        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                February 17, 2010 Session

                 STATE OF TENNESSEE v. JOSEPH BRENNAN

                  Appeal from the Criminal Court for Sumner County
                       No. 358-2008    Dee David Gay, Judge




                  No. M2009-00895-CCA-R3-CD - Filed April 9, 2010


The Defendant, Joseph Brennan, was charged with two counts of rape of a child, a Class A
felony, and two counts of incest, a Class C felony. See Tenn. Code Ann. §§ 39-13-522(b)(1),
-15-302(b). He pleaded guilty to two counts of incest and two counts of attempted rape of
a child, a Class B felony. See Tenn. Code Ann. § 39-12-107(a). In accordance with his plea
agreement, the trial court sentenced the Defendant, as a Range I, standard offender, to ten
years for each attempted rape of a child conviction and three years for each incest conviction,
his sentences for attempted rape of a child to be served consecutively to each other and
concurrent with his incest sentences, for a total effective sentence of twenty years. Following
the Defendant’s sentencing hearing, the trial court ordered service of his full sentence in the
Department of Correction. In this direct appeal, the Defendant contends that the trial court
erred in denying him a sentence of split confinement. After our review, we affirm the
judgment of the trial court.


 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and R OBERT W. W EDEMEYER, JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Joseph Brennan.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Lawrence R. Whitley, District Attorney General; and Sallie Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                   Factual Background

       Testimony in this case was heard at the Defendant’s sentencing hearing, held on April
3, 2009. Detective Dirk Witherow of the Hendersonville Police Department testified that he
acted as the lead investigator in the Defendant’s case. He had, in the past, received training
specific to child sexual abuse cases. On January 10, 2008, Det. Witherow received a fax
referral from Morgan Radley, the victim’s Department of Children’s Services (“DCS”) case
worker. The victim was ten years old, and the Defendant was nineteen years old. The
Defendant and victim are siblings by adoption. At that time, the Defendant and his family
had lived in Tennessee for about five months, having moved from Pennsylvania.

       Detective Witherow explained that the charges against the Defendant originally arose
from a report given to Pennsylvania authorities by an acquaintance of the Defendant named
Muriel Skuba. Ms. Skuba reported that the Defendant had sexually abused the victim in both
Pennsylvania and Tennessee. Detective Witherow and Ms. Radley interviewed the victim
at her school on January 11. The victim confirmed that she had been abused by the
Defendant in both states; the first instances of abuse occurred when the victim was five years
old.

        Detective Witherow also learned that there had been no police involvement in
Pennsylvania. At that point in his investigation, Det. Witherow was informed that the
Defendant had hired an attorney and that the family planned to move to North Carolina.
DCS then took the victim into its care, and the Defendant turned himself in to police through
his attorney. Detective Witherow introduced into evidence a medical report on the victim.

       Ms. Radley testified that she interviewed the victim and the Defendant’s younger
brother, Ryan, who disclosed some knowledge of the Defendant’s criminal conduct in
Pennsylvania. Ms. Radley confirmed that the victim and Ryan were still in the State’s
custody at the time of sentencing. She also introduced into evidence a report on the victim
from the Pennsylvania equivalent of DCS.

        Donna Moore, a psychologist qualified as an expert in the evaluation and treatment
of sex offenders, testified that she evaluated the Defendant by interviewing him and by
examining Pennsylvania’s DCS-equivalent records, records from inpatient therapy the
Defendant had received at a clinic in Montana, and the records of another evaluating doctor,
Dr. Allister Finlayson. Dr. Moore testified that the Defendant had received some counseling
after first being accused of sexual abuse in Pennsylvania in 2004. At that time, the



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Defendant had been diagnosed with mild depression and attention deficit hyperactivity
disorder (“ADHD”). No assessment of the Defendant’s recidivism risk was conducted.

       The Defendant, in his interview with Dr. Moore, detailed his abuse of the victim as
well as his other sexual activities. The Defendant noted that he had, before abusing his sister,
masturbated using adult internet pornography and chat rooms and read pornographic stories
involving incest. He denied that he had viewed child pornography at that time, but admitted
that he had done so between his 2004 abuse of the victim and his family’s move to
Tennessee.

       Regarding his abuse of the victim, he said that in 2004, he had performed cunnilingus
on the victim and forced her to perform fellatio on him. He attempted to penetrate the victim
vaginally but was unable to do so due to her small size. The Defendant denied that he had
ever been physically violent in sexual relationships with the victim or with same-age peers,
but admitted that he verbally intimidated people in order to get what he wanted. He said he
had yelled at the victim. The Defendant denied ever abusing his brother Ryan. He said he
chose the victim instead of his older sisters because they were more likely to tell someone
what he had done. He also noted that he never ejaculated on the victim because “that would
be wrong,” but admitted that he might have forgotten he did so.

       The Defendant’s abuse of the victim stopped after a few occurrences in 2004. It did
not resume until 2007. In the interim, the Defendant’s parents put in place a “safety plan”
under which the Defendant was never to be alone with the victim. The Defendant was also
placed in a highly structured Catholic school. Eventually, however, the Defendant began to
view pornography again. Soon after moving to Tennessee in 2007, the Defendant “worked
around” the safety plan, abusing the victim again, waiting until both his father and mother
were either asleep or out of the house. After a few occurrences, it appears that he told Ms.
Skuba about his actions, resulting in her reports to Pennsylvania and Tennessee authorities.
Ms. Skuba also reported that she had been sexually involved with the Defendant, and that he
had verbally intimidated her during that sexual relationship. After this report, the
Defendant’s parents sent him to the Montana clinic, where he remained until Det. Witherow
asked to take him into custody. Dr. Moore noted that the Defendant had told her about other
sexual activities of his, including a one-night sexual encounter with a stranger he met online.

       Regarding the Defendant’s condition, Dr. Moore testified that pornography viewing
can be indicative of intimacy deficits because pornography tends to objectify people. The
Defendant’s behavior showed a “sexual disorder of interest and action against prepubescent
children.” Dr. Moore performed a standardized test to determine the Defendant’s risk of
recidivism; it returned a “moderate low” result. Because the test took into account formal
charges against the subject, and because the Defendant had never been charged in

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Pennsylvania, however, Dr. Moore said that it might have underestimated the Defendant’s
risk of reoffending. Dr. Moore noted that the Defendant exhibited very little empathy for the
victim in her interview with him. She also noted that the Defendant tended to blame his
actions on pornography and had relatively little insight into his behavior.

        On cross-examination, Dr. Moore agreed that the Defendant had been honest with her
in disclosing his sexual activities with the victim and others. She also said his decision to
report his own conduct in Tennessee could indicate that he recognized his problem and
wanted to report it. She said that the Defendant’s parents’ previous attempts at treatment,
including counseling and a safety plan, were not enough, and that the treatment the
Defendant received in Montana did not address the Defendant’s sexual deviancy in a
sufficiently specific manner. While Dr. Moore did not offer an opinion regarding whether
jail or probation would be preferable, she said that the Defendant’s chances of reoffending
would be much less with treatment, that he could be monitored if not incarcerated, and that
his risk level was “not so high I would say he required an inpatient facility.”

       The Defendant called as a witness Dr. Allister Finlayson, a psychiatrist who had also
evaluated him. After being qualified as an expert in the evaluation and treatment of sex
offenders, Dr. Finlayson testified that he performed a psychosexual evaluation of the
Defendant by gathering information on the Defendant and conducting a series of interviews,
including numerous tests.

        Dr. Finlayson diagnosed the Defendant with a sexual disorder and paraphilia
involving incest. He did not diagnose the Defendant with pedophilia because sexual interest
testing revealed that the Defendant was not specifically attracted to children, and in fact,
performed relatively normally in the sense that his sexual interest focused on sexually mature
adolescents of an age group similar to his own. Dr. Finlayson performed the same recidivism
test given to the Defendant by Dr. Moore and received the same result: that the Defendant
was a “moderate low” risk to reoffend.

        Dr. Finlayson noted that the Defendant did not deny his offenses or attempt to
minimize them, which Dr. Finlayson considered to be a “good start.” The Defendant did not
have very much empathy for the victim, however. Dr. Finlayson told the Defendant he
needed intensive sex offender treatment; the Defendant originally said he was willing to get
that treatment, but when encouraged to do more, he said he “wasn’t really quite ready to
make the change.” The Defendant, for instance, went to some Sexaholics Anonymous
(“SA”) meetings but not nearly as many as he could have. Dr. Finlayson opined that the
Defendant was unlikely to reoffend assuming he received the coercion necessary to enter
intensive sex offender treatment. He also said the Defendant should be monitored.



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       The State called Wanda Daniels, foster mother of the victim and Ryan since March
19, 2008. She testified that the victim, who was eleven years old at the time of sentencing,
had received some treatment but experienced continuing problems as a result of her abuse
by the Defendant. She bullied peers at school, constantly belittled Ryan, and exhibited some
inappropriate sexual conduct. Ms. Daniels noted that the victim’s parents visited every other
week, and that the victim wanted to see her father but did not like her mother.

        The Defendant, twenty years old at the time of sentencing, also testified. He said that
he and his siblings had been adopted at different times from India by his parents, who then
lived in Pennsylvania. Before being adopted as a six-month-old, he had lived in Calcutta.
The Defendant was twelve years old when his parents adopted the victim; he and his other
siblings, Ryan, Katelyn, and Koli, had all been adopted before her. At the time, the
Defendant was unsure why his parents kept adopting children, and he resented the victim’s
presence.

        Around this time, the Defendant began to have “issues with sex”; he found his father’s
pornography collection and used it when masturbating. He also started to view pornography
on the internet. He was very stressed because his parents were present so infrequently; when
pornography became insufficient to relieve his stress, he abused the victim. He did not
recognize at the time that his actions were wrong, but said at sentencing that he was being
selfish and regretted his actions.

       After a few months, the Defendant told his sister Koli that he had abused the victim.
Koli told the Defendant’s mother, who confronted the Defendant, told authorities, and
separated him from the victim with a safety plan. He also began to see a counselor, although
he did not receive counseling tailored to his sexual offense. The Defendant’s counselor and
his parents told him that his actions were wrong, but that did not have a significant impact
on him at the time.

        The Defendant continued to masturbate for the next few years, but viewed very little
pornography. He entered Catholic school and became very active in the Boy Scouts; the
structure imposed by these organizations helped him. He was able to become an Eagle
Scout, the highest rank in the Boy Scout program and one attained by only about five percent
of all Boy Scouts. He admitted, however, that he had consensual sex with another Boy Scout
during this time.

       The Defendant and his father moved to Tennessee in June 2007; the rest of the family
joined them in August 2007, after the victim and Ryan had completed their school year.
Over that summer, the Defendant “got bored.” He had not seen a counselor in some time;
he also did not know anyone in Tennessee and felt like an outcast.

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       He therefore relapsed and abused the victim again on three occasions. On the first
occasion, he “dry-humped” the victim, while both were clothed, until he ejaculated. Before
the second occasion, the Defendant had again been viewing pornography; he went to the
victim and rubbed against her until he ejaculated into his clothes. On the third occasion, he
removed both his pants and the victim’s pants, rubbed against the victim, and briefly
performed cunnilingus on her. He then directed her to bend over the toilet and tried to insert
his penis into her vagina. Unable to do so, he rubbed his penis against her genitals until he
ejaculated. The Defendant said he never used physical force on the victim.

       The Defendant’s parents were out of the house on each of these occasions. The
Defendant felt guilt after the first and second occasions but could not stop; after the third
time, however, he felt extremely guilty and told Ms. Skuba and his old counselor about his
behavior.

        The Defendant’s mother and his counselor found the clinic in Montana and sent him
there. He stayed for four months in a general addiction program. He learned that he had a
problem, and learned to think of his little sister as the victim of his acts. On April 22, 2008,
after the Defendant had hired an attorney, he returned to Tennessee and turned himself in to
police. He was released on bond and began living with a friend. He saw Dr. Moore for an
evaluation and continued to have therapy over the phone with Elisha Brea, a therapist he had
seen in Montana.

        He also hired Dr. Finlayson, who suggested attendance at SA meetings. The
Defendant testified that he had been referring only to masturbation when he told Dr.
Finlayson that he “wasn’t really quite ready to make the change.” The Defendant said that,
at the time of sentencing, he did not have a computer and did not view pornography on the
internet or elsewhere.

        He said that he abused the victim because she was the first available female. He felt
ashamed and said he should not have abused the victim. The Defendant requested treatment
for the purpose of discerning the source of his sexual desires and how to avoid committing
any further abusive acts. He said he had committed no illegal acts since being released on
bond and was willing to submit to a curfew, GPS monitoring, polygraph exams, or any other
conditions in order to avoid prison.

        On cross-examination, the Defendant admitted that he attended SA sessions
irregularly because they originally occurred at 6:30 a.m., which was “too early” for him. He
also admitted that he directed the victim to perform fellatio on him in Pennsylvania and on
the first occasion of abuse in Tennessee. He also made the victim watch pornography in
Pennsylvania. He testified about other sex acts he had committed at various times, including

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masturbating on webcam, meeting an anonymous forty-year-old man in a parking lot after
a conversation with him on the internet, and sex with an anonymous woman met at a
swimming pool. The victim testified at sentencing that he had abused the victim on three or
four occasions in Pennsylvania, but acknowledged that he had told Dr. Moore he had done
so ten times. He said he lied to Dr. Moore about the number because he was uncomfortable
with her. The Defendant admitted to having occasional anger issues, and agreed that Ryan
and the victim thought he was a bully.

       The Defendant also presented the testimony of his older sister Katelyn and a Rite Aid
coworker, Jamie Lester, with whom he had a romantic but non-sexua,l five-month
relationship. Both described him as a loving, compassionate, and altruistic person, and
expressed a desire that he receive treatment.

        In addition to the testimony and exhibits mentioned above, the trial court considered
letters of support for the Defendant, the Defendant’s presentence report, the written
evaluations prepared by Dr. Moore and Dr. Finlayson, and a scholarly article on the treatment
of sex offenders. After its review, the trial court ordered the Defendant to serve his full
sentence in confinement. He now appeals.

                                          Analysis
        The Defendant contends that the trial court erred in failing to sentence him to a period
of split confinement. The presentence report in this case indicates that the Defendant, at the
time of sentencing, was a twenty-year-old male with no prior criminal record. He received
a high school degree from Bishop Hafey High School in Hazleton, Pennsylvania, and briefly
attended Volunteer State Community College in Gallatin before dropping out to attend the
treatment program in Montana. He reported fair physical health and good mental health at
the time of sentencing, but noted that he took medication for ADHD. The Defendant
worked as a lifeguard and an Eckard’s Drug Store cashier while in high school; upon moving
to Tennessee, he worked at a Rite Aid Drug Store from June 2007 to January 2008 and from
April 2008 to the time of sentencing.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also

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State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the 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) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        Effective June 7, 2005, our legislature amended Tennessee Code Annotated section
40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a
Class C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for
alternative sentencing. Our sentencing law now provides that a defendant who does not
possess a criminal history showing a clear disregard for society’s laws and morals, who has
not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary. A court shall
consider, but is not bound by, this advisory sentencing guideline.” Tenn. Code Ann. § 40-35-
102(5), (6) (emphasis added). No longer is any defendant entitled to a presumption that he
or she is a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347.

        The following considerations provide guidance regarding what constitutes “evidence
to the contrary”:

             (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




                                              -8-
              (C) Measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. 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. Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the defendant’s potential for rehabilitation or treatment in
determining the appropriate sentence. Tenn. Code Ann. § 40-35-103(5).

        In rendering judgment in this case, the trial court noted that it considered the
Defendant’s presentence report, medical reports, and letters of support. It also considered
the principles of sentencing, the Defendant’s and State’s arguments, the nature of the
Defendant’s conduct, and his potential for rehabilitation.

        Although it noted that the Defendant had no criminal record other than his abuse of
the victim, the trial court considered it important that this abuse continued even after the
Defendant had been exposed to the structure of a Catholic school and the Boy Scouts. The
trial court also noted that the Defendant did not attend SA meetings as frequently as Dr.
Finlayson had directed him to and that his overall activities revealed a broad sexual deviancy.


       The trial court opined that the Defendant showed little genuine remorse for his
conduct or empathy for the victim, and refused to acknowledge any selfish interest in
sexually deviant behavior, instead blaming boredom and depression for his actions. The trial
court also opined that the Defendant seemed motivated to seek treatment primarily in order
to avoid incarceration. The trial court noted that, at sentencing, the Defendant contradicted
Dr. Moore’s report by denying that he abused the victim ten times in Pennsylvania and
denying that he verbally intimidated the victim.

        Regarding the seriousness of the offenses at issue, the trial court noted that the
Defendant’s actions permanently and severely damaged both his family and the victim’s
mental health, and opined that only murder is a more serious crime than rape of a child.
Regarding the dictates of Tennessee Code Annotated section 40-35-103, the trial court found
that a denial of split confinement was necessary to provide a deterrent to others and to avoid
depreciating the seriousness of the Defendant’s offenses, and that the Defendant still posed
a risk to society. The trial court evidently concluded that the Defendant would be most
amenable to treatment in incarceration, as the Defendant’s judgment forms order his transfer
to the sex offender treatment program at the Deberry Special Needs Facility “as soon as
possible.”

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       The Defendant’s argument on appeal largely criticizes the trial court’s application, or
lack thereof, of certain mitigating and enhancement factors, set forth in Tennessee Code
Annotated sections 40-35-113 and -114. In its ruling, the trial court made some comments
that would support the finding of certain mitigating factors: It noted that the Defendant has
a history of mental health problems. See Tenn. Code Ann. § 40-35-113(8). It did not
explicitly apply any enhancement factors. In deciding a sentence’s manner of service as
opposed to its length, a trial court is only required to consider “[e]vidence and information
offered by the parties on the mitigating and enhancement factors in §§ 40-35-113 and 40-35-
114,” which the trial court did. Tenn. Code Ann. § 40-35-210(b)(5) (see also State v. Boston,
938 S.W.2d 435, 438 (Tenn. Crim. App. 1996)) (noting that a court “may also apply” those
mitigating and enhancement factors (emphasis added)). The trial court was therefore not, as
the Defendant suggests, required to specifically consider as a mitigating factor his youthful
lack of judgment under Tennessee Code Annotated section 40-35-114(6).

       The trial court’s ruling on whether the Defendant should be granted split confinement
is primarily governed by Tennessee Code Annotated section 40-35-103. After our review,
we conclude that the trial court properly considered this section, as well as all other
sentencing principles applicable to this case, and found that a sentence of confinement was
necessary for deterrence, to avoid depreciating the seriousness of the Defendant’s offenses,
and because the Defendant was not sufficiently amenable to treatment outside of confinement
and was therefore likely to reoffend.

       As to the seriousness of his offenses, the Defendant contends on appeal that “there
was no medical evidence presented on what, if any, effect this abuse has had on [the victim].”
There was, however, non-medical evidence presented in the form of testimony by the
victim’s foster mother. Regarding his risk to society, the Defendant notes Dr. Moore’s and
Dr. Finlayson’s assessments that he presented a “moderate low” risk to reoffend if he
received sex offender-specific treatment; we cannot conclude that the trial court erred in its
evident decision that the Defendant was a risk to reoffend while receiving treatment out of
confinement, however.

       After our review we conclude that the trial court properly considered all applicable
principles of sentencing and find no error in its decision that the Defendant failed to provide
sufficient evidence that he was a favorable candidate for alternative sentencing.

                                         Conclusion
         Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.




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       _________________________________
       DAVID H. WELLES, JUDGE




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