        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE               FILED
                        FEBRUARY SESS ION, 1998        September 10, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,             )   C.C.A. NO. 03C01-9706-CC-00220
                                )
      Appellee,                 )
                                )
                                )   ANDERSON COUNTY
VS.                             )
                                )   HON. JAMES B. SCOTT, JR.
JOSEPH J. BROOKS,               )   JUDGE
                                )
      Appe llant.               )   (Prob ation D enial)




FOR THE APPELLANT:                  FOR THE APPELLEE:

NANCY MEYER                         JOHN KNOX WALKUP
Office of the Public Defender       Attorney General and Reporter
101 South Main Street
Suite 450                           MARVIN E. CLEMENTS, JR.
Clinton, TN 37716                   Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243-0493

                                    JAMES N. RAMSEY
                                    District Attorney General

                                    JAN HICKS
                                    Assistant District Attorney
                                    127 Anderson County Courthouse
                                    Clinton, TN 37716



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                            OPINION


        An Anderson County grand jury indicted Appellant on three counts of rape

of a child and three counts of incest, alleging sexual penetration of MT,

Appe llant’s step-daugh ter.1 On Au gust 19 , 1996, A ppellant e ntered a plea of nolo

contende re to the re duce d cha rge of th ree co unts o f simp le rape, for an agreed

sentence of eight years on each count, with the sentences to be run concurrently.

The trial court conducted a probation hearing on February 7, 1997, after which

the trial court denied probation and ordered Appellant to serve his sentence in the

Tennessee Department of Correction. Appellant appeals from this denial of

probation.



        After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



        When a defendant com plains of his or h er sente nce, we must co nduct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission

Commen ts. This presumption, however, is conditioned upon an a ffirmative

showing in the record that the trial court considered the sentencing principles and

all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).




        1
         It is the policy of this Court to refrain from disclosing the names of minor victims of sexual
assault. Instead we will refer to the victim by her initials.

                                                    -2-
      The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tennessee Code

Annotated § 40-35-210, mandate the trial court’s consideration of the following:



      (1) The eviden ce, if any, received at the trial and the
      sentencing hearing; (2) [t]he presen tence re port; (3) [t]he
      principles of sentencing and arguments as to sentencing
      alternatives; (4) [t]he nature and c harac teristics of the
      criminal cond uct invo lved; (5 ) [e]vide nce a nd info rmatio n
      offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
      statement the defendant wishes to make in his ow n beh alf
      about sentencing.


Tenn. Code Ann. § 40-35 -210.           In determ ining w hethe r incarc eration is

appropriate the trial court must take into account the following principles:



      (1)    (A) Confinem ent is necess ary to protect society by restraining a
             defend ant who has a lon g history of c riminal co nduct;
             (B) Confin eme nt is neces sary 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) Measures less restrictiv e than confin eme nt have freque ntly or
             recently b een ap plied uns uccess fully to the de fendan t;
      (2)    The sentence imposed should be no greater than that deserved for
             the offense committed;
      (3)    Inequalities in senten ces that a re unrela ted to a purpos e of this
             chapter should be avoided;
      (4)    The sentence imposed sho uld be the least se vere mea sure
             necessa ry to achieve the pu rpose s for wh ich the sente nce is
             imposed;
      (5)    The potential o r lack of po tential for the rehabilitation or treatment
             of the de fenda nt sho uld be considered in determining the sentence
             alternative or length of a term to be imposed . The length o f a term
             of probation may reflect the length of a treatment or rehabilitation
             program in which participation is a condition of the sentence; and
      (6)    Trial judges a re enco uraged to use altern atives to incarceration that
             include requirements of reparation, victim compensation and/or
             community service.




                                         -3-
Tenn. Code Ann. § 40-35-103. Apart from a stated desire to avoid depreciating

the seriousness of the offense, and the need for deterrence, the record does not

reflect consideration by the trial judge of the criteria outlined abo ve. We therefore

review de novo the determination to deny probation in this case.



      Irrespective of whether the sentence actually imposed by the trial court is

reviewed with or without a presumption of correctness, on appeal the burden of

showing the impropriety of the sentence and the entitlement to probation remains

with the defendant. Sentencing Commission Comments, Tenn. Code Ann. § 40-

35-210 (b)(3) (199 0); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.

1995). As a Ra nge I, standard offen der, convicted of a Class B felony, Appellant

is not presu mptive ly entitled to a sentence other than continuous confinement for

the duration of the term of years imposed. Tenn. Code Ann. § 39-13-503(b) and

§ 40-35-10 2(6) (Supp. 1 994).



      The presentence report indicates that the Appellant is a 47 year old man

suffering from alcoho lism. He has a history of arrests and c onvictio ns for p ublic

intoxication and driving under the influence of an intoxicant. Although he has

been in and out of treatment for alcoholism since the 1970's, these efforts appear

to have been largely unsuccessful up until the commission of the present

offenses. Th e Appellant also has a poo r employm ent history.



      The Appellan t prese nted p roof tha t he wa s, at the time o f sente ncing,

employed and had completed in-patient treatment for alcoholism. He was also

participating in out-patient treatment and he had stayed away from M.T. The




                                         -4-
Appellant stated that he was not a danger to the community, and he presented

two character witnesses in support of his request for probation.



         At the close of the hearing, the trial c ourt de nied p robatio n in ord er to av oid

depreciating the seriousness of the offense and in order to deter others from

committing the same type of offense.



Need to Avoid Depreciating the Seriousness of the Offense



         When the legislature has determined that probation is permissible for an

offense, in order for probation to be denied on the b asis of a nee d to avo id

depreciating the seriousness of the offense, “the circumstances of the offense as

committed mus t be es pecia lly violent, horrifyin g, sho cking , repre hens ible,

offensive, or otherwise of a excessive or exaggerate d degree.” State v. Hartley,

818 S.W .2d 370, 374 (Tenn. Crim . App. 1991 ).2 Although the Appellant’s actions

in this case are disgustin g, we ca nnot sa y that, as co mm itted, this cas e mee ts the

Hartley standard.



Need for Deterrence



         Ordinarily, the denial of probation based on the need for deterrence of

other potential offenders must be supported by specific evidence of the ne ed in

the comm unity for deterrence in the commission of crimes like those committed


         2
          The State cites in its brief Tennessee Code Annotated § 37-1-601(a) as a statement by the
Gen eral A sse mb ly of Te nne sse e tha t the p ublic p olicy of Ten nes see favo rs se vere punis hm ent fo r child
sex abusers. While this code section does embody a legislative expression of concern about the
incidence of child sexual abuse, the General Assembly has nevertheless seen fit to retain probation as an
alternative sentence for many child sex abusers.

                                                      -5-
by the defen dant. State v. Ashby, 823 S.W .2d 166, 170 (Tenn. 199 1). However,

no extrinsic proof is required to establish the need for deterrence in the

commission of certain criminal offenses; the need for incarceration of offen ders

in these cases is self-evident. State v. Dam on W . Byrd, No. 01C01-9503-CR-

00083 (Tenn. Crim. A pp. Aug ust 1, 199 6); State v. Pinkham, No. 02C01-9502-

CR-00040 (Tenn. Crim. App. May 24 , 1996); State v. Millsaps, 920 S.W.2d 267,

271 (Tenn. Crim. App. 1995). Sexual mole station of child ren is an offense w here

the need fo r deterren ce is obvio us. See State v. Vines, No. 95 1991 WL 21603,

at *1 (Ten n. Crim. A pp. Feb . 22, 1991 ); See also State v. K ratts, No. 193, 1988

W L 633512, at *4 (T enn. C rim. A pp. Ju ne 22 , 1988 )(com men ting tha t “there is

a public awareness of the need to deter an individual who would sexually abuse

children” and that “the need to deter . . . is obvious”). Thus, we conclude that

probation was properly denied on the basis of the need to deter others from

comm itting crime s similar to th ose of the Appella nt. 3



         Accordingly, the judgment of the trial court is affirmed.



                                                ____________________________________
                                                JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE

         3
          Although we have concluded that the need to deter child sex abuse cases through incarceration
is obv ious , the q ues tion o f the n eed for ex trinsic proo f on th is iss ue is t he su bjec t of so me disag reem ent in
the cou rts. W hen ther e is abun dant em pirical and a necdo tal evidenc e conc erning the num ber of inc idents
child s ex ab use in our com mu nities , law e nfor cem ent e fforts to cu rb it, an d the prob lem s ca use d by it, it
esc ape s us why pr ose cuto rs in m any ins tanc es fa il to intro duc e suc h pro of wh en op pos ing pr oba tion in
these types of case.

                                                          -6-
___________________________________
WILLIAM B. ACREE, JR. SPECIAL JUDGE




                              -7-
