         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs May 18, 2004

                STATE OF TENNESSEE v. MARY MURR TURNER

                    Direct Appeal from the Circuit Court for Cocke County
                            No. 8737    Ben W. Hooper, II, Judge



                                   No. E2004-00225-CCA-R3-CD
                                          June 14, 2004

The defendant, Mary Murr Turner, pled guilty to accessory after the fact, and the Cocke County trial
court sentenced her to one year incarceration as a Range I standard offender. On appeal, the defendant
contends the trial court erred in denying probation. We affirm the judgment of the trial court.

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

JOE G. RILEY , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN E.
GLENN , J., joined.

Susanna L. Thomas, Newport, Tennessee, for the appellant, Mary Murr Turner.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        The defendant pled guilty to accessory after the fact, a Class E felony, for concealing
evidence of the killing of her husband, Anthony Lynn Turner, by her half-brother, Roger Murr, on
November 11, 2001. See Tenn. Code Ann. § 39-11-411(a)(2). Pursuant to the plea agreement, the
defendant received a one-year sentence as a Range I standard offender with the manner of service
to be determined by the trial court. According to the state’s recitation of the facts at the plea hearing,
Murr shot and killed the victim at the residence of the defendant where Murr’s girlfriend, Tammy
Trent, also resided. Murr pled guilty to an offense relating to the victim’s death and had been
sentenced prior to the defendant’s plea hearing. Trent pled guilty to accessory after the fact and was
sentenced to one year of incarceration at the same time the defendant was sentenced.

       The defendant and Trent cleaned the residence after Murr killed the victim. They cleaned
up the blood, mopped the floors, patched holes in the wall and in a window with masking tape,
placed stickers over bullet holes in the wall, and disposed of the masking tape. The defendant and
Trent made statements to law enforcement in which they admitted performing these acts.

                                  I. SENTENCING HEARING

        Investigator Robert Caldwell of the Cocke County Sheriff’s Department testified the victim,
the defendant’s husband, was shot eleven times with two different firearms while at the defendant’s
residence. As the victim walked onto the back porch and entered the residence through the back
door, Murr began shooting, and the victim fell back onto the porch.

        Investigator Caldwell testified law enforcement officials observed several bullet holes in the
walls, which had been patched with tape, and noted that the back porch had been cleaned. The officers
discovered Trent’s fingerprints on the tape covering the bullet holes. Although neither the defendant
nor Trent mentioned cleaning the porch in their statements to the police, officers discovered blood
underneath the porch which had dripped through the cracks.

        Investigator Caldwell testified both the defendant and Trent stated they were in another room
when the shooting occurred. The investigator opined, “there’s no way that you could be in the house
with at least 11 shots fired and not hear the shooting.”

         Special Agent A.R. McCall of the Tennessee Bureau of Investigation testified he observed
bullet holes which had been concealed inside the residence. Agent McCall stated he also removed
a bumper sticker, which was clearly visible, from the front side of the back door revealing a bullet
hole. Agent McCall testified Trent gave a statement to the police explaining that while she and the
defendant were in the bedroom located in the back of the residence, she heard a noise which sounded
like “firecrackers.” Trent and the defendant remained inside the bedroom until Murr knocked on the
door and said, “We are going to leave.” Trent informed the police that Murr further stated, “If you
see any holes, try covering them up.” Trent stated she then aided the defendant in “fixing” holes.

        Agent McCall testified that when he first arrived at the defendant’s residence to investigate
the shooting, the defendant informed him that the victim had previously attempted to shoot her with
a .22 caliber pistol causing a hole in the window located in the back of the residence. However,
when the defendant gave a statement to the police, she admitted lying to Agent McCall regarding the
hole in the window. In her statement, the defendant recalled that upon exiting her residence, she
observed a hole in the window located next to the back door and covered it with tape. The defendant
stated she then discarded the roll of tape because she “did not want it there and [she] did not want
anything to happen to [her].”

         The defendant testified she and the victim were married for ten years and had three children.
The defendant described the victim as physically and verbally abusive. As a result of the victim’s
abusive behavior during the marriage, the defendant suffered from a broken hand, back injuries, and
head injuries which resulted in organic brain damage. The defendant stated she takes medication
to treat seizures caused by her head injuries.


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        The defendant testified that on the day prior to the incident, she and the victim argued, and
the victim struck her and left the residence. On the following day, the victim called the defendant
and informed her that he was coming to her residence to retrieve his possessions. The defendant
stated she subsequently called Murr and told him that the victim had threatened her and her children
and that the victim was coming to her residence. Murr agreed to speak to the victim. The defendant
stated “[e]vidently” the victim was killed on this occasion.

        The defendant testified that when Murr arrived at the residence, he instructed her and Trent
to go into the bedroom located in the back of the residence. The defendant stated she did not observe
Murr in possession of a firearm, and she did not hear any shots fired inside the residence. The
defendant further stated that upon exiting the bedroom, she did not observe any blood inside the
residence or on the back porch. She maintained she “didn’t have any idea” that the victim had been
killed.

         The defendant testified she did not make any efforts to conceal a crime and that she was
unaware that a crime had been committed. The defendant maintained she did not clean any blood
in the residence and did not patch any holes in the wall. The defendant stated that although she
informed law enforcement officials that she placed duct tape over a hole in a window, she did not
know how the window was broken. The defendant denied placing stickers over holes in the wall,
knowing who covered the holes with stickers, or observing stickers on the walls. The defendant
stated she was unaware of whether the holes were caused by bullets. She further stated she gave the
roll of duct tape to Trent and instructed her to discard it in order to protect Murr.

        The defendant testified she had several prior charges for writing worthless checks. She stated
she repaid the checks and costs regarding each charge, and she was unable to recall any of the
charges resulting in convictions. The defendant further stated she wrote the worthless checks in
order to support her cocaine addiction.

                                      II. TRIAL COURT’S FINDINGS

        At the conclusion of the sentencing hearing, the trial court applied enhancement factor (1),
“[t]he defendant has a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range” to the defendant’s conviction. See Tenn. Code
Ann. § 40-35-114(1) (Supp. 2001).1 The trial court further applied several mitigating factors. See
id. § 40-35-113(2), (4), (8), (10), (12). However, the trial court found statements made by the
defendant and Trent during the sentencing hearing were “literally irreconcilable” when compared
to their guilty pleas. The trial court noted that as a result, “their credibility has been reduced to
almost zero.” The court ordered the defendant, as well as Trent, to serve their one-year sentences
in confinement.

         1
            Effective July 2002, the legislature amended Tennessee Code Annotated section 40-35-114 by adding “terrorism”
as an enhancement factor. 2002 Tenn. Pub. Acts, ch. 849, § 2(c). This is listed as factor (1), thus renumbering the previous
factors as (2) through (23). See Tenn. Code Ann. § 40-35-114 (Supp. 2002). Our opinion refers to the enhancement factors
as they existed at the time of the offense as specified in Tennessee Code Annotated section 40-35-114 (1997).

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                                 III. STANDARD OF REVIEW

       An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
Sentencing Commission Comments to this section of the statute indicate the defendant bears the
burden of establishing the sentence is improper. When the trial court follows the statutory
sentencing procedure and gives due consideration and proper weight to the factors and principles
relevant to sentencing, this court may not disturb the sentence. State v. Fletcher, 805 S.W.2d 785,
789 (Tenn. Crim. App. 1991).

                                          IV. ANALYSIS

        An especially mitigated or standard offender convicted of a Class C, D or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). However, although a defendant may be presumed to
be a favorable candidate for alternative sentencing, the defendant has the burden of establishing
suitability for total probation. Tenn. Code Ann. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467,
477 (Tenn. Crim. App. 1996). Even though probation must be automatically considered, “the
defendant is not automatically entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-
303(b), Sentencing Commission Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.
App. 1991).

        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public. State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995). The defendant’s lack of credibility is also an appropriate consideration and reflects on a
defendant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999).

         The trial court applied enhancement factor (1), previous history of criminal convictions or
criminal behavior, due to the defendant’s history of criminal behavior. See Tenn. Code Ann. § 40-
35-114(1) (Supp. 2001). The presentence report reveals the defendant had seventeen prior charges
of passing worthless checks. The defendant testified the charges did not result in convictions, and
the presentence report is unclear regarding this issue. However, criminal behavior which does not
result in a conviction may be utilized to enhance a sentence if shown by a preponderance of the
evidence. See State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998). Based upon the defendant’s
testimony in which she stated she wrote the bad checks to support her cocaine addiction, we
conclude the trial court properly applied enhancement factor (1). We further note the use of cocaine
justifies this enhancement factor even though there was no conviction. See State v. Vanderford, 980
S.W.2d 390, 407 (Tenn. Crim. App. 1997) (holding this enhancement factor applied when the
defendant admitted to a history of drug use).




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         The defendant contends the trial court failed to distinguish between her and co-defendant
Trent, who was sentenced at the same sentencing hearing, in evaluating credibility during the
sentencing hearing. Although the trial court did not refer to the defendant by name in finding that
“their credibility has been reduced to zero,” the evidence clearly establishes that this finding applies
to the defendant. According to the state’s recitation of the facts to which the defendant stipulated
at the plea hearing, the defendant pled guilty to accessory after the fact for cleaning up the blood,
mopping the floors, patching bullet holes in the walls, and placing masking tape over the window
after Murr killed the victim. However, at the sentencing hearing, the defendant denied committing
these acts and even denied any knowledge that a crime had been committed. While the defendant
testified she patched a hole in a window, she stated she was unaware of the cause of the hole. Based
upon this evidence, the trial court found the defendant’s testimony to be false. The trial court is in
a much better position than this court to make credibility determinations.

        In determining a defendant’s suitability for total probation, the trial court may properly
consider credibility, remorse, and candor as they reflect upon potential for rehabilitation. See Tenn.
Code Ann. § 40-35-103(5); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); Nunley, 22 S.W.3d
at 289. Had the defendant been truthful, remorseful, and candid, she may well have received
probation, as the experienced trial judge implied. The defendant exhibited none of these qualities
at the sentencing hearing. The trial court properly denied probation and imposed incarceration.

       Accordingly, we affirm the judgment of the trial court.



                                                        _____________________________________
                                                        JOE G. RILEY, JUDGE




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