IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1998
FILED
STATE OF TENNESSEE, )
) No. 02C01-9708-CR-00323 May 22, 1998
Appellee )
) SHELBY COUNTY Cecil Crowson, Jr.
Appellate C ourt Clerk
vs. )
) Hon. Bernie Weinman, Judge
MICHAEL W. WASSON, )
) (Attempt to Commit
Appellant ) Aggravated Sexual Battery)
For the Appellant: For the Appellee:
Ballin, Ballin & Fishman, P.C. John Knox Walkup
Marvin E. Ballin Attorney General and Reporter
Mark A. Mesler
200 Jefferson Avenue
Suite 1250 Georgia Blythe Felner
Memphis, TN 38103 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Thomas Hoover
Asst. District Attorney General
Criminal Justice Complex
Suite 301, 201 Poplar Street
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Michael W. Wasson, appeals the sentencing decision of the
Shelby County Criminal Court following his guilty plea to the offense of attempt to
commit aggravated sexual battery, a class C felony.1 Pursuant to a negotiated
plea, the appellant received a sentence of five years as a range I offender and a fine
of $500. The manner of service of the sentence was submitted to the trial court for
determination. Following a sentencing hearing, the trial court imposed a sentence of
confinement in the Shelby County Correction Center. The appellant appeals this
decision, arguing that he is entitled to a sentence of total probation.2
After a review of the record, we affirm.
Background
The proof stipulated to, at the sentencing hearing, established that on the
dates of June 25, 26 and 27, 1996, the appellant’s seven year old niece, D.F.,
visited at the home of the appellant.3 At some point during these visits, the
appellant’s wife went to the attic and saw the appellant “touching [D.F], rubbing her,
kissing her on the cheek.” She immediately confronted the appellant; he replied that
“nothing” had happened. The police were called. D.F. stated to the police that the
appellant had pulled down both his pants and her panties. He then rubbed his penis
against her stomach. D.F. further informed the police that this had occurred on at
least three prior occasions.
On the date of the hearing, the appellant was forty-one years old, married,
1
The indictment returned by the grand jury charged the crime of aggravated sexual
batte ry.
2
The appellant’s issue is framed as whether the trial court erred by refusing to suspend
his sentence. We interpret this to mean total probation.
3
It is the policy of this court to ide ntify minor children b y their initials. See State v.
Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn.Crim .App. 1989).
2
had no prior criminal history, and possessed a stable work history as a maintenance
worker. He was financially responsible for the welfare of his wife and three step-
children, and was current in support of his son by a previous marriage. The proof
also shows that, immediately following this offense, the appellant sought and was
continuing to receive psychological counseling for “anxiety, depression, and sexual
urges.” He expressed remorse for his actions and had apologized to both the victim
and her family. The trial court in denying probation relied, in large part, upon the
nature and circumstances of the criminal conduct committed by the appellant.
Analysis
In his only issue, the appellant contends that the trial court erred by imposing
a sentence of total incarceration. The appellant argues that his sentence should
have been “suspended.”4 When the manner of service of a sentence is challenged
on appeal, this court must conduct a de novo review with consideration of the
evidence received at the sentencing hearing, the presentence report, the principles
of sentencing and arguments as to sentencing alternatives, the nature and
characteristics of the criminal conduct involved, any statutory mitigating or
enhancement 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 (1996 Supp.); 40-35-103 (1990);40-35-210 (1996 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).
Moreover, the appellant bears the burden of showing that the sentence imposed by
the trial court is improper. See Sentencing Commission Comments, Tenn. Code
4
We note that our review on appeal is limited to the narrow question of whether the trial
court erred in denying a sentence of total probation. Accordingly, this review does not encompass
other sentencing alternatives because they were not included within the appellant’s assigned
issu e nor argu ed by c oun sel on appe al.
3
Ann. § 40-35-401(d).
The appellant correctly argues that because he was convicted as a standard
offender of a class C felony, he is statutorily eligible for probation. See Tenn. Code
Ann. § 40-35-303(a) (1996 Supp.). However, the fact that the appellant is eligible
for probation does not mean that probation should automatically be granted. While
the burden is upon the State to show a defendant's non-entitlement to the statutory
presumption of an alternative sentence, the defendant has the burden of
establishing suitability for full probation. See Tenn. Code Ann. § 40-35-303(b). See
also State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.), perm. to appeal
denied, (Tenn. 1995) (citation omitted). To meet his burden, the appellant must
demonstrate that probation will “subserve the ends of justice and the best interest of
both the public and the defendant.” Id. at 448. The following factors are relevant to
the sentencing court’s determination:
(1) the nature and circumstances of the conduct involved, Tenn. Code
Ann. § 40-35-210(b)(4);
(2) the defendant’s potential or lack of potential for rehabilitation, Tenn.
Code Ann. § 40-35-103(5);
(3) whether a sentence of probation will unduly depreciate the
seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and
(4) whether a sentence other than probation would provide an effective
deterrent to others likely to commit similar crimes, Tenn. Code Ann. §
40-35-103(1)(B).
See Bingham, 910 S.W.2d at 456.
In addition to the above enumerated considerations, release into the
community of an offender who has committed a crime against the person, especially
in a case involving the sexual molestation of a minor, necessarily requires a
determination by the sentencing court as to whether (1) the offender poses no harm
to the community and (2) that the offender is not likely to reoffend. The record
reveals that the appellant is currently receiving psychological counseling for his
"sexual urges." Beyond this fact, the record is silent as to whether the appellant's
4
aberrational behavior poses a danger to the public in general or whether there exists
the possibility that he may reoffend the victim in this case. In seeking total
probation, the appellant bears the responsibility of negating potential harm to the
community; these questions being relevant to the issue of rehabilitation. See Tenn.
Code Ann. § 40-35-103(5).
Additionally, the record indicates that the appellant has committed similar
unlawful acts with the victim on at least three other occasions. This fact alone is
sufficient to deny alternative sentencing. See State v. Matthews, No. 03C01-9505-
CR-00153 (Tenn. Crim. App. at Knoxville, May 1, 1996) (affirming trial court’s denial
of alternative sentence based upon defendant’s numerous incidents of
unprosecuted unlawful sexual contact). In reflecting upon the appellant's conduct
and the nature of the offense, it is apparent that the trial court implicitly concluded
that confinement was necessary to avoid depreciating the seriousness of the
offense. Tenn. Code Ann. § 40-35-103(1)(B). Finally, the trial court found that a
sentence other than probation would provide a deterrent to others likely to commit
similar crimes stating that “we cannot in any way give the impression that we have
any tolerance to some types of crimes. . . . And I think this is one of them.” See
Tenn. Code Ann. § 40-35-103(1)(B).
After de novo review of the above principles of sentencing and the nature and
circumstances of the facts of this case, we conclude that the appellant has failed to
establish his suitability for total probation.
Accordingly, the judgment of the trial court is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
________(Not Participating)_____________
WILLIAM M. BARKER, Judge
___________________________________
JOE G. RILEY, Judge
6