            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON                  FILED
                          JULY 1998 SESSION              November 6, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )       C.C.A. No: 02C01-9711-CC-00455
            Appellee,           )
                                )       Hardeman County
VS.                             )
                                )       Hon. Jon Kerry Blackwood, Judge
                                )
LUTHER TOOTLE,                  )       (Sentencing)
                                )
            Appellant.          )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Andrew S. Johnston                      John Knox Walkup
108 East Court Square                   Attorney General & Reporter
Somerville, TN 38068
                                        Clinton J. Morgan
                                        Counsel for the State
                                        425 Fifth Avenue North
                                        2nd Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493

                                        Elizabeth T. Rice
                                        District Attorney General
                                        302 Market Street
                                        Somerville, TN 38068

                                        Jerry Norwood
                                        Assistant District Attorney General
                                        Hardeman County Courthouse
                                        Bolivar, TN 38008




OPINION FILED:


AFFIRMED


ROBERT W. WEDEMEYER,
Special Judge

                              OPINION


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       The defendant pled nolo contendre to one count of attempted child rape and two

counts of sexual battery. At the conclusion of the sentencing hearing, the trial court

sentenced the defendant to the minimum sentence of eight years on the attempt to commit

child rape conviction and the minimum sentence of one year for each of the sexual battery

convictions and ordered the sentences to run concurrently. The defendant was sentenced

as a Standard thirty percent (30%) Range I Offender.            The trial court denied the

defendant’s request for probation or alternative sentencing stating that said denial was

based on the sole factor that confinement is necessary to avoid depreciating the

seriousness of the offense. In this appeal, the defendant argues that the trial court erred

in failing to grant probation and in ordering the defendant to serve the sentences with the

Tennessee Department of Correction.

       Following our review of the record, we affirm the trial court.



                                  SENTENCING HEARING

       At the sentencing hearing, the state presented testimony from the mothers of two

of the victims. The defense presented the testimony of five witnesses, including the

defendant’s mother, who were all character witnesses for the defendant. The defendant

also testified.

       The mother of each victim testified in detail as to the adverse effects of the

defendant’s conduct on her child. One victim has cerebral palsy and walks with crutches.

Another victim has an “attention deficit” and is in a class for the emotionally disturbed. One

victim was eight-years-old when victimized and the other was seven-years-old when

victimized.       Both parents expressed, in no uncertain terms, their opinions that the

defendant should go to jail.

       The witnesses for the defendant all essentially agreed that the defendant is a

respectable young man with a good reputation who is involved extensively in church and

church-related activities.     The defendant has no criminal record whatsoever.          The

defendant denied any involvement in the criminal activity to which he pled nolo contendre.

He recently graduated from high school and would like to attend college. The defendant

presented several certificates and awards that he had received for church-related activities.

He also expressed his willingness to comply with any conditions of probation that might be



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set by the court.



                                    LEGAL ANALYSIS

       When the defendant challenges the manner of serving a sentence, it is the duty of

this Court to conduct a de novo review of the record with a presumption that the trial court’s

determinations are correct. Tenn. Code Ann. §40-35-401(d). The “presumption of

correctness which accompanies the trial court’s action 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 its review, this Court must consider the following: the evidence, if any, received

at trial and sentencing hearing, information contained in the presentence report, the

statutory principles of sentencing, counsel’s arguments as to sentencing alternatives, the

nature and characteristics of the criminal conduct, mitigating and statutory enhancement

factors, any statement that the defendant made on his own behalf, and the potential for

rehabilitation or treatment. Ashby, 823 S.W. 2d 166, 168-169 (Tenn. 1991).

       In a case where the defendant seeks probation, the Court must consider “the

accused’s criminal record, social history, present physical and mental condition, the

circumstances of the offense, the deterrent effect upon criminal activity of the accused as

well as others, and the accused’s potential for rehabilitation and treatment.” State v.

Parker, 932 S.W.2d, 945, 959 (Tenn. Crim. App. 1996). This Court has previously

determined that a negative finding of any one of these factors is sufficient to support a

denial of probation. State v. William Bell, No. 02C01-9608-CR-00275 (Tenn. Crim. App.

July 18, 1997).

       In the instant case, the trial court heard the testimony of the mothers of two victims,

the defendant, the defendant’s mother, and several character witnesses for the defendant.

The trial court also reviewed the pre-sentence report and heard argument by counsel.

After a concise discussion of enhancing and mitigating factors, the Court sentenced the

defendant to the minimum sentence for each offense, to run concurrently. It is clear from

the record that the trial court considered the law and evidence before it and concluded that

it was appropriate to deny probation in this case. The trial court concluded that:

              The Court denies any petition for relief or for alternative
              sentencing or suspension. The Court has done so on the sole

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              factor, and only factor, that confinement is necessary to avoid
              depreciating the seriousness of the offense.

       T.C.A. §40-35-103(1) provides:

              Sentences involving confinement should be based on the
              following considerations:

              ...(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;...

              A denial of alternative sentencing when based upon Tennessee Code

Annotated section 40-35-103(1)(B) must be predicated upon a finding that the nature and

circumstances of the offense are “especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or exaggerated degree” and that the nature of the

offense “outweighed all other factors . . . which might be favorable to a grant of probation.”

State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see also State v. Hartley, 818 S.W.2d

370, 374 (Tenn. Crim. App. 1991). Although the trial court did not repeat any of the Travis-

Hartley adjectives in determining that confinement was necessary to avoid depreciating

the seriousness of the offense, it is clear from the record that the nature of these sexual

offenses committed against child victims who were impaired was exaggerated in

seriousness. Upon our de novo review of the record, we find that the nature of these

offenses was especially shocking, reprehensible, and offensive, and supports the denial

of alternative sentencing in general and probation in particular.

       Having reviewed the testimony from the sentencing hearing, the presentence report,

and the entire record, this Court concludes that the defendant has failed to meet his

burden of showing that the trial court erred in denying alternative sentencing.



                                      CONCLUSION

       This Court AFFIRMS the sentence imposed by the trial court.

                                                  ________________________________
                                                       ROBERT W. WEDEMEYER,
                                                           Special Judge

CONCUR:


_________________________________
        JOE G. RILEY, Judge




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_________________________________
      CURWOOD W ITT, Judge




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