             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            DECEMBER 1997 SESSION
                                                             April 20, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                 )    No. 01C01-9609-CR-00415
                                    )
      Appellee                      )
                                    )    PUTNAM COUNTY
V.                                  )
                                    )    HON. LEON C. BURNS, JR.,
MAX EUGENE MARTIN,                  )    JUDGE
                                    )
      Appellant.                    )    (Sentencing)
                                    )
                                    )


For the Appellant:                       For the Appellee:

David Neal Brady                         John Knox Walkup
District Public Defender                 Attorney General and Reporter

H. Marshall Judd                         Elizabeth B. Marney
Assistant Public Defender                Assistant Attorney General
215 Regan Street                         425 Fifth Avenue North
Cookeville, TN 38501                     Nashville, TN 37243-0493


                                         William Edward Gibson
                                         District Attorney General

                                         Lillie Ann Sells
                                         Benjamin W. Fann
                                         Assistant District Attorneys
                                         145 Jefferson Avenue
                                         Cookeville, TN 38501




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                                OPINION


       The appellant, Max Eugene Martin, appeals the sentence he received following

his plea of guilty to one count of statutory rape, a Class E felony. The trial court

sentenced the appellant to eighteen months confinement in the county jail and denied

alternative sentencing.

       On appeal, the appellant argues that:

       (1)        the trial court erred in not excluding the testimony of a
                  psychologist presented by the State or, in the alternative, for not
                  continuing the sentencing hearing;

       (2)        the trial court erred in the application of enhancement factor (7)
                  under Tennessee Code Annotated section 40-35-114;

       (3)        the trial court erred in sentencing appellant to eighteen months
                  incarceration;

       (4)        the trial court erred in finding no mitigating factors;

       (5)        the trial court erred in failing to grant appellant probation or another
                  alternative sentence; and

       (6)        his sentence has expired.

Although reviewed without the presumption of correctness, we conclude that the

sentence is proper. Accordingly, the judgment of the trial court is affirmed.

       In 1991, the forty-six-year old appellant was indicted for the aggravated rape of

a fifteen-year-old female. Pursuant to a plea agreement, appellant consented to

prosecution by information1 on the charge of statutory rape, to which he pled guilty on

May 28, 1992. The State dismissed the aggravated rape indictment. Although it was

agreed that appellant would be sentenced as a Range I offender, there was no

agreement concerning the length of appellant’s sentence or the manner of its service.

       According to statements in the presentence report, on the day of the offense,

appellant was visiting the victim’s mother and her boyfriend. On the pretense of

driving the victim to the store, the victim left with appellant. He drove her to Martin’s



       1
           This procedure is outlined in Tenness ee Code Ann otated section 40-3-103 (1990).

                                                    2
Creek in Putnam County where he took her clothes off, held her down, and forcibly

raped her once. The victim became pregnant as a result of the encounter and

subsequently had an abortion.

          A sentencing hearing was held on July 29, 19922. Dr. Peggy Karlosky, a

licensed psychologist who was treating the victim, testified for the State. The victim

was referred to Dr. Karlosky by a member of the District Attorney’s Office. Dr.

Karlosky had diagnosed the victim as suffering from post-traumatic stress disorder as

a result of the rape. She testified that the victim was very depressed, had severe

anxiety, was fearful of all men and especially appellant, and was suicidal on one

occasion. Dr. Karlosky believed that the victim would need continued counseling,

remarking that she “has a long ways to go.”

          The victim’s grandmother, her legal custodian, also testified about how the

incident had adversely affected the victim. She testified that the victim was very

happy and attended church regularly before the incident. After the incident, the victim

became very depressed. She testified that the victim was fearful of the appellant.

With respect to the pregnancy, a medical doctor advised her that the victim was

incapable of carrying the child and the victim had an abortion as a result.

          Although appellant did not testify at the sentencing hearing, he did provide his

version of the incident in the presentence report. In that statement, appellant admitted

having had sexual intercourse with the victim. However, he stated that it happened

three months prior to the time alleged by the victim and that it was consensual.

Appellant stated that he pled guilty because he “didn’t want to take a chance on a jury

trial.”



          2
           The excessive delay in the appeal of this case is very troubling. The notice of appeal was filed
August 11, 1992. The transcript should have been filed within ninety days of the filing of a notice of
appeal. Tenn. R. App. P. 24(b). However, nothing transpired in appellant’s case until September 26,
1996 when the appellant filed a motion seeking permission to late file the transcript, which was not
oppos ed by the S tate. The only reaso n cited for th e delay wa s the co urt reporte r’s volum e of work . On
Octob er 9, 199 6, this Cou rt granted the appe llant up to an d including Dece mbe r 30, 199 6 within wh ich to
file the transcript. No explanation for the four year delay between the notice of appeal and the motion for
late filing appe ars in the re cord.

                                                       3
       The presentence report reflects that appellant has a previous criminal history of

six alcohol-related misdemeanor convictions occurring between 1972 and 1991.

Although the presentence officer only discovered three convictions, appellant reported

three additional convictions in other counties. Appellant admitted to drinking alcohol

on a daily basis and reported that he began drinking at age nine. He dropped out of

high school in the tenth grade and had been unemployed since 1985. Appellant

reported numerous health problems and had applied for disability benefits on three

occasions, but was rejected each time. Post-judgment facts submitted for our

consideration indicate that appellant underwent heart by-pass surgery in June of 1996.

       The only proof introduced by appellant at the hearing was testimony from a

home healthcare nurse who cared for his mother. She testified that appellant lives

with his invalid mother and helps care for her. At the conclusion of the proof, the trial

court sentenced appellant to serve eighteen months in the county jail.

       Appellant first challenges the admission of testimony by Dr. Peggy Karlosky

relative to the victim’s mental condition. He argues that the State violated the

discovery rules by failing to provide him with “any information concerning Dr.

Karlosky’s testimony nor had the defendant received a copy of same.” See Tenn. R.

Crim. P. 16. Therefore, he argues that her testimony should have been excluded, or

in the alternative, that he should have been granted a continuance to prepare for her

testimony. We conclude that any error in the admission of Dr. Karlosky’s testimony

was harmless beyond a reasonable doubt.

       At the sentencing hearing, the trial court overruled appellant’s objection to Dr.

Karlosky’s testimony, stating that the discovery rules did not apply to sentencing

proceedings. To the contrary, the discovery rules are applicable in sentencing

proceedings. See State v. Buck, 670 S.W.2d 600, 606 (Tenn. 1984); State v. Cottrell,

868 S.W.2d 673, 677 (Tenn. Crim. App. 1992) (stressing importance of complying with

discovery rules at sentencing stage, as well as trial).

       Tennessee Rule of Criminal Procedure 16(a)(1)(D) provides:

                                            4
        Reports of Examinations and Tests. - Upon request of a defendant, the
        state shall permit the defendant to inspect and copy or photograph any
        results or reports of physical or mental examinations, and of scientific
        tests or experiments, or copies thereof, which are within the possession,
        custody or control of the state, the existence of which is known, or by the
        exercise of due diligence may become known, to the district attorney
        general and which are material to the preparation of the defense or are
        intended for use by the state as evidence in chief at trial.

        In the context of appellant’s case, this subsection required3 the State to

produce records, reports, or notes of Dr. Karlosky which she may have prepared in the

course of her treatment of the victim. The State presented Dr. Karlosky to

demonstrate the impact the rape had on the victim and her notes with respect to her

diagnosis and treatment of the victim were discoverable by the defense. However,

any error was harmless because it is apparent from the record that the trial court did

not take into account Dr. Karlosky’s testimony in any way in deciding the length or the

manner of service of the appellant’s sentence. The issue is without merit.

        We now turn to appellant’s issues (2), (3), and (4) which pertain to the length of

his sentence.4 When a defendant challenges his or her sentence, we must conduct a

de novo review of the record. Tenn. Code Ann. §40-35-401(d) (1990). The sentence

imposed by the trial court is accompanied by a presumption of correctness and the

appealing party carries the burden of showing that the sentence is improper. Tenn.

Code Ann. §40-35-401 Sentencing Commission Comments. The presumption,

however, is conditioned upon an 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). Because of certain errors committed by

the trial court, our review is without the presumption of correctness.

        Appellant was convicted of a Class E felony, which has a Range I punishment

of one to two years. Tenn. Code Ann. §39-13-506(d) (1991); Tenn. Code Ann. §40-


        3
          The State’s duty to disclose under the Rule is triggered by the request of the defendant, which
is included in the record.

        4
        Although appellant now contests the length of his sentence, the record reflects that his counsel
suggested that the court sentence appellant to eighteen months with an alternative to incarceration.

                                                    5
35-112(a)(5) (1990). The presumptive sentence, without enhancement or mitigation,

is the minimum within the range. Tenn. Code Ann. §40-35-210(c) (1990). The trial

court gave the appellant a mid-range sentence because of his previous history of

criminal convictions and because it found that the offense was committed to gratify the

appellant’s desire for pleasure or excitement. Tenn. Code Ann. §40-35-114(1), (7)

(1990).

       There is no issue about appellant’s criminal history; he has multiple alcohol-

related misdemeanor convictions. Appellant does contest, however, the application of

enhancement factor (7), that the offense was committed to gratify the defendant’s

desire for pleasure or excitement. In applying the enhancement factor, the trial court

remarked that it was “a close call” and that it had “questionable applicability.”

Nonetheless, the record reflects that the trial court did rely on that factor to enhance

appellant’s sentence.

       We cannot agree with the trial court’s application of the factor. In order for that

factor to apply, the State bears the burden of demonstrating the defendant’s motive

for committing the offense. State v. Kissinger, 922 S.W.2d 482, 491 (Tenn. 1995);

State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The factual record before us is

completely devoid of any proof that the offense was committed for appellant’s

pleasure or excitement. Without affirmative proof in that regard, the factor may not be

used to enhance appellant’s sentence.

       Nevertheless, upon our de novo review, we find an enhancement factor not

applied by the trial court or raised by the State. Adams, 864 S.W.2d at 34. Because

the offense resulted in pregnancy, it is proper to enhance appellant’s sentence for the

particularly great personal injuries inflicted upon the victim. Tenn. Code Ann. §40-35-

114(6) (1990). An unwanted pregnancy for a fifteen-year-old, with the inherent

physical discomfort and the need for an abortion, is sufficient to warrant application of

that factor. State v. Smith, 910 S.W.2d 457, 461 (Tenn. Crim. App. 1995); State v.



                                             6
Jones, 889 S.W.2d 225, 231 (Tenn. Crim. App. 1994). Appellant’s prior criminal

history and the victim’s personal injuries justify a sentence at the midpoint of the

range.

         Additionally, appellant argues that the trial court erred in not applying any

mitigating factors. He claims that the trial court should have reduced his sentence

because his conduct neither caused nor threatened serious bodily injury and because

substantial grounds exist tending to excuse or justify appellant’s conduct. See Tenn.

Code Ann. §40-35-113(1), (3) (1990). Our application of enhancement factor (6)

regarding particularly great personal injury eliminates the consideration of mitigating

factor (1).

         With regard to mitigating factor (3), appellant contends that the victim’s use of

birth control pills and her sexual activity are grounds that tend to excuse or justify his

conduct.5 Aside from defense counsel’s assertions in the record before us, there is no

evidence of any promiscuous conduct by the victim. Moreover, by pleading guilty, the

appellant waived any reliance on that defense. The issue is without merit.

         Appellant also asserts that the trial court erred in denying an alternative

sentence. The trial court stated that it could find nothing in the record to justify a “light

sentence and be on probation.” In its comments about the serious nature of the

offense, the trial court implied that confinement was necessary to avoid depreciating

the seriousness of the offense. Tenn. Code Ann. §40-35-103(1)(B) (1990). We

agree.

         Although appellant was presumed to be a favorable candidate for alternative

sentencing, that presumption may be rebutted by evidence to the contrary. Tenn.

Code Ann. §40-35-102(6) (1990). We agree with the trial court that confinement is

necessary to avoid depreciating the seriousness of the offense. Tenn. Code Ann.



         5
         At the time of the offense, it was a defense to statutory rape that the victim was at least
fourteen years of age and had, prior to the time of the offense, engaged promiscuously in sexual
penetration. Tenn. Code Ann . §39-13-506(b) (1991).

                                                     7
§40-35-103(1)(B) (1990). The record on appeal clearly reflects that the circumstances

of the offense were especially horrifying, shocking, reprehensible, or offensive.

Further, the nature of the offense outweighs all factors favoring a sentence other than

confinement. State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995).

       The very act of a forty-six-year-old man having sexual intercourse with a child

one-third his age is intensely shocking, repulsive, and reprehensible. See State v.

Jackie B. Richardson, No. 85-140-III (Tenn. Crim. App. at Nashville, December 4,

1985) (finding that sexual battery of nine-year-old victim by forty-five year-old

defendant was “especially shocking, reprehensible, and offensive”); State v. Roy M.

Sharpe, No. 85-190-III (Tenn. Crim. App. at Nashville, November 8, 1985) (holding

that twenty-five year old defendant having sexual relations with his girlfriend’s twelve-

year-old daughter is “especially shocking, reprehensible, and offensive”).

       Moreover, when we couple the vast age difference with evidence of the victim’s

ensuing pregnancy and the necessity of an abortion, we conclude that the State has

presented more than sufficient proof to rebut the presumption of alternative

sentencing. See State v. Armondo Hernandez Oliveria, No. 03C01-9611-CR-00417

(Tenn. Crim. App. at Knoxville, September 24, 1997), perm. app. filed (Tenn.

December 1, 1997) (rejecting alternative sentence for statutory rape conviction based

upon circumstances of the offense); State v. Daniel Arthur Schmidt, No. 03C01-9501-

CR-00016 (Tenn. Crim. App. at Knoxville, August 3, 1995), perm. app. denied (Tenn.

1996) (rejecting alternative sentence for statutory rape conviction because nature of

offense was reprehensible and offensive). Similarly, we believe these considerations

outweigh the factors appellant advanced in favor of probation, i.e. the need to care for

his ailing mother and his poor health.

       In his final issue, appellant contends that his sentence has expired. The record

reflects that appellant was sentenced in open court on July 29, 1992. To allow

appellant an opportunity to decide whether to appeal, the trial court delayed

appellant’s confinement until August 12, 1992. Although an order allowing appellant

                                             8
to remain on bond pending appeal was filed August 11, 1992, appellant reported to

the jail on August 12, 1992 and began service of his sentence. On August 17, 1992,

he was released from custody on bond pending appeal.

       According to appellant, he has effectively been on probation since he was

released from jail and his sentence has expired. This claim is wholly unfounded and

unsupported by authority. The record clearly reflects that appellant was released on

bond pending appeal, per the order of the trial court. The record contains no order of

the trial court relative to probation. We cannot permit appellant to spontaneously

place himself on probation.

       Similarly unpersuasive is appellant’s reliance on State v. Walker, 905 S.W.2d

554 (Tenn. 1995). The expiration of the sentence in Walker was premised on a

defendant who was turned away from jail due to overcrowding. Id. at 557. That

circumstance does not exist in appellant’s case and Walker has no application here.

The other authority appellant relied upon in his brief is neither controlling nor

persuasive. Appellant’s issue is without merit.

       Having found no reversible error, we affirm the judgment of the trial court.



                                                  _______________________________
                                                  William M. Barker, Judge



____________________________
Joe B. Jones, Presiding Judge



____________________________
Paul G. Summers, Judge




                                             9
