### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Remanded by

Supreme Cour

t October 16, 2000
STATE OF TENNESSEE v. CHESTER LEBRON BENNETT
Appeal from the Criminal Court for Hamilton County Nos. 216721 - 216725 Stephen M. Bevil, Jr., Judge

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

This case pres ent s an app eal to t his cou rt a fte r rem and by o rder of th e Tennessee Supr eme Court. The Appellant, Chester Lebron Bennett, pled guilty to five counts of criminal exposure to HIV and
was sentenced to five concurrent four-year D e partmen t of Correction sentences. This court, on direct appeal, remanded the case to the trial court for consideration of alternative sentencing. See State
v. Chester Lebr

on Bennett , No. 03C01-9810-CR

- 00346 (Tenn . Crim. App. at Knoxville, July 28, 1999), perm. to appeal granted , (Tenn. Oct. 16, 2000). Subsequent to this court’s decision, the supreme court released its decision in the case of State v. Daryl Hooper , No. M1997-00031-SCR-11- CD (Tenn. at Nashville, Sept. 21, 2000) ( for publication ). I n State v. Daryl Hooper , the court announced

new sentencing considerations regarding the need for deterrence

as grounds for denying
an alternative sentence. In light of its decision in State v. Daryl Hooper , the court reman ded the case to this court for reconsideration. See State v. Chester Lebr on Bennett , No. E1998-00614-SC-R11- CD (Tenn. at Knoxville

, Oct. 16, 2000). A

fter revisiting

this issue under

the standards announced in State v. Daryl Hooper , we affirm t he trial cou rt’s denial of alternat ive sentenc ing.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Affirme

d.

D AVID G. H AYES , J., del ivered the opinion of the court, in which J OHN E VERETT W ILLI AMS , J., joined. J OHN H. P EAY , J., not participating.

Ardena J. Garth, District Pub

lic Defender, a

nd Donna Robinson Mil

ler, Asst. Public

Defender, for the Appellant, Che

ster Lebron B ennett.
Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Erik W. Daab, Assistant Attorney Ge

neral, William H. Cox I

II, Distr ict Attorney Ge

neral, and Claire

H. Brant, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION ON REMAND-2-

The Appellant, Cheste

r Lebron Be

nnett, pled guil

ty to five counts of crimina l exposure to HIV (Human Immunodeficiency Virus), a class C felony. See T ENN

. C ODE A NN

. § 39-13-109(a)(1) (1997). The plea agreement provided that the Appellant's sentences would run concurr ent ly; however, both the length and manner of service of the sentences were submitted to the trial court for determination. Finding that the seriousness

of the offense and the need for deterrence warranted a sentence of total confinement, the trial court denied any alternative sentencing option and sentenced the Appellant to five f

our-year sentences to be se

rved in the Depar

tme nt of Cor rection. The Appellant appealed and thi

s court reverse

d the trial court's s ente ncing decision, finding that the record failed to reflect

proof sufficien

t to necessitate a

sentence of tota

l confinement. Accordingly
we c oncluded that the trial court erred by failing to consider alternatives to a se ntence of total confinement. See Statev. Chester Le bron Bennett

, No. 03C01-9810-CR-00346 (Tenn. Crim. App. at Knoxville, Jul. 28, 1999). In finding the sentencing decision erroneous, this court relied upon prior case law in conc

luding that the re

cord faile d to demonstrate that t

he incarcerat

ion would "provide an effective de

terrent to others

likely to commit similar o ffenses." T ENN

. C ODE A NN

. § 40- 35-103(1)(B) (1997). The State then file d an application f

or permission to ap

peal to the suprem

e court. After granting permission to appeal, the supreme court remanded this matter to our court for reconsideration of the issue of alte rnative sentenc

ing in light of its r

ecent opinion in Statev. D aryl Hooper , No. M1997-00031-SCR-11-CD (Tenn. at Nashville, Sept. 21, 2000) ( for publication ), which was decided

approximately eighteen months after this court's reversal of the matter sub judice

. See State v. Chester Lebron Bennett , No. E1998-00614-SC-R11-CD (Tenn. at Knoxville, Oct. 16, 2000). State v. Daryl Hooper

In State v. Dary

l Hooper , N o. M1997-00031-SCR-11-CD, our supreme court examined inconsistencies in the application of “deterrence” by sentencing courts when used to deny alternative sentencing as p rov ide d by T ENN

. C ODE A NN

. § 40-35-103(1)(B ). In an atte mpt to reconcile th

ese inconsistencies,

the court held that, although "the record must contai n some proof of the need for deterrence. . . ," because of the imprecise

science of deterrence, the decision of the sentencing court that confinement is necessary based on a need for deterrence will be presumed correct on appe

al "so long as any rea

sonable person lo

oking at the entire record could conclude that (1) a need to deter similarcrimes is present in the part icu lar com mun ity, jurisdiction, or in the state as a whole, and (2) incarceration

of the defend ant may rationally serve as a deterrent to others similarly situated and likely to commit similar crim es." State v. Daryl Hooper , No. M1997-00031-SCR-11-CD ( footnote omitted)

. T o "ensure gre

ater consistenc

y in this aspe

ct of sentencing " and to "facil itate mo r e meaningful appellate review," the court specifically

enumerated five

factors to be considered when deciding whether

a need for dete

rrence is present and whether incarceration is "particularly suited" to achieve that g

oal: 1) Whether other inc

idents of the charg ed offense are increasingly prese nt in the community, jurisdiction, or in the state as a whole.-3-

2) Whether the defe

ndant's crime

was the result of intention al, knowing, or r

eckless
con duct or was otherwise

motivated by

a desire to profi

t or gain from th

e crimina l behavior.
3) Whether the defendant's crime and conviction have r

eceived substan

tial publicity beyond that normally expected in the ty pical case.
4) Whether th

e de fendant was a me

mber of a crimina

l enterprise, or

substantially encouraged or assisted others in achieving the criminal objective. 5) Whether the defe

ndant has previou

sly engag ed in criminal con

duct of the same type as the offense in question, irrespective of whether such cond uct resulted in previous arrest

s or convictions.

Statev. Daryl Hooper

, No. M1997-00031-SCR-11-CD. In addition to these fac tors, the court emphasized that the five factors are neither exhaustive n or concl usive. Id. In other words, the sentencing court may consider additional non-enumerated factors provided that (1) the sentencing court specifically recites these factors on the rec ord and (2) these additional factors are supported by " at least some proof." Id. Additionally, in concluding the need for deterrence exists, t h e sentencing court need not find that all five factors are present. Id.
Need for Deterr

ence in the Pre

sent Case

The Appellant's convictions arise from five sepa ra te, consensual, and unprotected sexual encounters with the same female victim between April 29, 1997, and May 3, 1997. The victim

was first alerted to the Appellant’s HIV status when she discovered medication that he inadvertently left at her home. When she questioned him about the medication, the Appellant informed her that it was part of his treatment f

or lung cancer

. Shortly ther

eafter, th e vic tim doubt ed the Appel lant's explanation and contacted a pharmacist. The pharmacist informed her that the medication was for treatment of HIV/AI

DS. The victim confronted the Appellant with the information and he finally admitted that he was HIV positive.

The thirty-one-year old A ppellant testified that he had contracted HIV through a sexual rela tionship with a former girlfriend who failed to tell him of her infection with the virus . Th e Appellant did not learn of

his HIV status until August 1996. The Appellant admitted that he did not inform the victim of his HIV status because "[he] didn't want to deal with the rejection" and he was in denial reg arding his infection. Fearful for her safety, the victim immediately terminated her relationship

with the Appellant. Five months later, the Appellant married Allene Bennett, whom he had known for five years. Before their marri age, the Appellant advised Ms. Be nne tt that he was infected with HIV. Upon de novo review of the record and affording the presumption of correctness

to the trial court’ s finding regarding deterrence, we cannot conc lude, under the guidance provided by th e-4-

supreme court in Sta te v. Daryl Hooper , that the trial court acted unreasonably in ordering confinement

based on deterrence grounds. There is little doubt from the record that the Appellant’s cri mes were the result o

f intentional and k

nowing conduct i

n order to satisfy

his sexual d

esire s without regard

to the well-being of the victim. See State v. Daryl Hooper , No. M1997-00031- SCR11-CD (factor (2)). Additionally, testimony at the sent en cing hearing revealed the common behavioral patterns of persons inflicted with the HIV virus. One common behavior is the problem accepting one’s HIV positive status. The “denial” is more likely than not the result of the societal “stigma” placed on AI

DS victim s and the desire to avoid the “stigma.” This general reaction of denial combined with society’s general ignorance of the prevalence

of the virus in

today’s soc

iety will inevitably result in increased incidents of the offense charg ed in the present case. See Statev. Daryl Hooper , No. M1997-00031-SCR-11-CD (factor (1)). F inally, the record at the sentencing h earing also indicates tha t the Appellant’s c

ase was given p

ublicity by

the media

beyond tha

t normally expected in the typical case. See State v. Daryl Hooper , No. M1997-00031- SCR-11-CD (factor (3)). Under the pronouncement of our supreme court in State v. Daryl Hooper , we conclude that the evidence is sufficient to support the Appellant’s incarceration based solely upon deterrence grounds.

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

___________________________________ DAVID G. HAYES, JUDGE