        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 24, 2010

            STATE OF TENNESSEE v. EMORY LESLIE LETSON

            Direct Appeal from the Criminal Court for Hamilton County
                      No. 270750     Rebecca J. Stern, Judge




                No. E2010-00055-CCA-R3-CD - Filed August 26, 2011


In a three-count indictment returned by the Hamilton County Grand Jury, Defendant, Emory
Leslie Letson, was charged in Count 1 with attempted first degree murder of Jason Kellogg,
and in Counts 2 and 3, with reckless endangerment with a deadly weapon, with each count
involving a different named victim. Pursuant to a negotiated plea agreement, Count 1 was
amended to a charge of aggravated assault to which Defendant pled guilty. He also pled
guilty to Count 2 as charged (which involved a minor as the victim), and Count 3 was
dismissed. Pursuant to the agreement, the length and manner of service of sentences for the
convictions was determined by the trial court. Defendant was sentenced to serve six years
as a Range I standard offender for the aggravated assault conviction, and to serve two years
as a Range I standard offender for the reckless endangerment conviction. The sentences
were ordered to be served concurrently with each other, and all forms of alternative
sentencing were denied. On appeal, Defendant argues that the sentences are excessive and
that the trial court erred by denying full probation or some other form of alternative
sentencing. After a review of the record and the briefs, we affirm the judgments of the trial
court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.

Jason D. Demastus, Chattanooga, Tennessee, for the appellant, Emory Leslie Letson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William H. Cox, III, District Attorney General, and William Hall, Assistant District
Attorney General for the appellee, the State of Tennessee.
                                       OPINION

I. Facts

       The presentence investigation report completed by investigating officer James Rox
was admitted as an exhibit during the testimony of Mr. Rox at the sentencing hearing. The
report contained the following recitation from the affidavit of complaint by Chattanooga
Police Officer Wilber McLean, filed in support of arrest warrants charging Defendant with
attempted murder and two counts of reckless endangerment:

      On 10/25/08 AT APPROXIMATELY 0950 HRS. JASON KELLOG[G]
      REPORTED TO POLICE THAT HE OBSERVED TWO PARTIES
      STEALING ITEMS FROM HIS VEHICLE.          MR. KELLOG[G]
      ATTEMPTED TO DETAIN ONE OF THE PARTIES AS THE SECOND
      PARTY RAN AWAY. MR. KELLOG[G] SAID THAT HE THEN
      OBSERVED SEVERAL PARTIES WALKING TOWARDS HIM; ONE
      ARMED WITH A SHOTGUN. THE PARTY ARMED WITH THE
      SHOTGUN FIRED ONE ROUND THAT HIT THE SIDE OF THE HOUSE
      NEAR THE BEDROOM WINDOW OF A SMALL CHILD. [N.J.] (7 YRS).
      MR. KELLOG[G] SAID THAT THE ARMED PARTY FIRED ANOTHER
      SHOT AT CLOSE RANGE WHICH PENETRATED THE HOUSE, GOING
      THROUGH THE BEDROOM JUST ABOVE THE BED WHERE [N.J.]
      WAS SLEEPING. MR. KELLOG[G] WAS THEN STRUCK IN THE HEAD
      WITH THE BUTT OF THE SHOTGUN SEVERAL TIMES CAUSING
      SEVERE SWELLING. MR. KELLOG[G] ALSO SUFFERED BUCKSHOT
      INJURIES TO HIS BACK, FROM THE SHOTGUN BLAST. MR.
      KELLOG[G] WAS THEN STRUCK SEVERAL TIMES IN THE HEAD
      AND FACE BY A WHITE FEMALE AND ANOTHER UNKNOWN MALE
      WHO WERE WITH THE ARMED SUSPECT. SEVERAL SPENT
      SHOTGUN SHELLS WERE FOUND AT THE SCENE. KREISTIE LEWIS,
      WHO WAS ALSO INSIDE THE HOUSE, WITNESSED THE INCIDENT.
      FURTHER INVESTIGATION LEAD [SIC] TO THE NAME OF EMORY
      LETSON [DEFENDANT] AS THE ARMED SUSPECT THAT FIRED THE
      SHOTS. KREISTIE LEWIS POSITIVELY IDENTIFIED EMORY LETSON
      FROM A PHOTO LINE-UP AS THE PERSON THAT FIRED THE SHOT
      GUN AT JASON KELLOG[G] AND STRUCK HIM IN THE HEAD WITH
      IT. MR. KELLOG[G] STATED THAT WHEN EMORY LETSON FIRED
      THE SHOTGUN, HE WAS POINTING THE WEAPON AT HIM. THIS
      INCIDENT OCCURRED IN THE CHATTANOOGA CITY LIMITS.



                                           -2-
       At the sentencing hearing, Mr. Kellogg testified that he was detaining the unidentified
man who had been burglarizing Mr. Kellogg’s vehicle when Defendant walked up the street
brandishing a shotgun and demanding that Mr. Kellogg let the man go. Defendant shot the
gun toward the house at least three times. Mr. Kellogg was holding the unidentified
individual on the porch. Mr. Kellogg let the man go immediately after the first shot and
Defendant proceeded to turn up on the porch. Mr. Kellogg grabbed the unidentified
individual again and used him as a shield while trying to back his way into his home.

      Defendant hit Mr. Kellogg in the head with the butt of the shotgun multiple times.
The gun discharged again and pellets from the blast ricocheted off the house and struck Mr.
Kellogg in the head and in his back.

       Christy Lewis, Mr. Kellogg’s fiancée, testified she was present in the house at the time
of the incident. She added that the medical bills of Mr. Kellogg not paid by insurance
amounted to $360.00. She also confirmed the information provided by Mr. Kellogg in his
testimony.

       Diane Collins, Defendant’s grandmother, was called to testify on behalf of Defendant.
She stated that when Defendant was thirteen years old, both of his parents were incarcerated
in a federal prison for manufacturing methamphetamine. Defendant moved in with Ms.
Collins at that time. He later was found to be delinquent by the juvenile court, and was
placed in state custody at Taft Youth Center, Mountain View Youth Development Center,
and a group home. Upon release, he returned to live with Ms. Collins and worked for a
pressure washing business.

       Timothy Anderson testified that he employed Defendant at Mr. Anderson’s pressure
washing business for approximately one and one-half to two years until Defendant’s arrest.
Mr. Anderson stated that Defendant was a good worker. He further testified that he was
willing to re-hire Defendant upon his release from custody if Defendant was granted
probation.

      Defendant testified that on the day of the incident leading to his convictions, a friend
came “running in [my] house” and told Defendant that another friend was getting “ganged
around the street.” Admitting that he “acted before [he] thought,” Defendant described how
he grabbed a shotgun and went to the house with the intent to scare the people. It is
noteworthy what Defendant testified he realized upon reaching the house:

       I got around there and what he [friend at the house] told me was wrong. He
       [the other friend] wasn’t getting ganged. It was just a lady and her husband or
       her boyfriend.

                                              -3-
      Even though Defendant realized his friend at Mr. Kellogg’s house was not getting
“ganged,” he did see his friend getting hit and also saw someone holding a baseball bat.
Defendant yelled at the man and woman and told them to “let him go.” Defendant’s friend
was yelling “help, help me, help me.”

        Defendant admitted he fired his shotgun once “in the air.” He then ran upon the porch
and started hitting Mr. Kellogg with the shotgun. Defendant testified that he unintentionally
fired the shotgun while he was hitting Mr. Kellogg with the butt of the weapon. In hindsight,
Defendant summed up his feelings on the incident as follows:

       I wish I had let my buddy go on to jail and him get what he deserves for [sic].
       But I ain’t - - I was just acting on instinct really, you know what I’m saying.
       I wasn’t even thinking. I was just - - I was just trying to help my friend, you
       know what I’m saying.

       The presentence investigation report shows that Defendant had prior convictions for
disorderly conduct and underage possession of alcohol as an adult.

       As a juvenile, he was found to be delinquent on eight separate vehicle burglary
charges, five separate misdemeanor theft charges, and two felony theft charges, including the
theft of a motor vehicle over $10,000.00 in value. He also had adjudications of probation
violations in September 2004 and June 2005. He was in state custody from June 2005 until
August 2006. Defendant was 21 years old at the time of commission of the offenses in this
case on October 25, 2008.

II. Trial Court’s Ruling

       Just prior to imposing the sentences, the following colloquy occurred between the trial
court and the prosecutor:

       THE COURT:           How was the aggravated [assault] charged?          Was it
                            serious bodily injury or was it with a weapon?

       [PROSECUTOR]: Well, it was attempted first degree murder and part of the
                     plea was we’d break it down to an aggravated assault.
                     He was injured and used a weapon. [sic]

       The judgment regarding the aggravated assault conviction does not specify the
specific code subsection pertaining to the type of aggravated assault. The above colloquy is
the only indication in the record of the type of aggravated assault, except the judgment does

                                             -4-
state that Defendant pled guilty to a Class C felony. The only type of Class C felony
aggravated assault which is applicable to the facts in this case is Tennessee Code Annotated
section 39-13-102(a)(1)(A) and (B), which states as follows:

       (a)    A person commits aggravated assault who:
              (1)   Intentionally or knowingly commits an assault as defined
                    in § 39-13-101 and:
                    (A)    Causes serious bodily injury to another; or
                    (B)    Uses or displays a deadly weapon;

        When specifically asked by the court to explain the elements of the type of aggravated
assault to which the Defendant pled guilty under the plea agreement, the prosecutor stated
that the victim “was injured,” see Tenn. Code Ann. § 39-13-101(a)(1) (assault necessary as
an element of aggravated assault, Tenn. Code Ann. § 39-13-102(a)(1)) and did not say the
victim suffered “serious bodily injury.” However, the prosecutor further indicated the type
of aggravated assault by stating that Defendant “used a weapon.” Therefore, the record
shows that Defendant pled guilty to aggravated assault as defined by Tennessee Code
Annotated section 39-13-102(a)(1)(B), that is, intentionally or knowingly committing an
assault as defined in Tennessee Code Annotated section 39-13-101 by the use or display of
a deadly weapon.

      The trial court applied the following enhancement factors from Tennessee Code
Annotated section 40-35-114:

       As to aggravated assault,

       No. (1) The defendant has a previous history of criminal convictions or
       criminal behavior, in addition to those necessary to establish the appropriate
       range;

       No. (9) The defendant possessed or employed a firearm, explosive devise or
       other deadly weapon during the commission of the offense;

       No. (10) The defendant had no hesitation about committing a crime when the
       risk to human life was high;

       No. (16) The defendant was adjudicated to have committed a delinquent act
       or acts as a juvenile that would constitute a felony if committed by an adult.




                                             -5-
        As to the conviction for felony reckless endangerment, the trial court applied from
Tennessee Code Annotated section 40-35-114, factors No. (1), (10), and (16) and also No.
(4), a victim was particularly vulnerable because of age or physical or mental disability.

       The trial court applied the following as mitigating factors: Defendant has a history of
mental illness, being bipolar with ADHD, and his family situation was bad since both of his
parents were confined in federal prison when Defendant was in his early teenage years.

        The trial court sentenced Defendant to six years as a standard Range I offender for the
aggravated assault conviction, two years as a standard Range I offender for the felony
reckless endangerment conviction, ordered the sentences to be served concurrently with each
other, and ordered that the sentences be served in incarceration.

III. Analysis

                                     Length of Sentences

       Defendant argues that the trial court imposed excessive sentences by ordering the
maximum sentence in each case when the court erroneously: (a) found that enhancement
factor number (10) was applicable, and (2) declined to apply as mitigating factors that (i) he
acted under duress and that (ii) there were substantial grounds tending to excuse his behavior.

      Defendant also argues that the trial court erred by denying him a sentence to be served
on probation or some other form of alternative sentence.

       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.



                                              -6-
       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).

        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
       [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

                                              -7-
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.

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. See Tenn. Code Ann. § 40-35-303(a). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants; however,
the defendant bears the burden of proving his or her suitability for probation. See Tenn.
Code Ann. § 40-35-303(b); see also Carter, 254 S.W.3d at 348. No criminal defendant is
automatically entitled to probation as a matter of law. See Tenn. Code Ann. § 40-35-303(b),
Sentencing Comm’n Comments; State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather,
the defendant must demonstrate that probation would serve the ends of justice and the best
interests of both the public and the defendant. See Carter, 254 S.W.3d at 347; State v.
Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

       In determining whether to grant probation, the court must consider the nature and
circumstances of the offense; the defendant’s criminal record; his or her background and
social history; his or her present condition, both physical and mental; the deterrent effect on
the defendant; and the defendant’s potential for rehabilitation or treatment. See id. If the
court determines that a period of probation is appropriate, it shall sentence the defendant to
a specific sentence but then suspend that sentence and place the defendant on supervised or
unsupervised probation either immediately or after the service of a period of confinement.
See Tenn. Code Ann. §§ 40-35-303(c), -306(a).

       We note, however, that “the determination of whether the Appellant is entitled to an
alternative sentence and whether the Appellant is entitled to full probation are different
inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Where a
defendant is entitled to the statutory presumption of alternative sentencing, the State has the
burden of overcoming the presumption of evidence to the contrary. State v. Bingham, 910
S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper,
29 S.W.3d 1, 9 (Tenn. 2000). Conversely, the defendant has the burden of establishing his
or her suitability for full probation, even if the defendant is entitled to the statutory
presumption of alternative sentencing. Id.; see Boggs, 932 S.W.2d at 477.

       In its brief, the State correctly acknowledges that the trial court erred by applying
statutory enhancement factor (10), that “[t]he defendant had no hesitation about committing

                                              -8-
a crime when the risk to human life was high.” As noted by the State, this court has held that
the risk to human life is inherent in the offenses of aggravated assault and reckless
endangerment, State v. Allen Ray Kennedy, No. M2006-00847-CCA-R3-CD, 2007 WL
879566, at *4 (Tenn. Crim. App. March 23, 2007), no perm. app. filed, and “[g]enerally, if
an enhancement factor is an essential element of the offense, the factor may not be used to
enhance the sentence,” Id. (citing Tenn. Code Ann. 40-35-114).

      Although the State further asserts that Defendant’s conviction for aggravated assault
was based upon the victim’s suffering bodily injury [sic] (as applicable, the assault must
cause serious bodily injury – see Tenn. Code Ann. § 39-13-102(a)(1)(A)), we have
concluded above that based upon the prosecutor’s representations to the trial court,
Defendant’s aggravated assault conviction was based upon use of a deadly weapon.
Accordingly, the trial court erred by applying enhancement factor no. (9) to the sentence for
aggravated assault.

        Defendant does not challenge the applicability of the remaining enhancement factors.
There is an absence of proof in the record to support the trial court’s conclusion that
enhancement factor no. (4) should apply to the conviction for reckless endangerment. The
trial court concluded that the victim was a child and therefore vulnerable. However, the State
did not offer any proof of how the seven year old child was particularly vulnerable due to his
age, any more than Ms. Lewis, Mr. Kellogg’s fiancée, was vulnerable due to being inside the
house when pellets from a shotgun blasted through a window. See State v. Lewis, 44 S.W.3d
501, 505 (Tenn. 2001), wherein our Supreme Court stated:

       A victim’s youth does not necessarily equate with vulnerability, however.
       [citations omitted] The State is required to proffer evidence in addition to the
       victim’s age to establish particular vulnerability; however, that evidence “need
       not be extensive.” [State v.] Poole, 945 S.W.2d [93,] 97 [(Tenn. 1997)]. Also
       a court may consider the natural vulnerabilities attendant to the extreme ends
       of the aging spectrum by giving “additional weight . . . to the age of the victim
       in those cases where a victim is extremely young or old.” Id.

Lewis, 44 S.W.3d at 505.

      Regarding Defendant’s assertions that his sentence should have been mitigated
because he acted under duress and substantial grounds existed tending to excuse his behavior,
we conclude that the trial court did not err by declining to apply these factors in mitigation.
The record fails to prove the existence of either mitigating factor.




                                              -9-
       Since the trial court erroneously applied three enhancement factors, our review of the
length of the sentences is de novo with no presumption of correctness. We conclude that the
enhancement factors which are applicable, even when considered in the light of the
mitigating factors found by the trial court, justify the total effective sentence of six years.

                              Manner of Service of Sentences

        Defendant argues that he should have been granted full probation or some other form
of alternative sentencing. He concedes that he had previously violated probation while in the
Juvenile Court system, but asserts that he was subsequently able to care for himself and
maintain employment for approximately two years before he committed the offenses in the
case sub judice. Without being very specific, Defendant basically argues that the trial court
did not properly weigh the evidence in denying probation or “alternative sentencing.”
Defendant had fifteen delinquency adjudications of vehicle burglary and theft, including theft
of a vehicle, and at least two probation violations in juvenile court. After release from
juvenile court custody when he was almost 19 years told, Defendant had two misdemeanor
convictions (one for an offense in December 2007, and the other for an offense in January
2008) before committing the two felony offenses that are the subject of this appeal. The
delinquent juvenile conduct began in 2004 and his prior criminal conduct extended to
January 2008 before the instant offenses occurred in October 2008.

       The trial court ordered Defendant’s effective sentence of six years to be served in
incarceration because it found all three criteria of Tennessee Code Annotated section 40-35-
103(1)(A), (B), and (C) had been met. This code subsection states:

       (1)    Sentences involving confinement should be based on the following
              considerations:

              (A)    Confinement is necessary to protect society by
                     restraining a defendant who has a long history of
                     criminal conduct;

              (B)    Confinement is necessary to avoid depreciating the
                     seriousness of the offense or confinement is particularly
                     suited to provide an effective deterrence to other likely to
                     commit similar offenses; or

              (C)    Measures less restrictive than confinement have
                     frequently or recently been applied unsuccessfully to the
                     defendant;

                                             -10-
       Although Defendant’s prior conduct as a juvenile resulted in adjudications of
delinquency rather than convictions, it still consisted of serious criminal conduct. He was
granted probation or adjudicated “delinquent, no contact with victim” or placed on juvenile
probation with suspended committal fourteen times before finally being ordered into state
custody for violation of probation. These two facts support the considerations in Tennessee
Code Annotated section 40-35-103(1)(A) and (C) sufficiently to justify denial of probation
or any other alternative sentence in this case. Defendant proceeded from committing serious
criminal acts of delinquency as a juvenile, to less serious criminal acts as an adult before
committing the violent felonies in this case with the use of a firearm. This supports the
consideration in subsection (1)(B) of Tennessee Code Annotated section 40-35-103. Service
of the effective sentence of six years in incarceration is clearly justified in this case.
Defendant is not entitled to relief in this appeal.

                                     CONCLUSION

       The judgments of the trial court are affirmed.

                                                   ________________________________
                                                   THOMAS T. WOODALL, JUDGE




                                            -11-
