State v. Billy Bivens

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE v. BILLY BIVENS
Direct Appeal from the Criminal Court for McMinn County
Nos. 96-276 and 96-277 Earle G. Murphy, Judge
No. E1999-00086-CCA-R3-CD - Decided July 14, 2000
The defendant, Billy Bivens, was convicted of official misconduct and assault. On appeal, he argues
that the evidence was insufficient to sustain his convictions; that the trial court erred by failing to
require the state to elect the offenses for which it sought conviction; that the jury delivered
inconsistent verdicts; and that the trial court imposed an excessive sentence. Because the jury was
erroneously instructed on assault as a lesser included offense of sexual battery, we reverse the assault
conviction. The conviction and sentence for official misconduct are affirmed.
Tenn. R. App. P. 3; Judgment and Sentence of the Trial Court Affirmed in Part and Reversed
in Part.
WADE, P.J., delivered the opinion of the court, in which SMITH and WITT, JJ., joined.
Donald B. Reid, Athens, Tennessee, for the appellant, Billy Bivens.
Paul G. Summers, Attorney General and Reporter, Michael J. Fahey and Clinton J. Morgan,
Assistant Attorneys General, Richard Newman, Assistant District Attorney General, for the appellee,
State of Tennessee.
OPINION
The defendant, Billy Bivens, indicted on charges of official misconduct and sexual
battery, was convicted of official misconduct and misdemeanor assault. The trial court sentenced
the defendant to two years of probation following jail service of 30 days for the official misconduct
conviction. A concurrent sentence of 30 days in jail was imposed for the assault conviction. The
trial court also ordered that the defendant pay restitution to the victim in the amount of $96.00.
In this appeal of right, the defendant presents the following issues for review:
(I) whether the evidence was sufficient to support his convictions;
(II) whether the trial court erred by failing to require the state to elect
the specific instances for which it sought conviction;
(III) whether the trial court improperly accepted inconsistent verdicts;
and
(IV) whether the trial court imposed an excessive sentence by
requiring the defendant to serve thirty days in jail.
We affirm the official misconduct conviction and sentence. Because, however, the
defendant was improperly convicted of assault, we reverse that conviction and dismiss.
On March 16, 1996, Special Agent T.J. Jordan of the TBI began an investigation of
alleged sexual misconduct within the McMinn County Jail. As a result of the investigation, five jail
employees, including the defendant, were charged with crimes. Of the other four individuals under
investigation, one was cleared, one was not indicted by the grand jury, and two pled guilty to official
misconduct.
The evidence offered at the trial of the defendant established that in July of 1995, the
victim, Lisa Rogers, was serving a six-month jail term in the McMinn County Justice Center. The
victim testified that during her incarceration, the defendant, a corrections officer with the sheriff's
department, frequently entered her cell and fondled her breasts and vaginal area. The victim
testified that the defendant often asked her to expose her breasts and vagina and that, on three
occasions, the defendant masturbated in her presence. The victim stated that the defendant often
made threatening remarks, including threats to revoke her visitation privileges if she did not comply
with his sexual requests. According to the victim, the defendant improperly touched or rubbed her
as often as five or six times each night over the course of her six-month period of incarceration. She
testified that she always asked him to stop and that she wrote several letters asking to speak with the
sheriff about the incidents. The victim stated that she told "Benjie," a guard, and "Becky," the jail
nurse, that she needed to speak with the sheriff, but that no one ever responded to her requests. The
victim acknowledged that she had known the defendant since 1987 and that she had been involved
in a consensual sexual relationship with him several years prior to her incarceration. She testified
that during her time in jail, she and the defendant engaged in neither sexual intercourse nor oral sex.
Brad Lane, a deputy with the McMinn County Sheriff's Department, testified that
supervisors instructed the male jailers not to linger in the female sections of the jail. He confirmed
that the defendant spent "a little longer than he should have" in the section where the victim was
housed. Lane recalled that the defendant explained that the victim had been his friend since
childhood and that they often talked. On cross-examination, Deputy Lane acknowledged that he
never saw the defendant engaging in inappropriate activity with an inmate.
Former officer Michael McCardle, who pled guilty to official misconduct, testified
that he saw the defendant spend "excessive time" in the female section of the jail. He stated that he
witnessed female inmates raise their shirts and dance for groups of officers, including the defendant.
On cross examination, McCardle conceded that he did not begin working in the jail until January,
1996, the same month that the victim was released from jail and some four months after the incidents
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alleged in the indictment. He also conceded that he never saw the defendant have sexual contact
with an inmate. He testified that, in his view, it would not have been possible to conceal a non-
consensual sexual encounter from others because of the openness of the cells.
Gregory Mason, a former officer at the justice center who also pled guilty to official
misconduct, testified that he noticed the defendant spent an unusual amount of time in the female
section of the jail. He stated that he saw the defendant "hanging around" the victim's cell several
times for as long as 45 minutes or an hour. He acknowledged that while he never witnessed any
contact between the defendant and the victim, no one had ever witnessed his own sexual contact with
a different female inmate.
Parris Ferby testified that she occupied the cell next to the victim from September
of 1994 until February of 1996. She recalled that the walls between the cells were approximately
four feet tall and that the cells contained no doors. According to Ms. Ferby, it was easy to hear
people talking in the cell next to her own and she testified that she saw the defendant speak to the
victim at least two times at night. She remembered that on at least one occasion, she saw the
defendant enter the victim's cell. Ms. Ferby testified that she neither witnessed any sexual contact
between the defendant and the victim nor heard the defendant say anything of a sexual nature to the
victim.
Terry Frazier, who was incarcerated in the McMinn County Judicial Center for one
year, testified that she observed the defendant enter the victim's cell late at night and remembered
that he would stay there "for hours." She stated that the victim acknowledged that she was having
sex with the defendant. Ms. Frazier also claimed to have witnessed the victim performing oral sex
on the defendant.
Kimberly Arnwine, who occupied a cell next to the victim for three months, recalled
that she often saw the defendant in the victim’s cell late at night and in the middle of the day. She
testified that she heard noises that sounded like sexual intercourse coming from the victim’s cell.
Ms. Arnwine stated that on one occasion she observed the victim kneeling in front of the defendant.
Another inmate, Tracey Wilkerson, testified for the state. She recalled that the
defendant often stood near the victim's cell. Ms. Wilkerson described the defendant as a "good
jailer" who "looked after all of us, female and male." She stated that she never observed the
defendant in the victim’s cell and never saw him touch the victim.
Ruby Free, an inmate who occupied a cell near that of the victim, also testified for
the state. She recalled that the victim and the defendant "talked a lot." Ms. Free stated that she
frequently heard female "moaning and groaning" while the defendant was in the victim's cell. She
conceded that she never saw the defendant actually enter the victim's cell and acknowledged that she
was not incarcerated during the month of September, the period covered by the indictment. When
asked if she ever saw the defendant touch the victim or heard him make inappropriate comments to
the victim, Ms. Free stated, "Mr Bivens is a decent man . . . . In my book he is. He had respect for
us."
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The defense called Rebecca ("Becky") Eaton, the jail paramedic, and Benjamin
("Benjie") Jorgenson, a jailer. Each contradicted the victim's claim that she had asked for help,
asserting that she had never made any complaints. They testified that they were unaware of any
request by the victim to speak with the sheriff. Kenny Coleman, the jail administrator, confirmed
that the defendant's personnel file did not contain any complaints during the period of the victim's
confinement.
At trial, the defendant denied having spent any more time with the victim than he did
with other inmates. He claimed that he never threatened the victim and denied having any sexual
contact with her during her period of incarceration.
I
The defendant was indicted on charges of sexual battery and official misconduct, but
was convicted of assault and official misconduct. Although the issue has not been raised by either
the defendant or the state, we conclude that the defendant's conviction for assault was improper on
a plain error basis. Tenn. R. Crim. P. 52(b). Because assault is not a lesser-included offense of
sexual battery, we must reverse the defendant's conviction for assault.
Recently, in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme court revised
the standards for the determination of lesser included offenses. Our high court confirmed in a
companion case, State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), that it had overruled portions of the
holding in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), in which it had established a distinction
between lesser grades or classes of offenses and lesser included offenses. In Burns, the court
adopted a modified version of the Model Penal Code in order to determine what constitutes a lesser
included offense:
An offense if a lesser included offense if:
(a) all of its statutory elements are included within the statutory
elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect
that it contains a statutory element or elements establishing
(1) a different mental state indicating a
lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to
the same person, property or public
interest; or
(c) it consists of
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(1) facilitation of the offense charged or
of an offense that otherwise meets the
definition of lesser-included offense
in part (a) or (b); or
(2) an attempt to commit the offense
charged or an offense that otherwise
meets the definition of lesser included
offense in part (a) or (b); or
(3) solicitation to commit the offense
charged or an offense the otherwise
meets the definition of lesser-included
offense in part (a) or (b).
Burns, 6 S.W.3d at 466-67.
Here, the defendant was indicted for sexual battery, but was convicted of assault.
Sexual battery is defined as
[U]nlawful sexual contact with a victim by the defendant or the
defendant by a victim accompanied by any of the following
circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual contact is accomplished without the consent of the
victim and the defendant knows or has reason to know at the time of
the contact that the victim did not consent;
(3) The defendant knows or has reason to know that the victim is
mentally defective, mentally incapacitated or physically helpless; or
(4) The sexual contact is accomplished by fraud.
Tenn. Code Ann. § 39-13-505.
By comparison, the offense of assault is defined as follows:
A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to
another;
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(2) Intentionally or knowingly causes another to reasonably fear
imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another
and a reasonable person would regard the contact as extremely
offensive or provocative.
Tenn. Code Ann. § 39-13-101(a).
Prior to the release of State v. Burns, our supreme court had determined that assault
was neither a lesser grade offense nor a lesser included offense of sexual battery. State v. Cleveland,
959 S.W.2d 548 (Tenn. 1997); see also State v. Tina Swindle, No. 01C01-9805-CR-00202 (Tenn.
Crim. App. at Nashville, Apr. 30, 1999) ( pre-Burns opinion holding that assault is not a lesser
included offense of aggravated sexual battery); State v. Edward L. Davis, No. 02C01-9712-CC-
00480 (Tenn. Crim. App. at Jackson, Mar. 19, 1999) (pre-Burns opinion holding that assault is not
a lesser included offense of sexual battery). In our view, application of the lesser included offense
test articulated in Burns does not require a different conclusion. A sexual battery conviction requires
proof of unlawful sexual contact accomplished (1) through force or coercion, (2) without the consent
of the victim, (3) notwithstanding the victim's mental defect, mental incapacitation, or physical
helplessness, or (4) by fraud. See Tenn. Code Ann. § 39-13-505. An assault conviction, on the other
hand, requires proof that the defendant (1) intentionally, knowingly, or recklessly inflicted bodily
injury, (2) intentionally or knowingly caused fear of bodily injury, or (3) intentionally or knowingly
caused extremely offensive physical contact with another. See Tenn. Code Ann. § 39-13-101(a).
Each form of assault, including the last form, which requires intentional or knowing conduct,
contains at least one element that is not included within the statutory elements of sexual battery.
Burns, 6 S.W.3d at 466. Likewise, the divergence of the statutory elements of assault and the
statutory elements of sexual battery does not arise as a result of assault requiring a lesser degree of
culpability or a less serious harm or risk of harm. Id. at 466-67. Nor does assault consist of
facilitation of, attempt to commit, or solicitation to commit sexual battery. Id. at 467. As such,
assault is not a lesser included offense of sexual battery.
II
In support of his contention that the evidence was insufficient to support the offense
of official misconduct, the defendant points to his record of service as an officer and argues that the
prosecution witnesses were not credible. He asserts that the state was unable to present a witness
who could provide corroboration to the testimony of the victim.
On appeal, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836
(Tenn. 1978). The credibility of witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of
fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). In a criminal case, a conviction
may be set aside only when the reviewing court finds that the "evidence is insufficient to support the
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finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). A guilty
verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and resolves
all conflicts in testimony in favor of the state's theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.
1978). A verdict against the defendant removes the presumption of innocence and raises a
presumption of guilt upon appeal. State v. Grace, 493 S.W.2d 474 (Tenn. 1973).
Official misconduct is defined as follows:
(a) A public servant commits an offense who, with intent to obtain a
benefit or to harm another, intentionally or knowingly:
(1) Commits an act relating to the servant's office or employment that
constitutes an unauthorized exercise of official power;
(2) Commits an act under color of office or employment that exceeds
the servant's official power;
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(4) Violates a law relating to the public servant's office or
employment; or
(5) Receives any benefit not otherwise authorized by law.
Tenn. Code Ann. § 39-16-402.
Here, the jury chose to accredit the testimony of the prosecution witnesses and to
reject the defense theory. The victim, Lisa Rogers, testified that the defendant entered her cell and
touched her breasts and vaginal area despite her protests. Furthermore, the defendant was employed
as a correctional officer during the commission of the offense. There was, therefore, evidence of
each element of the offense of official misconduct. Tenn. Code Ann. § 39-16-402. That some
prosecution witnesses had criminal records does not render the evidence insufficient. Moreover, the
fact that the defendant is a veteran police officer does not necessarily entitle him to greater
credibility.
Additionally, the victim's testimony is sufficient to establish the convicted offense.
Had she been an accomplice, the defendant's argument regarding the lack of corroboration of the
victim's account might have merit. A conviction cannot be based solely on the uncorroborated
testimony of an accomplice. State v. Henley, 774 S.W.2d 908, 913 (Tenn. 1989); Prince v. State,
529 S.W.2d 729, 732 (Tenn. Crim. App. 1975). An accomplice is one who knowingly, voluntarily,
and with common intent unites with the principal offender in the commission of the crime. Conner
v. State, 531 S.W.2d 119 (Tenn. Crim. App. 1975). When the facts are clear and undisputed
concerning a witness' participation in the crime, whether the witness is an accomplice is a question
of law for the court. When the facts are in dispute or susceptible to different inferences, it is then
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a question of fact for the jury's determination. Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim.
App. 1975). In this case, it was the responsibility of the jury to determine whether the victim
consented to the defendant's sexual advances, thereby becoming an accomplice and requiring
corroborative evidence. See State v. McKnight, 900 S.W.2d 36 (Tenn Crim. App. 1994) (holding
that the victim's failure to resist the defendant's advances made him an accomplice and served as a
defense to assault charges). Because the defendant failed to include in the record a transcript of the
jury charge, we cannot determine whether the trial court instructed the jury as to the accomplice
issue. Of course, the defendant's theory was that the sexual advances never occurred. In our view,
the jury acted within its prerogative in accrediting the victim's testimony and rejecting the defense
theory. Her testimony, therefore, did not require corroboration. A rational trier of fact could have
found the essential elements of official misconduct beyond a reasonable doubt. The evidence of the
defendant's guilt more than satisfies the standard prescribed by Tenn. R. App. P. 13(e).
III
Next, the defendant argues that the trial court erred by failing to require the state to
elect the specific instances for which it sought conviction. He contends that the state failed to
present evidence of "specific dates during which the alleged sexual assaults occurred other than the
dates of the accuser's incarceration which spanned a six-month period." It is the state's position that
the defendant has waived the issue due to an incomplete record.
In Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973), our supreme court held that
it is "the duty of the trial judge to require the State, at the close of its proof-in-chief, to elect the
particular offense of carnal knowledge upon which it would rely for conviction, and to properly
instruct the jury so that the verdict of every juror would be united on the one offense." The duty to
require election exists on the part of the trial court even in the absence of a specific request by the
defendant. Id. The Burlison court enumerated three reasons underlying the election requirement:
First, to enable the defendant to prepare for and make his defense to
the specific charge; second, to protect him from double jeopardy by
individualization of the issue; and third, so that the jury's verdict may
not be a matter of choice between offenses, some jurors convicting on
one offense and others, another.
Id. at 803. In State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993), our supreme court reaffirmed that
the election requirement is "fundamental, immediately touching on the constitutional rights of an
accused . . . ."
In this case, the indictment charging the defendant with official misconduct and
sexual battery stated as follows:
BILLY BIVENS on or about September 1995, in McMinn County,
Tennessee, and before the finding of this indictment, did unlawfully
and knowingly with intent to obtain a benefit or to harm another
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while on duty as McMinn County Sheriff's deputy jailer, have sexual
contact with Lisa Rogers, an inmate in McMinn County Jail, by
rubbing her vagina, breasts, asking her to expose her breast and
vagina and masturbating in front of Lisa Rogers, in violation of
T.C.A. 39-16-402, all of which is against the peace and dignity of the
State of Tennessee.
COUNT TWO
BILLY BIVENS on or about September, 1995, in McMinn County,
Tennessee, and before the finding of this indictment, did unlawfully,
intentionally, knowingly, recklessly, with force or coercion engage in
sexual contact with Lisa Rogers, in violation of T.C.A. 39-13-505, all
of which is against the peace and dignity of the State of Tennessee.
The record does not contain the arguments of counsel or the trial court’s instructions
to the jury. Any election made by the prosecution would have been made during closing argument
and any directive by the trial court would have been made in the instructions to the jury. It is the
duty of the appellant to prepare a record that conveys a fair, accurate, and complete account of what
transpired in the trial court with respect to the issues that form the basis for the appeal. Tenn. R.
App. P. 24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). When the record is
incomplete and does not contain information relevant to a particular issue, this court may not make
a ruling and must presume the correctness of the trial court. See State v. Miller 737 S.W.2d 556, 558
(Tenn. Crim. App. 1987); State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987). The
absence of a complete record precludes a full and complete review. The issue, therefore, has been
waived.
IV
Next, the defendant argues that the jury delivered inconsistent verdicts. He predicates
this argument on the fact that the jury found him not guilty of sexual battery, yet returned a guilty
verdict for official misconduct. Essentially, he argues that because the indictment for official
misconduct charged the defendant with having inappropriate sexual contact with the victim and,
because he was found to be not guilty of sexual battery, he could not have been found guilty of
official misconduct.
The defendant has cited no authority in support of his argument that he is entitled to
acquittal based upon inconsistency of the verdicts. Rather, he argues that "justice demands that the
verdicts of the jury be consistent." An issue may be treated as waived for failure to provide citation
to authority. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); State v. Dakin, 614 S.W.2d
812, 814 (Tenn. Crim. App. 1980).
More importantly, however, consistency in verdicts for multiple count indictments
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is unnecessary. Each count is regarded as a separate indictment. Wiggins v. State, 498 S.W.2d 92,
93-94 (Tenn. 1973); State v. Gennoe, 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992); State v. Hicks,
835 S.W.2d 32, 36 (Tenn. Crim. App. 1992). If satisfied that the proof established guilt of the
offense upon which the convictions were returned, courts will not upset a seemingly inconsistent
verdict by speculating as to the jury's reasoning. Wiggins, 498 S.W.2d at 94; State v. Bloodsaw, 746
S.W.2d 722, 726 (Tenn. Crim. App. 1987); see State v. Glenn David Jones, No. 03C01-9302-CR-
00057 (Tenn. Crim. App., at Knoxville, Nov. 22, 1994); State v. Rick A. Eaton, No. 03C01-9202-
CR-00044 (Tenn. Crim. App., at Knoxville, Dec. 29, 1992).
V
As his final issue, the defendant argues that the trial court improperly sentenced him
to a 30-day period of confinement. He contends that the sentence imposed was excessive and that
he should have been granted a suspended sentence.
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); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). 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, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim App. 1987).
In calculating the sentence for felony convictions committed before July 1, 1995, the
presumptive sentence is the minimum within the range if there are no enhancement or mitigating
factors. Tenn. Code Ann. § 40-35-210(c) (1990) (amended July 1, 1995, to provide that the
presumptive sentence for Class A felony as the midpoint in the range). If there are enhancement
factors but no mitigating factors, the trial court may set the sentence above the minimum. Tenn.
Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires
an assignment of relative weight for the enhancement factors as a means of increasing the sentence.
Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range by any weight
assigned to the mitigating factors present. Id. The weight given to each factor is within the trial
court's discretion provided that the record supports its findings and it complies with the Sentencing
Act. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
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Especially mitigated or standard offenders convicted of Class C, D, or E felonies are
presumed to be favorable candidates "for alternative sentencing 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 for each
conviction is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b). Among the factors
applicable to an 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). A sentence of
split confinement involves the grant of probation after the partial service of a sentence. Tenn. Code
Ann. § 40-35-306. It may include a jail or workhouse sentence of up to one year with the
probationary term to extend for any period thereafter up to the statutory maximum for the offense.
Id.
The purpose of the Community Corrections Act of 1985 was to provide an alternative
means of punishment for "selected, nonviolent felony offenders in front-end community based
alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence
provides a desired degree of flexibility that may be both beneficial to the defendant yet serve
legitimate societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). The following
offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be incarcerated in a
correctional institution;
(2) Persons who are convicted of property-related, or drug/alcohol-
related felony offenses or other felony offenses not involving crimes
against the person as provided in title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
(5) Persons who do not demonstrate a present or past pattern of
behavior indicating violence;
(6) Persons who do not demonstrate a pattern of committing violent
offenses; and
(7) Persons who are sentenced to incarceration or on escape at the
time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
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If the trial court's findings of fact are adequately supported by the record, this court
may not modify the sentence even if it would have preferred a different result. State v. Fletcher, 805
S.W.2d 785 (Tenn. Crim. App. 1991). The presumption of correctness is, however, "conditioned
upon the affirmative showing in the record that the trial court considered sentencing principles and
relevant facts and circumstances." Ashby, 823 S.W.2d at 169. The trial court must place on the
record the reasons for the sentence. State v. Jones, 883 S.W.2d 597 (Tenn. 1994).
In this case, the trial court observed as follows:
Having considered the presentence report, having considered the
statements of all the parties concerned, the witness' testimony, the
court's going to sentence Mr. Bivens to 30 days in the McMinn
County Jail, followed by probation for a period of two years . . . . I
sentence him to 30 days on the assault count to run concurrent with
the other sentence.
Because the trial court failed to specify for the record the rationale for the sentence imposed, our
review of the defendant's sentence for official misconduct, a felony, must be de novo without a
presumption of correctness.
Official misconduct, a Class E felony, includes a sentence range of one to two years.
Tenn. Code Ann. § 40-35-112(a)(5). Because the offense involved a victim and was committed to
gratify the defendant's desire for pleasure or excitement, that enhancement factor would apply to the
official misconduct offense. Tenn. Code Ann. § 40-35-114(7). The enhancement factor relating to
abuse of a position of public trust is not applicable to the offense of official misconduct because it
is an element of that offense. See State v. David Keith Lane, No. 03C01-9607-CC-00259 (Tenn.
Crim. App., at Knoxville, June 18, 1997), aff'd 3 S.W.3d 456 (Tenn. 1999). In mitigation of the
offenses, the defendant has no prior record of criminal activity and has served in a law enforcement
capacity for more than 20 years.
In our view, a two year sentence of probation upon completion of 30 days
incarceration for the offense of official misconduct was warranted. The defendant, a corrections
officer, used his position to take advantage of a victim who had little recourse and no means of
protecting herself from his sexual advances. Because his actions were also motivated by his desire
for "pleasure or excitement," Tenn. Code Ann. § 40-35-114(7), that factor should be given
significant weight. A period of confinement is necessary to avoid depreciating the seriousness of
the offense of official misconduct.
Accordingly, the judgment of the trial court is affirmed.
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