         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs October 24, 2006

            STATE OF TENNESSEE v. JACOB ALLEN REYNOLDS

                   Direct Appeal from the Circuit Court for Blount County
                         No. C-15553    D. Kelly Thomas, Jr., Judge



                    No. E2005-02768-CCA-R3-CD - Filed March 30, 2007


The defendant, Jacob Allen Reynolds, pled guilty to one count of vandalism (Class C felony) and,
after a sentencing hearing, was ordered to serve four years of confinement in the Department of
Correction as a Range I, standard offender. Additionally, he was ordered to pay restitution to the
victims in the amount of $11,407.75. On appeal, the defendant contends that the trial court erred in
sentencing him to four years of confinement. After careful review, we hold that no error exists and
affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and JAMES CURWOOD WITT , JR., J., joined.

Kristi M. Davis, Knoxville, Tennessee (on appeal), and Charles A. Carpenter, Maryville, Tennessee
(at trial), for the appellant, Jacob Allen Reynolds.

Robert E. Cooper, Jr., Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney
General, for the appellee, Jacob Allen Reynolds.

                                            OPINION

                                   Facts and Procedural History

        The defendant and four co-defendants were responsible for vandalizing a Maryville
restaurant, La Lupita. After the vandals broke the windows and doors, they entered the restaurant
and damaged a stand-alone cooler. They spray-painted the building and a car with swastikas, White
Power, and SS Power signs. The defendant claimed they did not have any racial motivation for the
vandalism but acknowledged they were trying to upset the owners of the Mexican restaurant and
grocery store. Although the defendant claimed that he was not a racist and was sorry for his actions,
he acknowledged that he listened to racist songs and believed that Adolph Hitler was an intelligent
and “war-wise” man.

        During the sentencing hearing, the defendant admitted that he had previously been in trouble,
which included being expelled from school for fighting and for carrying a weapon to school. He
further admitted that he was placed on probation for those incidents and that he later violated that
probation by fighting at school. He was placed on intensive probation and was eventually sent to
Mountain View Youth Development Center and to Taft Youth Development Center for probation
violations. He had also been placed on probation previously and had been ordered to pay restitution
for stealing golf carts. He acknowledged having an extensive criminal history and testified that he
had several additional delinquent adjudications as a juvenile.

       The detective that headed the investigation into the vandalism testified at the sentencing
hearing that it was the defendant’s idea to vandalize the restaurant.

                                               Analysis

        The defendant argues that the trial court improperly sentenced him to serve four years in
confinement. Specifically, he contends that the trial court improperly applied enhancement and
mitigating factors and erred by denying alternative sentencing. The State argues that the trial court
properly sentenced the defendant to four years of confinement.

I. Enhancement and Mitigating Factors:

        First, the defendant argues that the trial court failed to apply appropriate mitigating factors
and incorrectly applied enhancement factors. He asserts that the trial court should have applied
Tennessee Code Annotated section 40-35-113(6), a mitigating factor that considers a defendant’s
llack of substantial judgment in committing the offense because of youth or old age. To support his
claim, he points to his “troubled youth” and alcohol and drug abuse; he contends that he simply
lacked judgment in his actions and that he had never been given the tools with which to make
appropriate decisions. The State argues that the defendant’s juvenile delinquent history provided
him with all the tools he would need to make the appropriate decision in this situation. The State
asserts, and we agree, that the defendant had the ability to appreciate the nature of his conduct; the
vandalism was simply another criminal act to add to his history of unlawful conduct. This court has
previously held that a defendant’s extensive involvement with the criminal and juvenile justice
systems may negate this mitigating factor. See State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim.
App. 1995).

        He also argues that the court should have considered the defendant’s remorse as a mitigating
factor, pursuant to Tennessee Code Annotated section 40-35-113(13). In support of his argument,
the defendant cites testimony at the sentencing hearing when he said that he was truly sorry for his
actions and that he felt ashamed. He contends that the six months he spent in jail allowed him the
opportunity to reflect on his behavior and that he desired to take his life in a different direction. The


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State argues that the defendant provided no evidence of his remorse other than his own testimony
and cites to this court’s decision in State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App.
1995), in which a panel of this court stated that “the mere speaking of remorseful words or a
genuflection in the direction of remorse will not earn an accused a sentence reduction.” The State
correctly points out that, during the sentencing hearing, the defendant failed to accept responsibility
for his actions. He denied spray painting racist messages even though the trial court concluded that
the defendant’s involvement was clear. It was further pointed out during the sentencing hearing that
the defendant initially blamed his co-defendants, minimized his own involvement, and was
untruthful about his part in the spray-painting. The record reflects that the defendant failed to
demonstrate his remorse and to accept responsibility for his actions; therefore, mitigating factor (13)
is not applicable.

        The defendant argues that the trial court improperly enhanced his sentence by applying
Tennessee Code Annotated section 40-35-114(17): that “the defendant intentionally selected the
person against whom the crime was committed or selected the property that was damaged or
otherwise affected by the crime, in whole or in part, because of the defendant’s belief or perception
regarding the race, religion, color, disability, sexual orientation, national origin, ancestry, or gender
of that person or the owner or occupant of that property. . . .” The trial court found that three
enhancement factors applied to the defendant’s sentence, but the defendant contests only
enhancement factor (17) on appeal. The defendant claims that his actions were not motivated by
racial animosity. The State argues that the circumstances of the offense show otherwise, and we
agree. The defendant claimed that the “iron-cross” he painted was a symbol of the West Coast
Choppers and was also symbolic of independence in Ireland. The defendant’s actions in spray
painting this symbol on the car outside the restaurant, considered along with the evidence that the
co-defendants painted racist and hate symbols on the restaurant, make it likely that this symbol was
painted to complement the other symbols. Further, the defendant’s admission that he had listened
to music containing racist messages and that he believed Adolph Hitler was an intelligent and “war-
wise” man is contrary to his contention that he was not a racist or that the property owner’s race had
no bearing on this crime. Based on this evidence, the trial court properly applied enhancement factor
(17) in sentencing the defendant.

        Under the sentencing guidelines, if there are enhancing and mitigating factors for a Class C
felony, the court must start at the minimum sentence in the range, enhance within the range as
appropriate for the enhancement factors, and then reduce the sentence within the range for the
mitigating factors. T.C.A. § 40-35-210(e). The record demonstrates that the trial court complied
with the sentencing guidelines and that the defendant’s arguments as to enhancement and mitigating
factors are without merit. The trial court properly enhanced the sentence of the defendant one year
above the minimum sentence in the range.

II. Alternative Sentencing

      Next, the defendant argues that the trial court erred in denying him an alternative sentence.
He contends that he was eligible for both probation and community corrections and that the trial


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court’s denial of these alternatives to confinement was improper. The State argues that the trial court
appropriately sentenced the defendant and contends that the defendant’s extensive record supports
the trial court’s sentencing determinations. We agree.

        Initially, we note that 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. T.C.A. § 40-35-102(6). However, this presumption is not available to a
defendant who commits the most severe offenses, has a criminal history showing clear disregard for
the laws and morals of society, and has failed past efforts at rehabilitation. Id. § 40-35-102(5); State
v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The court should also examine the defendant’s
potential for rehabilitation, or lack thereof, when considering whether alternative sentencing is
appropriate. T.C.A. § 40-35-103(5). Sentencing issues must be decided in light of the unique facts
and circumstances of each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

        In determining if incarceration is appropriate, a trial court may consider: the need to protect
society by restraining a defendant having a long history of criminal conduct; the need to avoid
depreciating the seriousness of the offense; whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses; and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. T.C.A. § 40-35-103(1); see also State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

         In the instant case, the court found that the presumption for alternative sentencing was
overcome because the defendant had an extensive delinquent and criminal history and had failed at
numerous past efforts at rehabilitation. The defendant admitted during his testimony at the
sentencing hearing that he violated his juvenile probation numerous times, so much so that he was
committed to two different juvenile rehabilitation centers. Further, the court found that the
defendant began committing delinquent acts just a few months after his release from one facility and
that he committed this major felony in just a little more than a year after he left Taft Youth
Development Center. The trial court properly found that confinement was necessary to avoid
depreciating the seriousness of the offense. The defendant’s criminal activity was a hate crime, and
the trial court sentenced him appropriately. Additionally, the trial court properly found that measures
less restrictive than confinement have frequently or recently been applied unsuccessfully to the
defendant. This defendant had numerous opportunities to comply with the requirements of his prior
probation and failed to do so each time.

        The defendant also argues that the trial court erred in denying him the opportunity to serve
his sentence on community corrections. However, the trial court found the defendant did not meet
those requirements. His extensive delinquent and criminal history and his numerous failed past
efforts at rehabilitation were proper for the trial court to consider. The burden is on the appealing
party to show that his sentence is improper. T.C.A. § 40-35-401(d), Sentencing Commission
Comments. The defendant, quite simply, has not met his burden of showing that the sentence
imposed by the trial court is improper. Therefore, we conclude that the trial court properly sentenced
the defendant to four years of confinement.


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                                    Conclusion

Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.




                                              ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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