         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 10, 2001 Session

                     STATE OF TENNESSEE v. MARLO JONES

               Direct Appeal from the Criminal Court for Lauderdale County
                           No. 6909    Joseph H. Walker, Judge



                     No. W2000-01565-CCA-R3-CD - Filed May 29, 2001



The defendant was convicted by a jury of aggravated criminal trespass, attempted aggravated assault,
and two counts of felony reckless endangerment. The trial court sentenced the defendant to
concurrent sentences of eleven months and twenty-nine days for aggravated criminal trespass, two
years for attempted aggravated assault, and one year each for both counts of felony reckless
endangerment. The defendant was granted probation after service of 120 days. In this appeal, the
defendant challenges the trial court's denial of full probation. After a thorough review of the record,
we affirm the sentence imposed by the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Marlo Jones.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant was convicted of aggravated criminal trespass, attempted aggravated assault,
and two counts of felony reckless endangerment and received an effective sentence of two years,
with probation after service of 120 days. In this appeal, the defendant challenges the trial court’s
denial of full probation. We affirm.
                                              FACTS

         Evon Reed, David Willis’ girlfriend, testified at trial that on November 14, 1999, Willis
arrived at her home at approximately 11:30 p.m. Reed, her eleven-month-old child, and Willis
retired to her bedroom at approximately 12:00 a.m. At approximately 3:00 a.m., Reed was awakened
by a “pounding” on her door, and the defendant, with whom Willis also had a romantic relationship,
stated, “[t]ell David to bring his ass outside.”

        Reed, without unlocking the door, returned to the bedroom to awaken Willis. Before she
could reach Willis, Reed heard the defendant kick in her back door. Reed then closed and locked her
bedroom door. When the defendant reached the locked bedroom door, she yelled, “[y]ou know what
I got and I’ll blow this mother f---er up.” Willis then informed her that a baby was with them in the
bedroom and pleaded that she go outside. The defendant then responded that she “didn’t give a
damn,” because they “all was [sic] going to die tonight.” The defendant then fired her weapon
through the bedroom door. Reed placed her infant baby under the bed, then she and Willis pushed
the dresser in front of the bedroom door to block the defendant’s entry. Reed then joined her baby
under the bed.

        The defendant stated that she did not want to harm Willis but only wanted Reed. The
defendant discharged her weapon again, and Willis yelled that he was hit. The defendant then
inquired, “I shot you, David?” The defendant then exited the home, went to the bedroom window,
shot it out, and inquired, “[w]here is that bitch at?” Willis, already bleeding, climbed out of the
broken window. The defendant then apologized to Willis and said she loved him. Willis left with
the defendant, who carried him to the hospital.

       Willis testified that he never heard forcible entry through the back door of the residence; the
defendant never threatened anyone; the defendant was unaware of the infant’s presence in the
bedroom; he was never shot; the window was broken by him when he attempted to leave; and the
broken window caused his injury.

        The defendant testified that she had been living with Willis for five years preceding this
incident. She testified she did not forcibly enter the residence but entered through a door that was
“cracked” open. She denied knowing the baby was in the bedroom and stated her weapon
accidentally discharged on two occasions while she was beating on the bedroom door. She testified
that she helped Willis out of the bedroom window and took him to the hospital.


                                          SENTENCING

       The defendant contends that the trial court’s denial of full probation was erroneous. We
disagree.




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A. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        A defendant is eligible for probation if the sentence received by the defendant is eight 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). 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); Tenn. Code Ann. § 40-35-303(b).
Even though probation must be automatically considered, “the defendant is not automatically entitled
to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission
Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking
full probation bears the burden on appeal of showing the sentence imposed is improper, and that full
probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997).

        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. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995). The defendant's lack of credibility is also an appropriate consideration and reflects on a
defendant's potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999).

B. Sentencing Hearing

       Evidence at the sentencing hearing revealed that the defendant was 29 years of age, was a
high school graduate, had no prior criminal record, and was gainfully employed. The defendant
admitted she had done wrong, but again denied intentionally shooting into the bedroom. Two
witnesses testified as to her good reputation.

       The trial court found this to be a “frightening crime” in which the defendant fired shots into
the bedroom with three people inside, each of whom could have been killed. The trial court
concluded that the seriousness of the offense justified 120 days of jail time followed by supervised
probation.




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C. Full Probation v. Split Confinement

         The trial court sentenced the defendant to split confinement, a form of alternative sentencing,
and noted that the seriousness of the offense dictated that some amount of jail time was appropriate.
The record readily supports the trial judge's conclusion. See Tenn. Code Ann. § 40-35-103(1)(B).
Considering the seriousness of this violent offense, namely that two adults as well as one infant child
could have been killed or seriously injured, the defendant’s sentence of 120 days confinement is
justified. It is further apparent that the trial court did not consider defendant’s testimony at trial and
at the sentencing hearing truthful relating to whether she intentionally shot through the bedroom
door. See Nunley, 22 S.W.3d at 289 (holding the defendant's lack of credibility is an appropriate
consideration and reflects on a defendant's potential for rehabilitation). The defendant has failed to
prove that full probation will be in the best interest of the defendant and the public. See Baker, 966
S.W.2d at 434. In view of the findings by the trial court and our review of the record, we conclude
the trial court properly denied total probation.


                                           CONCLUSION


        Based upon our review of the record, the sentence imposed by the trial court is affirmed.




                                                         ___________________________________
                                                         JOE G. RILEY, JUDGE




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