         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 12, 2005 Session

            STATE OF TENNESSEE v. MARLON AVERY BUSSELL

                   Direct Appeal from the Criminal Court for Knox County
                         No. 76849 Richard R. Baumgartner, Judge



                     No. E2004-01239-CCA-R3-CD - Filed August 23, 2005


Defendant, Marlon Avery Bussell, was indicted for first degree felony murder in count one, and for
attempted especially aggravated robbery in count two. Following a jury trial, Defendant was found
guilty of the lesser included offense of criminally negligent homicide, a Class E felony, in count one,
and of the lesser included offense of attempted robbery, a Class D felony, in count two. The trial
court sentenced Defendant as a Range I, standard offender to two years for his criminally negligent
homicide conviction and four years for his attempted robbery conviction, and ordered the sentences
to be served concurrently. The trial court denied Defendant’s request that he be granted alternative
sentencing, and ordered Defendant to serve his sentences in confinement. On appeal, Defendant
challenges the length of his sentences and the trial court’s denial of alternative sentencing. He does
not challenge the sufficiency of the convicting evidence. Following a thorough review of the record,
we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Marlon Avery Bussell.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Kevin J. Allen, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                             OPINION

I. Background

       Although Defendant does not challenge the sufficiency of the convicting evidence, a
summary of the facts and circumstances surrounding the offenses is necessary in order to address the
sentencing issues.
       Kelan Williamson testified that Defendant came over to his house on July 10, 1998.
Defendant was driving Khary Thompson’s blue, four-door Ford Taurus. Warren Griffin also arrived
at Mr. Williamson’s house. Defendant suggested that the three men rob the victim, William Reid,
because Defendant had heard that the victim had a safe in his house. Mr. Williamson’s version of
the sequence of events leading up to the victim’s death is as follows.

        Defendant told the men that he would carry a white bucket with the word “donations” written
on it and ask the victim for a donation to a local basketball league. When the victim pulled out his
wallet, Defendant would rob him at gun point. Mr. Williamson said that his assigned job was to
carry the safe to the car. Mr. Williamson said that only Defendant was armed.

        Mr. Griffin drove the Taurus to the victim’s house and let Defendant out. Mr. Griffin and
Mr. Williamson drove down the street and turned around. Mr. Griffin parked in front of the victim’s
house. Mr. Williamson got out of the car and stood by the side of the house as Defendant knocked
on the victim’s door. The victim answered the door, Defendant asked him for a donation, and the
victim stepped inside his house to retrieve his wallet. When the victim returned to the front door,
Mr. Williamson said that the victim must have seen Defendant’s gun. The victim tackled Defendant,
and the two men fell off the front porch. Defendant cried out that his knee was hurt. Defendant
managed to slide two or three feet away from the victim, pulled out his gun and shot the victim
twice, the last time in the head. Mr. Williamson helped Defendant into the car, and the men returned
to Mr. Williamson’s house.

        On cross-examination, Mr. Williamson conceded, in his first two statements to the police,
that he denied being at the victim’s house when the victim was killed. In his third statement, Mr.
Williamson said that he shot the victim. Mr. Williamson said that the police officers told him that
his bond would be reduced if he confessed to the murder. Mr. Williamson said that he wore a mask
during the killing, but he did not remember that the police had found a mask when they searched his
house. Mr. Williamson denied telling defense counsel’s investigator that the three men attempted
to rob the victim because the victim owed Defendant money from a drug deal. Mr. Williamson said
that he entered a plea of guilty to facilitation of felony murder and was sentenced to thirty-six years.

        Khary Thompson said that he lent Defendant his Ford Taurus automobile on July 10, 1998,
so that Defendant could go to a recreational center to play basketball. Mr. Thompson said that he
did not see a white bucket in the car when it was returned to him later that night, nor did he see any
blood in the car.

        Warren Griffin testified that he drove Mr. Thompson’s car to the victim’s house because
Defendant said he wanted to “holler at someone.” Mr. Griffin let Defendant out, and he and Mr.
Williamson drove around the block. When they returned to the victim’s house, the victim was
struggling with Defendant on the grass. Mr. Griffin started to drive away, but Mr. Williamson got
out of the car. Mr. Griffin left. He then heard gunshots and drove back to the victim’s house where
he picked up Mr. Williamson and Defendant. He said that Defendant was “hobbling.” Mr. Griffin



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said that he did not see a white bucket. Mr. Griffin said that he entered a plea of guilty to facilitation
of aggravated robbery as a result of the incident.

        Melissa Hansen-Petrik, the victim’s next door neighbor, heard dogs barking on the evening
of July 10, 1998, and went to her front door to investigate. She heard the victim yelling for help, but
her husband’s pick-up truck blocked her view into the victim’s front yard. Ms. Hansen-Petrik went
inside to call 911. She heard gunshots and saw a blue, four-door sedan drive slowly by the victim’s
house. The blue car returned as Ms. Hansen-Petrik was concluding her emergency call. Two men
ran toward the car, with one man limping. Ms. Hansen-Petrik was unable to see the men’s faces, but
she said that they were not wearing masks.

        Kristen Oura, the victim’s girlfriend, said that the victim had been in the yard earlier in the
evening. He came into the house to take a shower. Ms. Oura said that she noticed the victim’s
wallet on the dining room table. Ms. Oura was talking on the telephone when the incident occurred
and did not hear the gunshots.

        Larry Vineyard with the Knoxville Police Department found a white bucket on the victim’s
front porch, and a baseball cap and the victim’s wallet in the front yard. Thomas Evans, a senior
evidence technician with the Knoxville Police Department, said that some money was found inside
the white bucket, and Defendant’s fingerprints were on the outside of the bucket. Officer Evans said
that the police were not able to find any shell casings or the gun that fired the fatal shots. On cross-
examination, Officer Evans said that there were other sets of fingerprints on the white bucket which
were not identified.

        Sandra Elkins, the Knox County Medical Examiner, testified that the victim’s autopsy
revealed scrapes and abrasions on the victim’s hands, and an abrasion consistent with a bullet’s graze
above his right elbow. Dr. Elkins said that the victim was shot once in the neck and once in the top
right quadrant of his head. The bullet causing the neck wound exited his body, but the bullet from
the head wound lodged in the victim’s brain stem, causing death within seconds. There was soot and
stipple around the neck bullet wound indicating that the gun had been fired approximately twelve
inches away from the victim. Only soot was visible around the head wound indicating that the
shooter fired from a range of less than six inches. On cross-examination, Dr. Elkins said that the
neck wound would have produced a significant amount of blood, and the shooter would have blood
spatter on his clothes.

        Defendant testified on his own behalf. He said that Mr. Thompson picked him up from work
on July 10, 1998. Defendant said that he noticed a white bucket in the back of Mr. Thompson’s car,
and he had to push the bucket aside in order to sit down. Defendant dropped Mr. Thompson off at
his night job, and then drove Mr. Thompson’s car to Mr. Williamson’s house. He and Mr.
Williamson watched television and played video games. The men decided to play basketball, and
Mr. Williamson called a few friends. Mr. Griffin came over, and the men left in Mr. Thompson’s
car. Defendant said that he drove the car, and Mr. Griffin sat in the back seat holding a black bag.



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        Defendant said he thought the men were going to pick up a friend of Mr. Williamson’s for
a basketball game. Mr. Williamson gave Defendant directions to the victim’s house. When they
arrived, Mr. Williamson told Defendant to go to the front door and see if the victim wanted to play
basketball. The victim answered Defendant’s knock, and Defendant told him that some of the
victim’s friends were here to see him. Defendant turned toward the car and saw Mr. Williamson and
Mr. Griffin running toward the front porch carrying guns and masks. Defendant said the victim
grabbed him and held Defendant in front of himself like a shield. The two men fell off the porch,
and Defendant broke his kneecap. Defendant lay on the ground, holding his knee to his chest. The
victim ran toward his neighbor’s truck yelling for help, and Mr. Williamson fired the first shot. The
victim fell to the ground. Mr. Williamson knelt beside the victim and shot him in the head.
Defendant and Mr. Williamson got back into Mr. Thompson’s car, and the men drove to Mr.
Williamson’s house. Mr. Williamson called Byron Meek to tell him to return Mr. Thompson’s car,
and Mr. Meek also took Defendant home so that he could go to the hospital.

        Kenneth Bussell, Defendant’s father, said that Defendant came home with an injured knee
on July 10, 1998. Defendant told Mr. Bussell that he had injured his knee during a basketball game.
Mr. Bussell took Defendant to the hospital. He said that Defendant did not have any blood on him.

II. Sentencing Issues

        At the sentencing hearing, the State presented Defendant’s pre-sentence report and the
testimony of various members of the victim’s family concerning the impact of the victim’s death on
their lives. According to the pre-sentence report, Defendant graduated from high school and
attended Hiwassee College on a basketball scholarship for one year. Before his arrest, Defendant
was employed as a caregiver by Independent Opportunities and Sunrise Community. Since the trial,
Defendant had been employed in his grandfather’s wrecking company. Defendant’s prior criminal
history consists of two 1998 misdemeanor convictions for disorderly conduct and underage drinking.

         The trial court found that there was some evidence based on Defendant’s prior misdemeanor
convictions that he had a previous history of criminal behavior, but accorded this enhancement factor
very little weight. See Tenn. Code Ann. § 40-34-114(2). The trial court found that enhancement
factor (7), the personal injuries inflicted upon the victim were particularly great, was applicable to
Defendant’s sentence for his attempted robbery conviction but not his sentence for the criminally
negligent homicide conviction. See id. § 40-35-114(7). Significant weight was placed on the use
of a firearm to commit both offenses. See id. § 40-35-114(10). The trial court also considered the
fact that the attempted robbery offense was committed without hesitation when the risk to human
life was high. See id. § 40-35-114(11). Based on the presence of these enhancement factors, the trial
court sentenced Defendant to two years for his criminally negligent homicide sentence and four years
for his attempted robbery sentence.

       The trial court also denied Defendant’s request for alternative sentencing, stating,




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        [E]ven though this is a very short period of time, four years at [thirty] percent, in my
        judgment, even though there’s a presumption of probation, I do not believe that
        probation sends the correct message in this matter. I think that it depreciates the
        seriousness of the offense, and I think that’s the wrong message to you and to
        everybody else if I were to do that.

        The trial court stated to Defendant:

        The jury has spoken, [Defendant]. There’s nothing I can do about that. So my
        opinion doesn’t matter with regard to your guilt, but my opinion does matter with
        regard to your sentencing. I think this jury has done you . . . a favor. I mean, I don’t
        know any other way to say it.

        When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Id. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “If the trial court applies
inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of
correctness falls.” State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

        The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant’s potential for rehabilitation or treatment. Id. §§ 40-35-102, -103, and -210; State v. Smith,
735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

         As a Range I standard offender, Defendant is subject to a sentence of between two and four
years for his Class D felony conviction, and between one and two years for his Class E felony
conviction. Id. §§ 40-35-112(a)(4) and (5). In calculating the sentence for Defendant’s convictions,
the presumptive sentence is the minimum in the range if there are no enhancement or mitigating
factors. Id. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may
set the sentence above the minimum, but still within the range. Id. 40-35-201(d). If both enhancing
and mitigating factors are present, the trial court must start at the presumptive minimum, enhance
the sentence within the range as appropriate for the enhancing factors, and then reduce the sentence
as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e).

         We initially note that Defendant argues that the trial court’s determinations both as to the
length of his sentences as well as the manner of serving his sentences violate his Sixth Amendment
right to trial by jury as outlined in Blakely v. Washington, 542 U.S. —, 124 S. Ct. 2531 (2004). Our


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Supreme Court, however, has recently determined that Blakely does not impact the validity of
Tennessee’s sentencing scheme. State v. Edwin Gomez and Jonathan S. Londono, No. M2002-
01209-SC-R11-CD, — S.W.3d —, 2005 WL 856848, at *22 (Tenn. April 15, 2005), petition to
rehear denied (Tenn. May 18, 2005). Defendant, thus, is not entitled to relief based on his Blakely
issues.

A. Length of Sentences

        Defendant argues that the trial court misapplied enhancement factors (2) and (10) to both of
his sentences, and enhancement factor (7) in determining the length of his attempted robbery
sentence. Defendant does not challenge the application of enhancement factor (11) to his attempted
robbery sentence. He contends that no weight should have been given to his previous criminal
history because his convictions resulted from misdemeanor offenses rather than felonies. See Tenn.
Code Ann. § 40-35-114(2). Misdemeanor convictions alone may support application of
enhancement factor (2). See, e.g., State v. Richard Warren, No. M2001-02139-CCA-R3-CD, 2003
WL 354505 (Tenn. Crim. App., at Nashville, Feb. 14, 2003), no perm. to appeal filed (the
defendant’s three prior misdemeanor convictions support application of enhancement factor (2)).
We agree, however, with the trial court’s assessment that enhancement factor (2) should be given
little weight in the sentencing determinations.

         Defendant contends that the trial court erred in applying enhancement factor (10) based on
a finding that Defendant employed a gun during the commission of the offenses. Defendant argues
that the jury’s failure to convict Defendant of the greater offenses of attempted especially aggravated
robbery and attempted aggravated robbery leads one to the assumption that the jury found that
Defendant was not armed during the commission of the offenses. Compare Tenn. Code Ann. §§ 39-
13-402 and 39-13-403 with 39-13-401. The State argues that Defendant’s conviction of the lesser
included offense of attempted robbery does not negate the fact that the victim was killed by multiple
gunshots.

       The trial court found that,

       [t]here is no question that a firearm was used. In my mind there’s no question
       [Defendant] was involved in that in an active way, and therefore, I think the
       possession or employing [sic] of a firearm is an aggravating . . . factor, and I think
       it’s a significant aggravating factor. I place a lot of weight on that.

        In its sentencing determinations, the trial court is directed to consider the nature and
characteristics of the criminal conduct involved. Tenn. Code Ann. § 40-35-210(b)(4). Enhancement
factor (10) requires a finding that the defendant possessed or employed a firearm during the
commission of the offense. See id. § 40-35-114(10). Although there is contradictory proof as to
which man used the firearm, a firearm was undisputedly used during the commission of the crimes.
The trial court implicitly found that Defendant used the firearm. The use of a firearm is not an
element of either criminally negligent homicide or attempted robbery. See id. §§ 39-13-212(a) and


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39-13-401(a). Thus, application of enhancement factor (10) to both of Defendant’s sentences was
not inappropriate. See State v. Bobby Joe Strader, No. E1999-00132-CCA-R3-CD, 1999 WL
1023738, at *4 (Tenn. Crim. App., Knoxville, Nov. 10, 1999), no perm. to appeal filed.

        Defendant also argues that the trial court improperly considered enhancement factor (7) in
determining the length of his sentence for his attempted robbery conviction. Enhancement factor
(7) requires a finding that “the personal injuries inflicted upon . . . the victim [were] particularly
great.” Tenn. Code Ann. § 40-35-114(7). Relying on State v. Nix, 922 S.W.2d 894, 903 (Tenn.
Crim. App. 1995), Defendant argues that enhancement factor (7) is an essential element of the
charged offense of attempted especially aggravated robbery and thus cannot be used to enhance
Defendant’s sentence for his conviction of the lesser included offense of attempted robbery.

       We respectfully disagree with Defendant’s analysis. Although the indictment charged
Defendant with committing the offense of attempted especially aggravated robbery, the indictment
also necessarily charged all of the lesser included offenses of attempted especially aggravated
robbery. See Tenn. R. Crim. P. 31(c). Attempted robbery is a lesser included offense of attempted
especially aggravated robbery. See State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002).

        Only two statutory limitations are imposed upon the trial court in determining that factually
proven enhancement factors are applicable in determining the length of a defendant’s sentence. State
v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). That is, the enhancement factor must be
appropriate to the offense of which the defendant is convicted, and, secondly, the enhancement factor
must not be an essential element of the offense. Tenn. Code Ann. § 40-35-114. In considering
whether an enhancement factor is appropriate to the offense, our Supreme Court has concluded that
“a sentencing court may apply an enhancement factor based on facts underlying an offense for which
the defendant has been acquitted, so long as the facts have been established in the record by a
preponderance of the evidence.” State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). Personal injury
to the victim is not an essential element of the offense of attempted robbery. See Tenn. Code Ann.
§§ 39-12-101 and 39-13-401. Clearly, death is a “particularly great” personal injury. Thus, we
conclude that the trial court properly applied enhancement factor (7) to Defendant’s sentence for
attempted robbery.

         In summary, enhancement factors (2), (7), (10) and (11) are applicable to Defendant’s
sentence for attempted robbery, and enhancement factor (2) and enhancement factor (10) are
applicable to his sentence for the criminally negligent homicide conviction. We cannot conclude that
the trial court erred in sentencing Defendant to four years for his attempted robbery conviction and
two years for his criminally negligent homicide conviction. Defendant is not entitled to relief on this
issue.

B. Denial of Alternative Sentencing

       Defendant argues that the trial court erred in denying his request for alternative sentencing
and argues that none of the considerations relevant to this decision were warranted by the facts and


                                                 -7-
circumstances surrounding his offenses. Because Defendant does not fall within the class of
offenders for whom incarceration is a priority and is a standard offender convicted of a Class D and
a Class E felony, Defendant is presumed to be an eligible candidate for alternative sentencing. Tenn.
Code Ann. §§ 40-35-102(5) and (6). If the trial court, however, is presented with evidence sufficient
to overcome the presumption, then it may sentence a defendant to confinement Ashby, 823 S.W.2d
at 169 (Tenn. 1991). Each case is determined on its own facts and circumstances. State v. Taylor,
744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

        Based on the facts and circumstances surrounding Defendant’s offenses, the trial court found
that confinement was necessary to avoid depreciating the seriousness of the offenses and to serve
as a deterrent to both the community and Defendant himself. The trial court also mentioned the
leniency extended by the jury in convicting Defendant of the lesser included offenses of the charged
offenses.

        A trial court may determine if incarceration rather than alternative sentencing is appropriate
if the evidence shows that:

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

       (B)      [c]onfinement 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)     [m]easures less restrictive than confinement have frequently or recently been
               applied unsuccessfully to the defendant . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C). In its determinations, the trial court may also consider the
defendant’s potential or lack of potential for rehabilitation and any mitigating or enhancement factors
that are relevant to sentencing. Id. §§ 40-35-103(5), 40-35-210(b)(5); State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996). A trial court should also “consider the circumstances of the
offense, the defendant’s criminal record, the defendant’s social history and present condition, the
need for deterrence, and the best interest of both the defendant and the public” in determining
whether to grant or deny probation. State v. Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001)
(citations omitted). As noted above, a jury’s verdict of acquittal does not prevent the sentencing
court from considering a defendant’s conduct underlying the acquitted charge if proven by a
preponderance of the evidence. Winfield, 23 S.W.3d at 282-82 (Tenn. 2000).

       Defendant argues that he has many positive attributes which warrant the grant of a probated
sentence. His prior criminal history only consists of two misdemeanors for disorderly conduct and
underage drinking, and he has been gainfully employed both before and after his trial. The trial court
acknowledged these mitigating factors, but found that other considerations outweighed the factors
tending to favor the grant of probation.


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        Defendant contends that the trial court erred in denying probation based on the seriousness
of the offense, arguing that the offense was not so shocking or horrifying as to support the trial
court’s denial of alternative sentencing. If probation is denied based solely on the facts and
circumstances surrounding 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 probation.”
State v. Fields, 40 S.W.3D 435,441 (Tenn. 2000) (quoting State v. Cleavor, 691 S.W.2d 541, 543
(Tenn. 1985). In the case sub judice, an unarmed victim was lured out of his house in daylight and
shot at point blank range in his front yard, with the last gunshot fired execution style into the top of
his head. Based on the facts and circumstances surrounding these offenses, we find that the trial
court properly considered the seriousness of the crimes in its decision to deny alternative sentencing.

       The need to avoid depreciating the seriousness of the crimes, however, was not the only
consideration. This Court has previously concluded on numerous occasions that the trial court’s
determination that the jury acted with exceptional leniency is appropriate in making its findings that
a defendant’s confinement is necessary. See State v. Michael Wayne Poe, No. E2003-00417-CCA-
R3-CD (Tenn. Crim. App., at Knoxville, July 19, 2004), perm. to appeal denied (Tenn. Dec. 20,
2004); State v. J.D. Edward Ealey, No. E1999-00381-CCA-R3-CD, 1999 WL 1034649 (Tenn. Crim.
App, at Knoxville, Nov. 15, 1999), no perm. to appeal filed; State v. Samuel Braden, No. 01C01-
9610-CC-00457, 1998 WL 85285 (Tenn. Crim. App., at Nashville, Feb. 18, 1998), no perm. to
appeal filed.

        We acknowledge that the trial court referenced deterrence as a basis for denying alternative
sentencing, and that Defendant challenges the appropriateness of this finding. A trial court’s
decision to impose a sentence of confinement based solely on the need for deterrence will not be
disturbed so long as “a 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 certain crimes.” State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000). The trial court
in the instant case did not substantiate its finding that deterrence was necessary as outlined in
Hooper. Nonetheless, based on the need to avoid depreciating the seriousness of the offense,
coupled with consideration of the jury’s leniency, we find that the trial court did not err in denying
Defendant’s request for alternative sentencing and imposing a sentence of confinement. Defendant
is not entitled to relief on this issue.

                                           CONCLUSION

        After a thorough review of the record, we affirm the judgments of the trial court.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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