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State v. Moore10/22/1999
s. There was no error in declining to apply mitigating factor (3).
The defendant asserts that mitigating factor (8) applied because he was taking medication at the time and had a history of problems due to the medication. Evidence was presented that the defendant suffered serious side effects from medication. However, he offered no evidence that, at the time of the incident, his mental or physical condition significantly reduced his culpability. He was drunk, but mitigating factor (8) specifically excludes the effects due to voluntary intoxication. We agree with the trial court that mitigating factor (8) does not apply. See State v. Hoskins, No. 01C01-9805-CC-00233 (Tenn. Crim. App., Nashville, Apr. 29, 1999) (rejecting application of mitigating factor (8) for lack of proof).
Finally, the defendant argues that the trial court should have applied mitigating factor (11), that the defendant committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct. In considering this mitigating factor, the trial court stated "that is simply not the case here. This man fired at these officers, and there was a stand-off there that lasted - I thought it was more than five minutes. . . . The defendant did not act under duress." Although the trial court found that the defendant "was so drunk; I don't believe he knew exactly what took place out there that night," the court found that the defendant was aware that the visitors were peace officers. In fact, the defendant in his trial testimony admitted as much, but he denied firing at the officers. In short, the record supports the trial court's rejection of mitigating factor (11).
Taking all factors into account de novo, the five-year aggravated assault sentence is justified. The reckless endangerment sentences were minimum sentences. We affirm the lengths of the sentences imposed.
(2)
A defendant who "is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6) (1997). Our sentencing law also provides that "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 sentences involving incarceration." § 40-35-102(5). Thus, a defendant who meets criteria of section 40-35-102(6) is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
The defendant is clearly eligible for alternative sentencing in general, Tenn. Code Ann. § 40-35-102(5), (6) (1997), but, having committed a violent offense, he not eligible for placement in a community corrections program. Tenn. Code Ann. § 40-36-106(a)(2), (3) and (4) (1997). The remaining possibility for alternative sentencing would involve some form of probation. See generally Tenn. Code Ann. § 40-35-104 (1997). The defendant is eligible for probation as an alternative to confinement. Tenn. Code Ann. § 40-35-102(6) (1997). The court is required to automatically consider probation an a "part of the sentencing determination at the Conclusion of the sentencing hearing." Tenn. Code Ann. § 40-35-303(b) (1997). Moreover, the defendant is pr
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