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State v. Robinson9/19/2005
this omission constitutes reversible error. We disagree.
The import of the Ferguson instruction, even as redacted in this case, is to benefit the defendant by instructing the jury, in effect, to give the benefit of the doubt about the missing evidence to the defendant. We fail to see how the elided portion significantly alters the meaning or the intent of the instruction. If eliding the instruction was error, it was harmless. See Tenn. R. App. P. 36(b).
IV. Sentencing
In his final issue, the defendant claims that the trial court erred in denying probation or another form of alternative sentencing and in ordering consecutive sentencing.
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the record with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Although in felony sentencing the trial court has an affirmative duty to state on the record, either orally or in writing, which enhancement and mitigating factors it found and its findings of fact, Tenn. Code Ann. §§ 40-35-209(c), -210(f) (2003), misdemeanor sentencing affords the sentencing court greater flexibility. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The misdemeanor sentencing statute only requires that the trial court consider the enhancement and mitigating factors when calculating the percentage of the sentence to be served "in actual confinement" prior to "consideration for work release, furlough, trusty status and related rehabilitative programs." Tenn. Code Ann. § 40-35-302(d) (2003); Troutman, 979 S.W.2d at 274.
Tennessee Code Annotated section 40-35-103 defines the principles which should be considered when a court is contemplating sentences involving confinement for a particular defendant. Confinement is appropriate when
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement 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) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant[.]
Id. § 40-35-103(1)(A)-(C) (2003).
In the instant case, the trial court conducted a sentencing hearing, and the evidence introduced therein established that the defendant had three prior driving on a revoked license convictions, three driving with no driver's license convictions, two prior DUI convictions, a conviction of theft, and a Texas conviction of driving on a suspended license.
The defendant earned military medals and stars for two tours of duty and his service in Vietnam before being honorably discharged from the United States Army. The defendant testified that he has lung problems stemming from chronic bronchitis contracted during his service in Vietnam. He also testified that he suffers from a herniated disk resulting from being thrown from a truck in a mine explosion in Vietnam. The defendant testified that he has had heart surgery and suffers from hypertension. He stated he had been disabled since 1979.
The trial court mitigated the sentences on the basis of the defendant's military record, his war-related injuries, and his poor healt
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