             IN THE COURT OR CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                           NOVEMBER 1997 SESSION
                                                         February 20, 1998

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,                )
                                   )
                    APPELLEE,      )
                                   )           No. 03-C-01-9603-CC-00103
                                   )
                                   )           Carter County
v.                                 )
                                   )           Arden L. Hill, Judge
                                   )
                                   )           (Sentencing)
ELIZABETH R. CAMPBELL,             )
                                   )
                   APPELLANT.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

Donald E. Spurrell                      John Knox Walkup
Attorney at Law                         Attorney General & Reporter
128 East Market Street                  500 Charlotte Avenue
Johnson City, TN 37604                  Nashville, TN 37343-0497
(Trial and Appeal)
                                        Peter M. Coughlan
Stacey L. Street                        Assistant Attorney General
Attorney at Law                         450 James Robertson Parkway
630 Elk Avenue                          Nashville, TN 37243-0493
Elizabethton, TN 37643
(Trial Only)                            David E. Crockett
                                        District Attorney General
                                        Route 1, Box 99
                                        Johnson City, TN 37641

                                        Kenneth C. Baldwin
                                        Assistant District Attorney General
                                        Carter County Courthouse Annex
                                        Elizabethton, TN 37643

                                        Steven R. Finney
                                        Assistant District Attorney General
                                        Carter County Courthouse Annex
                                        Elizabethton, TN 37643



OPINION FILED:_______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION

       The appellant, Elizabeth R. Campbell (defendant), was convicted of criminally

negligent homicide, a Class E felony, by a jury of her peers. The trial court, finding the

defendant to be a standard offender, imposed a Range I sentence consisting of a $3,000

fine and confinement for one (1) year in the Department of Correction. In this court, the

defendant contends the trial court should have suspended her sentence and placed her

on probation or imposed some form of alternative sentence. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issue presented for

review, it is the opinion of this court that the judgment of the trial court should be affirmed.

       The defendant and Glen Campbell, the victim, were married on the date in question.

The record reflects the defendant and the victim had frequent arguments. As a general

rule, the arguments involved money. On numerous occasions the defendant became

violent and physically attacked the victim. No one ever saw the victim retaliate. The

defendant admitted to a friend the victim had never hit her.

       On April 17, 1994, the defendant told several people if the victim did not obtain

another job making more money she would “blow his brains out.” She stated to these

people the victim’s salary was insufficient to pay the couple’s financial obligations and she

wanted a better life for herself.

       The victim made arrangements to purchase a four-wheeler recreational vehicle from

his employer on April 29, 1994. He took the vehicle to his father’s home and began riding

it. He permitted some of his friends to ride it. The defendant arrived later that afternoon.

The victim and the defendant began to argue. The victim gave the defendant $150

according to one witness, and $120 according to the defendant, to pay the couple’s

financial obligations. While the victim was holding the couple’s seven month old child, the

defendant kicked the victim in the groin. Later, the victim gave someone money to

purchase pizza for supper.

       When the defendant and the victim reached their residence, they continued to

argue. The defendant removed her clothes from the closet and threw them on the bed.

She told the victim she was going to leave him. The defendant testified the victim became

violent, struck her several times, and subsequently grabbed her hair and threw her on the

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bed. He then sat on top of her and used his knees to pin the defendant’s arms against the

bed. The defendant told the victim she really was not going to leave and she loved him.

The defendant stated the victim told her he was either going to kill her or kill himself.

        The victim retrieved a .12 gauge shotgun from the closet and nitromagnum shells

from the dresser. When the victim placed the shotgun at the end of the bed, the defendant

stated she moved the gun down a hallway and eventually hid the shotgun underneath a

blanket lying on the floor in the living room. The victim eventually came into the living room

and asked the defendant where she had placed his shotgun. His foot eventually hit the

shotgun, and the victim retrieved the gun. He sat on a couch, placed the shotgun between

his legs, and aimed the gun at his face. He could not reach the trigger with his finger. He

obtained a fly swatter and attempted to activate the trigger with the loop end of the fly

swatter.

        The defendant testified she again told the victim she loved him and she would not

leave him while kneeling on the floor near his feet. She asked the victim to place the

shotgun back on the shelf in the closet. According to the defendant, she placed her hands

on the wooden stock or butt of the shotgun and attempted to take the shotgun from the

victim. The shotgun discharged. The victim was shot near the middle of his chest. The

pellets did massive damage to the victim’s heart and left lung, and several pellets

penetrated the aorta, one of the major arteries. The victim died within seconds after being

shot.

        The defendant was twenty-three years of age when she was sentenced. One child

was born to the defendant’s marriage to the victim. The child was two years of age on the

date of the sentencing hearing. The defendant graduated from high school, and she has

a stable work history. The presentence report reflects the defendant has never been

arrested, and she has not engaged in criminal behavior other than assault and battery

committed against the victim on several occasions.

        When an accused challenges the manner of serving a sentence imposed by the trial

court, it is the duty of this court to conduct a de novo review on the record with a

presumption that “the determinations made by the court from which the appeal is taken are

correct.” Tenn. Code Ann. § 40-35-401(d) (1990 Repl). This presumption is “conditioned



                                              3
upon the affirmative showing in the record the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial

court in sentencing the accused or to the determinations made by the trial court which are

predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.

App. 1994). However, this court is required to give great weight to the trial court’s

determination of controverted facts as the trial court’s determination of these facts is

predicated upon the witnesses’ demeanor and appearance when testifying.

       In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the trial and sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,

(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)

any statements made by the accused in her own behalf, and (h) the accused’s lack of

potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103

and 210 (1990 Repl.); State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app.

denied (Tenn. 1987).

       The party challenging a sentence imposed by the trial court has the burden of

establishing the sentence is erroneous. Sentencing Commission Comments to Tenn.

Code Ann. §40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311. In this

case, the defendant has the burden of illustrating the sentences imposed by the trial court

are erroneous.

       In this case, the defendant is entitled to a presumption, rebuttable in nature, that she

is a favorable candidate for alternative sentencing unless disqualified by a provision of the

Tennessee Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-102(6)

(1990 Repl.). She was convicted of a Class E felony, and sentenced as a standard

offender.

       The trial court refused to grant the defendant probation or some other form of

alternative sentence. The court based its decision on the following grounds: (a) the nature

and circumstances of the offense, Tenn. Code Ann. § 40-35-210(b)(4) (1990 Repl.); (b)

avoiding depreciating the seriousness of the offenses, Tenn. Code Ann. § 40-35-103(1)(B)



                                              4
(1989); and (c) the deterrent effect confinement would have upon residents of Carter

County. Tenn. Code Ann. § 40-35-103(1)(B) (1989).

      The trial court properly considered the nature and circumstances of the offense.

Here, the defendant and the victim constantly argued. The defendant apparently became

violent when she was angry because she physically attacked the victim on numerous

occasions in the presence of several individuals. No one ever saw the victim retaliate with

violence toward the defendant. The end result of the constant bickering and the physical

attacks was the death of the victim. These circumstances also support the denial of an

alternative sentence predicated upon deterrence. See State v. Davis, 940 S.W.2d 558,

560 (Tenn. 1997). Furthermore, the granting of an alternative sentence would result in

depreciating the seriousness of the offense. Id.

      This court concludes the defendant has failed to establish the judgment of the trial

court was erroneous. Therefore, the judgment of the trial court should be affirmed.




                           _________________________________________________
                                    JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
       PAUL G. SUMMERS, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




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