           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                          MAY SESSION, 1999         FILED
                                                     July 8, 1999

                                               Cecil W. Crowson
STATE OF TENNESSEE,        )
                                             Appellate Court Clerk
                           )    No. 01C01-9803-CR-00128
      Appellee             )
                           )    DAVIDSON COUNTY
vs.                        )
                           )    Hon. J. Randall Wyatt, Jr., Judge
LOUIS LAVERGNE,            )
                           )    (Voluntary Manslaughter)
      Appellant            )



For the Appellant:              For the Appellee:

Mark C. Scruggs                 Paul G. Summers
Attorney for Appellant          Attorney General and Reporter
P. O. Box 158932
Nashville, TN 37215-8932        Marvin E. Clements, Jr.
                                Assistant Attorney General
                                Criminal Justice Division
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493


                                Victor S. (Torry) Johnson III
                                District Attorney General

                                Katy Novak Miller
                                Asst. District Attorney General
                                Washington Sq., Suite 500
                                222-2nd Avenue N.
                                Nashville, TN 37201-1649




OPINION FILED:

AFFIRMED; SENTENCE MODIFIED



David G. Hayes
Judge
                                            OPINION



       The appellant, Louis Lavergne, pled guilty to the offense of voluntary

manslaughter in the Davidson County Criminal Court.1 Pursuant to the plea

agreement, both the length of the sentence and the manner of service were

submitted to the trial court for determination. The trial court subsequently imposed a

four year sentence to be served in the Department of Correction. In this appeal, the

appellant challenges both the length of the sentence and the trial court’s denial of a

sentencing alternative to total confinement.



       After a review of the record, the appellant’s four year sentence is affirmed,

however, the manner of service is modified to reflect a split confinement sentence of

six months confinement in the local jail or workhouse with the remainder of the four

year sentence to be served on supervised probation.




                                          Background



        At the time of the offense, the forty-six year old victim, Paul Crosson, had

been married to the appellant’s mother, Nora Lee, for six years. Although the

marriage had encountered difficult times, during the latter years, the couple enjoyed

a good relationship and a stable marriage. The couple moved from Mississippi to

Nashville with Nora Lee’s two children, the appellant and his younger sister, and,

eventually, started a carpet cleaning business. Both Paul and Nora Lee worked in

the business.




       1
         The appellant was charged by indictment with the second degree murder of his step-
father Paul Crosson.

                                              2
       January 6, 1997, began as a typical day, both Paul and Nora Lee sharing

domestic chores within the home. Later that morning, Paul went to work and Nora

Lee proceeded to complete errands Paul had asked her to do. Paul returned from

work around 4:30 that afternoon. Upon entering the residence, Paul kissed Nora

Lee. Nora Lee then gave Paul a message involving their carpet cleaning business.

However, she could not remember the details of the telephone message. Paul

became angry. He “grabbed [her] by the throat and threw [her] against the wall.”

Nora Lee fled to the safety of her bedroom; but Paul followed her. He “started

cussing [her] and cussing a whole lot of other people. . . . And just kept on hitting

and hitting and hitting.” Despite her pleas for mercy, ”[h]e kept on pushing [her],

throwing [her] against the wall, hitting [her].”



       The appellant, who had been in bed asleep, was awakened by the

commotion. He remained in his room because he did not want to become involved

in the argument. When the argument subsided, the appellant got dressed, went into

the living room, and confronted his crying mother. At this point, Paul had left the

residence. The appellant observed red marks on his mother’s neck. Nora Lee

confirmed that Paul had grabbed her by the throat and slammed her against the

wall. The appellant “sat there for a little while,” before “writing out [his] check for

[his] truck payment,” which was due that day.



       Meanwhile, Paul Crosson reinitiated his argument with Nora Lee. Paul

“swung at her a couple of times, trying to slap her or something.” The appellant

instructed his mother “to sit down and be quiet, just to leave [Paul] alone.” Paul left

the room. Nora Lee went into the couple’s bedroom; Paul followed her and closed

the door. The argument resumed. The appellant heard his mother screaming and

Paul shouting profanities and derogatory comments at her. In fear for his mother’s

life, the appellant went outside to his truck, retrieved a .25 caliber pistol, returned to

the house, and called for his mother. He opened the bedroom door and saw Paul

                                           3
on top of his mother, choking her with his left hand, and hitting her with his right

hand. The appellant again called for his mother and simultaneously fired his

weapon. Paul looked up but continued hitting Nora Lee. Realizing that his first shot

had missed his stepfather, the appellant moved closer, within five to six feet of his

victim, and fired the weapon two more times, hitting Paul in the head with both

shots. The appellant ran into the dining room, put the gun on the kitchen table, and

called 911. He then went outside and waited for the paramedics.



         At the subsequent sentencing hearing, proof was introduced by both the

defense and the prosecution as to the character of the victim, Paul Crosson. The

State’s witnesses, although admitting to turbulent times early in Paul and Nora Lee’s

marriage, testified to the loving relationship between the couple. Countering this

proof, the defense presented testimony of Paul Crosson’s violent nature. Notwith-

standing the contradictory evidence presented by both parties, the evidence is

undisputed that the victim, Paul Crosson, had only physically assaulted Nora Lee on

two prior occasions early in their marriage. Additionally, the appellant testified that

Paul Crosson had only assaulted him on one occasion during the parties’ six year

marriage. This incident occurred when the appellant was fifteen years old and had

shown a pornographic video tape to Crosson’s eight year old nephew.



         While the character of the victim is relevant in assessing the culpability of the

defendant in the commission of the offense, we fail to find the exhaustive

introduction of testimony regarding the “life” of Paul Crosson relevant to the

consideration of the principles inherent in determining the sentence that will best

serve the needs of the appellant and society.2 Moreover, despite the number of


        2
          A large portion of the 229 pages of sentencing testimony plus numerous exhibits in the
recor d are to tally irrele vant a nd m ay be prope rly cha racter ized a s an a ssau lt upon the vic tim's
charac ter, e.g., testim ony relatin g to th e vict im’s d isch arge from the m ilitary d ue to hero in
addiction , his prior felon y conv iction, his inca rceration in the penite ntiary, his diag nosis w ith
syphilis, etc. We note that the majority of this evidence is over twenty years old. Additionally, the
record also reve als that bo th the State and the d efense presen ted irreleva nt informa tion relating to
Nora L ee Cro sson, i.e., she is a for mer pro stitute and drug de aler, and th e family in g eneral, e.g.,

                                                    4
witnesses presented and the numerous medical/psychiatric exhibits introduced to

establish the character of the deceased victim, the only substantive evidence

relating to the character of the appellant is contained in the presentence report

submitted by the State. The appellant, a twenty-one year old at the time of the

crime, is a high school graduate and has no prior convictions as an adult or as a

juvenile. He admits to limited use of alcohol and, although he previously

experimented with illegal substances, denies current use of such substances. The

appellant has maintained continuous employment since October 19, 1994, changing

employment only to accept better paying positions. Finally, numerous letters were

submitted for the trial court’s consideration attesting to the admirable qualities of the

appellant, i.e., he is hard-working, polite, friendly, dependable, considerate, and

loyal.



         Based on this evidence and the circumstances of the offense, the trial court,

applying four mitigating factors and two enhancing factors, imposed a sentence of

four years for the offense of voluntary manslaughter. Additionally, in order to avoid

depreciating the seriousness of the offense, the trial court ordered that the sentence

be served in the Department of Correction.




                                                Analysis



         The appellant argues that the trial court erred by imposing a sentence of four

years and by denying him a sentencing alternative to total incarceration. Appellate

review of a sentence is de novo, with a presumption that the determinations made

by court from which the appeal is taken is correct. Tenn. Code Ann. § 40-35-



they all smoked marijuana together. We would acknowledge, however, that evidence of the
victim’s character indicative of his abusive behavior towards his wife, that is, reflective of the
nature o f the circum stance s of the offe nse, wo uld be relev ant in ma king the a ppropria te
senten cing dete rmination .

                                                   5
401(d)(1997). This presumption only applies, however, if the record shows that the

trial court properly considered relevant sentencing principles. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). In the present case, the record supports application

of the presumption. Moreover, the burden is upon the appellant to show that the

sentence imposed is improper. Sentencing Commission Comments, Tenn. Code

Ann. § 40-35-401. In determining whether the appellant has met this burden, this

court must consider factors listed in Tenn. Code Ann. § 40-35-210(b)(1997) and the

sentencing principles described in Tenn. Code Ann. §§ 40-35-102 and -103 (1997).



        If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

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

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

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

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




                                     A. Length of Sentence

        Again, the appellant contends that his offense does not warrant a sentence of

four years incarceration in the Department of Correction. The record reflects that

the trial court applied two enhancing and four mitigating factors. 3


        3
          In imposing a sentence of four years, the trial court determined that the record supported
application of the followin g mitigating factors:
         (2) The defendant acted under strong provocation;
         (3) Substantial grounds exist tending to excuse or justify the defendant’s criminal
         conduct, though failing to establish a defense;
         (11) The defendant, although guilty of the crime, committed the offense under
         such unusual circumstances that it is unlikely that a sustained intent to violate the
         law motivated the criminal conduct; and
         (12) The defendant acted under duress or under the domination of another
         person, even though the duress or the domination of another person is not
         sufficient to constitute a defense to the crime.

Tenn. Code Ann. § 40-35-113 (2), (3), (11), (12) (1997). Additionally, the court applied
enhancem ent factors (9) and (10):
       (9) The defendant possessed or employed a firearm, explosive device or other
       deadly weapon during the commission of the offense; and

                                                 6
We find the trial court’s determinations to be supported by the record and will not

disturb its findings.4 Notwithstanding, the appellant asserts that the trial court failed

to properly weigh the four mitigating factors and two enhancement factors.

Accordingly, he contends that he is entitled to a three year sentence, the minimum

sentence within the range.



         In determining the appropriate sentence for a felony conviction, the

sentencing court must, if there are both enhancing and mitigating factors, start at the

minimum sentence within the range, then enhance the sentence in accordance with

the enhancing factors, then reduce the sentence in accordance with the mitigating

factors. See Tenn. Code Ann. § 40-35-210(e) (1997); State v. Boggs, 932 S.W.2d

467, 475 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1996). There is no

mathematical formula of adding and subtracting the enhancement and mitigating


         (10) Th e defend ant had n o hesitation about co mmitting a crime w hen the r isk to
         human life was high.

Tenn. C ode An n. § 40-3 5-114 (9 ), (10) (199 7).

         4
          In his brief, the appellant concedes that the trial court misapplied one unspecified
mitigating fac tor and a rgues th e misap plication of on e unsp ecified enh ancem ent factor.
Essentially, his argument relies upon the principle that both factors are inherent in the offense of
voluntary mans laughter. In itially, we note th at it is not the du ty of this cou rt to spec ulate as to
which fa ctors are challeng ed by the appellant. It is inc umbe nt upon th e appe llant to state w ith
particularity the grounds upon which he seeks relief. The appellant has failed to do so. This issue
is waived . See Tenn. R. App. P. 27(a)(7). Regardless of the contested enhancement factor, we
find any c hallenge thereup on unw arranted under th e facts of th e prese nt case . The pro of supp orts
a finding tha t a firearm w as use d in the co mmis sion of the offense. See Tenn. Code Ann. § 40-
35-114(9). Additionally, factor (10) is appropriately applied in circumstances where persons
others th an the vic tim are pre sent an d could h ave be en injured . See State v. Makoka, 885
S.W.2d 366, 373 (Tenn. C rim. App .), perm. to appeal denied, (Tenn. 1994). The proof presented
revealed that the appellant’s mother was beneath the victim when multiple shots were fired at the
victim’s he ad.

          We, likewise, find no error in the trial court’s application of mitigating factors (2), (3), (11)
and (12). While essential elements of the offense cannot be enhancement factors under Tenn.
Code Ann. § 40-35-114, there is no corresponding limitation for mitigating factors. Tenn. Code
Ann . § 40 -35- 113 . Thu s, “do uble m itigatio n” is n ot pro hibite d by t he st atute . Non ethe less , “dou ble
credit” need not be automatically applied in voluntary manslaughter cases. Indeed, while the
proof of provocation may have been adequate to reduce the degree of culpability, the nature and
circumstances of the killing do not necessarily demonstrate the kind of “strong provocation”
required to mitigate a senten ce. State v. Da vid P aul M artin , No. 03C01-9412-CR-00448 (Tenn.
Crim. A pp. at Kno xville, Oct. 1 3, 1995) , aff’d on other grounds by, 950 S.W .2d 20 (T enn. 199 7).
Moreo ver, the de cision to do uble mitiga te is within the discretion of the trial cou rt. See Mar tin,
No. 03C01-941 2-CR-00448 . As the propriety of the trial court’s application of mitigating factors
sug ges tive o f prov oca tion a re no t cha llenge d on a ppe al, we will no t distu rb the trial co urt’s
findings.

                                                         7
factors to calculate the appropriate sentence. See Boggs, 932 S.W.2d at 475.

“Rather, the weight to be afforded an existing factor is left to the trial court’s

discretion so long as the court complies with the purposes and principles of the

1989 Sentencing Act and its findings are adequately supported by the record.” Id.

(citations omitted).



        The appellant, a range I offender, was convicted of voluntary manslaughter,

a class C felony. Accordingly, the appropriate sentencing range is “not less than

three (3) nor more than six (6) years.” Tenn. Code Ann. § 40-35-112(a)(3) (1997).

The trial court, after weighing and considering the enhancing and mitigating factors,

imposed a sentence of four years. Applying the presumption of correctness

afforded the trial court’s decision, we conclude, upon de novo review, that

imposition of a sentence of four years is not excessive.



                                B. Alternative Sentence

       In his final argument, the appellant contends that the trial court erred by

imposing a sentence of total confinement, rather than granting a sentencing

alternative, specifically that of total probation. Indeed, the trial court denied the

appellant any form of alternative sentence based upon the “seriousness of the

offense.” See Tenn. Code Ann. § 40-35-103(1)(B)(1997). Specifically, the trial

court reasoned:

       [the appellant] could have done something a little different than what
       [he] did on that day when [he had] been going around with that loaded
       weapon in [his] possession. And I think the fact that [he] had that
       loaded weapon causes us to be here now. And had [he] not had it,
       you would probably have had a domestic call . . . . And to put [the
       appellant] on probation today would depreciate the seriousness of
       what [he] did that I do not find was justified. It might be an excuse that
       [he’s] got, but it’s not a reason that [he] had to shoot this man in the
       head twice and kill without him ever having a chance to say anything.


       The appellant, a standard offender of a class C felony, in the absence of

evidence to the contrary, is considered a favorable candidate for alternative


                                           8
sentencing. See Tenn. Code Ann. §§ 40-35-102(5), -102(6); see also State v.

Bingham, 910 S.W.2d 448, 453 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1995) (citing State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993)).

Where a defendant is entitled to the statutory presumption of alternative sentencing,

the State has the burden of overcoming the presumption with evidence to the

contrary. See, e.g., Tenn. Code Ann. § 40-35-103(1)(A)-(C). Conversely, the

defendant has the burden of establishing his suitability for full probation, regardless

of the applicability of the statutory presumption. See Tenn. Code Ann. § 40-35-

303(b)( 1997); Bingham, 910 S.W.2d at 455.



       In order to deny an alternative sentence based on the seriousness of the

offense, “the circumstances of the offense as committed must be especially violent,

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

exaggerated degree” and the nature of the offense must outweigh all factors

favoring a sentence other than confinement. Bingham, 910 S.W.2d at 454 (quoting

State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). We fail to find

adequate support in the record to conclude that the circumstances of the offense in

the present case meet the standards announced in Hartley. The mere 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. See

Bingham, 910 S.W.2d at 454. Moreover, the overwhelming evidence favors

imposition of an alternative sentence. Indeed, the appellant is a youthful offender

with no prior criminal history and an excellent work history. See, e.g., Bingham, 910

S.W.2d at 454. We conclude that the State has not met its burden of establishing

the necessity of a sentence of total confinement. Thus, the question remains as to

the appropriate sentencing alternative.



       The appellant asserts that he is entitled to a sentence of total probation.

Again, the appellant bears the burden of establishing suitability for total probation.

                                          9
In order to meet his burden, the appellant must demonstrate that probation will

“subserve the ends of justice and the best interest of both the public and the

defendant.” Bingham, 910 S.W.2d at 456 (citation omitted). In determining the

defendant’s suitability, the sentencing court should consider: (1) “the nature and

circumstance of the criminal conduct involved,” Tenn. Code Ann. §40-35-210(b)(4)

(1997); (2) the defendant’s potential or lack of potential for rehabilitation , Tenn.

Code Ann. § 40-34-103(5); (3) whether a sentence of total probation would unduly

depreciate the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and

(4) whether a sentence other than total probation would provide an effective

deterrent to others likely to commit similar crimes, Tenn. Code Ann. § 40-35-

103(1)(B). See Bingham, 910 S.W.2d at 456.



       Again, the fact that the appellant’s criminal conduct resulted in the death of

another cannot, by itself, support a denial of total probation. See Bingham, 910

S.W.2d at 456. However, the facts and circumstances which surround the criminal

act are appropriate considerations. Id. Denial of probation may be based solely

upon the circumstances of the offense when they are of such a nature as to

outweigh all other factors favoring probation. Bingham, 910 S.W.2d at 456 (citation

omitted). The circumstances of this offense, as testified to by the appellant and his

mother, indicate that, although the appellant’s actions were the result of his fear for

his mother’s life, other alternatives were available to the appellant. Indeed, the

appellant’s own testimony revealed that, prior to the shooting, he sat in the living

room apparently unperturbed as the argument ensued and later he was again

present as he wrote out a check for his truck payment. Additionally, the appellant

conceded that the victim had left the house on at least two occasions during the

argument. While we do not agree with the trial court’s conclusion that the presence

of alternatives other than shooting the victim requires a sentence of total

confinement, we do agree that this factor, combined with the manner of the

shooting, i.e., two gunshot wounds to the back of the head, are sufficient to deny a

                                          10
sentence of total probation. Accordingly, we conclude that the appellant has not

met his burden of establishing his suitability for a sentence of total probation.




       Notwithstanding, we do conclude that a sentence of split confinement would

both serve the ends of justice and fulfill the needs of the appellant. See Tenn. Code

Ann. § 40-35-306 (1997). While we affirm the trial court’s imposition of a four year

sentence, the manner of service of this sentence is modified to reflect a period of

six months confinement in the local jail or workhouse with the remainder of the four

year sentence to be served on supervised probation. This case is remanded to the

trial court for entry of a judgment consistent with this opinion and for the imposition

of any conditions of probation reasonably related to the purpose of the appellant’s

sentence.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:




______________________________________
JERRY L. SMITH, Judge


______________________________________
NORMA MCGEE OGLE, Judge




                                         11
