        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                             AT KNOXVILLE                         June 8, 1999

                                                                Cecil Crowson, Jr.
                        DECEMB ER SESSION, 1998                 Appellate C ourt
                                                                    Clerk



STATE OF TENNESSEE,          )    C.C.A. NO. 03C01-9801-CC-00557
                             )
      Appellee,              )
                             )
                             )    ANDERSON COUNTY
VS.                          )
                             )    HON. JAMES B. SCOTT
JULIA JENKINS,               )    JUDGE
                             )
      Appe llant.            )    (Direct Appe al - Aggravated Assault)




FOR THE APPELLANT:                FOR THE APPELLEE:

LESLIE HUNT                       JOHN KNOX WALKUP
139 North Main Street             Attorney General and Reporter
Clinton, TN 37716
                                  CLINTON J. MORGAN
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243-0493

                                  JAMES N. RAMSEY
                                  District Attorney General

                                  JAN HICKS
                                  Assistant District Attorney
                                  Room 127, Courthouse
                                  Clinton, TN 37716



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       On September 17, 1997, Appellant Julia Jenkins pled guilty to one count

of aggravated assault. After a sentencing hearing on November 14, 1997, the

trial court sen tenced Appella nt as a R ange I sta ndard o ffender to three years of

imprison ment. Appellant challenges the trial court’s denial of probation. After a

review of th e record , we affirm th e judgm ent of the tria l court.



                                         FACTS




       On May 28, 1996, Appellant and Berl Freels spent approximately four

hours drinking at Lucky’s Lounge in Oak Ridge, Tennessee. Appellant and

Freels th en wen t to a store, purcha sed a tw elve-pac k of beer , and then went to

Freels’ residence. At some point, Appellant and Freels began arguing, and

Appellant subsequently shot Freels in the head with a .32 ca liber pis tol.

Appellant initially cla imed that Fre els ha d sho t hims elf, but s he su bseq uently

gave a statement in which she claimed that she accidentally shot Freels after she

picked up the gun from the table where Freels had placed it. At the sentencing

hearing, Appellant testified that sh e sho t Freels after he asked her to. Appellant

testified that the first time she fired the gun, it d id not g o off, bu t when Freels kept

beggin g her to sh oot him , she fired th e gun a gain an d shot him .




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                                             ANALY SIS




        Appellant contends that the trial court erred when it failed to grant

probation in this case.1 We disagree.



        Under Tennessee law, a d efend ant is e ligible for probation if the sentence

impo sed is eight years or less and further, the trial court is required to consider

probation as a sentencing alternative for eligible defendants. Tenn. Code Ann.

§ 40-35-303(a)–(b) (1997).                 However, even though probation must be

autom atically conside red, “the d efenda nt is not automatically entitled to probation

as a matt er of law.”          Tenn. Code Ann. § 40-35-303(b) (1997), Sentencing

Commission Com ments ; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.

App. 1991). Indeed, a defendant seeking full probation bears the burden on

appeal of showing that the sentence actually imposed is imp roper and th at full

probation will be in the best interest of both the defendant and the pub lic. State

v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995). When determining

suitability for probation, the se ntencing cou rt considers the following factors: (1)

the nature and circumstances of the criminal conduct involved;                                 (2) the

defen dant’s potential or lack of potential for rehabilitation, including the risk tha t,

during the period of probation, the defendant will commit another crime; (3)

whether a senten ce of full prob ation wo uld und uly depre ciate the seriousness of

the offense; and (4) whether a sentence other than full probation would provide

an effective deterrent to othe rs likely to com mit similar crimes. Tenn. Code Ann.




        1
        We note that our review on appeal is limited to the narrow question presented by Appellant of
whether the trial court erred when it failed to grant probation. Accordingly, this review does not address
the appropriateness of other sentencing alternatives.

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§§ 40-35-210 (b)(4), -103(5), -1 03(1)(B ) (1997 & Supp. 1 998); State v. Baker, 966

S.W .2d 429 , 434 (T enn. C rim. App . 1997); Bingham, 910 S.W.2d at 456.



       Although the trial court did not expressly list the factors on which it based

its decision to deny probation, it is apparent from the record that the court based

its decision on the nature of the offense and on a conclusion that pro bation would

deprec iate the seriousness of the offense. The nature and characteristics of the

criminal condu ct involved are factors that are logically related to the issue of

depreciating the seriousness of the offense. See Hartley, 818 S.W.2d at 374–75.

When these factors se rve as the only basis for denying probation, “the

circumstances of the offe nse a s com mitted mus t be es pecia lly violent, horrifying,

shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated

degree and the natu re of the offense m ust outweigh a ll factors favoring a

sentence other than con finement.” Bingham, 910 S.W.2d at 454 (citation

omitted).   The record indicates that after a verb al confrontation, Appellant

intentio nally pointed a gun at Freels’ head and pulled the trigger. When the gun

did not fire th e first tim e, App ellant in tention ally pulled the trigger again and shot

Free ls in the head. As a result, Freels is blind in his right eye, deaf in his right

ear, paralyzed on the right side of his fa ce, an d has bullet fra gme nts in his sku ll

which cannot be removed. Thus, we find the circumstances of this offense to be

sufficiently rep rehens ible and o ffensive to ju stify a denia l of probatio n.



       In addition, we conclude that Appellant’s potential for rehabilitation also

weighs against a sentence of probation. Indeed, Appellant’s prior criminal record

consists of two public intoxication convictions, two reckless driving convictions,

and one co nviction for d riving und er the influen ce of a n intoxic ant.           T his

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continuing disrespec t for the law indicates that Appellant has poor potential for

rehabilitation. Furthe r, the re cord in dicate s that A ppella nt initially denied a ll

respon sibility for the shooting by claiming that Freels had shot himself. Appellant

then admitted that she had shot Freels, bu t denied re spons ibility by claiming that

the gun had fired accidentally.         Even at the sentencing hearing when she

admitted to pulling the trigger two times be fore she shot Fre els, Appe llant

continued to maintain that the shooting was an accident that occurred only

because Freels asked her to shoot him. This Court has previously stated that

failure to accept responsibility for one’s criminal conduct reflects poorly on

rehabilitative poten tial. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App.

1996).



         Based on the circum stances of this offen se, a conclus ion that probation

would depreciate the seriousness of the offense, and Appellant’s poor potential

for reh abilitatio n, we h old that the trial co urt did not a buse its discre tion wh en it

denied probation in this case. Accordingly, the judgment of the trial court is

AFFIRMED.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE

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