             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE

                               AUGUST 1999 SESSION
                                                                  FILED
                                                                  January 18, 2000

                                                                 Cecil Crowson, Jr.
                                                               Appellate Court Clerk
STATE OF TENNESSEE,                             )      No.M1998-00600-CCA-R3-CD
                                                )      C.C.A. No. 01C01-9809-CR-00377
      Plaintiff/Appellee,                       )
                                                )      Wilson County
v.                                              )
                                                )      Honorable James O. Bond, Judge
DAVID P. NEAL,                                  )
                                                )      (Voluntary Manslaughter)
      Defendant/Appellant.                      )




FOR THE APPELLANT:                              FOR THE APPELLEE:

V. MICHAEL FOX                                  PAUL G. SUMMERS
Bruce, Weathers, Corley, Dughman                Attorney General & Reporter
  & Lyle
315 Deaderick Street                            GENERAL DOUG HALL
First American Center, 20th Floor               Assistant District Attorney
Nashville, Tennessee 37238-2075
                                                GEORGIA BLYTHE FELNER
                                                Counsel for the State
                                                Criminal Justice Division
                                                425 Fifth Avenue North
                                                Nashville, Tennessee 37243-0493




AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE


                                       OPINION
      The appellant, David Neal, referred hereinafter as the “defendant,” appeals as of

right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. As a result of a
Wilson County jury finding the defendant guilty of voluntary manslaughter, the trial court
imposed a sentence of four and one-half (4½) years in the Department of Correction,

denying the defendant’s application for full probation.

       The defendant presents three issues for appellate review:
       1.     Whether the trial court erred in applying enhancement factor
              (1), Tenn. Code Ann. § 40-35-114, to enhance the defendant’s
              sentence for his two arrests of driving under the influence of
              intoxicant subsequent to his conviction for voluntary
              manslaughter?
       2.     Whether the trial court erred in applying enhancement factor
              (6), Tenn. Code Ann. § 40-35-114, to enhance the defendant’s
              sentence based upon the amount of damage to the personal
              property belonging to the victim being particularly great?

       3.     Whether the trial court erred in denying probation to the defendant?

       After a review of the entire record, the briefs of the parties, and applicable law, we
AFFIRM the trial court’s judgment.

                                FACTUAL BACKGROUND

       The defendant was indicted by the Wilson County Grand Jury for the offense of
murder second degree, involving the death of his roommate, W ally F. Haynes, on

November 3, 1996. On November 12, 1997, a jury found the defendant guilty of voluntary

manslaughter. The record does not contain a transcript of the actual facts surrounding the

death of Wally Haynes. The sentencing hearing occurred on January 21, 1998. The pre-

sentence report filed in this record, sets out the defendant’s version of the offense, from

which we quote in pertinent parts:

       Me and Wally had gone out to the Chute and Wynona’s bar. We had a
       mostly normal night. On the way home he was angry about something. I
       never really knew why he was angry to start out with. Then I told him that he
       was either going to love life or love cocaine and he slammed on the brakes
       and slammed the car into park and got out. Then I drove home. On the rest
       of the way home he was pulling on his hair and making animal noises, ripped
       the rearview mirror off the windshield. I tried to remain calm and finally got
       home. When we got home, Wally was still in this state of mind and we got
       into an argument. I tried to leave and he grabbed me and threw me on the
       couch and cut my air off. I fought him off by pulling on his hair, pushing,
       kicking. He flew into a rage and started crashing furniture. I tried to leave
       again and he grabbed me again and was holding my face down in the
       cushions of the couch. He told me “your [sic] not leaving here under your
       own power.” “[Y]ou’ll be carried out first.” I pushed him off a second time
       and went to the bedroom. I had only seconds to grab my gun. When I
       turned around he was standing just inside the doorway. I managed to get
       around him and tried to leave. He prevented me from doing so by coming
       up behind me and threw me down. We got into another physical struggle
       and he told me a second time he was going to kill me. When I broke free of
       him I fired. The first shot did'nt [sic] stop him and I fired another shot. That’s
       the one that killed him. It was not my intention to kill him. I did'nt [sic] want
       any of this to happen at all. I did'nt [sic] call 911 right then because there
       was no time. After he was shot I paniced and did'nt [sic] know what to do so
       I went to my mothers [sic] where 911 was called.

       On a recorded statement given to the police, the defendant can be heard giggling.
                                 SENTENCING HEARING

       Ms. Betsy Jakalski, a probation officer for Wilson County, identified a pre-sentencing


                                               2
report she compiled for the defendant’s sentencing hearing. The pre-sentence report

includes the victim’s family impact statements and the defendant’s version of the criminal

offense. Ms. Jakalski testified in a records check on the defendant that she did not find
any felony convictions but did find some misdemeanor arrests. On May 4, 1993, the

defendant entered a plea of guilty to no driver’s license, reduced from an arrest for driving

on a suspended license, receiving a fine of $50.00. On May 10 and May 24, 1993, the
defendant had two arrests for driving on a suspended license dismissed. On November

6, 1996, the defendant made restitution for a worthless check, which charge was nol

prosed. At the time of the sentencing hearing, Ms. Jakalski testified that the defendant had
two driving under the influence of intoxicants pending action of the Davidson County Grand

Jury. These arrests occurred while the defendant was released on bond on April 30, 1997,

and June 8, 1997, from his present conviction. Ms. Jakalski testified that the defendant
advised her he was HIV positive with a suppressed immune system. Ms. Jakalski verified

this diagnosis with a local medical hospital.

       Brook Charlton, niece of the victim, testified regarding her feelings about her uncle,
Wally Haynes. Ms. Charlton testified as to her and her brother’s loving relationship with

their uncle from their childhood and the devastating affect his death had on them. Ms.

Charlton testified that she had no malice for the defendant and observed the sadness the

defendant had caused his family. However, Ms. Charlton is very angry with the defendant,

since she will no longer be able to talk and see her uncle at Christmas. Ms. Charlton
advised the trial court that the defendant should pay for killing her uncle, and he should

receive the maximum sentence of six (6) years.

       Mrs. Vaynell Charlton, sister of the victim, testified that she believed her daughter,
Brook, did a very good job in summing up the witness’s feelings. Mrs. Charlton stated that

she loved her brother very much and approached the trial with compassion for the

defendant and his family. However, after listening to the evidence at trial, Mrs. Charlton
was at a loss to explain the actions of the defendant in shooting her brother. Mrs. Charlton

testified that the family did not receive any of her brother’s belongings or know what

happened to them. Mrs. Charlton believed that the defendant should be held accountable

for what he had done.
       Mrs. Jessie Haynes, mother of the victim, testified that she filed a victim impact

statement, and her loss was so devastating that it could not be put into words. Mrs.

Haynes expressed some doubts about how the defendant killed her son. However, Mrs.
Haynes testified that she was sorry for the defendant, but that the defendant is still alive

with his family. Mrs. Haynes described her son as sweet, gentle, caring, loving and


                                                3
      generous. Mrs. Haynes advised the trial court that the defendant should take responsibility

      for what he had done and not be patted on the back. As to her son’s personal effects, Mrs.

      Haynes testified she had only received her son’s stethoscope. Mrs. Haynes stated that
      she did not approve of her son’s and the defendant’s lifestyle.1
             The defendant testified that he was deeply hurt by what he had read and seen of

      his offense. The defendant stated that he loved the victim and described the victim as a
      caring and good person. The defendant asked the victim’s family to find forgiveness in

      their hearts so that all could move on with their lives. As to the incident, the defendant

      testified:
             I never planned on anything like this ever happening in my life, and if I could
             go back and change it, I would, but I can’t. I never dreamed in my fartherest
             dreams that anything like it would ever happen. The things that happened
             that day were violent, they happened very fast, and I did what I had to do to
             save my own life.
             The defendant testified that it had been a very hard year for him with a lot of praying

      and a lot of crying. The defendant advised the trial court that he had returned to church

      in an attempt to rebuild his life. As to the personal effects of the victim, the defendant
      testified that he turned over a watch, rings, and a nursing license to the Public Defender.

      As to his employment history, the defendant testified that he had worked at various jobs

      and was presently employed at Luxury Linens as a cashier. In cross-examination, the

      defendant testified that, on the night of the incident, he and the victim had been drinking.

      The defendant stated that he had been arrested twice for driving while under the influence
      of alcohol while on bond. The defendant stated the arrests were not for violent acts or

      drug-related. He also stated that his alcohol level registered very low when he was

      arrested for DUI. At the time of the sentencing hearing, the defendant was living with a
      Joseph Vincent but denied he was in a homosexual relationship with Vincent.

              Mrs. Darlene Neal, mother of the defendant, testified that her son is very remorseful

      about what had happened. Her son cries a lot, is unable to sleep, and is not functioning
      very well. As a result of this incident, the defendant had some difficulties on his job. Mrs.

      Neal believed that her son fully complied with the conditions of probation, in that he was

      really trying to do better. Mrs. Neal stated that her son did not advise her of his DUI

      arrests.
              Mr. Ben Neal, brother of the defendant, testified that he is a youth minister at a

      church in Marietta, Georgia. Mr. Neal and the defendant have discussed the offense

      several times, and the defendant has expressed remorse for this incident. Mr. Neal


         1
           The victim and the defendant were living together in a homosexual
relationship.

                                                    4
believes his brother is on a positive track and needs to enter into counseling. Mr. Neal

believes this counseling is compelling for various reasons, specifically about his brother’s

homosexuality. He testified that he found it difficult to believe his brother would commit a
violent act and advised the trial court that the defendant has a very good support system

in his immediate family, uncles, aunts, grandparents, and a father who lives in Dallas,

Texas. Mr. Neal believes that the defendant would comply with the conditions of probation.
       Carol McDonald testified that she is a four year friend of the defendant and that he

is one of the best friends she has ever had. Ms. McDonald has never seen any violence

in the defendant. She believes that the defendant was acting in fear of his life when he
killed the victim. She stated that the defendant called her after the incident, crying and

upset, and needed to be assured that Ms. McDonald was not mad at him. Ms. McDonald

assured the trial court that she would assist the defendant in complying with the conditions
of probation.

       Carol Bass testified that she had known the defendant since he was a teenager,

while a youth coach at the College Street Church of Christ. She testified that she lost
contact with the defendant until a year ago when he came back to church. The defendant

would come by her home, talk about what happened, and appeared to be very sorry for

what had happened. Ms. Bass does not consider the defendant a threat to the community

or mankind.

       Nan Smith testified that she is a customer of the Luxury Linen store where she met
the defendant. Ms. Smith testified that there was something about the defendant that

caused her to reach out to him, because she saw him as a broken person. The defendant

advised Ms. Smith that he was living in darkness, along with people he was around, and
that something horrible had happened. Ms. Smith testified that the defendant told her he

killed a man and encouraged the defendant to find the forgiveness in Jesus Christ.

       Frank Neal, III, testified that he is the father of the defendant and presently lives in
Dallas, Texas. Mr. Neal testified that he and the defendant’s mother divorced in 1983 and

the defendant lived with him in Texas until 1986, when he returned to live with his mother

in Lebanon, Tennessee. Mr. Neal expressed some doubts about the evidence or lack

thereof that convicted his son. Mr. Neal advised the trial court that he had talked to the
victim by phone on two occasions and met the victim once. Mr. Neal did not approve of

his son’s lifestyle. Mr. Neal testified that the defendant is not a violent person, nor did he

ever intend to be, and would not be a violent person in the future. Mr. Neal sought mercy
from the trial court and described his son as working, attributing to society, paying taxes,

and a member of the community.


                                              5
                             SENTENCING CONSIDERATIONS

         The defendant asserts that the trial court was in error for applying two enhancement

factors to impose a sentence of four (4) years and six (6) months in the Department of
Correction. The State disagrees and would argue that the trial court should have applied

an additional enhancement factor.

         When a defendant complains of the imposition of his or her sentence, we must
conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). Therefore, the burden showing that the sentence is improper upon the appealing

party. Id. The presumption that determinations made by the trial court are correct 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); State v. Smith, 898 S.W.2d 742, 745 (Tenn. Crim. App.
1994).

         If appellate review reflects that the trial court properly considered all relevant facts

and its findings of fact are adequately supported by the record, this Court must affirm the
sentence “even if we would have preferred a different result.” State v. Flechter, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an

appropriate sentence, the trial court must consider: (1) the evidence, if any, received at the

guilty plea and the sentencing hearing; (2) the pre-sentence report; (3) the principles of

sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics
of the criminal conduct involved; (5) evidence and information offered by the parties on

enhancement and mitigating factors; (6) any statements the defendant wishes to make in

the defendant’s behalf about the sentencing; and (7) the potential for rehabilitation and
treatment. Tenn. Code Ann. § 40-35-103(5); State v. Holland, 860 S.W.2d 53, 60 (Tenn.

Crim. App. 1993).

         From our review of the record, we find that the trial court considered the sentencing
principles and guidelines as required by the Tennessee Sentencing Reform Act of 1989.

Thus, our review is with a presumption of correctness on the part of the trial court. Ashby,

823 S.W.2d at 169; Smith, 898 S.W.2d at 745.

         Since the defendant was found guilty of voluntary manslaughter, the presumptive
sentence of this Class C felony, Standard Offender, is three (3) to six (6) years. Tenn.

Code Ann. § 40-35-112(a)(3). If enhancement factors exist but there are no mitigating

factors, then the trial court may set the sentence above the minimum in that range but still
within the range. Should both enhancement and mitigating factors exist, the court must

start at the minimum sentence in the range and enhance the sentence within the range as


                                                6
appropriate for the enhancement factors. The trial court shall then reduce the sentence

within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(d),

(e) (1990).
        In determining the defendant’s sentence, the trial court found two enhancement

factors applicable: (1) that the defendant had a criminal behavior in addition to those

necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); and (2) the
personal injuries inflicted upon the victim or the amount of damage to property sustained

by or taken from the victim was particularly great, Tenn. Code Ann. § 40-35-114(6). The

trial court found no mitigating factors requiring a reduction of the sentence to the minimum.
The defendant asserts that the trial court was incorrect in relying upon pending charges for

driving under the influence for the purpose of enhancement. The record is clear, the two

accusations of driving under the influence pending against the defendant had not been
resolved at the time of the sentencing hearing, but these pending charges occurred after

the defendant’s conviction in this cause. In applying enhancement factor (1), the trial court

held:
        The defendant has a previous history of criminal conduct or convictions and
        subsequent really, of the DUI charges, drinking and driving, this type thing
        since then, although he’s not convicted of it, that’s still behavior that you look
        to, doesn’t have to be a conviction, but that’s part of it. What you do before
        and after is part of it, the offense. And the offense occurred on November
        3rd[,] 1996, that he was tried here for, and in April and June of '97 he was
        arrested twice for the drinking and driving violation. And again that just goes
        to the weight of what we’re doing here, the fact of his conduct and the type
        things I might expect from him in the future based on the sentencing hearing
        that I have to go through.

        The defendant cites that the holding of State v. Buckmeir, 902 S.W.2d 418, 424
(Tenn. Crim. App. 1993), as controlling. In Buckmeir, this Court held that the trial court

improperly applied as an enhancement factor the fact that a co-defendant had pending

criminal charges, which were evidence of criminal behavior under Tennessee Code
Annotated § 40-35-114(1). The evidence in the record established that there was no

evidence that these charges against the co-defendant were anything more than charges.

The co-defendant had not been convicted of any pending charges and is presumed
innocent until convicted. However, from our review of the record, the facts in this cause

are distinguishable from those in Buckmeir. The pre-sentence report reveals that the

defendant has three (3) misdemeanor arrests in 1993 for driving on a suspended license,

all within a 60 day period. Two charges were dismissed, and the defendant pled guilty to
no driver’s license. Also, the defendant was arrested for a misdemeanor worthless check

in 1996, which was nol prosed upon restitution. While on bond from a conviction of

voluntary manslaughter, the defendant was arrested for two (2) DUI’s occurring within 60

days of each other. Although the defendant does not have any felony convictions, he does

                                                7
have a history of driving violations, and the defendant made a conscious decision to drink

and drive, even to the point of driving under the influence of alcohol, resulting in two arrests

within 60 days of each offense. We find these actions on the part of the defendant to
constitute criminal behavior and that the trial court was justified in applying this

enhancement factor. See State v. Carrico, 968 S.W.2d 280, 288 (Tenn. 1998); State v.

Burl Jarrett, No. 02C01-9710-CC-00418, 1998 WL 518136 (Tenn. Crim. App. Aug. 21,
1998). We affirm the trial court’s judgment in the application of this enhancement factor.

       The defendant contends that the trial court erred in applying enhancement factor

six (6) in that the personal injury inflicted upon and the property damage sustained by the
victim was particularly great. The State submits that this enhancement factor can apply

when the sentimental value of the property of the victim is great, although the monetary

value is nominal. However, the State fails to cite any legal authority to support this issue.
       In applying this enhancement factor, the trial court held:

       Well, there’s no doubt about personal injury inflicted, and also the amount of
       property involved. You know, it doesn’t have to be a dollar value for
       someone, but little things like this stethoscope coming in a little late today,
       this type thing, billfold missing, jewelry missing. Something could have great
       value without being worth a penny[.] [I]t doesn’t have to be a monetary
       value.


       We agree with the defendant that, when ones kills another, such as in voluntary

manslaughter, that great personal injury occurs to the victim. Therefore, personal injury

to the victim is an element of the offense of voluntary manslaughter and may not be used,
in and of itself, to enhance a sentence. Tenn. Code Ann. § 39-13-211(a). Also, the word

“victim” as used in Tennessee Code Annotated § 40-35-114 is limited in scope to a person

or entity that is injured, killed, had property stolen, or had property destroyed by the
perpetrator of the crime. State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994).

The family of the victim was concerned that they had not received some personal property

of the victim. The defendant testified that he turned some personal items of the victim over
to the Public Defender, his lawyer. It would appear that the personal property of the victim

had little monetary value but great sentimental value to the mother of the victim. We agree

with the language in Raines, 882 S.W.2d at 384, that such sentimental loss of property

would result in an automatic enhancement of a sentence based on this factor. We find that
the trial court was in error in applying enhancement factor (6) in the facts of this case.

       The State in its brief urges this Court to apply enhancement factor (9), Tennessee

Code Annotated § 40-35-114, that the defendant possessed or employed a firearm,
explosive device or other deadly weapon during the commission of the offense. In denying

the State’s request, the trial court found:


                                               8
       And he did possess a firearm and, of course, he could have killed without a
       firearm, but I think that’s included in the offense. That’s the reason he
       doesn’t have three aggravating factors, because I think that’s contemplated
       within the law itself of the way the death occurred.

       Since it is the duty of this Court to conduct a de novo review of the sentencing

record in this cause, with a presumption of correctness, we can consider the same
sentencing guidelines as required by State v. Ashby, 823 S.W.2d 166 (Tenn. 1991). Thus,

if the record reflects that the trial court failed to find an applicable enhancement factor, this

Court has jurisdiction to so find. State v. Pearson, 858 S.W.2d 879, 884-85 (Tenn. 1993).
As in a conviction for murder second degree, the use of a firearm is not an essential

element of that offense. It is the same for voluntary manslaughter. State v. Butler, 900

S.W.2d 305, 312-13 (Tenn. Crim. App. 1994); State v. Raines, 882 S.W.2d 376, 385
(Tenn. Crim. App. 1994). We find that enhancement factor (9) is applicable to these facts.




                                               9
                                       PROBATION

       The defendant asserts that the trial court erred in denying him probation. The State

contends that the record supports the trial court’s judgment in denying probation.
       A defendant is eligible for probation if the sentence received by the defendant is

eight (8) years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-

303(a). 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 in the absence of

evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume

that a defendant sentenced to eight (8) years or less and who is not an offender for whom
incarceration is a priority, is subject to alternative sentencing. State v. Goode, 956 S.W.2d

521, 527 (Tenn. Crim. App. 1997). However, although a defendant may be presumed to

be a favorable candidate for alternative sentencing, the defendant has the burden of
establishing suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn.

Crim. App. 1996). Even though probation must be automatically considered by the trial

court, “the defendant is not automatically entitled to probation as a matter of law.” Tenn.
Code Ann. § 40-35-303(b).

       In determining whether to grant or deny probation, a trial court should 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 the

defendant and the public. State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995);
State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

       The defendant was convicted of voluntary manslaughter, a Class C felony, and

sentenced as standard offender to four (4) years, six (6) months. Accordingly, the
defendant is presumed to be a favorable candidate for probation. Tenn. Code Ann. § 40-

35-303(b). In denying probation, the trial court was concerned that the defendant left his

mother’s home and roomed with David Vincent. The defendant was HIV positive, living in
a possible homosexual relationship, and spreading HIV to some innocent party. The trial

court believed that this relationship could be reckless endangerment, if the defendant could

give this disease to another without telling that person ahead of time, and, thus, exposing

them to a possible death sentence. The trial court acknowledged it could not determine
if the defendant was truthful about his association with Vincent. Further, the trial court

expressed concern about the defendant’s actions immediately following the death of the

victim. The defendant, after shooting the victim, allowed the victim to lay there without
summoning assistance. The defendant went to his mother’s home in order to come up

with a “good story.” The trial court commented on the defendant’s tape recorded statement


                                             10
given to the police in which the defendant could be heard laughing throughout the

statement.   The trial court dismissed this as nervous laughter, which negated the

remorseful testimony of the defendant at the sentencing hearing.
       The defendant strongly contends that the trial court erred in denying him probation

for being HIV positive and failing to disclose such disease prior to sexual activity, which

violates the defendant’s right to equal protection under the law. Further, the defendant
contends that the defendant’s criminal history does not in any way infer that his

homosexuality or HIV positive status creates a risk to society. We disagree with the

defendant that the defendant’s HIV positive disease does not create a potential health
problem for society. The General Assembly has enacted statutes covering persons

infected with human immunodeficiency virus (HIV), more specifically Tennessee Code

Annotated § 39-15-516, Aggravated Prostitution and Tennessee Code Annotated § 39-15-
521, HIV testing of persons convicted of sexual offenses-release of test results. Although

the defendant, in this cause, does not fall within the elements of these criminal statutes,

his relationship, if continued, with any unsuspecting person is of public interest.
       We believe that the trial court properly considered the facts surrounding the death

of the victim, expressing that the defendant could have easily been found guilty of murder

second degree, that rehabilitation was not likely in that the defendant had two DUI’s

pending, and defendant's lack of sufficient remorse made him unsuitable for probation.

We agree. This issue is without merit.
       The trial court’s judgment is affirmed.




                                            11
                         L. T. LAFFERTY, SENIOR JUDGE



CONCUR:




JOE G. RILEY, JUDGE




DAVID G. HAYES, JUDGE




                        12
