                                                                                      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
                      ___________________________________

                          No. M2017-02441-CCA-R3-CD
                      ___________________________________


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:
                                             -2-
      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
                                           -3-
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.
                                                    -4-
        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
                                            -5-
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.
                                                  -6-
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.


                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE




                                            -7-
