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State v. Neal4/8/1999
ld be granted probation, the court must consider the defendant's criminal record, social history, present physical and mental condition, the circumstances of the offense, the deterrent effect upon the criminal activity of the defendant as well as others, and the defendant's potential for rehabilitation or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). We note that the defendant has the burden of establishing suitability for full probation. T.C.A. § 40- 35-303(b). "To meet the burden of establishing suitability for full probation, the defendant must demonstrate that probation will `subserve the ends of Justice and the best interest of both the public and the defendant.'" State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). Additionally, this Court has previously held that denial of alternative sentencing is proper even when based solely upon the defendant's numerous incidents of unprosecuted unlawful sexual contact. See State v. Michael W. Wasson, No. 02C01-9708-CR-00323, Shelby County (Tenn. Crim. App. filed May 22, 1998, at Jackson) (citing State v. Lloyd Mills Matthews, Jr., No. 03C01-9505-CR-00153, Washington County (Tenn. Crim. App. filed May 1, 1996, at Knoxville)).
Based on the defendant's lengthy criminal record, his history of sexual abuse of the victim, his refusal to take responsibility for his own actions, and the circumstances surrounding the offense, the trial court denied probation. The trial Judge specifically stated that the defendant has "no business with other human beings." The trial Judge concluded that the defendant has a problem, " ut it had to do with sex, didn't have anything to do with drinking." In addition, the presentence report indicates the defendant has been previously convicted of numerous offenses and has a history of sexually abusing his daughter. The evidence presented fully supports the trial court's findings, and the evidence rebuts the presumption of suitability for alternative sentencing.
In light of the foregoing, the trial court did not err in sentencing the defendant to five years for incest, a Class C felony. It is also clear the defendant has not established his suitability for full probation. As such, it was not error for the trial court to sentence the defendant to serve his five year sentence in the Tennessee Department of Correction. Accordingly, the defendant's sentence is affirmed.
JOHN H. PEAY, Judge
CONCUR:
DAVID H. WELLES, Judge
JERRY L. SMITH, Judge
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