State of Tennessee v. Matthew DeLoss Larsen and Andrew Lee Matthews

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 20, 2001 Session

STATE OF TENNESSEE v. MATTHEW DeLOSS LARSEN and

ANDREW LEE MATTHEWS

Direct Appeal from the Criminal Court for Sumner County

No. 83-CTI-CR-696-1999 Jane Wheatcraft, Judge

No. M2000-01675-CCA-R3-CD - Filed October 12, 2001

The defendants, Matthew DeLoss Larsen and Andrew Lee Matthews, were indicted for aggravated

robbery and aggravated assault. Pursuant to negotiated plea agreements, the defendants pled guilty

to robbery, Tenn. Code Ann. § 39-13-401, and aggravated assault, Tenn. Code Ann. § 39-13-102,

both Class C felonies. The defendants also agreed to serve consecutive sentences, with the manner

of service and length of their sentences to be determined by the trial court. Following a sentencing

hearing, the trial court imposed five-year sentences for each felony conviction and denied any form

of alternative sentencing, which resulted in effective sentences of ten years confinement for both

defendants. In this appeal, Larsen and Matthews separately challenge their sentences on similar

grounds, essentially alleging that the trial court erred by (1) finding no mitigating factors were

applicable in their respective cases, and (2) denying both defendants any form of alternative

sentencing. Our de novo review reveals that the trial court erred in its application of enhancement

factors. After a thorough review of applicable law and all relevant facts and circumstances in the

record, we modify the trial court’s sentencing determination concerning the length of the defendants’

sentence for aggravated assault and affirm all other aspects of the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Criminal Court Affirmed, in Part, and Modified, in Part.

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES, J. and

TERRY LAFFERTY, Sp.J., joined.

Randy P. Lucas, Gallatin, Tennessee, for the appellant, Matthew DeLoss Larsen; and Cheryl J.

Skidmore, for the appellant, Andrew Lee Matthews.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

Lawrence Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual Background

During the early morning hours of July 26, 1999, the Par Mart convenience store in

Hendersonville was robbed of $177.69 by two armed men with red bandanas tied “Wild-West” style

over each man’s nose and mouth. The twenty-two-year-old clerk, Michael Cadorette, and his

eighteen-year-old girlfriend, Crystal Parks, were the only two people in the store at the time.

Cadorette called the police after the robbers left and placed Parks in the cooler for safekeeping in

case they returned. When the police officers arrived, they took separate statements from Cadorette

and Parks which detailed the following facts: two armed, black males robbed the store--one with a

.22 caliber revolver and the other with a sawed-off shotgun; the man with the revolver made Parks

sit on the ground facing a cabinet and ordered her not to look at him; the man with the shotgun

directed Cadorette to give him the money from the cash register and said, “Hurry up, or I’ll put a cap

in your ass.”

In the hours preceding the robbery, Officer Janel Rogan with the Hendersonville Police

Department reported observing a Buick Riviera parked on the highway exit ramp across the street

from the Par Mart store. A “tag check” on the vehicle revealed that it belonged to Andrew Lee

Matthews. Since the vehicle had not been reported stolen, Rogan did nothing about it at that time.

When Rogan returned to investigate the robbery, however, she noticed the Buick was gone, and a

witness reported that it had been driven away at approximately the same time the police arrived to

investigate the robbery. The officers began searching for the vehicle and registered owner, Andrew

Lee Matthews. Arriving at Matthews’ address, they discovered the vehicle and observed two men

who matched the descriptions of the robbers. (The two men observed by the officers were the

defendants, Matthews, and his roommate, Larsen.) The officers then approached the defendants to

question them.

After Matthews was advised of his Miranda rights, he confessed to committing the robbery.

Larsen initially denied any involvement with the crime; however, when he observed that Matthews

was cooperating with the police, he also confessed and the two men were arrested. Matthews

consented to a search of his vehicle and residence, whereupon the police officers discovered the

following: a box of latex gloves and a red bandana, matching a glove and bandana they had found

near the crime scene earlier; clothing similar to that reportedly worn by the defendants during the

robbery; and $116 in cash ($55 on Matthews’ person, and $61 in one-dollar-bills under the mattress).

Matthews also provided the officers with the location of the “sawed-off” Ithaca pump 12-gauge

shotgun used in the robbery and it was subsequently discovered, loaded, with one cartridge in the

chamber and another in the magazine. A search of Larsen’s person revealed $66 dollars in cash,

which Larsen confessed was a part of the money from the robbery. Matthews and Larsen told the

officers that they robbed the Par Mart because they needed money to pay rent. Matthews then

proceeded to relate different stories about where and how he obtained the .22 caliber revolver used

in the robbery. First, he told the police he purchased the weapon from an unknown person near his

home. Next, he claimed to have borrowed the weapon and returned it after the robbery. Later, he

told the police that he threw the revolver away. During the sentencing hearing, the trial judge urged

Matthews to “come clean” with the accurate story. Matthews then testified that a passing stranger

-2-

loaned him the weapon after he overheard Matthews and Larsen planning the robbery while sitting

in the street in front of his apartment. Matthews claimed that a few hours after the robbery, the

unknown weapon donor showed up again to retrieve his gun and Matthews gave it back.

During the defendants’ initial conversation with the police officers, both men denied drinking

prior to the robbery, but admitted to buying a case of beer and cigarettes afterward. The defendants

also shared responsibility for coming up with the idea and the planning of the robbery. The

defendants told the police that they purchased the latex gloves at a Super Wal-Mart and the bandanas

at a small Chinese store on their way to rob the Par Mart.

Sentencing Hearing

Matthews testified at the sentencing hearing that he was currently employed as a cashier at

a Dollar General store and also enrolled as a student at Tennessee State University. He claimed that

at the time of the robbery, however, he was unemployed for the first time in seven or eight years and

was without money to pay his rent. Although his family had always been supportive and probably

would have helped him, he said that pride prevented him from asking them for assistance. Matthews

testified that he felt stressed because a number of his relatives were planning to come to Tennessee

and live with him, but he was unable to be responsible for them financially. Matthews asserted that

these circumstances caused him to start drinking, which then caused his mind to become unstable

and eventually led to his commission of the instant crimes. He claimed that alcohol was to blame

for all of his criminal actions.

Matthews also testified at length regarding the negative impact of his convictions on his life.

He claimed repeatedly that he had not understood the “seriousness” of his crime. He was concerned

that his criminal acts had affected his family, his friends, and his job in an unfavorable way and that

his opportunities were subsequently limited in that he could no longer “do the things [he] used to do”

or get the kinds of jobs he wanted. He was also disturbed because he had to change schools.

Matthews claimed that since he had no experience with using a gun or committing robbery, he

simply did not know what he was doing and armed robbery was “totally out of character” for him.

Matthews admitted that when his family asked him what he would have done if the victims resisted,

he told them he did not know for certain but that he would not have killed anyone. Matthews further

testified that, because he had once been robbed himself, he had firsthand experience with the fear

created by staring down the barrel of a gun. He apologized to the victims during his testimony,

offering to assist them in any way he could.

Larsen testified at the sentencing hearing that he was seventeen years old at the time of the

robbery. At the time of the hearing, he lived alone in a trailer and was employed at a “Legends”

restaurant. Larsen had moved out of his mother’s residence while he was in high school because he

and his mother did not have a good relationship. Larsen claimed that his mother suffered from a

chemical imbalance in her brain that caused her to get angry and throw things. His plan was to finish

high school; his long-term goal was to become a basketball coach.

-3-

With regard to the robbery, Larsen testified that he had been drinking beforehand. However,

he claimed that he was a casual drinker only and did not have a drug or alcohol problem. Larsen

further stated that he had not given the consequences of the robbery much thought. He said that he

knew the crimes he committed were very serious, but claimed that he was not “in the right state of

mind” at the time. Among other things, he was dealing with some stressful problems and had no

family in Tennessee to assist him. Larsen admitted that robbery was the first and only course of

action that he and Matthews had considered as a solution to their money problems. Larsen further

testified that the day before the robbery, he spent twenty dollars for a sawed-off shotgun because he

lived in a “very rough neighborhood” and felt he needed protection; he claimed that he did not buy

it in preparation for the robbery and that the stock was cut off before he purchased it.

During his testimony, Larsen extended his “sincerest regards” to the victims of his crime.

He claimed that he also has been robbed at gunpoint three or four times and knew that “it is not a

very pleasant feeling.” Larsen denied telling the victim to “Hurry up, or I’ll put a cap in your ass,”

but admitted that if the victim had pointed a gun at him during the robbery, he might have shot him.

Helen Larsen, the maternal grandmother of Larsen, testified that Larsen had been on his own

since adolescence. Larsen’s mother was declared manic depressive at the age of fourteen and refused

to accept help from family for either herself or Larsen. Larsen’s grandmother testified that she was

willing to take full responsibility for Larsen. She requested permission from the trial court to take

him to her farm in Illinois where he could live, work, and complete high school.

The defendants were each convicted of two Class C felonies. As Range I standard offenders,

they may be sentenced to not less than three nor more than six years for each conviction. Tenn. Code

Ann. § 40-35-112(a)(3) (1997). The defendants had previously agreed to consecutive sentencing;

the purpose of the sentencing hearing was to determine the length and manner of service of their

sentences. At the conclusion of the hearing, the trial court stated that the defendants’ crimes were

“terribly, terribly serious” and, after considering all of the evidence, including the presentence reports

and the testimony presented, the trial court found both defendants equally responsible for the

planning and execution of the crime.

The trial court also noted that both victims claimed to be too upset to face the defendants

again and were, therefore, unavailable to testify at the sentencing hearing. Statements from the

victims were included in the presentence report, however, and were reviewed by the trial court.

Cadorette, the store clerk, attested to the following: after the robbery, he could no longer work for

fear of being robbed a second time and quit his job. He avoided walking at night, being in the

presence of African-Americans in general, and going into service stations whenever possible.

Unable fo find new employment after the robbery, Cadorette subsequently ran out of money and was

evicted from his apartment. Parks, the other victim, similarly complained that she lived in constant

fear after the robbery because her job required her to work alone. She also stated that her life was

no longer normal; after the robbery, she was afraid to walk down the street and to be around people,

especially African-American men.

-4-

Concluding its sentencing determination, the trial court found three enhancement factors

applicable to both defendants’ sentences and no mitigating factors. Applying the factors in

Tennessee Code Annotated subsections 40-35-113(3), (10), and (16), the trial court enhanced both

defendants’ sentences from the presumptive minimum in the range (three years) to five years for each

felony. See id. § 40-35-210(c). Specifically, the trial court found the crimes involved more than one

victim; the defendants showed no hesitation about committing the crimes where the risk to human

life was high; and the potential for bodily injury was great. However, the record reveals that the trial

court failed to affirmatively state what weight each factor received in its determination. Clearly

disturbed by the negative impact the defendants’ crime had on the victims, the trial court stated only

that great emotional injury had occurred and that it was amazed no one was killed. The trial court

then determined that Larsen and Matthews should serve their respective ten-year sentences in

confinement, based on the fact that the crime was very serious and a need for deterrence existed.

The trial court commented that Matthews seemed less concerned about the damage he caused

innocent victims than the effect that the circumstances had on his own life, and further remarked that

“somewhere down the line, perhaps these gentlemen can be rehabilitated, but [the court] was so

appalled by the circumstances of the offense and the psychological damage to the victims, that [it]

did not think a sentence of split confinement would serve the ends of justice . . . .”

Analysis

In this appeal, both defendants challenge the trial court’s determination regarding the length

of their sentences as well as the denial of any form of alternative sentencing. Specifically, Larsen

contends that the trial court erred (1) by refusing to find that any mitigating factors applied to either

sentence, (2) by applying the enhancement factors cited without including any mitigating factors, and

(3) by refusing to consider alternative sentencing. We shall treat Larsen’s first two issues as a single

issue alleging non-application of appropriate mitigating factors. Matthews’ contentions are almost

identical to Larsen’s. He argues that the trial court erred (1) by refusing to find that the proof

supported application of any mitigating factors to either sentence and (2) in imposing a sentence of

incarceration rather than any form of alternative sentencing.

When a defendant appeals the length, range, or manner of service of a sentence imposed by

the trial court, this Court conducts a de novo review of the record with a presumption that the trial

court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of

correctness 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). The burden of showing that the sentence is improper is upon the appealing party.

Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review,

we must consider all the evidence, the presentence report, the sentencing principles, the enhancing

and mitigating factors, arguments of counsel, the defendants’ statements, the nature and character

of the offense, and the defendants’ potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5),

-210(b) (1997 & Supp. 2000); Ashby, 823 S.W.2d at 169. When, as here, we find that the trial court

improperly applied enhancement factors and failed to clearly articulate how the mitigating and

enhancement factors were evaluated and balanced in determining the sentence, our review is de

-5-

novo, with no presumption of correctness given to the trial court’s sentencing determinations. See

State v. Jones, 883 S.W.2d 597, 599-600 (Tenn. 1994).

A. Length of Sentences

Defendant Larsen contends that the following statutory mitigating factors are applicable in

his case: (6) “[t]he defendant, because of youth or old age, lacked substantial judgment in

committing the offense”; (7) “[t]he defendant was motivated by a desire to provide necessities for

the defendant’s family or the defendant’s self”; (11) “[t]he defendant . . . committed the offense

under such unusual circumstances that it is unlikely that a sustained intent to violate the law

motivated his criminal conduct”; and (13) “[a]ny other factor consistent with the purposes of this

chapter,” i.e., the defendant Larsen freely admitted his guilt and also expressed remorse for

committing the crime. Tenn. Code Ann. § 40-35-113(6), (7), (11), and (13) (1997). We disagree.

In favor of mitigation due to youth, Larsen submits that because he was seventeen years old

at the time of the crime, he never knew his father, his mother lacked the proper parental skills due

to mental illness, and he was forced to drop out of high school to support himself, he therefore

lacked substantial judgment to the extent that the trial court’s failure to apply mitigation factor (6)

is error. Although this Court is sympathetic to young adults that must face difficulties while growing

up, Larsen’s circumstances do not demonstrate an inability to appreciate the nature of his criminal

conduct due to age. See State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993) (courts should consider

the concept of youth in context, i.e., the defendant’s age, education, maturity, experience, mental

capacity or development, and any other pertinent circumstance tending to demonstrate the

defendant’s ability or inability to appreciate the nature of his conduct). Larsen testified that he knew

his crimes were “very serious.” In fact, he claimed that he had been robbed three or four times

himself and found the experience “unpleasant.” Accordingly, factor (6) does not apply to his

circumstances.

Mitigating factor (7), which requires proof that a defendant was motivated to commit his

crimes by a desire to provide necessities for himself, is likewise not established by the proof. In fact,

the record reveals that Larsen probably thought little of “necessities” at the time of his crime, as

displayed by the exercise of extremely poor judgment in managing what money he did have.

Notwithstanding the fact he and Matthews had insufficient funds to pay rent, Larsen confessed that

he spent twenty dollars for a shotgun the day before the robbery. He further testified that the

purchase was to provide for his general protection and not in preparation for committing the crime.

Moreover, both defendants admitted that after the robbery, they used a portion of their ill-gotten

gains to purchase cigarettes and beer. These purchases clearly fail to indicate that the desire for

“necessities” was sufficient to apply factor (7).

Larsen’s next contention, that he “committed the offense under such unusual circumstances

that it is unlikely that a sustained intent to violate the law motivated his criminal conduct,” is

likewise without merit. Larsen submits that factor (11) applies, but only because his mother

prevented his grandmother from assisting him with support and/or a place to live when he was

-6-

younger. Without more, we fail to see a logical nexus between the grandmother’s frustrated attempts

to help Larsen years ago and the unusual circumstances required to apply factor (11). This factor

does not apply.

Larsen also argues that the trial court erred when it refused to mitigate his sentence based on

both his free admission of guilt and his remorse for committing the crime. The record shows that

Larsen confessed guilt for the crimes after the defendants were discovered and Matthews had

consented to a search of the getaway car and apartment. Clearly, there was a good chance that

Larsen’s complicity would be revealed when the police questioned Matthews further. Because the

discovery of his involvement appeared inevitable, his “free admission of guilt” is entitled to little

favorable consideration. Neither is Larsen’s profession of “remorse” a mitigating factor here.

Rather, we concur with the trial court’s opinion that the defendants’ crimes were the “acts of people

who have no conscience and who don’t care about how other people react.”

Defendant Matthews also contends that his sentence is excessive and asserts that the

following mitigating factors are applicable: (6) “[t]he defendant, because of youth or old age, lacked

substantial judgment in committing the offense”; (7) “[t]he defendant was motivated by a desire to

provide necessities for the defendant’s family or the defendant’s self”; (9) “[t]he defendant assisted

the authorities in . . . detecting or apprehending other persons who had committed the offenses”; (10)

“[t]he defendant assisted the authorities in locating or recovering any property or person involved

in the crime; and (13) “[a]ny other factor consistent with the purposes of this chapter,” i.e.,

Matthews expressed “substantial” remorse for committing the crime. Id. § 40-35-113(6), (7), (9),

(10), and (13). Again, we disagree.

With regard to mitigating factor (6), Matthews failed to demonstrate that he lacked

substantial judgment or that he was unable to appreciate the nature of his criminal conduct due to

youth. Matthews was twenty-two at the time he committed the offense and, barring unusual

circumstances which would prove impaired judgment, not sufficiently youthful to apply this factor.

Factors (7) and (13), which may allow mitigation for crimes motivated by a desire to provide

necessities and a showing of remorse, respectively, are also inapplicable to Matthews’ circumstances

for reasons substantively analogous to those discussed above in Larsen’s case. Basically, the fact that

the defendants purchased beer and cigarettes with the stolen money renders their claim of motivation

by a desire for necessities implausible. It is likewise nonsensical to condone armed robbery as a

solution to possible late rent payments. Concerning remorse, we agree with the trial court that

Matthews’ expressions of penitence appear to be grounded more in sympathy for himself that for that

of his victims.

The two remaining mitigating factors in Matthews’s argument would require us to find that

he assisted the authorities in detecting or apprehending Larsen and/or that he assisted the police in

locating or recovering any property or persons involved in the crime. See id. § 40-35-113(9), (10).

The record contains no proof that Matthews aided the police officers in recovering the money outside

of giving his consent to search. Matthews argues that his “assistance” in apprehending Larsen was

proven by the fact that Larsen was unwilling to cooperate with the police until Matthews cooperated.

-7-

However, nothing in the record indicates that Larsen’s decision to confess had anything to do with

prompting on the part of Matthews.

Having determined that mitigating factors do not apply in the case of either defendant, we

review the trial court’s application of enhancement factors. To briefly recount, both defendants were

convicted of one count each of robbery of Michael Cadorette and of aggravated assault of Crystal

Parks. Robbery is the intentional or knowing theft of property from the person of another by

violence or putting the person in fear. Tenn. Code Ann. § 39-13-401 (1997). As charged here,

aggravated assault is committed by a person who intentionally or knowingly causes another to

reasonably fear imminent bodily injury and uses or displays a deadly weapon. See Tenn. Code Ann.

§§ 39-13-101, -102 (1997). The record reveals that the trial court enhanced each of the sentences

of both defendants from three to five years for each felony by applying the following factors: (3)

“[t]he offense involved more than one (1) victim”; (10) “[t]he defendant had no hesitation about

committing a crime when the risk to human life was high”; and (16) “[t]he crime was committed

under circumstances under which the potential for bodily injury to a victim was great.” Tenn. Code

Ann. § 40-35-114(3), (10), and (16) (1997). After a review of the record and applicable law, we find

enhancement factor (10) applies to the defendants’ sentences for aggravated assault and robbery,

factor (16) is applicable to the sentences for robbery only, and enhancement factor (3) can be used

to enhance the sentences for neither offense.

Enhancement factor (3) does not apply because neither offense committed by the defendants

involved more than one victim. This Court has determined that the use of the word “victim,” as

contemplated by Tennessee Code Annotated section 40-35-114(3), is limited in scope to a person

or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of

the crime. State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). Here, the defendants

were convicted for the crime of robbery against Michael Cadorette and for the aggravated assault of

Crystal Parks. Because no property was destroyed or taken from Parks during the robbery, and she

was not injured or killed as a result, she was not a “victim” of the robbery. Moreover, the factor

applicable where the offense involves more than one victim may not be applied to enhance a

sentence where the defendant is separately convicted of offenses against each victim. State v.

Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Makoka, 885 S.W.2d 366, 373

(Tenn. Crim. App. 1994); State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987); State

v. Curtis Lee Majors, No. 01C01-9602-CR-00076, 1997 WL 424436 at *9, Davidson County (Tenn.

Crim. App., Nashville, July 30, 1997) perm. to app. denied (Tenn. 1998) (enhancement factor (3)

did not apply where defendant committed an armed robbery of a restaurant with three employees and

was subsequently convicted of one count of aggravated robbery and two counts of aggravated assault

because he was convicted for separate offenses for each victim). Therefore, because Parks was not

a victim of the robbery offense, and both defendants were separately convicted of an offense against

Cadorette, this factor does not apply.

When determining whether enhancement factor (10) applies, the initial inquiry is whether

proof of this enhancement factor would also prove an essential element of the offense. See State v.

Jones, 883 S.W.2d 597, 603 (Tenn. 1994). Put another way, where a high risk to human life is

-8-

established with proof separate from that necessary to establish an element of the offense,

enhancement factor (10) may be applied if supported by the facts. State v. Bingham, 910 S.W.2d

448, 452 (Tenn. Crim. App. 1995) overruled on other grounds, State v. Hooper, 29 S.W.2d 1 (Tenn.

2000). Enhancement factor (10) is appropriate in cases where the defendant demonstrates a

culpability distinct from and appreciably greater than that incident to the offense for which he was

convicted. Jones, 883 S.W.2d at 603. In the case sub judice, proof that a high risk to the lives of

Cadorette and Parks existed during the defendants’ commission of the robbery was established by

the fact that they each used deadly weapons (firearms) to commit the crime. Such evidence

demonstrated a culpability distinct from and appreciably greater than that necessary to commit the

offense of robbery and was not required to prove the elements of this crime. In contrast, the

defendants’ use of deadly weapons did establish an essential element of the offense of aggravated

assault. See State v. Hill, 885 S.W.2d 357, 363-64 (Tenn. Crim. App. 1994) (as a general rule,

enhancement factors (10) and (16) are inherent in the crime of aggravated assault accomplished

through the use of a deadly weapon). However, even when the facts proving factor (10) likewise

establishes an element of the offense, it may still be applied where the defendant creates a high risk

to the life of a person other than the victim. State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim.

App. 1995). Since Cadorette was a victim of the robbery only, and not the aggravated assault

offense, the risk to his life which resulted from the aggravated assault against Parks permits the

application of enhancement factor (10) to the defendants’ sentences for aggravated assault, in

addition to the sentences for robbery. See State v. Lavender, 967 S.W.2d 803, 808 (Tenn. 1998)

(facts supported application of factors (10) and (16) to defendant’s sentence for robbery where

victims were informed one of them would be killed if they did not cooperate and each feared for the

safety of the other).

Lastly, regarding enhancement factor (16), we similarly observe that the proof required to

show the crime was committed under circumstances where potential for bodily injury was great was

established by the defendants’ use of deadly weapons and, further, that this proof was necessary to

prove an essential element of the offense of aggravated assault, but not to prove an element of the

robbery offense. Therefore, factor (16) may be applied to the defendants’ sentences for robbery if

supported by the facts. Specifically, the record shows that the defendants entered the Par Mart store

brandishing a sawed-off shotgun and a revolver, and Larsen informed the victim, Cadorette, that if

he did not hurry up he may receive “a cap in [his] ass.” The presence of the firearms, combined with

the verbal threat to Cadorette and the fact that Larsen admitted he might have shot Cadorette if he

had presented a weapon, clearly indicates a potential for great bodily injury to the victim existed

during the defendants’ commission of the robbery. Thus, since both defendants used firearms, factor

(16) may be used to enhance the defendants’ sentences for robbery, but not aggravated assault.

To facilitate meaningful appellate review, “the trial court must place on the record its reasons

for arriving at the final sentencing decision, identify the mitigating and enhancement factors found,

state the specific facts supporting each enhancement factor found, and articulate how the mitigating

and enhancement factors have been evaluated and balanced in determining the sentence.” State v.

Jones, 883 S.W.2d 597, 599-600 (Tenn. 1994). The weight afforded an enhancement or mitigating

factor is left to the discretion of the trial court if the trial court complies with the purposes and

-9-

principles of the Tennessee Criminal Sentencing Reform Act of 1989 and the record supports its

findings. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

As previously observed, the trial court inappropriately applied enhancement factors and failed

to articulate how the mitigating and enhancement factors were balanced in determining the sentence,

stating only that great emotional injury had occurred and that it was “just amazing no one was

killed.” To recount, our de novo review reveals that enhancement factor (10) applies to the

defendants’ sentences for both convictions; factor (16) applies to the defendants’ sentences for

robbery only, and not aggravated assault; and enhancement factor (3) does not apply to either

defendant’s convictions. No mitigating factors apply. Thus, for purposes of determining sentence

length, two enhancement factors apply to the defendants’ sentences for robbery, one enhancement

factor applies to their conviction for aggravated assault, and no mitigating factors of significant

weight were applicable to either conviction in either defendant’s case.

Accordingly, we affirm the trial court’s sentencing determination concerning the robbery

conviction for both defendants. The record reveals that enhancement factors (10) and (16) are

deserving of great weight, which is more than sufficient, standing alone, to support the five-year

sentence for robbery imposed by the trial court. As to the defendants’ sentences for aggravated

assault, our statute provides that where there are enhancement factors but no mitigating factors, the

court may set the sentence above the minimum in the range, three years in this case, but still within

that range (three to six years). See Tenn. Code Ann. § 40-35-210(d) (1997). Therefore, because we

find that one enhancement factor but no mitigating factors apply, we order that both defendants’

sentences for aggravated assault be reduced from five years to four years and that the judgment be

amended to reflect this modification.

B. Denial of Alternative Sentencing

Both defendants also challenge the trial court’s denial of any form of alternative sentencing.

Larsen contends that the trial court erred (1) by failing to address the statutory presumption favoring

alternative sentencing, Tennessee Code Annotated section 40-35-102(6), and (2) by basing its denial

of alternative sentencing on inadequate findings. Matthews’ contention that incarceration is

improper relies on similar premises: (1) the favorable statutory presumption to which he was entitled

was unsuccessfully rebutted by evidence to the contrary, and (2) the principles outlined in Tennessee

Code Annotated section 40-35-103 support alternative sentencing in his case. For reasons which

follow, we affirm the trial court’s denial of alternative sentencing..

As Range I, standard offenders convicted of Class C felonies, both defendants may be

presumed to be favorable candidates for alternative sentencing options in the absence of evidence

to the contrary. Tenn. Code Ann. § 40-35-102(6) (1997). The presumption in favor of alternative

sentencing may be rebutted by evidence that (1) “confinement is necessary to protect society by

restraining the defendant who has a long history of criminal conduct,” (2) “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 (3) “measures less restrictive

-10-

than confinement have frequently or recently been applied unsuccessfully to the defendant.” Id. §

40-35-103(1)(A)-(C); see Ashby, 823 S.W.2d at 169. In addition, a defendant’s potential for

rehabilitation or lack thereof should be examined when determining whether an alternative sentence

is appropriate. Tenn. Code Ann. § 40-35-103(5).

The record reveals that the trial court considered the presentence report and heard testimony

from the defendants as well as their families and friends at the sentencing hearing. In accordance

with Tennessee Code Annotated section 40-35-103, the court then considered, inter alia, whether

confinement was necessary to avoid depreciating the seriousness of the offense and to provide an

effective deterrence to others likely to commit similar offenses. It decided affirmatively. The court

acknowledged that neither defendant had an extensive criminal history and expressed some distress

at “putting young people in the penitentiary.” However, when it considered the impact on the

victims, the seriousness of the crime, and the resulting need to deter others from committing similar

crimes, the trial court concluded that neither defendant was a favorable candidate for alternative

sentencing. The trial court then sentenced both defendants accordingly, commenting that split

confinement would not “serve the ends of justice.”

Larsen argues that the trial court erred by refusing to consider alternatives to incarceration

and by ignoring the statutory presumption which favors alternative sentencing. Our review of the

record indicates otherwise. The trial court did not “refuse to consider” whether alternative

sentencing would be proper in lieu of incarceration. Rather, it candidly stated that it found it

“difficult” to order incarceration for young people and, further, that it did so “with a heavy heart.”

Regarding the trial court’s failure to address the statutory presumption, our statute does not direct

the trial court to affirmatively or unequivocally verbalize at what point it considers the statutory

presumption set forth in Tennessee Code Annotated section 40-35-102(6). Here, the record contains

numerous references which indicate the trial court considered sentencing alternatives, to wit: the trial

court’s statement that it was unable to conscientiously order split confinement, and its deliberation

over the evidence which contradicted the statutory presumption; evidence which was ultimately

successful in rebutting the presumption favoring alternative sentencing. See also State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

Larsen also argues that the trial court’s denial of alternative sentencing was not based on

adequate findings of fact. The record reveals that the court considered confinement necessary

because the crime was “very, very serious.” We believe that this statement indicated the trial court’s

intention to “avoid depreciating the seriousness of the offense.” Larsen contends that the law does

not allow the trial court to deny alternatives to incarceration based solely on the seriousness of the

offense, citing State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). The defendant’s

assertion is correct; however, the trial court did not base it denial solely on the seriousness of the

offense, but further found “such a need to deter people from committing this crime that this is going

to be a sentence of incarceration.” Although the record could be significantly clearer with regard

to what facts underlied the trial court’s finding of a need for deterrence, for the reasons following,

we affirm its denial of alternative sentencing in this particular matter.

-11-

As previously stated, a trial court may properly deny alternative sentencing and order

confinement when it finds incarceration is necessary to “avoid depreciating the seriousness of the

offense or . . . provide an effective deterrence to others likely to commit similar offenses” pursuant

to Tennessee Code Annotated section 40-35-103(1)(B). These two conditions constitute “evidence

to the contrary,” proof of which may be used to overcome the statutory presumption in favor of

alternative sentencing under Tennessee Code Annotated section 40-35-102(6). State v. Lane, 3

S.W.3d 456, 462 (Tenn. 1999) (citing State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997)). When

a trial court decides to deny probation based solely upon the nature of the offense, “the criminal act,

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. Lane, 3 S.W.3d 453, 462 n.15 (Tenn. 1999) (citations omitted).

By contrast, sufficient proof that confinement is necessary to provide deterrence requires only that

confinement be “particularly suited” to provide a deterrent effect; “it does not require proof that

incarceration ‘will’ or ‘should’ deter others from committing similar crimes.” State v. Hooper, 29

S.W.3d 1, 9 (Tenn. 2000). Deterrence is discussed further below.

First, we find the trial court’s intention to avoid depreciating the seriousness of the offense

is a valid objective under the circumstances of this case. Both defendants were armed, and both

admitted that they could not predict how they would have responded if the victims had resisted.

Although the instant convictions were for robbery, in lieu of aggravated robbery (the indicted

offense), a sentencing court is not prohibited from considering criminal behavior for which there has

been no conviction. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Carico, 968

S.W.2d 280, 287 (Tenn. 1998)). Facts relevant to sentencing must be proven only by a

preponderance of the evidence. Id. Further, because the record reflects that the trial court did not

deny alternative sentencing based solely on the nature of the offense, we may infer that the court

assumed it was unnecessary to find that the criminal act, as committed, was “especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree”

as required by law when the serious nature of the offense is the sole ground. Lane, 3 S.W.3d at 462

n.15.

Deterrence is an additional pragmatic objective, and alternative sentencing may be properly

denied on the basis of deterrent issues alone. See Hooper, 29 S.W.3d at 6. In Hooper, our supreme

court relaxed the standards set forth by previous case law which demanded that certain types of proof

be presented to show that incarceration would or should result in deterrence. See id. at 10. In doing

so, it emphasized that “the record must contain some proof of the need for deterrence before a

defendant, who is otherwise eligible for probation or other alternative sentence, may be

incarcerated.” Id. at 9. Because the “science” of deterrence is imprecise at best, the supreme court

also stated that the trial courts should be given “considerable latitude in determining whether a need

for deterrence exists and whether incarceration appropriately addresses that need.” Id. at 10.

Accordingly, a trial court’s decision to incarcerate a defendant based on a need for deterrence may

be presumed to be correct “so long as any reasonable person looking at the entire record could

conclude that (1) a need to deter similar crimes is present in the particular community, jurisdiction,

-12-

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 similar crimes.” Id.

Although denial of alternative sentencing may be justified in the instant case on this basis,

the law plainly requires that the record contain some evidence to support the finding. The record in

the case sub judice is somewhat lacking regarding the need to deter other persons from committing

similar crimes, however, even under the relaxed standard set forth in Hooper. If the trial court’s

conclusion concerning deterrence was based on some type of proof, it failed to affirmatively

articulate what that proof was. According to the record, the trial court stated only that “there is such

a need to deter people from this crime that this is going to be a sentence of incarceration.” We

further note that the State had ample opportunity to present evidence for the need for deterrence, but

for whatever reason, declined to do so. The prosecution could have easily questioned Detective

Barry Russell, who testified at the sentencing hearing. As an officer with the Hendersonville Police

Department, Russell should be familiar with the incidence of the various crimes in the vicinity and

able to testify as to the number of robberies that occurred in the City of Hendersonville or Sumner

County, thus satisfying the requirement for proof of a need for deterrence of persons other than the

defendants. As it stands, this record contains no proof that any other robberies have been committed

in these particular areas.

Notwithstanding the lack of affirmative findings regarding this matter, we find the record

contains sufficient proof to establish deterrence in light of the supreme court’s decision in Hooper.

In Hooper, the supreme court provided five factors for the trial court to consider when deciding

“whether a need for deterrence is present and whether incarceration is particularly suited to achieve

that goal.” Hooper, 29 S.W.3d at 10. As relevant here, factor two requires the court to consider

“whether the defendant’s crime was the result of intentional, knowing, or reckless conduct or was

otherwise motivated by a desire to profit or gain from the criminal behavior.” Id. at 11. From the

evidence elicited at the sentencing hearing, it is clear that the robbery was the result of well-planned,

intentional conduct. This was basically proved by the defendants’ admission that they planned the

robbery a significant amount of time beforehand: Matthews testified that he and Larsen discussed

the robbery in the street in front of his house (so loudly, in fact, that a passerby loaned him a gun to

accomplish the crime); Larsen purchased a shotgun the day prior to the robbery; and the defendants

admitted to stopping at two different stores on their way to rob the Par Mart in order to purchase

gloves and bandanas for their “bandido” disguise. The defendants even confessed to selecting the

target for their crime in advance: Larsen testified that he picked it out because Matthews was

unfamiliar with the area. The record also contains proof that the robbery was motivated by a desire

to profit or gain from the criminal behavior: the defendants admitted that they robbed the store to

provide themselves with rent money and that they purchased beer and cigarettes afterward. As a

final matter regarding the deterrence issue, we note that because the sentencing hearing took place

on June 2, 2000, and the decision in Hooper was filed on September 21, 2000, the case was

unavailable to the trial court when it sentenced the defendants. However, the rule which requires

the trial court to state what evidence it relied upon to support its finding of a need for deterrence is

long-standing, and some evidence has always been required. Notwithstanding the state of the record,

a finding of deterrence is supported in this case for the reasons stated above.

-13-

Although not specifically mentioned by the trial court, the defendants or the State, we believe

the potential for rehabilitation and its lack thereof is a further proper consideration in determining

whether sentence alternatives are appropriate in the case sub judice. Tenn. Code Ann. § 40-35-

103(5) (1997). This Court has previously held that a defendant’s lack of candor, credibility, and

willingness to accept responsibility for his crime are further relevant considerations in determining

a defendant’s potential for rehabilitation. State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App.

1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994); State v. Anderson, 857

S.W.2d 571, 574 (Tenn. Crim. App. 1992). Larsen claimed to be sorry for his crime, but then

proceeded to lay blame for his criminal conduct on the fact that his childhood was plagued with

problems and he had been drinking beforehand. This apparent unwillingness to accept responsibility

decreases his potential for rehabilitation and is yet another factor indicating that incarceration is

appropriate.

Matthews also contends that his incarceration is improper. Specifically, he argues that (1)

the favorable statutory presumption to which he was entitled by law was unsuccessfully rebutted by

evidence to the contrary, and (2) the principles outlined in Tenn. Code Ann. § 40-35-103 support

alternative sentencing in his case. We disagree.

Concerning the statutory presumption, Matthews submits that the State did not present

sufficient proof of “evidence to the contrary” because the trial court is precluded from denying

alternative sentencing based solely on the seriousness of the offense and that, under State v.

Bingham, 910 S.W.2d 448 (Tenn. Crim. App.1995), it is also prohibited from ordering incarceration

based on a need for deterrence without proof that his confinement will have a deterrent effect. He

asserts that a need for deterrence in Sumner County or any other county in Tennessee was not

proven. Defendant is correct in all of his assertions. However, as we concluded above, the record

shows that the trial court did not deny alternative sentencing based solely on the serious nature of

the crime, but also relied upon the need to provide an effective deterrence and that this finding is

supported by the facts and circumstances contained in the record.

Matthews also argues that the remorse and willingness to accept responsibility displayed by

him at the sentencing hearing was given no weight by the trial court. The trial court astutely

observed that the majority of Matthews’ concern and sorrow was directed at his own plight, not that

of the victims. Moreover, according to Matthews testimony, he blamed not part, but all of his

criminal conduct on the fact that he had been drinking prior to the crime. As previously mentioned,

a defendant’s willingness to accept responsibility for his crime is a relevant consideration in

determining rehabilitation potential. Zeolia, 928 S.W.2d at 463. Here, there is no such evidence.

Accordingly, after a thorough review of the record and applicable law, we concur with the

trial court’s result in denying the defendants any form of alternative sentencing. Specifically, we find

that a sentence of incarceration is appropriate under the circumstances presented because the record

shows that (1) confinement is necessary to avoid depreciating the seriousness of the offense, (2)

confinement is particularly suited to provide an effective deterrence, and (3) the defendants

-14-

demonstrate a lack of potential for rehabilitation. Thus, the defendants are not entitled to relief on

this issue.

Conclusion

For the forgoing reasons, the trial court’s sentencing determination is affirmed, in part, and

modified, in part. We affirm the trial court’s determination with regard to the defendants’ sentences

for the offense of robbery. Concerning the defendants’ sentences for aggravated assault, we reduce

the length from five years to four years in accordance with our conclusions concerning mitigating

and enhancement factors and remand this matter to the trial court to enter an amended judgment

which reflects this modification and results in an effective sentence of nine years for each defendant.

All other aspects of the trial court’s judgment are affirmed.

____________________________________

THOMAS T. WOODALL, JUDGE

-15-