            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                         OCTOBER 1998 SESSION
                                                    FILED
                                                    January 13, 1999

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )   C.C.A. NO. 02C01-9710-CR-00410
            Appellee,            )
                                 )   SHELBY COUNTY
VS.                              )
                                 )   HON. ARTHUR T. BENNETT,
HOWARD EPPS,                     )   JUDGE
                                 )
            Appellant.           )   (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


PAULA SKAHAN                         JOHN KNOX WALKUP
140 North Third St.                  Attorney General & Reporter
Memphis, TN 38103
                                     DOUGLAS D. HIMES
                                     Asst. Attorney General
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     JAMES A. WAX, JR.
                                            and
                                     GLEN BAITY
                                     Asst. District Attorney General
                                     201 Poplar Ave., Third Fl.
                                     Memphis, TN 38103




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                                OPINION



                  On February 20, 1996, the defendant was indicted for rape of child in

violation of T.C.A. § 39-13-522. On September 16, 1997, the defendant pled guilty to

rape pursuant to a plea bargain agreement and received an eight year sentence. After

a sentencing hearing, the defendant was sentenced as a Range I offender to eight years

to be served in the Tennessee Department of Correction.1 On appeal, the defendant

contends that the trial court erred in denying him full probation rather than incarceration.



                  After a review of the record and the applicable law, we affirm the

defendant’s sentence.



                  The defendant was indicted for acts of molestation that occurred from 1990

through 1995. The proof showed that the defendant sexually molested his next door

neighbor’s daughter on at least several occasions.2 The defendant was best friends with

his neighbor and they often drank beer at each other’s house on week nights. The

defendant’s wife would often babysit for the neighbors while they were at work. When

the victim was about seven years old, the defendant began to touch her vaginal area with

his mouth and hands. The defendant then told the victim if she told anyone he would kill

her.3 This abuse continued until the victim reached twelve years of age. It was at this


         1
              The s entenc ing court d id leave op en the po ssibility that the de fendan t could be senten ced to
a secured mental facility. However, the transcript of the subsequent hearing that was held on October
15, 1997, with regard to this issue was not included in the record on appeal. The defendant contends
that th is tran scrip t is irre levan t bec aus e not hing h app ene d at th at he aring exc ept th at the cour t’s
judgment was executed and the question of a secured mental facility that would accept the defendant
was not addressed because the defendant was released on an appeal bond.

         2
            Although the record is not entirely clear as to exactly how many times the defendant molested
the victim, it is clear that the molestation occurred over a five year period and included several incidents.

         3
           The record on appeal included a letter written by the defendant’s granddaughter in which she
described at least one incident where the defendant touched her breasts and vaginal area but stopped
whe n ask ed. T he de fend ant’s gran dda ugh ter als o wro te tha t the d efen dan t had neve r thre aten ed he r in

                                                          2
point that her parents began noticing behavioral problems and ended up sending her to

Lakeside Hospital. It was here that the victim finally “told” on the defendant.



              After the police were notified and the defendant was questioned with regard

to the allegations, the defendant began to suffer from depression. The defendant was

put into the hospital where he attempted suicide. It was at this point that he received

electric shock therapy as a treatment for his depression. This therapy apparently caused

a temporary loss of memory. In addition, the defendant’s current doctor testified that he

believes the defendant is now suffering from Alzheimer’s disease which has resulted in

the rapid and severe deterioration of the defendant’s memory. The defendant also

suffers from severe hypertensive cardiovascular disease, myocardial ischemia, angina,

high blood pressure, and tremors.



              The defendant now contends that the trial court erred in denying him full

probation based on the nature of the offense when the offense was not of an excessive

or exaggerated degree and was not outweighed by other factors and where the

defendant has no memory of the offense and there is no danger of his committing

another offense.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-

401(d) Sentencing Commission Comments. This presumption, however, “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,



any w ay.

                                            3
169 (Tenn. 1991).



              The defendant bears the burden of showing that the sentence was

improper. Id. In determining whether the defendant has met this burden, this Court must

consider (a) the evidence adduced at trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the

nature and characteristics of the offense; and (f) the defendant’s potential or lack of

potential for rehabilitation or treatment. T.C.A. § 40-35-103(5), 40-35-210(b).



              The defendant insists that he should have received full probation. We note

that the defendant has the burden of establishing suitability for full probation. T.C.A. §

40-35-303(b). “To meet the burden of establishing suitability for full probation, the

defendant must demonstrate that probation will ‘subserve the ends of justice and the best

interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456

(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.

1990)). The defendant has not met this burden.



              The defendant argues that the only basis upon which the trial court relied

in denying probation was the nature and circumstance of the offense which, in this case,

was not enough to justify a denial of probation. The trial judge actually stated that

“because of the enormity of this situation that it would depreciate the seriousness of this

offense if the Court granted probation in this matter at this time. I don’t think the

defendant would benefit by the Court granting it either. Society wouldn’t.”



              In order for a trial court to “deny an alternative sentence based on the

seriousness of the offense, ‘the circumstances of the offense as committed must be



                                            4
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 a sentence other than confinement.” Bingham, 910 S.W.2d at 454 (quoting

State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). It is the opinion of

this Court that the young age of the victim, the fact that this abuse occurred over a span

of five years, the violation of a position of private trust and the circumstances surrounding

the incident4 are enough to support a finding that the defendant’s conduct was shocking,

reprehensible and offensive to such a degree that the nature of the offense outweighs

all factors favoring a sentence other than confinement.5 See State v. Boston, 938

S.W.2d 435, 438 (Tenn. Crim. App. 1996). Therefore, the record clearly supports the trial

court’s finding that confinement was necessary in order to avoid depreciating the

seriousness of the offense.



                 The trial court’s denial of alternative sentencing is also supported by the

defendant’s long history of criminal conduct with regard to the victim (and evidently his

granddaughter), indicating a lack of potential for rehabilitation. This indication is further

supported by the allegations of abuse made by the defendant’s granddaughter.



                 We note that the defendant’s brief goes into detailed argument regarding

the defendant’s lack of memory regarding the offense. The defendant argues that “[o]ne

cannot be punished for something one does not remember.” The defendant cites no

authority for this proposition and this Court is unaware of any authority supporting this


        4
          The defendant not only performed oral sex on an eight year old girl, he then threatened her
with death if she told anyone.

        5
            These factors are set out by the defendant as: lack of a prior criminal history, excellent social
history, good work history, the bleakness of his present physical and mental condition, physical and
mental problems, that there would be no deterrent effect upon the defendant from incarceration because
he is no longer a threat to anyone, the defendant’s incarceration would not have a general deterrent
effect, an d the def endan t’s lack of m emo ry regarding the offen se. The se facto rs are no t enough to
outweigh the nature of this offense.

                                                     5
proposition. This contention is wholly without merit. To allow a defendant to evade

punishment based on the assertion that he or she does not remember committing the

crime would be an injustice, not only to the victim but to society as well. A defendant who

does not remember past crimes is likely to “forget” about future crimes as well if he is

able to avoid punishment the first time.



              In light of the foregoing, it is clear the defendant has not established his

suitability for full probation. As such, it was not error for the trial court to sentence the

defendant to serve the eight year sentence in incarceration.



              Accordingly, the defendant’s sentence is affirmed.




                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
L. T. LAFFERTY, Special Judge




                                             6
