State of Tennessee v. Michael R. Smart

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 19, 2010

STATE OF TENNESSEE v. MICHAEL R. SMART

Appeal from the Circuit Court for Bedford County
No. 16818 Lee Russell, Judge

No. M2009-02262-CCA-R3-CD - Filed April 12, 2011

Following a jury trial, the Defendant, Michael R. Smart, was found guilty of sale of a
Schedule VI controlled substance, a Class E felony; delivery of a Schedule VI controlled
substance, a Class E felony; and simple possession of a Schedule VI controlled substance,
a Class A misdemeanor. The trial court merged the sale and delivery convictions and
sentenced the Defendant to 2 years for the Class E felony conviction and a consecutive 11
months and 29 days for the Class A misdemeanor conviction. In this appeal as of right, the
Defendant contends (1) that the trial court erred in allowing the State to impeach him with
his prior conviction of receiving stolen property; (2) that the trial court erred in failing to
include the requested defense of entrapment in the jury instructions; and (3) that the trial
court erred in sentencing him. Following our review, we affirm the judgments of the trial
court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES
and T HOMAS T. W OODALL, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Michael R. Smart.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charles Frank Crawford, District Attorney General; and Michael David Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

Although the Defendant is not challenging the sufficiency of the convicting evidence
for his convictions, we will provide the following factual summary to establish context for
the Defendant’s issues on appeal. This case arose from an undercover drug operation where
Tammy Nelson, the Defendant’s niece, contacted Officer Timothy Miller of the 17th Judicial
District Drug Task Force and told him that she would serve as an undercover confidential
informant and purchase marijuana from the Defendant. Ms. Nelson offered her assistance
hoping that she would receive leniency in a pending case against her and the Defendant
regarding the sale of Xanax to a confidential informant.1

Ms. Nelson called Officer Miller from her house and then traveled to her mother’s 2
residence, the site of the transaction, to meet the Defendant on November 13, 2008. Ms.
Nelson had asked her mother, Lisa Horn, to contact the Defendant because she was not “on
the best of terms” with the Defendant “at that moment.” Ms. Horn contacted the Defendant
and asked him if he would purchase some marijuana for one of her friends. Ms. Horn told
the Defendant that Ms. Nelson would conduct the transaction outside of the house in order
to avoid any interference from her husband, who did not approve of her activities. The
Defendant complied and contacted Ms. Nelson when he was on his way to collect the money
for the purchase. The Defendant told Ms. Nelson that he would collect the money, drive to
town and obtain the marijuana from someone, and then bring the marijuana to her.

Officer Chad Webster of the Lewisburg Police Department was assigned to assist Ms.
Nelson in the undercover buy of marijuana from the Defendant. When Officer Miller arrived
at the site of the transaction, he searched Ms. Nelson, hid a recording device on her person,
and provided her with approximately $1303 in “prerecorded confidential funds.” Officer
Webster hid in the garage area of the residence, where he observed Ms. Nelson as she handed
the Defendant the money. After the Defendant left, Officer Webster searched Ms. Nelson
to confirm that she had given the Defendant the entirety of the “prerecorded confidential
funds.”

Officer Miller followed the Defendant, who drove to another residence. The
Defendant and Curtis Walker, who had been riding with the Defendant, went inside the
residence. Several minutes later, the Defendant and Mr. Walker returned to the vehicle and
drove to a second residence. The two then drove back to the site of the undercover
transaction. Officer Webster observed the Defendant when he returned and gave Ms. Nelson
approximately three quarters of an ounce of marijuana. As the Defendant was walking away,
he told Ms. Nelson that she should take some of the marijuana for herself. The Defendant
left, and the officers followed.

1
The Defendant set up the transaction after Ms. Nelson asked him to help her sell some Xanax.
2
The Defendant’s sister.
3
There was a dispute over the amount of money that Officer Webster gave Ms. Nelson.
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 The Defendant stopped at a gas station, and as he was driving away from the gas
station, the Defendant was stopped by one of the officers. As the Defendant was removed
from the vehicle, Officer Miller smelled a “strong odor of not only raw marijuana but burnt
marijuana, which has two distinct different smells” coming from the vehicle and from the
Defendant. The Defendant was handcuffed, and Officer Miller advised the Defendant that
he was arresting him pursuant to a warrant in the Xanax case.

Officer Miller informed Mr. Walker, who was inside the vehicle, that the Defendant
was being arrested. After removing Mr. Walker from the vehicle, Officer Miller searched
the vehicle and found a smashed cigarette package “between the driver side door and the
seat.” Inside the package, Officer Miller found “approximately a quarter ounce” or “five to
seven grams” of what appeared to be marijuana. Officer Miller also collected a “partially
burnt marijuana cigarette” that was on the “passenger side floorboad.” When Officer Miller
confronted the Defendant with the marijuana in the cigarette pack, the Defendant admitted
ownership of the marijuana.

ANALYSIS

I. Prior conviction

The Defendant contends that the trial court erred in allowing the State to question the
Defendant about his prior conviction of receiving stolen property when the State merely
possessed the National Crime Information Center (NCIC) report as evidence of the
conviction.4 The Defendant further contends that the trial court failed to determine whether
the probative value of the conviction relative to the Defendant’s credibility outweighed the
prejudicial effect. The Defendant asserts that the State was unable to provide any objective
proof of the prior conviction, thereby leaving the jury with an “unproved and unsupported
innuendo that the Defendant had been convicted of a crime in New Hampshire.” The State
responds that the NCIC report provided the State with a good faith basis to question the
Defendant about the prior conviction. The State concedes that the trial court failed to make
specific findings of fact relative to the probative value of the impeaching conviction but
asserts that Tennessee courts have held that the probative value of similar convictions
outweighed the prejudicial effect. The State further responds that if the trial court erred in
permitting the line of questioning, then any error was harmless.

After the close of the State’s proof, defense counsel requested a ruling relative to the
admissibility of a prior conviction in New Hampshire for receiving stolen property, which
is codified as theft in Tennessee. See Tenn. Code Ann. § 39-14-101. Defense counsel
argued that the State should be precluded from questioning the Defendant about the

4
At the sentencing hearing, the State produced a certified copy of the judgment of conviction.
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conviction because the only evidence of the conviction was in the form of an NCIC report,
which reflected that the Defendant had a prior conviction in New Hampshire for receiving
stolen property in 2001. After hearing argument from defense counsel and the State, the trial
court concluded that the State could ask the Defendant whether he was the same Michael
Smart who had a prior conviction for receiving stolen property in New Hampshire.
However, the trial court instructed the State that they could not admit the NCIC report into
evidence if the Defendant denied that he had a prior conviction. Defense counsel never
requested a ruling relative to the impeaching conviction’s probative value on credibility, and
the trial court never issued a ruling in that regard.

On cross-examination, the Defendant denied any knowledge of a conviction of
receiving stolen property in New Hampshire. Testimony was elicited from the Defendant
and Ms. Nelson that indicated that the Defendant had lived in New Hampshire for a
significant period of time before moving to Tennessee.

Rule 609(a)(3) of the Tennessee Rules of Evidence allows for the admission of a prior
conviction to impeach the credibility of a defendant testifying at trial. Such impeaching
convictions must be either “punishable by death or imprisonment in excess of one year under
the law under which the witness was convicted” or “must have involved dishonesty or false
statement.” Tenn. R. Evid. 609(a)(2). The rule further provides,

[i]f the witness to be impeached is the accused in a criminal prosecution, the
State must give the accused reasonable written notice of the impeaching
conviction before trial, and the court upon request must determine that the
conviction’s probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues.

Tenn. R. Evid. 609(a)(3) (emphasis added). A trial court’s decision to admit a prior
conviction under Rule 609 of the Tennessee Rules of Evidence will not be reversed on appeal
unless the trial court abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn.
Crim. App. 1996).

A conviction for receiving stolen property is a crime which “involved dishonesty or
false statement.” Tenn. R. Evid. 609(a)(2); see State v. Martin, 642 S.W.2d 720, 724 n. 1
(Tenn. Crim. App. 1982) (stating that a conviction of concealing stolen property was
“facially in the honesty and false statement category and clearly admissible for impeachment
purposes if defendant had elected to take the witness stand”). Because the Defendant did not
request a ruling relative to the impeaching conviction’s probative value on credibility, the
trial court was not required to issue lengthy findings of fact in that regard. Tenn. R. Evid.
609(a)(3); see Neil P. Cohen et al., Tennessee Law of Evidence § 6.09[10][c] (5th ed. 2005)
(stating that the credibility determination must be made “on request”). In any event, we

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believe that relative to the Defendant’s credibility, the probative value of the impeaching
theft conviction outweighed any unfair prejudicial effect because the Defendant was on trial
for selling cocaine, not theft. See State v. Addison, 973 S.W.2d 260, 268 (Tenn. Crim. App.
1997) (discussing probative value of misdemeanor theft, larceny, and receiving stolen
property convictions); State v. Crane, 780 S.W.2d 375, 377 (Tenn. Crim. App. 1989)
(discussing probative value of a conviction of concealing stolen property).

The next issue is whether the trial court erred in allowing the State to question the
Defendant when the only proof of the conviction was in the form of an NCIC report. We
acknowledge that the State procured the certified judgment of conviction after the trial;
however, the State only possessed the NCIC report at trial.

Our supreme court has held that NCIC reports “are not admissible as a substitute for
certified copies of court convictions nor for any other purpose.” State v. Buck, 670 S.W.2d
600, 607 (Tenn. 1984). In so holding, the supreme court further stated,

The information in such reports is pure hearsay, of a dubious degree of
accuracy, prepared for purposes other than court use, contains information that
is likely to be prejudicial under all circumstances and is not the best evidence
of matters that can be proven by reliable, documentary evidence.

Id. While the decision in Buck related to the admissibility of NCIC reports at a sentencing
hearing, this court has held that the State may not use an NCIC report as a basis for
impeaching a witness with a prior conviction. State v. Philpott, 882 S.W.2d 394, 403 (Tenn.
Crim. App. 1994).

In Philpott, the trial court precluded questioning about a witness’s prior conviction for
criminal trespass because the conviction was not a crime involving dishonesty. Id. At trial,
the State attempted to question the witness about another prior conviction for receiving and
concealing stolen property. This conviction was listed on an NCIC report. The trial court
precluded further questioning on the conviction because the State only possessed the NCIC
report as evidence of the conviction.5 Id. However, the State continued to question the
witness about the conviction despite the trial court’s ruling. Id. This court held that
questioning the witness relative to the conviction was impermissible but ultimately
concluded that the issue was waived for defense counsel’s failure to request a mistrial. Id.
at 404. In so concluding, this court stated, “It is unprofessional conduct to ask a question
which implies the existence of a factual predicate which the examiner cannot support by

5
The witness had never actually been convicted of the offense; therefore, the NCIC report erroneously
reflected a conviction of receiving and concealing stolen property.
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evidence.” Id. at 404. Accordingly, we conclude that the trial court in this case erred in
allowing questioning relative to the Defendant’s prior conviction. However, we believe that
the error was harmless and that the questioning regarding the conviction did not affect the
judgment. See Tenn. R. App. P. 36(b); see also State v. Joslin, No. 03C01-9510-CR-00299,
1997 WL 583071, at *30 (Tenn. Crim. App. Sep. 22, 1997), perm. app. denied (Tenn. Nov.
9, 1998) (concluding that the erroneous admission of questioning regarding a defendant’s
prior conviction was harmless).

II. Jury instruction

The Defendant contends that the trial court erred in refusing to instruct the jury on the
defense of entrapment. The State responds that the proof did not raise a defense of
entrapment; therefore, the trial court did not err in refusing to instruct the jury on the defense.

“A defendant is entitled to the issue of the existence of a defense being submitted to
the jury when it is fairly raised by the proof.” State v. Bult, 989 S.W.2d 730, 733 (Tenn.
Crim. App. 1998) (citing Tenn. Code Ann. § 39-11-203(c), (d)). In determining whether to
instruct the jury on the defense, the trial court must “consider the evidence in the light most
favorable to the defendant, including drawing all reasonable inferences flowing from that
evidence.” State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).

The Defendant’s claim of entrapment is based on the following evidence. At trial, the
Defendant testified that Ms. Nelson contacted him on November 13, 2008 and asked if he
could purchase some marijuana for her. The Defendant told her that he would not purchase
the marijuana for her because he had “quit everything” and did not “want to deal with it.”
After refusing to help Ms. Nelson procure marijuana, his sister called him and told him that
she needed a favor. Ms. Horn told him that “she needed to get some marijuana for a friend.”
The Defendant told Ms. Horn that he “really didn’t want to” but that he would “try” because
she was his sister. He admitted that he did not see Ms. Horn on November 13, 2008 but
explained that Ms. Horn asked him to deliver the marijuana to her daughter because her
husband would not approve of the transaction. The Defendant further explained that he
would not have bought the marijuana for Ms. Nelson and that he only agreed to help because
he believed that he was helping his sister, Ms. Horn.

Pursuant to Tennessee Code Annotated section 39-11-505, “It is a defense to
prosecution that law enforcement officials, acting either directly or through an agent, induced
or persuaded an otherwise unwilling person to commit an unlawful act when the person was
not predisposed to do so.” In determining whether a defendant was induced to commit the
crime or was predisposed to commit the crime, Tennessee courts analyzes the subjective
intent of the defendant. State v. Shuck, 953 S.W.2d 662, 666 (Tenn. 1997). In determining
a defendant’s predisposition to commit a crime, the following factors are relevant:

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 the character or reputation of the defendant, including any prior criminal
record; whether the suggestion of the criminal activity was initially made by
law enforcement officials; whether the defendant was engaged in the criminal
activity for profit; whether the defendant evidenced reluctance to commit the
offense which was overcome only by repeated inducement or persuasion by
law enforcement officials or agents; the nature of inducement or persuasion
engaged in by law enforcement officials; and any other direct or circumstantial
evidence that the accused was ready and willing to engage in the illegal
conduct in question.

Id. at 670.

Following our review, we believe that the defense of entrapment was not fairly raised
by the proof. The Defendant in this case had a pending charge of selling Xanax to an
undercover officer, was only asked twice to commit the crime, and appeared to have profited
from his involvement - given the amount of marijuana found in the car. Moreover, the
Defendant’s testimony does not even suggest that he was induced to commit the crime when
the Defendant refused a request to purchase drugs from his niece but complied with the
subsequent similar request from his sister. See Shropshire, 874 S.W.2d at 639 (stating that
entitlement to the instruction of entrapment requires evidence of “governmental inducement”
and the “defendant’s unwillingness to commit a drug conspiracy”). Accordingly, we
conclude that the trial court did not err in refusing to issue an instruction on the defense of
entrapment.

III. Sentencing

The Defendant contends that the court erred in setting the length of his sentences, in
imposing consecutive sentences, and in denying all forms of alternative sentencing. The
State responds that the trial court properly sentenced the Defendant.

Tracy Millstead, the Defendant’s 21-year-old girlfriend, testified at the sentencing
hearing. Ms. Millstead testified that she and the Defendant had a child together and that the
child was four years old at the time of the hearing. She stated that the Defendant had been
living with them for approximately one year until he was arrested. During that time, the
Defendant provided financial assistance and assisted in raising and caring for their son. She
stated that she did not work and that their son had asthma and attention deficit hyperactivity
disorder. On cross-examination, she admitted that she was 17 years old when she gave birth
to her son; therefore, she conceived the child with the Defendant before she was 18 years old.
She stated that the Defendant, who was 28 years old at the time of trial, was approximately
24 years old at the time she conceived their son. She also admitted that she had been
receiving assistance from the State to raise her son and that the Defendant owed

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approximately $5,000 in child support. She stated that the Defendant had a court case
pending regarding his failure to pay child support.

The State introduced a certified judgment of conviction for the Defendant’s 2001 New
Hampshire conviction. At the conclusion of the hearing, the trial court denied alternative
sentencing and sentenced the Defendant to 2 years for the Class E felony and a consecutive
11 months and 29 days for the Class A misdemeanor.

An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
appealing party has the burden of showing that the imposed sentence is improper. Id. If
review of the record reflects that the trial court properly considered all relevant factors, gave
due consideration to each factor, and its findings of fact are adequately supported by the
record, this court must affirm the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991). Should the record fail to demonstrate the required considerations by the
trial court, then appellate review of the sentence is purely de novo. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate
review, the trial court must “place on the record, either orally or in writing, what
enhancement and mitigating factors were considered, if any, as well as the reasons for the
sentence.” Tenn. Code Ann. § 40-35-210(e).

Tennessee’s sentencing act provides:

(c) The court shall impose a sentence within the range of punishment,
determined by whether the defendant is a mitigated, standard, persistent,
career, or repeat violent offender. In imposing a specific sentence within the
range of punishment, the court shall consider, but is not bound by, the
following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly
set the minimum length of sentence for each felony class to
reflect the relative seriousness of each criminal offense in the
felony classifications; and

(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

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 The weight to be afforded an enhancement or mitigating factor is left to the trial
court’s discretion so long as its use complies with the purposes and principles of the 1989
Sentencing Act and the court’s findings are adequately supported by the record. Tenn. Code
Ann. § 40-35-210(d)-(f); State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). “An
appellate court is therefore bound by a trial court’s decision as to the length of the sentence
imposed so long as it is imposed in a manner consistent with the purposes and principles set
out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly, on appeal we may
only review whether the enhancement and mitigating factors were supported by the record
and their application was not otherwise barred by statute. See id.

In conducting its de novo review with a presumption of correctness, the appellate
court must consider (1) the evidence, if any, received at the trial and 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, (5) any mitigating or
statutory enhancement factors, (6) any statement that the defendant made on his own behalf,
(7) the defendant’s potential for rehabilitation or treatment, and (8) any statistical information
provided by the Administrative Office of the Courts as to sentencing practices for similar
offenses in Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823
S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

A. Length of sentences

Relative to the length of his sentences, the Defendant contends that the trial court
overstated the significance of his criminal history when enhancing his sentences. The
Defendant asserts that his prior convictions consisted of “a prior simple possession and an
apparently misdemeanor possession of stolen property several years earlier.” The Defendant
also asserts that consideration of the fact that he conceived a child with an underage female
is mitigated by the fact that he married her and remained with her, while fathering the child.
The State responds that the trial court properly sentenced the Defendant after considering the
necessary purposes and principles of the sentencing act.

In setting the length of the Defendant’s sentences, the trial court applied one
enhancement factor and one mitigating factor. As to the enhancement factor, the trial court
found that the Defendant had a “previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range.” Tenn. Code Ann.
§ 40-35-114(1). In so finding, the trial court referenced the Defendant’s two prior
convictions – one conviction in 2009 and the New Hampshire conviction from 2001. The
trial court also noted that the Defendant had conceived a child with a 17-year-old female and
had admitted to selling drugs prior to the activities that formed the basis of the convictions
in this case. The trial court also found but gave little weight to the fact that the Defendant’s

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behavior neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-
113(1). Following our review, we conclude that the trial court’s application of the
enhancement and mitigating factors is supported by the record and that the trial court’s
sentencing decision comports with the purposes and principles of the 1989 Sentencing Act.

B. Consecutive sentences

Relative to the trial court’s imposition of consecutive sentences, the Defendant
contends that the trial court “overstated” his criminal history. The Defendant asserts that the
trial court “overused” his criminal history when it referenced his criminal history as a basis
for imposing the maximum sentence possible, imposing consecutive sentences, and in
denying alternative sentencing. The Defendant further asserts that his sentence does not
comport with the principles and purposes of the 1989 Sentencing Act. The State responds
that the trial court did not err in imposing consecutive sentences because it properly found
that the Defendant had an extensive criminal history.

In imposing consecutive sentences, the trial court found that the Defendant had an
extensive record of criminal activity based upon his convictions in 2009 and 2001 and other
uncharged “criminal conduct.” The uncharged criminal conduct related to the Defendant’s
engaging in sexual intercourse with a 17-year-old female and his admitted history of selling
drugs.

Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),
which states in pertinent part that the trial court may order sentences to run consecutively if
it finds by a preponderance of the evidence that “[t]he defendant is an offender whose record
of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). In all cases where
consecutive sentences are imposed, the trial court is required to “specifically recite [on the
record] the reasons” behind imposition of consecutive sentences. State v. Palmer, 10 S.W.3d
638, 647-48 (Tenn. Crim. App. 1999) (noting the requirements of Rule 32(c)(1) for purposes
of consecutive sentencing); See Tenn. R. Crim. P. 32(c)(1).

Concerning the Defendant’s contention that his criminal history was overused, our
courts have consistently held that the “same facts and circumstances” may be used to
“enhance sentences under applicable enhancement factors and to require those sentences to
be served consecutively.” State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993).
“In fact, this [c]ourt has previously held that consideration of prior criminal convictions and
conduct for both enhancement and consecutive sentencing purposes is allowed.” Id. (citing
State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991) (emphasis added).
Additionally, the trial court’s decision to impose consecutive sentences was supported by the
record.

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 C. Alternative sentencing

Relative to the trial court’s denial of alternative sentencing, the Defendant contends
that the trial court’s determinations were unsupported by the evidence. The Defendant
asserts that confinement was unnecessary to keep him from re-offending because he was
attempting to “leave town” when his niece “took specific actions to keep him local and to get
him involved in a sale of marijuana.” The State responds that the trial court properly denied
alternative sentencing.

The Defendant was convicted of a Class E felony and a Class A misdemeanor.
Therefore, he was to be “considered as a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). “A
court shall consider, but is not bound by, the advisory sentencing guideline” when
determining whether alternative sentencing is appropriate. Tenn. Code Ann. § 40-35-
102(6)(D). Indeed, this consideration does not automatically entitle a defendant to
alternative sentencing; rather, sentencing issues must be determined by the facts and
circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn.
Crim. App. 1987) (citing Moss, 727 S.W.2d at 235). The defendant must establish his
suitability for alternative sentencing. Tenn. Code Ann. § 40-35-303(b).

In determining a defendant’s suitability for alternative sentencing, the trial court
should consider whether

(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[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). The trial court shall also consider the mitigating
and enhancing factors as set forth in Tennessee Code Annotated sections 40-35-113 and
-114. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn.
Crim. App. 1996). A trial court should also consider a defendant’s potential or lack of
potential for rehabilitation when determining if an alternative sentence would be appropriate.
Tenn. Code. Ann. § 40-35-103(5); Boston, 938 S.W.2d 435 at 438. Ultimately, in sentencing
a defendant, a trial court should impose a sentence that is “no greater than that deserved for

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the offense committed” and is “the least severe measure necessary to achieve the purposes
for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

In denying alternative sentencing, the trial court stated that it was “highly likely” that
the Defendant would commit more crimes if he were given an alternative sentence. The trial
court referenced the Defendant’s denial of his prior criminal conviction in New Hampshire
and found that “there [was] a low likelihood that he would have a potential for rehabilitation
in the absence of incarceration.” Following our review, we conclude that the trial court gave
appropriate consideration to the facts and circumstances of the Defendant’s case before
arriving at its determination. Accordingly, we also conclude that the record supports the trial
court’s denial of alternative sentencing in this case.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.

________________________________
D. KELLY THOMAS, JR., JUDGE

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