State v. Adkins ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST SESSION, 1998 September 25, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9802-CR-00070
)
Appellee, )
) CUMBERLAND COUNTY
V. )
)
) HON. LEON C. BURNS, JR., JUDGE
DON L. ADKINS, )
)
Appe llant. ) (AGGRAV ATED S EXUAL BATTE RY)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID NEAL BRADY JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
JOE L. FINLEY, JR. CLINT ON J. M ORG AN
Assistant Public Defender Assistant Attorney General
215 Reagan Street 2nd Floor, Cordell Hull Building
Cookeville, TN 38501 425 Fifth Avenue North
Nashville, TN 37243
WILLIAM EDWARD GIBSON
District Attorn ey Ge neral
DAVID A. PATTERSON
Assistant District Attorney General
145 South Jefferson Avenue
Cookeville, TN 38501
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Don L. Adkins, appeals as of right following his sentencing
hearing in the Cu mberla nd Co unty Criminal Court. The Defendant was indicted on
four (4) counts of aggravated sexual battery. In an agreement with the District
Attorn ey’s office, Defendant agreed to plead guilty to one (1) count of attempted
aggravated sexual battery, a Class C felony. Defendant also agreed to a sentence
of six (6) years with the trial co urt to deter mine th e manner o f service of his
sentence. Following the se ntencing he aring, the trial court o rdered D efenda nt to
serve his en tire sen tence in the Department of Correction. Defendant argues that
the trial court erred in denying a sentence of split confinement. We affirm the
judgm ent of the tria l court.
Bill Johnson, a prob ation o fficer for th e State who p repar ed De fenda nt’s
presentence report, testified that Defendant initially denied doing anything wrong.
Howeve r, in Defe ndan t’s state men t in the presentence report, Defendant admitted
touching one of the children on her private parts. Because Defendant was a friend
of the victim ’s family and was acting as a babysitter, Johnson submitted that
Defendant had abused a position of private trust. The Defendant does not have a
prior criminal record, has a good history of employment and is a high school
gradua te.
June Estep, mo ther of the victim and friend of Defend ant’s family, testified that
the victim was twelve (12) years of age when the offense occurred. Estep had
trusted the Defendant with her children and he had cared for them on prior
occasions. Since this incident of sexual abuse, the victim has changed. She does
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not want to leave the house, is afraid and depressed. Due to her depression, the
victim has been hospitalized twice because she wanted to commit suicide. She has
missed many days of school and is currently receiving mental health treatment. Due
to her da ughter’s fe ar of testifying , they agre ed to De fendan t’s plea ag reeme nt.
The Defenda nt testified that he was forty-five (45) years of age and has known
the victim for three (3) years. He admitted that he touch ed the victim on her p rivate
parts, indicating her breasts and between her legs. Defendant admitted remorse for
his actions. However, he indicated in his testimony that the victim tease d him after
taking a shower, asking for a towel while standing naked , and then hid unde rneath
the cove rs and a sked h im to find h er.
During cross-examination, Defendant admitted that in h is state men t he sa id
that he committed these acts on three (3) different occasions. Defendant continued
to deny touc hing th e victim ’s sister , althou gh he adm itted sig ning a statem ent in
which he sta ted tha t he als o sexu ally touc hed th e siste r. Defe ndan t is not cu rrently
seeking or receiving any treatment for his sexual problems.
When an accused challenges the length, range or the manner of service o f a
sente nce, th is court has a duty to conduct a de novo review of the sentence with a
presumption that the deter mination s mad e by the trial c ourt are c orrect. Tenn. Code
Ann. § 40-3 5-401 (d). Th is pres ump tion is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
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In conducting a de novo review of a senten ce, this court mu st consider: (a) the
evidence, if any, received at the trial and the 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 that the defen dant m ade o n his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.
Tenn. Code Ann. §§ 40-35-102, -103, and -210; see State v. S mith, 735 S.W.2d
859, 863 (T enn. Crim. A pp. 1987).
If our review reflects tha t the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and
made findings of fact adequately supported by the record, then we ma y not mo dify
the sentence even if we would have preferred a different resu lt. State v. Fletcher,
805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
Defendant does not dispute the length and range of the sentence because he
agreed to both upon his plea of guilty. Defendant challenges the manner of service
of his sentence, arguing that he should have received alternative sentencing rather
than service of the entire sentence in the Tennessee Department of Correc tion. In
determining whether or not alternative sentencing is appropriate, a defendant who
“is an es pecia lly mitigated or stan dard offende r convicted of a C lass 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). Our
sentencing law als o prov ides th at “con victed felons com mitting the mo st severe
offenses, possessing criminal histories evincing a clear disregard for the laws and
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mora ls of society, and evincing failure of past efforts at rehabilitation, shall be given
first priority regarding sentences involving incarceration.” Tenn. Code Ann. § 40-35-
102(5). Thus, a defendant sentenced to eight (8) years or less who is not an
offender for whom inc arceration is a priority is presu med eligible for altern ative
sentencing unless su fficient eviden ce rebu ts the pres umptio n. Pursu ant to
Defe ndan t’s presentenc e report and lac k of prior criminal history, he qualifies as an
offender presu med eligible for alternative sentencing under the parameters of these
statutes.
Howeve r, the act does not pro vide that all offenders w ho mee t the criteria are
entitled to such relief; rather, it requires that sentencing issues be determined by the
facts and circumstances presen ted in eac h case . See State v. Taylor, 744 S.W.2d
919, 922 (Tenn. C rim. App. 1987). The State may overcome the presumption by
providing evidenc e that: (1) confinement is necessary to protect society by
restraining a defenda nt who has a long history of criminal conduct; (2) confinement
is necessary to avoid depreciating the serious ness of the offen se or is neces sary
to provid e an e ffective d eterre nce to others likely to com mit similar offenses; or (3)
measures less restrictive than confinement have frequently or recently been applied
unsuc cessfully to the defen dant. Te nn. Co de Ann . § 40-35 -103(1).
First, the trial c ourt no ted tha t due to his con viction for a crime against the
person, attempted aggravated sexual battery, the Defendant was n ot eligib le for the
Com munity Corrections program. Tenn. Cod e Ann. § 40-36-1 06(a)(1) . In
consideration of a sentence of proba tion versu s confine ment, the trial court stated
within its findings that these type s of cases in wh ich young ch ildren are involved are
tragic, leaving a deep scar for the children to carry the rest of their lives. The trial
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court noted that this was a very serious offense, particularly as the mother of the
victim placed her confidence in the Defendant to care for her children . Obviously,
the record demonstrated to the trial court the pain the victim was experiencing as the
trial court exp ressed its desire tha t she rece ive coun seling an d treatm ent.
W hile the Defe ndant d id state that his acts were wrong, the trial court sensed
some hesitation on his be half to fu lly adm it his conduct. T ruthfulness is certainly a
factor which the court m ay cons ider in dec iding whe ther to grant or deny probation.
State v. Bunch, 646 S.W.2d 158, 160 (T enn. 1983 ) (citing State v. Poe, 614 S.W.2d
403, 404 (Ten n. Crim. App . 1981)). The trial court indicated that it did not place
much credibility in portions of Defendant’s testimony as Defen dant wa s “hesitan t to
come to grips w ith a full admission of what went on.” The Defendant’s lack of candor
when giving con flicting acco unts to Bill Johnson in the presentence report and to the
trial court wh ile under o ath is probative on the issue of amenability to rehabilitation,
the motivation for probation pursuant to Tennessee Code Annotated section 40-35-
103(5). See State v. Dowdy, 894 S.W .2d 301 (Tenn . Crim. A pp. 199 4). For this
reason alone, the decision of the trial court to order incarceration in the Department
of Correction in this case is justified. We therefore affirm the judgment of the trial
court.
____________________________________
THOMAS T. W OODALL, Judge
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CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JOE G. RILEY, Judge
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