            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                             AT KNOXVILLE                           July 1, 1999

                                                               Cecil Crowson, Jr.
                          JANUARY 1999 SESSION                 Appellate C ourt
                                                                   Clerk



STATE OF TENNESSEE,          *    C.C.A. # 03C01-9801-CC-00009

             Appellee,       *    BLOUNT COUNTY

VS.                          *    Hon. D. Kelly Thomas, Jr., Judge

KENNETH MOATS,               *    (Voluntary Manslaughter; Reckless
                                  Endangerment)
             Appellant.      *



For Appellant:                    For Appellee:

George H. Waters                  John Knox Walkup
Independent Contractor            Attorney General & Reporter
419 High Street
Maryville, TN 37804               Todd R. Kelley
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
                                  Nashville, TN 37243-0493

                                  Charles Carpenter
                                  Assistant District Attorney General
                                  363 Court Street
                                  Maryville, TN 37804




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                      OPINION

              The defendant, Kenneth Moats, pled guilty to the voluntary

manslaughter of his son, Gene Moats, and the Class E felony reckless

endangerment of his granddaughter, Michelle Gribble. The state approved a plea

agreement which provided for concurrent three-year and one-year sentences

respectively with the trial court to determine the manner of service. After an

extensive sentencing hearing, the trial court ruled that the three-year sentence

would be suspended after service of ten months in the Blount County Jail.

Immediate probation was granted on the one-year sentence. The sole issue on

appeal is whether the trial court erred by refusing to grant immediate probation on

the three-year term.



              We affirm the judgment of the trial court.



              On March 3, 1997, the defendant was at his home on 4013 Payne

Hollow Road in Walland, Tennessee. The victim, Gene Moats, lived next door in a

trailer with his sister, Teresa Moats Gribble, and her daughter, Michelle Gribble.

The defendant was eating dinner when his daughter, Ms. Gribble, telephoned to

warn that the victim "has gone psychotic and is coming to kill you and Momma."

When the defendant stepped onto his porch, he saw the victim armed with a

handgun approaching the defendant's house. The victim continued advancing

toward the residence, despite the defendant's warning to stop. When the victim was

about seventy to eighty feet from his parents' home, he aimed his weapon at the

defendant. The defendant responded by firing a single shot from his sixteen gauge

shotgun, killing the victim. The defendant's granddaughter, Michelle Gribble, was in

the line of fire but was uninjured.




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              Authorities found a functional .38 caliber pistol loaded with five rounds

of live ammunition next to the victim's body. The defendant remained at the scene

of the shooting and cooperated with the police. An autopsy report showed that the

victim had a blood alcohol content of .17. The defendant had a blood alcohol

content of .10.



              Teresa Moats Gribble, the defendant's daughter, testified that she has

not had any contact with her father since the shooting. She claimed that after the

shooting, her father threatened her life. She also related that her daughter, who

was the victim of the reckless endangerment, has sought psychological counseling

and, as a result of the incident, has not done as well in school since the shooting.

Ms. Gribble, who admitted telephoning her father on the night of the shooting,

recalled that her father and her brother had a long history of hostility. She insisted,

however, she did not phone her father to offer any type of warning and contended

that the defendant had simply decided that "he was going to put an end to" the

situation. Ms. Gribble specifically recalled an instance where the victim had fired a

weapon inside her trailer after having an argument with the defendant.



              Mary Crystal Moats, the defendant's wife of thirty-four years, testified

that after the victim (her son) left the army in the 1980's, he began to abuse alcohol

and drugs. The Moats' relationship with the victim deteriorated. During the ten

years the victim lived with his parents, Ms. Moats was required to call the authorities

on several occasions because the victim had pulled a gun on her or the defendant.



              Ms. Moats recalled that the defendant had worked for TVA as a crane

operator for several years before a disabling car accident. After the accident, he

started his own painting business. She recalled that on the day of the shooting,


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their daughter had called warning that the victim intended to kill them. Ms. Moats

testified that she was calling 911 when she heard the gun go off. She stated that

her husband expressed regret every day since the shooting.



              Gary Spence, a longtime friend to the defendant, recalled that he was

at the defendant's home one night when he observed an altercation between the

defendant and the victim. He remembered that each had aimed a gun at the other;

but then the defendant stated he did not want to "kill his own son," lowered the

weapon, and retreated. Spence also recalled that he had seen Teresa Gribble

provide the victim Valium.



              The defendant testified that his relationship with his son deteriorated

after his son left the military. He acknowledged that he argued with his son often

and recalled previous occasions where his son aimed a weapon at him. The

defendant recalled that on the day of the incident, his daughter had called, warning

that the victim intended to kill him and his wife. The defendant stated that he picked

up his shotgun and went to the front porch. He testified that when he saw the victim

aim his weapon, he fired a single shot: "when I [came] down that step, evidently

when that foot rolled, I touched that trigger ... I don't know how I [pulled that trigger]

when I made that step." He claimed that he was unaware of his granddaughter's

presence in the area.



              The defendant admitted that while he was in jail awaiting his release

on bail, he "smoked part of a joint." He also acknowledge that he smoked marijuana

"every now and then." The presentence report also indicates that a drug test

conducted on the defendant after his release was positive for the presence of

marijuana. The defendant expressed regret over the death of his son, "if I could do


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it over, it'd be me." The transcript indicates the defendant was overcome with

emotion during portions of his testimony.



              The presentence report establishes that in the early 1970's, the

defendant was convicted of public intoxication, carrying a weapon, and DUI. The

defendant, who is in his mid-fifties, worked from the 1960's through the mid-1990's

as a crane operator for various companies. He was unable to continue that type of

work after a car wreck. While the defendant drinks alcohol, he does not consider

himself a problem drinker. He admitted to using marijuana "on and off" since 1975.



              The trial court made the following ruling:

              This is a tragic situation. ... Mr. Moats expresses
              extreme remorse and I'm sure sincerely feels as badly as
              he says he does. ... I think that the seriousness of this
              offense involving both of these victims demands some
              confinement. ... Rehabilitation is ... getting a person to
              the point where they will follow the law and not violate the
              law or violate the orders of courts. And I can't think of
              very many things that show or reflect more poorly on a
              person's likelihood of being rehabilitated than buying
              marijuana in jail and buying it after you're out of jail on a
              $25,000 bond and have been ordered by a judge not to
              drink. ... [T]hat's a very primary consideration in my
              decision. ... I'm going to order a split confinement of ten
              months in the jail, the balance to be served on
              supervised probation.



              When a challenge is made to the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a "de novo review ... 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). See State v. Ashby, 823

S.W.2d 166 (Tenn. 1991). The Sentencing Commission Comments provide that the

burden is on the defendant to show the impropriety of the sentence.




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              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

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



              Especially mitigated or standard offenders convicted of Class C, D, or

E felonies are, of course, presumed to be favorable candidates "for alternative

sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. §

40-35-102(6). With certain statutory exceptions, none of which apply here,

probation must be automatically considered by the trial court if the sentence

imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b). Among the

factors applicable to probation consideration are the circumstances of the offense,

the defendant's criminal record, social history, and present condition, and the

deterrent effect upon and best interest of the defendant and the public. State v.

Grear, 568 S.W.2d 285 (Tenn. 1978).



              A sentence of split confinement involves the grant of probation after

the partial service of a sentence. Tenn. Code Ann. § 40-35-306. It may include a

jail or workhouse sentence of up to one year with the probationary term to extend for

any period thereafter up to the statutory maximum for the offense. Id.



              The complaint in this case is that the trial court erred by failing to grant

immediate probation. We cannot agree. That the defendant used marijuana while

in jail and then out on bail suggests that he is less than an ideal candidate for

rehabilitation. While remorseful about his son's death, he failed to take full


                                            6
responsibility for the shooting, contending that the gun discharged accidentally. In

our view, the trial court's ruling is supported by the record.



              In Ashby, our supreme court encouraged the grant of considerable

discretionary authority to our trial courts in matters such as these. 823 S.W.2d at

171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn.1986). "[E]ach case must be

bottomed upon its own facts." State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 1987). "'It is not the policy or purpose of this court to place trial judges in a

judicial straight-jacket in this or any other area, and we are always reluctant to

interfere with their traditional discretionary powers.'" Ashby, 823 S.W.2d at 171

(quoting Moten v. State, 559 S.W.2d 770, 773 (Tenn. 1977)).



              Accordingly, the judgment of the trial court is affirmed.



                                           __________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Norma McGee Ogle, Judge



______________________________
John K. Byers, Senior Judge




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