State of Tennessee v. Whitney Kristina Harris

07/17/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 22, 2017 Session
STATE OF TENNESSEE v. WHITNEY KRISTINA HARRIS
Appeal from the Criminal Court for Carter County
No. 21543B Stacy Street, Judge
No. E2016-00604-CCA-R3-CD
The Defendant, Whitney Kristina Harris, was convicted upon her guilty pleas of
tampering with evidence, a Class C felony, and accessory after the fact to first degree
murder, a Class E felony. See T.C.A. §§ 39-16-503 (2014) (tampering with evidence),
39-11-411 (2014) (accessory after the fact). The Defendant pleaded guilty as a Range II
offender as a term of the plea agreement and agreed to an effective ten-year sentence.
The manner of service of her sentence was reserved for the trial court’s determination.
On appeal, the Defendant contends that the trial court erred in imposing incarceration
rather than an alternative sentence. We affirm the judgments of the trial court, and we
remand the case for correction of a clerical error on the accessory after the fact judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded for Correction of Judgment
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ., joined.
Gene G. Scott, Jonesborough, Tennessee, for the appellant, Whitney Kristina Harris.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel,
and Zachary Harris, Assistant Attorney General; Anthony Wade Clark, District Attorney
General; Janet V. Hardin and Dennis Brooks, Assistant District Attorneys General, for
the appellee, State of Tennessee.
OPINION
The Defendant’s convictions relate to her actions following the homicide of
Lonnie Townsend. The Defendant’s boyfriend and the father of her children, Timothy
Pate, was convicted of first degree murder, tampering with evidence, and abuse of a
corpse relative to Mr. Townsend’s death. The Defendant had been charged with first
degree murder along with Mr. Pate, but she testified as a State’s witness at Mr. Pate’s
trial. The State amended the first degree murder charge to accessory after the fact as part
of the plea agreement.
Relevant Evidence from Timothy Pate’s Trial
According to the facts shown at Mr. Pate’s trial, the transcript of which was made
an exhibit at the Defendant’s sentencing hearing, Mr. Pate had recently lost his job, and
the Defendant had recently given birth. Mr. Pate told the Defendant, with whom he
shared a residence, that he had called the victim to come over and that he was going to
kill the victim in order to obtain the victim’s money. Mr. Pate asked the Defendant to
use one of their children to distract the victim in order for Mr. Pate to attack the victim by
surprise. The Defendant claimed that she did not think Mr. Pate had been serious about
killing the victim. She said that she thought they could get money from their families,
that she had called charitable organizations to try to obtain assistance, and that she had
talked to her mother, who received a disability check, about living with them in order to
provide childcare so the Defendant could work.
According to the evidence at Mr. Pate’s trial, the victim came to Mr. Pate’s and
the Defendant’s home, and the Defendant sat on a sofa with the newborn child and the
victim until Mr. Pate began striking the victim with a hammer, at which point the
Defendant took the child to another room, where she remained with Mr. Pate’s and her
other child and her mother. Mr. Pate removed the victim’s wallet, took the victim’s body
into a bedroom, and rolled the body into carpeting, which Mr. Pate had cut from the floor.
According to the Defendant, after Mr. Pate killed the victim, he told the Defendant that
he would kill her if she went to the authorities. She said he also threatened to kill her
mother. The Defendant said Mr. Pate obtained $500 from the victim’s wallet. The
Defendant claimed she felt she had no choice but to assist Mr. Pate in removing the
victim’s body and evidence, including a couch and carpeting, from their home and
cleaning their home with bleach. She said she had been with Mr. Pate when they drove
around and he threw out two hammers. The Defendant claimed that she felt she had to
protect her children and her mother from Mr. Pate and said that she and Mr. Pate shared a
cell phone, which he had in his possession on the day of the homicide. She said that
although the victim’s truck was at their house, she did not know where the keys were.
The Defendant testified that the day after the homicide, Mr. Pate gave her money
and told her to go pay their electric bill and then to meet him on Spivey Mountain, where
he was going to leave the victim’s body. The Defendant testified that she went in her car
to pay the electric bill and that she had a cell phone with her. She said that she later met
Mr. Pate on the mountain, that she saw the body was no longer in the back of the victim’s
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truck, that she followed Mr. Pate to his mother’s house, where he left the victim’s truck,
and that she drove Mr. Pate and herself home. She said Mr. Pate gave her money to go to
a store to buy trash bags and bleach. She said that at this point, the scene of the initial
attack was clean but that the bedroom where the carpet had been removed had not been
cleaned. She said blood had seeped through and dried onto the flooring where the carpet
had been. She said she cleaned the floor with bleach. She said Mr. Pate’s only
participation in cleaning the house consisted of disposing of the hammers used to attack
the victim. She said that her mother had been in another room while the Defendant
cleaned the house and that her mother was often intoxicated from drug use. The
Defendant said that after the attack, she had put the hammers in the kitchen sink with
bleach and water but did not remove them from the sink. She said that the couch was
stained with blood from the homicide.
The Defendant testified that Mr. Pate had not wanted to stay at home the night
after he killed the victim and that they spent the night at his ex-wife’s apartment. The
Defendant said that they also stayed in a Johnson City motel in the days after the
homicide. She said she and Mr. Pate returned to Spivey Mountain a couple of days after
she met him on the day after the homicide because he wanted to check whether the
victim’s body had been discovered.
The Defendant testified that Mr. Pate wanted to get away from the area “until
things cooled down” on the homicide and that he concocted a story about having a job
offer in Florida in order to obtain money from his relatives. She said that she, Mr. Pate,
their children, and the Defendant’s mother went to a beach in Florida. She said Mr. Pate
told her not to contact her family. She said that she tried to be a good mother while they
were in Florida but that she was concerned for the safety of her mother, her children, and
herself. She said the Defendant communicated with people in Tennessee, that he learned
the authorities wanted to question him and the Defendant, and that the victim’s truck had
been discovered. She said she relied on the Defendant to purchase items in Florida and
that she had no cash or credit cards. The Defendant and Mr. Pate eventually returned to
Tennessee with their children and a homeless man they met in Florida, although the
Defendant’s mother remained in Florida. The Defendant said that Mr. Pate planned to
meet his ex-wife at her place of employment to obtain $20. The Defendant said Mr. Pate
stated that he was going to Erwin to kill someone to obtain money and guns and that he
wanted to become a serial killer. The Defendant and Mr. Pate were, by this time,
suspects in the victim’s homicide and were apprehended by the police when they arrived
at Mr. Pate’s ex-wife’s place of employment.
The Defendant testified that she felt safe to talk to the police because they
separated her from Mr. Pate. She said she wanted to do the right thing and tried to
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cooperate. She said she was left alone in a room at the police station for a long time, that
she became agitated, and that she spoke profanely to herself regarding the police. She
did not know that recording equipment was activated in the room. She said that she tried
to summon someone and that after an officer outside the room told her to sit and be calm,
she cursed at him. She said that once she began talking to Tennessee Bureau of
Investigation (TBI) Agent Scott Lott, she was concerned Mr. Pate might hear what she
said and about what might happen if they were not kept at the police station. She said
that she told Agent Lott everything and that she did not want to hold back anything. She
said she rode with police officers to identify the location of the victim’s body. She said
that she tried to help the officers locate the hammers but that they were not recovered in
her presence. She was unaware that a hammer was later found in the wheel well of her
car.
The Defendant testified that after she attempted to help the police find the
hammers, she gave a statement to another investigator. She did not remember that she
had been alone in a room and had talked to herself but had since learned this occurred.
She said she did not remember “every single word” of what she said. She said she had
been upset and angry at herself and remembered saying she had “f----- up.” She said she
did not say anything about killing the victim. She said that Mr. Pate told her in Florida
not to say anything if she were ever questioned about the victim’s homicide and that she
had done the opposite. After reviewing the recording, she stated that she had said, “I’ve
done f----- everything up and I failed myself.” She said she was referring to her
cooperating with the authorities and her disclosure of her participation. The Defendant
denied that she had been the person who struck the fatal blows.
The Defendant testified that when she was thirteen years old, she had been unruly
at home, that she had run away from home, and that she had caused trouble at school.
She said her parents met with her probation officer and filed a petition to have her
declared unruly. She agreed that she weighed one pound, five ounces when she was
born. She said that her father was away from home due to his work as a truck driver and
that her mother allowed her to do what she wanted. The Defendant said she had not
respected her mother. The Defendant said she was expelled after she cursed at the school
principal in eighth grade. She said she had an altercation with her mother, who hit her on
the face and chest with a belt after her expulsion, that the police responded, and that she
was charged with aggravated domestic assault, which violated her probation for a
previous unruly adjudication. She said she was hospitalized in “Woodridge” for two
weeks because she stated she wanted to kill herself. She said she had been suicidal
because she felt like she was “not good enough” and a failure. She said that her mother
had never disciplined her previously and that when her mother hit her with a belt, she did
not understand it and was angry. She said she was diagnosed with bipolar disorder and as
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having depression and anxiety issues while at Woodridge. She was given medication,
which she said was somewhat helpful but made her feel “like a zombie” and emotionless.
She said that she was placed in the State’s custody at age fourteen and that she had lived
in at least six foster homes. She said she began using alcohol at age thirteen and
marijuana at age fourteen. She said her substance abuse became “heavy” around age
fifteen to sixteen. She said she had multiple psychiatric hospitalizations between ages
fourteen and seventeen.
The Defendant testified that she was suspended from high school for fighting and
that she ran away from her foster home after a disagreement with her foster parents
relative to the suspension. She said that when she was almost fifteen years old, she ran
away from another foster home after a disagreement with her foster father. She said that
she was placed in other foster homes and that she did not feel like anyone in her
biological family cared about her. The Defendant said her mother surrendered her
parental rights for the Defendant. She said that she was charged with aggravated
burglary that occurred on her seventeenth birthday and that she may have had other
domestic violence and burglary charges. She said that her mother had been involved with
her in the burglary on her seventeenth birthday and that she had cooperated with the
authorities. She said she ran away from the group home in which she had been placed
after the aggravated burglary. She said she met two men who took her to a “trap house”
where drugs were used and prostitution took place. She said that she was taken to
another house and that she worked as a prostitute for one of the men. She said that they
eventually went to Nashville and that she left the man because she learned he was
married and she did not want to live this way. She said she called the police and told
them what had happened. She said that she was released from the State’s custody at age
eighteen and that she went to live with her biological mother and her mother’s boyfriend.
The Defendant said her mother worked as a prostitute and that the two of them posed for
photographs together.
The Defendant testified that she was hospitalized in a psychiatric facility forcibly
and against her will at age nineteen due to depression. She said she had written a letter
about wanting men to abuse, hurt, and kill her. She said that, at the time, she was
miserable in her relationship with Mr. Pate and that she did not feel like she was good
enough for her then-six-month-old daughter. She agreed this occurred about one month
before the victim’s death and that she had been hospitalized at Woodridge as a result of
the incident. She acknowledged additional psychiatric hospitalizations. She
acknowledged her history of non-compliance with her prescription medication regimen
and her tendency to seek illicit drugs when she was not taking her prescribed medication.
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The Defendant testified that she met Mr. Pate through a mutual friend, that they
drank alcohol and used drugs on the day they met, and that she began living with him the
next day. She said she had nowhere else to go. She said that their first child was born
about a year later and that Mr. Pate was a good father. She said she had not used drugs
while she was pregnant and that she used Lortab and marijuana after the child’s birth.
She said Mr. Pate had two friends who lived with them and who sold drugs. She said Mr.
Pate worked and provided for her until he lost his job. She said she was not taking
prescription medication but that she used marijuana daily. She said she and Mr. Pate
lived together for three years.
The Defendant acknowledged that she had been arrested for domestic assault
relative to an altercation with her mother. She said she had pleaded guilty and had
received one year’s probation. She had been on probation for this offense when Mr. Pate
killed the victim.
The Defendant testified that she was in jail for two years after her arrest for the
offenses related to the victim’s homicide and that she had been out of jail on bond for one
and one-half years. She said she lived with her adoptive parents. She said she had been
prescribed Lexapro for depression and anxiety but that she had not taken it for about one
month because she did not think it helped. She said she did not take any other
medications. She said she had not had any problems with law enforcement since her
release from jail.
Mr. Pate testified at his trial that he had invited the victim to the house he shared
with the Defendant for dinner and to pay the victim money they owed him. Mr. Pate
claimed he and the Defendant had been arguing about the Defendant’s having allowed
her mother to drive their car. He claimed that after the victim arrived, the Defendant left
the room, returned, began hitting the victim in the back of the head with a hammer, and
continued striking him until Mr. Pate intervened and pushed her away. Mr. Pate claimed
that the Defendant’s mother was aware of what had occurred and that he agreed to cover
up the homicide and hide the body after the Defendant’s mother said they could not allow
the Defendant to go to jail. Mr. Pate stated that he suggested hiding the body in a remote
mountain location and making it appear as if a robbery occurred. Mr. Pate claimed that
he had not planned a robbery and had removed the victim’s wallet and given it to the
Defendant without inspecting it. He claimed that he had no reason to kill the victim and
that the victim had been his best friend. Mr. Pate said that while they were in Florida, he
told the Defendant to blame everything on him to avoid their children losing both parents.
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Evidence at the Defendant’s Sentencing Hearing
At the Defendant’s sentencing hearing, the victim’s granddaughter testified about
the positive relationship she had with the victim. She said that he loved and doted on
children and that he assisted elderly people. She said that the victim had had a drinking
problem when she was younger but that his condition had improved until he began
drinking with the Defendant and Mr. Pate. The victim’s granddaughter said that at the
time of his murder, the victim had a baseball-sized tumor.
The victim’s granddaughter testified that a minister who befriended the Defendant
had been dismissed from his church after bringing the Defendant into the church to meet
the granddaughter’s son. She said she received frequent calls and text messages about
the minister and the Defendant having “inserted themselves into” her neighborhood. The
victim’s granddaughter said she and her children had to look over their shoulders when
they were in public, and she questioned the fairness of their having to change their
schedules and way of living to avoid the Defendant. The victim’s granddaughter stated
that the Defendant had never apologized to her or anyone in her family. The victim’s
granddaughter stated that in her opinion, a person should take responsibility for her
actions and not blame her poor decisions on others. The victim’s granddaughter
questioned whether the Defendant had changed since the offense.
The presentence report was received as an exhibit. It reflected that the Defendant
had an eleventh-grade education and some employment history. Defense counsel stated
that the Defendant was employed currently at McDonald’s. She reported good mental
and physical health but stated she had bipolar disorder, mood swings, depression, anxiety,
and sleeping problems. She reported alcohol and drug use and a history of psychiatric
treatment and alcohol and drug rehabilitation. She stated that her childhood had been
“dysfunctional,” that she had frequently moved in and out of homes with her parents, and
that she had been placed in the custody of the Department of Children’s Services (DCS)
when her parents surrendered their rights to her at age fourteen. She reported consistent
drug use and violence in her home as a child. She reported that she now lived with her
“adopted parents.” She reported a prior conviction of domestic assault.
In an allocution, the Defendant stated the following: She was sorry for the
victim’s death and her participation after the fact in attempting to conceal the crime. The
victim had been a good friend to her and her family, even providing a Christmas gift for
their older child when she and Mr. Pate could not afford it. The Defendant gave birth to
her second child with Mr. Pate ten days before the victim’s murder. The week after the
birth, Mr. Pate lost his job. On the day of the victim’s murder, Mr. Pate told the
Defendant that the victim was coming to their house and that Mr. Pate was going to kill
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him. She told Mr. Pate that all they had to do was ask the victim or someone else for
help. The events that took place in her home were a nightmare, and Mr. Pate threatened
to kill her if she contacted the police or ran away. She assisted Mr. Pate afterward
because she was scared and wanted to protect her children and her mother.
Brianne Murray, the Defendant’s case officer for bond supervision, testified that
the Defendant had reported as instructed for fourteen months. Ms. Murray said the
Defendant voluntarily completed “moral recognition” therapy and relapse prevention
classes. Ms. Murray said the Defendant had passed monthly drug screens except on the
previous day, when she tested positive for marijuana. Ms. Murray said the Defendant
had been forthcoming about smoking marijuana with a friend and had stated she had used
marijuana due to stress about “the things that were coming up.” She said the Defendant
had been forthcoming about relevant events and had “grown a lot” in the time the
Defendant had been supervised. Ms. Murray said she had been concerned about the
people with whom the Defendant associated because the Defendant reported that her tires
had been slashed when the Defendant came outside of a house in which she had been
visiting. Ms. Murray said this incident occurred on February 13, 2016, and the
sentencing hearing was on March 4, 2016. Ms. Murray said that the Defendant had been
legally adopted as an adult by Mike and Robin Hyder and that the Defendant’s children
were in DCS custody. Ms. Murray did not think the Defendant had been permitted to
visit her children since her arrest. In Ms. Murray’s opinion, the Defendant would be
“very successful” on probation.
The Defendant’s voluminous psychiatric records were reviewed in camera by the
trial court. The records had been subpoenaed by Mr. Pate in the proceedings against him.
Although they were not received as an exhibit at the Defendant’s sentencing hearing, the
court stated it had reviewed them at counsel’s request and referenced the contents of the
records in its findings.
The trial court applied two mitigating factors, the Defendant’s assistance to the
authorities in uncovering the offense committed by another person or in detecting or
apprehending another person who committed the offense, and the Defendant’s assistance
to authorities in locating or recovering any property or person involved. See T.C.A. § 40-
35-113(9), (10) (2014). The court rejected two mitigating factors proposed by the
defense: the Defendant’s suffering from a mental or physical condition that significantly
reduced her culpability for the offense, and the Defendant’s acting under the duress or
domination of another person. See id. § 40-35-113(8), (12). In rejecting the latter, the
court noted that although the Defendant might have been afraid, initially, of Mr. Pate, she
had the opportunity to call the authorities when he left their home to dispose of the
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victim’s body but continued to clean the scene, and when she went to Florida with Mr.
Pate.
The trial court found that the Defendant’s criminal history, consisting of a
domestic assault conviction, was not extensive, and that this weighed in favor of granting
an alternative sentence. Relative to the Defendant’s psychiatric records, the court noted
that the Defendant had a history of not taking her medications and that she had a history
of violent outbursts. The court said that although a history of mental health concerns
would normally weigh in favor of granting an alternative sentence in order to provide the
opportunity for treatment, the Defendant tended to start out well but not follow through.
The court said the Defendant’s mental health concerns weighed “slightly” in favor of
alternative sentencing. The court expressed concern relative to the Defendant’s social
history as an adult, noting that she began “running around with Mr. Pate” around age
eighteen, using drugs, having children, and being incarcerated. The court found that the
Defendant’s social history weighed against granting alternative sentencing. The court
was disturbed by the Defendant’s actions and character before her release on bond and
found that they weighed “slightly” against an alternative sentence. The court said that
before learning of the Defendant’s recent marijuana use, the court would have weighed
the Defendant’s potential for rehabilitation as high but that as a result of the marijuana
use, the court weighed the factor “only very slightly” in favor of an alternative sentence.
Similarly, the court weighed the Defendant’s prospects of abiding by the terms of
probation “slightly” in favor of granting an alternative sentence. In considering whether
the interests of society were protected from possible future criminal conduct by the
Defendant, the court expressed concern relative to the Defendant’s choice of associates,
her criminal history, and her past violent outbursts, but it nevertheless concluded that the
risk of future criminal conduct was not great. In considering whether measures less
restrictive than confinement had frequently or recently been applied unsuccessfully to the
Defendant, the court noted the Defendant’s recent pretrial incarceration of two years and
her positive drug screen after her release. The court concluded that this factor weighed
slightly in favor of alternative sentencing. In considering whether a sentence of full
probation would unduly depreciate the seriousness of the offenses of accessory after the
fact to first degree murder and tampering with evidence, the court weighed this factor
heavily against the Defendant. The court found no evidence to support a conclusion that
confinement was necessary or particularly suited to provide an effective deterrent.
The trial court recounted, in detail, the facts of Mr. Pate’s trial. It then made the
following findings:
And all of the things that I talked about that weigh slightly in favor of the
granting of alternative sentencing for [the Defendant] and all of the good
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that she’s done and . . . the right path that she’s on, this court finds that they
are outweighed by the facts and circumstances of this case. In order for me
to deny alternative sentencing for a defendant based solely upon the facts
and circumstances of the crime I must find and I’m going to quote from the
. . . case law now. I must find that the circumstances of the offense as
committed must be “especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive, or an exaggerated degree and that
the nature of the offense must outweigh all other factors favoring an
alternative sentence.” Now, I’m not saying that [the Defendant] is being
sentenced for First Degree Murder because she’s not. She’s being
sentenced for . . . Tampering with Evidence and Abuse of a Corpse. 1 But,
what I find is the facts and circumstances surrounding her conduct in
committing these offenses, and I’m not . . . doing this because the state
decided to cut a deal with [the Defendant] and she got the benefit of . . .
getting a First Degree Murder charge dismissed, I’m finding that her
participation in this crime, her carrying the body out, the cleaning the
apartment while he’s away dumping the body on Spivey Mountain, she
could have called authorities. To clean that to such an extent they could
find no blood, to spend a day or two it took them to get ready, to pack and
then go to Florida and this court had to . . . look at fifty-some photographs,
or more while she’s laying in her bathing suit laughing on the beach while
[the victim’s] body deteriorates on Spivey Mountain. The state hammered
those photographs on Mr. Pate, but this court finds that you were in those
photographs, too. And those factors in the court’s mind are so great that
they outweigh all other factors in this case. And for that reason I find that
this particular offense was horrifying, shocking, reprehensible and if there
was ever conduct that would be shocking or reprehensible in relation to a
Tampering with Evidence, or Abuse of a Corpse I can’t think of one that
would be more so than this case. To have that man killed, clean up the
crime scene and leave his body to rot on a mountain while you go to the
beach that’s shocking to this court to the extent that it outweighs all other
factors. For those reasons your request for alternative sentencing is denied.
That . . . includes the denial of full probation, that included the . . . factor
that the court must look at Alternative Community Corrections. And so for
1
The court incorrectly stated that the conviction offenses were tampering with evidence and
abuse of a corpse, although the conviction offenses were tampering with evidence and accessory after the
fact to first degree murder. The court was clear in its statement, however, that it relied upon facts related
to the offenses to which the Defendant pleaded guilty and not upon the facts related to the homicide.
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the same reasons as I denied full probation I’ll also deny split confinement.
So, the request for probation is denied. The court orders the ten year
sentence served.
The Defendant contends that the trial court erred in imposing incarceration rather
than an alternative sentence. She argues that the facts do not support the court’s finding
that the circumstances of the case were horrifying, shocking, and reprehensible and
outweighed all of the other factors. The State contends that the court did not abuse its
discretion. We agree with the State.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).
Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
We note, first, that the Defendant pleaded guilty as a Range II offender. As such,
she was not entitled to the presumption that she was a favorable candidate for an
alternative sentence. See T.C.A. § 40-35-102(6)(A) (2014). With regard to probation, in
particular, a defendant bears the burden of establishing suitability for this sentencing
alternative. See id., § 40-35-303(b) (Supp. 2012) (amended 2013, 2014, 2016); State v.
Bingham, 910 S.W.2d 448, 455-56 (Tenn. Crim. App. 1995), overruled on other grounds
by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).
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The Sentencing Reform Act provides:
(1) Sentences involving confinement should be based on the following
considerations:
(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[.]
Id., § 40-35-103(1)(A)-(C) (2014). If probation is denied solely on the basis of the
circumstances of the offense, they “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 a sentence other than probation.
State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991) (citations omitted).
This court has recognized, “This standard has essentially been codified in the first part of
T.C.A. § 40-35-103(1)(B) which provides for confinement if it ‘is necessary to avoid
depreciating the seriousness of the offense.’” Id. at 375.
In the present case, the trial court conducted a detailed review of the facts and the
relevant sentencing principles and considerations. Although it noted some factors which
favored the Defendant’s bid for an alternative sentence, it found that the circumstances of
the offense were “horrifying, shocking, [and] reprehensible” to such a degree that a
sentence of incarceration was appropriate. The court noted, specifically, that it was
relying upon the facts surrounding the conviction offenses and not upon the facts of the
homicide itself. The court was particularly compelled by the Defendant’s participation in
meticulously cleaning the scene, her failure to take advantage of the Defendant’s absence
from the home as an opportunity to call the authorities, her failure to contact the
authorities in the time before she and Mr. Pate left town, and her preparation for and
participation in the beach vacation when Mr. Pate wanted to leave town following the
homicide.
Upon review, we conclude that the trial court did not abuse its discretion in
concluding that the circumstances of the offense outweighed the factors which favored
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probation. We conclude, as well, that the court did not abuse its discretion when it was
compelled by the seriousness of the offense to conclude that any form of alternative
sentencing was inappropriate. See id. The record supports the court’s factual
determinations regarding the underlying circumstances of the offense upon which it
relied. The Defendant is not entitled to relief on this basis.
Upon review of the accessory after the fact judgment, we note that it does not
include the statutory citation to the conviction offense. Clerical errors in judgments may
be corrected at any time. Tenn. R. Crim. P. 36. We, therefore, direct the trial court to
correct the judgment to include the statutory citation to Code section 39-11-411.
In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed. The case is remanded for correction of the clerical error in the
accessory after the fact judgment.
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ROBERT H. MONTGOMERY, JR., JUDGE
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