           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                         September 24, 2002 Session

                      STATE OF TENNESSEE v. JERRY W. SOUDER

                          Appeal from the Criminal Court for Sullivan County
                                 No. S44,088   R. Jerry Beck, Judge


                                         No. E2001-02658-CCA-R3-CD
                                              November 15, 2002

The Defendant, Jerry W. Souder, pled nolo contendere to one count of attempted aggravated sexual
battery. As part of the plea agreement, the Defendant was sentenced as a Range II offender to six
years, with the manner of service to be determined by the trial court. After a hearing, the trial court
ordered the Defendant to serve his sentence in the Department of Correction. The Defendant now
appeals as of right, alleging that the trial court erred by denying him an alternative sentence,
specifically probation. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

Wayne Culbertson, Kingsport, Tennessee, for the appellant, Jerry W. Souder.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Greeley Wells, District Attorney General; and James Goodwin, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                       OPINION


        The Defendant’s conviction arose out of allegations by S.P.,1 a nine-year old female neighbor,
that the Defendant had fondled her breasts. When initially contacted by the police, the Defendant
admitted the allegations. At the plea and sentencing hearings, however, the Defendant contended
that the allegations were false and that he was pleading guilty to save the victim from further
embarrassment.

       At the time of sentencing, the Defendant was sixty-seven years old. He has a single
conviction of indecent exposure, which conviction occurred in 1977 and involved a victim under

       1
           W e identify the minor victims of sex crime s by their initials.
thirteen years of age. He has been married for over forty years and has a high school education
followed by military service and steady employment.

       The criminal conduct at issue was alleged to have occurred on or about May 1, 2000. On
May 9, 2000, the Defendant gave a statement about the incident to the Department of Children’s
Services and to the Kingsport Police Department. In both statements the Defendant admitted to
having touched S.P.’s breasts. He also admitted to having sexually molested young girls many years
ago.

        In conjunction with the Defendant’s presentence investigation, he was evaluated by
Tennessee Sex Offender Board Approved Providers Thomas R. Herington, M.A., and J. Michael
Adler, Ph.D., of Counseling and Consultation Services, Inc. The evaluation was performed for the
purpose of assessing the Defendant’s risk to re-offend, his treatment needs, and his amenability to
sex offender treatment. This evaluation states in part that the Defendant’s “level of honesty is low,”
that he “presents a [h]igh risk to re-offend,” and that he is “a poor candidate for Sex Offender
Treatment.” In a letter summarizing the evaluation of the Defendant, the examining clinicians state
that the Defendant “is not considered a candidate for treatment in a community base[d] program,”
and that he “should be referred to the Special Needs Prison for Sex Offender Treatment.”

         The Defendant testified at the sentencing hearing. Contrary to his earlier statements, the
Defendant testified that upon further reflection, he “realized there is no way in the world that [he]
could have touched that girl’s breasts that high up on her shoulder.” The Defendant continued,
stating that “every bit of this is a lie,” that he had been “charged wrongfully,” and thought he “ought
to be vindicated of this thing.” The Defendant admitted that he “had done a lot of bad things” over
twenty years ago, but averred that he had since “got[ten] [his] life straightened out,” and had
“got[ten] out of that.”

        On cross-examination, the prosecutor asked the Defendant, “[s]o, you’re not into this kind
of thing now?” to which the Defendant replied, “[t]hat’s right. I left that stuff years ago.” The
prosecutor then asked, “[b]ut you have molested other children in the past?” The Defendant refused
to answer this question and invoked his right not to incriminate himself under the Fifth Amendment
to the United States Constitution.2

       The trial court denied the Defendant an alternative sentence and ordered him to serve his
sentence in the Department of Correction. Taking the victim impact statement into account,3 the


         2
           The Fifth Amendment to the United States Constitution provides that “[n]o perso n . . . shall be comp elled in
any crimina l case to be a witness against himself.” Similarly, Article I, Section 9 of the Tennessee Constitution provides
that a crim inal defendant “shall no t be co mpe lled to give evid ence against himself.”

         3
           S.P.’s mother filed a victim im pact statement which provides, in relevant part, that S.P . “has had to d eal with
a lot of emotional issues” as a result of the Defendant’s conduct, that she was “sad and afraid,” and that S.P.’s mother
took her to counseling. S.P.’s mother also expressed concern for other children in the neighborhood, and explained that
                                                                                                              (continued...)

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court found that “to grant probation would diminish the seriousness of the crime.” The court also
placed heavy reliance on the Defendant’s prior conviction. With respect to the Defendant’s refusal
to answer the State’s question, the court “considere[d] that as not putting his best foot forward and
allowing the Court to make a rational decision.” Finally, the court noted the “very negative”
evaluation as a basis for denying probation.

        The Defendant contends on appeal that the trial court erred in sentencing him to confinement
and that it improperly weighed enhancement and mitigating factors. When a convicted defendant
challenges the manner of service of a sentence, this Court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). This presumption 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 record in this case
supports the presumption of correctness.

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

         With respect to the Defendant’s complaints about the trial court’s application of enhancement
and mitigating factors, the State responds that, because the Defendant is not challenging the length
of his sentence, the trial court’s application of these factors is irrelevant. However, this Court has
recently recognized that enhancement and mitigating factors are relevant to the trial court’s
determination of the manner in which a felony sentence is to be served. See State v. Bolling, 75
S.W.3d 418, 421 (Tenn. Crim. App. 2001). Accordingly, we will review the trial court’s findings
in this regard.




         3
          (...continued)
the family felt it necessary to sell their house beca use they lived ne xt door to the Defendant.

                                                            -3-
        The trial court found as an enhancement factor that the Defendant has a previous history of
criminal convictions in addition to those necessary to establish the appropriate range. See Tenn.
Code Ann. § 40-35-114(1). Indeed, the trial court weighed this factor “heav[ily]” in denying an
alternative sentence. The Defendant argues that the trial court placed too much weight on this factor
because the Defendant’s single prior conviction occurred in 1977.4

        Provided the trial court complies with the purposes and principles of the Criminal Sentencing
Reform Act of 1989 and its findings are adequately supported by the record, the weight afforded to
enhancement and mitigating factors is left to the trial court’s discretion. See, e.g., State v. Alder, 71
S.W.3d 299, 306 (Tenn. Crim. App. 2001); State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App.
2000). In this case, the Defendant has failed to demonstrate that the trial court abused its discretion
in the weight it placed on the enhancement factor for previous criminal convictions. Although the
prior conviction is old, it arises from conduct similar to that for which the Defendant now stands
convicted. Furthermore, the enhancement factor applies not only where there is a history of previous
criminal convictions, but also where there is a history of previous criminal behavior. See Tenn.
Code Ann. § 40-35-114(1). The Defendant’s statements include confessions to multiple incidents
of molesting children sometime in the past. Accordingly, we agree with the trial court that the
Defendant’s history of criminal convictions and criminal behavior lends support to the denial of an
alternative sentence. This issue is without merit.

        The Defendant also contends that the trial court erred by applying enhancement factor (7),
that he committed the offense to gratify his desire for pleasure or excitement. See Tenn. Code Ann.
§ 40-35-114(7). However, the trial court did not rely on this factor in determining how the
Defendant should serve his sentence. This issue is, therefore, without merit.

        The Defendant also contends that the trial court did not consider as mitigating factors that
the Defendant’s conduct neither caused nor threatened serious bodily injury, see id. § 40-35-113(1),
and that he cooperated with the authorities. See id. § 40-35-113(13). He further contends that the
trial court gave insufficient weight to the mitigating factors that the trial court did recognize.5
However, we agree with the trial court that the negative factors adduced in conjunction with the
Defendant’s sentencing hearing far outweigh any and all mitigating factors that might otherwise
support an alternative sentence. Accordingly, this issue is without merit.

       With respect to the Defendant’s challenge to the trial court’s determination that he should
serve his sentence in the Department of Correction, we first note that the Defendant is eligible for
probation. See Tenn. Code Ann. § 40-35-303(a). Because he was sentenced as a Range II offender,


         4
            W e note that the Defendant’s prior misdemeanor conviction was not the basis for the Defendant’s being
sentenced as a Range II multiple offender; rather, he was sentenced as a Range II multiple offender as part of his plea
agree ment. Accordingly, the trial court was entitled to rely on the prior conviction as one “in addition to those necessary
to estab lish the ap propriate range.” Te nn. Co de A nn. § 4 0-35 -114 (1).

         5
          The trial court referenced the Defendant’s military service, his employment history, his schooling, his limited
prior record, his health problems and his age.

                                                            -4-
however, the Defendant is not entitled to a statutory presumption in favor of an alternative sentence.
See id. § 40-35-102(6). To be entitled to a sentence of probation, the Defendant must demonstrate
that probation would “subserve the ends of justice and the best interest of both the public and the
defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State,
297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds, State v. Hooper, 29 S.W.3d 1 (Tenn.
2000). Furthermore, in determining whether to grant probation, the trial court must consider the
nature and circumstances of the offense; the defendant’s criminal record; his or her background and
social history; his or her present condition, including physical and mental condition; and the
deterrent effect on the defendant. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999). The court should also consider the potential for rehabilitation or treatment of the defendant
in determining the appropriate sentence. See Tenn. Code Ann. § 40-35-103(5).

        The principles of sentencing reflect that the sentence should be no greater than that deserved
for the offense committed and should be the least severe measure necessary to achieve the purposes
for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). However, probation
is properly denied under the following circumstances:
        (A) Confinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;
        (B) Confinement is necessary 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 restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1). See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v.
Ashby, 823 S.W.2d 166, 170 (Tenn. 1991).

        The Defendant argues that the trial court erred in denying probation on the grounds that to
do so would depreciate the seriousness of the offense, because it was not “especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,”
and of such a nature as to outweigh all other factors favoring a sentence other than confinement.
State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). We agree that the criminal
conduct at issue was not so reprehensible as to justify, in and of itself, the denial of probation.
However, this was only one factor relied upon by the trial court in its decision. Other evidence in
the record is more than sufficient to justify the denial of probation, and this issue is, therefore,
without merit.

        The Defendant also contends that the trial court committed error when it relied on his
assertion of his rights against self-incrimination in denying probation. The trial court characterized
the Defendant’s refusal to answer the prosecutor’s question about whether he had molested children
in the past, as “not putting his best foot forward.”




                                                 -5-
        The United States Supreme Court has recently made clear that a criminal defendant retains
his or her right to assert the Fifth Amendment privilege against self-incrimination during sentencing.
See Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed. 2d 424 (1999). Moreover,
the sentencing court may draw no adverse inference from the defendant’s silence in determining facts
about the crime which bear upon the severity of the sentence. Id., 526 U.S. at 316-17. However, the
Court specifically declined to opine as to whether the defendant’s silence may bear upon his or her
lack of remorse or acceptance of responsibility for the crime in setting the defendant’s sentence. Id.,
526 U.S. at 330.

        In the case before us, the trial court did not draw any adverse inferences about the facts of
the crime from the Defendant’s refusal to answer the State’s question. Rather, the trial court
included the Defendant’s silence in its overall calculus for determining whether the Defendant was
a suitable candidate for probation. As set forth above, a criminal defendant’s rehabilitative potential
is a factor to be considered in the grant or denial of probation. Candor is a relevant factor in
assessing a defendant’s potential for rehabilitation, see State v. Dowdy, 894 S.W.2d 301, 306 (Tenn.
Crim. App. 1994), and the lack of candor militates against the grant of probation. See, e.g., State
v. Kendrick, 10 S.W.3d at 656. The burden of proving suitability for probation rests with the
defendant. Tenn. Code Ann. § 40-35-303(b). Accordingly, we conclude that the trial court did not
infringe upon the Defendant’s rights under the Fifth Amendment to the United States Constitution,
or Article I, Section 9 of the Tennessee Constitution, when it relied, in part, on the Defendant’s
assertion of those rights at sentencing, in order to deny probation. This issue is, therefore, without
merit.

         The record in this case overwhelmingly supports the trial court’s denial of probation. In spite
of his confessions to authorities shortly after committing the criminal conduct at issue, the Defendant
claimed complete innocence at his sentencing hearing, blamed the victim, refused to accept any
responsibility for his actions, and was profoundly unrepentant. While acknowledging past criminal
conduct of a like nature, the Defendant steadfastly maintained that such behavior was behind him.
The evaluation performed on the Defendant indicated him to be at high risk for re-offending and a
poor candidate for sex offender treatment. The evaluation further recommended against the
Defendant’s release into the community. The trial judge rightly concluded that incarceration is the
proper manner in which the Defendant should serve his agreed-upon sentence.

        The judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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