                                                                                        03/14/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 14, 2018

             STATE OF TENNESSEE v. HUGH EVERRET BURT

                Appeal from the Criminal Court for Davidson County
                     No. 2016-B-634    Monte Watkins, Judge
                     ___________________________________

                           No. M2017-00547-CCA-R3-CD
                       ___________________________________

After a bench trial, the trial court found the Defendant, Hugh Everret Burt, guilty of
sexual exploitation of a minor for knowingly possessing less than fifty sexual images of
minors. The trial court sentenced the Defendant to two years and six months, with six
months to be served in jail and the remaining served through Community Corrections.
On appeal, the Defendant argues that the evidence against him is insufficient and that the
trial court erred when it ordered him to serve a portion of the sentence in jail. After
review, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Hugh Everret Burt.

Herbert H. Slatery III, Attorney General and Reporter; Linda D. Kirklen, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Tammy H. Meade,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       This case arises from the discovery of sexual images of minors on the Defendant’s
computer. A Davidson County grand jury indicted the Defendant for sexual exploitation
of a minor for possessing more than fifty sexual images of minors between December 12,
2012, and December 12, 2013. The State later amended the charge to reduce the number
of images to less than fifty, a Class D felony. The Defendant waived his right to trial by
a jury, and the case proceeded to a bench trial. At trial, the parties presented the
following evidence: David Carrigan, a Metropolitan Nashville Police Department
detective, testified that he worked in the Sex Crimes Unit and on the Internet Crimes
Against Children Task Force.

        Detective Carrigan described how he became involved in this case, saying that the
National Center for Missing and Exploited Children (“NCMEC”) was established by
Congress to act as a clearinghouse for reports of possible child pornography or
exploitation offenses from internet service providers, websites, and other internet-related
entities. He used “Facebook, Microsoft, Google” as examples of entities that would
report to NCMEC anything suspicious that they might find on their servers.

       Detective Carrigan testified that, in this case, two reports were made to NCMEC
based upon the same image being uploaded to the same Microsoft SkyDrive account, on
the same day, but at two different times. The image is included in the record and depicts
a young boy lying on a bed with a view of his exposed buttocks. Detective Carrigan
estimated the child’s age at thirteen to fourteen years old. This image, the IP address of
the computer making the upload, the email addresses, and user name associated with the
SkyDrive account were all provided to NCMEC. The IP address was linked to the
Nashville area so NCMEC forwarded all of the information to Tennessee authorities for
investigation.

       Detective Carrigan testified that he contacted the service provider, Comcast,
connected to the IP address and obtained information about the IP address. Detective
Carrigan learned that the IP address was assigned to the Defendant and associated with an
address on Priest Lake Drive. Detective Carrigan identified Comcast billing record and
subscriber information, confirming that the IP address was associated with the Defendant.
Detective Carrigan also confirmed that the Defendant’s address was the same Priest Lake
Drive address provided by Comcast. The Defendant’s driver’s license reflected the Priest
Lake Drive address and the power and electric at that address were registered to the
Defendant.

       Detective Carrigan executed a search warrant on December 12, 2013, at the Priest
Lake Drive address. The Defendant’s wife answered the front door, and two officers
spoke with her on the main floor while Detective Carrigan spoke with the Defendant
downstairs in the basement. Detective Carrigan said that he noticed a laptop sitting near
the front door where he entered the home. Once downstairs, Detective Carrigan
explained to the Defendant that he had a search warrant and would be taking some items
but that the Defendant was not “under any requirement to make a statement.” The
Defendant confirmed his understanding and then spoke with Detective Carrigan.



                                           -2-
       Detective Carrigan testified that the Defendant confirmed that he had a SkyDrive
account. He provided Detective Carrigan with several email addresses, one of which was
associated with the SkyDrive account (hughburtseventythree@msn.com). The Defendant
also provided his password for the SkyDrive account and stated that he had purchased the
computer new about a year before. He confirmed that he was the sole user of the
computer and the SkyDrive account. The Defendant told Detective Carrigan that he had
uploaded images to his SkyDrive account but denied any knowledge of child
pornography on the account. He did, however, admit that on the computer, “there was
some pornography and some other images, that he had got while he was a soldier.”

       Detective Carrigan testified that the Defendant acknowledged having searched for
pornography using search terms, such as, “Young Girls,” “Asian Women,” and “Black
Women,” but denied any direct searches for child pornography. Detective Carrigan
described for the Defendant the image that had been sent to him from NCMEC. The
Defendant said he did not “recall” that particular image but stated that “he had uploaded
other stuff as a batch, it coulda (sic) been in that.” After “manual” searches of several
electronic items in the residence, Detective Carrigan seized the Defendant’s laptop, the
external drive, and a thumb drive.

       Chad Gish, a Metropolitan Nashville Police Department detective, testified that he
was assigned to the Criminal Investigation Division in the Surveillance Investigative
Support Unit. Detective Gish testified as an expert in Forensic Analysis and stated that
he reviewed the contents of the Defendant’s laptop computer. From the hard drive of the
laptop computer, Detective Gish “obtain[ed] a forensic image” or duplicate copy of the
information on the computer’s hard drive. Detective Gish stated, about the Defendant’s
external hard drive, that he was unable to obtain a forensic image because the drive had
some damage that would not allow him to access the information.

       Detective Gish testified that as he searched the forensic image made from the
laptop, he was unable to find any photographs that were saved on the hard drive and still
active files. Detective Gish did find a program called CCleaner on the hard drive used to
delete and overwrite files on a computer. He explained that even though a file was
deleted it may still be accessed forensically until a new file overwrites it. Detective Gish
found on the computer “a number of times” where CCleaner had been executed to
overwrite data. Next, Detective Gish searched the remaining deleted information on the
hard drive and recovered “thousands upon thousands of images,” however, most were
adult pornography.

       Detective Gish testified that he reviewed all of the images and recovered fifty-
eight to sixty that he believed were child pornography. The images depict young girls
                                           -3-
exposing their breasts and genitalia and engaging in sexual acts or simulated sexual acts.
Those images were sent to NCMEC to determine if there were any known child victims
associated with the images. Detective Gish stated that, because of the nature of the
recovered images, he was unable to determine the exact dates and times that the images
were stored on the Defendant’s computer.

       Detective Gish testified that the next phase of his analysis was to search the
internet history from the laptop to try to find from where the images came. Once again,
everything had been deleted or “previously backed up, by an automated system in this
computer.” Detective Gish was able to find, however, search terms used on “Bing” to
look for what appeared to be child pornography. Some of the search terms were “Little
Girl’s First Time,” “Very Young School Girls,” “Exploited Tiny, Young, Petite Teen,”
“Puberty Budding Breasts,” and “Daddy Incest.” Detective Gish could determine that
these search terms were used but not the date and time of the searches.

        On cross-examination Detective Gish testified that it is possible to transfer a file
full of pictures from an external drive to a laptop’s hard drive without looking at each
individual picture. He confirmed that he decided which images were “suspect images”
and sent them to NCMEC for verification. Of the fifty-six images, one image depicted a
confirmed child victim.

       The Defendant testified that on the day the search warrant was executed, he was
asleep in the bedroom when his wife woke him up. The Defendant spoke with Detective
Carrigan in the basement. The Defendant said that he told Detective Carrigan that he
wanted to speak in his wife’s presence but Detective Carrigan said it “wouldn’t be a good
idea.” The Defendant confirmed he lived in the residence with his wife and step-
daughter at the time and that the laptop computer was exclusively his. The Defendant
explained that during the summer of 2013, however, he had been in Wisconsin with his
eighteen-year-old son. He was in Wisconsin from May to July, and during this time, his
son and his son’s friends had access to his laptop.

      The Defendant stated that he obtained the computer in April 2013 from Best Buy
when his old computer was not repairable. Because his old computer was still under
warranty, Best Buy replaced his old computer with a “floor demo.”

       The Defendant testified about his work history. He explained that he was working
on a Navy contract with Honeywell but that he was “furloughed” when the contract was
not renewed. While unemployed he set up the Microsoft account because he had several
people contact him about “consulting work.” He believed the Microsoft account would

                                           -4-
allow him to access documents from his phone that were compatible with his computer
should he begin doing consulting work.

        The Defendant testified that he obtained the external hard drive in 2005. He said
that, at the time, he was a contractor in Iraq for a little over two years. He purchased the
external hard drive at an Air Force Post Exchange. He bought it for the purpose of
downloading manuals to use while servicing military vehicles. The computer he used,
however, was a community computer, and the external hard drive remained in the
common area with the computer. Various people used the external hard drive for both
work and for personal reasons. The Defendant left Iraq in 2006, and the hard drive went
with him to Wisconsin to his parents’ home. The Defendant still traveled a lot with his
new work, but the external drive remained in his parents’ home. In 2008, he bought a
house in Nashville, and in 2010 the hard drive arrived in Nashville along with items he
had stored at his parents’ home. While in Nashville, he had two different girlfriends who
would stay at the house while he was away.

       The Defendant testified that, around the time he worked at Honeywell, he was in
counseling to deal with post-traumatic stress disorder (“PTSD”). He knew photographs
from Iraq were on the external drive so, as part of his therapy, he wanted to access those
pictures. His external hard drive, however, would not work with his new computer, so he
used his son’s old laptop that had Windows XP to transfer the files. He transferred whole
files without looking through the folders onto a memory stick and then “dropped them on
my computer in a folder.” He explained that it was a cumbersome process and took him
almost five days to transfer the information to his new computer. He reiterated that he
did not view what he was transferring; he was just trying to get the information off the
external hard drive to sort through later. His motive though was to find the photographs
from Iraq to help in addressing issues in counseling related to PTSD.

       The Defendant testified about his childhood. He said he was one of three children
and that his mother married a man with four sons. When they moved in together, only
the youngest son, “Jimmy,” was still living with his father. Jimmy forced the Defendant
and the Defendant’s brother to perform sexual acts on him. He raped the Defendant on
one occasion but, during a second attempt, the Defendant fled into the streets for help
and, ultimately, Jimmy was forced to leave the home. He was told “not [to] talk about it”
because it was not “good for the family.” The Defendant was later sexually assaulted by
a family friend.

       The Defendant explained that the search terms Detective Gish found related to
“Incest” “Real Incest” and “Naughty Incest” were because he was reading about the
effects of sexual abuse on men. He and his wife were entering counseling to work on
                                           -5-
their marriage and for him to address issues from his past. In preparation for counseling,
he said that he tried to find information related to boys and the impact of sexual assault
but more often there was information on the abuse of women. He explained that in the
course of searching for this information he would be directed to sites that were not what
he was looking for, and he would “reject them” and look in other areas of the internet for
information. He said that he was not looking for pornography but for a way to help
himself.

        The Defendant testified that he did enter the search terms related to incest, but he
was unaware of the other search terms attributed to the searches on his computer. He
reiterated that, often, as he searched he would be redirected to different websites that
were not of his choosing. The Defendant denied putting any pornographic images on his
computer and said that his son and his son’s friends had access to his computer. He
clarified that he was not saying they were the ones who had downloaded the photographs,
he was merely pointing out that they had access to the computer. He further agreed that
the images could have come from the external hard drive. As he reviewed some of the
material that he had transferred, he deleted it because it contained nudity but not child
pornography.

       The Defendant testified that he “looked up” a “medical picture” of a teenager
before and after puberty. He explained that he did so because he was raped at the age of
eleven and had not gone through puberty yet. He said that he did this as a “medical
thing.” Defense counsel provided the Defendant with a copy of the images obtained from
his computer. The Defendant denied having ever seen the photographs before or having
downloaded the photographs onto his computer knowingly. He stated that he did not
know who had downloaded the images onto his computer.

       The Defendant testified that he purchased and installed the CCleaner program as a
“malware program.” He explained that he had received a warning on his computer that
said, “Windows has detected a threat on your computer.” In an effort to clean the
computer, he installed the program. He said he was unaware that CCleaner was used to
erase pornography. He said that he was concerned that all the information he had
transferred from his external hard drive had contaminated the hard drive on his laptop
computer.

       The Defendant testified that he and his wife began counseling in early 2013 and
continued counseling for “roughly” three months. The couple discontinued counseling
when the Defendant was “laid off” from Honeywell. Defense Counsel showed the
Defendant a photograph that was uploaded “to the cloud” in April 2013. The Defendant
denied that he uploaded the photograph and stated that he had never seen the photograph
                                           -6-
before. The Defendant stated that he only obtained the Microsoft account for work
purposes to connect his phone and his computer. He never used the “portion” of “that
program” that would upload photographs. He said that he had the Microsoft account for
less than thirty days when it was shut off and that he did not have the chance to fully set
up the account on his phone before this occurred. The Defendant confirmed that he
understood that the account was closed after the photograph that appeared to be child
pornography was uploaded twice in the same day.

       The Defendant testified that Microsoft customer service representatives would not
give him a specific reason why the account was closed and referred him to the service
agreement. The Defendant believed that the account may have been terminated due to
the photographs from Iraq that depicted military images related to fighting.

       On cross-examination, the Defendant agreed that Detective Carrigan told the
Defendant “more than once” that he did not have to speak with him. The Defendant
agreed that he understood he could leave at any time and that Detective Carrigan never
threatened him. The Defendant also agreed that he told Detective Carrigan that he had
looked at pornography. He confirmed that he told Detective Carrigan that the search
engine he used was Bing and that he used search terms like “Asia Women,” “Black
Women,” and “Young Women.” He agreed that he searched for pornography on the
internet and that he looked at the images that appeared as a result of his search terms. He
confirmed that he told Detective Carrigan that the computer was his and not used by his
wife or step-daughter.

       The Defendant testified that he searched under the term “Incest Nudist Family” to
“find out how other people dealt with situations similar to [his].” He stated that
“Naughty Incest,” “Daddy Incest,” and “Family Incest” were also searches to find
legitimate therapeutic information about incest. He denied selecting images and stated
that he was redirected to the images tab on Bing.

       After hearing the evidence, the trial court found the Defendant guilty of sexual
exploitation of a minor, under fifty images, a Class D felony. At a subsequent sentencing
hearing, the trial court heard testimony from the Defendant’s wife that he was a hard
worker, a good husband, and a good step-father to her daughter. The Defendant made a
statement in allocution maintaining his innocence but asking the trial court to consider his
wife’s testimony, and his service in the military. The trial court stated that it was
considering the testimony at trial, which included testimony about the Defendant’s
military history and the Defendant’s difficult childhood. The trial court also considered
the nature of the offense and that the Defendant had no prior criminal record. The trial
court found applicable Tennessee Code Annotated section 40-35-101(1)(b), that
                                           -7-
confinement was necessary to avoid depreciating the seriousness of the offense in
ordering an alternative sentence involving incarceration. The trial court ordered the
Defendant to serve six months in jail followed by two years of probation. It is from this
judgment that the Defendant now appeals.

                                      II. Analysis

        On appeal, the Defendant argues that the evidence against him is insufficient and
that the trial court erred in ordering him to serve a portion of the sentence in jail.

                            A. Sufficiency of the Evidence

        The Defendant asserts that the evidence supporting his conviction is insufficient
because the State failed to show that the Defendant knowingly obtained the images found
on his laptop. The State responds that the evidence supports the Defendant’s conviction
for knowingly possessing less than fifty images depicting children engaging in sexual
acts or simulated sexual acts. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

       In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
                                          -8-
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme
Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).

       It is a Class D felony for any person to “knowingly possess material that includes
a minor engaged in . . . [s]exual activity; or . . . [s]imulated sexual activity that is patently
offensive.” T.C.A. § 39-17-1003(a), (d). “Material” includes any picture or photograph,
image stored on a computer hard drive or transmitted to a computer even if not saved at
the time of transmission. T.C.A. § 39-17-1002. The State is not required to prove the
actual identity or age of the minor. T.C.A. § 39-17-1003(e).

       The evidence, viewed in the light most favorable to the State, showed that the
Defendant possessed thousands of pornographic images. Of those, at least fifty-eight to
sixty were images depicting children. The Defendant confirmed his exclusive ownership
of the computer and his Microsoft SkyDrive account. It was from this SkyDrive account
that an image of an approximately thirteen year old boy lying on a bed with his exposed
                                          -9-
buttocks was uploaded. The Defendant confirmed that the email account address
reported by NCMEC to Tennessee authorities, hughburt73@msn.com belonged to him.
The Defendant admitted to Detective Carrigan that he searched for and viewed adult
pornography on the computer. The additional images recovered by Detective Gish
included images of young girls exposing their breasts and genitalia and engaging in
sexual acts or simulated sexual acts. Some of the search terms used on the Defendant’s
computer were: “Little Girl’s First Time,” “Very Young School Girls,” “Exploited Tiny,
Young, Petite Teen,” “Puberty Budding Breasts,” and “Daddy Incest.” The Defendant
offered varying theories on why the images were on his computer; however, the trier of
fact resolves all questions concerning the credibility of witnesses, the weight and value to
be given the evidence, as well as all factual issues raised by the evidence. By its verdict,
the trial court did not credit the Defendant’s versions of why the images were on his
computer.

      Accordingly, we conclude that, based upon this evidence, a rational trier of fact
could conclude that the Defendant knowingly possessed up to fifty images of a minor
engaged in sexual activity or simulated sexual activity that is patently offensive.
Therefore, the Defendant is not entitled to relief as to this issue.

                                       B. Sentence

       The Defendant asserts that the trial court erred when it sentenced him to six
months incarceration. The State responds that the trial court applied the principles of the
Sentencing Act and stated its reasons for imposing jail time as part of the sentence,
therefore, the trial court properly exercised its discretion in imposing an alternative
sentence involving incarceration. We agree with the State.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme
Court announced that “sentences imposed by the trial court within the appropriate
statutory range are to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” 380 S.W.3d 682, 708 (2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed
in light of the factual circumstances and relevant legal principles involved in a particular
case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6
S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void
of any substantial evidence that would support the trial court’s decision. Id.; State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.
Crim. App. 1980). The reviewing court should uphold the sentence “so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
                                           - 10 -
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10. So long as the trial court sentences within the appropriate range and properly applies
the purposes and principles of the Sentencing Act, its decision will be granted a
presumption of reasonableness. Id. at 707.

       Our Supreme Court extended the Bise standard to appellate review of the manner
of service of the sentence. The Court explicitly held that “the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to within-range
sentences that reflect a decision based upon the purposes and principles of sentencing,
including the questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). We are also to recognize that the
defendant bears the burden of demonstrating that the sentence is improper. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In determining the proper sentence, the trial court must consider: (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 the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2014).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:

       In recognition that state prison capacities and the funds to build and
       maintain them are limited, convicted felons committing the most severe
       offenses, possessing criminal histories evincing a clear disregard for the
       laws and morals of society, and evincing failure of past efforts at
       rehabilitation shall be given first priority regarding sentencing involving
       incarceration.

A defendant who does not fall within this class of offenders, “and who is an especially
mitigated offender or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of
                                           - 11 -
evidence to the contrary.” T.C.A. § 40-35-102(6). Additionally, we note that a trial court
is “not bound” by the advisory sentencing guidelines; rather, it “shall consider” them.
T.C.A. § 40-35-102(6) (emphasis added).

             Even if a defendant is a favorable candidate for alternative
      sentencing under Tennessee Code Annotated section 40-35-102(6), a trial
      court may deny an alternative sentence because:

      (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.

       After review, we conclude that the trial court properly applied the principles of
sentencing when it ordered a within-range sentence of six months in jail before release to
serve two years in Community Corrections. The sentencing range for a Class D felony
for a Range I offender is two to four years. In imposing the sentence, the trial court
considered the Defendant’s trial testimony regarding his military service and childhood
abuse. The trial court also noted that the Defendant had no prior criminal record. It also
considered the Defendant’s candor with the court in regard to his role in the offense and
the nature of the offense. Finally, the trial court found “[c]onfinement [ ] necessary to
avoid depreciating the serious of the offense” and that “confinement was particularly
suited to provide an effective deterrence to others likely to commit similar offenses.”
T.C.A. § 40-35-103(b).

      Accordingly, we conclude that the trial court clearly stated its reasons for the
sentence imposed, and the Defendant’s sentence is within the appropriate negotiated
range. It is apparent that the trial court considered the purposes and principles of the
Sentencing Act and did not abuse its discretion. The Defendant is not entitled to relief.

                                    III. Conclusion



                                          - 12 -
        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgments.




                                           ____________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




                                        - 13 -
