State of Tennessee v. Kenneth Guthrie

02/27/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 17, 2019

STATE OF TENNESSEE v. KENNETH GUTHRIE

Appeal from the Circuit Court for Dickson County

No. 22CC-2016-CR-158 David D. Wolfe, Judge

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No. M2017-02441-CCA-R3-CD

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Defendant, Kenneth Guthrie, entered a best interest plea to attempted rape in exchange

for a three-year sentence with the manner of service of the sentence to be determined by

the trial court at a sentencing hearing. After the hearing, the trial court sentenced

Defendant to serve six months day-for-day with the balance of the sentence to be served

on probation. Defendant appeals his sentence, arguing that the trial court improperly

denied a sentence of full probation. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT

WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Olin Baker, Charlotte, Tennessee, for the appellant, Kenneth Ray Guthrie.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior

Assistant Attorney General; Ray Crouch, District Attorney General; and Sarah W.

Wojnarowski, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

A presentment issued by a Dickson County Grand Jury on April 18, 2016, charged

Defendant with the rape of the victim on January 30, 2016, at her home. On September

18, 2017, Defendant entered a nolo contendere plea to one count of attempted rape in

exchange for a sentence of “3 years with manner of service to be determined at [a]

sentencing hearing.”

At the sentencing hearing, Deputy Mark Bausell of the Dickson County Sheriff’s

Department testified that he was the “on-call criminal investigator” when the victim filed

a police report about a week after the incident. Despite the timing of the report, Deputy

Bausell asked the victim to “go ahead and proceed to the Horizon Medical Center

Emergency Room, just for an examination.” Deputy Bausell went to the hospital where

he met with the victim and her family members. The physical examination revealed no

injuries to the victim. The victim told Deputy Bausell that she had laundered the clothing

she was wearing on the day of the incident. A blanket from the victim’s home was

eventually sent for forensic analysis but no DNA was recovered from the item.

Deputy Mark Bausell later took a statement from the victim at her residence on

South Street in Vanleer. After speaking with the victim, another officer made contact

with Defendant to inform him that he needed to come to the office for an interview.

Deputy Bausell later “notified [Defendant] that [the victim] had made the allegation

against him of a sexual assault.” Defendant initially denied the allegations and denied

that he had been inside the victim’s house. The following day, Defendant contacted

Deputy Bausell several times in order to try to schedule a meeting but remained “adamant

that . . . no kind of assault had occurred.” At first, Defendant admitted that he had “gone

over and dropped off . . . two used tires” for the victim’s son with whom he worked.

Defendant maintained that he did not enter the victim’s home. Deputy Bausell recalled

that Defendant told this version of the story at least two times.

During a subsequent telephone call, Defendant changed his story and admitted that

“things didn’t happen the way they appeared.” When Deputy Bausell asked Defendant to

clarify, Defendant admitted that he went to the victim’s residence to deliver the tires as he

had stated previously. However, Defendant then claimed that the victim “approached

him and tried to initiate sexual contact.” Deputy Bausell continued:

If I remember right, I think [Defendant] might have even said, that she had

tried to take his pants down or something to that effect, and that she laid

down on the couch, took her own pants off, and yes, he did engage in

sexual intercourse with this lady, but that, within seconds, he realized this is

wrong, and he got up and ran out the door.

The victim, who was 70 years old and retired, testified at the sentencing hearing.

She explained that she would “like to see [Defendant] go into the jail for a[]while” for

what he had done. She explained that she was alone in her house on the day of the

incident and that she did not have a phone in her home.

According to the presentence report, Defendant did not have any prior convictions

and was categorized as “low-risk” for reoffending. Defendant’s version of the incident

appears in the report as follows:

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On or about January 30, 2016, I - - [Defendant] went to [the victim’s] home

looking for her son about some tires he purchased. [The victim] made

sexual advances towards me, and she was wanting to have sex. I started to

have sex with [the victim], then I decided I did not want to. I imagine she

got mad. About a week later, she called the police and said I had raped her.

[The victim] made these allegations because I would not have sex with her.

I entered a best interest plea, because of my advanced age, other than that, I

would, I would have [gone] to trial. I’m 68 years old.

John McGranahan of the Board of Probation and Parole testified that Defendant

was an appropriate candidate for probation, noting that Defendant was retired from a full-

time job. The assessment completed for the presentence reported indicated that

Defendant was considered low-risk to reoffend on the basis of Defendant’s “prior record,

criminal record, [and] criminal history.” Because Defendant had no criminal record, he

was considered low risk.

Anite Faye Guthrie, Defendant’s wife of 46 years, testified at the sentencing

hearing. At the time of the hearing, the couple’s three children were 46, 43, and 40. She

explained that they had several grandchildren. In her words, it would “devastate” their

family if Defendant were incarcerated because Defendant was active around the house as

well as with his family. She explained that Defendant was retired from the County

Highway Department and had also worked as an over-the-road truck driver. Mrs. Guthrie

acknowledged that Defendant explained the circumstances of the offense to her prior to

the hearing.

Kevin Miner, the pastor at Defendant’s church, testified at the hearing. After

Defendant had decided to enter the “no-contest” plea, Defendant met with Mr. Miner to

make sure “that the church was okay with him contin[uing] attending there.” Mr. Miner

explained that “nobody in the church really had any concern” about Defendant’s

continued involvement in the church. Mr. Miner acknowledged that the church, out of

caution, prevented Defendant from being in charge of events and having unsupervised

contact with minors because of his placement on the sex offender registry.

Kenneth Garden testified that he had known Defendant for “30-plus” years and

that the allegations were “totally out of character” for Defendant. He was surprised to

hear that Defendant later claimed that he had consensual sex with the victim.

After hearing argument, the trial court credited the testimony of the victim because

“her version of events has never, never swayed, never changed” while Defendant’s

version changed several times during the course of the investigation. Despite the

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discrepancies in the victim’s version versus Defendant’s version, the trial court noted that

whether the act was consensual was rendered “moot” by Defendant’s guilty plea. The

trial court considered the presentence report, principles of sentencing, argument as to

sentencing alternatives, the nature and characteristics of the criminal conduct involved,

and the testimony at the sentencing hearing.

The trial court considered various enhancement and mitigating factors. The trial

court rejected Defendant’s proposed mitigating factor that he “acted under strong

provocation” because the trial court “completely reject[ed Defendant’s] explanation” of

the events. The trial court agreed that it was unlikely Defendant had a sustained intent to

violate the law and that Defendant had a stable history of work and of model citizenship.

The trial court also rejected Defendant’s proposed mitigating factor that the criminal

conduct neither caused nor threatened serious bodily injury purely based on the

circumstances of the offense and the nature of the charge. The trial court did not view

Defendant’s age as a mitigating factor and did not apply Defendant’s involvement within

his church as a mitigating factor. The trial court found enhancement factor (4) and (7)

applied based on the victim’s age and a finding that the offense was committed to gratify

Defendant’s desire for pleasure or excitement.

As far as sentencing alternatives, the trial court noted the ability to craft a three-

year sentence that was entirely probated or a period of jail time followed by a term of

probation. In the trial court’s opinion, Defendant should “serve six months in the county

jail, on a day-for-day basis” and, at the end of that period, Defendant’s sentence “will be

suspended to probation.” The trial court ordered Defendant to register as a sex offender

and be placed on Community Supervision for life. The trial court also prohibited

Defendant from having contact with the victim or her immediate family.

The trial court denied Defendant’s request to remain on bail pending appeal so as

to avoid depreciating the seriousness of the offense, commenting that Defendant could

“seek an order from the appellate court to stay the execution of a sentence pending

appeal.”1 Defendant was ordered to report November 27, 2017, at 8:00 a.m. to begin

serving his sentence. Defendant filed a timely notice of appeal.

Analysis

On appeal, Defendant argues that the trial court erred in refusing to grant a

sentence entirely on probation. Defendant insists that he was “statutorily entitled to

probation and a suspended sentence of confinement as an alternative method of

sentencing.” The State insists that the trial court properly sentenced Defendant to serve a

sentence of split confinement.

1

Defendant did not file any such motion in this Court.

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When the record establishes that the trial court imposed a sentence within the

appropriate range that reflects a “proper application of the purposes and principles of our

Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse

of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). The same standard of review applies to a trial court’s decision

regarding “probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d

273, 278-79 (Tenn. 2012); see also State v. King, 432 S.W.3d 316, 325 (Tenn. 2014)

(applying the same standard to judicial diversion). This Court will uphold the trial

court’s sentencing decision “so long as it is within the appropriate range and the record

demonstrates that the sentence is otherwise in compliance with the purposes and

principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under those

circumstances, we may not disturb the sentence even if we had preferred a different

result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the

sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g

Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Tennessee Code Annotated section 40-35-102(3)(C) provides that “[p]unishment

shall be imposed to prevent crime and promote respect for the law by . . . [e]ncouraging

effective rehabilitation of those defendants, where reasonably feasible, by promoting the

use of alternative sentencing and correctional programs that elicit voluntary cooperation

of defendants[.]” Tennessee Code Annotated section 40-35-104(c)(9) authorizes a

“sentence to a community based alternative to incarceration . . . .” Additionally, “[t]he

potential or lack of potential for the rehabilitation or treatment of the defendant should be

considered in determining the sentence alternative or length of a term to be imposed,”

and “[t]he length of a term of probation may reflect the length of a treatment or

rehabilitation program in which participation is a condition of the sentence[.]” T.C.A. §

40-35-103(5). On the other hand, sentences involving confinement should be based on

the following considerations:

(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[.]

T.C.A. § 40-35-103(1). Moreover, the sentence imposed “should be no greater than that

deserved for the offense committed” and also “should be the least severe measure

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necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-

103(2), (4).

A defendant is eligible for probation if the sentence imposed is ten years or less.

T.C.A. § 40-35-303(a). Although “probation shall be automatically considered by the

court as a sentencing alternative for eligible defendants,” the defendant bears the burden

of “establishing suitability” for probation. T.C.A. § 40-35-303(b). “This burden includes

demonstrating that probation will ‘subserve the ends of justice and the best interest of

both the public and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State v.

Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A defendant who is

sentenced as an especially mitigated or standard offender and who has committed a Class

C, D, or E felony should be “considered as a favorable candidate for alternative

sentencing options” if certain conditions are met. T.C.A. § 40-35-102(5), (6)(A). The

guidelines regarding favorable candidates are advisory. T.C.A. § 40-35-102(6)(D).

Defendant is not, as he insists, “statutorily entitled to probation.” Rather, he is

statutorily eligible for probation, which remains entirely in the discretion of the trial

court. The trial court herein sentenced Defendant to serve six months day-for-day prior

to release on probation.2 The trial court relied on subsection (B) of Tennessee Code

Annotated section 40-35-103 in noting that the decision was made “due to the nature [of

the offense] . . . that [a fully probated sentence] would in fact depreciate the seriousness

of the offense, and would not serve as a deterrent to anyone else.” The trial court

described the “attempted rape of a 70-year-old lady” who was alone in her home as “a

very serious offense.” The trial court also pointed out the victim’s unwavering account

of the incident and Defendant’s varying accounts of the events, which initially included

an outright denial that he was even inside the victim’s home. The court can consider

Defendant’s truthfulness in determining whether to grant probation. State v. Bunch, 646

S.W.2d 158, 160 (Tenn. 1983).

Generally, to deny alternative sentencing solely on the basis of the seriousness of

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 a

sentence other than confinement.” State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006)

(quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997)). Additionally,

in State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), our supreme court noted five factors to

consider when denying probation on the basis of deterrence and held that a trial court

2

We acknowledge that in Ray v. Madison County, Tennessee, 536 S.W.3d 824, 838-39 (Tenn.

2017), the supreme court determined that under Tennessee Code Annotated section 41-2-111(b), trial

courts can fix a percentage that defendants must serve in actual confinement before becoming eligible to

participate in a work program and earn work credits but cannot preclude defendants from earning good

time credits under the statute.

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may impose a sentence of incarceration based solely on a need for deterrence “when the

record contains evidence which would enable a reasonable person to conclude that (1)

deterrence is needed in the community, jurisdiction, or state; and (2) the defendant’s

incarceration may rationally serve as a deterrent to others similarly situated and likely to

commit similar crimes.” Id. at 10-13. However, in State v. Sihapanya, 516 S.W.3d 473,

476 (Tenn. 2014), the Tennessee Supreme Court determined that “the heightened

standard of review [from Trotter and Hooper] that applies to cases in which the trial court

denies probation based on only one of these factors is inapplicable” when the trial court

“combined the need to avoid depreciating the seriousness of the offense with the need for

deterrence and the nature and circumstances of the offense,” which is what the trial court

did in this case. In our view, the trial court acted consistently with the purposes and

principles of the Sentencing Act and did not abuse its discretion in denying a sentence

composed entirely of probation.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

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TIMOTHY L. EASTER, JUDGE

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