           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE               FILED
                        NOVEMBER 1998 SESSION
                                                             April 14, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk




STATE OF TENNESSEE,        )
                           )      C.C.A. No. 03C01-9803-CR-00119
     Appellee,             )
                           )      Hamilton County
v.                         )
                           )      Honorable Stephen M. Bevil, Judge
SHARON MARIE SHELL,        )
                           )      (Voluntary Manslaughter)
     Appellant.            )




FOR THE APPELLANT:                FOR THE APPELLEE:

Leonard M. Caputo                 John Knox Walkup
312 Vine Street                   Attorney General & Reporter
Chattanooga, TN 37403             425 Fifth Avenue, North
                                  Nashville, TN 37243-0493

                                  R. Stephen Jobe
                                  Assistant Attorney General
                                  425 Fifth Avenue, North
                                  Nashville, TN 37243-0493

                                  William H. Cox, III
                                  District Attorney General
                                  600 Market Street, Suite 310
                                  Chattanooga, TN 37402

                                  Barry A. Steelman
                                  Assistant District Attorney General
                                  600 Market Street, Suite 310
                                  Chattanooga, TN 37402




OPINION FILED: _________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION


       The appellant, Sharon Marie Shell, referred herein as “the defendant,” appeals as

of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Upon her plea

of guilty to voluntary manslaughter, the trial court imposed a sentence of three years in the

Department of Correction, denying an alternative sentence and full probation at the

conclusion of the sentencing hearing.



       The sole issue for appellate review is: whether the trial court erred in denying the

defendant an alternative sentence in the form of probation or split confinement.



       After a review of the entire record, the briefs of the parties, and applicable law, we

AFFIRM the trial court’s judgment.



                               FACTUAL BACKGROUND



       On March 27, 1996, the Hamilton County grand jury indicted the defendant for

murder first degree in the killing of her fiancé, Charles Popp, on December 6, 1995. The

victim died from a gunshot wound to the chest which penetrated the heart. On January 14,

1997, the defendant entered a guilty plea to voluntary manslaughter and requested that

the trial court determine the appropriate sentence.        The defendant also requested

alternative sentencing of split confinement or full probation. A presentence report was

prepared and, at the conclusion of a sentencing hearing on June 4, 1997, the trial court

imposed a three-year sentence and ordered the defendant confined in the Department of

Correction.



                                SENTENCING HEARING



       Detective Gary Gaskill, of the Hamilton County Sheriff’s Department, testified he

responded to a 911 call made by the defendant from her home in a trailer park on

December 6, 1995. Upon arrival, Detective Gaskill met the defendant and her daughter,

                                             2
Brandy Shell. Detective Gaskill observed the victim’s body lying in the hallway of the

trailer. The defendant appeared calm, but somewhat distraught. The defendant’s initial

statement was that the victim been beating her. Detective Gaskill had photographs taken

of the defendant’s face and arms, as well as those of Brandy Shell. There was no

evidence of visible trauma. At his office, Detective Gaskill obtained tape recordings from

both the defendant and her daughter.



      In the pertinent parts of her statement, the defendant related that in May, 1995, she

and the victim had been drinking and became involved in a heated argument. The victim

beat her and blackened her eye, which required medical treatment. Since that incident,

the victim made an effort to control himself, but the couple continued to have arguments.

On the day of the offense, the defendant and victim began drinking at 12:00 noon and

continued drinking upon their arrival at a tavern at 3:00 p.m., where the victim discussed

business with an acquaintance. After consuming seven or eight beers each, they left the

tavern around 6:00 p.m.



      At 7:00 p.m., the defendant, the victim, the victim’s brother, Houston Scudgins, and

Brandy Shell went to Cancun’s, a Mexican restaurant. While eating, the victim and his

brother began teasing the defendant about Swedish women. In response, the defendant

placed an empty bowl that had contained avocado dip on the victim’s shirt front. The victim

got mad and attempted to pour half of a pitcher of margaritas on the defendant. The

defendant spilled some when she knocked the pitcher away. At home, the victim started

slapping the defendant and told her, “You need to get out of here.” Brandy screamed, and

the victim began yelling at her and went in her room, acting as if he was going to hit her.

The defendant retrieved a gun from a desk drawer in the living room, turned, and said,

“That’s enough.” The victim was at Brandy’s bedroom door. The defendant then shot the

victim, but stated she did not mean to shoot him. She then called 911 for help.



       Based on the defendant’s statement, Detective Gaskill estimated the distance

between the defendant and the victim to be twelve to fifteen feet at the time of the



                                            3
shooting. The desk was located next to the front door of the trailer. During cross-

examination, Detective Gaskill testified that the physical evidence contradicted the

defendant’s statement of where she was standing when the shot was fired. The desk was

situated diagonally across the living room from the hallway entrance where the body was

found. The medical report indicated the defendant and victim were within two to three feet

of each other at the time of the shooting, which indicated to Detective Gaskill the defendant

was going toward the victim. Detective Gaskill testified that the defendant, when she

obtained the gun, had ample time to leave the trailer.



       Houston Scudgins, brother of the victim, testified he and his brother were sub-

framing contractors working at various job sites. The defendant and his brother bought a

computer for the business, as the defendant kept the books. Scudgins described all three

as heavy drinkers, but not during working hours. On the night of the offense, Scudgins

testified he went to Cancun’s with the defendant, the victim, and Brandy. Scudgins

described the circumstances surrounding the avocado dip on the victim’s shirt and the

spilling of the margaritas.   Later that evening, Scudgins heard about the shooting, but

could not believe it, as the defendant and the victim appeared calm when he left them.



       Evonne Burrows, a friend of the victim, testified in May, 1995, she, her husband,

Billy Burrows, the victim, and the defendant had dinner together. The witness observed

the defendant had a black eye. In discussing an unrelated murder, where a wife had killed

her husband, Mrs. Burrow quoted the defendant, “W ell, if you plan it right and say the right

things at the right time anybody can get away with murder.” The defendant said her ex-

husband had taught her how to shoot, and she was a good shot, commenting further, “I

could shoot Charlie [the victim] tomorrow and I wouldn’t spend a day for it.” At the time the

defendant made these statements, Mrs. Burrows did not take them seriously.



       Billy Burrows testified he was a longtime friend of the victim. During the dinner

described by his wife, Evonne Burrows, Burrows asked the defendant, “Well, can you hit

what you shoot?” The defendant responded, “W ell, I hit can what I shoot, and more than



                                             4
that, I’m not going to shoot nobody unless I’m killing them. . . . I’m not giving nobody a

chance to get well and come back and get me.”



       Paula Hargis, the victim’s sister, testified as to the effect her brother’s death had on

herself and the family. The witness believed the shooting was uncalled for.



       Myrna Scudgins, the victim’s mother, testified she had known the defendant since

her son and the defendant were in junior high school together. Mrs. Scudgins believed she

and the defendant had a good relationship, and on occasions, the defendant would take

her to the doctor. Mrs. Scudgins testified that her son and Brandy Shell had a good

relationship. Mrs. Scudgins testified she does not have a life any more and has to go out

of her way to work to avoid passing the cemetery where her son is buried.



       Chris Chambers, Director for the Domestic Violence Division of the Sheriff’s

Department, testified as to the number of domestic violence homicides occurring in

Hamilton County since 1994. Chambers’s unit came into existence in October, 1995. In

1994, in Hamilton County thirty-five percent of all homicides in Hamilton County were a

result of domestic violence. In 1995, the ratio was again thirty-five percent. In 1996, the

ratio was running twenty-five to twenty-seven percent. Detective Chambers testified there

is a need to deter domestic violence in Hamilton County due to the growing number of

those type of cases. Detective Chambers did not investigate this particular homicide.

Also, Detective Chambers agreed domestic violence is not reported in a large number of

cases for various reasons.



       Kathy Lewis, the defendant’s sister, testified the defendant called her after the

incident in May, 1995. Mrs. Lewis and her husband took the defendant to the hospital.

Mrs. Lewis described her sister’s body as having marks all over it. Mrs. Lewis testified her

sister was devastated over killing the victim. Since the incident, the defendant has enrolled

in school to become a medical assistant. Mrs. Lewis denied her sister had a drinking

problem or a temper, but admitted her sister had a previous DUI case in Catoosa County,



                                              5
Georgia.



        Rebecca Graybill, another sister of the defendant, testified the defendant came to

her home every morning after her release from jail. Her sister would cry, pull her hair out,

and begin screaming uncontrollably. Her sister kept saying, “I didn’t mean to do it. I loved

him.”



        Brandy Shell testified at the time of the hearing she was 15 years old. Brandy

verified the truthfulness of her statement to Detective Gaskill. At the time of the May

incident, Brandy was in North Carolina with her father, and her mother never talked to her

about the event. Brandy testified the victim became enraged after the avocado incident

at Cancun’s. Brandy heard the victim slap her mother while in their bedroom. Brandy went

to the bedroom and observed the victim strike her mother. She admonished the victim not

to hit her mother. Brandy returned to her room, and the victim came in with his fist raised

as if to strike her, so she fell on the bed and covered her face. In the meantime, her

mother went to the living room. Brandy could not see her mother, but saw the victim being

shot and falling at her bedroom door. After release from jail, her mother was distraught

over this event and cried often. Although the victim spanked her one time, Brandy testified

she had a good relationship with the victim.



        At the time of the hearing, the defendant was living in Walker County, Georgia, and

attending school to become a medical assistant. The defendant needed nine more months

to complete a fifteen-month course. As to the May incident, the defendant testified it

began at a friend’s house, where she and the victim had stopped to allow their overheated

truck to cool down. When the victim refused to leave, the defendant began walking home.

The victim followed her, grabbed her by the hair, struck her, and forced her into the truck.

At their home, the victim continued to hit and choke the defendant. She was able to get

outside, but the victim drug her back inside and continued to abuse her. After the victim

fell asleep, the defendant was able to call her sister and obtain medical treatment. She

returned to live with the victim.



                                             6
       On the night of the offense, the defendant described the victim’s mood as being

similar to the May incident. Upon arriving home from the restaurant, the victim slapped the

defendant four or five times in their bedroom. She heard Brandy yell, “Don’t you hit my

Mom.” The victim was extremely angry and proceeded to Brandy’s room. The defendant

could not leave the trailer, because she did not want to leave Brandy alone with the victim

for fear he would hurt her. The defendant denied making any statements to the Burrows

about shooting a gun. The defendant was arrested in Georgia in March, 1996, for DUI, and

was ultimately convicted.



       During cross-examination, the defendant insisted she meant no harm to the victim,

and that the gun just went off. When the defendant pulled the gun, she believed it would

shock the victim, and he would stop and let her and Brandy go. However, the defendant

recalled reaching into the desk drawer and turning when the gun fired. The defendant

testified she was scared and fearful as to what the victim would do to her daughter. She

also testified that the victim had pinned her on the floor during one incident in the past and

had put a gun to her head.



       It was stipulated by both parties that an official report submitted by the Georgia

Bureau of Investigation, Division of Forensic Sciences, verified that the .357 caliber pistol

used by the defendant took a force of approximately five pounds to pull the trigger in single

action and a force of approximately thirteen pounds to pull the trigger in double action.




                                              7
                           SENTENCING CONSIDERATIONS



       The defendant contends she is entitled to a complete suspended sentence or, in the

alternative, to an alternative sentence including split confinement. The state counters the

trial court was correct in determining that confinement was necessary to avoid depreciating

the seriousness of the offense and to provide an effective deterrence to others.



       When a defendant complains of the imposition of his or her sentence, we must

conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). Therefore, the burden of showing that the sentence is improper is upon the

appealing party. Id. The presumption that determinations made by the trial court are

correct is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Smith, 898 S.W.2d 742, 745 (Tenn.

Crim. App. 1994), per. app. denied (Tenn. 1995).



       If appellate review reflects the trial court properly considered all relevant facts and

its findings of fact are adequately supported by the record, this Court must affirm the

sentence “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an

appropriate sentence, the trial court must consider: (1) the evidence, if any, received at

the guilty plea 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 statements the defendant wishes to make in

the defendant’s behalf about the sentencing; and (7) the potential for rehabilitation and

treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210; State v. Holland, 860 S.W.2d

53, 60 (Tenn. Crim. App. 1993).



       The defendant contends the record does not affirmatively show the trial court


                                              8
considered the sentencing principles and all relevant facts and circumstances, thus this

Court’s review should be de novo without a presumption of correctness. State v. Ashby,

823 S.W.2d at 169. However, we believe the record establishes the trial court did consider

the sentencing principles of the Tennessee Criminal Sentencing Reform Act of 1989, thus

our review is with a presumption of correctness.



                                           Part A

                             Denial of Alternative Sentence



       The defendant contends that the trial court should have imposed an alternative

sentence pursuant to Tenn. Code Ann. § 40-35-102(b) and § 40-35-303(b). Thus, we must

determine whether the defendant is entitled to the statutory presumption that she is a

favorable candidate for such sentencing. State v. Bingham, 910 S.W.2d 448, 453 (Tenn.

Crim. App.), per. app. denied (Tenn. 1995); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn.

Crim. App. 1993). To meet this statutory presumption of alternative sentencing, the

defendant must satisfy three requirements: (1) the defendant is an especially mitigated

offender or standard offender; (2) the defendant must be convicted of a Class C, D, or E

felony, Tenn. Code Ann. § 40-35-102(6); and (3) the defendant must not fall within the

parameters of Tenn. Code Ann. § 40-35-102(5). Thus, the defendant cannot have a

criminal history indicating either “clear disregard for the laws and morals of society” or

“failure of past efforts at rehabilitation.” Bingham, 910 S.W.2d at 454 (quoting Tenn. Code

Ann. § 40-35-102(5)). Since the defendant pled guilty to voluntary manslaughter and is a

first time standard offender, she is entitled to the presumption.



       However, this presumption of entitlement to an alternative sentence may be rebutted

by “evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (1994 Supp.). The

sentencing considerations in Tenn. Code Ann. § 40-35-103 are of assistance in

determining if the presumption is still viable:


              (1) Sentences involving confinement should be based on
                  the following considerations:


                                              9
              (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.



       In this case, the trial court specifically found that any sentence other than

confinement would depreciate the seriousness of the offense, and that confinement would

provide an effective deterrent to others likely to commit similar offenses. Tenn. Code Ann.

§ 40-35-103(B).



       In denying 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 of the factors that favor a sentence other than

confinement. State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991); State v.

Travis, 622 S.W.2d 529, 534 (Tenn. 1981).



       In denying an alternative sentence, the trial court commented on the defendant’s

lifestyle before and after the offense. In its ruling, the trial court stated:

              There’s been proof and this Court has considered the proof of
              the May incident. Now, as far as what really happened on that
              occasion we’ve heard different versions. We do know that she
              was beaten on that occasion and we do know that she went to
              the hospital. But we also know that after that incident
              happened she stayed with him and continued to be with him,
              continued to live in that relationship with him, even having her
              daughter come and live with them which indicates to me there
              was no fear on her part of Charlie Popp.

                                            *****

              I don’t think she was in fear of him. I don’t think a person who
              is in fear of being beaten severely would pick up a bowl of
              avocado dip or guacamole dip and pour it on somebody who
              she’s afraid of being beaten.



                                              10
              Ms. Shell appears to me, although not today, but based on the
              facts that are presented to be a very fiery hot-tempered person
              and could hold her own especially when she’s been drinking or
              she wouldn’t have poured that avocado dip on Charlie Popp or
              she wouldn’t have tried to knock away the margaritas when he
              was pouring them on her. But there’s a little bit of fault I think
              on both parties.

              What the Court has to look at, too, is at the time this incident
              happened was she justified in taking his life? She’s pled guilty
              to voluntary manslaughter which is admitting that she killed him
              in the heat of passion.

              I’m concerned about the fact that I think she had alternatives
              available to her. She could have left the trailer. She said, well,
              I was afraid for Brandy. She knew where the gun was. She
              could have come back in the trailer. She could have gotten the
              gun if he had stayed there and if he had done something to
              Brandy. She did not have to stay there for that.

              At the time she said she was afraid for Brandy. Brandy’s own
              testimony was he said, “You better go to bed.” And she said,
              “I’m in bed and he turned and walked away.” There was no
              threat. There was no threat to Brandy. There was no fear at all
              to Brandy at the time and as soon as he turned before he had
              a chance to take much of a step she shot him and killed him.

                                           *****

              I think to not require Ms. Shell to be confined would be
              depreciating the seriousness of this offense. It would mean
              that Mr. Popp’s life wasn’t worth much. And I think it would be
              telling a message to Brandy to say, Brandy, if a guy beats up
              on you it is okay to live with him because if he gets too bad you
              can just pull out a gun and kill him and you can walk away.
              Again, I’m not condoning domestic violence. I detest it. I think
              there is no reason in the world for it. But I think it would be
              sending a wrong message to the community. I think it will be
              sending a wrong message to Brandy. I think it will be sending
              the wrong message to anyone else who is in a similar situation
              to stay if you choose.



       The trial court was very concerned about the defendant’s arrest for DUI while on bail

release and her lack of respect for the law. Likewise, it is obvious from the record that the

trial court was very concerned about the facts surrounding the victim’s death.



       We cannot say that the facts in this record met all the standards set forth in Hartley,

818 S.W.2d at 374-75. However, in arriving at a proper sentence and its imposition, the

trial court is entitled to inquire into the nature and characteristics of the criminal conduct

involved. Tenn. Code Ann. § 40-35-210(b)(4); State v. Hollingsworth, 647 S.W.2d 937,



                                             11
939 (Tenn. 1983). The state argues that exceptional circumstances must be shown by the

defendant in order to support probation or an alternative sentence in cases involving the

death of another person. This issue has been addressed in a number of appellate cases.

However persuasive this argument may be, the existence of the death of a person in and

of itself cannot constitute sufficient “evidence to the contrary” under Tenn. Code Ann. § 40-

35-102(6); Hartley, 818 S.W.2d at 374; Bingham, 910 S.W.2d at 455; State v. Bradley Joe

Housewright, No. 03C01-9705-CR-00195, 1997 WL 785672 (Tenn. Crim. App., Knoxville,

December 16, 1997), per. app. denied (Tenn. 1998).



       From our analysis of the evidence in this record, we concur in the trial court’s finding

that the death of the victim was needless and unnecessary. We believe the death of the

victim was violent, offensive, and excessive under these facts. Therefore, the nature of

these facts outweighs all factors favoring a sentence other than confinement. As part of

the denial of an alternative sentence, the trial court was concerned with deterrence. Before

a trial court can deny an alternative sentence on the ground of deterrence, there must be

some evidence contained in the record that the sentence imposed will have a deterrent

effect within the jurisdiction. State v. Bonestel, 871 S.W.2d 163, 170 (Tenn. Crim. App.

1993). This Court has repeatedly held that the finding there will be a deterrent effect within

the jurisdiction cannot be merely conclusory but must be supported by proof. State v.

Ashby, 823 S.W.2d at 170.



       In support of deterrence in domestic violence offenses in Hamilton County, the state

offered proof from the Director of the Domestic Violence Unit. It was established that thirty-

five percent of all homicides committed in Hamilton County from 1994 to 1996 were a

result of domestic violence. The trial court commented that much emphasis is placed on

drinking and driving, but little thought is given to drinking and guns, which was the case

here. Guns and drinking play a substantial part in domestic violence offenses. We believe

it was proper for the trial court to consider such factors in determining whether deterrence

was applicable. There is no merit to this issue.




                                             12
                                            Part B

                                        Full Probation



       The defendant contends that she is entitled to full probation. Therefore, the

defendant has the burden of establishing she is suitable for full probation, even if the

defendant is entitled to the statutory presumption of an alternative sentence. Tenn. Code

Ann. § 40-35-303(b); State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997);

State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), per. app. denied (Tenn. 1995).

In doing so, the defendant must demonstrate that probation will “subserve the ends of

justice and the best interests of both the public and the defendant.” State v. Dykes, 803

S.W.2d 250, 259 (Tenn. Crim. App.), per. app. denied (Tenn. 1990) (quoting Hooper v.

State, 201 Tenn. 156, 162, 297 S.W .2d 78, 81 (1956)).



       When determining suitability for probation, the sentencing court considers the

following factors: (1) the nature and circumstances of the criminal conduct involved; (2)

the defendant’s potential or lack of potential for rehabilitation, including the risk that during

the period of probation, the defendant will commit another crime; (3) whether the sentence

of full probation would unduly depreciate the seriousness of the offense; and (4) whether

a sentence other than full probation would provide an effective deterrent to others likely to

commit similar crimes. Tenn. Code Ann. §§ 40-35-210(b)(4), -103(5), 103(1)(B) (1990);

Bingham, 910 S.W.2d at 456.



       In considering probation, the trial court may inquire into the facts and circumstances

surrounding the criminal conduct. Denial of probation may be based solely upon the

circumstances of the offense when they outweigh all other factors favoring probation.

State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). The comments made

by the trial court in denying an alternative sentence are applicable to the request for full

probation. We concur in the trial court’s findings. Upon de novo review and in accord with

a presumption of correctness, we are unable to conclude that the trial court erred in

determining the defendant had not met her burden of establishing suitability for full


                                              13
probation.



      The judgment of the trial court is affirmed.



                                  ________________________________________
                                  L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
DAVID H. WELLES, JUDGE



___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                           14
