            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                          MAY 1998 SESSION
                                                     September 15, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,              *    No. 01C01-9707-CC-00261 Clerk
                                                Appellate Court

             Appellee,           *    Rutherford County

vs.                              *    Hon. James K. Clayton, Jr., Judge

MARK LOGAN,                      *    (Sentencing)

             Appellant.          *




For Appellant:                        For Appellee:

Stephen W. Pate                       John Knox Walkup
Attorney                              Attorney General & Reporter
218 West Main Street
Murfreesboro, TN 37130                Lisa A. Naylor
                                      Assistant Attorney General
                                      425 Fifth Avenue North
                                      Cordell Hull Building, Second Floor
                                      Nashville, TN 37243-0493

                                      William C. Whitesell
                                      District Attorney General
                                      Third Floor Judicial Building
                                      Murfreesboro, TN 37130

                                      John W. Price
                                      Assistant District Attorney General
                                      Rutherford County Judicial Building
                                      Murfreesboro, TN 37130




OPINION FILED:___________________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                                  OPINION

                  The defendant, Mark Logan, entered pleas of guilt to attempted

aggravated sexual battery. The trial court imposed a Range I sentence of three

years. In this appeal of right, the defendant claims the trial court committed error by

failing to grant probation.



                  We affirm the judgment of the trial court.



                  Although the record does not include a transcript of the submission

hearing, the underlying facts of the crime are apparent from the statement of the

defendant. Pertinent portions provide as follows:

                  [The defendant] stated that he was lying on the sleeper
                  sofa between [seven-year-old HM, a child of a neighbor] 1
                  and his daughter .... [He] stated that he started tickling
                  [HM] and touched her on her bottom. [He] stated he
                  starting rubbing on her breast and then he stuck his hand
                  down into her panties and starting rubbing her vagina.
                  [The defendant] stated he didn't penetrate into the
                  vagina. [He] stated that he kissed her on the cheek and
                  starting blowing on her abdomen and he pulled her
                  panties midway down, and blew on her bikini line. ...



                  Indicted for aggravated sexual battery, a Class B felony, the defendant

pled to a reduced charge as part of a plea bargain agreement. An attempt to

commit aggravated sexual battery is a Class C felony, which has a sentencing range

of three to six years for a Range I offender. Tenn. Code Ann. § 39-12-107(a).



                  The defendant, twenty-nine years of age, has been married for nearly

ten years and has three young children. Although he did not complete high school,

he attended Knoxville Area Vocational School and earned a certificate in gasoline


         1
        It is the policy of this court to w ithhold the ide ntity of children in volved in se xual abu se. State
v. Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn. Crim . App. 1989).

                                                       2
engine repair in 1989. The defendant works for Spaulding Composites Company as

a full-time maintenance helper, a position he has held since August of 1996. He

gives his entire paycheck to his wife. He has good physical health, drinks only

moderately, and, although he admitted to experimental use of marijuana in the past,

he denied any present use of illegal drugs. Since September of 1996, he has

attended counseling sessions at the Rutherford County Guidance Center where a

psychological evaluation of the defendant was performed. He has no prior criminal

record.



              At the sentencing hearing, the defendant testified that a Safety Order

from the Department of Human Services required him to reside with his parents until

his counselors approved his return to his family home. In the interim, he visits with

his children in the presence of his wife and a social worker on a weekly basis. He

maintained that he had never abused either of his two daughters and had never

abused any other child prior to committing this offense. He maintained that this was

an isolated incident.



              The defendant attends group counseling once per week and testified

that he has benefited as a result of his treatment. He expressed a desire to

participate in the sexual offender rehabilitation program so he could learn more

about his problem and prevent any future incidents. He apologized to the victim and

her mother and recognized that he had caused them pain and embarrassment.



              When asked whether he had inappropriate impulses toward young

girls, including his daughter, he informed the trial court that he did not. On further

questioning by the state, however, he admitted that he had occasionally struggled

with such thoughts. The psychological evaluation concluded as follows:


                                           3
              The [defendant] denies any other episodes of sexual
              perpetration but admits he had "struggled" with the desire
              to perform sexual activity with a minor since his daughter
              was approximately one year old. He stated that his
              daughter had typically been the focus of such thoughts
              prior to this incident, though he had always successfully
              resisted acting on this impulse.

The evaluation also indicated that the defendant may suffer from a learning

disability.



              Michael L. Logan, father of the defendant, described his son as very

quiet, reserved, and insecure. He testified that he had noticed improvement in

these areas since the defendant had obtained counseling. Mr. Logan stated that he

had observed the defendant with his daughters on numerous occasions and never

noticed any abnormal behavior. While expressing "a very small reservation" about

the defendant returning to live with his daughters, he informed the court that the

defendant could live with him indefinitely. Incarceration, he explained, would be a

"catastrophe because [the defendant] is the sole breadwinner. ... There would be no

other income." Mr. Logan offered to help make sure the defendant complied with

conditions of probation, if granted.



              Mattie E. Logan, wife of the defendant, testified that she was unaware

of the defendant's problem and had not witnessed any inappropriate behavior on his

part. Although she and her daughters are aware of the incident, they do not feel

threatened and want the defendant to come home. She stated that if the defendant

were incarcerated, she would have no means of support and would lose her home.



              Catina Lawrence, mother of the victim, testified that MH has

experienced nightmares and is fearful of playing outdoors. Ms. Lawrence

acknowledged that, although the defendant did not physically injure MH, she was


                                          4
emotionally and mentally scarred as a result of his actions. Ms. Lawrence

requested that the court deny probation.



              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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              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, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation 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).



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are presumed to be favorable candidates "for alternative sentencing


                                           5
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(a), (b).



             Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. 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).



             The trial court denied probation:

             [I]f he did what he said he did, with the child being seven
             years old, he's guilty of aggravated sexual battery, a
             class B felony .... [H]e's being convicted of a Class C
             felony for whatever reason. And I always consider
             probation. I have problems considering probation with
             sex offenders, however, because, ... the chances of him
             being rehabilitated are slim. ... And I don't think he's been
             entirely honest with the Court. ... He may have been
             entirely honest [during] the psychological evaluation. ...
             [T]he diagnostic impressions are pedophilia, and that's
             extremely hard to do anything with....

The trial court ordered the defendant to participate in counseling and to serve his

sentence at the Rutherford County Workhouse.



             The defendant contends that the trial court erred by failing to state the

statutory basis for the denial of probation. The 1989 Act does provide that the

record of the sentencing hearing "shall include specific findings of fact upon which

application of the sentencing principles was based." Tenn. Code Ann.

§ 40-35-209(c). We are able to conclude that the record and the findings of the trial

court are adequate to support the denial of probation.




                                          6
              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

(Tenn. Crim. App. 1981). Here, the defendant sexually assaulted a seven-year-old

girl entrusted to the care of him and his wife. The circumstances involved could

have resulted in a conviction of a Class B felony had the defendant proceeded to

trial. A lack of candor may also militate against a grant of probation. State v.

Bunch, 646 S.W.2d 158 (Tenn. 1983). The record supports the trial judge's

conclusion that the defendant was reluctant to acknowledge his sexual impulses

toward his own daughter. While denying having had sexual impulses toward his

child, he had informed his counselors otherwise, as evidenced by the psychological

evaluation.



              Moreover, the trial court imposed a minimum sentence of three years.

Although an important sentencing consideration is to impose the least severe

punishment necessary, the grant of probation might tend to depreciate the

seriousness of this offense. Tenn. Code Ann. § 40-35-103(1)(B).



              Because sentencing requires an individualized, case-by-case

approach, that method of analysis necessarily embodies the exercise of discretion

at the trial court level. See Moss, 727 S.W.2d at 235; State v. Fletcher, 805 S.W.2d

785 (Tenn. Crim. App. 1991). Thus, there is a sound basis for the presumptive

correctness standard of appellate review:

              It is not the policy or purpose of this Court to place trial
              judges in a judicial strai[gh]t-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. That principle prevails here on the matter of probation.

In our view, the trial court acted within its discretion in denying probation.



                                            7
          Accordingly, the judgment of the trial court is affirmed.



                                      __________________________________
                                      Gary R. Wade, Presiding Judge

CONCUR:



_________________________________
David G. Hayes, Judge



_________________________________
Jerry L. Smith, Judge




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