         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 27, 2008

             STATE OF TENNESSEE v. LOUIS E. WHITECOTTON

                  Direct Appeal from the Circuit Court for Sullivan County
                            No. S51077     R. Jerry Beck, Judge



                     No. E2007-00335-CCA-R3-CD - Filed April 23, 2008


The defendant, Louis E. Whitecotton, was convicted of failure to timely register as a violent sexual
offender, a Class E felony, and sentenced to three years in the Department of Correction. On appeal,
he argues that the trial court erred in denying alternative sentencing. Following our review, we
affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Joseph F. Harrison, Assistant Public Defender, for the appellant, Louis E. Whitecotton.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and B. Todd Martin, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                             FACTS

        From 1980 to 2004, the defendant was incarcerated in the Virginia State Penitentiary while
serving an effective forty-six-year sentence for rape, use of a firearm in the commission of a rape,
and sodomy convictions. After the defendant was paroled on October 8, 2004, he resided at the
Salvation Army in Bristol, Tennessee, and registered with the Bristol (Tennessee) Police Department
as a violent sexual offender. In December 2004, he reported to the Bristol (Tennessee) Police
Department that he was moving to Bristol, Virginia. On May 11, 2005, he applied to attend the
National College of Business and Technology (NCBT) in Bristol, Tennessee, and began attending
classes there on June 6, 2005. He did not register as a violent sexual offender with the Bristol
(Tennessee) Police Department until August 29, 2005. Within forty-eight hours of establishing a
residence, becoming employed, or becoming a student in Tennessee, sexual offenders must register
in person with the designated law enforcement agency having jurisdiction over the offender’s
residence, place of employment, or educational institution. Tenn. Code Ann. § 40-39-203(a)(1)
(Supp. 2005).

                                               Trial

       The parties stipulated that the defendant was a violent sexual offender as defined in
Tennessee Code Annotated section 40-39-202, the NCBT is an institution of higher learning as
defined in section 40-39-202, and the Bristol (Tennessee) Police Department is the law enforcement
agency having jurisdiction over the NCBT.

        Detective Aaron Blevins, a member of the Bristol (Tennessee) Police Department’s Sex
Offender Registry Team, testified that the defendant registered as a violent sexual offender on
October 13, 2004. He identified a Tennessee Bureau of Investigation Sexual Offender Instruction
Sheet, which instructed that offenders from another jurisdiction who become a student in Tennessee
must register within forty-eight hours with the law enforcement agency having jurisdiction over the
educational institution. The document was dated October 13, 2004, and signed by the defendant.
Detective Blevins testified that the defendant began attending the NCBT on June 6, 2005, but did
not register as a sexual offender until August 29, 2005, after Blevins contacted the defendant’s
Virginia parole officer and asked to meet with the defendant. When the defendant arrived at the
police station, he was arrested. On cross-examination, Detective Blevins testified that when the
defendant was arrested he said he did not know he was required to register.

       Bristol (Tennessee) Police Department Sergeant David Kirkpatrick testified that he gave the
defendant an instruction sheet and notice of his next registration date when he registered on October
13, 2004. He stated that the defendant notified him in December that he was moving to Bristol,
Virginia. On cross-examination, Sergeant Kirkpatrick testified that once the defendant moved to
Virginia in December 2004, his obligation to register in Tennessee ceased.

        The defendant offered the testimony of Virginia parole officer Gary Todd, who supervised
the defendant from the time he was released from the Virginia State Penitentiary in October 2004.
He said the defendant initially lived at the Salvation Army in Bristol, Tennessee, before moving back
to Bristol, Virginia. Todd stated that the defendant worked at two restaurants after his release from
prison. He explained that the defendant’s conditions of parole included notifying him of any change
of address, meeting with him as instructed, attending counseling as required, and complying with
the requirements of the sexual offender registry. Todd testified that, with the exception of failing
to register in Tennessee when he began attending the NCBT, the defendant had complied with all
of his parole conditions.

        Todd said that when the defendant told him he intended to attend the NCBT, he did not tell
the defendant that he would be required to register as a sexual offender in Tennessee because he was
unaware of this requirement. He testified that he received a call from Detective Blevins on August


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22, 2005, informing him that the defendant was required to register. He told the defendant about the
registration requirement on Friday, August 26, 2005, and the defendant reported to the Bristol
(Tennessee) Police Department the following Monday, August 29, 2005.

                                        Sentencing Hearing

       The fifty-one-year-old defendant testified that if he were granted alternative sentencing he
believed he could regain his former job at Logan’s Roadhouse, live at the Salvation Army in Bristol,
Tennessee, and adhere to any terms and conditions imposed by the court. He said he did not have
an alcohol or drug problem. He stated that while incarcerated in Virginia he received counseling
which helped him feel empathy for his victims and understand how his actions had negatively
impacted them. He testified that, after his release from prison in 2004, he timely registered as a
sexual offender with the Bristol (Tennessee) Police Department and with the Bristol (Virginia)
Police Department when he moved to Virginia in December.

        The defendant testified that, after moving to Virginia, he maintained a job and decided to
enroll in college to take computer courses because he had enjoyed learning about computers during
his incarceration. He said he informed his parole officer, Gary Todd, of his plans to attend college,
but Todd did not tell him about the sex offender registry requirement that resulted from his
enrollment in college. He said there was no chance that he would ever again commit violent acts
against women or fail to timely register as a sexual offender. He testified that he had lied about his
offenses for ten years before having a change of heart during a parole interview in 1989 but had
consistently told the truth and taken responsibility for his actions since then.

        On cross-examination, the defendant related the circumstances of his prior convictions for
rape and attempted rape. Regarding the former, he testified that he saw a woman jogging as he drove
down a road. He parked his car and hid in a ravine along the victim’s route, and when she jogged
past he emerged and displayed a pellet gun, told her to get down into the ravine, and raped her.
Regarding the attempted rape, he testified that he drove to a high school in Washington County,
Virginia, and saw a female and a male sitting in a car in the parking lot. He followed the female into
the high school and told her he was a janitor. She asked him for a broom, and he told her it was
upstairs. Once upstairs the defendant displayed his pellet gun, told the female to go to the bathroom,
followed her into one of the stalls, and attempted to rape her.

        Gary Todd testified that from the time of his release on parole until his arrest for failure to
timely register, the defendant attended weekly sexual offender counseling in Abingdon, Virginia, and
had complied with all the requirements of the parole program.

       Francis Belcher testified that she met the defendant when she worked as a caseworker at the
Salvation Army in Bristol, Tennessee. She interacted with him on a daily basis and found that he
was “very conscientious about doing what he needed to do.” She stated that, in her opinion, the
defendant was trying to live a law-abiding life and was a favorable candidate for probation. She said



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that she no longer worked at the Salvation Army but would be available if the defendant needed
assistance or supervision.

       Pastor Darrell Bewley of the Bristol, Tennessee Shelby Street Church of God testified that
the defendant began attending his church in 2004. He said he had many conversations with the
defendant and found him to be very conscientious. Pastor Bewley stated that he believed the
defendant was attempting to live a good, law-abiding life and would be a good candidate for
probation. He said he would be available to help and guide the defendant.

       At the conclusion of the hearing, the trial court denied alternative sentencing, stating:

                The Defendant in this case was originally convicted in the Commonwealth
       of Virginia for numerous offenses which are set out in the presentence report in some
       detail, including the manner in which some or all of them occurred.

              The Defendant received a total sentence of 45 years. He went to the state
       penitentiary, served 25 years, then he was paroled out of the Virginia Department of
       Corrections. At some point he did come to Tennessee and was registered as a sexual
       offender and reported to the Bristol Tennessee Police Department. . . .

               . . . [The Defendant] later determined to leave Tennessee and return to
       Virginia. Then this is where he got into difficulty, in that when he returned to attend
       school at a business college he did not report to the Tennessee authorities that he was
       going to school in the state of Tennessee, notwithstanding that he had filed a – that
       one of the exhibits at the original trial in this case was that he was instructed to
       reregister or register if he became a student in the state of Tennessee.

              ....

               But a sidelight to that is that previously when – and again in the presentence
       report his prior – some of his prior offenses are described in some detail. And there
       seems to be a pattern that he had – one of the offenses occurred actually inside
       Patrick Henry High School at Washington County, Virginia. This school’s on
       Hillman Highway approximately one mile from Emory and Henry College, an
       educational area.

               On another offense he was convicted of . . . sex offense [sic] involving a
       Virginia Intermont Student. Virginia Intermont’s located in Bristol, Virginia. And
       also that when he picked the – or ever how he approached the victim she was walking
       near Virginia High School which is – although not close to Virginia Intermont
       College, it’s certainly within walking distance without a great deal of strain to
       Virginia High School.



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         In this case the Defendant returned to the state of Tennessee, ostensibly to
attend college, and did not report. . . . And I’m just pointing out the coincidence that,
of all things, he’s coming to Tennessee as to attend college, but in these other events
he’s been involved in involved – at least two of them involved getting around
educational institutions, either colleges or high schools.

        ....

         The Defendant has expressed sorrow that he didn’t report. Indicated he had
every intent to report that he was attending school. Basically the strategy during the
trial before the jury was the Defendant was not informed orally, at least, to – by his
probation officer in Virginia, Mr. Todd, of the need to register. Notwithstanding that
allegation, the State did put forward – I think all parties agreed he did sign a paper
indicating if he attended college – although the paper itself’s not been introduced,
that if he attended college or school in the state of Tennessee he needed to register.
He says he didn’t even think about it when he signed it, or didn’t read it. I don’t
know which.

        In any case, the Defendant – his probation officer has testified for the
Defendant that he did well except for this event. His – a counselor describing herself
as a social worker at the Salvation Army where he lived a period of time has
indicated he showed remorse or at least an intent to better himself and get his prior
criminal record behind him. His preacher, Rev. Bewley, testified on his behalf.

         Nonetheless, the Defendant had not been released from prison that long. He
still had 20 years to serve on his sentence. The Virginia authorities evidently have
a warrant outstanding for parole violation as a result of the jury conviction in this
case.

        Considering the Defendant’s prior record which is not only a serious record
in terms of length, it is also a serious record in terms of violence which the Defendant
fully admits. And probably one of the greatest violence [sic] that can be inflicted in
that regard.

        The Court’s of the opinion that, although he has worked since being released,
he has other things in his past, including a court martial for being drunk on duty or
drinking while on duty might be a better word as set out in the report. He – he’s just
going to have to serve his sentence. I’m going to deny probation, alternative
sentencing in all forms and kinds, including the potentiality of residential community
corrections. Just don’t think it would benefit the Defendant or the community . . .
our community.




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                                             ANALYSIS

        The defendant argues that the trial court erred in denying him alternative sentencing. He
asserts that the trial court did not properly evaluate his susceptibility to rehabilitation or treatment
and placed improper weight on his prior criminal record. The State responds that the trial court’s
determination that the defendant serve his sentence in confinement is correct.

        When an accused 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) (2006). 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 presumption does not apply to the legal
conclusions reached by the trial court in sentencing the accused or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311
(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v.
Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the
trial court’s determination of controverted facts as the trial court’s determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous. If our review reflects that the trial court, following the
statutory sentencing procedure, imposed a lawful sentence, after having given due consideration and
proper weight to the factors and principles set out under the sentencing law and made findings of fact
that are adequately supported by the record, then we may not modify the sentence even if we would
have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed upon the defendant is ten years or less. Tenn. Code Ann. § 40-35-303(a) (2006). Even if
eligible, however, the defendant is not automatically entitled to probation as a matter of law. See
id. § 40-35-303(b). The burden is on the appellant to show the denial of probation was improper.
See State v. Summers, 159 S.W.3d 586, 599-600 (Tenn. Crim. App. 2004) (citing Ashby, 823


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S.W.2d at 169); see also State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997) (stating that
“[a] criminal defendant seeking full probation bears the burden on appeal of showing the sentence
actually imposed is improper, and that full probation will be in both the best interest of the defendant
and the public”).

        There is no bright line rule for determining when a defendant should be granted probation.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding the
offense, the defendant's criminal record, the defendant's social history and present condition, the need
for deterrence, and the best interest of the defendant and the public. State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997). Another appropriate factor for a trial court to consider in
determining whether to grant probation is a defendant's credibility or lack thereof, as this reflects on
the defendant's potential for rehabilitation. Id.

       Sentences involving confinement should be based on 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[.]

Tenn. Code Ann. § 40-35-103(1) (2006).

        In sentencing the defendant, the trial court applied two enhancement factors: (1) the
defendant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range; and (2) the defendant was released on parole when the
offense was committed. See Tenn. Code Ann. § 40-35-114(1), (13)(B) (2006). The court found as
mitigating factors that the defendant’s criminal conduct neither caused nor threatened serious bodily
injury; substantial grounds exist tending to excuse or justify the conduct, though failing to establish
a defense; and that the defendant, although guilty of the crime, committed the offense under such
unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the
criminal conduct. See id. § 40-35-113(1), (3), (11). The court weighed the enhancement and
mitigating factors, according slight weight to the latter two mitigating factors, and sentenced the
defendant to three years in the Department of Correction.

        We note initially that the defendant was sentenced as a Range II, multiple offender and was
therefore ineligible for the statutory presumption favoring alternative sentencing. See Tenn. Code


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Ann. § 40-35-102(6)(A) (2006). Furthermore, the defendant was ineligible for probation or
alternative sentencing until he served ninety days in confinement, the minimum sentence for first
offense failure to timely register. See id. § 40-39-208(b), (c).1

         The defendant argues that the judgment of the trial court should be reversed because the
record does not reflect that the court considered the defendant’s amenability to rehabilitation or
treatment. He contends that “the record in this case demonstrated that the [defendant] was benefiting
[sic] not only himself but also society by his efforts to become a productive law abiding citizen.”
We disagree that the trial court failed to consider the defendant’s potential for rehabilitation and
treatment. Although the court did not explicitly address this particular factor, the record reflects that
the court evaluated the testimony of the defendant, his probation officer, his Salvation Army
caseworker, and his pastor, as well as the defendant’s prior criminal record, in determining that
alternative sentencing was inappropriate. The court accorded weight to three mitigating factors
proposed by defense counsel and declined to use several minor misdemeanor convictions to enhance
the defendant’s sentence. However, the court also noted that the incidents leading to two of the
defendant’s prior sexual offense convictions took place near educational institutions and that his
current conviction was for failing to timely report that he had begun attending an educational
institution. Our review of the sentencing hearing transcript reveals that the trial court properly
considered the defendant’s amenability to rehabilitation and treatment.

        The defendant also asserts that he “would not denigrate the serious nature of his criminal
record, but would submit that the [trial court] improperly weighed this factor considering that most
of the offenses occurred fairly close in time and that all these convictions are quite remote given his
twenty-five years incarceration since they were entered.” He contends that he “does not have a long
history of criminal conduct” and that the remoteness of his convictions limits their probative value.

         The defendant’s prior criminal record includes convictions for sodomy, rape, use of a firearm
in the commission of a rape, first degree criminal sexual conduct, abduction, and assault and battery.
From the evidence presented at the sentencing hearing, the trial court could have found that
confinement was necessary to protect society given the defendant’s long history of criminal conduct.
See Tenn. Code Ann. § 40-35-103(1)(A). The defendant has not carried his burden of showing that
the trial court’s denial of alternative sentencing was erroneous and is not entitled to relief.




         1
           Tennessee Code Annotated section 40-39-208 was amended effective August 1, 2005, to require a period of
mandatory confinement before alternative sentencing may be imposed. 2005 Tenn. Pub. Acts ch. 316, § 4. The
defendant was indicted for failing to register as a sexual offender from June 6, 2005 to August 9, 2005. Failure to timely
register as a sexual offender is a continuing offense. State v. Flatt, 227 S.W .3d 615, 621 (Tenn. Crim. App. 2006).
Because the continuing offense was ongoing when the amendment to section 40-39-208 took effect, the defendant was
subject to punishment under the amended act. See Agee v. State, 111 S.W .3d 571, 576-77 (Tenn. Crim. App. 2003)
(continuing offenses, such as conspiracy, which continue beyond the effective date of an amending law may be punished
under the amended law).

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                                      CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.


                                                   ___________________________________
                                                   ALAN E. GLENN, JUDGE




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