# FILED
June 4, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUARY SESSION, 1997
STATE OF TENNESSEE, ) ) No. 03C01-9602-CR-00084 Appellee, )

) KNOX COUNTY ) v. ) HON. RICHARD BAUMGARTNER, ) JUDGE MICHAEL D. FRAZIER, ) ) (Attempt to commit voluntary Appellant. ) manslaughter)

FOR THE APPE LLANT: FOR THE APPELLEE: GREGORY P. ISAACS JOHN KNOX WALKUP 1 Centre Square Attorney General and Repor ter Second Floor Knoxville, TN 37902 TIMOTHY F. BEHAN Assistant Attorney Gener al RONALD A. RAYSON 450 James Robertson Parkwa y 1 Centre Square Nashville, TN 37243-0493 Second Floor Knoxville, TN 37902 RANDALL E. NICHOLS District Attorney General WILLIAM H. CRABTREE Assistant District A

ttorney City-County Buil ding Knoxville, TN 37902 SALLY JO HELM Assistant District A

ttorney City-County Buil ding Knoxville, TN 37902 OPINION FILED: _______________ AFFIRMED CURWOOD WITT, JUDGE2 OPINION

Th e appellant, Michael Frazier, appeals from the sente ncin g judgmentof the Criminal Court of Knox County. He w as tried for attempt to commit murder in the first degree and was convicted of atte mpt to co mmit voluntarymanslaughter, a Class D felony. The appel lant receiveda sentence of four years as a standard (Range I) offender. On appeal the following issues are raised: (1) sentencing at the maximum time within the range and (2) the denial o f probation.

For

reasons explained below, the judgment of the tria l court is affirmed.

The appellant was tried before a jury for the attempted first-degree murder of Robert Whedbee . The appellant testifie d he was in love with Whedbee ’s wife, Lisa Whedbee, and fearing she was be ing brutalized by he r husband, he entered the Whedbee home in the early evening hour s of June 7, 1994, planning to kill Robert Whedbee. Armed with a knife, he hid within a closet forseveral hours. In the ea rly ho urs of Ju ne 8, wi th knife in hand he entered the
room where Mr. Whedbee slept. Mr. Whedbee awoke, and a scuffle ensued. The defendant testified that bef ore he began any assault he decided to abandon the plan and retreat from the house. He testified that Robert Whedbee awoke as the appellantwas leav

ing the bedr

oom. Mr. Whedbee, however, testified he awoke and found the ap pellant standing over him, making a downwar d motion. The str uggle resulted, according to Mr. Whedbee, when he tried to fend of f the blo w and subdue the attacker. Mr. Whedb ee received very minor w ound s to his ear and throat and a more serious cut on his thumb. Thi s latter injury occ urred when Mr. Whedbee grabbed the knife during the strug gle. The appellant was acquitt ed of attempt to commit murder in both the firs t and second degrees but w as convicted of attempt to commit voluntary manslaughter.3 At the sentencing hearing, the appellant requested pr obati on and minimal sen tencing, ci ting his lack of crimi nal record and his state of mental despairat the time

of the offense. Dr. Diana McCoy, a clinical psychol ogist, testified for the defense that violence was out of character for the appellant, that he was depressed, and t hat at the time of the offense, his mental state w as impa ired due to his anxiety ov er the safety of Lisa Whedbee. In he r opinio n incarceration was inappropriate for the appellant. She further stated, h ow ever, that the appellant went to the Whedbeehome “for the purpose of killing R ob Whedbee. That was his point in going there at that time.” She stated that later he realized he couldn’t go thr ough with the crime and intended to withdraw. The appellantdid not testify at the sentencing hearing. The presentence report reflects the appellant has no prior criminal record. The trial court set the sentence at four years, the maximum in the range, and denied the appellant’s request for probation.

I. Standard of Review

When there is a challen ge to the length, range, or manner ofservice of a sentence, it is the duty of this Court to conduct a de novo review on the record with a presumption that the dete rminati ons made by the trial cour t are correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption is “conditione d upon the affirmative showing i n 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). “The burden of showing that the sentence is improper is upon the appellant.” Id. In the event the record fails to demonstrate the required consideration by the tria l court, re view of the sentenc e is purely de novo

. Id . If appellate review reflects the trial court properlyconsidered all relevant factors and its findings of

fact are adequately support ed by the record, this court must affirm1 While Moss was decided under the 1982 sentencing law, the court in

Ashby commented upon the Tennessee Criminal Sentencing Reform Act of 1989 that is controlling in the case now before us. 4 the sentence, “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

In making it s se ntencing determination, the tr ial court, at the conclusion of the sentencing hearing, d etermines the range of sentence and then determines the specific sentence and the propriety of sentencing alternativ

es by considering(1) the evidence, if any, received at the trial and the s e ntencing hearing; (2) the presentence report ; (3) the principles of sentencing and arguments
as to sent enci ng alternatives; (4) the nature and characteristi cs of the criminal conduct involved; (5) ev idence and information offered by the par ties on th e enhancementand mitigation factors; (6) any statement the defendant wis hes to make in the defendant’s behalf about se nten cing; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(b) (Supp. 1996);Tenn. Code An n. § 40-35- 103(5) (1990); State v. Holland , 860 S.W. 2d 53, 60 (Tenn. Crim. App. 1993).

In Ashby , our supreme court said: ? [A ] case-by-case approach to sentencing underlies th i s Act as a fundamental policy. An individual criminal is sentenced based on the nature of the offense and the totality of the circumstances in w hich it was

committed, including the defendant’s background .... Anycase-bycase approach will embody discretion , s ince all of the appropria te factors and circu mstances must be weighed and considered as a wh ole for the disposition of each case.” 1 State v. Ashby , 823 S.W.2 d 166, 168 (Tenn. 1991) (qu oting State v. Moss , 727 S.W.2d 229, 235 (T enn. 1986)).5 II. Length of Sentence.

The record affirmatively r eflects that the trial court con sidered the elements enumerated in Ashby and in the above-cit ed statu tes. Acco rdingly, our review is accompanied by

the presumption of correctness.Given this presumption there is ample support in the rec ord for the trial court’s determination of the sentence.
The trial judge considered the evidence presented at trial and said he had a “very clear

recollection of the facts of this case.” After hearing testimony at the sentencing hearing, the trial court referred to his consideration of the presentence report and adm itted it into evide nce. After hea ring argu men ts concerning enhancement and mitigatio n f actors, the court recesse d for a brief interval to reflect upon the sentencing determination, and then the trial j udge announced he had considered the evidence at trial, theevidence presented at the sentencing hearing, the presenten ce report , the arguments of counsel, and the principles

of sentencing. The court added, “[A]s al wa ys, again, the nature and character

of the criminal conduct involved in the particular case are amajor factor forthe court’s considerati on.” The court cited the necess ity of appropriateness of the sentence in view

of the “nature of the defendant and his backgr ound his tory, and conduct during this particular incident.” The court acknowledged th e appellant had no prior felony convi ctions but reflected that the jury verdict

was in his view “kind”to the appellant, giving him “the benefit of the doubt in this case” in find ing him guilty “o f th e least offensive criminal c onduct of which they w ere given a choice.”The trial judge expr essed his view that there was sufficient proo f to support a finding of an attempt to commit first or second-degree mur der.

The court stated, “[W]e start with presump tive minimum sen tencing” and then reviewed the enhanc emen t f actors set forth in Tennessee Code Annotated Section 40-35-114, determining that factors (2), (4), (5), (7) and (16) did6

not apply. Thecourt found factor (9), the use of a deadly weapon, and factor (12),
a willful infliction of bodily inju ry, were the only applicable enhancement factors. As to mitigating factors under Tennessee Code Annotated Section 40-35-113, the court found the pr esenc e of factor (8), a mental condition that reduced the defendant’s culpability, and rejected factors (2), (3), (11) and (12).
(a) Enhancement factors selected.

The court ap p lied two enhancement factors i n its sentencing determination. The factors the court found applicable are: (9) The defen dant pos sessed o r employ

ed a fi rearm, explosive device or other deadly weapon during the commission of the offense; [and] (12) During the commission o f th e f elony, the defendant willfully inflicted bodilyinjury upon another person, or the acti ons of the defendant resulted in the death of or serious bodily injury to a

victim or person other than the intended victim[.] Tenn. Code Ann. § 40-35-114 (9), (12) (Supp. 1996). The application of factor (9)
was conceded by the appellant and i s supported without contradiction in the record. The application of factor (12) is likewise supported by the record. Factor (12) i s appropriatewhere the defendant has either willfully inflic ted bodily inj ur y or

the defendant’s actions have resulted in serious bodily inj ury (or death). Alth ough the injuryto Mr. Whedbee’s thumb ma y not have been willfully infli cted, the court found the wound to the victim’ s ear and the scratch wo und to his neck to be willf ully inflicted bodily injuries. The court correctly appl ied enhancem e nt factors (9) and (12).
(b) Mitigating fact ors rejected.
The court declined to apply the following mitigating factors:
(2) The defendant acted under strong provocation; (3) Substantial grounds exist tending to excuse the de fendant’s2 In McKinzie Monroe Black , we found the circumstances w ere not appropriate to require the trial court to apply “double mitigation.” 7 criminal conduct, though fail ing to establish a defense; (11) The defendant, although guilty of the c ri me, committed the offense under such unusual circumsta nces that it is unlikely that a sustained intent to viol ate the law motivated hi s conduct; [and] (12) The defendant acte d under duress or under the domination of another person, even though the dur ess or the domination of another person is not sufficient to constitute a defense to the crime [.] Tenn. Code Ann. § 40-35-113 (2), (3), (11), (12) (1990).

Factors (2) and (3) . In rejecting these factor s, the trial court referr

ed t o t he jury’s decision t o acquit the appellant of attempt to commit murder and convict him only of attempt to commit v oluntary manslaughter. It found t he jury relied upon provocation to reduce the grade of the offense and found that the appellanthad alrea dy r eceived the benefit of a finding of provocati on through the jury’s verdict

.

This court reviewed a similar situation in State v. McKi nzie Monroe Black , No. 01C01-9401-CC-00006 (Tenn. Crim. App., Nashville, July 14, 1995), in which the trial court cited the jury’s application of “strong provocati on” to reduce the offense from murder to voluntary manslaughter, finding it “inappropriate that the
same factor be used as a mitigatin g factor.” Slip op. at 7-8 . This court observed that, although “essential element s of the offense” cannot also serve a s enhancementfactors, there is no prohibi tion against “do uble mitigation,” and it is permissible to use provocationas a mitigator in appropriate voluntary manslaughter
cases. 2 We need not assess the propriety of the trial court’s rationale in the case before us, however, because the record doesnot support the use of provocation as a mitigation considerati on. The appellant secreted himself in the victim’s house for several hours before the attack. He had ample opport un ity to reflect in soli tude about the actions he would take.There were no intervening stimuli

that caused or ren ewed the provocation, and the appell ant approached his selected v ictim, not8

while the latter was engaged in a ny men acing conduct, but whi le he was asleep. On these facts, provocation di d not exist, and the trial court correctly r

ejected mitigating factors (2) and (3).

Factor (11)

. In rejectingthis factor, the trial cour t relied upon the proof at trial which showed the appellant prepared for his assa ult upon t he victim by obtaining a weapon, buying sur gical gloves, th en going to the victim’s home around five o’clock p.m. to lie in wait, and significantly, that he laid in wait for approximately
seven hours until the intended victim was asleep. Pointing out that the jury’s verdict necessarilyrepudiates the defense of r enunciation

of the crime , the trial judge stated he was “satisfied that the jury was conv

inced, as am I, that when Mr. F razier entered the bedroom his intent was to kill Mr. Whedbee, and that he -- he followed through with that intent until he was stopped by Mr. Whedbee in this matter.” The trial court was ju st ified in finding these facts demonstr ated a sustained intent to violate th e law.

Factor (12) . The record supports the trial court’s conclusion that there
was no proof to support the use of this mitigation factor. The court n oted that according to appellant’s testimony at trial Li sa Whedbee did not dominate him nor cause him to attack Mr. Whedbee.
(c) Weight of the factors.

The court again referred to the presumptive sentence and obs erved that the enhancing factors “far outw eigh” the mitigating

factor. The app e llant, however, cites the foll owing comment made by the t rial judge:

Anytime an individual a ttempts to take the life of another person and engages

in that type of conduct, uses a deadlyweapon to commit that offense, it is clear in my mind that tho se factors out weigh the fact that he

-- that he has some emotional or mental problem at that particular point in time.9

The appellantasserts the first clause in the passage evinces arbitrariness such that the court below ha

s “fa iled to adhere to the principles of presumed minimum sentencing as

re qu ir ed .” We d o not agree. The trial judge’s language as cited is contextuallyinsignificant. A fair r eading of the record demonstrates the court embar ked upon a particularized ev aluation process and endeavor ed to take the “case-by-case” appr

oach authorized by the s upreme court.
Accordingly, the appel lant has failed to rebut the presumption of the correctness of the trial c ourt’s determination of the sentenc e.

III. Probation.
In determining the manner of service of the sentence , the court referred to the sentencing pur poses and considerations, and after acknowledging the appellant was elig ible for alternative sent encing, the court stated: Now, when you deal with homicide there’ s ano ther fa ctor c learly established in the case law. And that is that when the death of an individual is involved or in this case the atte mpted hom icide o f a n individual is involved, that presumption of probation is r em ove d. And, indeed, it is t he ove rwhelming obligation in that case for the defendant to convince the court that, in fact, probation shoul d be i mposed as opposed to incarceration. It’s always this cour

t’s objective and the sent encing guidelines

objective to treat defendantsfairly and justly and equally. And I attempt t o do that throughout any time I serve up here on the bench.

The appellant is clearly eligible for alternative sentencing in general, Tenn. Code Ann. § 40-35-102(5), ( 6) (Supp. 1996), and he is eligible for

probation
as a particular alternativ e to confinement. Tenn. Code Ann. § 40-35-303 (a) (Supp. 1996). Moreover, he is p resumed to be a fa vorable ca ndidate for alte rnative sentencing, Tenn. Code Ann. § 40-35 -102(6) (Supp. 1996), and the trial court is required to automatically conside r probation as a “part o f its se ntencing determination at the conclusion of the sentenci ng hearing.” § 40-35-303(b). The10

presumption of suitability for alternatives to confin em ent may be overcome by evidence to the contrary, Tenn. Code Ann. § 40- 3 5-102(6) (Supp. 1996), and furthermore, the appellant has the bu rden of establishing suitabil ity for probation. § 40-35-303(b) (Supp. 1996).

Our analysis includes the

considerations enumerated in T ennessee Code Annotated Sections 40-35-210(b) and 103(5). One of these considerations is the “nature and characteristics of the cr iminal conduct involved.” Tenn. Code Ann. § 40-35-210(b)(4) (S upp. 1996). Ashby , 823 S.W .2d at 16 9. In add ition we utilize the considerations for ordering confinement that appear in Code Section 40- 35-103(1). The only o ne of th ese which wa s cited by the trial cou rt is found in Section 103(1)(B): “Con fineme nt is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrent to others likely to commit similar offenses.” Tenn. Code Ann. § 40-35-103(1)(B) (1990). Of course, as noted above, the t rial court referred als o to the “nature and character of the criminal co nduct involved.”
(a) Deterrence.

The trial court based its denial of probation i n part upon thedeterrence clause of Section 103(1)(B). This consideration is not operative where, as here, no evidence was presented to supp ort the need for deterrence. State v. Davis , 940 S.W.2d 559, (Tenn. 1997); State v. Hartle y , 818 S.W .2d 370, 375 ( Tenn. Crim. App.), perm. app. denied (1991 ). Therefore, the denial of probation based on deterrence is not justified.

(b) Confinement necessary t o avoid depreciating the seriousness of the offense.

With the elimination of deterrence as a basi s for denying probation,11

the first clause of

Section 103(1)(B) stands as the only other basis used by the trial court for denying probation. After revi ewing the re cord, we find no other basis and conclude that, if the trial court’s denial of probation is to be sustained, it must rest solelyupon the determination that confinement w as necessary to avoi d depreci ating the seriousness of the offense. T enn. Code Ann. § 40-35-103(1)(B).

In Tennessee there is a well -recognized nexus be twe en the “nature and characteristics” of the offense and sentencing to avoid depr eciating the seriousness of the offense. The nature and characteristi cs, or circumstances, of the offense have long been reco gn ized as grounds for denying pr obation. Stiller v. State , 516 S.W.2d 617, 621 (Tenn. 1974); Powers v. State , 577 S.W.2d 684, 685- 8 6 (Tenn. Crim. App. 1978); Mattino v. State , 539 S.W.2d 824, 828 ( Tenn. Crim

. App. 197 6 ). The courts have used this rationale for denying probation often in
cases of homicide or in other cases in which the offense was violent. See Kilgore
v. State , 588 S.W.2d 567 (Tenn. Crim. App. 1979). See also Powers , 577 S.W.2d at 685-86; Mattino , 539 S.W.2d at 828. However, our supr eme court established
a rule w hereby the n ature and circumstances of the offense coul d justify a denial of probation in cases not necessarily involving homicides or violent acts. This rule providesthat the nature and circumstanc es of the offen se may serve as the sole basis for denying probation when they are “especi ally violent, horrifying, shocki ng, reprehensible, offensive, or otherwise of an excessive or ex aggerated degree; and it would have to be clear that, ther efore, the nature of the offense, as committed, outweighed all other factors... which mi ght be favorable to a gr ant of probation.

” State v. Travis , 622 S.W.2d 529, 534 (Tenn. 1981). See also State v. Cleavor , 691 S.W.2d 541, 543 (Tenn. 1985). Signific antly, “[t]his standar

d has essentially been codified in the first part of T.C.A. Secti on 40-35-103(1)(B) wh ich provides fo r confinementif it ‘is necessary to avoid depreciating the seriousness of the offense. ’” State v. Hartley , 818 S.W.2d 370, 375 (Tenn. Crim. App.), perm. app. denied (Tenn. 1991). Thus, in a proper case, probati on may be denied solely on the basis of Code Section 40-35 -210(b )(4) (when the nature and characteristics of the offense3 The Travis qualifiers are stated in the disjunctiv e, and evidence that

only one applies is sufficient to support denial of probation based upon the nature and circumstances

of the offense. See State v. Kyte , 874 S.W.2d 631, 633 ( Tenn. Crim. App.), perm. app. denied (Tenn. 1993). 12 outweigh all factors that support probation) or under Section 103(1)(B) (when they justify confinement to avoid depreciatingthe seriousness of the offense), prov ided that, under either approach, one of the Travis qualifiers is present. 3

Since the trial court i s required to consider the evidence adduced at trial, Tenn. Code Ann. § 4 0-35-211(b)(1) (Supp. 1996) , the court’s determination that the juryacted with exceptional leniency is a reasonable influence upon the court in making its finding that confinement is necessary under Section 103(1)(B). See State v. Fredrick Dona Black , No. 03C01-9404-CR-00139,slip op. at 3-4 (Tenn. Crim. App., Knoxville, Apr il 6,1995). See also Stat e v. Nealy Walter Perry , No. 89- 133-III, slip op. at 4-5 (Tenn. Cri m. App., Nashville, Aug ust 29, 1990), pe rm. app. denied (Tenn. 1990), Dwyer J., concurring and dissenting. Although the trial court did not expressly mention the Travis qualifiers in the case now before us, the basis forapplying one or more of these qualifiers appears in the record. We may look to the record to see if it sufficientl y reflects the apparent reas ons forthe lower court’s action so as to allow for meaningful a ppellate r eview. State v. Swanson , 680 S.W.2d 487, 489 (Tenn. C rim. App. 1984). See also Johnny Eu gene John son v. State , No. 01C01-9

508-CC-002

47 (Tenn. Cri m. App., Nashville, Oct ober 10, 1996), perm. app. denied (Tenn. 1997). The record in this c ase demonstrates a basis for concluding that the nature of the offense, as committed, is especially reprehensible or offensive. Assuming, arguendo, as appellant contends, the circumstances are not especially viol ent, horrifying, or shocking, the

circumstances are nevertheless grave enough to s uppo rt a finding that they ar e especially reprehens ible and/or offensive.

The appellant asserts that the trial co urt acted arbitrarily in denying probation merely because this is a case in which homici de was attempted. The trial13

court commented that it is “clear ly established in the

cas e law” that in homicide
cases the presumption of probation is inappropriat e. Although it has beenheld that “exceptional circumstances must be shown in order to support probation in a case involving the death of another person,” Kilgore v. State , 588 S.W.2d 567, 568 (Tenn. Crim. App.), perm. app. denied (Tenn. 1979), the legislature has altered the rule for offenses, such as the one now before us, in which probation is available. “[R]eliance upon the mere fact that a violent crime w

as committed in order to deny probation is ordinarily i nsufficient to justify total deni a l of probation.” State v. Ho ward Martin Adam s , No. 03C01-9403-CR-00 123, slip op . at 18 (Tenn. Crim. App., Knoxville, January 11, 1995). Indeed, “when the legislat ure p rovides probation eligibility for an inherently viole nt offense, the mere fact that the offense
was committed is an insufficient basis to deny probation.” Id

. See also Travis , 622 S.W.2d at 533-34; Hartley , 818 S.W.2d at 374. Therefore, if the trial judge denied probation merely because this probation-eligi ble offense was committed, the denial of probation for such reason alone w ould be unjustified.

In view of the record as a whole, however, we find this locution of the trial court, if imprecise, to be again contextually insignificant. The court expressly grounded the denial of probation in the evidence and the statutory considerations and principles of sentencing,focusing upon the need to avoid depreciating the seriousness of the offense. He expressly referred to the nature and characteristics of the offense and foun d this consideration to far out weigh the factors favor ing probation. The basis for this determination is apparent in the record in that the nature of the offense committed is at least especi ally rep rehe nsible and/or offensive.

Alternat ive sentencing issues mus t be determined by the facts and circumstances

of the individual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). If the trial court has considered the relevant facts and the findings are adequately supported in the record, the trial cour

t has the discretion to resolve these14

issue s, bottoming the case upon its ow n facts. State v. Taylor , 744 S. W. 2d 919 , 922 (Tenn. Crim. App. 1987). See Ashby , 823 S.W.2d at 168; Fletcher , 805 S.W.2d at 789.

We hold (1) the presumption of correctness attends this aspect of the sente ncing determination, and (2) the appel lant has failed to overcome it. Moreover, were we to stri p away the presumption of c orrectness because of the challenged phrasing, we would nevertheless find support for a de novo determination that the circumstances are especially repr

ehensible and/or offensive, such that confinement is necessary to avoid depreciating

the seriousness of the offense, thereby arriving at the same result reached by the trial court.

IV. Conclusion.

The appellanthas failed toovercome the presumption of correctness of the trial court’s judg ment that (1) thesentence shall be set at four y ears and (2) the request for probation is denied. Therefore, the judgment is affirmed.

_________________________ Curwood Wi tt, Judge
CONCUR:

________________________ Gary R. Wad e, Judge

________________________ Joseph M. Tipto n, Judge