# State of Tennessee v. Michael Brown

> Court of Criminal Appeals of Tennessee · January 25, 2022

URL: https://www.frixlaw.com/law-library/cases/6112401

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** January 25, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Norma McGee Ogle
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6112401

## How later opinions describe it (automated extraction)

- applying the standard to altemafive sentencing

## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 25, 2021 Session

STATE OF TENNESSEE v. MICHAEL BROWN

Appeal from the Criminal Court for Knox County
No. 117748 Kyle A. Hixson, Judge FILED
JAN 2 5 2022
No. E2020-01392-CCA-R3-CD Clerk of the Appellate Courts
Reed by

The Appellant, Michael Brown, pled guilty in the Knox County Criminal Court to two
counts of aggravated assault, a Class C felony. Pursuant to the plea agreement, he received
an effective six-year sentence with the trial court to determine the manner of service ofthe
sentence, including his request for judicial diversion. After a sentencing hearing, the trial
court denied diversion and ordered that he serve the sentence in confinement. On appeal,
the Appellant contends that the trial court erred by denying his requests for judicial
diversion and full probation. Based upon the oral arguments, the record, and the parties'
briefs, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY,JR., and JILL BARTEE AYERS, JJ.,joined.

Jonathan Harwell(on appeal) and Patrick Leonard (at hearings), Knoxville, Tennessee,for
the appellant, Michael Brown.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward,Assistant Attorney
General; Charme P. Allen, District Attorney General; and Heather Good, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On July 28, 2020, the Appellant was charged by information with two counts of
aggravated assault with a deadly weapon. That same day, he pled guilty to the offenses.
Pursuant to the plea agreement,the Appellant was to receive concurrent six-year sentences
as a Range I, standard offender with the trial court to consider his application for judicial
diversion and the manner of service ofthe sentences.

At the guilty plea hearing, the State gave the following factual account ofthe crimes:

Your Honor, had this case proceeded to trial, the witnesses listed would
testify that on Saturday May the 30th, 2020, at approximately 1:28 a.m.,[on]
Shamrock Road, officers were dispatched [to a home] in regards to a
domestic dispute.

When officers arrived they observed the victim Martha Brown
running away from the residence approximately a block away because she
was in fear for her life. When officers spoke with Ms. Brown, she was
distraught. She had abrasion[s] on her left leg from stumbling away from the
scene.

Once they approached the home they received -- as they were
approaching the home, officers received an update that the suspect, defendant
Michael Brown, was inside ofthe bathroom of the home attempting to clean
blood off of his person.

When they got to the home, they came in contact with victim Jerry
Brown. When he opened the door they could observe Mr. Brown's clothes
were drenched in blood. He had blood emitting from his arm and -- arms and
head. He had serious wounds to the head. He wasn't clearly able to process
what officers were telling him at first.

Mr. Brown did tell officers that he was asleep in bed with his wife,
Martha Brown, when he heard, the defendant -- who is their son -- walking
toward the bedroom. Mr. Jerry Brown stated that the defendant walked in
his room, grabbed one of Mr. Jeny Brown's handguns. Jeny Brown asked
the defendant what he was doing, at which point the defendant stated that,
"It's time for you and Mom to go."

And then proceeded to point the handgun at both Jeny Brown and
Martha Brown while they were in bed. However, the gun did -- did not go
off, although he did pull -- although the defendant did pull the trigger, no
bullets were fired. Apparently there was something lodged in the gun that
prevented it from firing.

Mr. Jeriy Brown then got into a struggle with the defendant tying to
get the gun away from him. After the gun was taken from him, the defendant
retrieved a wooden axe handle and another struggle ensued between the
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defendant and Jerry Brown, but Jerry Brown was, was struck with the axe
handle in the head and arms during, during the altercation. And [the]firearm
was noted to be on scene along with other firearms by the officers and these
all did occur in Knox County.

At the conclusion of the plea hearing, the trial court accepted the Appellant's guilty pleas
and sentenced him to the agreed effective sentence of six years.

On September 24, 2020, the trial court held a sentencing hearing to consider the
Appellant's requests for judicial diversion and full probation. At the outset ofthe hearing,
the State introduced into evidence a report from the Tennessee Department of Conection,
which concluded that the Appellant could not be recommended for enhanced probation
"due to the alarming circumstances of this case." The State also introduced into evidence
the Appellant's presentence report, which included a Strong-R assessment and a victim
impact statement; photographs of Mr. Brown's injuries; photographs of the crime scene;
and Mr. Brown's medical records from May 30, 2020.

According to the presentence report, which was prepared in August 2020, the then
fifty-three-year-old Appellant had been divorced twice and had one son from his first
maniage. The Appellant stated in the report that he graduated from the University of
Tennessee with a degree in business in 1995. He described his mental and physical health
as "good" but said he suffered from depression and Crohn's disease for which he had been
prescribed several medications. According to the report, the Appellant began using alcohol
and marijuana when he was sixteen years old. However, at the time of the presentence
report, he had not consumed alcohol since May 2020 and had not used marijuana in six
months. The Appellant used cocaine about twelve times when he was twenty years old.
In 2016, he had suicidal thoughts due to a medication he was taking and spent one week in
St. Mary's Hospital. In 2018, he voluntarily entered an outpatient alcohol treatment
program for three months but quit prior to completing the program.

In the report, the Appellant said that he had a "great" relationship with his parents
as a child and that he had a "goocr' relationship with them just prior to the assaults. He
stated that he was taking Ambien at the time of the assaults, that the Ambien caused him
to blackout during the incident, and that he did not have any memory of assaulting the
victims. The Appellant stated in the report that he worked as a safety coordinator for
Commercial Steel Erection in Virginia from March 2020 to April 2020 and as an "EHS
Lead" for Hanwha Azdel, Inc., in Virginia from January 2016 to January 2019. The
Appellant said that he also worked for Rock-Tenn for more than twenty-nine years and that
he left his jobs with Rock-Tenn and Hanwha Azdel due to his moving to another state. The
report showed that he had no prior criminal history. The Appellant's Strong-R assessment
classified his overall risk to reoffend as moderate and concluded that he had high needs
relevant to "Residentiar and "Family"; moderate needs relevant to "Aggression"; and low

3
needs relevant to "Friends,""Attitudes/Behaviors,""Mental Health,""Alcohol/Drug Use,"
"Employment," and "Education."

The record reflects that at the time of the assaults, the Appellant was fifty-three
years old and the victims were seventy-three years old. In the victim impact statement,
which was signed by both ofthe victims, Jeny Brown recounted what occurred on the night
of the crimes. His account was similar to the facts presented at the plea healing.
Additionally, Mr. Brown stated that that the Appellant had verbally abused Mrs. Brown,
that the Appellant had "a pattern of dominance and "aggressiveness," and that Mr. and
Mrs. Brown were "terrifier the Appellant would try to kill them again. Mr. Brown said
that Mrs. Brown "will not leave my side out offear and requested that the Appellant serve
his sentence in confinement so they could feel safe.

During the sentencing hearing, the State requested that Mr. Brown be allowed to
give an oral "victim impact statement." The trial court declared the proof"closer but said
that "we'll consider victim-impact statements at this time." The court then allowed Mr.
Brown to "address the Court." 1 Mr. Brown stated that the Appellant would be "better off'
in prison because "[i]t gives him a place to stay, a place to eat. He can get therapy there.
He's, he's not near what he seems when he's talking to you." Mr. Brown said the Appellant
tried to commit suicide when the Appellant was "younger," so Mr. Brown "put him in St.
Mary's." When the Appellant was released from the hospital, he "spent quite a bit oftime
with psychologists." Mr. Brown stated that the Appellant"says he knows the answers they
are looking for and that Mr. Brown thought the Appellant was going to try to "get even"
with Mr. and Mrs. Brown when the Appellant was released from confmement. Mr. Brown
said he and his wife "walk[ed] around scared to death of every noise."

Mr. Brown said that the Appellant had alcohol and drug problems and that one
employer fired the Appellant for "'drinking on the job.'" On the night of the assaults, the
Appellant loaded Mr. Brown's gun. Mr. Brown stated, "I think he was tlying to make it
look like I shot my wife and then myself . . . [F]or my insurance and our savings." Mr.
Brown said that he was going to change his will to disinherit the Appellant, that the
Appellant claimed "there wasn't no job around here that paid him what he's worth," and
that the Appellant "needs to work."

'We note that a victim can participate in the sentencing process by submitting a written "victim
impact statement" prepared by the Department of Correction as part of a defendant's presentence report,
which the victims did in this case, or by giving live impact testimony at a sentencing hearing. See Tenn.
Code Ann. 40-38-103(a)(2); State v. Ring, 56 S.W.3d 577, 581 (Tenn. Crim. App. 2001). Our Code does
not provide for an oral victim impact statement. Defense counsel later pointed out in the hearing that he
did not have an opportunity to cross-examine Mr. Brown because Mr. Brown did not testify. However,
defense counsel did not object to Mr. Brown's oral statement. Therefore, to the extent the trial court
considered Mr. Brown's oral statement as evidence, the trial court did not err. See State v. Ashley Donielie
Wright, No. E2018-01402-CCA-R3-CD, 2020 WL 2919450, at *5 (Tenn. Crim. App. at Knoxville June 3,
2020) (concluding that trial court could consider victims' addressing trial court at sentencing because
defense counsel did not object).
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The State noted that "this could have easily . . . been an attempted first-degree
murder charge" and that the State "would have had a good-faith basis to amend the wan-ants
in sessions had [the Appellant] not agreed to plead guilty as charged." The State requested
that the trial court consider two enhancement factors in determining the manner of service
of the sentences: Factor (4), that "[a] victim of the offense was particularly vulnerable
because of age or physical or mental disability," and factor (14), that "[t]he defendant
abused a position of. . . private trust . . . that significantly facilitated the commission or the
fulfilhnent of the offense." Tenn. Code Ann. § 40-35-114(4), (14). Regarding the latter
factor, the State argued as follows:

While the State will concede that simply having a, you know, father or
mother and son relationship does not in and of itself create the presumption
of a private trust, the Court is instructed to look at whether or not the
relationship promotes confidence, reliability, or faith and whether or not it
includes a degree of vulnerability.

In this case, Judge, the State argues that the relationship between the
defendant and his parents absolutely promoted confidence, reliability, and
faith and did have a degree of vulnerability attached to it.

At the time of these offenses, these victims were allowing the
defendant to live in their home because he'd lost his job due to drinking on
the job. The victims were in their beds. This attack was completely
unprovoked.

They trusted their son in their home. They never would have expected
that he would pick up their gun and begin to assault them with it. He
wouldn't have had the opportunity to assault them in the way that he did, had
they not opened up their home to [him]

He wouldn't have been able to go in their room while they were asleep
and pick up Jeny Brown's gun and begin to load it unless he cominitted a
separate offense of breaking into their home. But nonetheless, Judge, he
would not have had that opportunity had they not instilled trust and faith in
him and allowed him to come into their home.

He took advantage oftheir vulnerabilities not only as parents, but their
medical vulnerabilities as well. As the Court is aware, these two victims -- I
believe they're both 73, 74-years-old. Jeny Brown suffers from a number of
prior medical issues that are noted within his medical records.

5
Martha Brown in addition to her age is particularly vulnerable because
of her memory loss and he took advantage of this. He absolutely used their
vulnerabilities which was that they believed that their own son wouldn't
come in and assault them and he attacked them. He attacked them in their
bed when they were asleep. So we would ask that the Court apply this
particular enhancement factor.

The State noted that the Appellant did not have any prior convictions but requested
that the trial court deny his request for probation because "this was a brutal attack on two
elderly parents that they never saw coming." The State asserted that confinement was
necessaiy to avoid depreciating the seriousness of the offenses and to deter others from
committing similar offenses. The State also asserted that the Appellant lacked potential
for rehabilitation due to his "very longstanding problem with alcohol" and his decision to
mix alcohol with sleeping pills, which resulted in his attacking the victims. Finally, the
State requested that the trial court deny the Appellant's request for judicial diversion.

Defense counsel stated that the offenses in this case were "serious" and that "it was
a mistake for the Appellant to mix Ambien, alcohol, and a muscle relaxer prior to
committing the crimes. However, defense counsel contended that the Appellant did not
know the effect those drugs would have on the Appellant. Defense counsel noted that the
Appellant was a college graduate and had "worked steadily throughout his life." Defense
counsel stated that the Appellant had been "terribly distressed over what has happened"
and that the Appellant had accepted responsibility for his actions by pleading guilty and by
allowing the trial court to determine the manner of service of his sentences and his request
for judicial diversion.

Regarding enhancement factor (14), defense counsel argued that the factor did not
apply because "[h]e wasn't their parent, guardian, or even caretaker. In fact it was the other
way around. He was living there with them. They were kind of taking care of him. He
was[unemployed] at the time, he didn't have any money[1" As to the need for deterrence,
defense counsel noted that this was not a high profile case and that there was no proof
similar crimes were "on the rise" in the community. Regarding the Appellant's potential
for rehabilitation, defense counsel asserted that the Appellant wanted treatment, that the
Appellant was "horrified and embarrassed by what has gone on and wants to change
things," and that "[t]his is a one-time incident fueled by alcohol and medications." Defense
counsel requested that the trial court grant diversion so that the Appellant, who was fifty-
three years old, could "keep this off of his record so that he would be allowed to go back
into the line of work which is basically a manager of safety over various companies."

The Appellant gave an allocution in which he stated that he took "full responsibility
for his actions," that he loved his parents, and that they had always been very proud ofhim.
The Appellant said that he was responsible as a child, cleaning his room and mowing the
grass without being told to do so. He was the first person in his family to go to college and
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worked his way through school to earn his degree. In August 2015, the Appellant resigned
from a company with which he had been employed for twenty-nine years. Two weeks
later, he became sick and was diagnosed with Crohn's disease. The Appellant stated that
"[i]t took most of2016 to get through that" and that he had surgery for his Crohn's disease,
which resulted in blood clots. The Appellant said he was not receiving treatment for his
illness while incarcerated and that "I've missed two injections now and my daily
medications for four months."

The Appellant stated that he did not remember "a lot of the details" about the
assaults but that "I have no doubt that the reason that this occurred was the mixture of
prescription medication that being Ambien and a muscle relaxer. . . . And I was also
drinking tequila." The Appellant advised the trial court that he was supposed to enter a
twenty-eight-day rehabilitation program just four days after the sentencing hearing and that
he would "transition into their halfway house after that to try to get myself back on my
feet." He said that he understood why his parents did not want to be around him and that
he would "honor those wishes." The Appellant requested that the trial court grant his
requests for full probation and diversion so that he could continue with his career as an
environmental health and safety manager. In closing, the Appellant stated that he was
"truly sony" and "very remorseful that this happened."

The trial court stated that this was "an incredibly difficult case because the
Appellant had no criminal history but that the circumstances ofthe offense were "atrocious
and tenifying." The court first addressed the Appellant's request for judicial diversion,
noting that the Appellant was eligible.2 Regarding the Appellant's amenability to
correction, the trial court found that the factor "cuts both ways" because the Appellant had
struggled with substance abuse and mental health issues for most of his life but had earned
a college degree and had maintained employment for most of his life. Next, the trial court
addressed the circumstances ofthe offense and stated,"Ijust can't stress the heinous nature
ofthis offense and how strongly that weighs on the Court's decision-making today." Third,
the trial court found that the Appellant's lack of a criminal record weighed heavily in his
favor. Fourth, the trial court addressed the Appellant's social histoiy, again noting his
college education and employment. However, the trial court stated that the Appellant's
life recently had taken a "downturn." The trial court noted that the Appellant declared
bankruptcy a few years prior to the sentencing hearing and that "[it] kind of makes you
wonder if that was the beginning of this downfall that's led the [Appellant] to where he
cunently sits."

Fifth, the trial court addressed the Appellant's mental and physical health and found
that his mental health "is certainly a concern here." The trial court noted that the Appellant
was hospitalized as a teenager and experienced mental health issues again in 2016. As to

2 During the hearing, defense counsel introduced into evidence the Appellant's certificate of
eligibility issued by the Tennessee Bureau of Investigation (TBI).
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the detelTence value to the Appellant and others, the trial court agreed with defense counsel
that the case had not received much publicity. Therefore, the trial court questioned the
detelTence value "on society in general." As to the detelTence value to the Appellant,
though, the trial court stated that "it probably goes without saying that he shouldn't engage
in behavior like this and expect to walk away from the situation with nothing on your
criminal history." Finally, as to whether judicial diversion will serve the interest of the
public as well as the defendant, the trial court stated,"To allow an attack such as this to go
and not result in a felony conviction, I think would be really an affront to the reputation of
the criminal justice system." The trial court denied the Appellant's request for judicial
diversion.

As to the manner of service of the Appellant's effective six-year sentence, the trial
court found that mitigating factor (13), the catchall provision, applied due to his lack of
criminal history, his work as an environmental health and safety manager, his realization
that he needed substance abuse treatment, and his remorse. See Tenn. Code Ann. § 40-35-
113(13). The trial court agreed with the State that enhancement factors (4) and (14) also
were applicable, and the trial court gave "great weight" to enhancement factor(4)regarding
the victims being particularly vulnerable. As to enhancement factor(14),that the Appellant
abused a position of private trust, the trial court explained,

So when you read that language from the [Gutierrez] decision, I think
there is some application here. Not just because he's their son and not just
because he's living with them at age 53. I don't think that creates a per se
situation that would call for the application of this factor.

But when you take in some of the other factors that were at play, he's
pretty recently divorced, he's pretty recently bankrupt, he's someone who is
struggling with substance abuse. And his parents at their advanced age
agreed to take him into their home, when he's north of 50-years-old, and to
allow him to stay there and allow -- I mean clearly he had drugs and alcohol
in the house.

When I say drugs, were they prescription drugs? It sounds like they
could have been. They had tequila there. They took him in and allowed him
to be in that situation to help him out and it was because of that situation that
he was able to, A, not be employed. You know, if you're working there's
probably a good chance that you don't end up in this state of intoxication if
you know you have to get up and go to work the next day. But also it
facilitated this attack. You know, they're lying in bed. The one spot where
you should feel safest of all especially when the only other person in the
house is your son.

8
So I do think for those reasons there is some application offactor(14)
although it may not be in the traditional sense of how we generally think of
that factor. I think it does apply. But as [defense counsel] correctly notes, I
think it does kind of meld over into the vulnerability factor so I'm not going
to attach a great deal of weight to that factor, although I find that it does
apply.

The trial court also found that confinement was necessary to avoid depreciating the
seriousness of the offenses. The trial court stated that while there was "maybe a chance"
the Appellant would rehabilitate himself, there also was the possibility that he would
"relapse in the very same fashion and do something bad either to his parents or someone
else or worse, or worse." The trial court stated that it was not comfortable taking a chance
on the safety of others. Accordingly, the trial court denied the Appellant's request for
probation and ordered that he serve his effective six-year sentence in confmement.

II. Analysis

A. Judicial Diversion

The Appellant contends that the trial court erred by denying his request for judicial
diversion because the court did not explain why the circumstances of the offenses
outweighed the other factors. The State argues that the trial court properly denied the
Appellant's request for diversion. We agree with the State.

As charged in this case, aggravated assault occurs when a person knowingly
commits an assault, and the assault involved the use of a deadly weapon. Tenn. Code Ann.
§ 39-13-102(a)(1)(A)(iii). A person commits assault when the person knowingly causes
bodily injury to another. Tenn. Code Ann. § 39-13-101(a)(1). "Bodily injury" is defmed
as "including a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary
illness or impairment ofthe function of a bodily member, organ, or mental faculty." Tenn.
Code Ann. § 39-11-106(a)(3). Aggravated assault is a Class C felony. Tenn. Code Ann.
§ 39-13-102(e)(1)(A)(ii).

Pursuant to Tennessee Code Annotated section 40-35-313(a)(1)(B)(i)(a)-(e), a
defendant is eligible for judicial diversion when he or she is found guilty or pleads guilty
or nolo contendere to a Class C, D, or E felony; is not seeking deferral for an offense
committed by an elected official; is not seeking defenal for a sexual offense; has not been
convicted of a felony or a Class A misdemeanor previously and served a sentence of
confinement; and has not been granted judicial diversion or pretrial diversion previously.
Additionally, in determining whether to grant a defendantjudicial diversion, the trial court
must consider all of the following factors: (1) the defendant's amenability to correction,
(2)the circumstances ofthe offense,(3)the defendant's criminal record,(4)the defendant's
social histow, (5) the status of the defendant's physical and mental health, (6) the

9
detelTence value to the defendant and others, and (7) whether judicial diversion will serve
the interest ofthe public as well as the defendant. State v. Electroplating, Inc., 990 S.W.2d
211, 229 (Tenn. Crim. App. 1998)(citing State v. Parker, 932 S.W.2d 945, 958 (Tenn.
Crim. App. 1996)).

The record must reflect that the trial court has taken all of the factors into
consideration, and "we may not revisit the issue if the record contains any substantial
evidence supporting the trial court's decision." Id. Furthermore,"Mlle court must explain
on the record why the defendant does not qualify under its analysis, and if the court has
based its determination on only some of the factors, it must explain why these factors
outweigh the others." Id. When reviewing a trial court's decision to grant or deny judicial
diversion, the standard of review is abuse of discretion with a presumption of
reasonableness. State v. King, 432 S.W.3d 316, 327(Tenn. 2014). However, if the trial
court failed to weigh and consider the relevant factors, this court may conduct a de novo
review or remand the case for reconsideration. Id. at 328.

Turning to the instant case, the record demonstrates that the trial court took into
consideration all of the Parker and Electroplating factors and explained its reasoning for
denying judicial diversion. Therefore, the trial court's ruling is entitled to a presumption
of reasonableness.

The trial court found that the following factors weighed against granting judicial
diversion: the circumstances of the offenses, the Appellant's mental health, the deterrence
value to the Appellant, and whether judicial diversion will serve the interest of the public
as well as the Appellant. Additionally, the trial court found that aspects of the Appellant's
amenability to correction and social history weighed against granting judicial diversion.

Regarding the circumstances ofthe offenses, the trial court described the aggravated
assaults as "atrocious," "terrifying," and "heinous" and placed great weight on that factor.
The stipulated facts at the plea hearing showed that the Appellant tried to shoot and kill his
parents with his father's gun. As luck would have it, the gun did not fire. Undeterred, the
Appellant obtained a wooden axe handle and beat his father with it. Meanwhile, his
mother, who suffered from dementia, fled for her life. When police officers arrived at the
scene, they found her distraught and a block away from her home. Mrs. Brown suffered
scrapes to her left leg, and photographs introduced into evidence showed a gash on Mr.
Brown's forehead; an injury that appeared to be another gash on the left side of his head;
and an extensive amount of blood on his left arm, his t-shirt, and the couple's bed.
Therefore, we conclude that the trial court did not abuse its discretion by denying the
Appellant's request for judicial diversion.

B. Probation

- 10 -
The Appellant contends that the trial court erred by denying his request for full
probation because the trial court improperly considered enhancement factor (14) and
because the trial court improperly evaluated the seriousness of the offenses. The State
argues that the trial court properly denied the Appellant's request for probation. Again, we
agree with the State.

This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388
S.W.3d 273, 79 (Tenn. 2012) (applying the standard to altemafive sentencing). In
determining a defendant's sentence, including the manner of service, the trial court
considers the following factors: (1) the evidence, if any, received at the trial and the
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives;(4)the nature and characteristics of the criminal
conduct involved;(5)evidence and information offered by the parties on enhancement and
mitigating factors;(6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee;(7) any statement
by the Appellant in his own behalf; and (8) the result of the validated risk and needs
assessment conducted by the department and contained in the presentence report. See
Tenn. Code Ann. § 40-35-210(b); see also Bise, 380 S.W.3d at 697-98. The burden is on
the Appellant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-
35-401, Sent'g Comm'n Cmts.

Regarding alternative sentencing, a defendant is eligible for alternative sentencing
ifthe sentence actually imposed is ten years or less. See Tenn. Code Ann. § 40-35-303(a).
The Appellant's sentences meet this requirement. Moreover, a defendant who is an
especially mitigated or standard offender convicted of a Class C, D, or E felony should be
considered a favorable candidate for alternative sentencing absent evidence to the contrary.
See Tenn. Code Ann. § 40-35-102(6). In the instant case, the Appellant is considered to
be a favorable candidate for alternative sentencing because he is a standard offender.

The following sentencing considerations, set forth in Tennessee Code Annotated
section 40-35-103(1), may constitute "evidence to the contrary":

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B)Confmement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
detelTence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1). Additionally, a court should consider a defendant's
potential or lack of potential for rehabilitation when determinhig if an alternative sentence
would be appropriate. See Tenn. Code Ann. § 40-35-103(5). A defendant with a long
history of criminal conduct and "evincing failure of past efforts at rehabilitatioe is
presumed unsuitable for alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

The Appellant first claims that the trial court erred by fmding that enhancement
factor(14) applied to this case, explaining as follows:

While the attack was certainly lamentable, it did not arise in any way from
the exploitation of an adult who was particularly vulnerable due to the nature
of a trusting relationship. To be sure, it could not have happened if [the
Appellant] had not been living in his parents' home. But mere co-residence
is not enough to establish this factor. See [State v. Gutierrez, 5 S.W.3d 641,
645 (Tenn. 1999)]. That is all that was shown here. There was not further
evidence before the court that his parents had an unusual level oftrust in him
or that any such trust contributed to this offense.

In Gutierrez, our supreme court recognized that in cases where an "adult perpetrator
and minor victim are members of the same household, the adult occupies a position of
`presumptive private trust' with respect to the minor." Id. However, the court determined
that a presumption of a private trust does not exist in cases where the perpetrator and the
victim are both competent adults who share a household or are in a relationship because,
unlike minor victims, adult victims generally have reasonable judgment and can function
independently. Id. Accordingly, trial courts must examine "'the nature of the
relationship'" to determine "whether that relationship 'promoted confidence, reliability, or
faith' because such a relationship "usually includes a degree of vulnerability." Id. at 646
(quoting State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996)). Our supreme court
explained that "Nt is the exploitation of this vulnerability to achieve criminal purposes
which is deemed more blameworthy and thus . . . the enhancement factor . . . is construed
to apply only where there is evidence that the nature of the relationship between the
perpetrator and the adult victim caused the victim to be particularly vulnerable." Id. The
State must also show "that the perpetrator abused that relationship in committing the
crime." Id. Finally, our supreme court cautioned that "[a]s with all determinations
regarding the application of an enhancement factor, the utilization ofthis analysis 'is a task
that must be undertaken on a case-by-case basis.'" Id.(quoting State v. Poole, 945 S.W.2d
93, 96(Tenn. 1997)).

Applying the foregoing analysis, our supreme court noted that Gutierrez and his
girlfriend, the victim, were in a relationship and living together; he became angry when she
discussed ending the relationship, and he beat her before shooting and killing her. Id. at
643. The court noted that the record contained few details concerning the nature of their
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relationship. Id. at 646. Therefore, because the record did not demonstrate "the existence
of a relationship which promoted a reliance, confidence, and faith that created a
vulnerability on the part of the adult victim," the court found that the trial court erred by
enhancing the defendant's sentence for his voluntary manslaughter conviction based upon
an abuse of a position of private trust. Id.

Here,the trial court did not apply enhancement factor(14)based on the mere sharing
ofthe household or the mere existence of a parent-child relationship. Instead, the trial court
distinguished the facts of this case from Gutierrez, noting that the fifty-three-year-old
Appellant was bankrupt, unemployed, and struggling with substance abuse prior to
assaulting the elderly victims and that the victims allowed him to live with them in order
to help him. Obviously, the victims did so because they trusted that the Appellant would
not try to harm them. Furthermore, their trust made them vulnerable to his taking
advantage of them, which he did by using alcohol and drugs in their home, by remaining
unemployed, and by attacking them in their own bed. We note that in addition to both of
the victims being seventy-three years old, the Appellant's mother suffered from dementia.
Therefore, we agree with the trial court that the Appellant abused a position of private trust
that significantly facilitated his commission of the offenses. In any event, the trial court
did not give significant weight to enhancement factor (14). Thus, even if the trial court
erred by considering the factor, the Appellant is not entitled to relief. See Tenn. R. App.
P. 36(b).

The Appellant also claims that the trial court erred by denying his request for full
probation because the trial court improperly evaluated the seriousness of the offenses.
Specifically, he asserts that that the only statutory justification given by the trial court for
denying probation was that confmement was necessaty to avoid depreciating the
seriousness ofthe offenses and that the trial court failed to discuss the standards announced
in State v. Trent, 533 S.W.3d 282(Tenn. 2017).

Generally, when denying alternative sentencing based on the seriousness of the
offense alone, "'the circumstances of the offense as committed must be especially violent,
honifying, 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)). In order for a trial court to deny
probation solely on the basis of the offense itself, "the circumstances of the offense as
particularly committed in the case under consideration must demonstrate that the defendant
committed the offense in some manner more egregious than is contemplated simply by the
elements of the offense." Trent, 533 S.W.3d at 292-93.

As stated previously, the trial court described these aggravated assaults as
"atrocious," "terrifying," and "heinous" and considered the crimes to be more egregious
than what is usually contemplated by aggravated assault involving a deadly weapon and

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causing bodily injury. The stipulated facts support the trial court's assessment and justify
the denial ofprobation. In any event, the trial court did not deny probation based solely on
the circumstances of the offense. The trial court also denied probation based on the
consideration of enhancement factor (4), which it gave great weight, and enhancement
factor (14). Additionally, the trial court questioned the Appellant's potential for
rehabilitation or treatment, stating that while there was "maybe a chance" that he would
rehabilitate himself, he could "relapse in the very same fashion and do something bad either
to his parents or someone else or worse, or worse." Accordingly, we conclude that the trial
court did not abuse its discretion by denying the Appellant's request for full probation and
by ordering that he serve his effective six-year sentence in confinement.

III. Conclusion

Based upon the oral arguments, the record, and the parties' briefs, we affirm the
judgments of the trial court.

NORMA MCGEE OGLE,JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6112401. Public record. Not legal advice.