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State v. Bussell8/23/2005
an offense for which the defendant has been acquitted, so long as the facts have been established in the record by a preponderance of the evidence." State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). Personal injury to the victim is not an essential element of the offense of attempted robbery. See Tenn. Code Ann. 39-12-101 and 39-13-401. Clearly, death is a "particularly great" personal injury. Thus, we conclude that the trial court properly applied enhancement factor (7) to Defendant's sentence for attempted robbery.
In summary, enhancement factors (2), (7), (10) and (11) are applicable to Defendant's sentence for attempted robbery, and enhancement factor (2) and enhancement factor (10) are applicable to his sentence for the criminally negligent homicide conviction. We cannot conclude that the trial court erred in sentencing Defendant to four years for his attempted robbery conviction and two years for his criminally negligent homicide conviction. Defendant is not entitled to relief on this issue.
B. Denial of Alternative Sentencing
Defendant argues that the trial court erred in denying his request for alternative sentencing and argues that none of the considerations relevant to this decision were warranted by the facts and circumstances surrounding his offenses. Because Defendant does not fall within the class of offenders for whom incarceration is a priority and is a standard offender convicted of a Class D and a Class E felony, Defendant is presumed to be an eligible candidate for alternative sentencing. Tenn. Code Ann. 40-35-102(5) and (6). If the trial court, however, is presented with evidence sufficient to overcome the presumption, then it may sentence a defendant to confinement Ashby, 823 S.W.2d at 169 (Tenn. 1991). Each case is determined on its own facts and circumstances. State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Based on the facts and circumstances surrounding Defendant's offenses, the trial court found that confinement was necessary to avoid depreciating the seriousness of the offenses and to serve as a deterrent to both the community and Defendant himself. The trial court also mentioned the leniency extended by the jury in convicting Defendant of the lesser included offenses of the charged offenses.
A trial court may determine if incarceration rather than alternative sentencing is appropriate if the evidence shows that:
(A) onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) onfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In its determinations, the trial court may also consider the defendant's potential or lack of potential for rehabilitation and any mitigating or enhancement factors that are relevant to sentencing. Id. §* 40-35-103(5), 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). A trial court should also "consider the circumstances of the offense, the defendant's criminal record, the defendant's social history and present condition, the need for deterrence, and the best interest of both the defendant and the public" in determining whether to grant or deny probation. State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001) (citations omitted). As noted above, a jury's verdict of acquittal does not prevent the sentencing court from considering a de
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