         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     July 18, 2001 Session

 STATE OF TENNESSEE v. EUGENE FLOYD LOCKHART, a/k/a FLOYD
                        E. LOCKHART

                     Appeal from the Criminal Court for Davidson County
                          No. 2000-A-72    Steve R. Dozier, Judge

                                     Filed December 21, 2001

                                 No. M2000-02171-CCA-R3-CD


The defendant appeals the denial of probation for the five-year sentence he received for sexual
battery by an authority figure, a Class C felony. He asserts that the record fails to support a
conclusion that the statutory presumption of his eligibility for alternative sentencing has been
rebutted. We modify the term of confinement and order supervised probation forthwith and remand
the case to the trial court for imposition of appropriate conditions.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Modified
                                      and Remanded

PER CURIAM: GARY R. WADE, P.J., JOSEPH M. TIPTON AND JOHN EVERETT WILLIAMS, JJ.

Robert J. Turner, Nashville, Tennessee, for the appellant, Eugene Floyd Lockhart, a/k/a Floyd E.
Lockhart.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Philip H. Wehby, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant pled guilty to sexual battery by an authority figure. The guilty plea hearing
transcript reflects that his thirteen-year-old stepdaughter told police that on May 5, 1999, her mother
had tried to awaken her for school, but she did not arise. She said that the defendant then entered
her bedroom, placed his hands inside her underwear and touched her vagina and breasts. When
questioned, the defendant admitted to touching the victim’s vagina, but he said that he did not
believe that he touched the victim’s breasts.
        At the sentencing hearing, the victim’s father and mother and the defendant testified. The
victim’s father testified that the victim had been in his custody since June 1999. He said she had a
hard time visiting her mother, seeing the defendant’s picture on the wall. He said the victim was
afraid of being alone and was embarrassed about the event. He said her grades had dropped
dramatically. He testified that she had problems with her sister and her mother’s family. He
acknowledged that the victim’s brother and sister still lived with her mother. He requested that the
defendant be confined for the fullest extent allowed by law.

        The victim’s mother, Misty Lockhart, testified that she had been married to the defendant for
two and one-half years but had worked with him for years before at Smith Kline Beecham Clinical
Laboratories. She said that she began seeing the defendant and became pregnant by him while she
was still with the victim’s father. She stated that to say that her ex-husband had bad feelings for the
defendant was an understatement.

        Ms. Lockhart acknowledged that the victim was angry about what the defendant did, but she
stated that their mother/daughter conflict, which she attributed to raising a teenager for the first time,
started before the event. She said that she got regular visitation with the victim and kept her more
that summer than not. Ms. Lockhart did not know of any problems with her daughter, noting that
she had left the victim at dances and the skating ring. She said that the victim and her sister would
spend time at the pool at night and walk home in the dark.

       Ms. Lockhart testified that she believed the victim to be happy, always smiling and kissing.
She said that she would not describe the victim as sullen but “maybe distrustful” after the incident.
She said she placed her daughter in therapy four days after the incident. Ms. Lockhart asserted that
the defendant had not been in contact with the victim since then and that a juvenile court order
barred his contact with her children.

        Ms. Lockhart testified that the defendant’s and her five-year-old daughter lived with her. She
also said that she was then pregnant with the defendant’s child even though the defendant had left
the house immediately after the incident. She expressed a desire that the defendant be allowed to
continue working in order to help support the children. She noted that they still worked together,
but she said she did not plan to remain married to him if it meant losing her children. She also stated
that, even then, whether they stayed married would depend on time and counseling.

       The defendant testified that he had worked almost thirteen years at Smith Kline Beecham
Clinical Laboratories and trained employees to handle and transport lab specimens. From a previous
marriage, the defendant had a seventeen-year-old daughter and a disabled twelve-year-old son in a
wheelchair. He maintained support for them until he was jailed in this case.

       The defendant testified that he was very sorry about touching the victim and that he did not
know why he had done so. He admitted his wrongdoing and expressed a desire to make amends and
to support his children. The defendant testified that he had been receiving counseling and had started
family counseling with his wife. He said he intended to continue therapy.

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        On cross-examination and questioning by the trial court, the defendant acknowledged that
he had received treatment in 1989 in a hospital in Minnesota. He said it was voluntary and at the
recommendation of a counselor in Murfreesboro he had then been seeing. The defendant said that
he was treated for a month and it related to drug treatment, mental health, and sexual matters, which
he explained related to his adult female relationships. He said he had been “jumping in and out of
relationships” and that it had caused numerous relapses with cocaine. We also note that the
defendant was convicted of simple possession of marijuana in 1979.

       The trial court denied probation. It stated the following:

               All right. There is no question that what the Court does here today .
               . . isn’t going to undo this particular incident and the effect that it will
               continue to have on custody matters, people’s feelings, people’s
               perceptions of themselves. But - and he’s not denying it . . . Mr.
               Lockhart has acknowledged, that’s what he brought about on
               everyone that is not affected by it.

                       I mean, I’ve yet to hear anyone, who’s charged with sexually
               abusing . . . a child under eighteen years of age that knew why they
               did it.

                       Either they don’t want to admit they have the problem of
               controlling that behavior, or they don’t really know either.

                       But, in terms of issues that I have to consider, that is, equality
               of sentencing, in terms of what offense Mr. Lockhart’s pled guilty to
               and other individuals in similar situations as him, potential for
               rehabilitation, which I’m not completely sold on, based on Mr.
               Lockhart’s testimony here today concerning these other incidents.

                      I realize that’s 10-plus years ago . . . I venture to say that, if
               we had those medical records from that particular treatment, there
               would be things in there that might have hinted to something like this
               happening.

                       Be that as it may, I’m not sure he, in his current status, is a
               good candidate for rehabilitation, i.e., not offending again. I think
               confinement is necessary, to avoid depreciating this particular
               offense. I understand Ms. Lockhart’s - there’s no question that he
               being locked up has ramifications on her ability to run a household,
               and I feel for her about that.



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                        But there’s - it doesn’t make sense . . . to me that he would
               just, out of the blue - and that’s why I wonder about the ‘eighty-nine
               stuff - but, out of the blue, on this particular morning, when she’s not
               getting up, go in and decide to touch her vagina.

                       So, I’m going to impose the 5-year sentence.

The trial court made the defendant eligible for work release, but we note through post-judgment facts
that the defendant remained unemployed.

        In reviewing a sentence on appeal, the reviewing court’s standard is de novo on the record,
with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-
401(d). However, “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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, we do not
believe that the record adequately shows that the trial court gave the defendant the statutory
presumption that he was a favorable candidate for alternative sentencing options.

        A defendant who is eligible for probation has the burden of establishing suitability for
probation. Although “probation must be automatically considered as a sentencing option for eligible
defendants, the defendant is not automatically entitled to probation as a matter of law.” Tenn. Code
Ann. § 40-35-303(b), Sentencing Commission Comments; see State v. Fletcher, 805 S.W.2d 785,
787 (Tenn. Crim. App. 1991). However, as the defendant in this case does not meet the description
of one who should be given a first priority regarding a sentence involving incarceration under Tenn.
Code Ann. § 40-35-102(5), and has been convicted of a Class C felony as a standard offender, he
is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence
to the contrary. Tenn. Code Ann. § 40-35-102(6).

        The presumption of suitability may be rebutted if any of the following factors outweigh the
defendant’s rehabilitative capabilities: (1) confinement is necessary to protect society by restraining
a defendant who has a long history of criminal conduct, (2) confinement is necessary to avoid
depreciating the seriousness of the offense or confinement is particularly suited to provide an
effective deterrent to others likely to commit a similar offense, or (3) measures less restrictive than
confinement have been frequently or recently applied unsuccessfully to the defendant. See Tenn.
Code Ann. § 40-35-103(1); Ashby, 823 S.W.2d at 169; Fletcher, 805 S.W. 2d at 787-88. In the
present case, the trial court found that confinement was necessary to avoid depreciating the
seriousness of the offense and questioned his being a good candidate for rehabilitation.

        There are several problems with the trial court’s determinations. Given the defendant’s
testimony, any attempt to use the defendant’s 1989 Minnesota hospital treatment as a foundation to
infer lack of rehabilitation potential necessarily entails mere speculation. We fail to see how the
presumption of suitability for alternative sentencing can be rebutted through speculation. In fact,


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we note that the trial court never found that the defendant lacked rehabilitation potential but only
questioned the potential.

        Relative to confinement being necessary to avoid depreciating the seriousness of the offense,
we do not see such a basis in the record to justify total denial of probation. In fact, we question the
trial court’s intent in considering “equality of sentencing, in terms of what offense Mr. Lockhart’s
pled guilty to and other individuals in similar situations as him.” Sexual battery is a Class C felony
that carries for standard offenders a presumption regarding alternative sentencing. This means that
the mere fact that the offense was committed is an insufficient basis to deny probation. See State
v. Travis, 622 S.W.2d 529, 533-34 (Tenn. 1981); Franks v. State, 543 S.W.2d 613, 615-16 (Tenn.
Crim. App. 1976). Unquestionably, the age of the victim and the impact on her of the defendant’s
conduct warrant some confinement. In fact, we note that the defendant has already been confined
for over two years. But split confinement and counseling, with the defendant returning to a
productive way of life, would be just in this cause.

       In consideration of the foregoing and the record as a whole, we modify the sentence of
confinement. The defendant shall be placed on probation for the remainder of his sentence and the
case shall be remanded for imposition of such terms and conditions as the trial court deems
appropriate.


                                                       PER CURIAM
                                                       (Wade, P.J., Tipton and Williams, JJ.)




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