         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 24, 2004

               STATE OF TENNESSEE v. JAMES DALE WALKER

                      Appeal from the Circuit Court for Blount County
                  Nos. C-12949 and C-12950     D. Kelly Thomas, Jr., Judge



                                 No. E2003-01372-CCA-R3-CD
                                        March 25, 2004

The defendant, James Dale Walker, pled guilty in the Blount County Circuit Court to aggravated
sexual exploitation of a minor, a Class C felony, and sexual exploitation of a minor, a Class E felony.
Pursuant to the plea agreement, the defendant received concurrent sentences of six and two years,
respectively, as a Range I, standard offender. The manner of service of the sentences was to be
determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant
serve his sentences in total confinement. On appeal, this court reversed and remanded, ordering that
the trial court reconsider a sentencing alternative to confinement in the Department of Correction
(DOC). See State v. James Dale Walker, No. E2002-00263-CCA-R3-CD, Blount County (Tenn.
Crim. App. Oct. 18, 2002). After a second sentencing hearing, the trial court ordered that the
defendant serve six months in confinement and the remainder of his sentences on supervised
probation. The defendant appeals, claiming that he should have received full probation. We affirm
the judgments of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN , JJ., joined.

Raymond Mack Garner, District Public Defender, for the appellant, James Dale Walker.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Robert L. Headrick, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s ordering a child pornography videotape as part of an
undercover law enforcement operation in May 2000. In the defendant’s original appeal, this court
stated the following facts:
               An internet company based in Dallas, Texas, called “Landslide” had
               been providing access to internet websites containing child
               pornography. As a result of an investigation by postal inspectors and
               other law enforcement personnel in Dallas, the company was put out
               of business and taken over by law enforcement authorities as an
               undercover operation.

                        During the investigation of Landslide, law enforcement
               officers recovered a list of over one-hundred thousand names of
               customers across the country who had utilized Landslide to access
               child pornography websites. E-mails were sent to the twenty-five
               people in Tennessee who had accessed the child pornography sites
               most often. The Defendant was one of the twenty-five people on the
               list in Tennessee to whom an e-mail was sent. The e-mail stated that
               the Landslide company was back in business and offering the same
               services previously provided. The Defendant responded to the e-mail
               and was eventually given the opportunity to purchase child
               pornography videotapes. The Defendant requested a list of videos
               containing “pre-teen” pornography. A law enforcement officer sent
               the Defendant a list of available titles, including a graphic description
               of the sexual acts depicted in the videos and the ages of the actors.
               The Defendant ordered a videotape entitled “Teen Sex,” which was
               described as depicting a nine-year old girl having sex with her father
               and his friend. The Defendant mailed a money order in the amount
               of $49.95 and requested that the video be sent to his post office box.

Id., slip op. at 2. When the defendant picked up the videotape from the post office, authorities
stopped him in the parking lot. The defendant turned over his home computer to the police and told
the officers that he had a problem with child pornography. Id. He pled guilty to aggravated sexual
exploitation of a minor and sexual exploitation of a minor.

        At the defendant’s first sentencing hearing, David Dirmeyer, a United States Postal Service
Inspector, testified that he confronted the defendant in the post office parking lot and that the
defendant gave a statement. He said that according to the defendant, the defendant would look at
child pornography over the Internet and download some of the pornographic images onto his
computer. He said that at some point, the defendant would become disgusted with himself, delete
the downloaded material, and “start the cycle back over again.” He said a search of the defendant’s
home computer revealed that the defendant had deleted downloaded files, which supported the
defendant’s story. He said the defendant had tried to stop accessing child pornography over the
Internet but could not. He said the defendant denied ever molesting children but admitted having
a sixteen-year-old girlfriend when the defendant was nineteen.




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        On cross-examination, Inspector Dirmeyer acknowledged that the defendant was very
cooperative and voluntarily told the police about the pornographic downloads on the computer.
Inspector Dirmeyer said the defendant lived with his parents and allowed the police to search his
bedroom without a search warrant. He said that when the officers left the home, they forgot to take
the defendant’s computer. He said the defendant paged him and reminded him that the officers had
forgotten to take the computer with them.

        Ronnie Hepperly, the pastor for Restoration International Outreach Church, testified that the
defendant had been a member of his church for about two years and told him about the criminal
charges. He said the defendant was very repentant and wanted Mr. Hepperly to pray with him. On
cross-examination, he testified that the defendant was not involved with any of the youth programs
at the church.

        Joan Walker, the defendant’s mother, testified that the then twenty-eight-year-old defendant
had lived with her all his life. She said her three young grandchildren also lived in the home but that
none of them shared a bedroom with the defendant. She said that on May 31, 2000, the defendant
told her that he had accessed pornography over the Internet and that he was in trouble with the
police. She said that after the defendant’s bond hearing, he had his Internet access service
disconnected.

        The defendant testified that as a result of the charges, he was suspended from his job at Wal-
Mart. He said he worked for his parents’ garbage service business for a while, got a job at
Hollywood Video, and was promoted to assistant manager of the video store. He said he originally
began looking at child pornography on the Internet because he was lonely after breaking up with his
girlfriend. He said he started attending church, realized what he was doing was wrong, and tried to
stop. He said he would delete the pornography from his computer periodically but could not stop
looking at it on the Internet. He said that the officers stopped him in the post office parking lot on
May 31, 2000; that he began counseling sessions with Dr. Michael Buckner in June 2000; and that
he was indicted for the crimes in October 2000. He said he began seeing Dr. Buckner because he
realized he needed help. He said that at the time of the sentencing hearing, he was still seeing Dr.
Buckner and that he would continue counseling if the trial court granted him probation. He said that
through his counseling sessions, he had learned that he was molested at least three times as a young
child. He said that he was sorry for what he had done and that he had not accessed the Internet or
viewed child pornography since May 31, 2000.

        Dr. Michael Buckner testified that he is a licensed psychologist and began counseling the
defendant on June 26, 2000. He said that during one of the defendant’s counseling sessions, the
defendant suddenly remembered being raped by a family member when the defendant was eight or
nine years old. He said that a scout master also had had an inappropriate relationship with the
defendant when the defendant was ten or eleven years old. He said that these events could explain
the defendant’s desire for child pornography. He said that through counseling, people could change
their desires and that the defendant was progressing very well and was no longer having desires for
exposure to under-age sexual material. He said the defendant was immature but was “maturing more


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into age-appropriate kinds of behaviors.” He said that the defendant would need to continue
counseling for at least another year but that he thought the defendant’s likelihood of success was very
high.

         According to the defendant’s presentence report, the defendant dropped out of high school
due to poor health, obtained his GED, and attended some college classes. The defendant described
his physical health as fair and stated that he suffered from migraine headaches, mouth ulcers, and
frequent sore throats. He described his mental health as good and stated that he did not drink alcohol
or use illegal drugs. A drug test conducted on December 27, 2001, was negative. At the time of the
report, the defendant was working for Hollywood Video. The report shows that he also had worked
for Blaine’s Garbage Service and Wal-Mart.

         The trial court determined that enhancement factor (1), that the defendant “has a previous
history of . . . criminal behavior in addition to those necessary to establish the appropriate range,”
applied to his sentences. See T.C.A. § 40-35-114(1) (supp. 2001) (amended 2002).1 In mitigation,
the trial court considered that the defendant had been open and honest with the police, had taken
steps toward rehabilitation, had maintained steady employment, and had no prior criminal
convictions. See T.C.A. § 40-35-113(13). The trial court noted that the defendant was presumed
to be an appropriate candidate for alternative sentencing. See T.C.A. § 40-35-102(6). However, it
ruled that the state had overcome the presumption, stating as follows:

                 The reason being that you have been involved in this type of illegal
                 activity to such a degree over the last year and a half, or so, as to be,
                 as the witness testified, in the top 25 of the people in this whole state
                 when it comes to accessing these child-porn websites. If you had
                 bought, out of curiosity -- or whatever reason -- one videotape, and
                 that was it, then this would be an entirely different situation and I
                 would say that you ought to be placed on probation and do the kinds
                 of things that you’ve been doing . . . . But that is just not anywhere
                 close to what the facts are here.
                         A lack -- I think confinement is necessary to avoid
                 depreciating the seriousness of this offense. And that, in my mind,
                 outweighs the other things that I have considered.

On appeal, the defendant argued that the trial court erred by refusing to grant his request for some
type of alternative sentence. This court agreed, reversed the trial court’s ruling that the defendant
should serve his sentences in total confinement, and remanded the case for resentencing. See James
Dale Walker, slip op. at 7.



        1
          The legislature’s 2002 amendment to T.C.A. § 40-35-114 added as the new enhancement factor (1) that the
“offense was an act of terrorism” but changed the existing enhancement factors only by increasing their designating
number by one.

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        During the second sentencing hearing, Michael Lane, a probation officer with the Board of
Probation and Paroles, testified that after the defendant’s first sentencing hearing, the defendant was
released on an appeal bond. He said the conditions of the defendant’s bond required that the
defendant report monthly to the Board of Probation and Paroles, have no Internet access, continue
counseling, neither possess nor be in a place that housed sexually explicit materials, undergo risk
assessment testing and regular polygraph testing, and live with the defendant’s aunt. He said that
he had supervised the defendant and that the defendant had complied with all of the conditions. He
said that the defendant had taken two polygraph tests and that neither test indicated deception. He
said the defendant no longer worked for Hollywood Video, had mowed yards during the summer,
and was trying to get a job with ProTemp. He acknowledged that the defendant had had steady
employment and that the defendant had cooperated fully with everything he and the trial court had
asked the defendant to do. On cross-examination, he acknowledged that the defendant’s Sex
Offender Risk Assessment stated that the defendant “presents a moderate risk to re-offend” and that
“without appropriate supervision, boundaries that limit his access to potential victims, and specific
sex offender treatment to address his sexual offending,” the defendant would likely act out sexually
in the future.

        The defendant testified that he had not been charged with any other offenses. He said that
Hollywood Video had decreased his work hours and that he was looking for another job. He said
he was having difficulty obtaining employment, though, because he was a convicted felon and
because he no longer could access the Internet and apply for jobs online. He said that Dr. Buckner
was no longer counseling him but that he was being counseled by William Daniel. He said that he
had no problems complying with his appeal bond requirements and acknowledged that he could
follow any rules imposed by the trial court or his probation officer. On cross-examination, the
defendant acknowledged that he worked with Cassie Heatherly at Hollywood Video and that he
mowed Mrs. Heatherly’s neighbor’s yard. He also acknowledged that Mrs. Heatherly wrote a letter
to his probation officer in which she stated that the defendant had been alone with her eleven-year-
old daughter several times while he was mowing the neighbor’s grass. He said that he had had no
unsupervised contact with any children and that Mrs. Heatherly always was present when he was
with her daughter.

        The trial court noted that although Dr. Buckner believed the defendant had a minimum
likelihood of reoffending, the defendant’s Sex Offender Risk Assessment characterized his risk to
reoffend as moderate. Thus, the trial court held that the defendant’s rehabilitation prognosis was
guarded. The trial court noted that the defendant’s work toward rehabilitation had been good and
that he had followed all of the conditions of his bond. However, it still determined that a lack of
confinement would depreciate the seriousness of the offenses and ordered that the defendant serve
six months in confinement and the remainder of his effective six-year sentence on supervised
probation.

       The defendant appeals, claiming that the trial court should have granted his request for full
probation. He contends that the trial court erred by determining that his likelihood for rehabilitation
was guarded because he has no prior criminal record, had committed no subsequent offenses, had


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complied fully with his appeal bond requirements, was receiving counseling, had maintained steady
employment, and had passed two polygraph tests. In addition, he argues that the trial court should
not have denied his request for full probation based upon the need to avoid depreciating the
seriousness of the offenses because the circumstances of the offenses were not “especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree”
as required by State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). The state argues
that trial court properly resentenced the defendant. We agree with the state.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness 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 burden is on the appealing party to show that the sentence is improper. T.C.A. §
40-35-401(d), Sentencing Commission Comments. This means that if the trial court followed the
statutory sentencing procedure, made findings of fact that are adequately supported in the record, and
gave due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         When determining if incarceration is appropriate, a trial court should consider whether (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s potential or
lack of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438. In conducting a de novo review, we must
consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence
report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any
statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168.

        In order for a trial court to deny alternative sentencing based upon a need to avoid
depreciating the seriousness of the offense, the “circumstances of the offense ‘as committed, must
be “especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive
or exaggerated degree,” and the nature of the offense must outweigh all factors favoring probation.’”
State v. Fields, 40 S.W.3d 435, 441 (Tenn. 2001) (quoting State v. Cleavor, 691 S.W.2d 541, 543
(Tenn. 1985) (quoting State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981)), overruled on other


                                                  -6-
grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000)); Hartley, 818 S.W.2d at 374-75. In this
case, the trial court determined at the defendant’s first sentencing hearing that incarceration was
warranted because the defendant repeatedly accessed child pornography for over one and one-half
years and accessed it so frequently that he was one of the top twenty-five people to use Landslide
in Tennessee. During the defendant’s second sentencing hearing, the trial court held that those facts
still warranted a period of confinement. We agree that some confinement is appropriate to
emphasize to this defendant the seriousness of his actions. See State v. Butler, 880 S.W.2d 395, 401
(Tenn. Crim. App. 1994) (holding that the circumstances of the offense did not justify a sentence of
full confinement but did warrant some confinement to avoid depreciating the seriousness of the
offense). The proof shows that the defendant repeatedly viewed child pornography over the Internet
and frequently downloaded the pornographic images onto his computer. Although he was disgusted
with his behavior, the defendant failed to get any treatment for his addiction until the police stopped
him in the post office parking lot. We hold that the defendant’s criminal conduct justifies six months
in confinement to avoid depreciating the seriousness of the offenses.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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