        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 15, 2011

            STATE OF TENNESSEE v. SAMUEL ALAN IRESON

                 Appeal from the Criminal Court for Sullivan County
                 Nos. S55, 866   Robert H. Montgomery, Jr., Judge




                  No. E2010-01648-CCA-R3-CD - Filed June 10, 2011


The Defendant, Samuel Alan Ireson, was convicted by a Sullivan County jury of voluntary
manslaughter, fabrication of evidence, and employment of a firearm during the commission
of a dangerous felony. The trial court sentenced the Defendant as a Range I, standard
offender to consecutive terms of five years for the voluntary manslaughter conviction, five
years for the fabrication of evidence conviction, and six years for the firearm conviction,
resulting in an effective sentence of sixteen years in the Department of Correction. On
appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions
and several sentencing determinations made by the trial court—the length of his sentences
for voluntary manslaughter and fabrication of evidence, the consecutive nature of his
fabrication of evidence sentence, and the denial of judicial diversion. Following our review,
we affirm the judgments of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Charles R. Martin, Kingsport, Tennessee, for the appellant, Samuel Alan Ireson.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Greeley Wells, District Attorney General; and William Harper, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                 Factual Background
       On April 11, 2008, the Defendant shot and killed the victim, James Guinn. The
shooting occurred following the Defendant’s termination of the victim’s employment with
the Defendant’s moving company. Thereafter, the Defendant was charged by presentment
with voluntary manslaughter, which was later amended to include employment of a firearm
during the commission of a dangerous felony and fabrication of evidence. See Tenn. Code
Ann. §§ 39-13-211, -16-503, & -17-1324. The Defendant’s trial was held on October 14
through 16 of 2009.

        The evidence presented at trial showed that the Defendant operated Kingsport
Transfer Company, a moving company located in Sullivan County. On April 10, 2008, the
victim, Harry David Guy, and Jerry Conner began working on a moving job. After not being
able to finish on April 10, they returned to the residence on April 11 but were still unable to
complete the job. The Defendant and the victim had been having words throughout the day.
During a telephone conversation, the victim had hung up on the Defendant. The Defendant
decided to fire the victim.

        When Mr. Guy returned to Kingsport Transfer that evening, he saw the Defendant,
the Defendant’s wife, Angela Ireson, and Donnie Gibson, Mr. Guy’s brother, standing around
talking. The victim arrived three or four minutes later. The victim backed the truck in and
got out. The Defendant and the victim began arguing, and the Defendant told the victim that
he was fired. The Defendant asked the victim for his keys, and the victim asked Mr. Guy to
get his bag of clothes and medication out of the truck. Mr. Guy and Mr. Gibson proceeded
to the back of the truck to retrieve the victim’s belongings. After Mr. Guy had opened the
back doors of the truck, the Defendant and the victim came to the back of truck. Mr. Guy
handed the victim his clothes and then handed his own belongings to Mr. Gibson. The
Defendant and the victim again began to argue. Mr. Guy then heard “a slapping
sound[,]”and turned to see the victim hitting the Defendant. He heard this sound three times.
Mr. Guy was very close to the altercation and, as he was trying to move away from the two
men, he heard a gunshot. The Defendant carried his gun everywhere in a holster on his side.
Mr. Guy took off running after the gunshot. As he came running around the truck, the
victim, who was on his hands and knees, with one hand to his chest, called his name. Mr.
Guy went to the victim and promised he would not leave him. He then called 911. While
Mr. Guy was with the victim, Mrs. Ireson brought him an article of clothing to place
underneath the victim’s head.

        Mr. Gibson testified that the Defendant had been drinking beer earlier that day and
that the Defendant “kept fussing” and fighting with the victim. He heard the Defendant say

                                              -2-
to the victim, “Well, you don’t have to worry about this gun let’s just settle it down in the
parking lot[.]” The victim responded, “We don’t have to,” and about that time, hit the
Defendant.

       Jerry Conner also observed the shooting. According to Mr. Conner, after the victim
was fired, he wanted to get his bag and go. After hearing the gunshot, Mr. Conner heard
Mrs. Ireson jump out and say “Samuel Ireson[,]” and the Defendant replied, “I don’t give a
God damn, there’s no one gonna hit me.” Mr. Conner got in his vehicle and drove to
Charlene Soter’s house.

      Charlene Soter lived on the Kingsport Transfer property in April 2008. After hearing
a commotion outside, she went to the window. She saw the Defendant’s “arm go up,”
followed by a gunshot. The victim grabbed his chest and began running away, screaming
“Oh, my God.” Ms. Soter saw the Defendant, who always carried a weapon, emerge from
around the side of the truck. Ms. Soter’s daughter called 911.

        Angela Ireson was also present on the scene. She testified that she heard the
Defendant say, “You hit me. You hit me. Oh my God, you hit me again, what’s in your
hand.” She then saw Mr. Guy come running from the front of the truck, and he said, “He had
a fuckin’ knife and Sam shot him.” At the time, the victim also emerged from the back of
the truck. She kept asking “where’s Sam” and asked the victim to just lie down. According
to Mrs. Ireson, after the victim fell down, he kept hitting his head on the pavement and
screaming that he was going to “cut [Mrs. Ireson] up.” Mrs. Ireson took her jacket off and
put it behind the victim’s head. Mr. Guy, who had called 911, told Mrs. Ireson and the
Defendant to secure their weapon and have their permits available. Mrs. Ireson placed the
gun in the Defendant’s truck. The Defendant returned to his truck and drank a beer while
he waited for the police to arrive.

        After multiple calls to 911 from individuals at the scene, Sullivan County officers
arrived at Kingsport Transfer Company. When the officers arrived at the scene, they drew
their weapons in order to secure the area. Sullivan County Sheriff’s Deputy, Tonya Price,
patted the Defendant down for safety and placed him in the back of a patrol car. Deputy
Price then went to check on the victim. She asked Mr. Guy to remove his shirt and placed
it on the victim’s wound to control the bleeding. The victim was in pain and frightened; he
kept asking if he was going to live or die. The victim was transported to the hospital, where
he later died from his wound.

       Officers at the scene talked with the Defendant. He told them that the victim had a
knife, and he wanted to show them where it was located. Detective Randy Simpson of the
Sullivan County Sheriff’s Office, Criminal Investigation Division, took a statement from the

                                             -3-
Defendant. He let the Defendant read what he had written, and then the Defendant signed
it. Detective Simpson also spoke with the Defendant’s wife.

        Mrs. Ireson testified that the Defendant had a handgun carry permit and always carried
a weapon because he carried large sums of cash and would have to go to the storage units at
all times of the day. The Defendant’s .40 caliber semi-automatic pistol was found in the
front seat of his pickup truck. The bullet recovered from the victim was matched to the
Defendant’s gun. Detective Simpson also recovered an Old Timer three-blade knife from
the scene. According to Detective Simpson, one blade was in the open position, and the
knife was not easy to open and close. No fingerprints were found on the knife, possibly due
to the fact that it started raining shortly after the shooting.

        Mr. Guy testified that he did not see the victim with a knife at the time of the shooting.
In fact, according to Mr. Guy, he had never seen the victim with a knife. Mr. Guy stated that
he was the only one who carried a knife to the jobs, and everyone would ask to borrow his
knife. Mr. Richard Shirks, Mrs. Heather Guinn, the victim’s wife, and Mr. Conner also
testified that the victim never carried a knife at work. The Defendant’s stepmother, Carolyn
Ireson, testified that she once asked the victim to let her borrow his knife and that he stated
that he did not carry one because he had gotten cut one time. Carolyn Ireson also stated that
the Defendant carried a pistol on a regular basis and often used it to intimidate others; in fact,
she had asked him not carry it, but he did anyway.

        Ms. Soter testified that, on a prior occasion, she overheard the Defendant say that, if
he ever shot someone, “[h]e would put a knife in their hand.” According to Mr. Conner, the
Defendant always carried a knife, and the Old Timer knife found at the scene was the same
type of knife that the Defendant always carried. Mr. Shirks testified that the knife looked
like one he had seen in the Defendant’s truck. Contrary to all of this testimony, Mrs. Ireson
testified that her husband did not routinely carry a knife and that she did not recognize the
knife found at the scene as one belonging to her husband. The Defendant’s son, Samuel
Ireson, Jr., testified that he had never seen his father with the knife discovered at the scene.

        The autopsy showed that it would not have been possible for the victim’s left arm to
have been extended out straight at the time he was shot “because the bullet would have to go
in a circle” to cause a wound on the forearm and the arm with one shot. However, this would
not have interfered with the victim’s ability to hold an object in hand. Additionally, the
autopsy showed that the bullet traveled in a downward direction as it entered the victim’s
body.

       The Defendant testified on his own behalf and contradicted much of the testimony of
the State’s witnesses; according to the Defendant, he turned his head away from the victim

                                               -4-
and, as he did so, the victim struck him in the face one or more times with a cell phone
clutched in his right fist. The Defendant also offered three character witnesses on his behalf.
They testified that the Defendant had a reputation for truthfulness in the community.

       At conclusion of proof, the jury found the Defendant guilty as charged on all counts.
The jury also fined the Defendant a total of $20,000.

       A sentencing hearing was held on February 11, 2010. The trial court sentenced the
Defendant, a Range I, standard offender, to six years for employment of a firearm during the
commission of a dangerous felony, five years for voluntary manslaughter, and five years for
fabrication of evidence. The trial court ordered all of the sentences to be served
consecutively to one another, resulting in an effective sentence of sixteen years. The trial
court denied the Defendant’s request for any form of alternative sentencing, including
judicial diversion.

       The Defendant timely appealed. The case is properly before this Court.

                                           Analysis
I. Sufficiency of the Evidence
       The Defendant argues that the evidence presented at trial is insufficient to support his
convictions. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557–58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

       On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual

                                              -5-
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

       The Defendant argues that the legislative history of the firearm statute indicates that
the legislature only intended to criminally prosecute those unlawfully in possession of a
firearm. That is, because he had a valid handgun carry permit, he would not be subject to
criminal prosecution under the statute for employment of a firearm during the commission
of a dangerous felony. As to the issue of guilt, the Defendant contends that the State did not
“offer any direct evidence [(1)] that [the victim] did not move his hand forward toward the
Defendant[,] . . . [(2)] that [the victim] did not have a knife in his hand when he moved his
hand forward[,] and . . . [(3)] that the knife located as a result of the investigation belonged
to the Defendant[.]” The State counters that the evidence is sufficient to support the
Defendant’s convictions.

         First, addressing the Defendant’s legislative history argument, we begin by noting that
when examining a purely legal issue, such as statutory construction, Tennessee appellate
courts adhere to a de novo standard with no presumption of correctness as to the lower court's
conclusions of law. State v. Collins, 166 S.W.3d 721, 725 (Tenn. 2005) (citing State v.
Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)). The Tennessee Supreme Court has ruled that
“[t]he most basic principle of statutory construction is to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute’s coverage beyond its
intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). With this in mind, the
first step in determining legislative intent is to determine whether the statutory language itself
is ambiguous. If it is not, we are limited to the plain meaning of the statutory language.

        We are instructed by our highest court to “initially look to the language of the statute
itself in determining the intent of the legislature. Courts are restricted to the natural and
ordinary meaning of the language used by the legislature in the statute, unless an ambiguity
requires resort elsewhere to ascertain legislative intent.” Browder v. Morrs, 975 S.W.2d 308,
311 (Tenn. 1998) (citing Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn. 1983)).
Appellate courts must “assume that the legislature used each word in the statute purposely,
and that the use of these words conveys some intent and has a meaning and purpose.” Id.
(citing Locust v. State, 912 S.W.2d 716, 718 (Tenn. Ct. App. 1995)). Thus, “[w]here the
words of the statute are clear and plain and fully express the legislature’s intent, there is no
room to resort to auxiliary rules of construction, and we need only enforce that statute as
written.” Id. (citing In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App.
1995) and Roberson v. Univ. of Tennessee, 912 S.W.2d 746, 747 (Tenn. Ct. App. 1995)).



                                               -6-
        Tennessee Code Annotated section 39-17-1324 states, in pertinent part,

               (a) It is an offense to possess a firearm with the intent to go armed
        during the commission of or attempt to commit a dangerous felony.

                (b) It is an offense to employ a firearm during the:
                (1) Commission of a dangerous felony; [or]
                (2) Attempt to commit a dangerous felony[.]

Tenn. Code Ann. § 39-17-1324(a), (b). Voluntary manslaughter qualifies as a dangerous
felony for purposes of this section. Tenn. Code Ann. § 39-17-1324(i)(1).

        The indictment charging the Defendant tracks the language of subsection (b).1
Subsection (b) criminalizes the employment of a firearm during the commission of a
dangerous felony, only subsection (a) uses the term “possess.” Under the plain language of
subsection (b), to employ or use a firearm in the commission of dangerous felony is a
criminal offense. Moreover, the plain language of subsection (a) does not evidence a
legislative intent to differentiate between lawful or unlawful possession of a firearm. The
Defendant does not dispute that he possessed a handgun or used it to shoot the victim.
Despite the great pains the Defendant goes through to convince this Court that the legislature
did not intend to criminalize lawful possession of a firearm, there is no need to resort to the
statute’s legislative history because the natural and ordinary meaning of the statute is not
ambiguous. See State v. Siliski, 238 S.W.3d 338, 362 (Tenn. Crim. App. 2007).

        As to the issue of guilt, voluntary manslaughter is defined as “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).
A person acts intentionally “when it is the person’s conscious objective or desire to engage
in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a). A person acts
knowingly “when the person is aware that [their] conduct is reasonably certain to cause the
result.” Tenn. Code Ann. § 39-11-302(b). The Defendant was also convicted of fabrication
of evidence. As charged, Tennessee law states that it is “unlawful for any person, knowing
that an investigation or official proceeding is pending or in progress, to . . . [m]ake, present,
or use any record, document or thing with knowledge of its falsity and with intent to affect
the course or outcome of the investigation or official proceeding.” Tenn. Code Ann. §
39-16-503(a)(2).



        1
          The jury instructions are not included in the record on appeal; therefore, we are unable to review
the precise charge to the jury relating to this offense.

                                                    -7-
        The evidence introduced at trial, viewed in the light most favorable to the State,
reflected that the Defendant and the victim were arguing after the Defendant terminated the
victim’s employment. After the victim hit the Defendant with his fist, the Defendant, using
his firearm, shot the victim. The jury chose to accredit the testimony of the State’s witnesses
that the victim was unarmed and that the Defendant planted the knife after the shooting to
support a theory of self-defense. Testimony established that the victim never carried a knife,
that the Defendant owned a knife similar to the one found at the scene, and that the
Defendant had made a comment that he would plant a knife if ever involved in a shooting.
The victim later died as a result of the gunshot wound, and the Defendant was charged with
and convicted of voluntary manslaughter, one of the statutorily-prescribed dangerous
felonies. Following our review, we concluded that the evidence was sufficient to sustain the
Defendant’s convictions for voluntary manslaughter, employment of a firearm during the
commission of voluntary manslaughter, and fabrication of evidence.2

II. Sentencing
       The Defendant takes issue with several sentencing determinations made by the trial
court. At the time of the sentencing hearing, the Defendant was forty-eight years old, was
divorced, and had two sons. The Defendant was born and raised in Kingsport. The
Defendant stated that he was still living with his ex-wife. The Defendant also submitted that
he had been employed by Kingsport Transfer Company since November 1979 until the date
of the shooting. The Defendant reported that he had never done any illicit drugs with the
exception of smoking some marijuana “socially” in his twenties. He reported his physical
health as good, although he did suffer from asthma. He also described his mental health as
“fair.” His criminal history showed a domestic violence charge against his stepmother in
April 2006; the presentence report reflects a disposition of “dismissed after 1 year reset.”

      The victim’s wife completed a Victim Impact Statement, wherein she stated as
follows:




        2
           The Defendant also argues that the trial court erred by refusing to grant his motion for judgment
of acquittal on all charges. This Court has noted that, “[i]n dealing with a motion for judgment of acquittal,
unlike a motion for new trial, the trial judge is concerned only with the legal sufficiency of the evidence and
not with the weight of the evidence.” State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). The
standard for reviewing the denial or grant of a motion for judgment of acquittal is analogous to the standard
employed when reviewing the sufficiency of the convicting evidence after a conviction has been imposed.
State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998); State v. Adams, 916 S.W.2d 471, 473 (Tenn.
Crim. App. 1995). We have already determined in the case herein that the evidence presented to the jury was
sufficient to convict the Defendant. Consequently, the trial court did not err in denying the motion for
judgment of acquittal as to these convictions.

                                                     -8-
       I strongly feel this man should have to spend life behind bars. Sam Ireson
       should get life and I do not think he should be eligible for probation, he took
       a life and tried to plant evidence to keep himself out of trouble. He took a
       husband from his family.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, 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). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant's own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

A. Judicial Diversion
        The Defendant argues that the trial court erred by denying his request for judicial
diversion on the voluntary manslaughter conviction and the fabrication of evidence
conviction. Specifically, he argues that the trial court failed to give adequate consideration
to his amenability for correction, his lack of a criminal record, and his social history. At the
sentencing hearing, the Defendant acknowledged that Tennessee Code Annotated section




                                              -9-
39-17-1324(e)(2) specifically prohibits judicial diversion for an individual convicted of
employment of a firearm during the commission of a dangerous felony.3

        “Judicial diversion is a legislative largess whereby a defendant adjudicated guilty may,
upon successful completion of a diversion program, receive an expungement from all
‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding
of guilty, and dismissal and discharge’ pursuant to the diversion statute.” State v. Schindler,
986 S.W.2d 209, 211 (Tenn. 1999). The effect of discharge and dismissal under the
diversion statute “is to restore the person . . . to the status the person occupied before such
arrest or indictment or information.” Id. (citing Tenn. Code Ann. § 40-35-313(b) (1997)).

        A criminal defendant is eligible for judicial diversion only if he has been convicted
of a misdemeanor or a class C, D, or E felony, and he must not have been previously
convicted of a felony or a Class A misdemeanor. Tenn. Code Ann. § 40-35-313(a)(1)(A).
However, eligibility under the diversion statute does not ensure the grant of diversion.
Indeed, the decision of whether to place a defendant on judicial diversion is within the sound
discretion of the trial court. State v. Harris, 953 S.W.2d 701, 705 (Tenn. Crim. App. 1996).
Thus, upon review by an appellate court, if “any substantial evidence [exists in the record]
to support the refusal,” the decision of the trial court will be upheld, and this Court will not
revisit the issue. State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983).

        In making the determination of whether to grant judicial diversion, the trial court must
consider the following factors: (a) the accused’s amenability to correction; (b) the
circumstances of the offense; (c) the accused’s criminal record; (d) the accused’s social
history; (e) the status of the accused’s physical and mental health; and (f) the deterrence
value to the accused as well as others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim.
App. 1997) (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993)). The
trial court should also consider whether judicial diversion will serve the ends of justice—the
interests of the public as well as the accused. Id. Additional factors which may be
considered include a defendant’s attitude, behavior since his arrest, home environment,
current drug usage, emotional stability, past employment, general reputation, family
responsibilities, and the attitude of law enforcement. Id. (citing State v. Washington, 866
S.W.2d 950, 951 (Tenn. 1993)).

        In making its determination to deny the Defendant’s request for judicial diversion, the
trial court considered the following factors:


        3
          Judicial diversion is available to a statutorily eligible defendant charged with multiple offenses.
See State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App.1997) (citing State v. Harris, 953 S.W.2d 701
(Tenn. Crim. App. 1996)).

                                                    -10-
[T]he first thing is the [D]efendant’s amenability to correction and on the one
hand, you know, [the Defendant] had had apparently other than the issue in
which he was placed on a type of probation. I mean there was never a plea but
the case was put off for a period of time, a domestic violence case was put off
for a period of time. Other than that I mean he really doesn’t have that I have
seen any criminal charges or anything that for which he had been required to
comply with conditions of release. In that case it was dismissed after
apparently the one year reset from . . . April of 06 to May of 07. This offense
didn’t occur until April of 08 but so in that sense that’s a positive for him on
amenability to correction. But on the other hand you have a situation where
the jury found, and I approved of the jury’s verdict, a situation where he
basically planted a knife to show that the victim in this case was armed and
therefore this was a self defense kind of case. The jury found that that
was—that the victim did not possess it, found that [the Defendant] planted it
and after he planted it he made statements to law enforcement and others that
basically was in a—the jury—I think from which a person could find that he
was deliberately lying to law enforcement about the facts and circumstances
of the offense. And when a person is willing to do that, you know, lie to law
enforcement and plant evidence in a case it basically puts them in a position
of not being a good candidate for being amenable to correction. The reason
is, is that if they’re going to lie to law enforcement to protect themselves then
they’re going to lie to their probation officer and basically just do whatever
they can to get out of doing whatever it is that they might be responsible for
doing. So I find that you have a very—that that’s a negative, that your
amenability to correction is frankly low based upon the facts and
circumstances of this case.

       Number two, under the circumstances of the case I find that that is a
negative as well basically for the reason I just stated in talking about
amenability to correction, the fact that the knife was planted, the fact that you
apparently lied to law enforcement about the facts and circumstances and, you
know, the thing that kind of struck me as being very cavalier on your part, too,
was is that after this occurred you basically went and just kind of waited for
law enforcement, drank a beer. It was like, you know, “I have a carry permit
and how could I have done any wrong because, you know, it’s my business and
there’s the knife on the ground.” Of course you knew at the time and the jury
found that you planted it but that frankly I just think that you had a very, very
cavalier approach to what happened and to this person’s death so under the
circumstances of the offense I think that’s a negative to granting you deferral
of judgment.

                                      -11-
        Of course the only criminal record you have now is as a result of the
offense in this case and the gun charge but other than that you don’t have that
I found any criminal record. You do have a self-admitted brief criminal
history 25 years ago where you were using marijuana as you indicated socially
but I give that very little weight with regard to criminal history.

       Your social history, of course I mean you have been married. You do
have children. I’m not aware if you worked with your stepmother at some
various points in time, I guess with your father, too, generally in this area so,
you know, your social history—the only thing that is a little bit of a concern
is the domestic violence charge that occurred in 2006 but I don’t have any
information on that other than what’s in the report that it was reset for a year
so I’m going to—I don’t find that either a positive or negative.

        Mental and physical health, there’s really not been any—there’s nothing
in the report, nothing that I’ve heard here today that would create a problem.
He indicates that his mental health is fair, that his physical health is good so
nothing one way or the other with regard to that as regard of deferral of
judgment.

        Deterrence value to the [D]efendant and to the others, of course, you
know, the thing that is so upsetting from the [c]ourt’s perspective, you talk
about someone having a gun permit. You know, there has been a lot of
discussion in the legislature and in the press and others about individuals
having the right to have a gun permit and to carry that permit and when
someone has a gun permit they, just like with law enforcement, they have a
responsibility to act responsibly and there was a lot of things that I heard
during the trial that caused me to feel that [the Defendant], rather than taking
his position as a gun permit holder as a responsible position and that he had a
responsibility to others, I mean it was a situation where he used the weapon
frankly as an intimidating factor, the fact that he, you know, it was a weapon
that he carried openly so that everybody could see that he had a weapon. And
while you know there was testimony that he carried it because he had cash I
think it was clear that the reason that he did it was to intimidate others whether
it be employees or his stepmother or others. I mean in my opinion, you know,
when you have a weapon you have a responsibility to handle that weapon in
a responsible manner. And I don’t believe that [the Defendant] did and I don’t
believe that he felt, based on his actions after this, that he felt that in any way
he had done any wrong and I’m not talking about the fact that he hasn’t taken
responsibility, because obviously he testified under oath that he believed that

                                       -12-
       he saw something and that he had the right to respond, that he felt like there
       was deadly force but the jury found otherwise and I listening to the evidence
       was otherwise as well. And I believe there is a deterrence value that just
       because you have a gun and just because you say that you felt like that you
       were going to be assaulted I mean in my opinion I just don’t think that was the
       case. I think he planted the knife because he realized he had done wrong. So
       I think there’s a deterrence value to that in this case. So I think that’s a
       negative to granting deferral of judgment and for the things that I’ve just said
       I don’t believe that judicial diversion will serve the interest of the public as
       well as the [D]efendant, that just because you have a valid carry permit you do
       have responsibilities not to lie and not to use the gun just because you have
       the—you can use the gun. Because even though you have the right to use the
       gun, in this case when you use it to commit voluntary manslaughter and
       frankly in this case, I mean I think it could have easily been second degree
       murder. I think a jury could have found that it was second degree murder. I
       mean I know that based upon statements that you had made with regard
       to—allegedly made with regard to that, you know, I think a jury perhaps could
       have found second degree murder. So in my opinion I don’t think deferral of
       judgment or judicial diversion is appropriate in this case that the court should
       find that you’re eligible based on all those factors.

        Our review of the record reflects that the trial court gave full and proper consideration
to the criteria that must be considered prior to the grant or denial of judicial diversion. The
evidence in the record supports the trial court’s conclusion; therefore, we may not revisit the
issue. We cannot conclude that the trial court abused its discretion. The decision of the trial
court denying judicial diversion is affirmed.

B. Length of Sentence
       The Defendant contends that the trial court erred in setting the length of his sentences
for voluntary manslaughter and fabrication of evidence, both Class C felonies.4 See Tenn.
Code Ann. §§ 39-13-211(b), -16-503(b). The Defendant’s conduct occurred subsequent to
the enactment of the 2005 amendments to the Sentencing Act, which became effective June
7, 2005. The amended statute no longer imposes a presumptive sentence. Carter, 254
S.W.3d at 343. As further explained by our supreme court in Carter,

       the trial court is free to select any sentence within the applicable range so long
       as the length of the sentence is “consistent with the purposes and principles of


       4
        The Defendant’s firearm conviction requires a mandatory minimum six-year sentence. See Tenn.
Code Ann. § 39-17-1324(h)(1).

                                               -13-
       [the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).

       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

        As a Range I standard offender, the Defendant faced a potential sentence of three to
six years for each Class C felony sentence. See Tenn. Code Ann. § 40-35-112(a)(3). The
trial court enhanced the Defendant’s sentences based on a finding that he possessed or
employed a deadly weapon during the commission of the offenses and had no hesitation
about committing a crime when the risk to human life was high. See Tenn. Code Ann. §
40-35-114(9), (10). The court awarded some mitigation based on his lack of a criminal
record and excellent work history.

        The Defendant argues that the trial court failed to give adequate consideration to his
lack of a criminal record and excellent work history and failed to apply mitigating factors (2),
the Defendant acted under strong provocation, and (11), the Defendant committed the offense

                                              -14-
under unusual circumstances that it is unlikely a sustained intent to violate the law motivated
the criminal conduct. See Tenn. Code Ann. § 40-35-113(2), (11), (13). He does not make
any challenge to the trial court’s application of enhancement factors. The State argues that
the record supports the application of enhancement factors (9) and (10) and that the trial
court did consider mitigating factors (2) and (11), properly finding that they did not apply.

        Although the Defendant does not raise it as an issue on appeal, we conclude that the
trial court erred by applying enhancement factor (9), that the Defendant possessed or
employed a firearm during the commission of the offense, to the Defendant’s voluntary
manslaughter conviction because the Defendant was separately indicted and convicted of the
offense of employing a firearm during the commission of the voluntary manslaughter. See
State v. Brian Hervery, No. W2010-00675-CCA-R3-CD, 2011 WL 1225725, at *9 (Tenn.
Crim. App., Jackson, Mar. 31, 2011). We find no error in the trial court’s application of
enhancement factor (9) to the Defendant’s fabrication of evidence conviction because the
proof showed that the Defendant continued to possess the firearm throughout the entire
altercation at the back of the truck, including when he planted the knife.

       Regarding the trial court’s enhancement of the Defendant’s sentence based on his
commission of a crime when the risk to human life was high, we conclude the record does
support its application to the Defendant’s voluntary manslaughter conviction. This factor
may be applied when individuals other than the victim may have been harmed by the
commission of the offense. See State v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002). Here,
there was evidence that there were several others present at the time of the shooting; Mr. Guy
and Mr. Gibson were extremely close to the altercation. Therefore, the trial court did not
abuse its discretion in applying this enhancement factor to the Defendant’s conviction for
voluntary manslaughter. However, there was no proof to support application of this factor
to the Defendant’s fabrication of evidence conviction, and an enhancement factor may be
considered only if it is “appropriate for the offense[.]” See Tenn. Code Ann. § 43-35-114.

        The Defendant argues that the trial court did not give proper weight to his lack of a
criminal record and his excellent work history and erred by failing to apply mitigating factors
(2) and (11). The Defendant is mistaken in his assertions. In its sentencing determination,
the trial court did consider the specific statutory mitigating factors, but found none applicable
to the Defendant. The trial court did take into account the Defendant’s lack of a criminal
record, but gave it very little weight. The trial court also considered the Defendant’s
excellent work history.

       Given the facts of this case, we conclude that enhancement factor (9) was properly
applied to the fabrication of evidence conviction and enhancement factor (10) was properly
applied to the voluntary manslaughter conviction. Thus, despite the misapplication of

                                              -15-
enhancement factors, and given the non-binding nature of enhancement factors and the
discretion now afforded to trial courts under our new sentencing laws, we affirm the sentence
as imposed. We conclude that the trial court did not err or abuse its discretion in setting the
Defendant’s sentences at five years for both of his Class C felony convictions.

C. Consecutive Sentencing
        Finally, the Defendant challenges the trial court’s decision to run his fabrication of
evidence sentence consecutively to his sentences for voluntary manslaughter and employment
of a firearm during the commission of a dangerous felony.5 Tennessee Code Annotated
section 40-35-115 provides that a trial court may, in its discretion, impose consecutive
sentencing when it finds any one of a number of different factors by a preponderance of the
evidence, including that the defendant is a dangerous offender whose behavior indicates little
or no regard for human life and no hesitation about committing a crime in which the risk to
human life is high. Tenn. Code Ann. § 40-35-115(b)(4). When a trial court bases
consecutive sentencing upon its classification of the defendant as a dangerous offender, it is
required to make further findings that the aggregate length of the defendant’s sentence
reasonably relates to the severity of his offenses and is necessary to protect the public from
further criminal conduct of the defendant. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn.
1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995).

        As to the consecutive service, the trial court ruled as follows:

        I do find . . . that this was a case when the risk to human life was high not only
        with regard to the deceased in this case but the others that were around and I
        find that the [D]efendant’s actions at the time of the crime and afterwards, the
        planting of the evidence and basically just drinking a beer, shows that he really
        has no regard for human life. The way he possessed the weapon and displayed
        his weapon as a sidearm when he went into the bank or when he went there in
        front of his [stepmother] at the business or whereever he went, carried this
        weapon, showed in my opinion that he was very cavalier about the carrying of
        that weapon and frankly in my opinion shows that he just really didn’t have a
        whole lot of—had little or no regard for human life based upon his actions at
        the time. So I find that that factor applies. I also find, too, that in this
        particular case that an extended sentence is necessary to protect the public
        against further criminal conduct by the [D]efendant, again based upon the
        nature and circumstances of this crime and the fact that the [D]efendant, you


       5
         The sentence for employment of a firearm during the commission of a dangerous felony shall be
served consecutively “to any other sentence the person . . . is sentenced to serve for conviction of the
underlying dangerous felony.” See Tenn. Code Ann. § 39-17-1324(e)(1).

                                                 -16-
       know, lied to law enforcement and planted evidence. In my opinion I think he
       would still continue to commit those kinds of things and because of the nature
       of this case, the fact that it involves not only a death but also planting of
       evidence to take away any responsibility for the death in this case I find that
       its reasonably related to the severity of the offense committed so in my opinion
       those two sentences should be consecutive to each other so each of those
       sentences, the 5 years should be consecutive to each other.

       In our view, the trial court properly ordered consecutive sentences on the grounds that
the Defendant is a dangerous offender. The trial court made the required findings, and they
are supported by the record.

                                       Conclusion
        Based upon the foregoing reasoning and authorities, the judgments of the trial court
are affirmed.




                                                    _________________________________
                                                    DAVID H. WELLES, JUDGE




                                             -17-
