State v. James E. Frazier ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1999 SESSION
STATE OF TENNESSEE, * No. 01C01-9801-CC-00036
October 12, 1999
Appellee * CANNON COUNTY
V. * Hon. J. S. Daniel, Judge
Cecil Crowson, Jr.
JAMES FRAZIER, * (Incest)
Appellate Court Clerk
Appellant. *
For Appellant For Appellee
Scott Daniel John Knox Walkup
P.O. Box 960 Attorney General and Reporter
Murfreesboro, TN 37133-0960 425 Fifth Avenue North
Nashville, TN 37243-0493
Daryl J. Brand
Associate Solicitor General
425 Fifth Avenue North
Nashville, TN 37243-0493
David Puckett
Assistant District Attorney General
303 Rutherford County Judicial
Building
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
On January 17, 1997, the appellant, James Frazier, was indicted by a
Cannon County Grand Jury for twenty-four counts of raping his minor daughter, GF, 1
and twelve counts of incest with his daughter, the offenses occurring in 1995. On
August 28, 1997, the appellant submitted a petition to enter pleas of guilt to six
counts of incest in return for the State’s dismissal of the remaining counts of the
indictment and in return for consecutive sentences of three years for each conviction
of incest. The parties agreed that the trial court would determine whether the
appellant should receive a sentencing alternative to incarceration. Following a
sentencing hearing, the trial court accepted the plea agreement, imposing an
effective sentence of eighteen years in the Tennessee Department of Correction,
but declined to grant alternative sentencing. On appeal, the appellant challenges
both the imposition of consecutive sentencing and the trial court’s denial of an
alternative sentence. Following a thorough review of the record, we affirm the
judgment of the trial court.
I. Factual Background
The trial court conducted the appellant’s sentencing hearing on
November 7, 1997. The proof at the sentencing hearing established that the
appellant grew up in Cannon County and was a member of a closely knit family.
Indeed, the appellant left high school after completing the tenth grade in order to
work for his father in the family logging business. The appellant worked in the family
logging business and also worked with his family farming tobacco and raising cattle
until 1987, when he began working with the Tennessee Farmer’s Co-op in nearby
Rutherford County. The appellant maintained employment at the Tennessee
1
Con siste nt with the p olicy of this c ourt, we w ill withh old th e iden tity of ch ildren involv ed in
sexual abuse cases, identifying them only by their initials.
2
Farmer’s Co-op until his arrest for the instant offenses. The record further reflects
that, other than two traffic violations, the appellant possesses no criminal record.
Moreover, at the sentencing hearing, both the appellant and several family members
testified that the appellant has never abused alcohol or drugs. The appellant does
take medications for the treatment of diabetes and hypertension.
At the time of these offenses, the appellant was married and had three
biological children and two step-children. The appellant confessed at the
sentencing hearing that, prior to the instant offenses, he had sexually abused a
minor step-daughter for a period of one year. Due to this episode of sexual abuse,
the Department of Children’s Services removed the appellant’s step-daughter and
his biological daughter, GF, from the appellant’s home. The appellant apparently
avoided criminal prosecution, agreeing to undergo counseling which comprised fifty-
seven group counseling sessions between 1993 and 1995 and additional individual
counseling. On July 28, 1995, the appellant was diagnosed with “pedophilia, limited
to incest.” Nevertheless, in 1995, the Department of Children’s Services returned
the appellant’s biological daughter, GF, to the appellant’s home. According to the
appellant, he began sexually abusing his minor daughter approximately six months
after her return to the home.
During the ensuing year, the appellant engaged in sexual intercourse
with his daughter approximately once every week. In a statement to the police, the
appellant indicated that his daughter repeatedly asked that he cease his sexual
advances. However, he also denied using anything other than verbal coercion upon
his daughter. At the sentencing hearing, the appellant expressed remorse for his
crimes and indicated a willingness to again undergo counseling.
3
Azero Frazier, the appellant’s father, testified on the appellant’s behalf.
He stated that, during the appellant’s employment by the family business, the
appellant was a hard worker. Moreover, Mr. Frazier recalled that the appellant
never posed a disciplinary problem for his parents. Mr. Frazier concluded that, if his
son were granted an alternative sentence, he would provide the appellant with a
home, employment, and supervision.
Finally, the appellant’s daughter, GF, submitted a Victim Impact
Statement. She indicated that she did not oppose the imposition of an alternative
sentence providing for the appellant’s release from incarceration after September
20, 1998. GF asserted her belief that the appellant does not pose a danger to her
or other members of the community.
At the conclusion of the hearing, the trial court entered the following
findings of fact:
This Court has carefully considered the probation report,
the attachments to that report, the testimony presented
at this hearing as well as the plea. After considering
arguments of counsel, this Court determines that the
application for a suspended sentence should be denied.
In making this determination a careful consideration of
the circumstances of the various offenses has greatly
weighed upon the Court’s determination. In this case the
Defendant is convicted of incest against his natural child
over an extended period of time. This criminal activity
occurred after the Defendant had been identified as
being involved in an incestuous relationship with a step-
daughter and had completed an extensive course of
psychological treatment over approximately a year before
having obtained the custody of the child victim in the
current cases.
In addition, this record demonstrates that although the
Defendant has no prior criminal record of convictions, the
Defendant engaged in numerous acts of uncharged
criminal conduct by having sexual intercourse with his
natural daughter, sexually assaulting the step-daughter,
and that he has engaged in a continued course of
pedophilia within his family.
4
Therefore, to suspend all or a portion of this sentence
would be to depreciate the seriousness of the continued
course of criminal activity against these children . . . .
II. Analysis
We first conclude that the appellant waived his right pursuant to Tenn.
Code. Ann. § 40-35-401 (1997) to appeal the imposition of consecutive sentencing
in his case. State v. McKissack, 917 S.W.2d 714, 715 (Tenn. Crim. App. 1995);
State v. Jaco, No. 01C01-9802-CC-00091, 1998 WL 917805, at *5 (Tenn. Crim.
App. at Nashville, December 21, 1998), perm. to appeal denied, (Tenn. 1999);
Tenn. R. App. P. 3(b)(2); Tenn. R. Crim. P. 37(b)(2). 2 Moreover, we conclude that
the trial court properly denied the appellant a sentencing alternative to incarceration.
Appellate review of the manner of service of a sentence is de novo.
Tenn. Code. Ann. § 40-35-401(d). In conducting its de novo review, this court
considers the following factors: (1) the evidence, if any, received at the trial and the
sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the
criminal conduct involved; (5) evidence and information offered by the parties on
enhancement and mitigating factors; (6) any statement by the defendant in his own
behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code. Ann. § 40-
35-102, -103, -210 (1997). See also State v. Ashby, 823 S.W.2d 166, 168 (Tenn.
1991). The burden is upon the appellant to demonstrate the impropriety of his
sentences. Tenn. Code. Ann. § 40-35-401, Sentencing Commission Comments.
Moreover, if the record reveals that the trial court adequately considered sentencing
principles and all relevant facts and circumstances, this court will accord the trial
2
We reject the appellant’s argument, set forth in his reply brief, that the terms of the plea
agreement in this case are ambiguous.
5
court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d
at 169.
In this case, the appellant received sentences of less than eight years
for each conviction of incest and, accordingly, is eligible for probation. State v.
Langston, 708 S.W.2d 830, 832-833 (Tenn. 1986); State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997). Moreover, the appellant meets the eligibility
criteria for alternative sentencing under the Community Corrections Act. Tenn.
Code. Ann. § 40-36-106(a) (1995). Nevertheless, the trial court concluded that
granting an alternative sentence would depreciate the seriousness of the appellant’s
offenses. Tenn. Code. Ann. § 40-35-103(1)(B).
The appellant contends that the trial court, in denying an alternative
sentence, failed to accord the appellant the statutory presumption in favor of
alternative sentencing as required by Tenn. Code. Ann. § 40-35-102(6) and did not
adequately consider applicable mitigating circumstances. We note that the record
does not reflect whether the trial court accorded the appellant the presumption in
favor of alternative sentencing. Therefore, we will not presume that the trial court
correctly sentenced the appellant.
Nevertheless, even assuming that the presumption of alternative
sentencing is applicable in this case, the need to avoid depreciating the seriousness
of the appellant’s offenses, Tenn. Code. Ann. § 40-35-103(1)(B), overcomes the
presumption. Tenn. Code. Ann. § 40-35-102(6). Moreover, we have previously
observed that “[w]hile the statute speaks in terms of overcoming the presumption,
sufficient contrary evidence, typically, also defeats the defendant’s claim to
alternative sentencing.” State v. Lane, No. 03C01-9607-CC-00259, 1997 WL
6332061, at *10 (Tenn. Crim. App. at Knoxville, June 18, 1997), perm. to appeal
granted, (Tenn. 1998). The contrary evidence in the record currently before this
court overwhelmingly defeats any claim of the appellant to alternative sentencing.
Under Tenn. Code. Ann. § 40-35-103(1)(B) and Tenn. Code. Ann. §
40-35-210(b)(4), the nature and circumstances of an offense may serve as the sole
basis for denying a sentencing alternative to incarceration if the offense was
especially violent, horrifying, reprehensible, offensive, or otherwise of an excessive
or exaggerated degree, and the nature of the offense outweighs all factors favoring
a sentencing alternative to incarceration. State v. Grissom, 956 S.W.2d 514, 520
(Tenn. Crim. App. 1997)(citing State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim.
App. 1995)). In this case, the appellant was convicted of multiple counts of incest
with his daughter. State v. Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996).
Moreover, the record reflects that the appellant admitted to multiple uncharged
incidents of sexual intercourse with his daughter. The appellant persisted in his
sexual advances despite his daughter’s repeated pleas. According to the record,
the incidents occurred approximately once every week over as much as one year.
Moreover, in evaluating the seriousness of this appellant’s offenses, we may apply
mitigating and enhancement factors set forth in Tenn. Code. Ann. § 40-35-113
(1997) and -114 (1995). Tenn. Code. Ann. § 40-35-210(b)(5); Zeolia, 928 S.W.2d
at 461. As the victim’s father, the appellant clearly occupied and abused a position
of private trust. Tenn. Code. Ann. § 40-35-114 (15). Moreover, the appellant had
previously sexually molested his minor step-daughter. Tenn. Code. Ann. § 40-35-
114 (1). In short, the nature and circumstances of the appellant’s offenses are
thoroughly reprehensible, outweighing all other factors favoring alternative
sentencing.
7
Additionally, the potential or lack of potential for rehabilitation must be
considered in determining whether a defendant is an appropriate candidate for
alternative sentencing. Tenn. Code. Ann. § 40-35-103 (5). Again, the appellant
underwent counseling for two years following his sexual abuse of his minor step-
daughter. Only six months after completing his treatment, he began sexually
abusing his biological daughter.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Norma McGee Ogle, Judge
CONCUR:
David G. Hayes, Judge
Jerry L. Smith, Judge
8