           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                           November 19, 2002 Session

                      STATE OF TENNESSEE v. MICHAEL J. YOUNG

                     Direct Appeal from the Circuit Court for Rutherford County
                             No. F-50006    James K. Clayton, Jr., Judge



                          No. M2002-00760-CCA-R3-CD - Filed January 7, 2003


The defendant pled guilty to two counts of sexual battery by an authority figure and two counts of
statutory rape. He received agreed sentences totaling five years. The defendant sought alternative
sentencing from the trial court, which was denied. In this appeal, the defendant argues the trial court
improperly denied alternative sentencing. We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

Patrick T. McNally and Joseph T. Howell, Nashville, Tennessee, for the appellant, Michael J.
Young.


Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price, III, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                                          OPINION

        The proof in the record establishes that while the thirty-year-old defendant was serving as
a Rutherford County Sheriff's Department school resource officer, he was involved over a period
of several months in sexual relationships with two teenage girls, C.F. and A.Y.,1 who were students
at the school. The defendant pled guilty to one count of sexual battery by an authority figure, a
Class C felony, and one count of statutory rape, a Class E felony, for each victim, for a total of four
convictions as a Range I standard offender. See Tenn. Code Ann. §§ 39-13-506, -527 (1997). As
part of the plea agreement, he received a total effective sentence of five years. Following a
sentencing hearing, the trial court rejected the defendant’s request for alternative sentencing.


       1
           It is the po licy of this co urt to refer to child victims o f sexual crimes b y their initials.
         The record consists not only of the sentencing hearing transcript, but also additional
transcripts of prior hearings. According to the testimony of C.F. at the sentencing hearing and at
prior hearings, she was a fourteen-year-old eighth grader at the school where the defendant was
assigned as a school resource officer. The defendant gave her his telephone number during a school
dance. She said she began visiting the defendant’s apartment, where she and the defendant engaged
in sexual relations on five or six separate occasions between December 1999 and April 2000. She
testified the defendant also provided her with alcohol and marijuana during their trysts.

        C.F. stated her first sexual contact with the defendant involved only oral sex, but thereafter
each episode involved oral sex followed by sexual intercourse. C.F. testified the defendant
videotaped her having oral sex with both him and his adult friend. C.F. said the defendant
threatened to commit suicide if she ever told anyone about their relationship. In a victim impact
statement attached to the presentence report, C.F. indicated the offenses had profoundly affected her.
She said that as a result, she suffered from depression, had been suicidal, was taking anti-depressants
and receiving therapy.

        C.F.’s mother testified that C.F. had been placed on a special school program due to her
emotional difficulties. She stated C.F. suffered from depression, would cut herself in an effort to
ease her emotional pain, was taking anti-depressants, and was being treated by a psychiatrist and a
therapist. In a victim impact statement, she said C.F. had also run away twice and had been suicidal.

        A.Y. testified at sentencing and at prior hearings that she was a fourteen-year-old seventh
grader when she began a sexual relationship with the defendant in December 1999. She said she and
the defendant had sexual relations approximately five times between December and June, and they
engaged in oral sex and sexual intercourse each time. According to A.Y., she consumed alcohol and
used marijuana while she was at the defendant’s apartment. A.Y. testified the defendant introduced
her to his adult friend, who performed oral sex on her, and to other adults who gave her liquor and
marijuana.

       According to A.Y., the defendant told her that he loved her, and she thought she was in love
with him. She testified at a prior hearing that she was pregnant with the defendant’s child, but
miscarried. She also indicated her family moved to Ohio because it was difficult for her to remain
in school in Rutherford County after other students learned about her relationship with the
defendant.

        A.Y.’s mother testified that her daughter’s grades suffered following the offenses. She said
that after the offenses, A.Y. began “acting out,” drinking, and taking drugs. She confirmed the
family had moved to Ohio to remove A.Y. from the situation in Rutherford County.

       Psychologist Dr. Danita Hughes, who treated A.Y., testified A.Y. had run away from home
and exhibited other behavioral disturbances. Dr. Hughes opined A.Y. would experience adjustment
problems and have difficulty relating to her peers until her mid-twenties.

        According to the defendant’s testimony at sentencing, he worked with C.F. in his role as
school resource officer during a previous school year when she was having problems at school. He

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also testified A.Y. was “a little bit of a wild child,” but that he did not have much contact with her
at school; instead, he became involved with her through her friendship with C.F. The proof also
established that the defendant was a college graduate with a B.A. degree in psychology and political
science. At the time of the offenses, he had been a Rutherford County Sheriff’s Department officer
for two years after serving as a police officer on a college campus for four years.

        Further, the proof revealed that prior to the instant offenses and while the defendant was a
law enforcement officer, he pled guilty to the “reduced” offense of reckless driving in response to
a charge for DUI. 2 He received a six-month sentence, all suspended but five days, and was required
to attend alcohol safety school. According to the presentence report, the defendant admitted to past
use of marijuana.

       Other proof at sentencing established the defendant remained in maximum security in the
Rutherford County Jail for over seven months before being released on bond. At the time of
sentencing, the defendant was employed as a sales representative; his supervisor testified he was
performing his job well and was eligible for continued employment. The defendant’s brother and
another friend, a lay pastor and school principal, testified they would serve as part of the defendant’s
support system should he be released into the community.

        The trial court denied the defendant’s request for alternative sentencing, finding confinement
was necessary to avoid depreciating the seriousness of the offenses. See Tenn. Code Ann. § 40-35-
103(1)(B). The trial court noted that the defendant violated his duty to protect children when, as
a school resource officer with the sheriff’s department, he “undertook to become involved with at
least two students that were of impressionable age.”3 It further noted the defendant had a college
degree in psychology and “had every opportunity to know what he was doing was wrong.”


                                                     I. WAIVER

        The facts and circumstances of the offenses were important to the trial court’s sentencing
determinations; however, the transcript of the guilty plea proceeding is absent from the record. A
transcript of the guilty plea hearing is generally necessary to allow this court to ascertain the facts
and circumstances surrounding the offenses and conduct an effective appellate review of a
sentencing decision. State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim. App. 1999). Our usual
course of action where there is no guilty plea transcript in the record is to presume the trial court’s
decision is correct. Id. at 844; see also State v. Coolidge, 915 S.W.2d 820, 826-27 (Tenn. Crim.
App. 1995) (specifically stating that the absence of a portion of the record relating to sentencing
requires the court to presume the sentence was correct). Nevertheless, the record before this court,

         2
         W e note that reckless driving is not a pro per lesser-included offense of DUI. See State v. Treva Dianne Green,
No. E1999 -022 04-C CA-R3-C D, 2000 Tenn. Crim. Ap p. LE XIS 954 , at *16 ( Te nn. Crim. App. Dec. 14, 2000, at
Knoxville), perm. to app. denied (Tenn. 2001 ).
         3
           A third teenage girl testified during a prior hearing that she had sexual relations with the defendant, whom she
met wh ile she wa s an eighth grad er at the elementary school.

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including defendant’s submission of transcripts of various hearings in addition to the sentencing
hearing transcript, is sufficient for us to determine the trial court did not err in denying alternative
sentencing.


                               II. ALTERNATIVE SENTENCING

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the
appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) (1997),
Sentencing Commission Comments.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6) (1997).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1)
(1997); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). A court may also consider the
mitigating and enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and
114 as they are relevant to the section 40-35-103 considerations. Tenn. Code Ann. § 40-35-
210(b)(5) (1997); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

         There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2) (1997); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

       As previously stated, one of the considerations a trial court must weigh in determining
whether to impose a sentence of confinement is whether confinement is necessary to avoid
depreciating the seriousness of the offenses. See Tenn. Code Ann. § 40-35-103(1)(B) (1997).
Where alternative sentencing is denied based solely upon the nature of the offense, the offense must
be “especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive


                                                  -4-
or exaggerated degree,” and its nature must outweigh all the factors which favor alternative
sentencing. State v. Fields, 40 S.W.3d 435, 441 (Tenn. 2001).


                                          III. ANALYSIS

        In the instant case, the trial court ordered the defendant to serve his sentences in confinement
after determining that confinement was necessary to avoid depreciating the seriousness of the
offenses. This conclusion is amply supported by the proof in the record. In our view, the evidence
before the trial court established the offenses committed by the defendant and to which he pled
guilty were especially shocking, reprehensible, and offensive. See id.

        The evidence showed the defendant was aware that one of the victims, C.F., was already
experiencing behavioral problems when he initiated a sexual relationship with her while acting in
his role as a school resource officer. Then, the defendant, a law enforcement officer, encouraged
both C.F. and her friend, A.Y., to come to his home without the knowledge and permission of their
parents. He drew both teenagers into sexual relationships in which he committed repeated and
numerous sexual offenses upon them.

         He introduced the victims to another adult man, who also engaged both of them in sexual
activity, and videotaped the acts he and his friend committed with one of the victims. The testimony
of the victims indicated he allowed them to smoke marijuana and drink alcohol. It is not surprising
that the offenses had a drastic impact upon the emotional well-being of the victims. See State v.
Arnett, 49 S.W.3d 250, 260 (Tenn. 2001) (noting that the particularly great personal injuries
enhancement factor in Tennessee Code Annotated section 40-35-114(6) (1997) includes
psychological or emotional injuries.)

         It is clear from the record that the nature and circumstances of the offenses outweighed the
factors that favored probation. Although the defendant was presumed to be a favorable candidate
for alternative sentencing, see Tenn. Code Ann. § 40-35-102(6) (1997), the proof of his repeated and
egregious acts against the victims was more than sufficient to overcome this presumption.

        Further, there are other factors which the trial court could have properly considered in
imposing a sentence of incarceration. The defendant had a prior conviction involving alcohol, for
which he had received alternative sentencing. In addition, he admitted to past use of illegal drugs.
The instant offenses also involved alcohol and drugs, which bears upon the defendant’s amenability
to rehabilitation.

        Accordingly, we conclude the trial court did not err in denying alternative sentencing. We
affirm the judgment of the trial court.



                                                        ____________________________________
                                                        JOE G. RILEY, JUDGE

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