         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                     Remanded by Supreme Court October 16, 2000

          STATE OF TENNESSEE v. CHESTER LEBRON BENNETT

                     Appeal from the Criminal Court for Hamilton County
                     Nos. 216721 - 216725   Stephen M. Bevil, Jr., Judge


                                 No. E2000-02735-CCA-RM-CD
                                       December 6, 2000

This case presents an appeal to this court after remand by order of the Tennessee Supreme Court.
The Appellant, Chester Lebron Bennett, pled guilty to five counts of criminal exposure to HIV and
was sentenced to five concurrent four-year Department of Correction sentences. This court, on direct
appeal, remanded the case to the trial court for consideration of alternative sentencing. See State
v. Chester Lebron Bennett, No. 03C01-9810-CR-00346 (Tenn. Crim. App. at Knoxville, July 28,
1999), perm. to appeal granted, (Tenn. Oct. 16, 2000). Subsequent to this court’s decision, the
supreme court released its decision in the case of State v. Daryl Hooper, No. M1997-00031-SCR-11-
CD (Tenn. at Nashville, Sept. 21, 2000) (for publication). In State v. Daryl Hooper, the court
announced new sentencing considerations regarding the need for deterrence as grounds for denying
an alternative sentence. In light of its decision in State v. Daryl Hooper, the court remanded the case
to this court for reconsideration. See State v. Chester Lebron Bennett, No. E1998-00614-SC-R11-
CD (Tenn. at Knoxville, Oct. 16, 2000). After revisiting this issue under the standards announced
in State v. Daryl Hooper, we affirm the trial court’s denial of alternative sentencing.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,
joined. JOHN H. PEAY, J., not participating.

Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Asst. Public Defender, for
the Appellant, Chester Lebron Bennett.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Erik W. Daab,
Assistant Attorney General, William H. Cox III, District Attorney General, and Claire H. Brant,
Assistant District Attorney General, for the Appellee, State of Tennessee.



                                     OPINION ON REMAND
        The Appellant, Chester Lebron Bennett, pled guilty to five counts of criminal exposure to
HIV (Human Immunodeficiency Virus), a class C felony. See TENN. CODE ANN . § 39-13-109(a)(1)
(1997). The plea agreement provided that the Appellant's sentences would run concurrently;
however, both the length and manner of service of the sentences were submitted to the trial court for
determination. Finding that the seriousness of the offense and the need for deterrence warranted a
sentence of total confinement, the trial court denied any alternative sentencing option and sentenced
the Appellant to five four-year sentences to be served in the Department of Correction. The
Appellant appealed and this court reversed the trial court's sentencing decision, finding that the
record failed to reflect proof sufficient to necessitate a sentence of total confinement. Accordingly
we concluded that the trial court erred by failing to consider alternatives to a sentence of total
confinement. See State v. Chester Lebron Bennett, No. 03C01-9810-CR-00346 (Tenn. Crim. App.
at Knoxville, Jul. 28, 1999). In finding the sentencing decision erroneous, this court relied upon
prior case law in concluding that the record failed to demonstrate that the incarceration would
"provide an effective deterrent to others likely to commit similar offenses." TENN. CODE ANN . § 40-
35-103(1)(B) (1997). The State then filed an application for permission to appeal to the supreme
court. After granting permission to appeal, the supreme court remanded this matter to our court for
reconsideration of the issue of alternative sentencing in light of its recent opinion in State v. Daryl
Hooper, No. M1997-00031-SCR-11-CD (Tenn. at Nashville, Sept. 21, 2000) (for publication),
which was decided approximately eighteen months after this court's reversal of the matter sub judice.
See State v. Chester Lebron Bennett, No. E1998-00614-SC-R11-CD (Tenn. at Knoxville, Oct. 16,
2000).

                                       State v. Daryl Hooper

         In State v. Daryl Hooper, No. M1997-00031-SCR-11-CD, our supreme court examined
inconsistencies in the application of “deterrence” by sentencing courts when used to deny alternative
sentencing as provided by T ENN. CODE ANN . § 40-35-103(1)(B). In an attempt to reconcile these
inconsistencies, the court held that, although "the record must contain some proof of the need for
deterrence. . . ," because of the imprecise science of deterrence, the decision of the sentencing court
that confinement is necessary based on a need for deterrence will be presumed correct on appeal "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, 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." State v. Daryl Hooper, No. M1997-00031-SCR-11-CD (footnote
omitted).

        To "ensure greater consistency in this aspect of sentencing" and to "facilitate more
meaningful appellate review," the court specifically enumerated five factors to be considered when
deciding whether a need for deterrence is present and whether incarceration is "particularly suited"
to achieve that goal:
        1) Whether other incidents of the charged offense are increasingly present in the
        community, jurisdiction, or in the state as a whole.



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       2) 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.

       3) Whether the defendant's crime and conviction have received substantial publicity
       beyond that normally expected in the typical case.

       4) Whether the defendant was a member of a criminal enterprise, or substantially
       encouraged or assisted others in achieving the criminal objective.

       5) Whether the defendant has previously engaged in criminal conduct of the same
       type as the offense in question, irrespective of whether such conduct resulted in
       previous arrests or convictions.

State v. Daryl Hooper, No. M1997-00031-SCR-11-CD. In addition to these factors, the court
emphasized that the five factors are neither exhaustive nor conclusive. Id. In other words, the
sentencing court may consider additional non-enumerated factors provided that (1) the sentencing
court specifically recites these factors on the record and (2) these additional factors are supported
by "at least some proof." Id. Additionally, in concluding the need for deterrence exists, the
sentencing court need not find that all five factors are present. Id.

                            Need for Deterrence in the Present Case

         The Appellant's convictions arise from five separate, consensual, and unprotected sexual
encounters with the same female victim between April 29, 1997, and May 3, 1997. The victim was
first alerted to the Appellant’s HIV status when she discovered medication that he inadvertently left
at her home. When she questioned him about the medication, the Appellant informed her that it was
part of his treatment for lung cancer. Shortly thereafter, the victim doubted the Appellant's
explanation and contacted a pharmacist. The pharmacist informed her that the medication was for
treatment of HIV/AIDS. The victim confronted the Appellant with the information and he finally
admitted that he was HIV positive.

        The thirty-one-year old Appellant testified that he had contracted HIV through a sexual
relationship with a former girlfriend who failed to tell him of her infection with the virus. The
Appellant did not learn of his HIV status until August 1996. The Appellant admitted that he did not
inform the victim of his HIV status because "[he] didn't want to deal with the rejection" and he was
in denial regarding his infection. Fearful for her safety, the victim immediately terminated her
relationship with the Appellant. Five months later, the Appellant married Allene Bennett, whom he
had known for five years. Before their marriage, the Appellant advised Ms. Bennett that he was
infected with HIV.

       Upon de novo review of the record and affording the presumption of correctness to the trial
court’s finding regarding deterrence, we cannot conclude, under the guidance provided by the


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supreme court in State v. Daryl Hooper, that the trial court acted unreasonably in ordering
confinement based on deterrence grounds. There is little doubt from the record that the Appellant’s
crimes were the result of intentional and knowing conduct in order to satisfy his sexual desires
without regard to the well-being of the victim. See State v. Daryl Hooper, No. M1997-00031-SCR-
11-CD (factor (2)). Additionally, testimony at the sentencing hearing revealed the common
behavioral patterns of persons inflicted with the HIV virus. One common behavior is the problem
accepting one’s HIV positive status. The “denial” is more likely than not the result of the societal
“stigma” placed on AIDS victims and the desire to avoid the “stigma.” This general reaction of
denial combined with society’s general ignorance of the prevalence of the virus in today’s society
will inevitably result in increased incidents of the offense charged in the present case. See State v.
Daryl Hooper, No. M1997-00031-SCR-11-CD (factor (1)). Finally, the record at the sentencing
hearing also indicates that the Appellant’s case was given publicity by the media beyond that
normally expected in the typical case. See State v. Daryl Hooper, No. M1997-00031-SCR-11-CD
(factor (3)). Under the pronouncement of our supreme court in State v. Daryl Hooper, we conclude
that the evidence is sufficient to support the Appellant’s incarceration based solely upon deterrence
grounds.

        For the reasons set forth herein, we affirm the sentence of total confinement imposed by the
trial court.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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