        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                           FILED
                            AT KNOXVILLE
                                                          October 6, 1999

                         MARCH 1999 SESSION              Cecil Cro wson , Jr.
                                                        Appellate Co urt Clerk




STATE OF TENNESSEE,          )       C.C.A. 03C01-9711-CR-00504
                             )       JOHNSON COUNTY CRIMINAL
                             )
            Appellee,        )       Hon. Arden L. Hill, Judge
                             )
                             )
                             )
vs.                          )       (SETTING FIRE TO
                             )       PERSONAL PROPERTY,
                             )       ASSAULT)
WILLIAM W. CARPENTER,        )
                             )       NO. 2788
                             )
            Appellant.       )



FOR THE APPELLANT:                         FOR THE APPELLEE:



GERALD L. GULLEY, JR., ESQUIRE             PAUL G. SUMMERS
P.O. Box 1708                              Attorney General & Reporter
Knoxville, TN 37901

ROBERT Y. OAKS                             TODD R. KELLEY
Assistant Public Defender                  Assistant Attorney General
Main Courthouse                            425 Fifth Avenue North
Elizabethton, TN 37643                     2nd Floor, Cordell Hull Bldg.
                                           Nashville, TN 37243

                                           JOE C. CRUMLEY, JR.
                                           District Attorney General

                                           KENT W. GARLAND
                                           Assistant District Attorney
                                           Main Street, Unicoi County
                                            Courthouse
                                           Erwin, TN 37650



OPINION FILED:_________________


AFFIRMED


CORNELIA A. CLARK
Special Judge




                                 1
                                    OPINION


       The appellant, William W . Carpenter, appeals as of right the sentencing

determination of the Johnson County Criminal Court.           The appellant was

convicted of setting fire to personal property, a Class E felony, and assault, a

Class A misdemeanor. The court imposed an eighteen month sentence for

setting fire to property, to be served concurrently with an eleven month,

twenty-nine day sentence for the assault. All but ninety days of each sentence

was suspended. The sole issue raised by appellant on appeal is whether the

trial court erred in failing to grant complete probation. For the reasons set forth

below, we affirm the judgment of the trial court.



       In September 1995 appellant was married to Shelly Carpenter. Mrs.

Carpenter was then engaged in a romantic relationship with another man,

James David Kennedy. Kennedy and the appellant had argued previously, and

the appellant directed Mr. Kennedy not to continue seeing his wife. However,

Mr. Kennedy did continue the relationship with Mrs. Carpenter.



       Kennedy testified at trial that on September 8, 1995, he and Mrs.

Carpenter spent the evening “frolicking around” in the woods before later

returning to the Carpenter residence. While they were sitting on the back steps

the appellant burst out of the house and struck Kennedy on the head with a

piece of fire wood. According to Kennedy, he rolled off the steps into the dirt.

The blow impaired his vision and hearing. As he tried to get to his feet, the

appellant struck him several times.      He began to bleed profusely.       When

Kennedy finally managed to stand up and lean on the fender of a nearby truck,

the appellant came back out of the house with a shotgun, and made Mrs.

Carpenter and Kennedy go inside. Appellant stated that he intended to kill all

three of them.




                                        2
       Once inside the house, Kennedy testified that the appellant took a

wooden dowel rod and swung at him. Kennedy managed to duck or avoid

being hit each time. Kennedy finally was able to lift a chair to defend himself.

He feared for his life throughout the ordeal.       At one point appellant went

outside and tried to blow up Kennedy’s car.           Mrs. Carpenter eventually

managed to leave and call the sheriff’s department. Kennedy also testified that

appellant hit his wife several times, including once on the shoulder and once on

the thigh.



       After Mrs. Carpenter left, Kennedy testified that appellant “went ballistic”

and again began beating him with a steel bar. Kennedy put his arms up to

protect himself. Both arms were broken by the blows. Appellant then began

“whaling on” his legs. Kennedy was afraid to run because appellant kept his

shotgun nearby.    Appellant then began trying to destroy Kennedy’s knees.

Appellant’s anger grew and his blows got harder. At one point he used a

hunting knife to cut Kennedy’s clothes off, and inflicted numerous stab wounds

in the process. Appellant put his shotgun to Kennedy’s face and said he was

going to blow Kennedy’s brains out. Kennedy believed he was going to die,

and began to pray. While he was on his knees appellant hit him over the back

of the head, probably knocking him unconscious.              The next thing he

remembered was appellant holding his legs spread-eagled while hitting his

groin area with a steel bar. Appellant told Kennedy he was going to castrate

him and feed his private parts to the dogs. The intense pain again caused

Kennedy to lose consciousness. When he awoke again appellant had left the

house. Kennedy heard a boom and saw a large flash of light. He knew it was

his van beginning to burn. At that time Kennedy was unable to move. A bone

was protruding from one of his legs. Shortly thereafter help arrived.




                                        3
          The appellant, a Vietnam veteran, testified but described the encounter

much differently. He confirmed that in June 1995, he had confronted Kennedy

about the affair with his wife and instructed Kennedy not to see her again. On

July 13 the Carpenters formally separated and Mrs. Carpenter and the children

moved out of the residence. Appellant continued his job as a long haul truck

driver.



          On Friday, September 8, 1995, appellant testified that he returned from

a road trip and found his driveway gate locked with a strange lock. Afraid that

someone was stealing from him, he left his vehicle and walked up the long

driveway. When he arrived at the house he recognized David Kennedy’s van.

He entered the house through the back door. He found his son’s shotgun lying

in the living room. It was loaded. He then testified that he knew “what was

going on.” He called to his wife and Kennedy upstairs, and Kennedy replied.

After a short time Mrs. Carpenter and Kennedy came downstairs. Appellant

testified that he assumed Kennedy thought he was about to receive a

thrashing, but that appellant hoped things would work out. However, Kennedy

pushed at appellant. Appellant at this point only intended to thrash or “whoop”

Kennedy, and did not intend to kill him. After Kennedy pushed him, appellant

testified the men began a fist fight , out the door and down the steps. He

admitted he struck one blow that “addled” Kennedy. Appellant testified that he

hoped to get in one more good lick and end the fight. However, Kennedy

picked up a piece of firewood and hit appellant across the arm. According to

appellant, “Then I knew in my heart that the fight was on.”



          Appellant admitted making animal growls in response to blows he

received. He stated he did not intend to kill Kennedy, but only to put him on

the ground and walk away. He testified that his arm was useless, but he

continued to fight Kennedy and eventually put him on the ground. However,

Kennedy got up and ran into the house with Mrs. Carpenter. Rather than



                                         4
leaving, appellant followed him to tell both parties to leave. Appellant testified

that it was Kennedy who picked up the dowel rod. Appellant grabbed Kennedy

by the neck and pants and tried to throw him out the door. Kennedy attacked

him with the rod and they continued to give each other parry blows. Appellant

took the rod from Kennedy, who then apologized and asked to stop the fight.

When Kennedy continued to express fear appellant even handed him the rod

back. He denied ever threatening to kill Kennedy.



       Appellant testified he then asked Kennedy and his wife to sit down, and

began lecturing them on the evils of their actions. He admitted that his tone

was very forceful, and he concluded by saying that if Kennedy did not leave

him alone he would thrash him again. Appellant stated that his wife picked up

the shotgun and told Kennedy it was unloaded. Mrs. Carpenter then ran to get

help. Kennedy tried to grab the steel rod and came at appellant, who threw his

arm up and was hit in the wrist. Kennedy fell on top of appellant and they

began wrestling. Appellant testified that he never intended to kill Kennedy, but

did decide to “render this man so helpless that all he could do was lay there . .

.” and then go report this incident to law enforcement officers. Appellant

admitted he attempted several blows to Kennedy’s groin area, trying to render

him helpless. He continued to strike Kennedy’s ankles and legs because he

was still struggling. Appellant never intended to hit a death blow. Finally,

Kennedy started reciting the Lord’s Prayer and appellant knew he had “done

the job [he] needed to do . . .” He then gave Kennedy a cigarette. Appellant

knew without a doubt Kennedy was fine. At trial appellant expressed remorse

and testified that everything he did was in self-defense. He also denied ever

drawing a knife.




                                        5
      Appellant stated he then left the house.       As he passed by Kennedy’s

van he noticed some of his own tools inside. He also noticed photographs of

his wife. This discovery infuriated him. Observing a five-gallon can of gas

sitting in the van, appellant reasoned that since Kennedy had trespassed and

taken his tools, it was reasonable to burn his van. He said:



              The old van ain’t no good anyway, and I’ll make sure
              he don’t drive it away from here even though he may -
              - I left him one good leg. I didn’t leave the man to
              where he couldn’t fend for himself as far as whatever.
              I mean, I didn’t kill this man to the point, or hurt him to
              the point of - - that he still wasn’t capable of doing
              things for himself.

                                       . . .


              I felt at this point the van actually belonged to me.



      Shelly Carpenter testified for the state as a rebuttal witness. She stated

she had moved back into the marital home on September 7 because her

husband was on the road and told her she could stay there. She did not expect

him home on September 8.          Mrs. Carpenter remembered a “terrible fight”

between the men, involving a steel bar, a wooden stick of some kind, and a

long gun that was unloaded. She saw appellant first hit Kennedy with either the

bar or the wooden stick. Appellant hit Kennedy on his arms, legs and head.

She went looking for the gun, which she had loaded earlier in the day for

protection. She found it unloaded. She remembered her husband picking it up,

but could not remember if he threatened anyone. She did admit to being very

frightened.



      Mrs. Carpenter testified that her husband took out several knives,

started sharpening them, and commented that he ought to castrate Kennedy.

She left to look for help, and did not observe anything else inside. She did see

appellant flatten all the tires on Kennedy’s van and get a gas can. She did not

see what he did with the can. When she last saw Kennedy he was sitting up,


                                         6
but had blood on his arms and head.



         Mrs. Carpenter stated that she could not remember who struck the first

blow.     She also admitted on cross-examination that she lied during her

testimony at the preliminary hearing in November 1995. At that hearing her

testimony was very similar to that of Mr. Kennedy. In particular she testified at

the preliminary hearing that the fight began outside on the porch and that

appellant attacked Kennedy first. She remembered many more details of the

process of the fight at the preliminary hearing than she did at trial.



         Both Kennedy and his treating physician testified about his injuries. As

a result of the incident Kennedy suffered a broken right wrist, two broken

arms, and a fractured left leg and left ankle. He also had numerous lacerations

on his head and back, bruises and swelling about the face, and a blunt trauma

injury to his spleen which necessitated its removal. Kennedy retains metal

plates in his arms. Appellant did not seek medical treatment after the fight.



         Appellant was initially charged with the aggravated assault of Shelly

Carpenter; the attempted first degree murder of James David Kennedy; and

setting fire to Kennedy’s personal property.     After a jury trial, appellant was

found not guilty of any offense against Mrs. Carpenter, guilty of assault, a

Class A misdemeanor, as to Mr. Kennedy, and guilty of setting fire to

Kennedy’s personal property, a Class E felony. The trial court sentenced him

to eleven months twenty-nine days for the assault and eighteen months for

setting fire to personal property. The sentences were ordered to be served

concurrently. Each sentence was suspended after the service of ninety days.

On the felony offense the appellant was placed on supervised probation for five

years.


         In his brief appellant raises only a sentencing issue: whether he should

have been granted complete probation as to the sentences imposed for each

conviction. When an accused challenges the length, range or the manner of


                                         7
service of a sentence, this court conducts a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

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). The burden is on the appealing party to show that

the sentence is improper.       Tenn. Code Ann.§40-35-401(d) Sentencing

Commission comments.



      A defendant is eligible for probation if the sentence imposed is eight

years or less. 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, the appellant has the

burden of establishing suitability for total probation. State v. Boggs, 932 S.W.

2d 467, 477 (Tenn. Crim. App. 1996).



      In determining whether to grant or deny probation, the trial court should

consider the circumstances of the offense, the appellant’s criminal record,

social history and present physical and mental condition, the need for

deterrence, the accused’s potential for rehabilitation, and the best interest of

the appellant and the public. State v. Parker, 932 S.W. 2d 945, 959 (Tenn.

Crim. App. 1996); State v. Grear, 568 S.W. 2d 285, 286 (Tenn. 1978).




                                       8
          The trial court based its decision to impose incarceration for the

offenses        upon several factors, including (1) the existence of several

enhancement factors, (2) the seriousness of the offense and the necessity to

avoid depreciating the seriousness of the injuries inflicted on the victim, (3) the

cruelty of the appellant’s actions, and (4) his lack of regard for the risk to

human life. All of these are valid considerations. Even given these concerns,

the court suspended all but ninety days of the sentences.



          We give great deference to the trial court who was in a position to judge

the appearance and demeanor of the appellant. The action of the trial court

was justified.        Appellant has not shown he is a favorable candidate for

complete probation. His concern about his reaction to incarceration based on

his post-traumatic stress disorder apparently has been addressed by the trial

court.1



          For the reasons set forth above, we affirm the judgment of the trial court

in all other respects.



                                                        ______________________________
                                                        CORNELIA A. CLARK
                                                        SPECIAL JUDGE


_______________________________
GARY R. WADE
PRESIDING JUDGE



_______________________________
NORMA McGEE OGLE
JUDGE




1
  Under the terms of an “Agreed Order” entered November 12, 1997, the judgment order was
am end ed to reflec t that a ppe llant w ould report to jail in Carter County on Janu ary 1, 1 998 , wou ld
stay for 120 days rather than ninety days, would be granted work release, and would be permitted
to sleep in the chapel area of the jail rather than “behind actual bars”.


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