          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            MARCH 1998 SESSION
                                                    FILED
                                                        June 3, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )               Appellate C ourt Clerk
                                    )    NO. 02C01-9707-CC-00268
      Appellee,                     )
                                    )    GIBSON COUNTY
VS.                                 )
                                    )    HON. DICK JERMAN, JR.,
MICHAEL DWAYNE DAVIS,               )    JUDGE
                                    )
      Appellant.                    )    (Sentencing)



FOR THE APPELLANT:                       FOR THE APPELLEE:

TOM W. CRIDER                            JOHN KNOX WALKUP
District Public Defender                 Attorney General and Reporter

JOYCE DIANE STOOTS                       GEORGIA BLYTHE FELNER
Assistant Public Defender                Assistant Attorney General
107 S. Court Square                      Cordell Hull Building, 2nd Floor
Trenton, TN 38382-1866                   425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         CLAYBURN L. PEEPLES
                                         District Attorney General

                                         EDWARD L. HARDISTER
                                         Assistant District Attorney General
                                         110 College Street, Suite 200
                                         Trenton, TN 38382-1841




OPINION FILED:



AFFIRMED AS MODIFIED



JERRY L. SMITH,
JUDGE
                                     OPINION



       The defendant, Michael Dwayne Davis, entered guilty pleas in the Gibson

County Circuit Court to one (1) count of aggravated burglary, a Class C felony, and

one (1) count of theft over $1,000, a Class D felony. The trial court sentenced him

as a Range I offender to concurrent sentences of four (4) years for aggravated

burglary and two (2) years for theft. The trial court ordered that defendant serve

one (1) year in incarceration with the balance to be served on community

corrections. On appeal, defendant argues that the trial court erred in enhancing his

aggravated burglary sentence one (1) year above the minimum and in denying full

probation. We affirm the judgment of the trial court, but modify the period of

incarceration to six (6) months.



                            FACTUAL BACKGROUND



       Defendant’s guilty pleas arose from the burglary of the residence of Mr. and

Mrs. Robert Buckner. The Buckners were an elderly couple and were attending

church at the time their home was burglarized. The victims had an extensive silver

coin collection, which was completely destroyed. Mint coin sets, silver certificates,

paper money, jewelry and other items were taken in the burglary.

       Prior to sentencing, the victims submitted impact statements. As a result of

the burglary, they became afraid to leave their home. Both victims were unable to

sleep, and their physical and mental health deteriorated after the incident. Much of

what was taken in the burglary was irreplaceable.

       Defendant was eighteen (18) at the time the burglary occurred. He had no

prior criminal record and was attending high school at the time. However, the pre-

sentence report indicated that defendant had disciplinary problems while attending

school. Defendant reported “occasional” alcohol use and admitted experimenting

with marijuana two (2) months prior to the preparation of the pre-sentence report.

       In determining defendant’s sentence, the trial court considered the



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defendant’s age to be a mitigating factor. See Tenn. Code Ann. § 40-35-113(6).

The trial court also found that the victims’ ages were enhancement factors. See

Tenn. Code Ann. § 40-35-114(4). The trial court also noted that the victims suffered

psychological damage as a result of defendant’s actions. The trial court sentenced

defendant to concurrent sentences of four (4) years for aggravated burglary and two

(2) years for theft over $1,000. Upon the service of one (1) year in the Gibson

County jail, the trial court ordered that defendant serve the remainder of his

sentence in an alternative sentencing program under the supervision of Corrections

Management.



                            LENGTH OF SENTENCE



      Defendant argues that his sentence is excessive. He argues that the trial

court erred in enhancing his aggravated burglary sentence to four (4) years, one (1)

year above the minimum sentence in Range I.

      This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

      The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing;

       (2) [t]he presentence report;

       (3) [t]he principles of sentencing and arguments as to sentencing
       alternatives;



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       (4) [t]he nature and characteristics of the criminal conduct involved;

       (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
       and

       (6) [a]ny statement the defendant wishes to make in his own behalf
       about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the

range for enhancement factors and then reduce the sentence within the range for

the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for

each factor is prescribed by the statute, as the weight given to each factor is left to

the discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,

848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

       Although defendant does not specifically contest the propriety of the trial

court’s enhancement factors, we will address each of them. Firstly, the trial court

found that the ages of the victims were enhancement factors. The victims were

elderly. A defendant’s sentence may be enhanced if the victim of the offense was

“particularly vulnerable because of age or physical or mental disability.” Tenn. Code

Ann. § 40-35-114(4). However, this factor may not be established by the showing

of age alone. State v. Walton, 958 S.W.2d 724, 729 (Tenn. 1997); State v. Poole,

945 S.W.2d 93, 96 (Tenn. 1997); State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993).

There must be an independent showing that the victim was particularly vulnerable

due to age or mental condition. State v. Walton, 958 S.W.2d at 729; State v.

Adams, 864 S.W.2d at 35. In the present case, although the victims were an elderly

couple, there is no evidence to establish that they were especially vulnerable to

burglary and theft because of their advanced years. Therefore, the trial court

                                          4
improperly considered the victims’ age as an enhancement factor.

       The trial court also found that the psychological harm to the victims should

be considered as an enhancement factor. Under Tenn. Code Ann. § 40-35-114(6),

a defendant’s sentence may be enhanced if the personal injuries to the victim were

“particularly great.”   Psychological or emotional harm can be considered as

“personal injury” under Tenn. Code Ann. § 40-35-114(6). State v. Smith, 891

S.W.2d 922, 930 (Tenn. Crim. App. 1994). However, this factor may be applied

only when the state establishes that “the emotional injuries and psychological

scarring are ‘particularly great.’” State v. Hoyt, 928 S.W.2d 935, 948 (Tenn. Crim.

App. 1995) (citations omitted).

       The psychological trauma to the elderly victims was indeed particularly great.

Both victims are afraid of leaving their home, and when they do leave, they are

afraid of returning. They lock the doors to their home even if they are merely going

outside into their own yard. They installed new locks on the doors and placed bars

on the windows. Both victims are afraid to sleep, and their physical health has

worsened as well. We find that the emotional damage suffered by these victims is

“particularly great” in comparison to the psychological damage experienced by other

burglary victims. Therefore, we find that the trial court properly considered the

victims’ emotional damage as an enhancement factor.

       Under our power of de novo review, we also find that defendant has a

previous history of criminal behavior. Tenn. Code Ann. § 40-35-114(1). Although

defendant was eighteen (18) at the time of the offense, he reported “occasional”

alcohol use.    Therefore, he admitted to the illegal act of underage drinking.

Defendant also admitted that he had used marijuana prior to his sentencing hearing.

This Court has previously held that this factor applies when the “criminal behavior”

occurs after the convicted offense but prior to sentencing. See State v. Robert

Arthur White, C.C.A. No. 02C01-9601-CC-00009, Lake County (Tenn. Crim. App.

filed February 27, 1997, at Jackson). Even though this factor may be entitled to little

weight, it is, nonetheless, a relevant consideration in determining defendant’s

sentence.



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       Although the trial court improperly considered the victims’ ages as

enhancement factors, we find that two (2) enhancement factors apply in this case.

Under our de novo review, we find that the four (4) year sentence imposed by the

trial court for aggravated burglary is appropriate.

       This issue is without merit.



                                      PROBATION



       Defendant also claims that the trial court erred in denying full probation. He

contends that he is a favorable candidate for alternative sentencing and is not a

defendant for which incarceration is a priority. He argues that it is in the best

interest of the public and himself to be granted probation.

                                         A.

       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). A trial court

must presume that a defendant sentenced to eight years or less and who is not an

offender for whom incarceration is a priority is subject to alternative sentencing.

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further

presumed that a sentence other than incarceration would result in successful

rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.

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. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see

Tenn. Code Ann. § 40-35-303(b). 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


                                          6
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); State

v. Black, 924 S.W.2d 912, 917 (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. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.

1994).

         In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn.

Crim. App. 1997).

                                           B.

         The trial court did not make any specific findings regarding alternative

sentencing, nor did the trial court discuss the principles to be considered in

alternative sentencing. Therefore, we must review this issue de novo without a

presumption of correctness. State v. Poole, 945 S.W.2d at 96.

         We agree with the trial court that total probation is not appropriate in this

case. However, the remaining issue before this Court is the length of incarceration

defendant must serve prior to being placed on community corrections. Considering

the circumstances of the offense and the psychological impact on the victims, a

period of incarceration is necessary to avoid depreciating the seriousness of the

offense. There is evidence in the record that defendant had disciplinary problems

while attending high school. Defendant has admitted that he occasionally uses

alcohol, although it is illegal for him to do so. Moreover, defendant reported using

marijuana several months after defendant was arrested on the present offense. We

find that these facts reflect negatively on defendant’s rehabilitation potential.



                                           7
       However, we also note the youth of the defendant and that he had no prior

criminal record. These factors are entitled to great weight. Pursuant to the

principles of the 1989 Sentencing Act, this Court is required, upon our de novo

review, to impose “the least severe measure necessary to achieve the purposes for

which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(4). Accordingly,

defendant’s sentence is modified to reflect a confinement period of six (6) months.



                                  CONCLUSION



       For the foregoing reasons, the judgment of the trial court is affirmed, as

modified.




                                                 JERRY L. SMITH, JUDGE



CONCUR:




GARY R. WADE, PRESIDING JUDGE




JOE B. JONES, JUDGE1




       1
       Presiding Judge Joseph B. Jones died on May 1, 1998. This court is
indebted to Judge Jones for his lifetime of contribution to the bench and bar of this
state.

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