        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                          JANUARY SESSION, 1998          April 1, 1998

                                                    Cecil W. Crowson
STATE OF TENNESSEE,           )                   Appellate Court Clerk
                                   C.C.A. NO. 01C01-9610-CC-00456
                              )
      Appellee,               )
                              )
                              )    MONTGOM ERY COUNTY
VS.                           )
                              )    HON. ROBERT W. WEDEMEYER
MATTHEW C. WELKER,            )    JUDGE
                              )
      Appe llant.             )    (Sentencing)


               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF MONTGOM ERY COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

MICHAEL J. LOVE                    JOHN KNOX WALKUP
215 South Second Street            Attorney General and Reporter
Clarksville, TN 37040
                                   LISA A. NAYLOR
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   JOHN CARNEY
                                   District Attorney General

                                   ARTHUR BIEBER
                                   Assistant District Attorney General
                                   204 Franklin Street, Suite 200
                                   Clarksville, TN 37040



OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
                                  OPINION

      The Defendant, Matthew C. We lker, ap peals as of rig ht purs uant to Rule

3 of the Tenn essee R ules of Appe llate Procedure . He was co nvicted by a

Montgom ery Coun ty jury of voluntary manslau ghter. 1 The trial court sentenced

him to six years imprisonment with the Department of Correction as a Range I,

standard offender. The trial court also impose d a fine of five thousan d dollars

($5000) and ordered the Defendant to pay restitution in the amount of nine

thousand six hundred dollars ($9600). In this appeal, the Defendant argues that

the trial court erred by failing to grant proba tion, tha t his sentence is excessive,

and that the trial court erred in imposing restitution with a sentence of

confinem ent. After reviewing the record, we conclude that on ly the D efend ant’s

third issue has merit. Accordingly, we affirm the sentence of confinement but

must reverse the order of restitution.



      Although the Defendant does not contest the sufficiency of the evidence,

a brief summary of the proof offered at trial is pertinent to our consideration of the

sentencing issues raised in this appeal. In October of 1994, the Defendant was

dating and at times living with Alanna Simmons. At that time, Simmons had two

children from a previous relationship, Brianna and Brandon Paulen. Brianna was

three years old and Brandon, the victim in this case, was approximately fifteen

months old at the time of the offense. Alanna Simmons worked long hours during

this time period. As a result, a woman by the name of Christine Johnson took




      1
          Tenn. Code Ann. § 39-13-211.

                                         -2-
care of Brianna and Brandon during the day and the Defendant took care of the

children in the evening. The Defendant was twenty years old at this time.



      On the evening of Thursday, October 20, 1994, Alanna Simmons took

Brandon to the emergency room because the child appeared to be sick. He had

been coughing and vomiting and had shown signs of decreased appetite and

lethargy since the previous day. Dr. Stephen Kent examined the victim. He

testified that the victim a ppea red to b e sligh tly ill but his appearance was

otherwise unremarkable. Dr. Kent diagnosed the victim as having bronchitis,

gastritis and possibly a viral infection. The victim was discharged after Dr. Kent

wrote a prescription.



      On the following evening, Friday, October 21, 1994, the Defendant came

to the ho me o f Jenn ifer Blair , a siste r of Alan na Sim mons, carrying the victim.

The victim was not breathing. Blair called 911 and Blair’s husb and be gan to

perform cardiopulm onary resus citation (“CPR ”) on the victim. T he De fenda nt told

Blair that the victim had choked on hamburger.           Officer Allen Klein of the

Clark sville Police Depa rtmen t respo nded to the e merg ency c all. He performed

CPR on the victim until emergency medical technicians arrived on the scene.

According to Officer Klein, the Defendant approached him and told him that he

had been babysitting and that the victim had flu symptoms. The Defe ndan t did

not mention the victim’s choking on ham burger.



      The victim was transported to the hospital. Attempts to resus citate h im

failed. During those attempts, Dr. William Shippen noticed retinal hemorrhages

in the victim. This condition led Dr. Shippen to suspect that the victim had similar

                                         -3-
tissue dam age in his brain, possibly resulting from a blow to the head or “shaken

baby syndrome .” An autopsy w as later perform ed by Dr. Ch arles Harlan. D r.

Harlan testified that the cause of death was blunt trauma to the head and

abdomen. The blunt trauma to the head resulted in subdural hema tomas on both

sides of the brain, with forty cubic centim eters (approximately eight teaspoons)

of blood pooled on each side. The blunt trauma to the abdomen ruptured the

victim’s   right adrenal g land a nd pro duce d hem orrha ging, re sulting             in

approximately one hundred seventy-five cubic centimeters of free blood in the

abdomen. The amount of blood lost to these injuries equa tes with appro ximate ly

one third of th e victim ’s blood volume, meaning that the victim had only two thirds

of the ordinary volume of blood in circulation. T his deficiency in blood volume

produced a corresponding deficiency in the provision of nutrients and oxyg en to

the victim’s body and brain. The cardiac arrest suffered by the victim on October

21, 1994, was secondary to the blood loss. According to Dr. Harlan, the blows

producing these injuries occurred between one and five days prior to the vic tim’s

death. Dr. Harlan noted that there were multiple injuries indicated and that the

injuries we re cons istent with b lows from a fist or a foot.



       In the ea rly morning hours of Saturday, October 22, 1994, shortly after the

death of the vic tim, po lice officers in terview ed the Defe ndan t. Dete ctive P hillip

Wa rd testified that the Defendant stated that the victim’s injuries could have been

caused by a fall he suffered while playing with his sister Brianna appro ximate ly

a week and a half earlier.       W ith regard to his personal circumstances, the

Defendant related that he was diabetic. His diabetes was particularly acute and

he had tro uble maintaining a proper blood sugar level. The Defendant was also

disabled due to a back injury, and had mental problems stemming from abuse he

                                           -4-
had suffered as a child. The lingering effects of this abuse included episodes

where the Defendant would go into a “fit” and strike out at whatever was around

him. The Defendant stated that he often does no t remem ber what occ urs during

these “fits.” In response to questions about whether he could have struck the

victim during one o f these “fits,” the D efend ant sta ted tha t “it was p ossib le, but

not prob able be cause he wou ld have b een exh austed after it happ ened.”



       Law enforcement officials conducted a second interview w ith the De fendant

on Monday, October 24, 1994. Detective Anthony Clark of the Clarksville Police

Department and Agent Jeff Puckett of the Tennessee Bureau of Investigation

recounted esse ntially the sam e facts . At the M onda y intervie w, the Defendant

first stated that he did not know what had happened to the victim. Police officers

explained the caus e of the victim ’s death a s reveale d by the a utopsy.          The

Defendant then stated that the victim’s sister, Brianna, had inflicted the injuries.

The officers respo nded that the y did not believe the injuries suffered by the victim

were consistent with those that could have been inflicted by his three-year-old

sister. The De fendant then stated that two da ys before the victim’s death, he had

tripped and landed on the victim’s abdomen.             He also stated that he had

accid entally struck the victim in the head while playing. Upon further questioning,

the Defendant admitted he had hit and kicked the victim to get him to leave a

room which he was cleaning. Shortly thereafter, the Defendant was placed under

arrest. At that point, he became belligerent and stated that he was lying about

having hit and kicked the victim. The Defendant requested an attorney, and the

interview ceased for that purp ose. A short time later, however, the victim asked

to spea k with th e office rs aga in and told them th at his account of hitting and

kicking the victim while he cleaned the home was the truth.

                                           -5-
      The Defen dant did n ot testify at trial. He did, however, offer the testimony

of Dr. Barry Nurcombe, a psychiatric expert. At the Defendant’s request, Dr.

Nurcombe perfor med a me ntal eva luation shortly before trial to determine the

Defe ndan t’s comp etency to stand trial an d men tal state at the time of the offense.

Dr. Nurco mbe te stified that he had first met the Defendant in 1990.             The

Defendant was referred to D r. Nurcom be by a juvenile co urt apparently because

he had set fire to a neighbor’s home.           Dr. Nurcombe conducted several

interviews and treatment periods with the Defendant in 1990 and 1991. During

that time, th e Def enda nt relate d that h e had been physic ally and s exually abused

between the ag es of five and e leven b y his m other’s boyfriend , Jerry Knig ht. The

abuse was quite extensive and was among the most severe cases Dr. Nurcombe

had ever encountered. As a result of the abuse, the Defendant was diagnosed

as suffering from a type of post-traumatic stress disorder known as intermittent

explosive disorder. Dr. Nurcombe described intermittent explosive disorder as

a disorder involving “intermittent explosion s of rage precipitate d by even ts which

are not often proportioned to the rage. In other words, the rage is much more

excessive than one would expect given the event which pre cipitates it.” Dr.

Nurcombe stated that individuals may or may not suffer from emotional disorder

between the rage explosions. During the rage explosions, individuals may be

self-injurious, may as sault others, or m ay destroy prop erty.



       The Defendant’s intermittent explosive disorder most frequently manifested

itself in the form of episodes of rage outbursts with the Defendant striking out at

everything around him. These episodes would sometimes be accompanied by

the Defendant’s hearing voices, particularly that of his childhood abuser, Jerry

Knight. Often the Defen dant wo uld have little or no me mory o f the outbu rsts

                                          -6-
imm ediate ly after the episo des. T he dis order would also m anifes t itself in the

form of self-injury, w ith the Defendant injuring himself by striking a wall or hitting

his head a gainst an object. T he De fendant had also injected himself with an

insulin overdose on more than one occasion.



       The Defendant appeared to be making progress during the therapy

sessions conducted in late 1990 and early 1991, with his episodes of rage

becoming less frequent. In early 1991, however, the Defendant encountered

Jerry Knight in a superm arket. Imme diately after this encoun ter, the episodes of

rage explosion s recurred frequ ently.



       Dr. Nurcombe interviewed the Defendant after the death of the victim.

From that interview, Dr. Nurcombe concluded that the Defendant was still

suffering from intermittent exp losive disorder . The disorder was, however, less

severe than it h ad be en in 1 990 a nd 19 91, as evidenced by less frequent rage

outbursts. Dr. Nurcombe also related a history of events leading up to the death

of the victim, as told to him b y the De fendan t. Shortly be fore mo ving in with

Alanna Simm ons in the su mm er of 19 94, the Defe ndan t saw J erry Kn ight at a

gas station.    This encounter upset the Defendant.            At the same time the

Defendant heard rumo rs that h is mother was having an affair with a younger

man. These rum ors also upse t the Defenda nt. Furthermo re, the Defenda nt’s

relation ship with Alanna Simmons was not altogether stable. Brianna Paulen

was appa rently disob edien t and d ifficult to con trol and Alann a Sim mon s did little

to discipline her. In contrast, Brandon Paulen created no difficulties and was

easy to ta ke care of accord ing to the D efenda nt.




                                           -7-
      In Septe mbe r of 199 4, the D efend ant be lieved that Jerry Knight had moved

into a trailer very near his and Alanna Simmons’ residence. He believed that he

saw Jerry Knight s taring at him in a men acing w ay from th at trailer.         The

Defendant found this circum stanc e extre mely upsetting. The Defendant’s sister

later walked dow n to the trailer to confirm this circumstance. Once there, she

encountered three men, one of whom did resemble Jerry Knight.                    The

Defe ndan t’s sister, however, “was not able to say that it was Jerry Knight.” She

asked the men if Jerry was there. One man replied affirmatively while another

man replied negatively. She left somewhat confused and returned to attem pt to

reassure the De fenda nt. Th e victim died the following month, October of 1994.



      On December 5, 1994, the Defendant was indicted on one count of second

degree murder. H e was tried befo re a Montgomery County jury from April 23 to

April 25, 199 6. After co nsidering the proo f, the jury foun d the De fendan t guilty

of voluntary m anslau ghter.      T he Defendant no w appe als to this C ourt,

challeng ing only the senten ce imp osed b y the trial cou rt.



      In his first issue on appeal, the Defendant argues that the trial court erred

by failing to gran t him pro bation. A sentencing hearing was conducted on May

24, 1996. Volun tary manslaughter is a Class C felony. Tenn. Code Ann. § 39-

13-211(b). The range of pun ishment ap plicable to Ran ge I, standard o ffenders

found guilty of Class C felonies is three to six years. Tenn. Code Ann. § 40-35-

112(a)(3). The trial court sentenced the De fenda nt to the maxim um te rm of s ix

years imprisonm ent with the De partment o f Correction as a Range I, stan dard

offender. In den ying the Defe ndan t’s request for probation, the trial court stated

as follows:

                                         -8-
             Now, the next question and ob viously the m ost impo rtant to
      Mr. We lker is whether pro bation is an option. Obviously it is an
      option. I mean, whether or not the Court is going to impose that or
      not. In looking at that the Court has to consider the fact that most
      likely Mr. Welker’s best interest would be served by proba tion with
      a mandate for continued psychiatric treatment. Society’s best
      interest in the Court’s opinion would be served by Mr. Welker
      serving his sentence with the Tennessee Department of
      Corrections. For the reason that that is just simply necessary to
      avoid depreciating the seriousness of the offense, and to provide an
      effective deterrence to others likely to commit similar offenses.
             I am not skilled at making sermons and making commentaries
      on the status that society is in today. But in th is Cou rt’s hum ble
      opinion if the Judges do not put people in the penitentiary for
      intentio nally or knowingly killing infants then I can’t image [sic] that
      that would be do [sic] anything other than depreciate the
      seriousness of this o ffense . Failing to that [s ic] wou ld certa inly
      provide no deterrenc e to others likely to commit this type of offense.

From this language, it appears that the trial court based the denial of probation

on avoiding depreciating the seriousness of the offense and providing effective

deterrence to others like ly to com mit simila r offense s. See Tenn. Code Ann. §

40-35-103 (1)(B).



      Of course , a defend ant who “is an especially mitigated or standard offender

convicted of a Clas s C, D, o r E felony is p resum ed to be a favorab le candid ate

for alternative sentencing options in the absence of evidence to the con trary.”

Tenn. Code A nn. § 40-35-1 02(6).        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 rehab ilitation, shall be given first priority

regarding sentences involving incarceration.” Tenn. Code Ann. § 40-3 5-102(5).

Thus, a defendant sentenced to eight years or less who is not an offender for

whom incarceration is a priority is presumed eligible for alternative sentencing

unless sufficient evidence rebuts the presumption. However, the act does not



                                         -9-
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 c ase. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 19 87).



      Additionally, the principles of sentencing reflect th at the s enten ce sh ould

be no greater than that deserved for the offense committed and should be the

least severe measure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should also

consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in

determining the sentence alternative. Tenn. C ode Ann . § 40-35-103 (5).



      When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennes see Cod e Annotate d section 40-3 5-103. These considerations

which militate against alternative s entenc ing includ e: the nee d to prote ct society

by restraining a defendant having a long history of criminal conduct, whether

confinement is particularly appropriate to effectively deter others likely to c omm it

a similar offen se, the ne ed to avoid depreciating the seriousness of the offense,

and the need to order confinement in cases in which less restrictive measures

have often or recently been unsuccessfully applied to the defendant. Tenn. Code

Ann. § 40-35-1 03(1).



      In determining whether to grant probation, the judge must consider the

nature and circum stances of the offense, the defe ndant’s crimina l record, his

background and social history, his present condition, including his physical and

                                         -10-
mental condition, the deterrent effect on other criminal activity, and the likelihood

that probation is in the best in terests of both the pu blic and the defend ant. Stiller

v. State, 516 S.W .2d 617, 620 (Tenn. 197 4). The burden is on the Defe ndant to

show that the sentence he received is improp er and th at he is en titled to

probatio n. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In challenging the denial of probation, the Defendant first contends that the

trial court’s reliance on deterrence as a factor in denying probation was improper.

He argues that the trial court’s finding tha t confinem ent was approp riate “to

provide an effective deterrence to others likely to commit similar offenses” was

not supported by evidence in the record.             In support of his argument, the

Defendant cites well-established principles that the finding of dete rrence within

a jurisdiction cannot be conclusory but rather mus t be su pporte d by ev idenc e in

the reco rd. See Ashby, 823 S.W.2d at 170); State v. Hartley, 818 S.W.2d 370,

375 (Ten n. Crim. App . 1991).



       W e agree w ith the De fendan t that the findin g of deterrence cannot be

mere ly conclusory but must be supported by proof in the reco rd. Ashby, 823

S.W.2d at 170. We believe, however, that the record before us does conta in

evidence supporting the trial court’s findin g that con fineme nt was a ppropria te “to

provide an effective deterrence to others likely to com mit simila r offense s.” In

particular, the trial trans cript co ntains testim ony ind icating that the victim’s sister,

Brianna Paulen, was subject to abuse by another babysitter.                   At trial, the

Defendant elicited testimony from Brianna Paulen’s mother, Alanna Simmons,

that the babysitter she employed prior to Christine Johnson and the Defendant

threw Brianna to the floor on one occasion.             Moreover, the Defendant also

                                           -11-
offered the testimony of Dr. William Moore, who treated the victim for various

ailmen ts in Augu st of 1994 , who sta ted that Alanna Simmons had reported

concerns over abuse by her babysitter to him.



      This record is similar to th e case of State v. Davis , 940 S.W.2d 558 (Tenn.

1997), in which our supreme court upheld a finding of deterrence. In Davis , the

defendant and a cod efendant we re convicted of vanda lism. Davis , 940 S.W.2d

at 559. The proof revealed that the acts of vandalism took place in the c ontext

of a labor dispute wherein the owner of the vandalized property had crossed

picket lines. Id. at 558-59. The defendant and the codefendant were me mbers

of the labor union which was on strike. Id. A witnes s obse rved the d efenda nt,

the codefendant and an unidentified person vandalizing the victim’s p roperty. Id.

at 559.   T he trial c ourt de nied p robatio n bas ed in p art on a finding that

confinement was nece ssary to deter others from committing similar offenses.

Our supreme court concluded that the record supported the finding of deterrence,

noting that there was evidence that an individual participating in criminal acts of

vandalism had es caped unpun ished. Id. at 560.



      Applying the reasoning of Davis to the case sub judice, we believe that the

record supports the trial court’s application of deterrence as a factor to be

considered in denying probation. The record in the present case indicates that

other acts of ab use w ere co mm itted ag ainst th e victim ’s sister and p otentia lly

against the victim himself. Of course, the significance of deterrence in probation

decis ions “varies wid ely with the c lass of offe nse an d the facts of each c ase.”

State v. Michael, 629 S.W.2d 13, 14-15 (Te nn. 1982). W hile we do not b elieve

that the record in the case at bar supports placing exceptional significance on

                                         -12-
deterrence, we cannot conclude that it was error for the trial judge to consider

deterrence as a factor in arriving at his decision to deny probation.



      Even more significant than deterrence, in o ur view , was th e trial co urt’s

finding that confinement was necessary to avoid depreciating the seriousness of

the offense. See Tenn. Code Ann. § 40-35-103(1)(B). We believe that the

record in this ca se fully s uppo rts the a pplication of this factor. The Defendant

argues that in orde r to deny probation based on this factor, the circumstances of

the offense must be “especially violent, horrifying, shocking, reprehensible,

offensive, or otherwise of an excessive or e xaggerated degre e.” Hartley, 818

S.W.2d at 374 (citation om itted). From our review, the circumstances of the

offense as revealed in this record are especially shocking and reprehensible.

The Defenda nt, entrusted with the c are of a fifteen-month-old child, hit and kicked

the infant in the head and abdomen multiple times. These blows produced

substantial bleeding in the victim ’s body, causing blood to pool on both sides of

the victim’s brain and in his abdomen. The blows to the abdomen ruptured the

victim’s right adrenal gland, which is well-protected deep within the human body

according to Dr. Harlan. The pooled blood placed pressure on the victim’s bodily

organs, especially his brain, and effe ctively re move d one third of th e victim ’s

blood volume from circu lation. As a result, the victim ’s bod ily organs were, over

the course of one to five days, de prived of su fficient nutrien ts and ox ygen to

susta in their functions. The v ictim eventually went into cardiac arrest and died.

Based on these circumstances, we conclu de that the trial court properly found

that confineme nt was nece ssary to avoid depreciating the seriousness of the

offense.




                                        -13-
       From our review, we believe that the trial court’s findings that confinement

was necessary to avoid depreciating the seriousne ss of the o ffense an d to

provide effective deterrence to others likely to com mit similar offenses were

supported by the record. As such, we be lieve that the application o f these factors

sufficiently rebutted the Defen dant’s presum ed eligibility for alternative

sentencing. Acco rdingly, we conc lude th at the tria l judge did no t abus e his

discretion in denying probatio n. The D efenda nt’s first issue la cks m erit. 2



       In his second issue, the Defendant argues that his six-year sentence is

excessive. He con tends tha t the trial court e rroneou sly failed to apply relevant

mitigating factors. When an accused challenges the length, range, or the manner

of service of a sentence, this court has a duty to conduct a de novo review of the

sentence with a presumption that the determination s made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned

upon the affirmative showing in the record that the trial court considered the

sentencing princip les an d all relevant fac ts and circ umsta nces." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a se ntenc e, this court must consider: (a)

the evidenc e, if any, rece ived at the tr ial and the sentencing hearing; (b) the



       2
          As part of his first issue, the Defendant also contends that the trial judge followed
an erroneous procedure in arriving at the decision to deny probation. He points to language
of the trial judge regarding the Defendant’s best interest being served by probation and
society’s best interest being served by confinement. The Defendant argues that this
language indicates that the trial court used an “ad hoc balancing test” rather than statutory
principles to deny probation. We disagree. The trial judge’s comments at the sentencing
hearing, read in full, clearly demonstrate that he was denying probation based on the
statutory factors set forth in Tennessee Code Annotated section 40-35-103(1)(B). The
language referred to by the Defendant indicates only that the trial judge was considering the
best interests of both the Defendant and the public in arriving at his sentencing decision, as
he was required to do. See Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974).

                                             -14-
presentence report; (c) the principles of sente ncing an d argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defen dant m ade on his own behalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



         If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial cou rt's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



         As we stated above, the app ropriate sentencing range for the Defendant

was three to six year s. The record revea ls that th e trial co urt app lied three

enhancement factors: 1) that the victim was particularly vulnerable because of

age; 2) that th e Def enda nt treate d or allo wed the victim to be treated w ith

exceptional cruelty during the commission of the offense; and, 3)            that the

Defendant abused a position of private trus t. Tenn. C ode Ann . § 40-35-114 (4),

(5), (15). The trial court also applied one mitigating factor, that the Defendant

acted under s trong pro vocation . Tenn. C ode An n. § 40-35-113(2). The trial court

placed great weight on all of the enhancement factors. Accordingly, the trial court

sentenced the Defendant to the maximum applicab le term o f imprison ment, six

years.




                                          -15-
       The Defe ndan t’s challenge to the length of his sentence focuses upon the

application of mitigating factors.3 The Defendant submitted a detailed sentencing

memorandum to the trial cou rt prior to the sentencing hearing. In that sentencing

memorandum, and again at the sentencing hearing, the Defendant urged the trial

court to find num erous m itigating facto rs, both sta tutory and non-sta tutory. In

particular, the Defendant suggested three statutory mitigating factors: 1) that

substantial ground s exist tend ing to excuse or justify his criminal conduct, though

failing to establish a defense; 2) that he was suffering from a mental or physical

condition that significantly reduced his culpability for the offense; and, 3) that

although guilty of the crime, he committed the offense under such unusual

circumstances that it is unlike ly that a sustained intent to violate the law motivated

his criminal c onduc t. Tenn. Co de Ann. § 4 0-35-113(3 ), (8), (11). The Defendant

also suggested a number of non-statuto ry mitiga ting fac tors un der the catch all

provision of Ten nessee C ode Ann otated section 4 0-35-113(1 3):

       (a) he never contem plated tha t his acts m ight lead to such a tragic
       incident;
       (b) he is extremely remorseful for the pain and suffering he has
       brought up on the victim’s fam ily and his own fam ily;
       (c) his character, habits, mentality, propensities, and activities
       indicate that he is unlikely to commit another crime;
       (d) he is devoted to his family;
       (e) he co operate d with auth orities to the b est of his a bility
       throughout the course of the investigation and legal proceedings;
       (f) his conduct between the offense date and sentencing date has
       been exem plary;
       (g) he lacked a criminal felony record prior to this offense;
       (h) he lacked a record of violent offenses prior to this offense;
       (I) he suffers from a k nown m ental defe ct;
       (j) he lacked a father figure during his childhood;
       (k) he ha s repea tedly volun tarily sough t menta l health trea tment;
       (l) he has a family history of physical and sexual abuse;


       3
          The Defendant first contends that the record is unclear as to which mitigating
factors the trial court applied. We believe the record is clear that the trial court applied only
one mitigating factor, that the Defendant acted under strong provocation. Tenn. Code Ann.
§ 40-35-113(2). As we will discuss later, the trial court grouped several of the factors
suggested by the Defendant under the heading of “acting under strong provocation.”

                                              -16-
       (m) he lacks substantial judgment due to his youth;
       (n) he is not a dangerous, wild, reckless or violent man and has
       attemp ted to imp rove him self;
       (o) he has potential for rehabilitation.

As we stated above, the trial court found only one mitigating factor applicable,

that the Defendant acted under strong provocation. Tenn. Code Ann. § 40-35-

113(2). The D efenda nt conten ds that the trial cou rt erred by failing to app ly all

of the mitigating factors suggested.



       In order to address the Defendant’s argument, we must first examine the

trial court’s findings with regard to mitigating factors . The tr ial judg e spe cifically

stated that he found only one mitigating factor applicable, namely that the

Defendant acted under strong provocation. Tenn. Code Ann. § 40-35-113(2).

In so finding, however, the trial court did mention other factors suggested by the

Defen dant.    Those factors de alt with the D efendant’s physical and mental

condition.    As a result, the trial judge stated that the one factor he found

applic able was “re ally two or three com bined.” It appears the factors were

combined because they all stemmed principally from the same proof offered by

the Defendant, that his culpability was lessened due to the effect his childhood

physical and sexua l abuse had on his men tal state. It further appea rs that the

trial judge grouped the factors u nder th e hea ding o f “strong provo cation ” in

recognition of the jury’s finding of “provocation” as part of the verdict of g uilt of

voluntary man slaughter.



       After carefully reviewing the record, we cannot conclude that the trial judge

erred in his application of mitigating factors. The Defendant suggested three

statutory mitigating factors, that substantial grounds exist tending to excuse or



                                           -17-
justify his cond uct, that he was suffering from a mental or physical condition that

signific antly reduced his culpability, and that he committed the offense under

such unus ual circ ums tance s that it is u nlikely a sustained intent to violate the law

motivated his conduct. Tenn. Code Ann. § 40-35-113(3), (8), (11). Under the

circumstances of this case, howe ver, ea ch of th ese th ree fac tors foc uses main ly

on a single notion, that the Defendant’s culpability was lessened due to the effect

his childhood physical and sexual abuse had on his mental state, as is best

evidenced by the p roof of h is intermittent explosive diso rder. W e believe that this

mitigating eviden ce is ad equa tely pro vided fo r in the trial c ourt’s finding of “strong

provoca tion.”



       With regard to the numerous non-statutory mitigating factors suggested by

the Defendant, we conclud e that they are either no t supported by p roof or are

included in the “strong provocation” mitigating factor.               For instance, the

Defe ndan t’s suggestion that he is extremely remorseful is not supported by proof

in the reco rd. The Defen dant did n ot testify at trial or at the sentencing hearing.

The record contains no evidence pertaining to the Defendant’s remorse. Also

unsupported by the record is the Defendant’s suggestion that his cha racter,

habits, menta lity, propens ities, and a ctivities indicate that he is u nlikely to com mit

another crime. In fa ct, the pres entenc e report ind icates that the Defe ndant,

twenty years o ld at the time o f the offe nse, h as juvenile convictio ns of theft,

burglary, arson and s hopliftin g. Furth ermo re, it appe ars tha t the D efend ant still

suffers from interm ittent exp losive d isorde r, which has b een a factor in his prior

criminal beha vior.




                                           -18-
       The Defendant asserts that he is devo ted to h is fam ily, but the record is

lacking. The p rincipa l proof p ertainin g to a s table fa milial re lationship comes from

a videotaped therapy session conducted during March of 1991 in which the

Defendant states that he has a good relation ship with his mother, his sister, and

his grandm other. G iven the leve l of proof an d the rem ote date of the session, we

do not believe the trial court erred in denying this mitigating factor.               The

Defe ndan t also a sserts that his coope ration with authorities should qualify as a

mitigating factor. Th e Defe ndant is re ferring to his voluntary s ubmis sion to

interviews with police officers after the death of the victim. The Defendant’s

argument ignores th at he ga ve conflicting accou nts of wha t produ ced th e victim ’s

injuries during his inte rviews with po lice. Alth ough the victim now c laims that his

diabetes was in part responsible for any confusion during the interviews, he has

not produced evidence of his condition at the time of the interviews.



       As yet another mitigating factor, the Defendant contends that his conduct

between the offense date and sentencing date has b een exem plary.

Unfortunate ly, the Defend ant has offered no evidence to support this claim other

than bare assertions in his sentencing memorandum submitted to and argument

before the trial court. Th e Defend ant also asse rts that he lacks a felon y record

and a violent record prior to the present offense.            T he presen tence report

indicates that the Defen dant has juven ile convictions for theft, burglary,

shoplifting and arson, dating from the age of thirteen. We fail to see how th is

record of prior offens es qualifies as a m itigating factor.



       The remaining non-statutory mitigating factors submitted by the Defendant

revolve around the lingering effects of childhood abuse on his mental state. The

                                           -19-
nature and severity of that abuse are well-documented in the record. These

additional factors, however, essentially restate the reasoning relied upon by the

trial court in applying the “strong provocation” statutory mitigating factor. As

such, we believe they were taken into account by the trial court at sentencing.



       From our review of the record, we believe that the trial court considered the

relevant principles of sentencing as well as the pertinent facts and circumstances

detailed at trial and at the sentencing hearing. Notwithstanding the Defe ndan t’s

argument to the contrary, the record establishes that the trial court followed the

proper statutory pr ocedu re in setting the sente nce. Ob viously the trial court

placed great weight upon the enhancement factors, none of which are challenged

by the Defendant on appeal. We agree with the trial court that the circumstances

of this offense are reprehensible and far outweigh the mitigating factor pertaining

to the Defe ndant’s m ental state . Accord ingly, we conclude that the Defendant

has failed to carry his burden of establishing that his sentence was impro per,

particu larly in light of the pre sum ption o f correc tness afforde d the tria l court’s

ruling. Th e seco nd issue on app eal there fore lacks merit.



       In his third issue, the Defendant argues that the trial court erred by

imposing restitution with a sen tence o f confinem ent. The record reveals that the

trial court imposed nine thous and s ix hund red do llars ($9 600) in restitution. The

trial court imposed restitution to compensate the victim’s family members for

counseling expenses already incurred or to be incurred in the future.               The

Defendant contends tha t the trial court lacked statutory authority to order him to

pay restitution to Alanna Simmons given that he was sentenced to a term of

confinem ent.

                                          -20-
       On appeal, the State concedes that the trial court did, in fact, lack statutory

authority to impose restitution.      Under the law in effect at the time of the

Defendan t’s senten cing, restitutio n could b e impo sed on ly as a con dition of a

sentence of proba tion. State v. Davis , 940 S.W .2d 558 , 561-62 (Tenn. 1997).

According ly, we conclud e, as the State co ncedes, tha t the trial court erred by

imposing restitution. We therefore reverse the judgment of the trial court insofar

as it relates to the order of restitution.



       For the reasons set forth in the discussion above, we conclude that the

Defe ndan t’s first and second issues on appeal lack m erit. Accordingly, we affirm

his six-year sentence of confinement. The Defendant’s third issue on appeal

does have merit, however, and we therefore reverse the order of restitution and

reman d this cas e to the trial co urt solely for e ntry of a judgm ent con sistent with

this opinion.



                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




                                             -21-
