State v. Mark Logan ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1998 SESSION
September 15, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * No. 01C01-9707-CC-00261 Clerk
Appellate Court
Appellee, * Rutherford County
vs. * Hon. James K. Clayton, Jr., Judge
MARK LOGAN, * (Sentencing)
Appellant. *
For Appellant: For Appellee:
Stephen W. Pate John Knox Walkup
Attorney Attorney General & Reporter
218 West Main Street
Murfreesboro, TN 37130 Lisa A. Naylor
Assistant Attorney General
425 Fifth Avenue North
Cordell Hull Building, Second Floor
Nashville, TN 37243-0493
William C. Whitesell
District Attorney General
Third Floor Judicial Building
Murfreesboro, TN 37130
John W. Price
Assistant District Attorney General
Rutherford County Judicial Building
Murfreesboro, TN 37130
OPINION FILED:___________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Mark Logan, entered pleas of guilt to attempted
aggravated sexual battery. The trial court imposed a Range I sentence of three
years. In this appeal of right, the defendant claims the trial court committed error by
failing to grant probation.
We affirm the judgment of the trial court.
Although the record does not include a transcript of the submission
hearing, the underlying facts of the crime are apparent from the statement of the
defendant. Pertinent portions provide as follows:
[The defendant] stated that he was lying on the sleeper
sofa between [seven-year-old HM, a child of a neighbor] 1
and his daughter .... [He] stated that he started tickling
[HM] and touched her on her bottom. [He] stated he
starting rubbing on her breast and then he stuck his hand
down into her panties and starting rubbing her vagina.
[The defendant] stated he didn't penetrate into the
vagina. [He] stated that he kissed her on the cheek and
starting blowing on her abdomen and he pulled her
panties midway down, and blew on her bikini line. ...
Indicted for aggravated sexual battery, a Class B felony, the defendant
pled to a reduced charge as part of a plea bargain agreement. An attempt to
commit aggravated sexual battery is a Class C felony, which has a sentencing range
of three to six years for a Range I offender. Tenn. Code Ann. § 39-12-107(a).
The defendant, twenty-nine years of age, has been married for nearly
ten years and has three young children. Although he did not complete high school,
he attended Knoxville Area Vocational School and earned a certificate in gasoline
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It is the policy of this court to w ithhold the ide ntity of children in volved in se xual abu se. State
v. Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn. Crim . App. 1989).
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engine repair in 1989. The defendant works for Spaulding Composites Company as
a full-time maintenance helper, a position he has held since August of 1996. He
gives his entire paycheck to his wife. He has good physical health, drinks only
moderately, and, although he admitted to experimental use of marijuana in the past,
he denied any present use of illegal drugs. Since September of 1996, he has
attended counseling sessions at the Rutherford County Guidance Center where a
psychological evaluation of the defendant was performed. He has no prior criminal
record.
At the sentencing hearing, the defendant testified that a Safety Order
from the Department of Human Services required him to reside with his parents until
his counselors approved his return to his family home. In the interim, he visits with
his children in the presence of his wife and a social worker on a weekly basis. He
maintained that he had never abused either of his two daughters and had never
abused any other child prior to committing this offense. He maintained that this was
an isolated incident.
The defendant attends group counseling once per week and testified
that he has benefited as a result of his treatment. He expressed a desire to
participate in the sexual offender rehabilitation program so he could learn more
about his problem and prevent any future incidents. He apologized to the victim and
her mother and recognized that he had caused them pain and embarrassment.
When asked whether he had inappropriate impulses toward young
girls, including his daughter, he informed the trial court that he did not. On further
questioning by the state, however, he admitted that he had occasionally struggled
with such thoughts. The psychological evaluation concluded as follows:
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The [defendant] denies any other episodes of sexual
perpetration but admits he had "struggled" with the desire
to perform sexual activity with a minor since his daughter
was approximately one year old. He stated that his
daughter had typically been the focus of such thoughts
prior to this incident, though he had always successfully
resisted acting on this impulse.
The evaluation also indicated that the defendant may suffer from a learning
disability.
Michael L. Logan, father of the defendant, described his son as very
quiet, reserved, and insecure. He testified that he had noticed improvement in
these areas since the defendant had obtained counseling. Mr. Logan stated that he
had observed the defendant with his daughters on numerous occasions and never
noticed any abnormal behavior. While expressing "a very small reservation" about
the defendant returning to live with his daughters, he informed the court that the
defendant could live with him indefinitely. Incarceration, he explained, would be a
"catastrophe because [the defendant] is the sole breadwinner. ... There would be no
other income." Mr. Logan offered to help make sure the defendant complied with
conditions of probation, if granted.
Mattie E. Logan, wife of the defendant, testified that she was unaware
of the defendant's problem and had not witnessed any inappropriate behavior on his
part. Although she and her daughters are aware of the incident, they do not feel
threatened and want the defendant to come home. She stated that if the defendant
were incarcerated, she would have no means of support and would lose her home.
Catina Lawrence, mother of the victim, testified that MH has
experienced nightmares and is fearful of playing outdoors. Ms. Lawrence
acknowledged that, although the defendant did not physically injure MH, she was
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emotionally and mentally scarred as a result of his actions. Ms. Lawrence
requested that the court deny probation.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. 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
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history, and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
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options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
The trial court denied probation:
[I]f he did what he said he did, with the child being seven
years old, he's guilty of aggravated sexual battery, a
class B felony .... [H]e's being convicted of a Class C
felony for whatever reason. And I always consider
probation. I have problems considering probation with
sex offenders, however, because, ... the chances of him
being rehabilitated are slim. ... And I don't think he's been
entirely honest with the Court. ... He may have been
entirely honest [during] the psychological evaluation. ...
[T]he diagnostic impressions are pedophilia, and that's
extremely hard to do anything with....
The trial court ordered the defendant to participate in counseling and to serve his
sentence at the Rutherford County Workhouse.
The defendant contends that the trial court erred by failing to state the
statutory basis for the denial of probation. The 1989 Act does provide that the
record of the sentencing hearing "shall include specific findings of fact upon which
application of the sentencing principles was based." Tenn. Code Ann.
§ 40-35-209(c). We are able to conclude that the record and the findings of the trial
court are adequate to support the denial of probation.
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The nature and circumstances of the offense may often be so
egregious as to preclude the grant of probation. See State v. Poe, 614 S.W.2d 403
(Tenn. Crim. App. 1981). Here, the defendant sexually assaulted a seven-year-old
girl entrusted to the care of him and his wife. The circumstances involved could
have resulted in a conviction of a Class B felony had the defendant proceeded to
trial. A lack of candor may also militate against a grant of probation. State v.
Bunch, 646 S.W.2d 158 (Tenn. 1983). The record supports the trial judge's
conclusion that the defendant was reluctant to acknowledge his sexual impulses
toward his own daughter. While denying having had sexual impulses toward his
child, he had informed his counselors otherwise, as evidenced by the psychological
evaluation.
Moreover, the trial court imposed a minimum sentence of three years.
Although an important sentencing consideration is to impose the least severe
punishment necessary, the grant of probation might tend to depreciate the
seriousness of this offense. Tenn. Code Ann. § 40-35-103(1)(B).
Because sentencing requires an individualized, case-by-case
approach, that method of analysis necessarily embodies the exercise of discretion
at the trial court level. See Moss, 727 S.W.2d at 235; State v. Fletcher, 805 S.W.2d
785 (Tenn. Crim. App. 1991). Thus, there is a sound basis for the presumptive
correctness standard of appellate review:
It is not the policy or purpose of this Court to place trial
judges in a judicial strai[gh]t-jacket in this or any other
area, and we are always reluctant to interfere with their
traditional discretionary powers.
Ashby, 823 S.W.2d at 171. That principle prevails here on the matter of probation.
In our view, the trial court acted within its discretion in denying probation.
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Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_________________________________
David G. Hayes, Judge
_________________________________
Jerry L. Smith, Judge
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