                                                                                     01/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                       Assigned on Briefs November 14, 2017

               STATE OF TENNESSEE v. JOSEPH D. SEXTON

                Appeal from the Circuit Court for Robertson County
              No. 74CC4-2016-CR-194 William R. Goodman III, Judge
                     ___________________________________

                           No. M2017-00735-CCA-R3-CD
                       ___________________________________


The Defendant, Joseph D. Sexton, entered an open guilty plea to one count of attempted
aggravated sexual battery. The trial court held a sentencing hearing and sentenced the
Defendant to five years of incarceration. The Defendant appeals, arguing that the trial
court erred in calculating the length of the sentence based on the enhancing and
mitigating factors presented and that the trial court erred in denying alternative
sentencing. After a thorough review of the record, we determine that there was no abuse
of discretion, and we affirm the trial court’s judgment.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

H. Garth Click, Springfield, Tennessee, for the appellant, Joseph Daniel Sexton.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; John W. Carney, District Attorney General; and Jason White, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

      The Defendant was charged with three counts of aggravated sexual battery for
crimes committed against his eleven-year-old daughter. The State entered into a plea
agreement with the Defendant in which the State agreed to dismiss two of the counts in
exchange for the Defendant’s guilty plea to one count of the lesser included offense of
attempted aggravated sexual battery. The parties agreed that the sentence would be
determined by the trial court and that the Defendant should be sentenced as a standard,
Range I offender, with a release eligibility of thirty percent.

       At the hearing on the guilty plea, the prosecutor recited the factual basis of the
plea: that the Defendant had touched the victim’s vaginal area while she was under
thirteen years of age. He asserted that the Defendant had acknowledged his crime to the
victim’s mother. The Defendant agreed that he was guilty of the crime.

       At the sentencing hearing, the victim testified to the details of the crime. The
Defendant and his wife adopted the victim and her older brother when the victim was
three years old, and the victim knew them as her parents. When the victim was eleven,
she woke up in the middle of the night and became aware that the Defendant had undone
her bra and was touching her breasts. The Defendant then began to touch her vaginal
area, and she “prayed and … told him to stop.”

        The victim testified that her brother found out about the abuse and was very angry
with the Defendant. The victim’s brother began to sleep next to her bed every night in an
effort to protect her. One day, the victim came home from school to discover that the
Defendant had sent her brother away to live with the children’s biological aunt, who had
remained in frequent contact with them despite the adoption.

       About a year after the events that were the basis of the guilty plea, the victim’s
mother sent her to work with the Defendant, who was a handyman, as a punishment. The
Defendant “asked [her] to do something,” and she refused. The Defendant confessed this
incident to his wife before the victim had a chance to tell her. Although the victim’s
mother thereby became aware of the sexual abuse, no action was taken.

       When the victim turned fifteen, she confided the abuse to a friend who ultimately
revealed it. The victim acknowledged the abuse when her school’s principal asked her
about it. At that time, the victim went to live with her brother and her biological aunt in
another state. The victim testified that after the abuse, she began to suffer from
obsessive-compulsive disorder and that she could no longer trust father figures. She no
longer had a good relationship with her mother because her mother had ignored the
abuse. The victim stated that she was testifying to “speak up” for others who were the
victims of abuse.

       The victim’s aunt testified that she did not know about the sexual abuse until
2015, when the victim came to live with her. She confirmed that the victim suffered from
obsessive-compulsive disorder and extreme anxiety after the abuse. She testified that the

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victim did not have anxiety “beyond what might be considered normal” prior to the
abuse.

        The Defendant testified that he currently lived in a trailer adjacent to his father’s
home. The Defendant’s father was eighty-eight years old and needed help with some
daily tasks, such as taking medication and bathing. The Defendant stated that there was
no one else to help his father except in an emergency. The Defendant told the court that
he was sorry he had caused the victim grief and that he hoped that she could learn not to
hate him “because that – it’s a bad thing.” He was enrolled in a class for sexual offenders
and had learned that he was not the victim. His wife had initiated divorce proceedings
against him. He acknowledged that he had adopted the victim and then attacked her
when she was eleven. He also acknowledged that his brother lived only a few miles from
his father’s home.

        While the Defendant’s argument at sentencing referred several times to the fact
that this was an isolated incident, we note that the record as a whole does not support that
contention. In asking the victim to describe the circumstances of the offense, the
prosecutor asked the victim to “talk about the main event.” The presentence report
indicates that the Defendant acknowledged to police that he had touched the victim
inappropriately on at least two occasions, in one of which he described giving her a back
massage and then touching her buttocks. The presentence report relays a synopsis of the
victim’s interview with police in which she noted that the Defendant began giving her
back massages and at one time pulled her pants down around the top of her thighs.
Furthermore, a psycho-sexual evaluation of the Defendant in the presentence report
contained a statement from the victim that the Defendant walked in on her showering and
tried to make her hug him prior to the incident for which he was convicted. She told the
Defendant on the day after the offense at issue that she would reveal the abuse if he
touched her again.

       Likewise, the Defendant asserted at sentencing that he was remorseful, but in his
statement in the presentence report, he denied touching the victim’s vagina and stated that
the punishment he anticipated receiving was “too harsh.” In her statement to the police,
the victim related that the Defendant blamed her for the abuse, telling her it was her fault
for wearing bikinis. The Defendant’s psycho-sexual evaluation also stated that he
admitted to having viewed pornography which depicted minors. The Defendant stated he
was traumatized when his father murdered his mother in front of him in 1974.

       The trial court noted that both the victim and the Defendant would be affected by
the Defendant’s actions for the rest of their lives. The trial court applied two
enhancement factors: that the crime was committed to gratify the Defendant’s desire for
pleasure or excitement and that he abused a position of public or private trust. T.C.A. §
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40-35-114(7), (14). The trial court found one mitigating factor, the Defendant’s
acknowledgment of guilt. T.C.A. § 40-35-113(13). The trial court determined that five
years was an appropriate sentence, noting that the Defendant had obtained the
termination of the parental rights of the victim’s biological parents and then ultimately
abused her. The trial court also denied alternative sentencing, finding that confinement
was necessary to avoid depreciating the seriousness of the offense and was particularly
suited to provide an effective deterrent to others. In making the finding, the trial court
noted that “[i]t was a very disturbing presentence report.” The Defendant appeals the
length and manner of service of his sentence.

                                        ANALYSIS

      On appeal, the Defendant asserts that the trial court started at the top of the
sentencing range and that it erred in balancing the enhancing and mitigating factors. The
Defendant also appears to assert that he was entitled to a presumption of probation.

                                    I. Sentence Length

        This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
that reflect a proper application of the purposes and principles of our Sentencing Act.”
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will uphold the sentence “so
long as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-
10. This court cannot reverse a sentence based on the trial court’s failure to adjust a
sentence in “light of applicable, but merely advisory, mitigating or enhancement factors.”
State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The trial court is “to be guided by —
but not bound by — any applicable enhancement or mitigating factors when adjusting the
length of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court’s misapplication
of an enhancement or mitigating factor does not invalidate the sentence imposed unless
the trial court wholly departed from the 1989 Act, as amended in 2005.” Id. A sentence
imposed by the trial court that is within the appropriate range should be upheld as long as
it is “consistent with the purposes and principles of sentencing, as provided by statute.”
Id. The appealing party bears the burden of proving that the sentence was improper.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining “the specific sentence and the appropriate combination of
sentencing alternatives,” the trial court must consider: (1) the evidence at the trial and the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal
conduct involved; (5) evidence and information offered by the parties on the applicable
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mitigating and enhancement factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant wishes to make in the defendant’s own behalf
about sentencing; and (8) the result of the validated risk and needs assessment conducted
by the department and contained in the presentence report. T.C.A. § 40-35-210(b).

       The argument in the Defendant’s brief regarding the length of the sentence is
merely a quarrel with the trial court’s weighing of the enhancement and mitigating
factors. However, under Bise, “mere disagreement with the trial court’s weighing of the
properly assigned enhancement and mitigating factors is no longer a ground for appeal.”
380 S.W.3d at 706. The trial court is free to choose a sentence within the proper range so
long as the trial court’s choice reflects an application of the purposes and principles of
sentencing set out by statute.

        Although not noted by either party, we observe that the trial court misapplied the
enhancement factor that the Defendant committed the crime to gratify the Defendant’s
desire for pleasure or excitement because this factor is an element of attempted
aggravated sexual battery. State v. Paul Neil Laurent, No. M2005-00289-CCA-R3-CD,
2006 WL 468700, at *11 (Tenn. Crim. App. Feb. 27, 2006). “By statute, an enhancement
factor must be appropriate for the offense and not an essential element of the offense.”
State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); see T.C.A. § 40-35-114. However,
the trial court also properly found as a separate enhancement factor that the Defendant
abused a position of trust. “[A] trial court’s misapplication of an enhancement or
mitigating factor does not invalidate the sentence imposed unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. In Bise, the
trial court misapplied the sole enhancement factor, but the appellate court nevertheless
upheld the length of the sentences because they were within the correct range and were in
keeping with the purposes and principles of sentencing. Id. at 708-09. Here, the trial
court found that the Defendant abused a position of trust when he terminated the parental
rights of the victim’s biological parents and then subsequently sexually abused her. The
Defendant was eligible for a sentence of three to six years. T.C.A. § 39-12-101(a);
T.C.A. § 39-12-107(a); T.C.A. § 39-13-504(b); T.C.A. § 40-35-112(a)(3). The trial court
did not abuse its discretion in imposing a five-year sentence.

                               II. Alternative Sentencing

      The Defendant next objects that he was denied alternative sentencing. Like
determinations regarding sentence length, the grant or denial of alternative sentencing is
reviewed for an abuse of discretion accompanied by a presumption of reasonableness
when the sentencing decision reflects the purposes and principles of sentencing. State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). The defendant bears the burden of
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establishing suitability for probation and that probation will serve the ends of justice and
the best interest of the public and the defendant. T.C.A. § 40-35-303(b); State v. Carter,
254 S.W.3d 335, 347 (Tenn. 2008).

        A defendant sentenced to less than ten years is eligible for probation unless the
offense is excluded by statute. T.C.A. § 40-35-303(a). A standard offender convicted of
a Class C felony, such as the Defendant in this case, is considered a favorable candidate
for alternative sentencing in the absence of evidence to the contrary. T.C.A. § 40-35-
102(6)(A). The court “shall consider, but is not bound by” this guideline. Id. § 40-35-
102(6)(D).

      In determining whether incarceration is an appropriate sentence, the trial court
should consider whether:

       (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.

T.C.A. § 40-35-103(1).

       In State v. Sihapanya, the trial court based its denial of alternative sentencing on
“combin[ing] the need to avoid depreciating the seriousness of the offense with the need
for deterrence and the nature and circumstances of the offense.” 516 S.W.3d 473, 476
(Tenn. 2014) (order, per curiam). The Tennessee Supreme Court accordingly did not
apply the heightened standard of review used when a trial court denies probation solely
on the need for deterrence or solely on the need to avoid depreciating the seriousness of
the offense. Id.; see State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006) (“If the
seriousness of the offense forms the basis for the denial of alternative sentencing,
Tennessee courts have held that the circumstances of the offense as committed must be
especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an
excessive or exaggerated degree, and the nature of the offense must outweigh all factors
favoring a sentence other than confinement.” (Quotations omitted)). Here, the trial court
stated that it was basing its decision on the fact that “confinement is necessary to avoid
depreciating the seriousness of the offense or confinement is particularly suited to
provide an effective deterrence to others.” The trial court also referenced the nature and
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circumstances of the offense. As in Sihapanya, these factors are supported by the record.
See Sihapanya, 516 S.W.3d 473, 476.

        In considering sentencing alternatives, the trial court must consider the evidence at
the sentencing hearing, the presentence report, and the nature of the criminal conduct.
T.C.A. § 40-35-210(b). While the Defendant pled guilty to the reduced charge of
attempted aggravated sexual battery, the evidence in the record, which the trial court
described as “very disturbing,” supports the conclusion that the Defendant committed
more than one completed aggravated sexual battery on his adopted daughter while she
was under thirteen years old. The Defendant obtained custody of the victim, removing
her from the guardianship of others who could have protected her from him. While the
trial court’s decision appears to be based on more than one ground, the trial court’s
finding that the presentence report was “very disturbing” supports the conclusion that it
found that the crime to be especially shocking, reprehensible, offensive, and of an
exaggerated degree. Trotter, 201 S.W.3d at 654. Considering that the conviction offense
was attempted aggravated sexual battery, the record supports this conclusion. The trial
court did not abuse its discretion in denying probation.

                                     CONCLUSION

        Because we determine that the trial court did not abuse its discretion, the judgment
is affirmed.



                                                   ________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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