        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 26, 2010 Session

             STATE OF TENNESSEE v. NILE BRADLEY LARUE

               Direct Appeal from the Criminal Court for Knox County
                    No. 88650    Richard R. Baumgartner, Judge


                   No. E2009-01670-CCA-R3-CD - Filed June 9, 2011


A Knox County Criminal Court jury convicted the appellant, Nile Bradley LaRue, of
voluntary manslaughter. After a sentencing hearing, the trial court sentenced him to six years
to be served as one year in jail and the remainder on probation. On appeal, the appellant
contends that (1) the evidence is insufficient to support the conviction, (2) the trial court
committed plain error by instructing the jury on the defense of protection of property, and (3)
his six-year sentence is excessive and the trial court erred by denying his request for full
probation. Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

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

N ORMA M CG EE O GLE, delivered the opinion of the Court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Bruce E. Poston (on appeal) and Gregory Paul Isaacs (at trial), Knoxville, Tennessee, for the
appellant, Nile Bradley LaRue.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

      A Knox County grand jury indicted the appellant for the second degree murder of
John Harrold. At trial, twenty-three-year-old Brandon Aaron Lee testified that during the
second week of June 2007, he moved into the appellant’s two-bedroom condominium in the
Fountain City area. Lee had known the appellant for about eight years, Albert Dotson for six
or seven years, and the victim for a couple of months. Lee said that he had met the victim
through the appellant and that he and the appellant had “hung out” with the victim
previously. Lee said that on the night of June 17, 2007, he and the appellant ate at a Chili’s
restaurant and “drank a few margaritas.” Then they went to Walmart to buy beer because
some people were coming over to the condo.

       Lee testified that he and the appellant bought the beer and returned to the condo. Lee
said that two girls and Dotson were also there and that “[w]e just all started drinking.” At
some point, the appellant began showing Lee some text messages that the appellant was
receiving on his cellular telephone from the victim. Lee testified that the appellant “started
replying back” to the victim and that the appellant “was kind of freaking out a little bit.” The
appellant told Lee that the victim was going to come to the condo, but Lee told the appellant
not to worry about it. After the two girls left the condo, Lee went to bed.

        Lee testified that he went to sleep and that Dotson woke him up, telling him that the
victim was there. Lee got out of bed and went outside to see what was going on. He saw the
appellant and the victim standing on the street and talking. They were not yelling, and Lee
was not worried. He said that he asked the victim why the victim was there and that the
victim said, “Nile knows why I’m here[.]” Lee said the appellant stated, “No. I don’t know
why you’re here[.]” Lee said that the victim began putting on leather gloves and that the
victim told the appellant, “Well, I have a check wrote out to me out in my car to come over
here and kill you.” Lee said the appellant answered, “No, you don’t John, ‘cause if you do
have some money, it’d be a cash deal not a check.” Lee began telling the victim, “Just don’t
worry about it. Just leave.” While Lee was talking to the victim, the appellant went back
inside the condo.

        Lee testified that he could tell the victim had been drinking alcohol. The appellant
came back outside and was holding a twelve-gauge shotgun. The appellant stood outside the
front door of the condo and told the victim to leave. Lee said the victim ran up to the
appellant and said, “Nile, if your -- why don’t you just pull the trigger and shoot me right
here.” Lee said that the appellant continued to stand in front of the condo and that the victim
grabbed the appellant by the shirt collar. Lee testified, “I guess [the victim was trying] to
take the gun from him.” Lee said that the victim pulled the appellant out to the street and that
the two men “were wrestling around.” The appellant fired a gunshot to warn the victim. Lee
said that the appellant fired the shot in Lee’s direction, that some shotgun pellets hit Lee, and
that “the vehicles got sprayed pretty bad.” Lee said that he “froze” and that the victim hit the
appellant in the nose. The appellant stepped back and shot the victim. The victim called the
appellant’s name and fell to the ground. Lee and the appellant ran to the victim, and Lee ran
inside the condo to telephone 911. The appellant also used his cellular telephone to call 911.

                                               -2-
Lee said the entire incident occurred in five to ten minutes.

       The State played Lee’s and the appellant’s 911 telephone calls for the jury. During
the appellant’s call, he told the 911 dispatcher that he shot the victim. When the dispatcher
asked him why, he said, “Because he hit me in the nose. He was on my property.”

        On cross-examination, Lee acknowledged that his memory of the incident was “a little
hazy about certain things.” He said that the appellant and the victim had been coworkers and
that the three of them “went out a couple of times.” Lee said that when the appellant came
out of the condo holding the shotgun, the appellant was standing four or five feet from the
front door. He acknowledged that the appellant did not point the gun at the victim. The
victim approached the appellant and grabbed the appellant by the collar. Lee acknowledged
that after the appellant fired the warning shot, the victim did not step back. In fact, the victim
punched the appellant in the nose, causing it to bleed. Lee said that he thought the victim
was trying to get the gun away from the appellant but that he did not think the victim was
trying to take the gun in order to kill the appellant with it.

        Officer Dan Paidousis of the Knoxville Police Department testified that he was
dispatched to the scene of the shooting. When he arrived, he saw a white male lying on the
street. Another person was standing twenty-five to thirty feet away from the victim and was
talking on a cellular telephone. That person, who was the appellant, matched the description
of the shooter. Officer Paidousis got out of his patrol car and ordered the appellant to drop
the telephone. On the officer’s third request, the appellant put down the phone and got onto
the ground. Another officer handcuffed the appellant. Blood was on the appellant, and the
officers secured his condominium. They found Albert Dotson sleeping in a back bedroom.

         Twenty-three-year-old Albert Dotson testified that he met the appellant when he was
sixteen years old and that he met Brandon Lee a few months before he met the appellant.
Dotson did not know the victim. Dotson said that on the night of June 17, 2007, he “met up
with” the appellant and Lee at Walmart. Then they went to the appellant’s condo and drank
beer. Two girls were also there, and the appellant was texting someone. At some point, the
girls left, and Dotson went to sleep in a bedroom. The appellant came into the room and was
still texting. Dotson asked, “Who are you texting?” but the appellant did not answer him.
Later, the appellant came back into the bedroom. When he left, Dotson got up and looked
out the window. He said he went and told Lee, “That guy is here” and “[G]o take care of it.”
Dotson went back to bed and went to sleep. He remembered the appellant coming into the
bedroom to get a gun out of the closet. He said that he asked the appellant, “What are you
doing?” and that the appellant told him, “Nothing, dude. Just stay in the room.”

       Dotson testified that the appellant went outside and that Dotson got up and looked

                                               -3-
outside. He said that he saw the appellant and the victim “just talking or whatever” and that
he went back to bed. He said the appellant may have come into the bedroom again to get
ammunition. Shortly thereafter, Dotson heard a couple of gunshots. He said he got up and
hid in the shower because he was scared and “didn’t know if like Nile had gone crazy or
something.” The appellant and Lee came inside, saying they needed to call for an
ambulance. Dotson went outside and saw the victim, who appeared to be breathing, lying
on the street. Dotson went back inside and went to sleep. After the police arrived, they came
into the room and woke him.

        Officer A.J. Loeffler of the Knoxville Police Department testified that he received a
telephone call about the shooting and went to the scene. The victim was lying on the street,
and the appellant, Dotson, and Lee were sitting in police cars. Dried blood was on the
appellant’s face, and the appellant complained that his face and chest hurt. He did not want
medical attention. Officer Loeffler asked the appellant for permission to search the condo,
but the appellant refused. Officer Loeffler talked with Dotson and Lee and obtained a search
warrant. The police found a shotgun in the front hallway closet, and one live round was in
the chamber. They found ammunition in the appellant’s bedroom. An empty shotgun shell
was five to six feet away from the victim’s body, and the police did not find any other shells.
A cellular telephone was in the victim’s shorts pocket, and another officer showed Officer
Loeffler how to retrieve text messages from the phone. Some of the messages referred to
Ashton Menser, who had a child with the appellant, and Jennifer Buchanan, who had a child
with the victim. Officer Loeffler later searched the victim’s car at the city impound lot and
found the victim’s wallet, a set of keys, and a pocketknife. Based upon what Lee had told
Officer Loeffler, Officer Loeffler was looking for a bank check in the car. However, he did
not find one.

       On cross-examination, Officer Loeffler testified that the blade on the pocketknife was
three and one-half to four inches long. He acknowledged that Lee told him the victim and
the appellant were two to three feet apart when the appellant shot the victim.

       On redirect examination, Officer Loeffler testified that nothing indicated the victim
had been armed. He acknowledged that Lee told him that Lee never saw the victim grab for
the appellant’s gun.

       During his direct and cross-examination testimony, Officer Loeffler read text
messages that the victim had sent to and received from the appellant and Jennifer Buchanan
before the shooting. Those messages can be summarized, in relevant part, as follows:




                                              -4-
    Time            From             To                              Message

      ?            victim         appellant         Damn ashton looks good tonight

  12:49 a.m.      appellant        victim           Yea prob so but jenn . . . has been lookin
                                                    better

  12:50 a.m.       victim         appellant         Don’t make me come off of highland to
                                                    ur house

  12:54 a.m.      appellant        victim           Come on

      ?            victim         Jennifer          So I hear u been hanging around nile.
                                                    Nice Jennifer!

  12:58 a.m.       victim         Jennifer          Swear it on bary. Cuz im on my [way] to
                                                    kill him cuz he says otherwise

  1:12 a.m.       appellant        victim           Okay that’s [what] I thought

      ?            victim         appellant         Better lock the door cuz u will regret that
                                                    comment

  1:14 a.m.       appellant        victim           Okay be waitin [for] ya

        Dan Crenshaw, a senior evidence technician with the Knoxville Police Department,
testified that he arrived at the scene at 2:30 a.m. on June 18. He photographed the area and
took measurements. He also collected from the appellant a ring, a bracelet, and a necklace
with a pendant.

        Steve Scott, a special agent forensic scientist with the Tennessee Bureau of
Investigation, testified that he received a Mossberg twelve-gauge shotgun, a fired shotgun
shell, some shotgun pellets, and the victim’s shirt for testing. The shotgun was working
properly, and seven and one-half pounds of pressure were needed to pull the trigger. The
spent shell was a twelve-gauge shell that had been filled with buckshot, and the shotgun had
fired the shell. Scott found a hole on the front left side of the victim’s shirt. Based on
residues and chemical tests on the shirt, he concluded that the muzzle of the gun had been
three to ten feet away from the victim when the appellant shot the victim.

        Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,
testified that she performed the victim’s autopsy. The victim was thirty-one years old;
weighed two hundred forty-two pounds; and was five feet, eleven inches tall. His cause of
death was a shotgun wound to the abdomen. Shotgun pellets damaged multiple organs, tore


                                              -5-
multiple vessels, and caused tremendous bleeding. Around the wound, Dr. Mileusnic-
Polchan found relatively dense stipple caused by the filler material inside the shotgun shell.
Based on the stipple and the characteristics of the wound, she estimated that the muzzle of
the shotgun had been two to three feet away from the victim when the appellant shot the
victim. She also found a large scrape on the bridge of the victim’s nose and abrasions on the
left and right sides of his nose. She said that some of the injuries to the victim’s face
occurred when he fell onto the pavement and that some of the injuries occurred when
emergency medical technicians turned him over. A bruise under the victim’s scalp was
consistent with his having fallen backward, and a bruise on the victim’s front left shoulder
indicated that the stock of the gun may have come into contact with his shoulder. She
acknowledged that two red spots on the victim’s face could have been caused by being hit
in the face by someone wearing a ring. An injury to the victim’s right leg was consistent with
filler material coming into contact with the leg when the appellant fired the warning shot.
The victim’s blood alcohol test showed his blood contained .13 gram percent of alcohol,
meaning the victim was intoxicated.

       On cross-examination, Dr. Mileusnic-Polchan testified that the victim was wearing
black leather gloves. She acknowledged that the bruise on the victim’s shoulder could have
occurred if the appellant used the stock of the gun to push the victim away. She stated that
blood also was on the appellant’s shirt and that, if the blood was the appellant’s blood, it
could have come from a bloody nose.

        Twenty-one-year-old Kayla McCall testified for the appellant that she was nineteen
years old at the time of the shooting and met the victim when he worked at Ole Ben Franklin
Motors. On the night of June 17, McCall picked up the victim at his apartment and drove to
Ashton Menser’s house. The victim had been drinking beer at his apartment, and he drank
a couple of additional beers at Menser’s home. About 10:30 p.m., McCall and the victim
drove to the Electric Cowboy, a nightclub on Kingston Pike. McCall recently had been
banned from the club, but the victim knew the club owner and thought he could get McCall
into the club anyway. They arrived at the club about 11:00 p.m., and McCall waited in the
car while the victim went inside. The victim was in the club for a while, and McCall
continued to wait for him outside. At 1:17 a.m., the victim texted her from inside the club,
stating, “I’m going to kill Nile.” McCall texted the victim, “Why?” and “John, you don’t
need to kill anyone because then I wouldn’t get to kiss you ever again.” She said she thought
the victim was serious about killing the appellant and that she texted him, “If you touch Nile,
you won’t have a job anymore. Don’t do this.” The victim texted to McCall, “Door now.”
McCall said that she drove to the front of the club, that the victim got into the car, and that
the victim told her, “You have a choice. You can either take me home, or you can take me
to Nile’s.” She said the victim had been drinking and was “in a deep stare.”



                                              -6-
       McCall testified that she drove the victim to his apartment and took his dog outside
for a walk. When she went back to the apartment and opened the door, a baseball bat fell
onto the floor. McCall hid the bat. The victim got some gloves and put them on. He also
put on some shoes and told her, “I’m leaving.” She said that she was “pretty sure” the victim
was going to the appellant’s condo and that the victim would “[p]robably try to kill [the
appellant].”

       On cross-examination, McCall testified that she had known the victim for one or two
months before shooting. She said that after she and the victim left the club and returned to
his apartment, the victim was “in a blank state of mind.” She acknowledged that she did not
call 911. She explained, “I’ve never really been in that sort of situation before. I called
Ashton a million times, and her phone had died. So I didn’t really know anyone else’s phone
number to call.” Although the appellant had been charged with second degree murder, a
Class A felony, the jury convicted him of voluntary manslaughter, a Class C felony.

                                         II. Analysis

                               A. Sufficiency of the Evidence

      The appellant contends that the evidence is insufficient to support the conviction
because the evidence shows he acted in self-defense. The State argues that the jury
reasonably rejected the appellant’s self-defense theory. We agree with the State.

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). Accordingly, on
appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence,
are resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d
559, 561 (Tenn. 1990).

        Voluntary manslaughter is “the intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.” Tenn. Code Ann. § 39-13-211(a). Our Code provides that the use of
force may be justified when a person (1) “has a reasonable belief that there is an imminent

                                               -7-
danger of death or serious bodily injury”; (2) “[t]he danger creating the belief of imminent
death or serious bodily injury is real, or honestly believed to be real at the time”; and (3)
“[t]he belief of danger is founded upon reasonable grounds.” Tenn. Code Ann. §
39-11-611(b)(2). Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d
737, 743 (Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.
1993). When a defendant relies upon a theory of self-defense, it is the State’s burden to
show that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn.
2001).

        The defendant does not contest that he shot the victim in a state of passion. Instead,
he argues that the jury erroneously rejected his claim of self-defense because the evidence
showed that the victim threatened to kill him, dragged him away from his front door, and
punched him in the nose. Granted, the evidence established that the victim instigated the
evening’s events by sending the appellant a somewhat suggestive text message about the
mother of the appellant’s child. The appellant sent a similar message about the mother of the
victim’s child, and the angry victim informed the appellant that he was coming to the
appellant’s condominium. When the victim arrived, the appellant voluntarily went outside
to talk with him. The appellant then went back inside his home. However, instead of locking
the door and calling the police, he retrieved a shotgun and returned outside. The unarmed
victim approached the appellant, grabbed him by the collar, and dragged him to the street.
The appellant fired a warning shot, and the victim punched the appellant in the nose. The
appellant then stepped back and shot the victim. During his call to 911, the appellant told
the dispatcher that he shot the victim because the victim punched him in the nose and was
on his property, not because he thought the victim was going to kill him.

       The fact that the jury rejected the State’s argument regarding second degree murder
and decided to convict the appellant of voluntary manslaughter demonstrates that it carefully
considered the evidence. Given that the appellant chose to retrieve the shotgun and return
outside, where the unarmed victim was waiting, we agree that the jury could have determined
that the appellant’s belief of imminent danger of death or serious bodily injury was
unreasonable. This court does not second-guess factual determinations made by the jury, and
it was within the jury’s province to reject the appellant’s theory of self-defense. Therefore,
the evidence is sufficient to support the appellant’s conviction for voluntary manslaughter.

                      B. Defense of Protection of Property Instruction

        Next, the appellant contends that he is entitled to plain error relief because the trial
court gave the jury an instruction on the defense of protection of property. The State argues
that the appellant is not entitled to relief. We agree with the State.



                                              -8-
       During Brandon Lee’s testimony, his and the appellant’s 911 calls were played for the
jury. Based upon the appellant’s telling the dispatcher that he shot the victim because the
victim was on his property, the State requested that the trial court instruct the jury on a
portion of Tennessee Pattern Instruction 40.08, the defense of protection of property
instruction, which states, in pertinent part, as follows:

                       A person in lawful possession of real or personal property
               is justified in threatening or using force against another when
               and to the degree it is reasonably believed the force is
               immediately necessary to prevent or terminate the other’s
               trespass on the land or unlawful interference with the property.

                      A person who has been unlawfully dispossessed of real
               or personal property is justified in threatening or using force
               against the other when and to the degree it is reasonably
               believed the force is immediately necessary to re-enter the land
               or recover the property if the person threatens or uses the force
               immediately or in fresh pursuit after the dispossession;

                                             and

                             (1) the person reasonably believes the other
                      had no claim of right when the other dispossessed
                      the person;

                                             and

                             (2) the other accomplished the
                      dispossession by threatening or using force
                      against the person.

                      A person is not justified in using deadly force to prevent
               or terminate the other’s trespass on real estate or unlawful
               interference with personal property.

Tennessee Pattern Jury Instruction 40.08--Criminal (11th ed. 2007). Specifically, the State
requested that the trial court instruct the jury on the last portion of the instruction, that a
person’s use of deadly force to prevent a trespass on real estate is not justified. The defense
objected, arguing that the instruction “completely vitiates the self-defense charge.” However,
the trial court agreed with the State. At first, the trial court planned to instruct the jury only

                                               -9-
on the last part of the instruction as the State had requested. However, the defense said that
reading only a portion of the instruction “takes it out of context” and requested that “if you’re
going to charge it, you charge the entire pattern jury instruction.” Although the trial court
did not consider much of the instruction to be relevant under the facts of this case, at the
appellant’s request, it charged the jury on the entire instruction.

        A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a
requested instruction if it is supported by the evidence, embodies a party’s theory, and is a
correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App.
1994). Moreover, we have previously noted that “[w]e must review the entire [jury] charge
and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or
misleads the jury as to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn.
Crim. App. 1995). A charge resulting in prejudicial error is one that fails to fairly submit the
legal issues to the jury or misleads the jury about the applicable law. State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997).

       The appellant concedes that he did not file a motion for new trial. As this court has
repeatedly stated, the failure to raise an issue of error, other than sufficiency of the evidence
or sentencing, in a motion for a new trial waives that issue for purposes of appellate review.
See Tenn. R. App. P. 3(e).

       Nevertheless, Tennessee Rule of Appellate Procedure 36(b) provides that “[w]hen
necessary to do substantial justice, an appellate court may consider an error that has affected
the substantial rights of a party at any time.” See also Tenn. R. Evid. 103(d). We may only
consider an issue as plain error when all five of the following factors are met:

              (a) the record must clearly establish what occurred in the trial
              court; (b) a clear and unequivocal rule of law must have been
              breached; (c) a substantial right of the accused must have been
              adversely affected; (d) the accused did not waive the issue for
              tactical reasons; and (e) consideration of the error is “necessary
              to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “‘“plain error” must be of such a great magnitude
that it probably changed the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting
United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).



                                              -10-
        Like Tennessee Pattern Instruction 40.08, Tennessee Code Annotated section 39-11-
614(c) provides that “a person is not justified in using deadly force to prevent or terminate
the other’s trespass on real estate or unlawful interference with personal property.” In this
case, the evidence shows that during the victim’s altercation with the appellant, the victim
walked to within a few feet of the appellant’s front door, where the appellant was standing,
and dragged the appellant down his driveway and into the street. The appellant told the 911
dispatcher that he shot the victim, in part, because the victim was on his property. Therefore,
we agree with the trial court that the evidence justified an instruction that a defendant’s
protection of property is not a defense to the defendant’s use of deadly force. Moreover, the
instruction was a correct statement of the applicable law. Therefore, the trial court did not
breach an unequivocal rule of law by giving the portion of the instruction that the State
requested. While much of the pattern instruction was not relevant under the facts of this
case, the appellant requested the entire instruction for tactical reasons, and he is not entitled
to plain error relief.

                                    C. Excessive Sentence

       Next, the appellant argues that his six-year sentence is excessive and that the trial
court erred by denying his request for full probation. The State claims that the trial court
properly sentenced the appellant. We agree with the State.

        At the sentencing hearing, Linda Bragg, the victim’s mother, testified that the victim
was “a good man” and had “lots of friends.” She said his family and his young son loved
him. At the time of his death, the victim was living with his mother and was helping take
care of her because she was sick. She said she was still sick and missed having him with her.
She said she never thought she would be the victim of a violent crime, and she asked that the
appellant receive the maximum sentence because he “took my son’s life.”

       John J. Harrold, the victim’s father, testified that the victim was his and Bragg’s only
child. Harrold and Bragg divorced, and the victim had some problems and got into trouble.
Eventually, Harrold and the victim became estranged. Nevertheless, Harrold said that he
became depressed after the victim’s death by “[k]nowing that my son will never be there.”
He stated that the victim’s “murder” had had a profound effect on his life, that he had trouble
sleeping, and that he took medication for blood pressure and anxiety. He said the appellant
showed no remorse or sadness at trial.

       Jennifer Buchanan testified that she and the victim had a son, Braden, who was five
and one-half years old when the victim was killed. She said Braden often asked where the
victim was and when the victim was coming back. She said that the victim and Braden were
close and that Braden was still grieving. She said that her family would never be the same

                                              -11-
and that “our hearts are broken and our lives are shattered.” She asked that the appellant
receive the maximum sentence.

        Jessica Richardson testified that she was one of the victim’s best friends and that the
appellant “took a great man’s life.” She said Braden had played baseball and football for the
first time during the past year and that Braden had wished the victim could have been there
to see him.

       Ronald Dunn, Braden’s grandfather, testified that the shooting was a tragedy that
should not have happened. He stated that as a result of the victim’s death, his wife woke up
crying during the night. He said he had not seen the appellant express any remorse.

        The State introduced the appellant’s presentence report into evidence. According to
the report, the then twenty-two-year-old appellant was not married but had a three-year-old
son. The report shows that the appellant graduated from Apostolic Christian School in 2005
and received a certificate in Farrier Science from Mesalands Community College. In the
report, the appellant stated that he began drinking alcohol when he was eighteen or nineteen
years old and that he sometimes consumed small amounts of alcohol. However, the preparer
of the report noted that the appellant had been charged with driving under the influence
(DUI) in January 2008 and that the charge was still pending. In the report, the appellant
described his physical and mental health as “good” but said he had been experiencing heart
palpitations for the past four or five years. The report shows that at the time of the
sentencing hearing, the appellant was working as a laborer for Johnson & Gaylon
Construction and that he worked as a salesman for Ole Ben Franklin Motors from March
2006 to May 2007 and Johnson & Gaylon from December 2005 to February 2006.

       The report shows that prior to this incident, the appellant pled guilty to misdemeanor
vandalism, possession of burglary tools, and two counts of misdemeanor theft. The appellant
received judicial diversion for the offenses with the convictions to be expunged from his
record after he successfully completed eleven months, twenty-nine days on probation.
However, his diversion was revoked after he was charged in this case. The report shows that
in 2008, the appellant was charged with DUI, identity theft, misdemeanor theft, and felony
theft. At the time of the sentencing hearing, the charges were still pending.

        The trial court stated that “[t]his was a tragic case” in which the victim went to the
appellant’s house “itching for a fight” and the appellant “egged him on.” The court noted
that although the victim had instigated the confrontation, the appellant should have closed
the door and called the police. The court noted that the range of punishment for a Range I,
standard offender convicted of a Class C felony was three to six years. See Tenn. Code Ann.
§ 40-35-112(a)(3). The trial court applied enhancement factors (1), that the appellant “has

                                             -12-
a previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range” and (8), that the appellant “failed to comply with the
conditions of a sentence involving release into the community,” but determined that the
factors were not entitled to much weight. See Tenn. Code Ann. § 40-35-114(1), (8). The
trial court also applied enhancement factor (9), that the appellant used a firearm during the
commission of the offense, and stated, “that’s an incredibly important factor.” In mitigation,
the trial court noted that the appellant was employed and took care of his family. See Tenn.
Code Ann. § 40-35-113(13). The trial court sentenced the appellant to six years, the
maximum punishment in the range.

       Regarding probation, the trial court stated, “I think I’ve placed people on probation
in voluntary manslaughter cases, but . . . I have a different attitude about cases in which
people die, and I have a different attitude about this case.” The trial court also stated that the
appellant “made a very bad decision” and needed to be punished but that the appellant could
be rehabilitated. The trial court ordered that the appellant serve one year in confinement with
five years to be served on probation.

       Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;
(5) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).
The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record
reveals that the trial court adequately considered sentencing principles and all relevant facts
and circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

        The appellant contends that his sentence is excessive because the trial court placed too
much emphasis on the use of a firearm and the fact that someone died. We disagree. The
trial court found three enhancement factors applicable and placed a great deal of weight on
one of them. As we have repeatedly stated, the weighing of mitigating and enhancing factors
is left to the trial court’s sound discretion. State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008). Therefore, the appellant’s six-year sentence is not excessive.



                                              -13-
       Regarding the trial court’s denial of full probation, an appellant is eligible for
alternative sentencing if the sentence actually imposed is ten years or less. See Tenn. Code
Ann. § 40-35-303(a) (2006). The appellant’s sentence meets this criteria. Moreover, an
appellant who is an especially mitigated or standard offender convicted of a Class C, D, or
E felony should be considered a favorable candidate for alternative sentencing absent
evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6). The following sentencing
considerations, set forth in Tennessee Code Annotated section 40-35-103(1), may constitute
“evidence to the contrary”:

              (A) Confinement is necessary to protect society by restraining a
              defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly suited
              to provide an effective deterrence to others likely to commit
              similar offenses; or

              (C) Measures less restrictive than confinement have frequently
              or recently been applied unsuccessfully to the defendant.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court should
consider the defendant’s potential or lack of potential for rehabilitation when determining
if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5).

       In the instant case, the appellant is a Range I, standard offender convicted of a Class
C, felony; therefore, he is considered to be a favorable candidate for alternative sentencing.
However, the trial court’s explanation for ordering the appellant to serve one year in
confinement demonstrates that the court determined the appellant should not be granted full
probation because to do so would depreciate the seriousness of the offense.

       In denying full probation to avoid depreciating the seriousness of the offense, the
criminal act should be especially violent, horrifying, shocking, reprehensible, offensive, or
otherwise of an excessive or exaggerated degree. Zeolia, 928 S.W.2d at 462. During
sentencing, the trial court stated,

              Had this -- had this stayed as a fistfight, Mr. LaRue, we
              wouldn’t be here today. If you’d -- if you decided to stay
              outside and curse each other for three hours or duke it out or do
              whatever and not decided to go back inside and get that shotgun,
              we wouldn’t be here today. You wouldn’t be a convicted felon.

                                             -14-
               Mr. Harrold wouldn’t be dead.

In our view, the facts of this case are of an excessive or exaggerated degree. After the victim
arrived at the condo and spoke with the appellant outside, the appellant was able to go back
into his home without any interference from the victim. The appellant had the opportunity
to stop the confrontation and telephone the police, but he chose to retrieve a shotgun and
confront the unarmed victim. The trial court properly ordered the appellant to serve one year
in confinement.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                    _________________________________
                                                    NORMA MCGEE OGLE




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