           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                          FILED
                                                         September 25, 1997
                                  AT KNOXVILLE

                             SEPTEMBER 1995 SESSION      Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk




STATE OF TENNESSEE,                   )
                                      )
      Appellee,                       )    NO. 03C01-9502-CR-00037
                                      )
                                      )    BLOUNT COUNTY
V.                                    )    NO. C-8150
                                      )
                                      )    HON. D. KELLY THOMAS, JUDGE
ROBERT L. MILLER,                     )
                                      )    (incest, one count)
                                      )
      Defendant/Appellant.            )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Kevin Shepherd                             Charles W. Burson
404 Ellis Avenue                           Attorney General and Reporter
Maryville, Tennessee 37801
                                           Lisa A. Yacuzzo
Robert C. Edwards                          Assistant Attorney General
707 Market Street                          404 James Robertson Parkway
Knoxville, Tennessee 37902                 Nashville, Tennessee 37243

                                           Mike Flynn
                                           District Attorney General
                                           Blount County Courthouse
                                           Maryville, Tennessee 37801



OPINION FILED: _______________



Affirmed



Lee Russell, Special Judge




                                    OPINION
       This case is an appeal as a matter of right by Robert L. Miller (“Appellant”), who

was convicted of one count of incest in violation of Tennessee Code Annotated § 39-15-

302. The Appellant appeals from the judgment of the Hon. D. Kelly Thomas, Jr., Judge

of the Circuit Court of Blount County, Tennessee, who denied the Appellant’s application

for probation and imposed a sentence of five years in the local jail with work release. The

Appellant challenges both the denial of probation and the length of the sentence given.

We affirm the trial judge’s denial of probation and the imposition of the five year

sentence.


       On January 31, 1994, the Blount County Grand Jury indicted the Appellant on a

single count of incest. The indictment alleged that the Appellant sexually penetrated his

daughter, Amanda J. Miller, in May of 1993. The Appellant waived his right to a trial by

jury and entered a plea of guilty on August 2, 1994. A sentencing hearing was conducted

on September 27, 1994, at which the State presented no live witnesses but rather relied

upon the Presentence Report. The Appellant also offered no live testimony but relied

upon the Presentence Report and on a letter from a Bill Tillery, a licensed clinical social

worker.   The report of a Dr. Abraham Brietstein, Ph.D., with Clinical and School

Associates, was part of the Presentence Report.


       The trial judge found two enhancing factors that he said would cause the sentence

to be increased from the minimum sentence of three years up to six years. These

enhancing factors were the fact that the victim was particularly vulnerable due to her age

and that the Appellant abused a position of trust that significantly facilitated the

commission or fulfillment of the offense. The trial court also found as a sentencing

consideration under Tennessee Code Annotated § 40-35-103(1)(B) that incarceration

was necessary to avoid depreciating the seriousness of the offense and that confinement

was particularly suited to provide an effective deterrence to others likely to commit similar

offenses. The trial judge found two mitigating factors present which caused him to

reduce the sentence from six years back down to five years, which is the sentence that

was ultimately imposed. The judge allowed the sentence to be served in the local jail and


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granted the Appellant work release contingent on his ability to find employment.


      The Appellant argues that the two enhancing factors applied by the trial court

should not have been applied because they were not supported by the evidence and

because they are elements of the offense of incest. The Appellant argues that the trial

judge treated the two mitigating factors present here as only one, when they should have

been treated as two, specifically, cooperation in the investigation under Tennessee Code

Annotated § 40-35-113(9) and voluntary participation in counseling under Tennessee

Code Annotated § 40-35-113(13). The Appellant argues that the trial judge improperly

relied upon the nature of the offense itself in refusing to grant probation. Finally, the

Appellant argues that Tennessee Code Annotated § 40-35-102(6) and § 40-35-303(a)

create a presumption in favor of probation which was not overcome at the sentencing

hearing.


      The standard of review of the denial of probation and of the length of the sentence

given in this case is set out in Tennessee Code Annotated § 40-35-401(d) as being a de

novo review on the record with a presumption that the determinations made by the court

from which the appeal was taken are correct. The requirement that the appellate court

presume the correctness of the determinations made by the trial court is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances. See State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In conducting this de novo review of a sentence, the appellate

court must consider any evidence received at the sentencing hearing, the presentence

report, the principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the nature and characteristics of the offense, any mitigating and enhancing

factors, any statements made by the defendant in his own behalf, and the defendant’s

potential or lack of potential for rehabilitation or treatment, the factors set out in

Tennessee Code Annotated § 40-35-210(b) for the trial judge to consider in setting the

specific sentence and the appropriate sentencing alternatives. See Ashby; State v.

Thomas, 755 S.W.2d 833 (Tenn. Crim. App. 1988).


                                           3
       Incest is a class C felony and carries a sentence of three to six years. The trial

judge properly began his determination of the Appellant’s sentence with the lowest figure

in the range, three years. Tennessee Code Annotated §40-35-210(c). The trial court

then found two enhancing factors to raise the sentence tentatively to six years.

Appellant’s challenge to the application of these enhancing factors and his objection to

the sentence of five years is entirely contrary to the position taken by his counsel at the

sentencing hearing. Defense counsel told the trial judge at the sentencing hearing, “[T]o

start with the enhancing and mitigating factors, I agree with [District Attorney] General

Flynn that the two factors that he cited today would apply in this case.” The two factors

cited by General Flynn were the same two enhancing factors ultimately applied by the

trial judge. The Appellant’s counsel conceded at the sentencing hearing that “the court

can set the sentence above the minimum range and would be justified under the law in

doing so. . . .” The Appellant’s counsel at the sentencing hearing even went so far as

to suggest a sentence “somewhere in the four-to-five year range,” where the trial judge

ultimately set the sentence.


       The Appellant now cites the case of State v. Adams, 864 S.W.2d 31 (Tenn. 1993),

for the proposition that age alone is not a sufficient basis for enhancement absent proof

of actual natural physical and mental limitations of the victim. This enhancing factor can

be used only if the victim, because of his or her age or physical or mental condition, was

in fact “particularly vulnerable,” that is, incapable of resisting, summoning help, or

testifying against the perpetrator. Id. at 35. The State bears the burden of proving the

victim’s limitations rendering him or her particularly vulnerable. Id. The Supreme Court

in Adams held that the record would not support the conclusion that the victims were

particularly vulnerable, in spite of the fact that the victims were only four, five, and twelve

years of age. This court has applied Adams to hold that the mere proof that a victim is

twelve is insufficient to support application of the vulnerability enhancement factor. See

State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).


       The record from the Appellant’s sentencing hearing is devoid of any evidence of

                                              4
the victim’s mental or physical attributes. However, the large physical size of the

Appellant, that he is six feet one inch tall and weighs 265 pounds, is in evidence. Also

in evidence is the fact that the Appellant was thirty-three years of age when the incest

was committed, as compared with the victim, who was only twelve at the time. This court

has held that evidence of age alone, without proof of the specifics of the victim’s physical

and mental limitations, is sufficient to sustain application of the vulnerability enhancement

factor where the perpetrator is relatively much older. See State v. Beachboard, No.

03C01-9302-CR-00041, 1993 Ct. Crim. App. LEXIS 629 (victim was fifteen and

perpetrator was thirty-four). In the case sub judice, the perpetrator was not only years

older but was also of very large size and was quite intoxicated at the time of the incident,

supporting the trial court’s conclusion that the victim was vulnerable in relation to the

Appellant.


       The Appellant’s argument that vulnerability is a necessary element of incest and

therefore cannot be considered as an enhancing factor under the terms of Tennessee

Code Annotated § 40-35-114(4) is likewise without merit. The incest statute makes no

reference to the age of the victim or to the physical or mental vulnerability of the victim

or to the relative physical or mental strength or relative ages of the victim and the

perpetrator. This court has expressly held that vulnerability due to age is not an element

of the crime of incest. State v. Pruitt, No. 10C01-9304-CR-000123, 1994 Tenn. Crim.

App. LEXIS 198 at p. 7.


       The second enhancing factor applied was the assertion that the Appellant abused

a position of private trust in a manner that significantly facilitated the commission of the

offense. The record supports the application of this factor. The Appellant is the

biological and legal father of the victim. The Appellant lived in the same household with

the child and had authority over her. The exercise of that authority allowed him to be with

her alone, which allowed the abuse to occur. The Appellant argues that the position of

trust cannot be used as an enhancing factor under Tennessee Code Annotated § 40-35-

114(15) in an incest case because the existence of the trust is an essential element of


                                             5
the crime. This court has held that the existence of a position of trust is not an essential

element of the crime of incest because Tennessee Code Annotated § 39-15-302

prohibits sexual penetration among a wide range of relations, including a parent and

child. Pruitt at 7.


       The record does not support the claim that the trial judge failed to consider the

Appellant’s cooperation in the investigation of the crime and his voluntary participation

in counseling as separate mitigating factors. Examination of the record reveals that the

trial judge did consider both of these mitigating factors separately, and the record reveals

that neither the Appellant’s cooperation in the investigation nor his participation in

counseling was total or entirely voluntary. The trial judge expressly stated on the record

as follows: “The mitigating factors that the court finds to be appropriate are the ones

listed in the presentence report involving the cooperation of the Defendant and the fact

that he has also engaged in counseling.” [emphasis added] The Presentence Report

reads as follows as to mitigating factors:


       Mitigating factors:

       The following mitigating factors were filed by the defense:

       1.    The Defendant cooperated with investigating authorities to the fullest
             extent possible in regard to the offense.

       2. The Defendant voluntarily engaged in counseling to address the
       circumstances for this offense and has received a favorable report from
       the counselor.

It is apparent that the trial judge took both of these mitigating factors into account.


       The Defendant’s cooperation was less than complete in that he never admitted

recalling any details of what he did to his daughter. In the preparation of the Presentence

Report, he is quoted as initially reporting concerning the incident, “I have no version or

reason.” He then denied recalling the incident and explained that he had a “borderline

multiple personality” disorder. Dr. Brietstein’s report states that the Appellant claimed

that he could not recall the incident because he was too intoxicated to recall the details.

Dr. Brietstein concludes that “his explanation is unlikely to be true, it being much more


                                             6
likely that he remembers more than he is willing to tell. “ The trial judge noted that the

Appellant “says he thinks his daughter is telling the truth, but he won’t take enough of

the responsibility to acknowledge that he knows what he did and was aware of it while

he did it.”


       The Appellant’s cooperation in counseling was likewise less than complete and

voluntary. He did participate in counseling before he was ever indicted, and he did

participate in both group counseling and family counseling with his wife and daughter.

However, the counseling did not begin until after the accusations of sexual abuse had

been made. Dr. Brietstein reports that the Appellant “was referred subsequent to

allegations by his daughter that he had sexually abused her.” Mr. Tillery’s report

indicates that he saw the Appellant on a referral from a Maryville Police Department

detective, suggesting that counseling followed an investigation of the incident, making it

less voluntary than it would have been had it been sought prior to commencement of an

investigation.


       More importantly, even at the time of the sentencing hearing, the Appellant had

not sought or participated in an alcohol treatment program of any kind, in spite of the fact

that severe intoxication was one explanation he gave for not recalling the details of the

incest. Dr. Brietstein’s report indicated that the Appellant “does appear likely to be an

alcoholic.” The doctor chronicled “quite a history of alcohol abuse” dating back to the

age of thirteen. By seventeen, the Appellant was drinking heavily, and for a period of a

year he drank a case of beer or a fifth of liquor each day. He admitted prior use of

cocaine, amphetamines, LSD (fifteen to seventeen times), and marijuana. The trial judge

complained about the failure of the Appellant to seek treatment for his substance abuse.

The trial judge correctly considered the mitigating and enhancing factors, and the weight

given to those factors is left to the trial judge, provided that he complies with the purposes

and principles of the Sentencing Reform Act of 1989 and provided his findings are

supported by the record. See State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App.

1995). The sentence is affirmed.


                                             7
       The final issue to be determined is whether the trial judge erred in failing to grant

the Appellant probation. A trial court must presume that a defendant sentenced to eight

years or less who is not an offender for whom incarceration is a priority is subject to

alternative sentencing. See State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App.

1993). It is further presumed that a sentence other than incarceration would result in

successful rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.

However, although a defendant may be presumed to be a favorable candidate for

alternative sentencing, the defendant has the burden of establishing suitability for full

probation under Tennessee Code Annotated § 40-35-303(b). See State v. Boggs, 932

S.W.2d 467, 477 (Tenn. Crim. App. 1996). Even though probation must automatically

be considered, the defendant is not automatically entitled to probation as a matter of law.

See State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991); see also Sentencing

Commission Comments to Tennessee Code Annotated § 40-35-303(b).


       The trial judge not only considered alternative sentencing but did in fact grant two

forms of alternative sentencing. Tennessee Code Annotated § 40-35-104(c) lists the

various sentencing alternatives available to a trial judge. Subsection (c)(5) of that

statute lists as a sentencing alternative a “sentence of continuous confinement in a

local jail or workhouse.”   The trial judge here used this alternative. Subsection (c)(6)



of the sentencing alternative statute lists work release as such an alternative. The trial

judge in the case here used this alternative also.


       This court has held that a trial judge has met the statutory presumption created

by Tennessee Code Annotated § 40-35-102(6) in favor of alternative sentencing if the

court selects one of the sentencing alternatives listed in Tennessee Code Annotated

§ 40-35-104. See State v. Allison, No. 03C01-9403-CR-00106, 1995 Tenn. Crim. App.

LEXIS 260. If one of these alternatives is applied, the argument then becomes whether

or not the correct alternative was selected. Id. The Allison court held that where the trial

court has selected a sentencing alternative listed in Tennessee Code Annotated § 40-35-

                                            8
104, the appellate court will not second-guess the sentencing decision of the trial court

as to the particular alternative chosen unless the record establishes compelling reasons

for doing so. The court in Allison, relying heavily on State v. Ashley, 823 S.W.2d 166

(Tenn. 1987), upheld a sentence of split confinement in a case in which the defendant

argued for full probation.


         The Appellant asserts that the trial judge did not consider probation and that he

denied probation entirely on the basis of the nature of the crime of incest. The nature of

the crime alone is not grounds to deny probation. See State v. Hartley, 818 S.W.2d 370,

374 (Tenn. Crim. App. 1991) (fact that substance involved was cocaine did not in and of

itself justify denying probation). However, the trial court in the case sub judice did not

base his denial only on the nature of the crime of incest. He cited a number of other

considerations and expressly found that confinement was necessary to avoid

depreciating the seriousness of the offense, a sentencing principle found at Tennessee

Code Annotated § 40-35-103(1)(B). The trial court also considered the potential or lack

of potential for the rehabilitation or treatment of the Appellant and considered the

deterrent effect of the incarceration.




         The trial judge found that the Appellant was less than entirely candid about his

recollection of the incident and that he was less than straightforward in accepting

responsibility for his actions. A defendant’s truthfulness in providing information for his

sentencing hearing is probative of the defendant’s attitude toward society and probative

of his prospects for rehabilitation. See State v. Byrd, 861 S.W.2d 377 (Tenn. Crim. App.

1993). Dr. Brietstein’s report confirms the trial judge’s conclusion that the Appellant was

not truthful about his recollections of the incident. The Appellant continued to drink and

did not seek treatment for alcohol abuse, which was a major consideration by the trial

judge.     The evidence concerning the incident of incest and the evidence of the

Appellant’s history of alcohol and drug abuse support the trial judge’s conclusion that the

Appellant needed treatment. The failure to seek alcohol treatment and a defendant’s


                                             9
insistence on continuing to drink after committing a crime in which alcohol was involved

bear upon the defendant’s prospects for rehabilitation. See State v. Karnes, No. 01C01-

9606-CR-00249, 1997 Tenn. Crim. App. LEXIS 486.


       The trial court also noted that the Appellant could have been convicted of

aggravated rape under Tennessee Code Annotated § 39-13-502(a)(4) since the victim

of the crime was under the age of thirteen. Aggravated rape is a class A felony, and the

Appellant therefore could have received a sentence of fifteen to twenty-five years as a

Range I offender. A trial court is allowed to look behind the plea bargain and consider

the true nature of the offense committed in making sentencing determinations. See State

v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983).


       The alternative sentencing imposed in this case was proper, and the Appellant

failed to meet his burden of proof to establish that he was entitled to probation. The trial

judge properly sentenced the Appellant under the Sentencing Reform Act, and the length

of the sentence imposed was proper and was based on the factors to be considered

under that statutory scheme. The judgment below is affirmed.




                                           LEE RUSSELL, SPECIAL JUDGE




CONCUR:



____________________________
WILLIAM M. BARKER, JUDGE


____________________________
JOHN K. BYERS, SENIOR JUDGE




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