went back to get him and sit down
       with him. Gave him a bottle again and he wouldn’t, he wouldn’t go to sleep or quit
       crying and all. I guess probably I was done in a cuss rage about that time and maybe
       patting – patted him too hard.”

The defendant acknowledged that he probably pulled the victim’s leg too hard while changing his
diaper or sleeper and conceded that he had shaken the victim. Detective Akins, who described the
defendant as cooperative throughout the investigation, ruled out sexual abuse as the cause of the
injuries and ultimately initiated a charge of felony child abuse.

       Rachel Poe, who had been married to the defendant for approximately three years when she
became pregnant with the victim, testified at trial that the defendant was initially happy when he
learned of her pregnancy but grew increasingly argumentative, insisting that “the baby wasn’t his and


                                                  -2-
[she] was sleeping with anybody and everybody.” She recalled that when she was approximately
eight months pregnant, the defendant became angry and tried to hit her in the stomach with his fist.
Explaining that she had sustained extensive vaginal tearing during the victim’s birth, Ms. Poe
testified that she was unable to move around without assistance and required help caring for the
victim. She explained that while her mother and sister assisted her when they could, the majority
of the victim’s care was left to the defendant. According to Ms. Poe, the defendant, who worked the
second shift, would awaken the victim at approximately 1:00 a.m. and keep the victim awake until
he himself went to bed, generally between 7:00 and 9:00 a.m. She stated that on the day before the
victim’s first hospitalization, the defendant had deviated from his usual course and allowed the
victim to sleep during the night. Ms. Poe testified that on that day, she had gone to the residence of
Donna Ensley to give the victim his first bath, returning to her residence at approximately 10:20 p.m.

        Ms. Poe testified that when she awoke at approximately 7:00 a.m. on April 1st, the date of
the hospitalization, the defendant was in the kitchen with the victim, who was crying. She recalled
that the defendant, who instructed her to prepare a bottle while he changed the victim’s diaper, then
remarked to the victim, “All you want to do is damn cry all the time.” After she saw some bruising
on the victim’s face and asked how it had occurred, the defendant explained that the victim liked to
swing his arms and had probably injured himself in his sleep. Ms. Poe remembered that later in the
day when her parents visited, her mother observed additional bruising and noted that the victim cried
when touched. Ms. Poe testified that she took the victim to the emergency room, fearing that he had
hemophilia. Shocked to learn that medical personnel suspected child abuse, Ms. Poe recalled that
the defendant, who did not travel to the hospital emergency room with her and her family and arrived
hours after admission, had previously denied dropping the victim. Ms. Poe testified that she did not
cause any injury to the victim.

        Gladys Skiles, Rachel Poe’s mother, visited the Poe residence with her husband early in the
afternoon prior to the victim’s hospitalization. Ms. Skiles testified that when she changed the
victim’s diaper, she observed blood and mucous coming from his rectum. When she and Ms. Ensley
bathed him, she noticed bruises on his body. Ms. Skiles recalled that when they decided to take the
victim to the hospital, the defendant appeared nervous and declined to accompany them.

        Donna Ensley confirmed that when she gave the victim his first bath on March 31, she did
not notice any problems or crankiness. She recalled that on the next day, the victim, who was crying
inconsolably and “really really fussy,” had bruises “everywhere.” She described his rectum as being
“messed up.” Ms. Ensley testified that the defendant did not express concern and denied having
dropped the victim.

         The twenty-six-year-old defendant, testifying in his own defense, claimed that he and Ms.
Poe had separated several times during the course of their marriage because Ms. Poe “changed a
whole lot” and “want[ed] to fight with [him] all the time and run [him] off.” Employed as a welder
at the time of his arrest and working seven days a week, ten hours per day, the defendant claimed that
he had returned to his residence at approximately 10:30 p.m. on the evening of March 31 and that
his wife expressed concern that the victim had been injured while she and her sister were bathing


                                                 -3-
him. The defendant testified that when the victim awoke at approximately 2 or 3:00 a.m., he was
unable to awaken Ms. Poe and found the victim “screaming and hollering.” He contended that he
changed the victim’s diaper, sang him to sleep, and put him back in his crib. According to the
defendant, he and Ms. Poe first noticed bruises on the victim the next morning. He denied having
caused the injuries. During cross-examination, the defendant acknowledged that on every other
evening after the birth of the victim, he had awakened him upon his return from work.

                                                    I
        Initially, the defendant argues that the state failed to prove venue. The state asserts that the
proof at trial established that the offense occurred in Hamilton County.

        Article I, section 9 of the Tennessee Constitution provides that in all criminal prosecutions
by indictment or presentment, the accused has a right to a speedy, public trial by an impartial jury
of the county in which the crime was committed. Tenn. Const. art. I, § 9; see also Tenn. R. Crim.
P. 18. The state must prove that the offense was committed in the county of the indictment. Harvey
v. State, 213 Tenn. 608, 612, 376 S.W.2d 497 (1964). Because venue, a question for the jury, is not
an element of the offense, it need be established only by a preponderance of the evidence. Hopper
v. State, 205 Tenn. 246, 326 S.W.2d 448 (1959); State v. Hamsley, 672 S.W.2d 437, 439 (Tenn.
Crim. App. 1984); State v. Baker, 639 S.W.2d 670, 672 (Tenn. Crim. App. 1982). Slight evidence,
including circumstantial evidence, will be sufficient if the evidence is uncontradicted. State v.
Bennett, 549 S.W.2d 949 (Tenn. 1977). The jury is entitled to draw reasonable inferences from the
evidence. State v. Johnson, 673 S.W.2d 877, 882 (Tenn. Crim. App. 1984).

        Proof in the record established that the defendant committed the offense at his residence at
4212 14th Avenue. The victim was taken to a hospital in Chattanooga. The Chattanooga Police
Department investigated the crime. Sufficient uncontradicted circumstantial evidence may support
a finding by a preponderance of the evidence that the offense occurred in the county of indictment.
Based on these facts, a reasonable jury could have found by a preponderance of the evidence that the
offense was committed in Hamilton County. See State v. Gregory Lavell Carson, Sr., No. M1999-
00315-CCA-R3-CD (Tenn. Crim. App., at Nashville, Mar. 31, 2000).

                                               II
       Next, the defendant contends that the evidence was insufficient to support the conviction.
The state disagrees.

         On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).


                                                  -4-
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

        A criminal offense may be established exclusively by circumstantial evidence. Duchac v.
State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58
(1958); State v. Hailey, 658 S.W.2d 547, 552 (Tenn. Crim. App. 1983). If entirely circumstantial,
the facts and circumstances must “be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant.” State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612
(1971). In such an event, the circumstantial evidence must be both consistent with guilt and
inconsistent with innocence. Pruitt v. State, 460 S.W.2d 385, 3990 (Tenn. Crim. App. 1970). The
weight of the circumstantial evidence is for the jury to determine. Williams v. State, 520 S.W.2d
371, 374 (Tenn. Crim. App. 1974) (citing Patterson v. State, 4 Tenn. Crim. App. 657, 475 S.W.2d
201 (1971)). The court may not substitute its inferences for those drawn by the trier of fact in
circumstantial evidence cases. Liakas, 286 S.W.2d at 859; Farmer v. State, 574 S.W.2d 49, 51
(Tenn. Crim. App. 1978). The same standard of review is applicable whether the guilty verdict was
based upon direct evidence or upon circumstantial evidence. State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (1971).

        In this case, the defendant was convicted of Class D felony child abuse, defined by statute
as follows:

                Any person who knowingly, other than by accidental means, treats a child
        under eighteen (18) years of age in such a manner as to inflict injury or neglects such
        a child so as to adversely affect the child's health and welfare commits a Class A
        misdemeanor; provided, however, that if the abused or neglected child is six (6)
        years of age or less, the penalty is a Class D felony.

Tenn. Code Ann. § 39-15-401(a). “‘Knowing’” refers to a person who acts knowingly with respect
to the conduct or to circumstances surrounding the conduct when the person is aware of the nature
of the conduct or that the circumstances exist.” Tenn. Code Ann. § 39-11-106(a)(20).

        Here, evidence established that the victim had sustained at least six broken ribs, a broken
clavicle, a broken tibia, bruises, abrasions, and rectal tearing. Drs. Smith and Keegan, the emergency
room physicians who treated the victim, testified that it was their opinion that the victim’s injuries
were not accidental and were the result of child abuse. Because Ms. Poe was physically disabled
from birth-related complications, the defendant was charged with primary responsibility for the
victim’s care when neither Ms. Skiles nor Ms. Ensley was present. The victim sustained rectal
tearing and had to be taken to a doctor shortly before his emergency room visit. Ms. Skiles testified
that she had observed the defendant “digging” his finger into the victim’s rectum while using a wipe


                                                   -5-
to clean him during diaper changing. The defendant, who initially denied any knowledge of the
victim’s injuries, ultimately admitted to investigating officers that he may have caused some of the
broken bones and bruising while “patting,” pulling, or changing the diapers of the twelve-day-old
victim. He was described as “nervous” and “jittery” during the interview. That the defendant
declined to accompany other family members to the hospital suggested either a fear of detection or
a lack of concern, either of which qualified as especially suspicious behavior under the
circumstances. The medical evidence was particularly unfavorable to the defense. There were
multiple injuries and they were particularly severe. Moreover, all hypotheses other than the guilt of
the accused had been eliminated by the evidence offered by the state. See Crawford, 470 S.W.2d
at 612. Every other person who had access to the child denied responsibility. The jury was entitled
to accredit the testimony of the state’s witnesses and otherwise make reasonable inferences from the
proof. This court has a limited scope of review on appeal. In our view, a rational jury could have
determined from the circumstantial evidence that the defendant was guilty of Class D felony child
abuse.

                                               III
       The defendant next asserts that the trial court erred by ordering a four-year sentence,
contending that he is entitled to the minimum sentence of two years.

         When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. 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); see State v.
Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments
provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        At the sentencing hearing, Rachel Poe testified that the defendant, from whom she was
divorced fourteen months after the victim was hospitalized, was unemployed and receiving SSI
benefits “because he could not read or write very well” at the time of their marriage. She recalled
that he began behaving differently about a year into their marriage, after he went to work because
he “didn’t like the idea” that she was working when he was not. Ms. Poe related that the defendant
became argumentative and turned physically violent, attacking her and breaking things in the home


                                                   -6-
during fits of anger. She testified that he drank alcohol and “popped” pain pills that he had obtained
from his parents, exacerbating the situation. Ms. Poe maintained that although the defendant would
“help out” from time to time, the majority of the household expenses were paid by either her or her
parents. She related that her parents “paid the house out of foreclosure twice” and purchased their
groceries and that her sister had bought them a car. According to Ms. Poe, the defendant used the
money he earned to pay for his truck he had purchased and help with his parents’ expenses. She
testified that on the afternoon they took the victim to the hospital, the defendant refused to
accompany them, telling her that he “wanted to stay home and talk to the big man upstairs.” Ms. Poe
claimed that Erlanger Medical Center had filed suit against her for $10,497 in unpaid medical bills
relating to the victim’s hospitalization. She stated that the bills were sent to the defendant’s
residence but were ignored. She complained that the defendant, who had been ordered to pay $100
biweekly in child support, had paid only $150 in total during the past seven months. Ms. Poe
testified that right after she and the defendant were married, her cousin spent $150 on reading lessons
for the defendant, who stopped attending after two sessions. She asked that the court impose the
maximum sentence.

        Gladys Skiles testified that she attempted to teach the defendant proper diaper changing after
she observed him “digging his finger into [the victim’s] . . . rectum,” thereby causing tearing, while
cleaning the child. She was unsure whether he had ever heeded her instructions. Ms. Skiles recalled
that on one occasion while she was at her daughter’s residence prior to the victim’s birth, the
defendant received a telephone call during which he cursed and threatened the caller. When Ms. Poe
asked the defendant to calm down, the defendant “slammed” her against a wall and left the residence,
knocking Ms. Skiles into a wall as he did so. Ms. Skiles testified that although Ms. Poe maintained
regular employment, the defendant did not. She and her husband paid their rent “several times,” paid
“the house out of foreclosure three times,” and purchased a van for them to drive to and from work.
She testified that since the offense, Ms. Poe had learned to drive and had obtained a job, making
$8.56 per hour. According to Ms. Skiles, the victim, now eighteen months old, still drags his feet
sometimes when he walks. She admitted that in the past she was angry with the defendant because
he had lied about being a preacher. Ms. Skiles nevertheless stated that she wished the defendant and
Ms. Poe could have worked out their problems.

        Donna Ensley testified that she initially told the defendant to remain at the residence while
they took the victim to the emergency room. She contended, however, that Ms. Poe and Ms. Skiles
“begged” him to accompany them.

        James Welch met the defendant at church and had known him for approximately ten years.
He testified that he once saw the defendant, while in a fit of rage, throw a pulpit and Bible out the
back door of his residence.

        The defendant, who at the time of the sentencing hearing resided alternately with his mother
and father, testified that his father, due to illness, was unable to attend the hearing but pointed out
that both his mother and sister were present. He stated that he had attended special education classes
in school until the ninth grade before dropping out. The defendant testified that afterward, he lived


                                                 -7-
with his parents, helping out around the house and assisting neighbors. Claiming that he was unable
to read or write, the defendant stated that he received SSI benefits at that time and had continued to
receive benefits until he married Ms. Poe, at which point he “felt like [he] needed to better [himself]
and . . . support [his] wife.” While the defendant agreed that his work history was sporadic, he
explained that he had difficulty maintaining steady employment due to some health problems and
his absences for attorney appointments and court appearances in connection with this case. He
denied using alcohol but acknowledged that he “backslid once” for about a month “a couple years
back.” He also denied having ever obtained any pain pills from his parents. The defendant testified
that he had been medicated for depression and anxiety but that he quit taking the medication because
it made him “feel weird and funny.” He claimed that he had enrolled in READ of Chattanooga in
hopes of acquiring a GED. He also testified that he would catch up on his back child support and
that he had been attending parenting classes. When asked whether he admitted responsibility for the
victim’s injuries, the defendant stated, “[I]f I did do those things, I didn’t mean to do them
intentionally . . . trying to be mean or anything like that.” The defendant acknowledged that he had
remarried eight days after his divorce from Ms. Poe.

         At the close of the hearing, the trial court applied enhancement factors (2), that the defendant
has a previous history of criminal convictions or behavior in addition to those necessary to establish
the appropriate range, and (16), that the defendant abused a position of private trust, but assigned
little weight to those factors. See Tenn. Code Ann. § 40-35-114(2), (16) (1997). It appears that the
trial court considered as mitigating factors that the defendant had strong family support, had a
learning disability, had the ability to obtain and maintain employment, did not have a history of
violent offenses, had a child to support, had a limited education, and contributed to the financial
support of his disabled parents. See Tenn. Code Ann. § 40-35-113(13).

        In this appeal, the defendant argues that the trial court erred by finding any enhancement
factors. Specifically, he contends that his single prior misdemeanor conviction for driving under the
influence was not sufficient to warrant application of enhancement factor (2). In State v. Milton S.
Jones, Jr., No. 02C01-9503-CR-00061 (Tenn. Crim. App., at Jackson, March 7, 1997), however, this
court approved the application of the previous criminal history enhancement factor based on a
misdemeanor conviction for exhibiting pornography to minors. Our rulings in Jones and other cases
support application of the factor, to which the trial court appropriately assigned only little weight.

        The defendant does not make any specific argument as to why enhancement factor (16), that
he abused a position of private trust, should not have been applied. That omission often results in
a waiver. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument . . . will
be treated as waived in this court.”). He does contend, however, citing State v. Dykes, 803 S.W.2d
250 (Tenn. Crim. App. 1990), that the trial court erroneously considered a non-statutory
enhancement factor when it determined that the defendant lacked candor in his testimony. While,
as set forth below, lack of candor may be an appropriate alternative sentencing consideration, it is
not included in the enhancement factors enumerated in Code section 40-35-114 and should not have
been used as such by the trial court to enhance the sentence. Nevertheless, enhancement factor (5),
that the victim was particularly vulnerable because of age, is supported by the record. See Tenn.


                                                  -8-
Code Ann. § 40-35-114(5); State v. Walton, 958 S.W.2d 724, 729 (Tenn. 1997) (stating that “age,
as an essential element of the offense, does not preclude application of the ‘particularly vulnerable’
enhancement factor”). Because of his age, twelve days old, the victim would have been unable to
resist, to summon help, or to testify later about the crime. See id. Thus, any error by the reference
to lack of candor in establishing the length of the sentence was rendered harmless by our application
of this additional factor.

        The defendant also contends that the trial court erred by refusing to apply statutory mitigating
factors (3), that substantial grounds exist tending to excuse or justify his criminal conduct, and (11),
that he committed the offense under such unusual circumstances that it is unlikely that he was a
motivated by a sustained intent to violate the law. See Tenn. Code Ann. § 40-35-113(3), (11). He
does not, however, point to any facts or circumstances in the record that would support the
application of those factors. In our view, the trial court properly declined to apply them.

         In summary, the following enhancement factors are applicable: (2), that the defendant has
a previous history of criminal convictions or behavior in addition to those necessary to establish the
appropriate range; (5), that the victim was particularly vulnerable due to his age; and (16), that the
defendant abused a position of private trust in committing the offense. See Tenn. Code Ann. § 40-
35-114(2), (5), (16). The defendant is entitled to some mitigation due to the support of his family,
his ability to obtain employment, his lack of a violent offense record, need to support the victim, and
his financial support of his parents. See Tenn. Code Ann. § 40-35-113(13).

        A Range I sentence for a Class D felony is two to four years. See Tenn. Code Ann. § 40-35-
112(a)(4); see also Tenn. Code Ann. § 39-15-401(a). Under Tennessee law, there are three
applicable enhancement factors and several applicable “catch-all” mitigators. In our view, the trial
court correctly assigned little weight to enhancement factor (2), which involved a prior misdemeanor
conviction. Enhancement factors (5) and (16) would also be entitled to weight. The victim was less
than two weeks old and, because his mother was physically unable to provide the necessary care, he
was largely at the mercy of the defendant. The injuries were severe. It is also our view that the
applicable mitigating factors would be entitled to little weight in the context of all circumstances.
Accordingly, the trial court, under the terms of the 1989 Act, did not err by setting the defendant’s
sentence at the four-year maximum.

        The United States Supreme Court’s recent opinion in Blakely v. Washington, 542 U.S. ____,
2004 U.S. LEXIS 4573 (2004), however, calls into question the continuing validity of portions of
our statutory sentencing scheme. In that case, the high court, applying the rule in Apprendi v. New
Jersey, 566 U.S. 466, 490 (2000), struck down a provision of the Washington sentencing guidelines
that permitted a trial judge to impose an "exceptional sentence" upon the finding of certain statutorily
enumerated enhancement factors. The Court observed that "the 'statutory maximum' for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant." Id. at **13-14 (emphasis in original). Finally, the
Court concluded that "every defendant has a right to insist that the prosecutor prove to a jury all facts
legally essential to the punishment." Id. at *31 (emphasis in original).


                                                  -9-
        Under our 1989 Act, the presumption is the minimum sentence for a Range I, Class D felony.
That is two years. That the defendant had a prior conviction is acknowledged and may be applied
under Blakely. See Tenn. Code Ann. § 40-35-114(2). Factors (5), that the victim was particularly
vulnerable due to age, and (16), abuse of a position of private trust, have not been submitted to a jury
and have not been admitted by the defendant. The rule in Blakely precludes application of either
factor. Because there is a single enhancement factor, the sentence must be modified to three years.

                                                   IV
        Finally, the defendant claims that the trial court erred by denying total probation. Especially
mitigated or standard offenders convicted of Class C, D, or E felonies are, of course, presumed to
be favorable candidates “for alternative sentencing options in the absence of evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply
here, probation must be automatically considered by the trial court if the sentence imposed is eight
years or less. Tenn. Code Ann. § 40-35-303(b) (Supp. 2001). The trial court’s determination of
whether the defendant is entitled to an alternative sentence and whether the defendant is a suitable
candidate for full probation are different inquiries with different burdens of proof. State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). When, as here, the defendant is entitled to the
statutory presumption favoring alternative sentencing, the state must overcome the presumption by
the showing of “evidence to the contrary.” Ashby, 823 S.W.2d at 169; State v. Bingham, 910
S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled in part on other grounds by State v. Hooper,
29 S.W.3d 1 (Tenn. 2000); see Tenn. Code Ann. §§ 40-35-102(6), -103. Conversely, it is the
defendant who has the burden of demonstrating his suitability for total probation. Bingham, 910
S.W.2d at 455; see Tenn. Code Ann. § 40-35-303(b) (Supp. 2001).

        Among the factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the deterrent effect upon
and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
The nature and circumstances of the offense may often be so egregious as to preclude the grant of
probation. See State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981). A lack of candor may
also militate against a grant of probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).

         Moreover, in Ashby, our supreme court encouraged the grant of considerable discretionary
authority to our trial courts in matters such as these. 823 S.W.2d at 171; see State v. Moss, 727
S.W.2d 229, 235 (Tenn.1986). “[E]ach case must be bottomed upon its own facts.” State v. Taylor,
744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). “It is not the policy or purpose of this court to place
trial judges in a judicial straight-jacket in this or any other area, and we are always reluctant to
interfere with their traditional discretionary powers.” Ashby, 823 S.W.2d at 171.

       In this case, the trial court did not place its alternative sentencing considerations on the
record. Nevertheless, it is our view that the trial court did not abuse its discretion by requiring the
defendant to serve 11 months, 29 days of his four-year sentence in incarceration. Before a trial court
may deny an alternative sentence based upon the circumstances of the offense, those circumstances
“must be ‘especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an


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excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors favoring
[an alternative sentence].” State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985); State v. Hartley,
818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). The proof established that the victim sustained
serious bodily injury as a result of the offense. The defendant, originally charged with aggravated
child abuse, was granted leniency by the jury in the form of a conviction for the lesser offense of
child abuse. In our view, to further lessen his sentence would depreciate the seriousness of the
offense.

        Further, lack of candor is an appropriate consideration. “A defendant’s truthfulness or
mendacity while testifying on his own behalf, almost without exception, has been deemed probative
of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing.”
United States v. Grayson, 438 U.S. 41, 51 (1978). “‘[A] fact like the defendant’s readiness to lie
under oath before the judge who will sentence him would seem to be among the more precise and
concrete of the available indicia.’” Id. (quoting United States v. Hendrix, 505 F.2d 1233, 1236 (2nd
Cir. 1974)). Here, the trial court specifically found that the defendant lied under oath. It is our view
that the lack of candor, when combined with the need to avoid depreciating the seriousness of the
offense, is sufficient in this instance to support the trial court's denial of full probation.

       Accordingly, the judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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