            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE             FILED
                          JUNE SESSION, 1999          July 2, 1999

                                                             Cecil Crowson, Jr.
                                                            Appellate C ourt
                                                                Clerk


STATE OF TENNESSEE,           )
                              )    No. 03C01-9810-CC-00375
      Appellee                )
                              )    JEFFERSON COUNTY
vs.                           )
                              )    Hon. Richard R. Vance, Judge
WILLIAM MOORE,                )
                              )    (Aggravated Assault)
      Appellant               )



For the Appellant:                 For the Appellee:

Lu Ann Ballew                      Paul G. Summers
Asst. Public Defender              Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725                Clinton J. Morgan
                                   Assistant Attorney General
Edward C. Miller                   Criminal Justice Division
Public Defender                    425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   Alfred C. Schmutzer, Jr.
                                   District Attorney General

                                   James L. Gass and
                                   Charles Murphy
                                   Asst. District Attorneys General
                                   Sevier County Courthouse
                                   Suite 301
                                   Sevierville, TN 37862



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                       OPINION



       The appellant, William Moore, appeals the sentencing decision of the

Jefferson County Criminal Court following his June 1998 guilty plea to one count of

aggravated assault, a class C felony. Specifically, the appellant contends that the

trial court erred by ordering him to serve his three year sentence in the Tennessee

Department of Correction.



       After a review of the record, we affirm the judgment of the trial court.



                                     Background



       During the afternoon hours of April 19, 1994, the appellant, the owner of Bill’s

Auto Sales in Knoxville was joined by several friends and “had a little party” at the

office of his used car lot. The appellant became very intoxicated and, a friend, Larry

Brewer, drove him to his residence in Strawberry Plains which he shared with his

girlfriend, Brenda Collins.



       At approximately 7:00 p.m., Robert Taylor, Ms. Collins’ insurance agent,

traveled to the Moore-Collins’ residence for the purpose of collecting a premium on

an insurance policy. At the time of his arrival, Larry Brewer and Billy Anderson,

friends of the appellant, were also at the appellant’s residence. Billy Anderson

approached Mr. Taylor’s vehicle. After Mr. Taylor had identified himself as Ms.

Collins’ insurance agent, Billy Anderson informed him of the appellant’s intoxicated

condition, the appellant’s recent argument with Ms. Collins, and that Ms. Collins was

not at home at the time. Mr. Taylor responded that he would “be back later.” As Mr.

Taylor was turning his vehicle around in the driveway, he noticed the appellant

“shaking a chrome plated pistol in the air.” “[J]ust as [he] turned out of the

driveway,” the appellant fired the pistol and “the round came through the windshield.


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. . [and] hit the seat,” missing Mr. Taylor by inches. Mr. Taylor drove to a nearby

residence where he notified local law enforcement officers.



        On September 20, 1994, the Jefferson County Grand Jury returned an

indictment charging the appellant with one count of aggravated assault by use of a

firearm. On June 24, 1998, the appellant entered a guilty plea to this charge.1

Pursuant to the negotiated plea agreement, the appellant received a three year

sentence as a range I offender. The manner of service of the sentence was

submitted to the trial court for determination.



        A sentencing hearing was held on September 17, 1998. The State

introduced two presentence reports into evidence, one prepared in October 1994

and the second submitted September 1998. Both reports indicate that the appellant

was forty-eight years old at the time of the offense, fifty-two years old at the time of

sentencing. His marital status varied during the time between the date of the

offense and the sentencing hearing. At the time of the offense, the appellant was

divorced from his first wife and living with Brenda Collins. When the second

presentence report was prepared, he was in the process of divorcing his second

wife, Tina Newcom, and was living with his girlfriend, Debra Hill. By the time of the

sentencing hearing, the appellant was married again.



        Although the appellant had been the proprietor of Bill’s Auto Sales in

Knoxville since 1972; in 1994, he was forced to relinquish his interest in the

business due to medical problems. At the time of the sentencing hearing, the

appellant was receiving food stamps and was in the process of applying for

disability. The appellant’s medical history reveals that the appellant suffers from

“severe carotid artery disease . . ., seizure disorder, alcoholism, depression and

        1
          The record indicates that the four year delay between indictment and entry of guilty plea
was the result of the appellant’s medical conditions and his failure to appear for court on June 24,
1996, and “on a number of [other] occasions . . . .” In fact, “there was a period for about a year
that there was a capias outstanding for [him].” The capias was served on January 8, 1998.

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anxiety order, hypertension, hyperlipidemia, tobacco addiction . . . and degenerative

disc disease....” Despite his numerous medical conditions, “[the appellant’s] ability

to see, speak, [and] walk is not impaired.” The record also indicates that there is no

dispute as to his abuse of alcohol. The appellant denies any prior opportunities for

rehabilitative treatment of his addiction. Notwithstanding, the record does indicate

that the appellant failed to appear at two scheduled counseling sessions with Dr.

William Conklin.2 Moreover, the appellant’s medical records of February 25, 1996,

reveal his physicians’ recommendations for alcohol rehabilitation.



        Additionally, the appellant has a prior criminal history reflecting his

longstanding abuse of alcohol and his proclivity to go armed. Specifically, the

appellant’s criminal record consists of six convictions for public intoxication, three

convictions for unlawful possession of a weapon, one conviction of disorderly

conduct, and one conviction for malicious mischief.3 Indeed, his most recent

arrests and resulting convictions for public intoxication and unlawful possession of a

weapon occurred while on bail for the present charge. The record also indicates that

the appellant has previously been granted a suspended sentence. Both

presentence reports concluded that the appellant was “a high risk candidate for

probation” and “would be considered a maximum risk to successfully complete

probation.”



        In support of his request for probation, the appellant testified on his own

behalf. He described to the court his account of the extenuating circumstances that

led to the instant conviction for aggravated assault. He explained that, seven or

eight months prior to the incident involving Mr. Taylor, he was responsible for a

judgment of $15,000 being entered against his former business partner.

Consequently, he testified, his life was threatened by his former partner. Because

        2
          The nature of these counseling sessions is not discernible as they are merely labeled
“couns eling ses sions.”

        3
            The appellant was originally charged with shooting into a vehicle.

                                                    4
of his fear of retaliation by his former partner, he felt threatened by Mr. Taylor’s

unexpected presence on his property and fired a warning shot to frighten Mr. Taylor

from the premises. 4 The appellant maintained that he had not intended to hit Mr.

Taylor’s vehicle; rather the impact was the result of the appellant’s intoxicated state

and the hair trigger on the pistol.



        The appellant admitted that he had not suffered any symptoms of alcohol

withdrawal since being incarcerated in the county jail. He also denied any previous

placement on probation. Moreover, he explained his failure to appear for court on

numerous occasions in the instant matter as a result of his medical condition and

the death of his mother. Finally, in response to a pending charge of failure to

appear on another matter, the appellant denied the allegation, averring that he was

in court.



        In a reasoned recitation of its findings, the trial court denied any form of

alternative sentencing and ordered that the appellant report to confinement on

October 5, 1998. Specifically, the trial court found that the nature and

circumstances of the offense, the appellant’s contradictory testimony at the

sentencing hearing, the appellant’s history of alcohol-related prior convictions, the

appellant’s recent convictions committed while on bail for the pending charge, and

the appellant’s poor potential for rehabilitation supported the denial of a sentence

other than one of total confinement.



        In this appeal, the appellant challenges the trial court’s finding arguing that an

alternative sentence cannot be denied because “he has never had any treatment or

rehabilitation to address his [alcohol] problem,” he exhibited remorse over the




        4
          All parties agree that, at the time of the incident, the appellant and Mr. Taylor had never
previous ly met.

                                                  5
incident, and he was fearful of retaliation by his former business partner. We find no

merit to the appellant’s contentions.



       When a challenge is made to the manner of service of a sentence, this court

conducts a de novo review with the presumption that the determination made by the

trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This presumption only

applies if the record demonstrates that the trial court properly considered relevant

sentencing principles. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991), In

the present case, the trial court properly considered such principles and the

presumption of correctness applies. Moreover, the appellant bears the burden of

showing that the sentence imposed by the trial court is improper. See Tenn. Code

Ann. § 40-35-210 (b)(3)(1997).



       The appellant has failed to carry his burden. First, the appellant’s assertion

that the absence of any previously imposed substance abuse treatment program by

the State prohibits a finding that past efforts at rehabilitation have failed is

misplaced. The appellant has a twenty year history of criminal behavior resulting

from his abuse of alcohol and his propensity to carry a weapon while intoxicated.

See Tenn. Code Ann. § 40-35-103(1)(A) (1997). Despite his numerous convictions

and prior recommendations to obtain such treatment, the appellant has ignored

such warnings and continues his destructive conduct. Next, the circumstances of

the offense are particularly serious in that the appellant, without provocation, had no

hesitation in firing a weapon at an unarmed and innocent person. Additionally, Mr.

Taylor testified that, at the time of the incident, children were playing in the yard next

door to the appellant’s residence and could have been injured. See Tenn. Code

Ann. § 40-35-103(1)(B). Finally, the appellant committed similar offenses and failed

to appear for numerous court dates while on bail pending resolution of the present

charge. This, in and of itself, reflects greatly upon the appellant’s lack of




                                           6
rehabilitative potential and upon the obvious risks of placing the appellant on any

form of release.



      The record supports the findings of the trial court. We conclude that a

sentence of total confinement is appropriate and justified under the Sentencing Act.

The judgment of the trial court denying the appellant a non-incarcerative sentence is

affirmed.




                                  ____________________________________
                                  DAVID G. HAYES, Judge




CONCUR:




________________________________
JOHN H. PEAY, Judge



________________________________
JOHN EVERETT W ILLIAMS, Judge




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