        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 27, 2013

           STATE OF TENNESSEE v. SAMPSON JOSEPH MCCOY

            Direct Appeal from the Criminal Court for Davidson County
                   No. 2011-B-1123     Cheryl Blackburn, Judge


                  No. M2012-01438-CCA-R3-CD - Filed May 6, 2013


The appellant, Sampson Joseph McCoy, pled guilty in the Davidson County Criminal Court
to aggravated assault and received an eight-year sentence. Pursuant to the plea agreement,
the trial court was to determine the manner of service of the sentence. After a sentencing
hearing, the trial court ordered that the appellant serve his entire sentence in confinement.
On appeal, the appellant contends that the trial court erred by denying his request for
alternative sentencing. Based upon the record and the parties’ briefs, we affirm the judgment
of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Jeffrey A. DeVasher (on appeal) and Mike Engle (at trial), Nashville, Tennessee, for the
appellant, Sampson Joseph McCoy.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Megan King, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       In April 2011, the Davidson County Grand Jury indicted the appellant for attempted
second degree murder and employing a firearm during the attempt to commit a dangerous
felony. In September 2011, he pled guilty to aggravated assault as a lesser-included offense
of attempted second degree murder, and the State dismissed the remaining charge.
       At the appellant’s guilty plea hearing, the State gave the following factual account of
the crime:

              [O]n January the 16th, 2011, in Davidson County the victim in
              this case Tony Hall was standing with a group of friends at a
              club downtown called Decades. The defendant approached the
              group. An argument ensued. And the defendant ended up
              pulling a gun. The victim lunged at him. They ended up in a
              scuffle on the ground. Some more shots were fired causing
              injury to Mr. Hall. He had a gunshot to his abdomen and also to
              his leg. And the defendant fled the scene.

Pursuant to the plea agreement, the appellant received an eight-year sentence as a Range I,
standard offender with the manner of service to be determined by the trial court.

       At the appellant’s sentencing hearing, the then thirty-year-old victim testified that in
January 2011, he worked at Decades, a nightclub. On the night of January 15, he worked at
the club. He said that after work, he was “hanging out a little bit . . . , playing some music
and stuff” with friends. He said that he had been drinking alcohol, which affected his ability
to recall the night’s events, but that “I do remember some of what happened.” About 4:30
a.m. on the morning of January 16, the victim was standing outside Decades and was
smoking a cigarette. Two men, one of whom was the appellant, began arguing with him.
The appellant was standing about six feet away from the victim, pulled out a gun, and
pointed it at the victim. The victim said that he did not have a weapon and did not physically
threaten the appellant but that he “rushed at” the appellant because he “didn’t want to die.”
He acknowledged that his objective was to get the gun away from the appellant. The
appellant shot him in the thigh, and they wrestled to the ground. The victim got behind the
appellant and began choking him. The victim stated that as they were struggling, the
appellant “reached around” and shot him “point blank” in the stomach.

       The victim testified that he did not remember much about what happened after the
shooting. He said that he spent eight days at Vanderbilt Hospital and that his abdomen was
“open.” He could not defecate for five days, and his injuries were very painful. He said that
he could not work for two months and that he still experienced sharp pain when he exercised
or “sprint[ed].” As a result of the shooting, the victim had scars from the bullet wounds and
a nine-inch-long scar on his abdomen. He said the appellant should serve the entire sentence
in confinement because the appellant almost killed him.

      On cross-examination, the victim testified that he did not remember testifying
previously that the appellant lifted the appellant’s shirt and displayed a handgun in the

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appellant’s waistband. The victim said he just remembered the appellant’s pointing the gun
at him. He acknowledged that the appellant shot him as he approached the appellant and that
they wrestled. He also acknowledged that the appellant shot him the second time as they
were on the ground and “embraced in this wrestling.” Upon being questioned by the trial
court, the victim said that he had not seen the appellant in Decades before the shooting.

        Thomas Lawrence, an ex-police officer, testified for the appellant that he managed
the apartment complex at 1046 and 1044 Jefferson Street, that the appellant lived in one of
the apartments at the time of the shooting, and that he came into contact with the appellant
numerous times. The appellant was very pleasant and would ask if Lawrence needed help
if the appellant saw him working outside. Lawrence said the appellant was never late with
his rent and was “awesome.” Lawrence said he was used to dealing with thugs in the
neighborhood, so his experience with the appellant was unusual. He said he was shocked
when he learned about the shooting because he had “never seen that attitude” from the
appellant.

         Reuben Dockery testified that he was the Pastor at Bethel Family Church and the
Founder and Executive Director of Building Families and Communities, a local nonprofit “in
part designed to help young men who have had braces with the law . . . to kind of refine
themselves and redevelop themselves.” He met the appellant in 2008 when the appellant
attended a conference at Dockery’s church. The appellant worked with Dockery for a period
of time, and then they lost track of each other. Dockery said that he had visited the appellant
in jail recently and that the appellant was receptive to his visit. The appellant needed to
acknowledge the gravity of the circumstances in this case and develop a plan to avoid similar
circumstances in the future. Dockery stated that if the court released the appellant into the
community, he “[a]bsolutely” would be involved in the appellant’s life and would prepare
a life plan for the appellant that included employment, education, spiritual development, and
positive activities in society.

        Addie McCoy, the appellant’s mother, testified that her family was very close and that
she had attended every court appearance for her son. The appellant was very remorseful for
the crime. After the shooting, he told McCoy that he could not believe he had shot a man and
that he was sorry it happened. If the trial court released the appellant from confinement, the
appellant could live with McCoy and his siblings. McCoy said she would drive him to and
from work and take him wherever he needed to go. She said that the appellant had been
offered employment recently, that she was strict, and that he would have to abide by her
rules.

      On cross-examination, McCoy testified that she found out about the shooting on
January 26, 2011, when the appellant told her. The police arrested the appellant two days

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later. McCoy acknowledged that the appellant did not turn himself in to police right away.
She said he had never been to juvenile court and did not have any children. McCoy
acknowledged that the appellant received a citation for simple possession of cocaine in
December 2005. To her knowledge, he did not use drugs. McCoy knew before the shooting
that the appellant was carrying a gun. She told him to get a handgun carry permit for it, but
he told her that he could not take time off from work to get one. McCoy told him that he
should not have a gun without a permit.

       Upon being questioned by the trial court, McCoy testified that she learned the
appellant was carrying a handgun about two months before the shooting. She said the
appellant told her that he shot the victim because the victim “stepped on his toe or something
like that.” McCoy told the appellant to turn himself in. She said that the appellant was
planning to turn himself in and that officers stopped her and arrested the appellant as she was
driving him back to his apartment.

       The appellant testified that he bought the handgun used in the shooting from Academy
Sports in August or September 2010 because he thought he needed protection and that having
the gun on January 16, 2011, was “one of the biggest mistakes of [his] life if not the biggest.”
On the morning of the shooting, the victim was standing in front of Decades. The appellant
said the victim “was staggering and he kind of bumped into me and stepped on my foot.”
The appellant told the victim, “[E]xcuse you.” The appellant said the victim “got in [his]
face” and told him, “I don’t think you’re anybody to be excusing me.” The appellant felt
threatened and pulled the gun to deter the victim from advancing toward him. A friend of
the victim tried to get between them and hold back the victim, but the victim resisted his
friend and continued to move toward the appellant. After the appellant shot the victim, the
appellant ran away. He left his jacket at the scene. The stub from his last paycheck was in
his jacket pocket.

       The appellant testified that upon his release from confinement, he planned to continue
helping take care of his family, obtain a job, and find a place to live. He said he also planned
to have a “normal drama free life.” He acknowledged that an employer, Command Center,
was willing to hire him. The appellant had been drinking alcohol before the shooting. He
said that he owed the victim a lot of money and acknowledged that he could not compensate
the victim for the emotional stress he caused. He said that he received a diploma of
graduation from Cedarcreek Schoolhouse Academy; that he had been in jail since January
28, 2011; and that he obtained his GED in jail. He acknowledged that he received an
“outstanding score” on the GED examination. The appellant also completed a two-month
vocational life skills program offered by the sheriff’s department and a program offered by
New Life Ministries. He said he should receive alternative sentencing because he “went
twenty-six years” without getting into “major trouble,” had never been in a juvenile facility,

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and had an employment history. He said that his family members had been very supportive
and that he let them down.

       On cross-examination, the appellant testified that he had been to a few bars before the
shooting. He said that he had used marijuana and cocaine in the past but that he had not
consumed drugs before the crime. He acknowledged that he was charged for simple
possession of cocaine in 2005, that he completed a drug and alcohol course, and that the
charge was dismissed. The appellant also acknowledged that he broke the law by carrying
a concealed weapon, but he denied approaching the victim or calling the victim’s girlfriend
a “bitch.” The appellant did not pull out the gun until the victim advanced toward him and
the victim’s friend tried to restrain the victim. The victim was six to eight feet away from
the appellant when the appellant pulled out the gun. The appellant acknowledged that he
could have walked away and said that he never aimed the gun directly at the victim. After
the shooting, the appellant hid under a bridge for about thirty minutes. He did not call 911.
The police later found the gun in plain view in his apartment.

        Upon being questioned by the court, the appellant testified that he completed his
senior year of high school “through homeschooling” and that he received a homeschooling
certificate. He stated that although he had the certificate, he obtained his GED in jail because
“it was a personal challenge to myself to see how good I could do on the GED.” Before the
shooting, the appellant had been in downtown Nashville passing out flyers to promote a
nightclub. He went into one or two bars that night, consumed alcohol in the bars, and carried
the gun with him. He said he “made a bunch of stupid mistakes” and used poor judgment
prior to his altercation with the victim. The appellant made a statement on his own behalf
and apologized to his family and the victim.

       The State introduced into evidence the appellant’s presentence report. According to
the report, the then twenty-seven-year-old appellant graduated from high school in May 2003
and took Information Technology classes at High-Tech Institute from November 2004 to
April 2005 but dropped out due to lack of interest. In the report, the appellant described his
mental health as “good” and his physical health as “fair” with rare attacks of asthma. He also
reported that he had a work-related injury in 2007 that resulted in surgery on his arms and
reduced arm strength. The appellant stated in the report that he began consuming alcohol
when he was sixteen years old, marijuana when he was fourteen, and cocaine when he was
twenty but that he had not used marijuana or cocaine in several years. The report shows that
the appellant was charged with drug possession when he was twenty years old but that the
charge was dismissed. According to the report, the appellant worked for Plasticycle as a
laborer from October 2007 to June 2008, when his arms became stuck in a bailer machine.
The appellant also worked for Command Center as a laborer from February 2008 to October
2009; Select Staffing as a machine operator from October 2009 to March 2010; and RR

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Donnelley as a machine operator from March 2010 to July 2010.

        At the conclusion of the hearing, the trial court concluded that the appellant should
serve his entire sentence in confinement based upon the circumstances of the offense. The
trial court noted that the appellant had “a lot of factors going for him,” particularly that he
had done well while in confinement and that people spoke well for him at the sentencing
hearing. However, the trial court also noted that this was a “pretty serious offense” and that
the appellant had been illegally carrying a weapon and drinking alcohol prior to the shooting.
The court went on to explain,

              Now, the first shot perhaps -- he says that he did the second shot
              because he was in fear of his life, but the first one clearly was
              not. He admits he was wrong. I guess I kind of just have to
              decide. This is a very difficult case because normally I have
              individuals who have long records or we’ve tried something
              unsuccessfully. But this is a particularly horrible, shocking,
              reprehensible offense. I don’t have any leeway with regard to
              this because he’s been in custody since January the 28th of
              2011. So it just comes down to what is the appropriate thing to
              do in this case. It’s a very difficult decision for the Court,
              obviously because of so many good and bad factors involved in
              this. And, Mr. McCoy, you make a good witness, you represent
              yourself pretty well. Mr. Hall on the other hand was seriously
              injured over nothing, over no good reason. And the basic
              problem is that there was a gun involved. Had this been a fight
              we wouldn’t even be here. But instead we have a weapon used
              that almost takes Mr. Hall’s life. He describes a very, very
              serious situation. He will have trouble the rest of his life as a
              result of it. I think I’m going to have to come down on the
              situation that this is something that’s particularly violent,
              particularly horrifying, shocking, or reprehensible.

The trial court denied the appellant’s request for alternative sentencing.

                                        II. Analysis

       The appellant contends that the trial court erred by imposing a sentence of continuous
confinement. The State argues that the trial court did not abuse its discretion in ordering the
appellant to serve eight years in confinement. We agree with the State.



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        In sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and the 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 involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State v.
Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Previously, appellate review of the length, range,
or manner of service of a sentence was de novo with a presumption of correctness. See
Tenn. Code Ann. § 40-35-401(d). However, our supreme court recently announced that
“sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’”
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Even more recently, the court specifically
held that the abuse of discretion standard, with a presumption of reasonableness, applies to
a review of a denial of alternative sentencing. State v. Christine Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012). The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant’s sentence meets this
requirement. Moreover, an appellant who is an especially mitigated or standard offender
convicted of a Class C, D, or E felony should be considered a favorable candidate for
alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6).
Tennessee Code Annotated section 40-35-103(1) sets forth the following sentencing
considerations which are utilized in determining the appropriateness of alternative
sentencing:

                      (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 others likely to commit
              similar offenses; or

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

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See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Tenn.
Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and
“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).

       The appellant contends that the trial court erred by denying his request for alternative
sentencing because the “trial court’s reliance on the defendant’s use of a weapon and the
victim’s injuries would effectively exclude probation for an offense – aggravated assault
committed with a deadly weapon or by causing serious bodily injury – that the legislature has
determined to be probation-eligible.” He argues that he should have received a sentence
alternative to confinement because he is a excellent candidate for rehabilitation, has no
criminal record, has secured employment and housing upon release, and has expressed
sincere remorse for his actions.

       While we can appreciate the trial court’s hesitance to deny alternative sentencing in
this case, we can also appreciate the trial court’s ultimate determination that the appellant
should serve his entire sentence in confinement. The trial court was troubled by the
appellant’s use of a firearm and the victim’s serious injuries. However, the trial court also
was greatly troubled by the fact that the appellant had been drinking alcohol and carrying his
weapon into bars prior to the shooting. Moreover, the appellant testified at the sentencing
hearing that he confronted the victim after the victim bumped into him and stepped on his
foot. As noted by the trial court, his altercation with the victim began and quickly escalated
to the shooting “over nothing.” In denying full probation to avoid depreciating the
seriousness of the offense, the criminal act should be especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree. Zeolia, 928
S.W.2d at 462. Given the facts of the case, we conclude that the circumstances here are
indeed offensive, excessive, and of an exaggerated degree, as the trial court found.
Therefore, the seriousness of the offense alone supports the denial of alternative sentencing,
and the trial court did not abuse its discretion by ordering that the appellant serve his
sentence in confinement.

                                       III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.
                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE



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