            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE              FILED
                           JANUARY 1999 SESSION



STATE OF TENNESSEE,                *     C.C.A. # 03C01-9804-CR-00138
                                                       March 9, 1999
             Appellee,             *     HAMBLEN COUNTY

VS.                                *     Hon. John K. Byers, Senior Judge
                                                      Cecil Crowson, Jr.
ROBERT EUGENE PFOFF, SR.,          *     (Two Counts of Sexual Battery)
                                                        Appellate C ourt Clerk

             Appellant.            *




For Appellant:                     For Appellee:

Paul G. Whetstone                  John Knox Walkup
Attorney                           Attorney General and Reporter
502 North Jackson Street
Morristown, TN 37814               Eric W. Dabb
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

                                   Victor Vaughn and John Dugger
                                   Assistant District Attorneys General
                                   519 Allison Street
                                   Morristown, TN 37814




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                              OPINION

                The defendant, Robert Eugene Pfoff, Sr., was convicted on two counts

of sexual battery, a Class E felony. 1 The trial court imposed concurrent Range I

sentences of one year on each count, to be served in confinement, and denied any

form of alternative sentence.



                In this appeal of right, the defendant argues that the trial court should

have granted probation, placement into a Community Corrections program, or some

other form of alternative sentence. We affirm the judgment of the trial court.



                The defendant, the legal guardian and custodian of his sixteen-year-

old granddaughter, was charged with sexual battery for incidents occurring April 13

and May 8 of 1995. The defendant and his wife, Johnnie Pfoff, who had been

married for forty-seven years, had been granted legal custody of the victim

approximately six months before the incidents occurred. The defendant admitted to

the following facts contained in Count One of the indictment:

                I walked into [the victim's] bedroom. [She] was lying on
                her stomach with her clothes on. [She] had on blue
                jeans and a black sweater. I asked [her] if she wanted
                me to rub her back and she said it was [okay]. I'm not
                sure w[h]ere I started rubbing on top of her sweater or
                under her sweater. I know I rubbed under her sweater
                because I undid her bra strap. [She] said raise up my
                arm is pinned so [she] turned over. [Her] sweater was up
                over her breasts and her bra wasn't covering her breast.
                My hand rubbed over [her] breast. I reached down and
                kissed [her] breast. [She] said no.



                The defendant denied any other sexual contact but entered an Alford

plea on Count Two. A statement by the victim relative to the second incident



        1
          On Coun t Two, the defendant entered a be st interest plea of guilt under North Carolina v.
Alford, 400 U.S . 25 (197 0).

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provides, in part, as follows:

              The last time my grandfather ... touched me was on the
              day I talked to JoAnne Parkins at school [on] May 8,
              1995. Robert came into my bedroom and touched my
              breast under the clothes and on top of the clothes. [He]
              has touched me different times.



              After adjudging the defendant guilty as charged on each of the two

counts, the trial court denied probation. While conceding that incarceration would

have a "devastating" effect upon the defendant, the trial court determined that the

nature and circumstances of the crime were "grievous," especially because of the

position of trust between the defendant and his granddaughter. The trial court

rejected Community Corrections and determined that judicial diversion was

inappropriate due to the "terribly serious crimes" involved.



              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). 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

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


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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).



              Among the factors applicable to the defendant's application for

probation 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, 286 (Tenn. 1978).



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

E felonies are presumed to be favorable candidates "for alternative 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(a), (b).



              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). That a defendant meets

the minimum requirements of the Community Corrections Act of 1985, however,

does not mean that he is entitled to be sentenced under the Act as a 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

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             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).



              Subsection (2) would initially exclude the defendant from receiving a

Community Corrections sentence because sexual battery is a "crime[] against the

person" codified in "title 39, chapter 13, parts 1-5." See Dwight Leatherwood v.

State, No. 113 (Tenn. Crim. App., at Knoxville, Oct. 4, 1990). He is possibly eligible,

however, under the special needs provision of the Act, which allows some

individuals who commit crimes against the person to be placed on Community

Corrections if they have special needs arising from mental health problems for which

treatment is available. Tenn. Code Ann. § 40-36-106(c).



             The defendant made a persuasive case for judicial diversion,

probation, or Community Corrections. Born February 25, 1931, the defendant had

been married almost a half century by the date of the sentencing hearing and had

no prior criminal record. He completed the eleventh grade of school in Clay County,

Kentucky, received his GED in 1952, and attended college for three years. He had

no history of alcohol or drug abuse, he served in the United States Air Force, and he

                                           5
received an honorable discharge. The defendant has been gainfully employed

throughout his adult life and, in 1961, went to work for Aid Budget Company. He

has served in management in several finance companies and was employed with

the same business for over twenty-five years. The defendant suffers from diabetes,

an ulcer, sleep apnea, angina, migraine headaches, and other infirmities. He has

had surgery on several occasions and suffers from depression, a condition for which

he receives psychiatric treatment and medication. He testified at the sentencing

hearing that he had thirteen prescriptions for medication. The victim submitted a

letter acknowledging that the defendant had suffered emotionally, physically, and

financially. She opposed a sentence of incarceration. Several witnesses testified to

the defendant's good character. He was described as a model citizen.



              While the defendant makes a compelling case for an alternative

sentence, there were two separate counts of sexual battery. The victim referred to

other instances of inappropriate contact. As grandparent and the legal custodian of

the child, the defendant occupied a position of trust and responsibility with regard to

his sixteen-year-old granddaughter; moreover, the trial court determined that the

victim had had a "difficult childhood" prior to being placed in defendant's custody.

See Tenn. Code Ann. § 40-35-114(4), (5).



              The nature of the crime, under these circumstances, is of particular

concern. A term of confinement, in our view, is necessary to avoid depreciating the

seriousness of the offenses. See Tenn. Code Ann. § 40-35-103(1)(B). Thus, the

term ordered is entirely appropriate.



              Although not specifically raised as a separate issue, the defendant has

also complained that the trial court erred by denying his request for judicial


                                           6
diversion. See Tenn. Code Ann. § 40-35-313. This court is limited to a

determination of whether the trial court abused its discretion. Judicial diversion

necessarily precludes the entry of a judgment of guilty and requires the imposition of

immediate probation. State v. Vassar, 870 S.W.2d 543 (Tenn. Crim. App. 1993).

Because we have concluded that the trial court acted within its discretion in denying

probation, it necessarily follows that there was no error in the denial of judicial

diversion.



              Finally, the defendant committed a crime against a person and is thus

disqualified from consideration for Community Corrections. Tenn. Code Ann. § 40-

36-106(a)(2). Because sexual battery is defined as a violent offense, the

Community Corrections program is not an alternative. See Tenn. Code Ann. § 40-

36-106(a)(3); State v. Staten, 787 S.W.2d 934 (Tenn. Crim. App. 1989). While

depression may qualify the defendant under the "special needs" provision of the Act,

the medication and treatment required can be administered in confinement. In

summary, because the trial judge saw and heard the witnesses at the sentencing

hearing and carefully considered all of the controlling factors, we must treat the

judgment of the trial court as presumptively correct.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge




                                            7
CONCUR:



_____________________________
James Curwood W itt, Jr., Judge



_____________________________
Norma McGee Ogle, Judge




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