IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 3, 2009
STATE OF TENNESSEE v. MAURICE JONES
Direct Appeal from the Criminal Court for Shelby County
No. 08-01632 Paula Skahan, Judge
No. W2008-01877-CCA-R3-CD - Filed February 8, 2010
The defendant, Maurice Jones, entered an open plea agreement to one count of Class E
felony sexual battery in the Shelby County Criminal Court. Following a sentencing hearing,
the trial court imposed a sentence of two years, all suspended to probation but sixty days to
be served in the county workhouse. As a special condition of his probationary sentence, the
trial court ordered that the defendant is not allowed unsupervised contact with any minor
child under eighteen years of age, including his own children. On appeal, the defendant
asserts that the trial court exceeded its authority in denying him unsupervised contact with
his minor children. Following review of the record, we conclude that the special condition
is overbroad as written. Accordingly, the case the remanded to the trial court for imposition
of a more defined and less limiting condition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Remanded
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.
Robert Wilson Jones, District Public Defender, and Harry E. Sayle, III, Assistant Public
Defender (on appeal); and Andrew Bernstein, Memphis, Tennessee (at trial), for the
appellant, Maurice Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; and Scot A. Bearup, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Factual Background
The basic underlying facts supporting the conviction, as recited by the State at the
guilty plea hearing, are “that on the period of time set out in the indictment[, October 17,
2006, to October 17, 2007,] the defendant . . . was residing in the residence with the minor
victim as a stepfather, and that during that period of time [the defendant] did have sexual
contact with the victim.” Based upon these actions, the defendant was indicted by a Shelby
County grand jury for one count of sexual battery.
Subsequently, the defendant pled guilty as charged, with the agreement specifying that
the sentence, including the appropriateness of judicial diversion, was to be determined by the
trial court.
At the sentencing hearing, the State introduced victim impact statements from the
victim and her mother, as well as a letter from the victim’s treating psychologist. Also
introduced were the presentence report, the defendant’s psychosexual evaluation, and his
honorable discharge from the army. Additionally, the defendant testified. He acknowledged
that he had committed sexual battery against the victim, the daughter of his live-in girlfriend,
who had lived with him for six years and who viewed him as a father figure. He testified
that, following the abuse, the victim and her mother moved to Minnesota. In contradiction
to statements contained in the victim impact statement, the defendant denied that he had
penetrated the victim, that he had ejaculated in the victim’s presence, or that he had been
naked in the victim’s bed. The defendant insisted that he had only fondled the victim’s
breasts and buttocks. Moreover, the defendant disputed the victim’s statement that the acts
continued for more than two years and stated that he had fondled her no more than ten times
over less than a one-year period. He also testified that he had stopped the abuse
approximately a month and a half prior to the victim reporting it. Moreover, he related that,
following his arrest, he had sought counseling. Finally, he testified that, after he was
charged, the Department of Human Services conducted an investigation but did not remove
his children from his care.
The defendant testified that he received an honorable discharge from the army after
four years of service when his wife died of cancer in order to assume care of his four minor
children, who were ages seven, five, three, and one. According to the defendant, he retains
custody of these children, now fourteen, twelve, ten, and eight years old and is the sole
provider of support and care to them. He acknowledged that he has been gainfully employed
less than two weeks in the prior seven years and that his main source of income is
survivorship benefits. He testified that he has no prior criminal record but acknowledged
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that, after the instant charge, he had been arrested for DUI, violation of the implied consent
law, and simple possession of marijuana. The presentence report admitted into evidence
supported this testimony.
The trial court also reviewed the psychosexual evaluation which was submitted. The
report indicated that the defendant was at an extremely low risk to reoffend. However, the
examining doctor did indicate that being the sole caretaker to his children might elevate the
risk. The doctor further noted that procedures needed to be taken to ensure that the defendant
is not alone with his children.
After hearing the evidence presented, the trial court denied the defendant’s request for
diversion and imposed a sentence of two years, suspended to probation following service of
sixty days. As a special condition of that probation, the trial court ordered that the defendant
was to have “no unsupervised contact with the defendant’s minor children or any child under
eighteen years of age.” The defendant has timely appealed.
Analysis
On appeal, the defendant raises the single issue of whether the trial court exceeded its
authority in denying the defendant unsupervised contact with his minor children, which he
describes as an unauthorized condition of probation. He contends that the condition is not
reasonably related to the rehabilitation of the defendant and “is destructive of the natural
family, and unreasonably restricts [the defendant’s] freedom to exercise his responsibilities
as a parent.”
When a criminal defendant challenges the length, range, or manner of service of a
sentence, the reviewing court must conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-
401(d) (2006). This presumption, however, “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 the event the record
fails to show such consideration, the review of the sentence is purely de novo. State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
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.” State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the
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sentence imposed. Ashby, 823 S.W.2d at 169.
The Sentencing Act provides that “the trial court has great latitude in formulating
punishment, including the imposition of conditions of probation.” State v. Burdin, 924
S.W.2d 82, 85 (Tenn. 1996). However, the primary purpose of a sentence of probation“is
rehabilitation of the defendant,” id. at 86, and the conditions or probation must be suited to
this purpose. “Once the trial judge determines that probation is justified under the
circumstances, the conditions imposed must be reasonable and realistic and must not be so
stringent as to be hard, oppressive or palpably unjust.” Stiller v. State, 516 S.W.2d 617, 620
(Tenn. 1974). The Act does not grant to the trial court “unfettered authority” to impose any
condition on the defendant’s probation but limits the court’s discretion to “the bounds of
traditional notions of rehabilitation.” Burdin, 924 S.W.2d at 87; see also State v. Mathes,
114 S.W.3d 915, 918 (Tenn. 2003) (disapproving probation condition that did “not serve
either the goal of rehabilitation or the goal of deterrence”); State v. Robinson, 139 S.W.3d
661, 666 (Tenn. Crim. App. 2004). That being said, however, the burden of demonstrating
the impropriety of a probation condition rests with the defendant. Burdin, 924 S.W.2d at 84.
In support of his argument, the defendant relies upon State v. Robinson, a case in
which a licensed pharmacist with no prior criminal record received probation after illegally
disbursing controlled substances to a romantic interest over a period of time. Robinson, 139
S.W.2d at 663. The trial court imposed a condition which precluded his practicing pharmacy.
Id. at 666. A panel of this court found that the condition was: (1) punitive and not
rehabilitative; (2) was not based upon concerns of future criminality; (3) was unnecessary
and overbroad in light of the regulatory authority of the Tennessee Board of Pharmacy; and
(4) was unduly restrictive in preventing lawful employment. Id. at 667. The defendant likens
the instant condition to the one in Robinson, asserting: he also has no prior criminal record;
the crime was against only one person; he will be regulated by the Board of Probation and
Parole; the Department of Human Services found no reason to remove his children; and the
condition deprives him of a basic right, that being the right to exercise parental privileges and
responsibilities.
The State disagrees and asserts that the defendant’s case is more akin to the facts of
State v. James Robert Lawson, No. E2001-01415-CCA-R3-CD (Tenn. Crim. App. at
Knoxville, Jul. 5, 2002). In Lawson, the defendant was a father convicted of child abuse for
slapping his daughter in the face, knocking her to the ground, and hitting her with a belt.
James Robert Lawson, No. E2001-01415-CCA-R3-CD. The trial court, as a condition of
probation, ordered that the defendant could not live in the same household with a small child.
Id. The State contends that, like in Lawson, the defendant was convicted “of a heinous crime
against a minor child who viewed the defendant as a ‘father figure.’” The State further likens
the two cases based upon the statement by the doctor in the defendant’s psychosexual
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evaluation that procedures need to be implemented to ensure adequate supervision for the
defendant’s minor children. The State contends that the instant condition: (1) reasonably
relates to the defendant’s crime; (2) is rehabilitative in purpose; (3) is based upon concerns
of future criminality; and (4) is not unduly restrictive.
After review of the record and relevant case law, we are unable to adopt either the
State’s or the defendant’s argument. The defendant’s argument and reliance upon Robinson
is misplaced, as we fail to see a comparison between an employment condition versus one
utilized to protect children from abuse, as well as regulation by the Board of Pharmacy versus
the Board of Probation and Parole. Nonetheless, while we do agree with the State that the
instant case is more akin to the facts in Lawson, we are also precluded from concluding that
the condition in this case is proper. Basically, we conclude that the condition of probation
at issue, that the defendant have no unsupervised contact with his own minor children or any
child under the age of eighteen, is overbroad, is not properly defined, and is unduly
restrictive.
The problem arises with the term “unsupervised contact.” The failure to define the
term “unsupervised contact” creates problems with clarity for the defendant to know his
restrictions and with enforceability, leading to an unjust result. As written, the condition
would preclude any sort of unsupervised communication between the defendant and any
person under the age of eighteen, including but not limited to telephone conversations,
emails, and letters. Taken to the extreme, it would also preclude the defendant from entering
a retail establishment if the clerk was alone and happened to be under eighteen. While we
would agree that the condition of probation is related to the offense, we must conclude that
the condition, as written, is aimed more at protecting possible victims than at the defendant’s
rehabilitation. See State v. Glenn E. Pressinell, Nos. E2008-01290-CCA-R3-CD, E2008-
01735-CCA-R3-CD (Tenn. Crim. App. at Knoxville, Feb. 10, 2009). As written, the
condition is too indefinite to be reasonable or realistic.
The confusion is evidenced from the record itself, as defense counsel was forced to
ask for a clarification as to whether the defendant could speak with his child by phone. We
realize that this is not the effect intended by the trial court, who expressed great and
justifiable concerns for the safety of the defendant’s minor children, and we recognize and
applaud the effort taken to protect those children. However, we are confident that the trial
court can fashion a condition which is both more defined and less limiting than the one
imposed in order to accomplish that goal.
CONCLUSION
Because the trial court’s imposition of the challenged condition of probation is
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overbroad, we remand to the trial court with instruction to fashion a more defined and less
limiting condition.
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JOHN EVERETT WILLIAMS, JUDGE
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