State v. Luther Tootle ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1998 SESSION November 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No: 02C01-9711-CC-00455
Appellee, )
) Hardeman County
VS. )
) Hon. Jon Kerry Blackwood, Judge
)
LUTHER TOOTLE, ) (Sentencing)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Andrew S. Johnston John Knox Walkup
108 East Court Square Attorney General & Reporter
Somerville, TN 38068
Clinton J. Morgan
Counsel for the State
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
302 Market Street
Somerville, TN 38068
Jerry Norwood
Assistant District Attorney General
Hardeman County Courthouse
Bolivar, TN 38008
OPINION FILED:
AFFIRMED
ROBERT W. WEDEMEYER,
Special Judge
OPINION
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The defendant pled nolo contendre to one count of attempted child rape and two
counts of sexual battery. At the conclusion of the sentencing hearing, the trial court
sentenced the defendant to the minimum sentence of eight years on the attempt to commit
child rape conviction and the minimum sentence of one year for each of the sexual battery
convictions and ordered the sentences to run concurrently. The defendant was sentenced
as a Standard thirty percent (30%) Range I Offender. The trial court denied the
defendant’s request for probation or alternative sentencing stating that said denial was
based on the sole factor that confinement is necessary to avoid depreciating the
seriousness of the offense. In this appeal, the defendant argues that the trial court erred
in failing to grant probation and in ordering the defendant to serve the sentences with the
Tennessee Department of Correction.
Following our review of the record, we affirm the trial court.
SENTENCING HEARING
At the sentencing hearing, the state presented testimony from the mothers of two
of the victims. The defense presented the testimony of five witnesses, including the
defendant’s mother, who were all character witnesses for the defendant. The defendant
also testified.
The mother of each victim testified in detail as to the adverse effects of the
defendant’s conduct on her child. One victim has cerebral palsy and walks with crutches.
Another victim has an “attention deficit” and is in a class for the emotionally disturbed. One
victim was eight-years-old when victimized and the other was seven-years-old when
victimized. Both parents expressed, in no uncertain terms, their opinions that the
defendant should go to jail.
The witnesses for the defendant all essentially agreed that the defendant is a
respectable young man with a good reputation who is involved extensively in church and
church-related activities. The defendant has no criminal record whatsoever. The
defendant denied any involvement in the criminal activity to which he pled nolo contendre.
He recently graduated from high school and would like to attend college. The defendant
presented several certificates and awards that he had received for church-related activities.
He also expressed his willingness to comply with any conditions of probation that might be
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set by the court.
LEGAL ANALYSIS
When the defendant challenges the manner of serving a sentence, it is the duty of
this Court to conduct a de novo review of the record with a presumption that the trial court’s
determinations are correct. Tenn. Code Ann. §40-35-401(d). The “presumption of
correctness which accompanies the trial court’s action 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).
In its review, this Court must consider the following: the evidence, if any, received
at trial and sentencing hearing, information contained in the presentence report, the
statutory principles of sentencing, counsel’s arguments as to sentencing alternatives, the
nature and characteristics of the criminal conduct, mitigating and statutory enhancement
factors, any statement that the defendant made on his own behalf, and the potential for
rehabilitation or treatment. Ashby, 823 S.W. 2d 166, 168-169 (Tenn. 1991).
In a case where the defendant seeks probation, the Court must consider “the
accused’s criminal record, social history, present physical and mental condition, the
circumstances of the offense, the deterrent effect upon criminal activity of the accused as
well as others, and the accused’s potential for rehabilitation and treatment.” State v.
Parker, 932 S.W.2d, 945, 959 (Tenn. Crim. App. 1996). This Court has previously
determined that a negative finding of any one of these factors is sufficient to support a
denial of probation. State v. William Bell, No. 02C01-9608-CR-00275 (Tenn. Crim. App.
July 18, 1997).
In the instant case, the trial court heard the testimony of the mothers of two victims,
the defendant, the defendant’s mother, and several character witnesses for the defendant.
The trial court also reviewed the pre-sentence report and heard argument by counsel.
After a concise discussion of enhancing and mitigating factors, the Court sentenced the
defendant to the minimum sentence for each offense, to run concurrently. It is clear from
the record that the trial court considered the law and evidence before it and concluded that
it was appropriate to deny probation in this case. The trial court concluded that:
The Court denies any petition for relief or for alternative
sentencing or suspension. The Court has done so on the sole
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factor, and only factor, that confinement is necessary to avoid
depreciating the seriousness of the offense.
T.C.A. §40-35-103(1) provides:
Sentences involving confinement should be based on the
following considerations:
...(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;...
A denial of alternative sentencing when based upon Tennessee Code
Annotated section 40-35-103(1)(B) must be predicated upon a finding that the nature and
circumstances of the offense are “especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree” and that the nature of the
offense “outweighed all other factors . . . which might be favorable to a grant of probation.”
State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see also State v. Hartley, 818 S.W.2d
370, 374 (Tenn. Crim. App. 1991). Although the trial court did not repeat any of the Travis-
Hartley adjectives in determining that confinement was necessary to avoid depreciating
the seriousness of the offense, it is clear from the record that the nature of these sexual
offenses committed against child victims who were impaired was exaggerated in
seriousness. Upon our de novo review of the record, we find that the nature of these
offenses was especially shocking, reprehensible, and offensive, and supports the denial
of alternative sentencing in general and probation in particular.
Having reviewed the testimony from the sentencing hearing, the presentence report,
and the entire record, this Court concludes that the defendant has failed to meet his
burden of showing that the trial court erred in denying alternative sentencing.
CONCLUSION
This Court AFFIRMS the sentence imposed by the trial court.
________________________________
ROBERT W. WEDEMEYER,
Special Judge
CONCUR:
_________________________________
JOE G. RILEY, Judge
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_________________________________
CURWOOD W ITT, Judge
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