State v. Bussell8/23/2005
fendant's conduct underlying the acquitted charge if proven by a preponderance of the evidence. Winfield, 23 S.W.3d at 282-82 (Tenn. 2000).
Defendant argues that he has many positive attributes which warrant the grant of a probated sentence. His prior criminal history only consists of two misdemeanors for disorderly conduct and underage drinking, and he has been gainfully employed both before and after his trial. The trial court acknowledged these mitigating factors, but found that other considerations outweighed the factors tending to favor the grant of probation.
Defendant contends that the trial court erred in denying probation based on the seriousness of the offense, arguing that the offense was not so shocking or horrifying as to support the trial court's denial of alternative sentencing. If probation is denied based solely on the facts and circumstances surrounding the offense, "the circumstances of the offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and the nature of the offense must outweigh all factors favoring probation." State v. Fields, 40 S.W.3D 435,441 (Tenn. 2000) (quoting State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985). In the case sub judice, an unarmed victim was lured out of his house in daylight and shot at point blank range in his front yard, with the last gunshot fired execution style into the top of his head. Based on the facts and circumstances surrounding these offenses, we find that the trial court properly considered the seriousness of the crimes in its decision to deny alternative sentencing.
The need to avoid depreciating the seriousness of the crimes, however, was not the only consideration. This Court has previously concluded on numerous occasions that the trial court's determination that the jury acted with exceptional leniency is appropriate in making its findings that a defendant's confinement is necessary. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD (Tenn. Crim. App., at Knoxville, July 19, 2004), perm. to appeal denied (Tenn. Dec. 20, 2004); State v. J.D. Edward Ealey, No. E1999-00381-CCA-R3-CD, 1999 WL 1034649 (Tenn. Crim. App, at Knoxville, Nov. 15, 1999), no perm. to appeal filed; State v. Samuel Braden, No. 01C01-9610-CC-00457, 1998 WL 85285 (Tenn. Crim. App., at Nashville, Feb. 18, 1998), no perm. to appeal filed.
We acknowledge that the trial court referenced deterrence as a basis for denying alternative sentencing, and that Defendant challenges the appropriateness of this finding. A trial court's decision to impose a sentence of confinement based solely on the need for deterrence will not be disturbed so long as "a reasonable person looking at the entire record could conclude that (1) a need to deter similar crimes is present in the particular community, jurisdiction, or in the state as a whole, and (2) incarceration of the defendant may rationally serve as a deterrent to others similarly situated and likely to commit certain crimes." State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000). The trial court in the instant case did not substantiate its finding that deterrence was necessary as outlined in Hooper. Nonetheless, based on the need to avoid depreciating the seriousness of the offense, coupled with consideration of the jury's leniency, we find that the trial court did not err in denying Defendant's request for alternative sentencing and imposing a sentence of confinement. Defendant is not entitled to relief on this issue.
CONCLUSION
After a thorough review of the record, we affirm the judgments of the trial court.
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