        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 10, 2010

             STATE OF TENNESSEE v. MICHELLE LEE RAINES

                 Appeal from the Criminal Court for Davidson County
                    No. 2008-C-3166    Cheryl Blackburn, Judge


              No. M2010-00692-CCA-R3-CD - Filed November 29, 2010


The defendant, Michelle Lee Raines, pleaded guilty to two counts of facilitation of rape of
a child, a Class B felony. Pursuant to the plea agreement, the trial court imposed an effective
sentence of ten years with the manner of service left to the discretion of the trial court.
Following a hearing, the trial court denied alternative sentencing and ordered the sentences
served in confinement. On appeal, the defendant contends that the trial court erred in
denying alternative sentencing. Discerning no error, we affirm the judgments of the trial
court.

            Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

J AMES C URWOOD W ITT , J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

Charles E. Walker, Nashville, Tennessee, for the appellant, Michelle Lee Raines.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              The Davidson County grand jury indicted the defendant and her husband on
four counts of facilitation of rape of a child, see T.C.A. §§ 39-11-403 and 39-13-502; two
counts of child neglect of a child less than six years of age, see id. § 39-15-401; two counts
of child neglect, see id. § 39-15-401; one count of accessory after the fact, see id. § 39-11-
411; and one count of failure to report known child sexual abuse, see id. § 37-1-615. The
offenses involved acts committed against four children, three of whom lived in their
household, by the defendant’s stepson, who was also a minor at the time of the offenses.
Pursuant to a negotiated plea agreement, the defendant pleaded guilty to two counts of
facilitation of rape of a child and received two concurrent sentences of ten years as a Range
I, standard offender.1 The remaining counts were dismissed, and the manner of service of
the effective 10-year sentence was left to the discretion of the trial court. The trial court
denied alternative sentencing and ordered the 10-year sentence to be served in confinement.
The defendant timely appealed these judgments.

               The stipulation of evidence presented by the State at the guilty plea submission
hearing showed that the defendant knew that her 14-year-old stepson, B.C.D., had been
previously accused of sexually abusing a family member.2 Based upon this accusation, the
defendant and her husband knew that B.C.D. “had some very, very serious issues.”
Nevertheless, the defendant and her husband allowed B.C.D. to reside with them and her four
children, J.D., B.D., D.D., and B.P., who were three years old, five years old, 12 years old,
and 14 years old, respectively, at the time of the offenses.

              Sometime in December 2007, five-year-old B.D., the defendant’s daughter,
accused B.C.D. of sexually abusing her. Regarding the December 2007 offense, 12 year-old
D.D., the defendant’s son, reported that he had heard B.D. screaming, that he knew that his
mother had responded to the screams, and, therefore, that his mother was aware of the sexual
abuse. D.D. also reported that B.C.D. had sexually abused him while living at the home.
The defendant and her husband asked B.C.D. to leave their home, and B.C.D. went to live
with his biological mother. B.C.D., however, returned to the home “several months later.”

              Not long after B.C.D.’s return to the home, three-year-old J.D. accused him of
sexually abusing her.3 This time, a Department of Children’s Services (DCS) investigation
followed. Through the investigation, 14 year-old B.P, the defendant’s son, also disclosed
that B.C.D. had sexually abused him. The defendant and her husband admitted to
investigators that they knew about the sexual abuse, that they removed B.C.D. from their
home because of the sexual abuse, and that they allowed B.C.D. to return to their home. The
defendant’s husband wanted B.C.D. to return to their home, and he believed “that he could
handle the situation.” Likewise, the defendant “believed that she was providing adequate
supervision of the children.”


        1
          Although indicted on facilitation of rape of a child with respect to each of the four victims, the
defendant pleaded guilty to counts two and four, which related to acts committed against J.D. and D.D.,
respectively.
        2
            It is the custom of this court to refer to victims of child sexual abuse by their initials.
        3
            It is unclear from the record whether J.D. resided with the defendant or was only visiting their
home.

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               Metropolitan Nashville Police Department Detective Jason Terry testified at
the sentencing hearing that he investigated the sexual abuse allegations made in the
defendant’s household. He recalled that three-year old J.D. reported that B.C.D. had
vaginally penetrated her with his penis. After her report, B.D., D.D., and B.P. all made
similar allegations. Seventeen-year-old B.W. was the only child living in the household who
did not report being abused by B.C.D.

              Detective Terry said that B.C.D. denied the allegations during their first
interview. During a second interview, however, B.C.D. admitted to “having sexual relations”
with all four victims. B.C.D. also told Detective Terry that the defendant was aware of
B.C.D.’s abuse of B.D. on the night that it occurred in December 2007.

              Detective Terry recalled that the defendant denied any knowledge of the abuse
prior to the March 2008 report by J.D. She did eventually admit that she was aware of the
abuse and “took no action” to protect the children. Detective Terry said that neither the
defendant nor her husband had any specific reactions when first told of the substance of the
allegations made by the children.

              Tiffany Washington, a DCS case manager, interviewed the four victims in
preparation for the juvenile court proceedings concerning their abuse. She said that D.D.
reported both oral and anal penetration committed by B.C.D. B.D. reported that B.C.D.
penetrated her digitally and that the defendant’s husband “walked in” on them in the
bathroom when it occurred. B.D. told Ms. Washington that B.C.D. “got into trouble” for
what he had done to her. Ms. Washington said that B.C.D. and B.P. got into an altercation
concerning the abuse and that B.C.D. struck B.P., causing him to have stitches, and
threatened him not to tell about the abuse.

               Ms. Washington said that the defendant told her that all of the children had
behavioral issues. The defendant also told her that “this wasn’t her first case dealing with
a sexual abuse allegation,” alluding to a previous incident when D.D. and B.P. were sexually
assaulted by their older sister at their father’s home. Ms. Washington said that the defendant
denied any prior knowledge of the sexual abuse and that she did not believe that the children
needed medical or mental health treatment. Ms. Washington recalled that the defendant’s
husband said “that [B.C.D.] was his son and he wanted to handle things himself within the
home.” B.C.D. was placed at Hermitage Hall where he received juvenile sexual offender
treatment.

              The defendant testified that, in retrospect, she should have asked more
questions when B.D. told her that it hurt when she went to the bathroom and when B.P.
reported that he was bleeding from his rectum. At the time, she dismissed her children’s

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complaints as related to either a urinary tract infection or hemorrhoids. She admitted that
“[l]ooking back I should have . . . asked more, if someone had been touching [them], but I
didn’t.” She said that she would never again allow B.C.D. into her home or around her
children. She denied that she knew of the abuse before the initiation of the March 2008
investigation, but she later admitted during her testimony that B.D. could have reported to
her but that she failed to act on her reports. She said that her husband never told her about
witnessing any incidents of abuse. She also said that she “always carefully supervised [her]
children.”

               At the conclusion of the defendant’s testimony, the trial court questioned her
briefly in the following manner:

              Okay. All right. I just want to make sure you understand that it
              makes no sense. I mean, you have your children telling people
              that they told you, you acknowledge that to the police
              department, and yet you didn’t do anything. And now you’re
              saying, well, I didn’t do anything because I didn’t know about
              it.

To which the defendant replied: “Yes, ma’am.” The defendant also admitted to the trial court
that she had failed to attend the recommended parenting classes, but she blamed her failure
to attend on the agency’s failure to provide childcare for D.D. and B.P. during the classes.
When confronted with the agency’s report that she told a representative that she did not have
time to attend parenting classes, the defendant admitted that she had “probably” made that
remark and explained, “[T]hat was when I had custody of all my children.” The trial court
also noted that the defendant’s psychosexual evaluation report stated that the defendant
“‘appears to be at a risk for placing her children in compromising and potentially dangerous
situations as she has a history of doing so in the past.’”

              The defendant’s father, Billy E. Raines, Sr., testified that he and his wife had
custody of the children following the completion of the juvenile court proceedings. He
admitted that his daughter “made some very, very, very bad decisions and she knows that.”
Nevertheless, he stated, “I don’t think she would be a bad risk for [probation].”

              The defendant’s husband and codefendant, Mark Randall Donnell, testified that
he and the defendant had one child together, B.D. He acknowledged that he raised B.C.D.
but that he was “probably not” his father. He reported using marijuana and cocaine in the
past. He denied prior knowledge of any incidents of abuse. He did not recall seeing B.C.D.
on top of B.D. in the bathroom. He did not recall B.D. complaining of having pain when
urinating. He denied a relative’s report to the juvenile court that he and the defendant

                                             -4-
allowed the children to “run around” the house naked and to sleep naked. He acknowledged
that he and the defendant could have done more to protect the children and said that “when
he thinks about it” there were many “red flags” that went unnoticed.

               Luke Yates of the Tennessee Board of Probation and Parole testified that both
defendants indicated that they would not comply with the requirements of the sexual offender
registry if those requirements included having no contact with their children. He said that
the defendants failed to make a full disclosure admitting their culpability for the offenses.
He added that “[i]f their testimony was their version of a disclosure or admitting, then th[ey]
would be very unsuccessful on sexual offender treatment.” Mr. Yates said that without a full
disclosure, the defendants would not complete level one treatment and that the failure to do
so would constitute a violation of probation.

               At the conclusion of the sentencing hearing, the defendant asked the court to
grant her some form of alternative sentencing so that she could receive counseling and
treatment to deal with her parenting skills. Defense counsel stated that the defendant had
“certainly admitt[ed] guilt” and asked the trial court to “grant her an alternative sentence
daunting [sic] the recommendations of [the psychosexual evaluation psychologist] where she
does have structured therapeutic sessions to address these issues.” Defense counsel argued
that the defendant, the community, and the defendant’s children would all benefit from her
receiving an alternative sentence.

              In arriving at its sentencing decision, the trial court outlined the applicable
sentencing considerations, see T.C.A. § 40-35-102, and noted that the defendant was
convicted of a Class B felony and, therefore, not considered a favorable candidate for
alternative sentencing. See id. § 40-35-102(6). The trial court specifically found that the
defendant lacked credibility because

              it’s just kind of hard to imagine that a mother hearing that
              someone had touched their child would not immediately run
              screaming and yelling making sure that the doctor evaluated
              them and that the person was prosecuted to the fullest and would
              not certainly be back in the home with them.

The trial court also noted that the defendant’s failure to protect her children was a violation
of trust. Ultimately, the trial court found that the defendant did not show any amenability to
rehabilitation. The trial court found “most importantly . . . [the defendants are] not going to
be able to be successful in treatment.” It relied upon the psychosexual evaluation report
which characterized the defendants as “high risk” because they “do not understand the issues
and minimize” what occurred and their role in its occurrence. Based upon these

                                              -5-
considerations, the trial court ruled that “incarceration is the appropriate” sentence for the
defendant.

               The defendant contends on appeal that the trial court failed to make specific
findings in support of its denial of alternative sentencing. She also argues that the trial court
failed to give credence to the fact that she was forthcoming concerning the offenses during
discussions with the children’s therapist and was also willing to make adjustments to her
living arrangements in an effort to comply with sexual offender requirements. The State
contends that the record supports the trial court’s denial of alternative sentencing due to the
defendant’s lack of candor concerning knowledge of the offenses and her resistance to
comply with requirements of the sexual offender supervision. We agree with the State.

                  When considering a challenge to the manner of service of a sentence this court
conducts a de novo review with a presumption that the determinations of the trial court are
correct. T.C.A. § 40-35-401(d) (2006). Our case law has long held that the presumption of
correctness 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.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008); State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). The appealing party, in this case the defendant, bears the burden of establishing
impropriety in the sentence. See T.C.A. § 40-35-401, Sentencing Comm’n Comments; see
also Carter, 254 S.W.3d at 344; Ashby, 823 S.W.2d at 169. If our review of the sentence
establishes that the trial court gave “due consideration and proper weight to the factors and
principles which are relevant to sentencing under the Act, and that the trial court’s findings
of fact . . . are adequately supported in the record, then we may not disturb the sentence even
if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991). In the event the record fails to demonstrate the required consideration by
the trial court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.


             In making its sentencing determination, a trial court, at the conclusion of a
sentencing hearing, is obliged to determine the propriety of sentencing alternatives by
considering:


              (1) The evidence, if any, received at the trial and the sentencing
              hearing;

              (2) The presentence report;

              (3) The principles of sentencing and arguments as to sentencing

                                               -6-
              alternatives;

              (4) The nature and characteristics of the criminal conduct involved;

              (5) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;

              (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). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

               As the recipient of a Class B felony conviction, the defendant was not
considered a favorable candidate for alternative sentencing. See id. § 40-35-102(6).
Nevertheless, as the recipient of a sentence of 10 years or less, the defendant was eligible for
probation. See T.C.A. § 40-35-303(a). She bore the burden, however, of establishing her
“suitability for full probation.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999);
see T.C.A. § 40-35-303(b). A defendant seeking full probation bears the burden of showing
that probation will “subserve the ends of justice and the best interest of both the public and
the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting
Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to probation
consideration are the circumstances of the offense; the defendant’s criminal record, social
history, and present condition; the deterrent effect upon the defendant; and the best interests
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).


               We note initially that the record shows that the trial court gave appropriate
consideration to the requisite sentencing factors and principles in making its determination.
In denying alternative sentencing, the trial court relied heavily upon the defendant’s lack of
potential for rehabilitation, see T.C.A. § 40-35-103(5), and her violation of a position of


                                              -7-
trust, see id. § 40-35-114(14). The defendant gave contradictory testimony regarding her
knowledge of the offenses. She admitted, and later denied, knowledge of the offenses
committed against her five-year-old daughter by her 14-year-old stepson. Despite some
knowledge of B.C.D.’s “issues,” she chose to allow B.C.D. to return to her home, where he
further victimized her other children. The defendant’s attitude concerning parenting classes
and prospective compliance with the requirements of the sexual offender registry was
recalcitrant, at best. The record supports the trial court’s findings and the denial of
alternative sentencing based upon the defendant’s poor potential for rehabilitation.
Accordingly, we affirm the judgments of the trial court.



                                          _________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE




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