           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                FILED
                        APRIL 1997 SESSION
                                                        November 4, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE,        *       C.C.A. No. 01C01-9608-CR-00349 Clerk
                                                    Appellate Court
                           *
      Appellee,            *       DAVIDSON COUNTY
                           *
VS.                        *       Hon. Seth W . Norman, Judge
                           *
STEVEN E. BAKER,           *       (Sexual Battery; Especially Aggravated
                           *        Sexual Exploitation of a Minor)
      Appellant.           *




For Appellant:                     For Appellee:

Richard McGee                      Charles W. Burson
601 Woodland Street                Attorney General and Reporter
Nashville, TN 37206
                                   Peter M. Coughlan
                                   Assistant General and Reporter
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Lila Statom
                                   Assistant District Attorney General
                                   Washington Square
                                   Suite 500
                                   222 Second Avenue, North
                                   Nashville, TN 37201-1649



OPINION FILED:__________________




AFFIRMED




GARY R. WADE, JUDGE
                                                  OPINION

                  The defendant, Steven Eugene Baker, pled guilty to one count of

especially aggravated sexual exploitation of a minor and two counts of sexual

battery. The trial court imposed concurrent, Range I sentences of nine years and

one year, respectively. In this appeal of right, the defendant challenges the length

of the sentence and the trial court's denial of alternative sentencing.



                  We affirm the judgment of the trial court.



                  On the night before Thanksgiving in 1994, the defendant, a step-

grandfather to the fourteen-year-old female victim,1 provided her with medication for

a headache. Afterward, while the victim was asleep in her grandmother's living

room, the defendant videotaped himself touching the victim on her breast and

digitally penetrating her vagina. The victim never awoke and had no recollection of

the occurrence.



                  Just prior to the Christmas holidays in the same year, the defendant

looked at the videotape in anticipation of a visit by the victim. Because he neglected

to remove the tape from his VCR, the victim's father learned of its content on the

next day. There were a number of pornographic videotapes and magazines found

in the defendant's bedroom.



                  The defendant was charged with rape, sexual battery, and especially

aggravated sexual exploitation of a minor. In accordance with a plea agreement,




         1
        It is the policy of this court to w ithhold the ide ntity of children in volved in se xual abu se. State
v. Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn. Crim . App. 1989).

                                                        2
the state dropped the rape charge and the defendant pled guilty to the remaining

charges.



              At the sentencing hearing, the victim testified that she and the

defendant had enjoyed a close friendship. She related that when she was younger,

she had often confided in the defendant and viewed him as somewhat of a father

figure. By the time she was eleven, however, the defendant began to verbally

abuse her. She claimed that the defendant "gave [her] guilt trips" and pleaded to

have sex with him so as to "help" his marriage to her grandmother. As time passed,

the incidents became more frequent and offensive to the victim. She testified that

she was afraid to sleep at night and experienced nightmares. Because her

grandmother refused to leave the defendant after the sexual assault, the victim

described her relationship with her grandmother as uncomfortable. The victim

testified that she coped with her knowledge of the incident with counseling and

involvement in school and church activities.



              The victim's father and mother, Carl and Victoria Shackleford, testified

that relationships among the entire family had deteriorated. Family members had

taken sides in the matter and felt stigmatized by the incident.



              The defense proof included testimony by the defendant, his wife, and

his counselor, psychological evaluations, and eleven letters from friends and co-

workers showing support for and confidence in the defendant. Nancy Baker, the

defendant's wife and the victim's grandmother, was fully supportive of her husband.

She believed that the defendant had adequately acknowledged responsibility for his

actions by expressing remorse, cooperating with the police, surrendering himself

into custody, and seeking counseling.


                                           3
              The forty-three-year-old defendant has no prior record and no history

of violent behavior. He has a bachelors degree in engineering and has worked fairly

steadily as an engineer and real estate agent. He has consistently paid child

support payments to his two children from a prior marriage. The defendant testified

that he had benefitted by intensive counseling: "I know that I've created a great deal

of pain for a lot of people that I love. ... My actions have separated their family."

He expressed remorse for his actions and accepted full responsibility for the

incident. The defendant claimed that he had tried to cooperate fully during the

police investigation and had agreed to the state's request for an evaluation at the

Luton Mental Health Center of Nashville.



              When asked if he had been guilty of improperly touching the victim

prior to November of 1994, the defendant initially said no. He then explained that he

had inadvertently touched, then continued to fondle, the victim's breast while she

slept on a single prior occasion. When asked if he had drugged the victim in

November of 1994, he maintained that he had given the victim nothing stronger than

Excedrin P.M. On further cross examination, the defendant admitted that he was

not receiving sex-offender specific treatment, as recommended by Luton Mental

Health Center.



              Dr. Scott Ericson, a Christian counselor, had conducted weekly

sessions with the defendant for about a year following the charges. Dr. Ericson

reported that the defendant had worked diligently to face up to the issue and that he

did not believe that the defendant would reoffend. In contrast, the Luton Mental

Health Center described the defendant at "moderately high risk for future sexual

exploitation of other persons" and characterized the defendant's prognosis as fair




                                            4
with treatment and poor without treatment; there were specialized

recommendations:

             It is recommended that Mr. Baker receive sex offender-
             specific mental health treatment for his compulsive and
             addictive sexual behaviors, anxieties, and offenses.
             Treatment should include both individual and group
             therapy services that are sex-offender specific in format
             and conducted by a therapist(s) competent in the areas
             of sexual offender and sexual addiction issues. At this
             time, it appears that Mr. Baker is not in need of a secure-
             type facility and that treatment may be pursued at an
             outpatient, community-based facility which offers a
             specialized treatment program for sexual offenders and
             persons with significant sexual addiction issues.
                                          ***
             Due to his present level of insight and rationalization of
             his sexual offense against an adolescent female minor, it
             is recommended at this time that Mr. Baker have no
             contact with female children under 18 years old unless
             they are under responsible adult supervision.
                                          ***
             Mr. Baker should be accountable...for his daily
             whereabouts.
                                          ***
             Mr. Baker should not purchase or use pornographic
             materials or frequent establishments where such
             materials are displayed.
                                          ***
             Mr. Baker should attend at least weekly a community-
             based self-help group for persons with sexual
             compulsions.



              Detective Steve Cleek, who questioned the defendant, testified that

the defendant acknowledged his sexual attraction to the victim. Detective Cleek

recalled that the defendant admitted to fondling the victim's breast on a prior

occasion while hugging her on the front porch. At the sentencing hearing, the

defendant denied that the incident ever occurred.



              While imposing sentence, the trial judge stated a belief that the abuse

had been ongoing since the victim was eleven. The trial court specifically found that

the medication given in November of 1994 had an incapacitating effect on the victim


                                           5
and that the crimes had been committed for purposes of gratification. Thus, two

enhancement factors were deemed applicable:

              (4) A victim of the offense was particularly vulnerable
              because of age or physical or mental disability ...;
                                           ***
              (7) The offense involved a victim and was committed to
              gratify the defendant's desire for pleasure or
              excitement[.]

Tenn. Code Ann. §§ 40-35-114 (4), (7) (Supp. 1995). The trial court heard but

rejected claims of mitigating factors. While rejecting the notion of consecutive

sentencing, the trial court denied the defendant's request for alternative sentencing.



              The defendant first contends that the trial court erred by failing to apply

nonstatutory mitigating circumstances to reduce his sentence to eight years. He

also argues that the trial court should have allowed him to serve his sentence

through Community Corrections or strict probation.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). 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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

                                           6
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.

Code Ann. §§ 40-35-210. Should the trial court find mitigating and enhancement

factors, it must start at the minimum sentence in the range and enhance the

sentence based upon any applicable enhancement factors, and then reduce the

sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The weight given to each factor is within the trial court's discretion provided

that the record supports its findings and it complies with the Criminal Sentencing

Reform Act of 1989. See Ashby, 823 S.W.2d at 169. The trial court should,

however, make specific findings on the record which indicate its application of the

sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -210.



              The defendant does not challenge application of the two enhancement

factors. He does argue that the trial court was required to reduce his sentence

based on the following nonstatutory mitigating factors:

              1. The defendant has no prior criminal history of any
              kind either as a juvenile or an adult.

              2. The defendant immediately sought intensive
              psychological counseling for the mental illness which was
              the predicate for the commission of the offense in this
              case.

              3. The defendant is clearly remorseful for the harm that
              he caused to the victim and both her family and his
              family.

              4. The defendant cooperated with police officers by
              giving a confession even though he was instructed by the

                                           7
             officers that any statements that he would make would
             be used against him.

             5. The defendant cooperated with the District Attorney's
             Office by voluntarily participating in the evaluation at the
             Luton Mental Health Center at his own expense when he
             was under no legal obligation to do so.

             6. The defendant has significant family and community
             support.

             7. The defendant's prior employment history is excellent.

In our view, the defendant is entitled to some mitigation by virtue of each of these

circumstances. Each factor serves the defendant in a favorable manner. Yet two

enhancement factors specifically apply. Moreover, the defendant was in a position

to commit the crime because of his familial relationship with the victim. The crimes,

in our view, qualify as breaches of a private trust. Tenn. Code Ann. § 40-35-

114(15). Neither enhancement nor mitigating factors have any particular weight.

This court fully approves of the nine-year sentence, only one year above the

minimum. Any entitlement to mitigation would be offset by the additional

enhancement factor.



              Further, we cannot say that the trial judge erred in denying alternative

sentencing. The defendant argues that he is capable of rehabilitation, requires

treatment for the mental illness that prompted this offense, and would have a much

greater probability of recovery under an alternative sentencing scheme. He also

argues for imposition of a one-year incarceration period followed by especially

restricted probation. The state contends that continuous confinement is required

due to the seriousness of this offense and that there is a "moderately high risk" that

the defendant will reoffend.



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are, of course, presumed to be favorable candidates "for alternative

                                           8
sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6). With certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court if the sentence

imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). Among the

factors applicable to probation consideration are the circumstances of the offense,

the defendant's criminal record, social history and present condition, and the

deterrent effect upon and best interest of the defendant and the public. State v.

Grear, 568 S.W.2d 285 (Tenn.1978).



              Here, because we have upheld the nine-year sentence, the defendant

simply does not qualify for probation. See Tenn. Code Ann. § 40-35-303(a).

Moreover, had he qualified, this court would have affirmed the denial. The nature

and circumstances of the offenses may often be so egregious as to preclude the

grant of probation. See State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981). A

lack of candor may also militate against a grant of probation. State v. Bunch, 646

S.W.2d 158 (Tenn. 1983). Here, the record demonstrates an obvious reluctance on

the part of the defendant to acknowledge a prior incident of improper conduct

involving this victim.



              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn.1990). Even in cases where the

defendant meets the minimum requirements of the Community Corrections Act of

1985, the defendant is not necessarily entitled to be sentenced under the Act as a


                                           9
matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987).

The following offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a) (emphasis added). Subpart (a)(2) above would

initially exclude the defendant because sexual battery is classified as an “offense

against the person.” See Tenn. Code Ann. § 39-13-505; see State v. Boston, 938

S.W.2d 435, 438 n.5 (Tenn. Crim. App. 1996). However, subpart (c) creates a

"special needs" category of eligibility:

              Felony offenders not otherwise eligible under subsection
              (a), and who would be usually considered unfit for
              probation due to histories of a chronic alcohol, drug
              abuse, or mental health problems, but whose special
              needs are treatable and could be served best in the
              community rather than in a correctional institution, may
              be considered eligible for punishment in the community
              under the provisions of this chapter.

Tenn. Code Ann. § 40-36-106(c) (emphasis added). Thus, the defendant would

arguably be eligible for Community Corrections under this "special needs" category.

However, to be eligible for Community Corrections under subpart(c), the defendant


                                           10
must first be eligible for probation under Tenn. Code Ann. § 40-35-303. State v.

Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).



              Moreover, in Ashby, our supreme court encouraged the grant of

considerable discretionary authority to our trial courts in matters such as these. 823

S.W.2d at 171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986). "[E]ach

case must be bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It is not

the policy or purpose of this court to place trial judges in a judicial straight-jacket in

this or any other area, and we are always reluctant to interfere with their traditional

discretionary powers." Ashby, 823 S.W.2d at 171. Here, the trial judge considered

and rejected Community Corrections, "[a]s a result of his sentence under [Tenn.

Code Ann.] § 40-35-303, I do not feel that the defendant is eligible for any type of

alternative sentencing. ... That's the judgment of the Court."



              The defendant, while otherwise described as a candidate for out-

patient treatment, was diagnosed as a "moderately high risk for future sexual

exploitation" by the Luton Mental Health Center. While the defendant was

apparently willing to undergo sex-offender specific treatment, as opposed to that

provided by Dr. Ericson, he had not done so during the period of time between the

offenses and the sentencing hearing.



              Thus, the trial judge, who observed the witnesses first-hand, had an

additional basis for rejecting a Community Corrections sentence. Recognizing that,

this court must defer to the determination made by the trial court.



              Accordingly, the judgment is affirmed.




                                            11
                          ______________________________________
                          Gary R. Wade, Judge

CONCUR:



_______________________________
David H. Welles, Judge



_______________________________
Curwood Witt, Judge




                                  12
