         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON                 FILED
                           MAY SESSION, 1997              July 25, 1997

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,          )    C.C.A. NO. 02C01-9605-CC-00150
                             )
      Appellee,              )
                             )    McNAIRY COUNTY
                             )
V.                           )
                             )    HON. JON KERRY BLACKWOOD,
EDDIE MILLER,                )    JUDGE
                             )
      Appellant.             )    (RECKLESS HOMICIDE)




FOR THE APPELLANT:                FOR THE APPELLEE:

GARY F. ANTRICAN                  JOHN KNOX WALKUP
District Public Defender          Attorney General & Reporter
118 East Market Street
P.O. Box 700                      DEBORAH A. TULLIS
Somerville, TN 38068              Assistant Attorney General
                                  425 Fifth Avenue North
                                  2nd Floor, Cordell Hull Building
                                  Nashville, TN 37243

                                  ELIZABETH T. RICE
                                  District Attorney General

                                  ED NEAL McDANIEL
                                  Assistant District Attorney General
                                  300 Industrial Park Drive
                                  P.O. Box 473
                                  Selmer, TN 38375



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                OPINION

             Defendant was charged with the offense of second degree murder

of Jeff W estbrooks in an indictment returned by the McNairy County grand jury.

He was convicted of the lesser offense of reckless homicide following a jury trial.

The trial court sentenced Defendant to serve forty (40) months in the Tennessee

Department of Correction as a Range I standard offender.            In this appeal,

Defendant challenges the sufficiency of the evidence to sustain the conviction,

and argues that the trial court erred in the length and manner of service of the

sentence. W e affirm the judgment of the trial court.



                    I.   SUFFICIENCY OF THE EVIDENCE



             W hen an accused challenges the sufficiency of the convicting

evidence, the standard is whether, after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses,

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, not this court. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn.

1987).   Nor may this court reweigh or reevaluate the evidence.            State v.

Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978).




                                        -2-
             A jury verdict approved by the trial judge accredits the State’s

witnesses and resolves all conflicts in favor of the State. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest

legitimate view of the evidence and all inferences therefrom. Cabbage, 571

S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence

and replaces it with a presumption of guilt, the accused has the burden in this

court of illustrating why the evidence is insufficient to support the verdict returned

by the trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace,

493 S.W.2d at 476.



             The State’s proof was that Defendant, who was fifty-one (51) years

old at the time of the offense on March 3, 1995, resided with his girlfriend, Beverly

Taylor, and her children in Selmer, Tennessee. One of her children, Candy

Taylor, had been dating the victim. On the weekend immediately preceding the

victim’s demise, the Defendant and his girlfriend had accom panied other adults

on a trip out of town. They were gone all night and returned home early the next

morning, finding the victim and Candy Taylor together, after they had spent the

night with each other. The victim was told not to come back to the house again

unless he had permission from the Defendant or Beverly Taylor.



             In the early evening hours of March 3, 1995, Candy Taylor contacted

the victim and asked him to deliver som e food to her from a fast food restaurant.

A few hours later, the victim arrived as a passenger in a vehicle with one of his

friends.   Candy Taylor went outside to talk to the victim, who at that time

remained inside the vehicle. The Defendant got up from the couch inside the

home, and went into his bedroom for a short period of time. He then went

                                         -3-
outside and went up to the driver’s side window of the vehicle in which the victim

was seated. The Defendant and victim exchanged words, and the victim got out

of the vehicle on the passenger side as Defendant walked around the back of the

vehicle and walked up the side of the vehicle toward the victim.



              The Defendant had a .38 caliber Derringer pistol, which was fully

loaded with two (2) bullets. The victim had no weapon. The gun discharged

once, and the bullet struck the victim, who fell into a ditch next to the car where

he died within a few moments.



             There were several people, including teenagers, who were outside

the home at the time of the shooting.          One of these witnesses saw the

Defendant’s right hand raise up and observed “fire” come from the barrel. The

pathologist testified that the victim died from a gunshot wound to the neck. The

bullet entered on the left back side of the victim’s neck, traveled basically

horizontally to the right front of the neck, passing through the spinal cord. The

bullet was recovered from the right front portion of the victim’s neck. In the

pathologist’s opinion, this was not a contact wound as there was no evidence of

any powder burns.



             The Defendant offered proof in support of his theory, which was that

the shooting was accidental. However, the Defendant testified concerning the

moments immediately preceding the shooting as follows:

      And as I got in closer to him [victim] I just --- I had my hand --- I took
      the gun out of my pocket and was going to slap him [victim] up
      beside the head with it and it discharged, and it wasn’t my intention
      to shoot anybody.



                                         -4-
               Defendant admitted during his testimony that he was aware the gun

was loaded at the time he pulled it from his pocket. Defendant was employed by

the McNairy County Landfill and had brought home a garbage truck which was

parked down the street from his residence. He testified that he had gone outside

to make sure that the truck had not been vandalized, and that he had taken the

weapon with him for that purpose. Tennessee Code Annotated section 39-13-

215 (Supp. 1996) defines reckless homicide, Class D felony as “a reckless killing

of another.”    Tennessee Code Annotated section 39-11-106(a)(31) defines

reckless as follows:


      (31) “Reckless” refers to a person who acts recklessly with respect
      to circumstances surrounding the conduct or the result of the
      conduct when the person is aware of but consciously disregards a
      substantial and unjustifiable risk that the circumstances exist or the
      result will occur. The risk must be of such a nature and degree that
      its disregard constitutes a gross deviation from the standard of care
      that an ordinary person would exercise under all the circumstances
      as viewed from the accused person’s standpoint;



               The proof at trial was that the Derringer pistol was properly

functioning and that it would discharge if the trigger was pulled when the weapon,

which had a hammer, was fully cocked. The firearms expert from the T.B.I.

Crime Lab also testified that the weapon could discharge if the hammer was fully

down and not cocked back to the “quarter-cock” safety position.            W ith the

hammer fully down, the gun could discharge if sufficient force was applied

downward toward the hamm er.



               Taken in a light most favorable to the State, the proof shows that the

Defendant approached the unarmed victim, at a time when the victim had not

                                          -5-
made any threats toward the Defendant, and pulled a fully loaded pistol and fired

one shot into the back of the victim’s neck. Even under the Defendant’s theory

that the gun “accidentally” discharged, the proof would show that the Defendant

knowingly took a fully loaded gun and it discharged at the time he was attempting

to hit the victim on the side of his head with the firearm. In either scenario, the

proof overwhelmingly sustains the conviction for reckless homicide. This issue

is without merit.



                               II.   SENTENCING



             W hen an accused challenges the length, range, or the manner of

service of a sentence, this court has a duty to conduct 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 the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 1991).



             In conducting a de novo review of a sentence, this court must

consider: (a) the evidence, if any, received 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) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

                                         -6-
              If our review reflects that the trial court followed the statutory

sentencing procedure, imposed a lawful sentence after having given due

consideration and proper weight to the factors and principals set out under the

sentencing law, and that the trial court's findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim.

App. 1991).



              The Defendant was fifty-two (52) years old at the time of sentencing.

He had been steadily employed virtually all of his adult life. He attended school

through the 10th grade, but had never obtained his GED. Defendant had three

(3) prior Class B felony convictions in 1990 regarding three (3) separate incidents

of controlled substance violations.    He paid child support for two (2) of his

children and provided support for his current girlfriend and her children. He had

paid $800.00 or $900.00 toward the $12,000.00 total fines from the felony

convictions in 1990. He was still on probation for these felony convictions at the

time of the present offense. Defendant had served seven (7) months in jail for

the prior felony convictions and had been on supervised probation thereafter.



              The State did not file notice of intent to seek enhanced punishment

within Range II until after the trial. Therefore, the trial court sentenced the

Defendant within Range I. See Tenn. Code Ann. § 40-35-202.



              The trial court found two (2) enhancement factors: (a) that the

Defendant has a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range. Tenn. Code Ann.

                                        -7-
§ 40-35-114(1), and (b) the felony was committed while the Defendant was on

probation from a prior felony conviction. Tenn. Code Ann. § 40-35-114(13)(C).

Only one (1) mitigating factor was found by the trial court, that the Defendant,

although guilty of the crime, committed the offense under such unusual

circumstances that it is unlikely that a sustained intent to violate the law motivated

his conduct. Tenn. Code Ann. § 40-35-113(11).



             As the commission of the offense of reckless homicide does not

require the use of a firearm, we also find that the enhancement factor found in

Tennessee Code Annotated section 40-35-114(9) also applies, that the

defendant possessed or employed a firearm, explosive device, or other deadly

weapon during the commission of the offense.



             On appeal, the Defendant argues that the following mitigating factors

should have been applied by the trial court to reduce the sentence:



       1.    Upon realizing what had happened, the Defendant
             immediately called the police and cooperated in the
             investigation,

       2.    Defendant has been gainfully employed for all of his adult life,

       3.    Defendant supports children of his own as well as those of
             the woman with whom he resides, and

       4.    Defendant is a useful member of society, supporting himself
             and others.



             Regarding the first mitigating factor listed above which Defendant

says should apply, we note that the record reflects that one witness who

overheard Defendant phone the police after the shooting testified that Defendant

                                         -8-
called the police and “told them he got somebody in his front yard that he wanted

to get out or something like that.” The police responded within a few minutes

after the shooting. Defendant was on the scene, spoke to the investigators at the

residence, and later gave a statement at the jail. Even if the mitigating factors

which Defendant urges should have been applied are applicable, they are entitled

to little, if any weight under the particular facts and circumstances of this case.




             A Range I sentence for a Class D felony is between two (2) years

and four (4) years.    Tenn. Code Ann. §      40-35-112(a)(4).    If there are no

enhancement or mitigating factors found by the trial court, the presumptive

sentence for a Class D felony is the minimum sentence in the range. However,

if there are both enhancement and mitigating factors, the trial court must start at

the minimum sentence in the range, enhance within the range as appropriate for

the enhancement factors, and then reduce within the range as appropriate for

mitigating factors. Tenn. Code Ann. § 40-35-210(c) and (e) (Supp. 1996).



             In sentencing Defendant, the trial court merely stated the application

of the two (2) enhancement factors and one (1) m itigating factor, without any

explanation as to why these factors applied and other factors did not apply in

reaching the sentence of forty (40) months in the Tennessee Department of

Correction. There is no “affirmative showing in the record that the trial court

considered the sentencing principals and all relevant facts and circumstances”

in reaching the sentence.       Therefore, there is no presumption that the

determinations made by the trial court are correct. State v. Ashby, 823 S.W .2d

166, 169 (Tenn. 1991).      W hile we find in this particular case that there is

                                        -9-
sufficient evidence in the record to support this sentence, even without the

presumption of correctness, we note that when trial courts fail to properly follow

the procedure set forth in the sentencing statutes, that there is a substantial risk

that this court will have no choice other than to reduce sentences in certain cases

or remand for an additional sentencing hearing, which is not an insubstantial cost

to judicial time and economy.



             The mid-point of a Range I sentence for a Class D felony is thirty-six

(36) months. The Defendant was sentenced to serve forty (40) months in the

Tennessee Department of Correction. Considering the three (3) enhancement

factors that we conclude are applicable (including one enhancement factor not

found by the trial court), and all of the mitigating factors urged by the Defendant

or found by the trial court, and the proper weight to be placed upon both the

enhancement and mitigating factors, we conclude that the sentence of forty (40)

months is appropriate.



             In declining to grant alternative sentencing, the trial court stated that

its reasons were because of deterrence, the prior criminal record of Defendant,

alternative sentencing would depreciate the seriousness of the offense, and the

Defendant was on probation at the time of the offense. We initially note that

there is absolutely no proof in the record whatsoever regarding deterrence, and

therefore we will not consider deterrence as a factor to deny probation in this

particular case. See State v. Sm ith, 735 S.W .2d 859, 864 (Tenn. Crim. App.

1987).




                                        -10-
              Although probation must be automatically considered in sentencing

Defendant for a Class D felony, this does not mean that Defendant is

automatically entitled to probation as a matter of law. State v. Fletcher, 805

S.W .2d 785, 787 (Tenn. Crim. App. 1991).



      A defendant who “is 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 options in the absence of evidence to the contrary.” Tenn.

Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted

felons com mitting the most severe offenses, possessing criminal histories

evidencing a clear disregard for the laws and morals of society, and evidencing

failure of past efforts at rehabilitation, shall be given first priority regarding

sentences involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a

defendant sentenced to eight years or less who is not an offender for whom

incarceration is a priority is presumed eligible for alternative sentencing unless

sufficient evidence rebuts the presumption. However, the act does not provide

that all offenders who meet the criteria are entitled to such relief; rather, it

requires that sentencing issues be determined by the facts and circumstances

presented in each case. See State v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim.

App. 1987).



              Additionally, the principles of sentencing reflect that the sentence

should be no greater than that deserved for the offense committed and should be

the least severe measure necessary to achieve the purposes for which the

sentence is imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should




                                       -11-
also consider the potential for rehabilitation or treatment of the defendant in

determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5).



             W hen imposing a sentence of total confinement, our Criminal

Sentencing Reform Act mandates the trial court to base its decision on the

considerations set forth in Tennessee Code Annotated section 40-35-103. These

considerations which militate against alternative sentencing include: the need to

protect society by restraining a defendant having a long history of criminal

conduct, whether confinement is particularly appropriate to effectively deter

others likely to commit a similar offense, the need to avoid depreciating the

seriousness of the offense, and the need to order confinement in cases in which

less restrictive measures have often or recently been unsuccessfully applied to

the defendant. Tenn. Code Ann. § 40-35-103(1).



             In determining whether to grant probation, the judge must consider

the nature and circumstances of the offense, the defendant’s criminal record, his

background and social history, his present condition, including his physical and

mental condition, the deterrent effect on other criminal activity, and the likelihood

that probation is in the best interests of both the public and the defendant. Stiller

v. State, 516 S.W .2d 617, 620 (Tenn. 1974). The burden is on the Defendant to

show that the sentence he received is improper and that he is entitled to

probation. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991).



             The record reflects that Defendant was on probation from three (3)

prior Class B felony convictions where he had served a portion of the sentence

in confinement. The Defendant was dilatory in his payment of the fines from

                                        -12-
these prior convictions even though he was gainfully employed. The record

strongly infers that the Defendant regularly kept the loaded pistol in his

possession even though he was on supervised probation from felony convictions.

The Defendant’s criminal record, the nature and circum stances of the present

offense, and the fact that the offense was committed while on supervised

probation justified the denial of probation and the imposition of a sentence of total

confinement in this case.



               On appeal the Defendant has argued that the trial court should have

considered placement in Community Corrections.             However, the fact that

Defendant was convicted of reckless homicide by the use and possession of a

firearm makes him statutorily ineligible for a sentence pursuant to the Community

Corrections Act. Tenn. Code Ann. § 40-36-106(a)(2) and (4). This issue is

without merit.



               Finding no reversible error in the sentencing of Defendant, and that

the evidence is sufficient to sustain the conviction, we affirm the judgment of the

trial court.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WADE, Judge

                                        -13-
___________________________________
JOHN H. PEAY, Judge




                             -14-
