IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JUNE SESSION, 1998 FILED
August 10, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9708-CR-00361
Appellee )
) SULLIVAN COUNTY
vs. )
) Hon. Phyllis H. Miller, Judge
LARRY DALE RAMSEY, )
) (Sentencing)
Appellant )
For the Appellant: For the Appellee:
Cary C. Taylor John Knox Walkup
547 East Sullivan Street Attorney General and Reporter
Kingsport, TN 37660
Sandy C. Patrick
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
Barry Staubus
Asst. District Attorney General
Blountvile, TN 37617
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Larry Dale Ramsey, appeals the decision of the Sullivan
County Criminal Court imposing an effective eight year Department of Correction
sentence following entry of his guilty pleas to one count of rape and two counts of
sexual battery. In this appeal, the appellant contends that the trial court erred in
denying him a non-incarcerative alternative sentence.
After a review of the record, we affirm the sentence imposed by the trial court.
Background
The appellant’s convictions result from the appellant’s ongoing sexual abuse
of the thirteen year old daughter of his live-in girlfriend. The appellant conceded that
his aberrant behavior began in June 1994.
When we lived in Bristol Heights, about 15 months or so ago. [The
victim] was fourteen years old and we were laying on the couch
together, I had been watching tv when she came over to lay down.
She asked me to rub her back and I was rubbing it. I thought she was
awake, but she might have dozed off. I believe she was wearing
shorts and a shirt. The shirt was pulled up so I could rub her back. I
was almost asleep myself, but I remember putting my hand down the
back of her shorts and rubbed her [vagina]. After I rubbed it, I put my
finger in her. I only left it in her for a couple of seconds and I stopped
because I knew what I was doing was wrong. I don’t know if she was
awake or not when I did it, but she did wake up later and get (sic) up to
go to bed. I never touched her again until we moved to 416 Hilltop Rd.
I have never put my finger in her since then. I have rubbed her
breasts over her clothes maybe 12 times over the last year. I have
also rubbed her [vagina] over her clothes and under her clothes quite a
few times over the last year. I’ve never done any of these things to her
with her permission or while I thought she was awake. I never wanted
to hurt [her] and I’m not sure why I did this to her.
Since the occurrence of these offenses, the victim and her mother have moved out
of the appellant’s home.
2
Although charged with one count of rape and thirteen counts of sexual
battery, the appellant pled guilty, on January 6, 1997, to one count of rape and two
counts of sexual battery. The negotiated plea agreement provided that the
appellant would be sentenced to eight years for rape and to one year for each count
of sexual battery, all to run concurrently. The manner of service of the sentences
were to be submitted to the trial court. On May 2, 1997, a sentencing hearing was
conducted.
No witnesses were called by the State or the appellant at the sentencing
hearing. Rather, the parties submitted and relied upon the presentence report and
letters of good character from the appellant’s ex-wife and his employer. The
presentence report revealed that the appellant is a forty-four year old high school
graduate with no prior criminal record. He is in good physical and mental condition
and does not drink alcohol nor does he use illegal drugs. The appellant has two
adult children from a prior marriage that ended in 1980. Since 1982, he has
maintained stable employment as an electrician.
Included in the presentence report was a statement made by the victim:
If you grew up without a father you would probably understand how I
feel. There’s nothing worse than the feeling of seeing all of these
family’s [sic] happy and knowing that your family isn’t completely
complete without a father. Then when you have the chance to have a
real family, everything just goes away just like it was a dream. I don’t
know if the judge will put him on probation or send him to prison but I
do know that if there is any way possible that I could still have contact
with him I would be the happiest girl in the world. I wouldn’t care if
there had to be someone with us at all times when I see him, just as
long as I still got to see him. I always believed that you learn from your
mistakes. In this case its a big one but that doesn’t mean you have to
be punished for every mistake that you made. I know that if I got sent
off for every big mistake that I made I would be sent off until I’m 50.
So what I’m saying is or should I say asking is, please don’t put him in
prison.
The trial court also had the benefit of a psycho sexual evaluation of the
appellant completed by Counseling and Consultation Services, Inc., a private non-
profit counseling center in Johnson City. The clinical interview of the appellant
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indicated that the appellant “appears to have significantly objectified his victim giving
minimal thought to how his offending was affecting her. He is unaware of how his
being sexual with his victim has negatively affected her despite reporting of her
running away, being placed in detention, etc.” The evaluation concluded that the
appellant was in need of Specialized Sexual Offender Treatment, which could be
maintained on an out-patient basis, and, more significantly, that the appellant
“should have no contact with anyone under the age of 18. . . .” (emphasis in
original).
The court, in a thorough application and consideration of relevant sentencing
principles, found:
So, [the victim] was just less than a month, maybe, two, three weeks
past her thirteenth birthday when this all started. . . . [Y]ou [stated], . . .
‘What I did was wrong. . . . This sort of thing . . . will never happen
again.’ Well, now, I am assuming that statement went to what
happened in 1994. But it happened in 1995 twice, and that’s just what
you pled guilty to. That’s two more sexual battery offenses against the
same victim in 1995. You had a whole year to think about it. . . . You
state, I care about [the victim] and her mother very much; and if I am
put on probation, I believe that I pose no threat to anyone. You have
lived and worked in the community for the past twenty-five years. And
have never caused problems for anyone before this incident. Now, her
mother was your live-in girlfriend for seven years. The little girl said, ‘It
didn’t really hurt me mentally until I found out that Larry may go to
prison. . . . “ Now, that is pitiful. . . .
She’s fifteen years old. She is still too young to have any judgment
about what you did to her. . . . Seven years, she was what, six years
old when you started living with her mother. . . . And the probation
report states no mitigating factors. It lists two enhancing factors, it
involved a victim, was committed to gratify the defendant’s desire for
pleasure or excitement. You abused a position of public or private
trust. . . .
You have no prior record. You completed high school. You went to a
vocational school to become an electrician. That’s all in your favor.
But then again, you know, you could be a bank president, and be
beating your wife . . . because this is a secret crime. . . . You are not
taking any drugs, no alcohol since 1989. . . . You have an ex-wife, two
grown sons. . . .
. . . If you had to pick victims, this little girl is probably the epitome of
the definition of victim. She has nobody, nobody. So let me see what
enhancement factors there are. The victim of the offense was
particularly vulnerable because of age, or physical or mental disability.
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. . .[1] Age is not an element in this crime of rape. . . . Number seven
applies. . . it involved a victim, was committed to gratify your desire for
pleasure or excitement.[2] And number fifteen, you abused a position
of private trust. . . . [3] You had a little girl who didn’t have a Daddy. . .
. But - - - and she wanted a Daddy, and she had lived with you from
the time that she was six, and in her mind, she was your daughter.
You were the closest thing she ever had to a Daddy. And so, I give
great weight to those enhancement factors. . . . Nothing exists to
excuse or justify your conduct. . . . You are old enough to know better.
[T]here are no mitigating factors. And on community corrections, . . .
. . . You are not eligible for community corrections. I didn’t think it
applied to sex offenders. So, should you be placed out in the
community. . . .
So, now, whether or not you should get probation.
...
Now, this is a B felony. You are not presumed to be a favorable
candidate for alternative sentencing options. . . . I find that the
presumption - - - let’s see, you are not presumed to be a favorable
candidate. So, I find that, number one, confinement is necessary to
protect society. Number two, in your case, confinement is necessary
to avoid depreciating the seriousness of the offense. you don’t go out
and steal and plunder, rape women on the street; but you raped a little
girl in what was the only home she had. So, probation is denied.
Analysis
Again, the appellant contests the trial court’s order denying him a non-
incarcerative sentencing alternative. Specifically, he asserts that the trial court
incorrectly applied enhancement factors and unjustly rejected mitigating factors in
determining that a sentence of confinement was necessary to protect society and to
avoid depreciating the seriousness of the offense.
When a sentencing determination is challenged on appeal, this court
conducts a de novo review with consideration of the evidence received at the
1
See State v. Walton, 958 S.W .2d 724, 729 (Tenn. 1997 ).
2
See State v. Carico, No.03S01-9610-C R-0009 (Ten n. at Knoxville, Apr. 27, 1998) (for
publication).
3
See Carico, No. 03S01-9610-CR-0009.
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sentencing hearing, the presentence report, the principles of sentencing and
arguments to sentencing alternatives, the nature and characteristics of the criminal
conduct involved, any statutory enhancing or mitigating factors, any statement that
the defendant made on his own behalf, and the potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. §§§ 40-35-102 (1995 Supp.); 40-35-
103 (1990); 40-35-210 (1995 Supp.). Although a de novo review is conducted by
this court, the trial court’s determination is presumed correct on appeal, conditioned
upon an affirmative showing in the record that the trial court properly considered
relevant sentencing principles. Tenn. Code Ann. § 40-35-401(d) (1990); State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the present case, this court could not
have conducted a more thorough and complete review of the applicable sentencing
considerations. The presumption of correctness applies. Moreover, the appellant
bears the burden of showing that the sentence imposed by the trial court is
improper. See Tenn. Code Ann. § 40-35-210(b)(3).
Because rape is a class B felony, the appellant is not presumed to be a
favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-
102(6). Moreover, even though the presumption applies to his two remaining class
E felonies, this presumption may be overcome by “evidence to the contrary.” See
Tenn. Code Ann. § 40-35-102(6); Tenn. Code Ann. § 40-35-103(1) (1990) (defining
what constitutes sufficient evidence to the contrary). Inasmuch as they are relevant
to establishing sufficient “evidence to the contrary,” the trial court may consider any
applicable statutory mitigating and enhancing factors set forth in Tenn. Code Ann.
§§ 40-35-113 (1990); and -114 (1995 Supp.). See State v. Zeolia, 928 S.W.2d 457,
461 (Tenn. Crim. App. 1996). We find no error in the application of enhancement
factors nor in the rejection of any mitigating factors.
In reviewing the propriety of the sentence imposed by the trial court, we do
not find error in the court’s application of the relevant sentencing principles. We do
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find the appellant's offenses reprehensible and offensive. Moreover, we find the
offenses excessive and exaggerated based upon the extended period over which
the sexual abuse occurred. We also take into account the relative ages of the
appellant and the victim and the relationship between the two. Furthermore, as
indicated by the psycho sexual evaluation, we find the appellant to be a poor
candidate for rehabilitation.
The appellant has failed to establish that the sentencing decision of the trial
court is improper. The record fully supports the trial court’s determination denying
the appellant a non-incarcerative sentence. We agree with the trial court that a
sentence of incarceration is justified.
The judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_______________________________
JOHN H. PEAY, Judge
_______________________________
JOSEPH M. TIPTON, Judge
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