IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1997 SESSION
November 4, 1997
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. No. 01C01-9608-CR-00349 Clerk
Appellate Court
*
Appellee, * DAVIDSON COUNTY
*
VS. * Hon. Seth W . Norman, Judge
*
STEVEN E. BAKER, * (Sexual Battery; Especially Aggravated
* Sexual Exploitation of a Minor)
Appellant. *
For Appellant: For Appellee:
Richard McGee Charles W. Burson
601 Woodland Street Attorney General and Reporter
Nashville, TN 37206
Peter M. Coughlan
Assistant General and Reporter
450 James Robertson Parkway
Nashville, TN 37243-0493
Lila Statom
Assistant District Attorney General
Washington Square
Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:__________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Steven Eugene Baker, pled guilty to one count of
especially aggravated sexual exploitation of a minor and two counts of sexual
battery. The trial court imposed concurrent, Range I sentences of nine years and
one year, respectively. In this appeal of right, the defendant challenges the length
of the sentence and the trial court's denial of alternative sentencing.
We affirm the judgment of the trial court.
On the night before Thanksgiving in 1994, the defendant, a step-
grandfather to the fourteen-year-old female victim,1 provided her with medication for
a headache. Afterward, while the victim was asleep in her grandmother's living
room, the defendant videotaped himself touching the victim on her breast and
digitally penetrating her vagina. The victim never awoke and had no recollection of
the occurrence.
Just prior to the Christmas holidays in the same year, the defendant
looked at the videotape in anticipation of a visit by the victim. Because he neglected
to remove the tape from his VCR, the victim's father learned of its content on the
next day. There were a number of pornographic videotapes and magazines found
in the defendant's bedroom.
The defendant was charged with rape, sexual battery, and especially
aggravated sexual exploitation of a minor. In accordance with a plea agreement,
1
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).
2
the state dropped the rape charge and the defendant pled guilty to the remaining
charges.
At the sentencing hearing, the victim testified that she and the
defendant had enjoyed a close friendship. She related that when she was younger,
she had often confided in the defendant and viewed him as somewhat of a father
figure. By the time she was eleven, however, the defendant began to verbally
abuse her. She claimed that the defendant "gave [her] guilt trips" and pleaded to
have sex with him so as to "help" his marriage to her grandmother. As time passed,
the incidents became more frequent and offensive to the victim. She testified that
she was afraid to sleep at night and experienced nightmares. Because her
grandmother refused to leave the defendant after the sexual assault, the victim
described her relationship with her grandmother as uncomfortable. The victim
testified that she coped with her knowledge of the incident with counseling and
involvement in school and church activities.
The victim's father and mother, Carl and Victoria Shackleford, testified
that relationships among the entire family had deteriorated. Family members had
taken sides in the matter and felt stigmatized by the incident.
The defense proof included testimony by the defendant, his wife, and
his counselor, psychological evaluations, and eleven letters from friends and co-
workers showing support for and confidence in the defendant. Nancy Baker, the
defendant's wife and the victim's grandmother, was fully supportive of her husband.
She believed that the defendant had adequately acknowledged responsibility for his
actions by expressing remorse, cooperating with the police, surrendering himself
into custody, and seeking counseling.
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The forty-three-year-old defendant has no prior record and no history
of violent behavior. He has a bachelors degree in engineering and has worked fairly
steadily as an engineer and real estate agent. He has consistently paid child
support payments to his two children from a prior marriage. The defendant testified
that he had benefitted by intensive counseling: "I know that I've created a great deal
of pain for a lot of people that I love. ... My actions have separated their family."
He expressed remorse for his actions and accepted full responsibility for the
incident. The defendant claimed that he had tried to cooperate fully during the
police investigation and had agreed to the state's request for an evaluation at the
Luton Mental Health Center of Nashville.
When asked if he had been guilty of improperly touching the victim
prior to November of 1994, the defendant initially said no. He then explained that he
had inadvertently touched, then continued to fondle, the victim's breast while she
slept on a single prior occasion. When asked if he had drugged the victim in
November of 1994, he maintained that he had given the victim nothing stronger than
Excedrin P.M. On further cross examination, the defendant admitted that he was
not receiving sex-offender specific treatment, as recommended by Luton Mental
Health Center.
Dr. Scott Ericson, a Christian counselor, had conducted weekly
sessions with the defendant for about a year following the charges. Dr. Ericson
reported that the defendant had worked diligently to face up to the issue and that he
did not believe that the defendant would reoffend. In contrast, the Luton Mental
Health Center described the defendant at "moderately high risk for future sexual
exploitation of other persons" and characterized the defendant's prognosis as fair
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with treatment and poor without treatment; there were specialized
recommendations:
It is recommended that Mr. Baker receive sex offender-
specific mental health treatment for his compulsive and
addictive sexual behaviors, anxieties, and offenses.
Treatment should include both individual and group
therapy services that are sex-offender specific in format
and conducted by a therapist(s) competent in the areas
of sexual offender and sexual addiction issues. At this
time, it appears that Mr. Baker is not in need of a secure-
type facility and that treatment may be pursued at an
outpatient, community-based facility which offers a
specialized treatment program for sexual offenders and
persons with significant sexual addiction issues.
***
Due to his present level of insight and rationalization of
his sexual offense against an adolescent female minor, it
is recommended at this time that Mr. Baker have no
contact with female children under 18 years old unless
they are under responsible adult supervision.
***
Mr. Baker should be accountable...for his daily
whereabouts.
***
Mr. Baker should not purchase or use pornographic
materials or frequent establishments where such
materials are displayed.
***
Mr. Baker should attend at least weekly a community-
based self-help group for persons with sexual
compulsions.
Detective Steve Cleek, who questioned the defendant, testified that
the defendant acknowledged his sexual attraction to the victim. Detective Cleek
recalled that the defendant admitted to fondling the victim's breast on a prior
occasion while hugging her on the front porch. At the sentencing hearing, the
defendant denied that the incident ever occurred.
While imposing sentence, the trial judge stated a belief that the abuse
had been ongoing since the victim was eleven. The trial court specifically found that
the medication given in November of 1994 had an incapacitating effect on the victim
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and that the crimes had been committed for purposes of gratification. Thus, two
enhancement factors were deemed applicable:
(4) A victim of the offense was particularly vulnerable
because of age or physical or mental disability ...;
***
(7) The offense involved a victim and was committed to
gratify the defendant's desire for pleasure or
excitement[.]
Tenn. Code Ann. §§ 40-35-114 (4), (7) (Supp. 1995). The trial court heard but
rejected claims of mitigating factors. While rejecting the notion of consecutive
sentencing, the trial court denied the defendant's request for alternative sentencing.
The defendant first contends that the trial court erred by failing to apply
nonstatutory mitigating circumstances to reduce his sentence to eight years. He
also argues that the trial court should have allowed him to serve his sentence
through Community Corrections or strict 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); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). 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
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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).
At the time of this offense, the presumptive sentence was the
minimum in the range if there were no enhancement and mitigating factors. Tenn.
Code Ann. §§ 40-35-210. Should the trial court find mitigating and enhancement
factors, it must start at the minimum sentence in the range and enhance the
sentence based upon any applicable enhancement factors, and then reduce the
sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-
210(e). 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 Criminal Sentencing
Reform Act of 1989. See Ashby, 823 S.W.2d at 169. The trial court should,
however, make specific findings on the record which indicate its application of the
sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -210.
The defendant does not challenge application of the two enhancement
factors. He does argue that the trial court was required to reduce his sentence
based on the following nonstatutory mitigating factors:
1. The defendant has no prior criminal history of any
kind either as a juvenile or an adult.
2. The defendant immediately sought intensive
psychological counseling for the mental illness which was
the predicate for the commission of the offense in this
case.
3. The defendant is clearly remorseful for the harm that
he caused to the victim and both her family and his
family.
4. The defendant cooperated with police officers by
giving a confession even though he was instructed by the
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officers that any statements that he would make would
be used against him.
5. The defendant cooperated with the District Attorney's
Office by voluntarily participating in the evaluation at the
Luton Mental Health Center at his own expense when he
was under no legal obligation to do so.
6. The defendant has significant family and community
support.
7. The defendant's prior employment history is excellent.
In our view, the defendant is entitled to some mitigation by virtue of each of these
circumstances. Each factor serves the defendant in a favorable manner. Yet two
enhancement factors specifically apply. Moreover, the defendant was in a position
to commit the crime because of his familial relationship with the victim. The crimes,
in our view, qualify as breaches of a private trust. Tenn. Code Ann. § 40-35-
114(15). Neither enhancement nor mitigating factors have any particular weight.
This court fully approves of the nine-year sentence, only one year above the
minimum. Any entitlement to mitigation would be offset by the additional
enhancement factor.
Further, we cannot say that the trial judge erred in denying alternative
sentencing. The defendant argues that he is capable of rehabilitation, requires
treatment for the mental illness that prompted this offense, and would have a much
greater probability of recovery under an alternative sentencing scheme. He also
argues for imposition of a one-year incarceration period followed by especially
restricted probation. The state contends that continuous confinement is required
due to the seriousness of this offense and that there is a "moderately high risk" that
the defendant will reoffend.
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are, of course, presumed to be favorable candidates "for alternative
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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
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). Among the
factors applicable to probation consideration 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 (Tenn.1978).
Here, because we have upheld the nine-year sentence, the defendant
simply does not qualify for probation. See Tenn. Code Ann. § 40-35-303(a).
Moreover, had he qualified, this court would have affirmed the denial. The nature
and circumstances of the offenses 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). A
lack of candor may also militate against a grant of probation. State v. Bunch, 646
S.W.2d 158 (Tenn. 1983). Here, the record demonstrates an obvious reluctance on
the part of the defendant to acknowledge a prior incident of improper conduct
involving this victim.
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). Even in cases where the
defendant meets the minimum requirements of the Community Corrections Act of
1985, the defendant is not necessarily entitled to be sentenced under the Act as a
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matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987).
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 2 [repealed], parts 1-3 and
5-7 or 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) (emphasis added). Subpart (a)(2) above would
initially exclude the defendant because sexual battery is classified as an “offense
against the person.” See Tenn. Code Ann. § 39-13-505; see State v. Boston, 938
S.W.2d 435, 438 n.5 (Tenn. Crim. App. 1996). However, subpart (c) creates a
"special needs" category of eligibility:
Felony offenders not otherwise eligible under subsection
(a), and who would be usually considered unfit for
probation due to histories of a chronic alcohol, drug
abuse, or mental health problems, but whose special
needs are treatable and could be served best in the
community rather than in a correctional institution, may
be considered eligible for punishment in the community
under the provisions of this chapter.
Tenn. Code Ann. § 40-36-106(c) (emphasis added). Thus, the defendant would
arguably be eligible for Community Corrections under this "special needs" category.
However, to be eligible for Community Corrections under subpart(c), the defendant
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must first be eligible for probation under Tenn. Code Ann. § 40-35-303. State v.
Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).
Moreover, in Ashby, our supreme court encouraged the grant of
considerable discretionary authority to our trial courts in matters such as these. 823
S.W.2d at 171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986). "[E]ach
case must be bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It is not
the policy or purpose of this court to place trial judges in a judicial straight-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. Here, the trial judge considered
and rejected Community Corrections, "[a]s a result of his sentence under [Tenn.
Code Ann.] § 40-35-303, I do not feel that the defendant is eligible for any type of
alternative sentencing. ... That's the judgment of the Court."
The defendant, while otherwise described as a candidate for out-
patient treatment, was diagnosed as a "moderately high risk for future sexual
exploitation" by the Luton Mental Health Center. While the defendant was
apparently willing to undergo sex-offender specific treatment, as opposed to that
provided by Dr. Ericson, he had not done so during the period of time between the
offenses and the sentencing hearing.
Thus, the trial judge, who observed the witnesses first-hand, had an
additional basis for rejecting a Community Corrections sentence. Recognizing that,
this court must defer to the determination made by the trial court.
Accordingly, the judgment is affirmed.
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______________________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
David H. Welles, Judge
_______________________________
Curwood Witt, Judge
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