            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                Assigned on Briefs April 19, 2016


                   STATE OF TENNESSEE v. MICHAEL BROWN

                    Appeal from the Circuit Court for Marshall County
                      No. 14CR107      Forest A. Durard, Jr., Judge




                    No. M2015-02139-CCA-R3-CD – Filed July 13, 2016
                             _____________________________

The defendant, Michael Brown, appeals the trial court‟s decision to require him to serve
sixty days in confinement for his conviction for sexual contact with an inmate, a Class E
felony. After a thorough review of the record, we conclude that the trial court did not
abuse its discretion in sentencing, and we affirm the judgment of the trial court.

   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 ROBERT W. WEDEMEYER, JJ., joined.

Donna L. Hargrove, District Public Defender; and William J. Harold and Michael
Collins, Assistant District Public Defenders, for the Appellant, Michael Wade Brown.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Robert Carter, District Attorney General; and Drew Wright, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                               OPINION

                         FACTUAL AND PROCEDURAL HISTORY

       The defendant was charged with misconduct after he had sexual contact with the
victim, C.M.,1 while he was on duty as a correctional officer and she was an inmate in his

        1
           It is the policy of this court to refer to victims of sexual assault by their initials in order to
protect the victim‟s privacy.
custody. The defendant was originally charged with one count of sexual contact with an
inmate by a correctional employee. A superseding indictment, however, charged the
defendant with three counts of rape in addition to one count of sexual contact with an
inmate by a correctional employee. On October 7, 2015, the defendant entered an open
guilty plea to one count of sexual contact with an inmate by a correctional employee, and
the other charges were dismissed.

        At the plea hearing, the prosecution summarized the basis for the plea. The
defendant worked for the Giles County Sheriff‟s Department and was acting as a jailer
with the county jail. On October 23, 2013, he was assigned to pick up the victim from
the Middle Tennessee Mental Health Institute. The prosecution noted that a video
showed the defendant putting the victim, who appeared to be “not handcuffed at that time
or not handcuffed according to the Giles County policy anyway,” into the front seat of the
patrol vehicle. The defendant got off the interstate in Marshall County and pulled into
the back of an abandoned gas station. The defendant then gave the victim some food and
drink. The prosecution specified the offense as oral sex and “touchings.” The prosecutor
noted that the State also possessed video evidence of the two arriving at the Giles County
jail, as well as lab reports and “proof of the result of the … sexual act.” The State also
intended to rely on the victim‟s testimony as well as statements made by the defendant to
law enforcement. The defendant acknowledged that this recitation of facts was “close”
and agreed that the State could prove the elements that would constitute the offense. The
trial court accepted the defendant‟s plea.

        At the sentencing hearing, the State introduced further evidence regarding the
circumstances of the offense. Chief Deputy Bob Johnson, who investigated the crime,
testified that the defendant‟s statement in the presentence report did not match the
statement he gave investigators after the crime. Chief Deputy Johnson testified that the
defendant had told law enforcement that the victim was exposing her breasts to him while
he drove and “he may or may not have touched them.” He told police that he pulled off
at the abandoned gas station and that, as he took her from the front seat to the back seat,
he exposed his penis to her. He told investigators that “he didn‟t think she had ever put it
in her mouth but that her lips may have touched it and he thought that maybe she had spit
on it but that it was in her hand.” He also stated that he did not ejaculate and was unable
to have an erection without medication. Chief Deputy Johnson testified that the video
from the Giles County Jail showed the victim arriving in the back seat of the patrol
vehicle.

       In the presentence report, the defendant stated that he picked up the victim, and
because she appeared sick, he handcuffed her hands in front and allowed her to ride in the
front seat. He stated that she was exposing herself as he drove and that he repeatedly
pulled over and told her to stop. He acknowledged that he eventually touched her breast.
                                             2
He stated that when he stopped at the abandoned gas station, he merely transferred her to
the back seat and “[t]here was no oral sex.” The police report annexed to the presentence
report summarized the victim‟s written statement, in which she stated that as she was
riding handcuffed in the front seat, the defendant pulled off at an abandoned gas station
and moved her to the back seat of the vehicle. He then instructed her to give him oral
sex, and he ejaculated on her clothing. The victim stated that the defendant touched her
breasts afterward and digitally penetrated her. She stated that afterwards, he told her he
would give her pills in exchange for her silence. The victim completed a victim impact
statement in which she stated she suffered from increased post-traumatic stress disorder,
increased anxiety, inability to sleep, and difficulty with personal relationships as a result
of the crime.

       The defendant had no prior record and had a long history of military service,
receiving an honorable discharge.

        After considering enhancing and mitigating factors, the trial court found no
enhancing factors and two mitigating factors (2) and (13) and imposed a two-year
sentence. It noted that the defendant was a favorable candidate for alternative sentencing.
The trial court found that although the defendant had no prior criminal history and
seemed unlikely to reoffend, the circumstances of the crime were reprehensible because
the victim was entirely within the defendant‟s control, handcuffed inside a patrol car,
during the transfer to the Giles County Jail. The trial court also found that the
defendant‟s potential for rehabilitation was negatively impacted by the lack of candor in
his statements. The trial court declined to base sentencing on the deterrent effect of the
sentence because the crime was unusual within the county. The trial court ultimately
concluded that it would order the defendant to serve sixty days in confinement and to
serve the remainder of the sentence on probation. The defendant appeals, challenging
only the trial court‟s decision to deny probation in full.


                                       ANALYSIS

        A trial court‟s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences that reflect a
proper application of the purposes and principles of sentencing. 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. Even if the
trial court “recognizes and enunciates several applicable mitigating factors, it does not
abuse its discretion if it does not reduce the sentence from the maximum on the basis of
those factors.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). This court also
                                             3
reviews the denial of an alternative sentence which falls within the appropriate range and
reflects that the decision was based on the purposes and principles of sentencing under an
abuse of discretion standard, accompanied by a presumption of reasonableness. State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       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
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; and (7) any statement the defendant wishes to make in the defendant‟s own
behalf about sentencing. T.C.A. § 40-35-210(b) (2010).

      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). “The sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed,” and “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed.”
T.C.A. § 40-35-103(4), (5).

       In the absence of evidence to the contrary and excluding defendants committing
the most severe offenses and possessing criminal histories evincing a clear disregard for
the laws and morals of society or evincing failure of past efforts at rehabilitation, a
standard offender convicted of a Class E felony should be considered as a favorable
                                              4
candidate for alternative sentencing options. T.C.A. § 40-35-102(5), (6)(A). The statute
states that the court “shall consider, but is not bound by” this guideline. T.C.A. § 40-35-
102(6)(D).

        The party appealing the sentence has the burden of demonstrating its impropriety.
T.C.A. § 40-35-401, Sentencing Comm‟n Cmt. Likewise, the defendant bears the burden
of establishing that he or she is a suitable candidate for probation. T.C.A. § 40-35-
303(b). “This burden includes demonstrating that probation will „subserve the ends of
justice and the best interest of both the public and the defendant.‟” Carter, 254 S.W.3d
at 347 (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). In
basing the denial of alternative sentencing on avoiding depreciating the seriousness of the
offense, this court has stated that the trial court must find that the offenses were
“especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an
excessive or exaggerated degree.” State v. Bottoms, 87 S.W.3d 95, 103 (Tenn. Crim. App.
2001) (quoting State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).

        Here, the trial court properly considered the principles and purposes of sentencing
and articulated mitigating and enhancing factors on the record. The trial court considered
the defendant‟s potential for rehabilitation, finding that his lack of criminal history
indicated that he was unlikely to reoffend but also finding that his changing story about
the events and his lack of candor might have a negative impact on his potential for
rehabilitation. The trial court chose to order confinement to avoid depreciating the
seriousness of the crime. In doing so, the trial court made the requisite findings under
Bottoms, concluding that the offense was especially reprehensible, as the victim was
isolated by the defendant from any possible sources of help and was handcuffed during
the crime. We note that the defendant was also initially charged with rape after the
victim alleged that he forced her to engage in nonconsensual oral sex. We conclude that
the trial court did not abuse its discretion in ordering confinement.

                                    CONCLUSION

      Based on the foregoing, the judgment of the trial court is affirmed.



                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




                                            5
