            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          APRIL SESSION, 1998


                                                                 FILED
STATE OF TENNESSEE,              )
                                 )   No. 02C01-9708-CR-00323 May 22, 1998
      Appellee                   )
                                 )   SHELBY COUNTY               Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk
vs.                              )
                                 )   Hon. Bernie Weinman, Judge
MICHAEL W. WASSON,               )
                                 )   (Attempt to Commit
      Appellant                  )   Aggravated Sexual Battery)



For the Appellant:                   For the Appellee:

Ballin, Ballin & Fishman, P.C.       John Knox Walkup
Marvin E. Ballin                     Attorney General and Reporter
Mark A. Mesler
200 Jefferson Avenue
Suite 1250                           Georgia Blythe Felner
Memphis, TN 38103                    Assistant Attorney General
                                     Criminal Justice Division
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493


                                     William L. Gibbons
                                     District Attorney General

                                     Thomas Hoover
                                     Asst. District Attorney General
                                     Criminal Justice Complex
                                     Suite 301, 201 Poplar Street
                                     Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



            The appellant, Michael W. Wasson, appeals the sentencing decision of the

Shelby County Criminal Court following his guilty plea to the offense of attempt to

commit aggravated sexual battery, a class C felony.1 Pursuant to a negotiated

plea, the appellant received a sentence of five years as a range I offender and a fine

of $500. The manner of service of the sentence was submitted to the trial court for

determination. Following a sentencing hearing, the trial court imposed a sentence of

confinement in the Shelby County Correction Center. The appellant appeals this

decision, arguing that he is entitled to a sentence of total probation.2



            After a review of the record, we affirm.



                                                 Background

            The proof stipulated to, at the sentencing hearing, established that on the

dates of June 25, 26 and 27, 1996, the appellant’s seven year old niece, D.F.,

visited at the home of the appellant.3 At some point during these visits, the

appellant’s wife went to the attic and saw the appellant “touching [D.F], rubbing her,

kissing her on the cheek.” She immediately confronted the appellant; he replied that

“nothing” had happened. The police were called. D.F. stated to the police that the

appellant had pulled down both his pants and her panties. He then rubbed his penis

against her stomach. D.F. further informed the police that this had occurred on at

least three prior occasions.



            On the date of the hearing, the appellant was forty-one years old, married,


            1
                The indictment returned by the grand jury charged the crime of aggravated sexual
batte ry.

            2
         The appellant’s issue is framed as whether the trial court erred by refusing to suspend
his sentence. We interpret this to mean total probation.

            3
        It is the policy of this court to ide ntify minor children b y their initials. See State v.
Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn.Crim .App. 1989).

                                                      2
had no prior criminal history, and possessed a stable work history as a maintenance

worker. He was financially responsible for the welfare of his wife and three step-

children, and was current in support of his son by a previous marriage. The proof

also shows that, immediately following this offense, the appellant sought and was

continuing to receive psychological counseling for “anxiety, depression, and sexual

urges.” He expressed remorse for his actions and had apologized to both the victim

and her family. The trial court in denying probation relied, in large part, upon the

nature and circumstances of the criminal conduct committed by the appellant.




                                             Analysis

        In his only issue, the appellant contends that the trial court erred by imposing

a sentence of total incarceration. The appellant argues that his sentence should

have been “suspended.”4 When the manner of service of a sentence is challenged

on appeal, this court must conduct a de novo review with consideration of the

evidence received at the sentencing hearing, the presentence report, the principles

of sentencing and arguments as to sentencing alternatives, the nature and

characteristics of the criminal conduct involved, any statutory mitigating or

enhancement factors, any statement that the defendant made on his own behalf,

and the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.

§§ 40-35-102 (1996 Supp.); 40-35-103 (1990);40-35-210 (1996 Supp.). Although a

de novo review is conducted by this court, the trial court’s determination is

presumed correct on appeal, conditioned upon an affirmative showing in the record

that the trial court properly considered relevant sentencing principles. Tenn. Code

Ann. § 40-35-401(d)(1990); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Moreover, the appellant bears the burden of showing that the sentence imposed by

the trial court is improper. See Sentencing Commission Comments, Tenn. Code

        4
          We note that our review on appeal is limited to the narrow question of whether the trial
court erred in denying a sentence of total probation. Accordingly, this review does not encompass
other sentencing alternatives because they were not included within the appellant’s assigned
issu e nor argu ed by c oun sel on appe al.

                                                3
Ann. § 40-35-401(d).



       The appellant correctly argues that because he was convicted as a standard

offender of a class C felony, he is statutorily eligible for probation. See Tenn. Code

Ann. § 40-35-303(a) (1996 Supp.). However, the fact that the appellant is eligible

for probation does not mean that probation should automatically be granted. While

the burden is upon the State to show a defendant's non-entitlement to the statutory

presumption of an alternative sentence, the defendant has the burden of

establishing suitability for full probation. See Tenn. Code Ann. § 40-35-303(b). See

also State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1995) (citation omitted). To meet his burden, the appellant must

demonstrate that probation will “subserve the ends of justice and the best interest of

both the public and the defendant.” Id. at 448. The following factors are relevant to

the sentencing court’s determination:

       (1) the nature and circumstances of the conduct involved, Tenn. Code
       Ann. § 40-35-210(b)(4);

       (2) the defendant’s potential or lack of potential for rehabilitation, Tenn.
       Code Ann. § 40-35-103(5);

       (3) whether a sentence of probation will unduly depreciate the
       seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and

       (4) whether a sentence other than probation would provide an effective
       deterrent to others likely to commit similar crimes, Tenn. Code Ann. §
       40-35-103(1)(B).

See Bingham, 910 S.W.2d at 456.


       In addition to the above enumerated considerations, release into the

community of an offender who has committed a crime against the person, especially

in a case involving the sexual molestation of a minor, necessarily requires a

determination by the sentencing court as to whether (1) the offender poses no harm

to the community and (2) that the offender is not likely to reoffend. The record

reveals that the appellant is currently receiving psychological counseling for his

"sexual urges." Beyond this fact, the record is silent as to whether the appellant's


                                          4
aberrational behavior poses a danger to the public in general or whether there exists

the possibility that he may reoffend the victim in this case. In seeking total

probation, the appellant bears the responsibility of negating potential harm to the

community; these questions being relevant to the issue of rehabilitation. See Tenn.

Code Ann. § 40-35-103(5).



       Additionally, the record indicates that the appellant has committed similar

unlawful acts with the victim on at least three other occasions. This fact alone is

sufficient to deny alternative sentencing. See State v. Matthews, No. 03C01-9505-

CR-00153 (Tenn. Crim. App. at Knoxville, May 1, 1996) (affirming trial court’s denial

of alternative sentence based upon defendant’s numerous incidents of

unprosecuted unlawful sexual contact). In reflecting upon the appellant's conduct

and the nature of the offense, it is apparent that the trial court implicitly concluded

that confinement was necessary to avoid depreciating the seriousness of the

offense. Tenn. Code Ann. § 40-35-103(1)(B). Finally, the trial court found that a

sentence other than probation would provide a deterrent to others likely to commit

similar crimes stating that “we cannot in any way give the impression that we have

any tolerance to some types of crimes. . . . And I think this is one of them.” See

Tenn. Code Ann. § 40-35-103(1)(B).



       After de novo review of the above principles of sentencing and the nature and

circumstances of the facts of this case, we conclude that the appellant has failed to

establish his suitability for total probation.




       Accordingly, the judgment of the trial court is affirmed.




                                            5
                              ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



________(Not Participating)_____________
WILLIAM M. BARKER, Judge



___________________________________
JOE G. RILEY, Judge




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