        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  August 15, 2006 Session

                 STATE OF TENNESSEE v. ROBERT L. MYERS

                 Direct Appeal from the Criminal Court for Sullivan County
                          No. S49,260    Phyllis H. Miller, Judge



                   No. E2005-02576-CCA-R3-CD - Filed October 2, 2006


The defendant, Robert L. Myers, pled guilty to two counts of attempted aggravated sexual battery,
a Class C felony, and was sentenced as a Range I, standard offender to six years on each count, to
be served concurrently. On appeal, he argues that the trial court erred in denying probation or
alternative sentencing. Following our review, we conclude that the trial court properly sentenced
the defendant and affirm the judgments of conviction.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., joined.
GARY R. WADE, P.J., not participating.

Richard A. Spivey and Timothy R. Wilkerson, Kingsport, Tennessee, for the appellant, Robert L.
Myers.

Paul G. Summers, Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Kent L. Chitwood, Jr. and William B. Harper,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                           OPINION

        On June 9, 2004, a grand jury indicted the sixty-five-year-old defendant on two counts of
aggravated sexual battery, and he subsequently pled guilty to the lesser-included offenses of
attempted aggravated sexual battery. At the submission hearing, the State summarized the evidence
it was prepared to present had the matter gone to trial:

       [O]n September 9th, 2003, Deputy Sherrie Ramsey of the Sullivan County Sheriff’s
       Department received a referral of child sexual abuse from the Department of
       Children’s Services. It was originated by a Kimberly Neece. She stated that at the
       time Ms. Neece lived with the defendant, Mr. Robert Myers, and her five year-old
       daughter, Emily; her daughter’s birthday, December 5th, 1997, and they lived at 750
       VI Ranch Road in Bristol, Tennessee. She stated that on September 6th, 2003 she’d
       gotten off of work early and got home somewhere between 10:30 and 11 p.m., and
       home is the address that I just mention[ed] . . . in Sullivan County. [Ms. Neece] went
       into the house and was going to sneak up on the defendant and Emily and let them
       know that she was home early. She stated that she walked up the stairs, could hear
       them talking and laughing. The defendant’s bedroom door was half cracked and she
       could clearly see inside the bedroom. She stated that she saw the defendant, who was
       lying on the bed with his underwear pulled down, and he was holding his penis in his
       hand. The five year-old, [Ms. Neece’s] five-year-old daughter was sitting on the bed
       in front of him and she was also naked and she was leaning back on her knees and
       she was laughing as if they were playing a game. [Ms. Neece] went into the room,
       confronted them, took [the victim] to her own bedroom and then confronted the
       defendant again with regard to what had happened. The defendant came in, gave a
       statement to the Sullivan County Sheriff’s Department and stated that prior to Ms.
       Neece . . . arriving home, that . . . [the victim] . . ., five years of age, had touched his
       penis on two occasions. According to his statement the second time he did not make
       her stop. Also, it would be the State’s contention that the [victim] made a statement,
       and would make the statement had this case gone to trial, that they had been playing
       a game and also and not at the same time in which she had touched his penis but on
       the same night he had placed his mouth on both of her breasts and on her vagina with
       regard to this game that they had played, and that would be the State’s proof in this
       case.

        At the subsequent sentencing hearing, the defendant offered no proof and said that he was
relying, in part, on the presentence report and sex offender risk assessment from Counseling and
Consultation Services, which are in the record on appeal. The risk assessment stated that the
defendant posed a “moderate risk to re-offend” and that he provided differing versions of the
incident:

               The willingness or ability to honestly discuss their sexual offending behavior
       is the single most important factor associated with successful treatment. [The
       defendant] provided different versions of the “truth” during the course of the
       assessment. His statements were also significantly different than the victim[’]s. [The
       defendant’s] self-report is considered unreliable and his lack of full disclosure is
       associated with a poor treatment outcome.

        The trial court denied alternative sentencing, stating that the defendant’s sentence had
“already been mitigated enough by letting him plead to attempt.” Additionally, the court noted that
the victim, being five years old, had no choice about where to live and that the defendant blamed her
for the sexual contact:

       [T]his little girl couldn’t leave. She couldn’t go out and find her another home, and
       it was her home, the only place she had unfortunately to halfway, supposed to be safe


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       in this world, was where she lives with her mother, and in that house is a man who
       would abuse her the way this report reads.

               Now, . . . who does he blame? Does he take responsibility for it? No, he
       blames the five-year-old. That’s what the Counseling and Consultation Services
       report states. It states, number one, he’s a moderate range of risk. The next is he is
       able to acknowledge some of the incident offense, however places the responsibility
       for the sexual contact on the five year-old victim.

         The trial court applied enhancement factor (16), see Tenn. Code Ann. § 40-35-114(16) (Supp.
2005), finding that the defendant had “abused a position of private trust on more than one occasion,”
which the court gave great weight. As for mitigating factors, the court concluded that the
defendant’s lack of a criminal record was relevant but entitled to “very, very little weight in a crime
of this nature.” The trial court noted that the defendant had an excellent work history. However, in
summation, the trial court decided that incarceration was appropriate:

       [C]ommunity corrections is out of the question. I don’t find that that would benefit
       him or the community. He has no drug problem. There’s nothing that caused this
       except his desire for sexual excitement and the five year-old was there to provide it.
       So I’m denying alternative sentencing, [finding] that the enhancement factors that
       I’ve found far outweigh any of the good work history and the no criminal record. So
       he’s ordered to serve his sentence of six years [as a] Range I standard offender in the
       Tennessee Department of Corrections.

                                             ANALYSIS

         On appeal, the defendant argues that the trial court erred in denying probation or alternative
sentencing, saying the court “fail[ed] to properly weigh and balance established mitigating factors
with the single enhancement factor applicable to [the defendant], a presumptively favorable
candidate for probation or other alternative sentencing.” The State argues that the record supports
the trial court’s imposition of a sentence of confinement.

        When reviewing the denial of probation, this court conducts a de novo review on the record,
“with a presumption that the determinations made by the court from which the appeal is taken are
correct.” Tenn. Code Ann. § 40-35-401(d) (2003) (amended 2005). The presumption of correctness
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). If appellate

       review “reflects that the trial court followed the statutory sentencing procedure,
       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



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         findings are adequately supported by the record, then we may not modify the
         sentence even if we would have preferred a different result.”

 State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000) (quoting State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991)).

        A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed upon the defendant is eight years or less. Tenn. Code Ann. § 40-35-303(a) (2003)
(amended 2005).1 Even if eligible, however, the defendant is not automatically entitled to probation
as a matter of law. See Tenn. Code Ann. § 40-35-303(b). The burden is on the appellant to show
the denial of probation was improper. See State v. Summers,159 S.W.3d 586, 599-600 (Tenn. Crim.
App. 2004) (citing Ashby, 823 S.W.2d at 169); see also State v. Baker, 966 S.W.2d 429, 434 (Tenn.
Crim. App. 1997) (stating that “[a] criminal defendant seeking full probation bears the burden on
appeal of showing the sentence actually imposed is improper, and that full probation will be in both
the best interest of the defendant and the public”).

        There is no bright line rule for determining when a defendant should be granted probation.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Every sentencing decision necessarily requires a case-
by-case analysis. Id. Factors to be considered include the circumstances surrounding the offense,
the defendant’s criminal record, the defendant’s social history and present condition, the need for
deterrence, and the best interest of the defendant and the public. State v. Goode, 956 S.W.2d 521,
527 (Tenn. Crim. App. 1997). Another appropriate factor for a trial court to consider in determining
whether to grant probation is a defendant’s credibility or lack thereof, as this reflects on the
defendant’s potential for rehabilitation. Id.

         In this matter, it is clear that, in denying probation, the trial court considered the relevant
facts, circumstances, and sentencing principles; and, thus, its findings as to the sentence are entitled
to a presumption of correctness. In denying probation, the court found that the defendant had not
been candid as to the facts of the incident but had, in fact, “place[d] the responsibility for the sexual
contact on the five year-old victim.” As we have set out, a defendant’s lack of candor reflects on his
potential for rehabilitation. Further, according to the report from Counseling and Consultation
Services, the defendant’s “lack of full disclosure is associated with a poor treatment outcome.” In
essence, the defendant simply disagrees with the weight which the trial court afforded the


         1
          W e cite to the 2003 version of the Code because it is the law properly applied to the defendant. See 2005
Tenn. Pub. Acts ch. 353, § 18. The defendant could have elected to be sentenced under the 2005 Act because his crimes
were committed prior to June 7, 2005, and he was sentenced after that date. See id. As the defendant did not so elect,
the 2003 probation provision applies in this case. However, we note that substantial changes came with the 2005
amendment, including increasing the maximum sentence length a defendant can receive and still be eligible for probation
from eight to ten years. Tenn. Code Ann. § 40-35-303(a) (2005).




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enhancement and mitigating factors. However, it is within the discretion of the trial court as to the
weight to be afforded the factors. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).
We conclude that the record easily supports the trial court’s determination that the defendant did not
establish that he was a favorable candidate for probation.

                                          CONCLUSION

       For the foregoing reasons, we affirm the trial court’s denial of alternative sentencing.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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