             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                             AT KNOXVILLE
                                                                    January 12, 2000

                         JANUARY 1998 SESSION                     Cecil Crowson, Jr.
                                                                 Appellate Court Clerk




STATE OF TENNESSEE,           )
                              )
      Appellee,               )    No. 03C01-9706-CR-00208
                              )
                              )    Washington County
v.                            )
                              )    Honorable Arden L. Hill, Judge
                              )
RAYMOND PAUL DUNCAN,          )    (Sentencing)
                              )
      Appellant.              )


For the Appellant:                 For the Appellee:

John T. Milburn Rogers             John Knox Walkup
Jerry Laughlin                     Attorney General of Tennessee
100 South Main Street                     and
Greeneville, TN 37743              Sandy C. Patrick
                                   Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   David E. Crockett
                                   District Attorney General
                                   Route 19, Box 99
                                   Johnson City, TN 37601

                                   Michael Laguardia
                                   Assistant District Attorney General
                                   P.O. Box 38
                                   Jonesborough, TN 37659




OPINION FILED:____________________



SENTENCE MODIFIED

Joseph M. Tipton
Judge
                                     OPINION


             The defendant, Raymond Paul Duncan, appeals as of right from his

conviction upon a guilty plea in the Washington County Criminal Court for voluntary

manslaughter, a Class C felony. He was sentenced as a Range I, standard offender to

five years confinement to be served in the custody of the Department of Correction.

The defendant presents the following issues for our review:

             (1) whether the trial court erred by applying Tenn. Code Ann.
             § 40-35-114(10), that the defendant had no hesitation about
             committing a crime when the risk to human life was high, to
             enhance the sentence;

             (2) whether the trial court erred by failing to apply Tenn. Code
             Ann. § 40-35-113(2), that the defendant acted under strong
             provocation, to mitigate the sentence;

             (3) whether the trial court erred by refusing to apply Tenn.
             Code Ann. § 40-35-113(11), that the defendant’s conduct was
             not motivated by a sustained intent to violate the law, to
             mitigate the sentence;

             (4) whether the defendant’s sentence of five years confinement
             is excessive; and

             (5) whether the trial court erred by denying probation.

We modify the sentence to three years, six months confinement in the custody of the

Department of Correction.



             The record reflects that at about 1:00 a.m. on March 22, 1996, the

defendant and his friend, Brian Osborne, became involved in an altercation with the

victim, Kyle Jaekel, and several of Jaekel’s friends outside Poor Richards, a

bar/restaurant in Johnson City. Two fights occurred simultaneously, one between

Osborne and Jaekel’s friends and another between the defendant and Jaekel. In the

fight between the defendant and Jaekel, the defendant pulled out a knife and stabbed

Jaekel in the abdomen. An employee broke up the fight, and Jaekel died a short time

later from massive bleeding resulting from the stab wound.




                                            2
             Brian Osborne testified at the sentencing hearing. He stated that he and

the defendant went to Poor Richards at approximately 9:30 p.m. and that he drank

three or four glasses of beer during the evening. He stated that he saw a female

acquaintance, Jamie Cagle, talking to Jaekel. He stated that he did not know Jaekel

but that Cagle looked very intoxicated, and he thought Jaekel might be trying to take

advantage of her. He said Jaekel was encouraging Cagle to drink, and he became

concerned for her safety. Osborne said he asked Cagle if she needed a ride back to

her dormitory, and Cagle said that she did not. He testified that when his girlfriend,

Deena Kilgore, arrived at approximately 12:30 a.m., he asked Kilgore to ask Cagle if

she needed a ride to her dormitory. He said Cagle again said that she did not, and she

also said that Jaekel was a friend of her boyfriend. Osborne stated that he, Kilgore,

and the defendant then left Poor Richards.



              Osborne testified that they were in the parking lot, talking for a few

minutes before they left, when Jaekel came running outside shouting at them. Several

of Jaekel’s friends followed him. Osborne said that Jaekel yelled, “What did you think I

was going to do to her?” and then pushed the defendant. Osborne testified that he

stepped between the two, putting his hands up to control the situation, but that Jaekel

then punched him in the nose. He stated that he was then attacked by several of

Jaekel’s friends. He said that his girlfriend managed to pull him into her car but that

Jaekel’s friends pulled him back out and threw him on top of the car. He said the police

arrived shortly thereafter and arrested him. He testified that he suffered a deviated

septum as a result of the altercation.



              Osborne testified that he did not see the fight between the defendant and

Jaekel and that he did not know that the defendant had used a knife. He stated that he

knew the defendant owned a knife and that one time the defendant showed him the

knife as he was cleaning it.



                                             3
             Dr. Merry Miller, a psychiatrist, testified that the defendant was a student

at East Tennessee State University when she began treating him in 1995 for

schizoaffective disorder at the university clinic. She said the defendant had been

treated previously at the Quillen Dishner School of Medicine. She stated that although

schizoaffective disorder is characterized by marked mood swings and depression, she

believed that the stabbing was an isolated incident and that the defendant did not pose

a risk of harm to others. She also stated that if the defendant were incarcerated, there

would be a risk of decompensation, and the defendant might have suicidal thoughts.

She testified that she continued to treat the defendant after the stabbing and that the

defendant needed supportive therapy and continued medication. She said that the

defendant went through a period when he was not taking his medication regularly. She

also stated that he was not taking his medication regularly at the time of the stabbing.



             Dr. Eric Engum, a clinical psychologist, testified that he evaluated the

defendant after the stabbing. He testified that although the defendant was suffering

from schizoaffective disorder on the night of the stabbing, the defendant was not

manifesting any symptoms that would have compromised his ability to judge reality. He

stated that the disorder probably affected the defendant’s behavior after the stabbing.

He also testified that the defendant showed clear signs of remorse.



             Matthew Sikes, a resident assistant at Jaekel’s dormitory, testified that he

saw Jaekel the night of the stabbing before Jaekel went to Poor Richards. He stated

that Jaekel appeared to be intoxicated and that Jaekel said that he was going to go out

and “kick some ass.”



             Deena Kilgore, Brian Osborne’s girlfriend, testified that she arrived at Poor

Richards at approximately 1:00 a.m. She stated that she did not know Jamie Cagle but

that at Osborne’s request, she asked Cagle if she needed a ride home. She said that



                                            4
Jaekel was standing next to her when she asked Cagle if she needed a ride home and

that Jaekel heard her tell Cagle that they were afraid Jaekel might be trying to take

advantage of her. She stated that Cagle laughed and said that she was fine. Kilgore

testified that she, Osborne, and the defendant left Poor Richards shortly thereafter and

went to the parking lot. She said that a few minutes later, Jaekel came out with several

of his friends. She stated that Jaekel then pushed the defendant and that when

Osborne stepped between them, Jaekel said he was going to kick Osborne’s ass, and

he punched Osborne in the nose. She said that Osborne was then attacked by a group

of Jaekel’s friends and that she tried to pull Osborne into her car, but Jaekel’s friends

pulled him out and continued the fight. She stated that she did not directly see the fight

between the defendant and Jaekel, but she could see some of the fight out of her

peripheral vision. She stated that she believed there were other men besides Jaekel

fighting with the defendant.



              The testimony from the preliminary hearing of John Liggett, an employee

of Poor Richards on the night of the stabbing, was admitted into evidence. At the

preliminary hearing, Liggett testified that when he went outside to stop the fight, he saw

Osborne and Jaekel about twenty-five feet away, pushing each other and yelling. He

stated that as he started to walk towards them, he saw the defendant take a swing at

Jaekel then back away. He said the defendant was leaning against a car when Jaekel

came towards him and the two became entangled, at which time Liggett broke the two

men apart, told Jaekel to go back into Poor Richards and asked the defendant to leave.

Liggett stated that he did not realize that Jaekel had been stabbed, and he did not see

the defendant with a knife. Liggett also stated that because he did not go outside

immediately when the fight began, he did not see who initiated the fight.



              Jonathan Felthouse testified that he arrived at Poor Richards at

approximately 9:30 p.m. He stated that he saw part of the altercation outside Poor



                                             5
Richards. He said that Jaekel and his friends left Poor Richards and that Jaekel was

arguing with Osborne outside. He testified that although he did not see either Jaekel or

the defendant throw a punch, it looked like the defendant may have pushed Jaekel first.

He stated that the defendant and Jaekel then became entangled. He said that he did

not see the defendant stab Jaekel. He also said that Jaekel was approximately five

feet, eleven inches tall, weighed approximately one hundred sixty pounds, and that the

defendant was much bigger. Felthouse admitted that he did not see the beginning of

the fight because he did not go outside immediately when the altercation began.



             Jamie Cagle testified that she was talking to Jaekel at Poor Richards on

the night of the stabbing. She stated that Jaekel was a friend of her boyfriend and that

Jaekel never forced or encouraged her to drink. She stated that she did not see the

altercation outside Poor Richards.



             Sergeant Debbie Barron, with the Criminal Investigation Department of

the Johnson City Police Department, testified that investigators were sent to Poor

Richards to process the scene of the stabbing. She stated that witnesses were

questioned at the police station and that officers began searching for the defendant,

who had left Poor Richards after the stabbing. She said that officers looked for the

defendant at his dormitory and at his parents’ house, but they were unable to locate

him. She said that she was notified by the Greeneville Police Department at

approximately 11:15 a.m. on March 22 that the defendant had turned himself in to the

authorities. The knife used in the stabbing was then introduced into evidence.

Sergeant Brown testified that when the defendant was arrested, he stated that he did

not realize that he had killed Jaekel and that he thought Jaekel would have to go to the

hospital for a few stitches. Sergeant Brown stated that the autopsy report revealed

Jaekel’s blood alcohol content to be .148.




                                             6
              Jeff Jaekel, the victim’s father, read a prepared statement to the court in

which he expressed the impact of Jaekel’s death on his family. He stated that Jaekel’s

death was a horrifying experience for both Jaekel’s older brother and his younger sister.

He also stated that the victim was a man of integrity who was the heart of the Jaekel

family. He asked the trial court to sentence the defendant to the maximum sentence

available under the law and not to consider expunging the conviction from the

defendant’s record.



              An autopsy report was admitted into evidence. The report reflects that

Jaekel was five feet, eleven inches tall, and weighed approximately one hundred forty

to one hundred fifty pounds.



              A presentence report was introduced into evidence. The report reflects

that the then twenty-two-year-old defendant was five feet, eleven inches tall and

weighed one hundred eighty-five pounds. He was a student at East Tennessee State

University at the time of the stabbing and had also attended the University of Alabama

and Auburn University. The report reflects that the defendant began using alcohol at

age sixteen and used marijuana from age eighteen to twenty-one. It also reflects that

the defendant was in excellent physical health but was taking medication and being

treated for schizoaffective disorder and depression.



              At the conclusion of the sentencing hearing, the trial court sentenced the

defendant to five years confinement. The trial court applied Tenn. Code Ann. § 40-35-

114(9), that the defendant used a deadly weapon, and Tenn. Code Ann. § 40-35-

114(10), that the defendant had no hesitation about committing a crime when the risk to

human life was high, to enhance his sentence. The defendant does not challenge the

application of factor (9). The trial court also found the following mitigating factors to be

applicable, as listed in Tenn. Code Ann. § 40-35-113:



                                             7
               (3) substantial grounds exist to excuse or justify the
               defendant’s conduct, though not establishing a defense;

               (6) the defendant lacked substantial judgment because of his
               youth;

               (8) the defendant was suffering from a mental or physical
               condition that significantly reduced his culpability;

               (9) the defendant assisted the authorities; and

               (13) the defendant showed remorse.

The trial court stated that it gave little weight to mitigating factor (6).



                                   I. Length of Sentence

               The defendant contends that the trial court erred in sentencing.

Specifically, the defendant argues that the trial court should not have applied

enhancement factor (10), should have applied two additional mitigating factors, and did

impose an excessive sentence in light of the number and weight of enhancement and

mitigating factors. The state contends that the defendant was properly sentenced.



               Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. §§ 40-

35-401(d), -402(d). As the Sentencing Commission Comments to these sections note,

the burden is now on the appealing party to show that the sentencing is improper. This

means that if the trial court followed the statutory sentencing procedure, made findings

of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



               However, "the presumption of correctness that accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances."


                                                8
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. Tenn. Code Ann. § 40-
              35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).



              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210

(1990); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn.

1986).



              The sentence to be imposed for a Class C felony is presumptively the

minimum in the range unless there are enhancement factors present. Tenn. Code Ann.

§ 40-35-210(c) (1990). Procedurally, the trial court is to increase the sentence within

the range based upon the existence of enhancement factors and, then, reduce the

sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d),

(e) (1990). The weight to be afforded an existing factor is left to the trial court's

discretion so long as it complies with the purposes and principles of the 1989

Sentencing Act and its findings are adequately supported by the record. Tenn. Code

Ann. § 40-35-210 (1990), Sentencing Commission Comments; Moss, 727 S.W.2d at

237; see Ashby, 823 S.W.2d at 169.




                                              9
              First, the defendant contends that the trial court erred by finding that he

had no hesitation about committing a crime when the risk to human life was high to

enhance his sentence. Tenn. Code Ann. § 40-35-114(10). The defendant argues that

because this factor is an essential element of the offense of voluntary manslaughter, it

cannot be applied to enhance his sentence unless there were other people present at

the time of the stabbing who were in danger. The state concedes that factor (10) is an

element of the offense of voluntary manslaughter, but it argues that there were other

people at risk when the defendant stabbed Jaekel.



              We agree with the defendant that the trial court erred by applying

enhancement factor (10). A trial court cannot enhance a defendant’s sentence when

the factor used to enhance is an essential element of the offense. Tenn. Code Ann.

§ 40-35-114. The test for determining whether an enhancement factor is an essential

element of an offense is whether the same proof necessary to establish a particular

element would also establish the enhancement factor. See Jones, 833 S.W.2d at 601.

Under the facts of this case, we agree that factor (10) is inherent in the offense of

voluntary manslaughter. This does not end our inquiry, though, because factor (10)

may be applied if there were others present besides the victim who were at risk

because of the defendant’s conduct. Id. The rationale is that when there are others at

risk besides the victim, a greater culpability exists than that required to prove the

specific offense. Id. at 603.



              Nevertheless, we still conclude that factor (10) should not have been

applied, because under the facts of this case, no other people were placed at risk when

the defendant stabbed Jaekel. Although the testimony is somewhat conflicting on the

specific details of the fight between the defendant and Jaekel, the record indicates that

the defendant and Jaekel were entangled with each other when the stabbing occurred.

No one was in immediate risk of harm, other than Jaekel. In addition, no one was



                                             10
aware that the defendant had a knife, and no one knew that Jaekel had been stabbed.

Even the man who broke up the fight between the defendant and Jaekel testified that

he was not aware that the defendant had a knife, nor was he aware that Jaekel had

been stabbed. Because the facts indicate that no one other than the victim was placed

at risk when the stabbing occurred, the trial court improperly applied factor (10) to

enhance the defendant’s sentence.



               Next, the defendant argues that the trial court should have applied as a

mitigating factor the fact that the defendant acted under strong provocation. See Tenn.

Code Ann. § 40-35-113(2). The defendant claims that factor (2) is applicable because

the defendant merely responded to the victim, who initiated the altercation. This court’s

holding in State v. Baxter, 938 S.W .2d 697, 706 (Tenn. Crim. App. 1996) is instructive

on this issue. In Baxter, the defendant was convicted of second degree murder after he

stabbed his business partner in the stomach following an altercation that the defendant

claimed was initiated by the victim. Id. at 699-700. This court determined that factor (2)

was not applicable because it was the defendant who escalated the conflict by

producing the knife. Id. at 706. The same conclusion is warranted in the instant case.

Although the defendant may have been provoked to enter into the altercation, the

provocation was not strong enough to justify the defendant’s use of deadly force,

particularly in light of the fact that the victim was unarmed. In this respect, we do not

see the existence of provocation that would justify further mitigation. We hold that the

trial court did not err by failing to apply mitigating factor (2).



               The defendant contends that the trial court erred by failing to apply as a

mitigating factor the fact that he committed the offense under such unusual

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

conduct. See Tenn. Code Ann. § 40-35-113(11). We conclude that the trial court erred

by not applying this factor.



                                               11
              In refusing to apply mitigating factor (11), the trial court stated that

everyone is presumed to know the law and that the defendant intended to violate it.

Factor (11) does not depend upon whether the defendant was aware of the law and

intentionally violated it but rather upon whether the defendant’s conduct indicated a

sustained intent to violate the law. We conclude that the defendant’s conduct did not

indicate such an intent. This court has previously determined that factor (11) was

applicable to a conviction of reckless homicide when the defendant shot the victim

outside a bar following an altercation. In State v. Bobby Joe Russell, No. 03C01-9608-

CR-00319, Polk County (Tenn. Crim. App. Sept. 16, 1997), app. denied (Tenn. Apr. 27,

1998), this court stated that “the homicide arose from a rapidly arising set of

circumstances that does not lend itself to a conclusion that a sustained intent existed

relative to the homicide.” The same is true in the instant case in that the defendant

responded to a situation that, unfortunately, ended in tragedy. Based on these facts,

we conclude that the trial court erred by refusing to apply factor (11) to mitigate the

defendant’s sentence.



              The defendant contends that the trial court’s imposition of a sentence of

five years confinement is excessive in light of the number and weight of mitigating

factors compared to the number and weight of enhancement factors. Because the trial

court erred by applying enhancement factor (10) and by failing to apply mitigating factor

(11), our review of the defendant’s sentence is de novo on the record with no

presumption of correctness. See Ashby, 823 S.W.2d at 169. Thus, we must start with

the presumption that the defendant is entitled to the minimum sentence of three years,

then apply the enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210(c).



              We give great weight to enhancement factor (9), that the defendant used

a deadly weapon. Although no evidence exists that the defendant was intoxicated at

the time of the stabbing, the fact remains that the defendant voluntarily brought a



                                             12
dangerous instrument into a drinking establishment, where other patrons were

intoxicated, and readily used it on the victim. Obviously, the result of the altercation

would not have been fatal were it not for the defendant’s possession and use of the

knife. We also give great weight to mitigating factor (11), that the defendant had no

sustained intent to violate the law. We give moderate weight to factors (9) and (13),

that the defendant assisted the authorities and displayed remorse, because these

factors tend to militate in favor of the defendant’s amenability to rehabilitation.



              We give little weight to mitigating factors (3), (6) and (8). With respect to

excuse or justification, although the defendant may have been justified to some extent

in responding to the victim’s claimed aggression, he exceeded the scope of the

justification when he used deadly force. We give little weight to the fact that the

defendant was relatively young because there is no indication that he was a particularly

immature twenty-one-year-old, and he was in college and working. With respect to the

defendant’s mental condition, we believe this factor deserves little weight because the

defendant’s doctors testified that the stabbing was an isolated incident and that his

disorder was not a factor in the stabbing. Furthermore, even if the disorder did play a

role in the incident, the defendant must accept the responsibility because he was not

taking his medication regularly when the stabbing occurred. After applying and

weighing the enhancement and mitigating factors, we determine that a sentence of

three years and six months is appropriate.



                                  II. Manner of Service

              Finally, the defendant argues that the trial court erred by denying

alternative sentencing. As a Range I, standard offender convicted of a Class C felony,

the defendant is presumed to be a favorable candidate for alternative sentencing. Tenn.

Code Ann. § 40-35-102(6). This presumption may be rebutted upon finding any of the

following factors: (1) confinement is necessary to protect society by restraining a



                                             13
defendant who has a long history of criminal conduct; (2) confinement is necessary to

avoid depreciating the seriousness of the offense or confinement is particularly suited to

provide an effective deterrence to others likely to commit similar offenses; or (3)

measures less restrictive than confinement have been frequently applied unsuccessfully

to the defendant. See Tenn. Code Ann. § 40-35-103(1); Ashby, 823 S.W.2d at 169;

Fletcher, 805 S.W.2d at 787-88.



              In the present case, confinement is not necessary to protect society by

restraining a defendant with a long history of criminal conduct, Tenn. Code Ann. § 40-

35-103(1)(A), because the defendant has absolutely no history of criminal behavior or

convictions. In addition, because there have been no measures less restrictive than

confinement attempted, Tenn. Code Ann. § 40-35-103(1)(C) is also inapplicable. The

state contends that confinement is necessary to avoid depreciating the seriousness of

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



              The trial court stated that confinement was necessary to avoid

depreciating the seriousness of the offense, remarking that the crime was especially

violent, horrifying, and reprehensible. The only basis the trial court noted for its

conclusion was the disparity in size between the defendant and the victim.



              It is well established that the fact that a defendant’s conduct resulted in a

death, standing alone, is not enough to warrant a finding that confinement is necessary

to avoid depreciating the seriousness of the offense. See State v. Butler, 880 S.W.2d

395, 400-401 (Tenn. Crim. App. 1994); State v. Bingham, 910 S.W.2d 448, 455 (Tenn.

Crim. App. 1995). However, a court may deny probation based solely upon the

circumstances surrounding the offense if the offense is “especially violent, horrifying,

shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated




                                             14
degree.” State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Hartley, 818

S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).



              The state contends that the offense was especially violent, horrifying,

shocking, reprehensible, offensive, and to an excessive or exaggerated degree. It

asserts that the defendant stabbed an unarmed person “in a senseless altercation, with

little apparent provocation,” stating that the defendant was thirty to forty pounds heavier

than the victim and essentially instigated the fight. However, we do not believe the

record supports a conclusion that the defendant was the aggressor. On the other hand,

the circumstances of the offense should not be taken lightly.



              Our supreme court, as well as this court, looks with disfavor at defendants

who choose to mix deadly weapons or instruments with alcohol. See State v. Cleavor,

691 S.W.2d 541, 543 (Tenn. 1985); Butler, 880 S.W.2d at 401. We believe that doing

so in the environment of a public drinking establishment is of particular concern given

the heightened risk of physical altercations that exists in such a setting. See, e.g., State

v. Bobby Joe Russell, No. 03C01-9608-CR-00319, Polk County (Tenn. Crim. App. Sept.

17, 1997), app. denied (Tenn. April 27, 1998). Moreover, the fact that the evidence

does not show that the defendant was under the influence of alcohol is of little

consequence because it does show that the victim was under the influence. In the

present case, although the defendant’s knife can legitimately be called a pocket knife,

albeit a large one, it is no less a deadly weapon, particularly as it was used by him.



              The defendant told the trial court that he was afraid and did what he

thought was appropriate to stop the victim’s attack. We question whether the defendant

has fully accepted responsibility for his actions. The evidence reflects that the

defendant weighed one hundred eighty-five pounds while the victim weighed one

hundred fifty pounds. Given the internal injuries suffered by the victim and the size of



                                            15
the defendant’s knife, it is apparent that the defendant stabbed the victim with great

force. This belies any indication that the defendant may have been acting defensively.

Even if the victim was the aggressor, the circumstances do not justify the use of a

deadly weapon.



              We are aware that this court has stated that the “fact that a death

occurred or that a firearm was employed in the commission of the offense are not

sufficient, without more, to justify a sentence of total confinement.” State v. Louis

Lavergne, No. 01C01-9803-CR-00128, Davidson County (Tenn. Crim. App. July 8,

1999). However, the circumstances surrounding the offense in the present case are

more serious than just the use of a weapon. We conclude that the record supports the

denial of probation in order to avoid depreciating the seriousness of the offense as

committed by the defendant.



              In consideration of the foregoing and the record as a whole, the

defendant’s sentence is modified to three years and six months imprisonment to be

served in the custody of the Department of Correction.




                                                 ________________________________
                                                 Joseph M. Tipton, Judge

CONCUR:



________________________________
Gary R. Wade, Presiding Judge



________________________________
William M. Barker, Special Judge




                                            16
