           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                    Assigned on Briefs March 14, 2006

            STATE OF TENNESSEE v. KENNETH W. THOMPSON, SR.

                      Direct Appeal from the Circuit Court for Cheatham County
                               No. 14229       George C. Sexton, Judge



                           No. M2005-01160-CCA-R3-CD - Filed April 21, 2006


The Defendant, Kenneth W. Thompson, Sr., pled nolo contendere to one count of attempted
aggravated sexual battery, and the trial court sentenced him to five years, to be served at thirty
percent. On appeal, the Defendant contends that the trial court erred when it denied his request for
alternative sentencing. Finding that there exists no reversible error, we affirm the judgment of the
trial court.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID G. HAYES, J.,
joined. JOHN EVERETT WILLIAMS, J., concurred in the results only.

J. Robin McKinney, Jr., Nashville, Tennessee for the Appellant, Kenneth W. Thompson, Sr.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                        OPINION
                                                         I. Facts

        This case arises from the Defendant’s indictment on six counts of rape of a child. The
transcript of the guilty plea is not included in the record on appeal, but it appears that the victim,
A.N.,1 who was born on March 23, 1995, had lived with the Defendant since she was brought home
from the hospital. The indictments indicate that between March 23, 1998, and September 1, 2003,
the Defendant allegedly raped the victim numerous times. The Defendant pled nolo contendere to


       1
           It is the policy of this Court to refer to minor victims by their initials.

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one count of attempted aggravated sexual battery occurring between March 23, 1998, and December
31, 1998, and, in exchange, the State agreed to not prosecute the remaining charges.

        At the sentencing hearing, Debra Vance testified that she is a probation officer and created
the sentencing report in this case. She stated that she gave the Defendant a questionnaire to complete
prior to her interview with him. On the questionnaire, in response to the question asking about the
Defendant’s version of the offense and his reason for being involved, the Defendant wrote the word
“lies.” In his personal statement, the Defendant reported that he has previously been convicted of
public intoxication and DUI. The probation officer said that she was unable to verify that the
Defendant received a public intoxication citation, but she verified that he had been convicted of DUI
and driving on a revoked license. Vance said that the Defendant also had an outstanding warrant in
Davidson County for failure to appear on an assault charge.

        Vance said that she discussed the victim with the Defendant. The Defendant told her that
A.N.’s mother did not want to keep A.N., and the Defendant brought A.N. home from the hospital.
Vance agreed that, at some point, the juvenile court gave the Defendant custody of A.N. Vance said
that the reports that she had showed that the victim was three to four years old when she was abused
by the Defendant. When Vance interviewed the Defendant, he said that there was no victim in this
case because he did not do anything and that the charges are “bullshit from day one.” Vance said
that the Defendant told her that he planned to appeal all the charges when he was released from jail.

        Vance said that the Defendant did not cooperate with her, and she described both of her
interviews with him as “disasters.” She said that he wanted to argue and did not cooperate with his
questionnaire or the questions that she asked him. Vance testified that the Defendant refused to
provide her with information. Vance opined that when a defendant will not cooperate with her in
an attempt to get him out of jail that defendant has a slim chance of success on probation.

        Vance testified that the Defendant has no family in the State and no residence. Vance said
that the Defendant told her that he could live with his aunt. When Vance checked with the aunt,
however, the aunt said she did not have room for him, and she did not want him staying there if it
meant that her grandchildren could not be in the house. Vance said that the Defendant was asked
about his employment in the questionnaire, and he responded “heavy equipment lifetime.”

        On cross-examination, Vance said that the Defendant had been in custody since October 9,
2003, but she was unsure how much jail credit the Defendant would receive. She said that she
supervises people on probation and parole about equally and how intensive the supervision is
depends on the offense committed. Vance said that, while there is not an “intensive probation”
program in Cheatham County, she would be required to provide this kind of probation if so ordered
by the trial court. Vance agreed that the Defendant’s statement denying that he committed these
crimes had remained consistent and that he professed his innocence “quite loudly.” Vance agreed
that the Defendant did not have any prior felony convictions or any prior convictions for sexual
offenses.



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       Vance agreed that there was an issue with where the Defendant would live if he was given
probation. She said that if the Defendant provided an address of where he would live she would
have to investigate it to ensure that it was suitable. Vance agreed that if the Defendant served his
sentence and was released there would be less supervision than if the Defendant remained on
supervised probation for five years.

       On redirect examination, Vance said that if the Defendant served jail time and was released
he would have to report four times per year. Vance then offered a victim impact statement, which
was admitted by the trial court. The victim impact statement showed that the victim gets very upset
when the Defendant’s name is mentioned, and she hopes that he stays in jail forever. The victim,
who has had counseling, has a hard time trusting people and has an attachment disorder.

        The Defendant testified that he had never been arrested for a felony before and that he lives
on his social security check, which is $791.00 per month. The Defendant said that, while he had not
had the opportunity to see it, he has a trailer to live in being held for him to use when he is released
from jail. He said that there are just two trailers in the area and no children nearby. The Defendant
said that he would live by himself and the trailer would cost him $135.00 per month in rent, which
he could pay with his social security check. He testified that he intends to get a job once he gets his
health problems straightened out. Specifically, the Defendant said that he had “black lung,” but he
admitted that he still smokes cigarettes. The Defendant said that he has broken his back twice, and
he is losing feeling in his feet. He also testified that he is a veteran and was an infantry soldier for
the Marine Corps for seven years.

         The Defendant still denied the charges against him, but he apologized to Vance and to the
trial judge for his demeanor during the interview. He agreed that he only took this plea bargain
because he realized the range of possible punishment that he was facing. The Defendant said that,
if the trial court placed him on probation, he would cooperate with Vance, and he would not violate
his probation.

        On cross-examination, the Defendant testified that the trailer where he would live is located
in Nashville. He said that he has lived on that street before, and there are no schools or daycare
centers located nearby. The Defendant said that he did not cooperate with Vance because “[m]aybe
[he] didn’t understand.” Further, he said that he was sick at the time of the interview and that he had
apologized to her. The Defendant said that he understood that he will have to register as a sex
offender.

       Based upon this evidence, and the arguments of counsel, the trial court found:

       I’ve considered the evidence presented at this hearing, the pre-sentence report, [and
       the] arguments of counsel. We have in this case, of course, an agreed upon sentence
       of five years. It’s just a matter of whether and how this Court determines the
       [D]efendant should serve his sentence.



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               Based upon the evidence and arguments the Court finds that justice is best
       served in this case with the [D]efendant being order[ed] to serve the balance of his
       five years in Tennessee Department of Correctio[n] to avoid the depreciating the
       seriousness of the offense and as a deterrent to others who might be likely to commit
       this same offense.

                                             II. Analysis

        On appeal, the Defendant contends that the trial court erred when it failed to grant him
alternative sentencing. He asserts that the trial court based its decision to deny his request for
probation based upon two factors: deterrence and to avoid depreciating the seriousness of this crime.
The Defendant contends that the first of these factors, deterrence, is inapplicable to his case because
the State failed to show a “special need or consideration” for deterrence. See State v. Hartley, 818
S.W.2d 370 (Tenn. Crim. App. 1991). The Defendant also contends that the second of these two
factors does not apply because the circumstances of this offense were not especially horrifying,
shocking, reprehensible, offensive, or otherwise to an excessive or exaggerated degree. See State
v. Blackhurst, 70 S.W.3d 88 (Tenn. Crim. App. 2002). The State counters that neither it nor the trial
court was required to show that there was a special need for deterrence. Further, it contends that the
circumstances of the Defendant’s crime are, in fact, horrifying, shocking, reprehensible, and
offensive.

        When a defendant challenges the length or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review of 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)
(2003). 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. Ross,
49 S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); 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 a defendant or to the determinations made by the
trial court that are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn.
Crim. App. 2001); 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. 1994). In conducting a de novo review of a sentence, we
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 statutory
enhancement factors; (g) any statements made by the defendant on his or her own behalf; and (h) the
defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-
210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging
a sentence imposed by the trial court has the burden of establishing that the sentence is erroneous.
Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts.

       In the case under submission, we conclude that there is ample evidence that the trial court
considered the sentencing principles and all relevant facts and circumstances. Therefore, we review


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its decision de novo with a presumption of correctness. Accordingly, so long as the trial court
complied with the purposes and procedures of the 1989 Sentencing Act and its findings are
supported by the factual record, this Court may not disturb this sentence even if we would have
preferred a different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts; State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the defendant bears the
burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; Ashby, 823 S.W.2d at 169.

        A defendant “who is an especially mitigated offender or standard offender convicted of a
Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2003). Furthermore, unless
sufficient evidence rebuts the presumption, “[t]he trial court must presume that a defendant
sentenced to eight years or less and not an offender for whom incarceration is a priority is subject
to alternative sentencing and that a sentence other than incarceration would result in successful
rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993); see also Tenn.
Code Ann. § 40-35-303(a).

       However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under
Tennessee Code Annotated § 40-35-102(6), the statutory presumption of an alternative sentence may
be overcome if:

               (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;
               (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2003). In choosing among possible sentencing
alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103(5), which
states, in pertinent part, “The potential or lack of potential for the rehabilitation or treatment of a
defendant should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5); see also State v. Dowdy, 894 S.W.2d 301, 305 (Tenn.
Crim. App. 1994).

       This Court has said:

       In determining whether to grant or deny full probation, additional considerations
       include the defendant’s criminal record; social history and present condition of the


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       defendant, including his or her mental and physical conditions where appropriate;
       defendant’s amenability to correction and general attitude, including behavior since
       arrest, home environment, current drug usage, emotional stability, past employment,
       general reputation, marital stability, family responsibility, and the best interest of
       both the Defendant and the public.

State v. Blackhurst, 70 S.W.3d 88, 97 (Tenn. Crim. App. 2001) (citations omitted). Failure to accept
responsibility for one’s criminal conduct reflects poorly on rehabilitative potential when determining
whether alternative sentencing is appropriate in a particular case. State v. Zeolia, 928 S.W.2d 457,
463 (Tenn. Crim. App. 1996). Similarly, lack of candor and credibility reflect negatively on a
defendant’s potential for rehabilitation. Blackhurst, 70 S.W.3d at 98.

        In the case under submission, the trial court found applicable factor (B) of Tennessee Code
Annotated section 40-35-103(1), which states that 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. In order to deny an alternative sentence based upon
avoiding depreciating the seriousness of the offense, the circumstances of the offense as committed
must be especially horrifying, shocking, reprehensible, offensive or otherwise of an excessive or
exaggerated degree, and the nature of the offense must outweigh all other factors favoring a sentence
other than confinement. Blackhurst, 70 S.W.3d at 98. We conclude that the trial court did not err
when it concluded that the Defendant’s actions were sufficiently reprehensible and offensive to deny
him probation. The Defendant committed attempted aggravated sexual battery to a three year old
child, A.N., who was living with him. A.N. still suffers the effects of this abuse and is still scared
when the Defendant’s name is mentioned. The Defendant’s actions showed terrible judgment and
a disregard for the welfare of a child who was entrusted to his care. Consequently, a sentence of
probation would certainly depreciate the seriousness of the Defendant’s offenses.

        Further, the Defendant has never apologized to A.N. or taken responsibility for his actions,
and instead he has denied that the allegations are true. The Defendant also refused to cooperate with
the probation officer, and he was not forthcoming about his potential living conditions with her.
Under these circumstances, we conclude that the trial court did not err when it denied the
Defendant’s request for an alternative sentence.


                                          III. Conclusion

        In accordance with the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE



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