Tennessee Court of Criminal Appeals hears challenge to six-month jail term for Richard Kinsinger Jr.

The Tennessee Court of Criminal Appeals convened in Jackson for oral argument in State v. Richard Kinsinger Jr., in which the defendant is appealing a trial court's sentence of six months incarceration followed by four and a half years of probation after entering an Alford plea to a reduced battery charge involving a child.

The appeal centers on whether the trial judge properly applied the sentencing factors set out in Tennessee Code Annotated § 40-35-103 (TCA §40-35-103) or instead abused her discretion by placing primary weight on the seriousness of the offense and statements about the victim's trauma. Defense counsel told the appeals court the sentencing judge's findings were not supported by the record and improperly relied on the defendant's age and presumed lack of amenability to rehabilitation.

Defense counsel said the record's evaluative material weighed against incarceration: Kinsinger, described in the presentence reports as about 69 years old with steady employment and a $53-per-hour salary, received a low risk score on the STRONG-R risk assessment and a psychosexual evaluation by Dr. Mitchell that also assessed him as low risk and amenable to treatment. Counsel argued that the trial judge's statement that incarceration was necessary to avoid "depreciating the seriousness of the offense" and the judge's apparent conclusion that rehabilitation was unlikely because of the defendant's age were not supported by the record.

"I realized that I didn't cite the wrong standard of review in my brief...and I apologize to the court," defense counsel told the panel, and later argued that "there's nothing in the record" to support the trial judge's conclusions about victim impact or the defendant's inability to rehabilitate.

Assistant attorney Lacey Wilbur, arguing for the state, countered that the trial judge followed the statutory analysis and did not abuse her discretion. Wilbur told the court the judge considered TCA §40-35-103 factors and relied on the prosecutor's statements at sentencing that the child had been traumatized and was receiving therapy. "I think he's a child molester," Wilbur said, and she urged the court to affirm the sentence.

Appeal counsel questioned whether the six-month confinement served rehabilitative goals and noted collateral consequences for a nearly 70-year-old defendant who risked losing employment and housing. The state responded that favorable evaluations do not automatically require probation and that the judge found the defendant not fully truthful and saw confinement as necessary to avoid depreciating the gravity of the offense.

The panel indicated it had read the briefs and asked questions during argument. No decision was announced from the bench at the conclusion of the argument; the court called the next case on the docket. The record and briefs will be considered before the appellate panel issues a written opinion.