         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      April 2000 Session

         STATE OF TENNESSEE v. JAMES CHRISTOPHER LEWIS

                 Direct Appeal from the Criminal Court for Sullivan County
                  Nos. S40, 985; S40,986; S40,987  R. Jerry Beck, Judge



                                 No. E1999-00802-CCA-R3-CD
                                      September 18, 2000

The defendant entered an Alford plea to one count of attempted rape and two counts of sexual
battery. He received a sentence of eight years as a Range II offender for the attempted rape and two
years, as a Range I offender, for each of the sexual battery charges. All sentences were to be served
concurrently. The defendant’s request for a suspended sentence was denied after a lengthy hearing,
and he raises that denial as the sole issue on appeal. Based upon our review, we affirm the judgment
of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS T.
WOODALL , JJ., joined.

T. Martin Browder, Jr., Johnson City, Tennessee, for the appellant, James Christopher Lewis.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Mary Katherine Harvey, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The defendant, James Christopher Lewis, entered an Alford plea in Sullivan County Criminal
Court to one count of attempted rape and two counts of sexual battery. According to his negotiated
plea agreement with the State, he received a sentence of eight years for attempted rape, a Class C
felony, as a Range II, multiple offender; and two years for each sexual battery charge, Class E
felonies, as a Range I, standard offender. All sentences were ordered to be served concurrently for
an effective sentence of eight years. The defendant preserved his right to a hearing to determine
under what conditions his sentence would be served. After a full hearing, the trial court denied
probation, and the defendant was ordered to serve his sentences in confinement. The denial of
probation is the single issue presented in this appeal.
         Based upon our review, we affirm the judgment of the trial court.

                                                           FACTS

        The facts of the offenses were brought out in detail during the extensive probation hearing
in this matter. The victim was the fourteen-year-old daughter of Holly Deyo, a woman whom the
defendant met in Nashville shortly after the dissolution of his first marriage, apparently in 1995.
At the probation hearing, the defendant=s mother testified as to certain of the facts. She said that her
son had attempted suicide while living with Ms. Deyo in Nashville in 1996, and she and the
defendant=s father brought the defendant back to their home in Kingsport. Within a few months, Ms.
Deyo and her daughter, LT,1 moved to Kingsport, and subsequently moved into an upstairs apartment
in the home of the defendant’s parents. The defendant, according to his mother=s testimony,
Amaintained his residency downstairs.” On September 7, 1997, Ms. Deyo gave birth to a son,
fathered by the defendant. The defendant’s mother also testified that her son was still occasionally
abusing alcohol.

       The events to which the defendant pled guilty took place over a period from September to
November of 1997, when the victim was fourteen and the defendant was thirty-one years old. The
most serious charges took place on November 17, 1997. Dr. James Michael Adler, Clinical Director
of Counseling and Consultation Services, Inc., noted the following in his written assessment of the
defendant:

                     James reported that he became involved romantically with the
                     victim’s mother. During the course of this relationship, James
                     acknowledged that while wrestling with (ex-girlfriend’s daughter) she
                     pushed his hand to her crotch and he grabbed her. James stated that
                     his victim almost always ran around the house in her underwear or
                     naked. James stated that he fondled her and digitally penetrated her
                     two to three times.

       According to the presentence report, the defendant stated that what he did was “never
intended as sexual.” He also stated that he accepted the plea agreement so that the victim “would
not have to testify in a trial where her prior sexual history and moral behavior would be public.”

       Detective Lisa Christian, the defendant’s probation officer,2 stated in the presentence report,
“I’m not sure he understands that he did anything wrong. I get the feeling that he thinks it was the


         1
             It is the policy of this court to use initials only in identifying a minor victim of sexual abuse.
         2
          The trial court placed the defendant on bond supervision on September 29, 1998, after the State requested that
the defendant’s bond be modified to require supervision by a probation counselor and no contact with the victim because
the defendant had had conta ct with the victim an d had also been char ged on M arch 8, 19 98, with drivin g while
intoxicated, se cond offen se, and leavin g the scene o f an acciden t.



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victim’s fault.” The defendant’s mother admitted under cross-examination that she had told
Detective Christian that “twenty (20) years was a long time to pay for copping a feel.”

         In addition to his clinical assessment included in the record, Dr. Adler considered the
defendant to have a moderate to low chance of reoffending, noting that the defendant had only one
victim; that the victim was adolescent; and that the level of intrusiveness – digital penetration – was
at the “lower end of, of the types of sexual behaviors that we see.” Dr. Adler also noted that the
defendant’s highest arousal pattern was to adolescent females. Dr. Adler also testified that arousal
is the strongest predictor of recidivism but that in the defendant’s case this was manageable with
supervision and treatment. According to Dr. Adler, the defendant had “groomed the victim” by
beginning with fondling, and that, had he not been stopped, he would have progressed further. When
asked on cross-examination if taking responsibility for his actions would be an important factor in
the defendant’s amenability to treatment, Dr. Adler responded that if the defendant was unable to
stop the victim blaming and to take responsibility for his actions, treatment would fail.

        The defendant testified during the probation hearing, setting out the details of his background
as well as some details of the offenses. He testified as to the mental health treatment which he had
received and his suicide attempt. Additionally, he testified as to the emotional and personal costs
to him that had resulted from the charges.

         A number of witnesses testified on behalf of the defendant during the probation hearing.
Brenda Dykes and Faye Young, both of whom had been neighbors of the defendant for a number of
years, testified in support of his request for probation. In addition, acquaintances Randy Earl
Schramlin, Sharon Schramlin, Shannon Seay, Carolyn Jane Ledford, Mary Ellen Beebe, and Mary
Ellen Richmond testified and supported the defendant’s request. Mary Jane Brown of the Sullivan
County Department of Children’s Services testified that the defendant had not presented a problem
during the court-ordered visits with his son, J.D. Additionally, the defendant’s father and sister
testified in his behalf.

                                            ANALYSIS

                                      I. Standard of Review

         When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that "the determinations
made by the court from which the appeal is taken 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). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994);
State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). If the trial court followed the


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statutory sentencing procedures, giving due consideration and proper weight to the relevant factors
and principles under the 1989 Sentencing Act, we cannot 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 conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancing factors, (g) any statements made by the
accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App.), perm. app. denied (Tenn. 1987).

        The party challenging the sentences imposed by the trial court has the burden of establishing
that the sentences are erroneous. Sentencing Commission Cmts. to Tenn. Code Ann. § 40-35-401;
Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311.

                                       II. Denial of Probation

        The defendant’s sole issue on appeal is that he should have been granted probation. He
contends that the trial court failed to consider both the principles of confinement pursuant to the
1989 Sentencing Act and all relevant facts and circumstances. If this were true, our review would
be de novo with no presumption that the determinations of the trial court were correct. The State
argues that the trial court specifically noted the applicable sentencing principles and all relevant facts
and circumstances and, accordingly, we should review the ruling of the trial court with a presumption
of correctness. We concur with the State’s position; thus, our review is de novo with a presumption
that the determinations of the trial court are correct.

        Regarding the defendant’s request for probation, the trial court reviewed the purposes of the
1989 Act as set out in Tennessee Code Annotated Section 40-35-102 and determined that the
defendant was not entitled to a presumption that he was a favorable candidate for alternative
sentencing options because he was sentenced as a Range II, multiple offender, a class excluded from
the statutory presumption. Additionally, the trial court reviewed Tennessee Code Annotated Section
40-35-303(a) and noted that the defendant was eligible for probation, having received a sentence of
eight years. The trial court also reviewed the guidelines for eligibility in the Community Corrections
Program and noted that because the defendant had been sentenced to a crime against the person, he
was ineligible according to Tennessee Code Annotated Section 40-36-106(a)(2).

        The trial court reviewed the sentencing considerations set out in Tennessee Code Annotated
Section 40-35-103. In this regard, the trial court considered the seriousness of the offense, the
defendant’s potential for rehabilitation or treatment, the required evaluation mandated by Section
39-13-705 for sex offenders, and the testimony of Dr. Adler. The trial court reviewed Tennessee
Code Annotated Section 40-35-114 and found two enhancement factors: “(7) The offense involved
a victim and was committed to gratify the defendant’s desire for pleasure or excitement;” and “(15)


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The defendant abused a position of public or private trust, or used a special skill in a manner that
significantly facilitated the commission or the fulfillment of the offense[.]” We agree that these
factors were properly applied. As to factor (7), Dr. Adler testified and stated in his report that the
defendant’s strongest arousal was for adolescent females, the group which includes the victim. Thus,
although this factor could not be used to enhance a sentence for sexual battery because it duplicated
an essential element of the offense, State v. Kissinger, 922 S.W.2d 482, 489 (Tenn. 1996), it was
properly applied to the rape conviction. Factor (15) was properly applied because the defendant, as
the boyfriend of the victim’s mother, the father of the victim’s half-brother, and with all of the
parties living under the same roof, clearly occupied a position of private trust as to the victim.
Kissinger, 922 S.W.2d at 489. No mitigating factors were presented or found by the trial court. It
was appropriate for the trial court to consider the mitigating and enhancement factors because they
are relevant as a Section 40-35-103 consideration. See State v. Zeolia, 928 S.W.2d 457, 461 (Tenn.
Crim. App. 1996). The trial court also considered the defendant’s depression, alcoholism, and prior
record, particularly the defendant’s poor response to past applications of measures less restrictive
than confinement when the defendant violated the law. The defendant’s educational and
employment record and the degree of support from family and friends were taken into consideration
by the trial court. Based upon all of this, the trial court denied probation to the defendant.

        Our review of the entire record indicates that the trial court met the requirements of Ashby,
in that it considered sentencing principles and all relevant facts and circumstances. Our review,
therefore, presumes that the trial court correctly denied probation. The defendant bears the burden
of showing that the determination of the trial court was improper. Ashby, 823 S.W.2d at 169.

        The defendant does not challenge the trial court’s determination that he is ineligible for the
statutory presumption of favorable candidacy for probation or the application of the enhancement
factors. The defendant asserts instead that the trial court failed to make specific findings concerning
the considerations for sentences involving confinement as set out in Section 40-35-103(1) and (5),
and therefore improperly based confinement on these considerations.

       Subsection (1) states:

               (1)   Sentences involving confinement should be based on the
                     following considerations:

                     (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



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                     (C) Measures less restrictive than confinement have
                     frequently or recently been applied unsuccessfully to the
                     defendant[.]

       Subsection (5) states:

               The 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. The length of a term of
               probation may reflect the length of a treatment or rehabilitation
               program in which participation is a condition of the sentence[.]

        The record shows that the trial court specifically stated that the defendant had no record of
felonies and that his record of misdemeanor violations did not merit the characterization of “a long
history of criminal conduct.” As to subsection (B), the trial court did rely on the seriousness of the
crime and noted that the defendant, although pleading guilty to attempted rape, did in fact penetrate
the victim on two or three occasions. A trial court may consider what the evidence shows actually
happened rather than be restricted to considering only the crime to which the defendant pled guilty.
See State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983) (“It is also proper for a trial court to
look behind the plea bargain and consider the true nature of the offenses committed.”). The denial
of probation has previously been justified solely on the circumstances of the offense when they were
of such a nature as to outweigh all other factors which might favor probation. See State v. Travis,
622 S.W.2d 529, 533 (Tenn. 1981). “Thus, even though the defendant might possess full capabilities
for rehabilitative alternative sentencing, the trial judge [is] entitled under the law to exercise his
discretion to impose a period of confinement under T.C.A. § 40-35-103(1)(B), provided the record
adequately supports the weight he gave this particular sentencing consideration.” State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Here, the record shows that the defendant
“groomed” the victim over a period of months and penetrated her on two or three occasions.
Although the defendant implies consent, the record shows that the victim finally went to her mother,
causing the defendant’s family to insist that he move out of the house. Also, the defendant continued
to have contact with the victim, even after he was placed on bond for these offenses. We conclude
that the evidence adequately supports the weight the trial court gave this factor.

         As to subsection (C), the trial court reviewed the defendant’s criminal record, which dated
back to 1989, and noted that it was not “pristine.” The trial court stated that the defendant had prior
convictions consisting of public intoxication, disorderly conduct, driving without a license, reckless
driving, DUI, possession of a deadly weapon with intent to go armed, and possession of marijuana
– all crimes for which the defendant had received suspended sentences. According to the trial court,
the defendant “has experiences before the Court, has previously been placed on probation on more
than one occasion. Those would be negative factors also.” The record also shows that, while
released on bond for the present offenses, the defendant was charged with DUI, second offense, and
leaving the scene of an accident.



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        Finally, the defendant contends that the trial court should have found that he had potential
for rehabilitation and treatment. On this issue, the trial court pointed to the lack of empathy for the
victim and victim blaming exhibited by the defendant. A defendant’s failure to accept responsibility
for his crimes is germane to his potential for rehabilitation. Zeolia, 928 S.W.2d at 463. The trial
court also noted the defendant’s continued abuse of alcohol, even after completing an intensive
outpatient alcohol treatment program on March 11, 1999. The defendant admitted to an episode with
alcohol in April 1999. The defendant also stated at the hearing, “Now as far as the allegations went,
that was why I made an Alford plea, because the allegations weren’t even close to being true but
there was inappropriate contact on my behalf.” Later, the defendant, in evaluating the costs of this
offense, focused almost exclusively on himself, stating that “it’s just cost me everything.” Although
the trial court gave a great deal of weight to Dr. Adler’s testimony concerning the defendant’s
amenability to treatment, the court noted that Dr. Adler’s testimony only established that the
defendant’s chances of reoffending were moderate to low with treatment. The record indicates that
the trial court appropriately weighed the defendant’s potential for rehabilitation or treatment.
Accordingly, there is substantial evidence to support the trial court’s denial of probation.

                                          CONCLUSION

        It is clear from our review of the entire record that the trial court considered the relevant
principles of the Criminal Sentencing Reform Act of 1989 and all relevant facts and circumstances
of this case. Our de novo review has, therefore, been conducted with a presumption that the
determinations of the trial court are correct. We conclude that the defendant has failed to meet his
burden of showing that the sentence was improper and, accordingly, affirm the judgment of the trial
court.



                                                       _______________________________________
                                                       ALAN E. GLENN, JUDGE




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