         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs March 13, 2002

           STATE OF TENNESSEE v. GENEE HARDIN SNOW, SR.

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2000-A-447    Cheryl Blackburn, Judge



                      No. M2001-01416-CCA-R3-CD - Filed June 7, 2002



Originally charged in an indictment with the offense of attempted first degree murder, the Defendant,
Genee Hardin Snow, Sr., entered into a negotiated plea agreement wherein he pled guilty to the
lesser-included offense of attempted second degree murder, with the trial court to determine the
length and manner of service of his sentence following a sentencing hearing. Additional charges of
aggravated assault, reckless endangerment with a deadly weapon, and possession of a weapon in a
public place were dismissed pursuant to the plea agreement. Following a sentencing hearing, the
trial court sentenced Defendant to serve nine (9) years in the Tennessee Department of Correction.
Arguing that he should have received the minimum sentence of eight (8) years, and that he should
have been ordered to serve the sentence on probation or some other form of alternative sentence,
Defendant has appealed. After a thorough review of the record, we affirm the judgment of the trial
court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

G. Wayne Davis, Nashville, Tennessee, for the appellant, Genee Hardin Snow, Sr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

                                   FACTUAL BACKGROUND

        When Defendant pled guilty to attempted second degree murder of the victim, Martha
Ellison, the prosecutor submitted the following facts to support a conviction for attempted second
degree murder in compliance with Tennessee Rule of Criminal Procedure 11(f). On September 30,
1999, Defendant shot the victim one time in her mid-section with a .38 caliber revolver. The
shooting occurred in a bar in Nashville. The victim and Defendant had previously dated for
approximately one to one and one-half years, breaking up approximately two weeks prior to the
shooting. They had arrived at the bar separately, and Defendant came up to the victim at the table
where she was sitting. They had a physical altercation, during which Defendant struck the victim.
She stood up and, at that point, Defendant produced a gun and shot her. She was taken to Vanderbilt
University Medical Center where she underwent surgery. Defendant immediately left the bar and
drove away. Witnesses observed the license tag of his vehicle. The police went to Defendant’s
home, and he admitted shooting the victim. He claimed that it was done in self-defense when she
had picked up a beer bottle at the bar. At the guilty plea hearing, Defendant acknowledged to the
trial court that the facts, as related by the prosecutor, were “generally true.”

        At the sentencing hearing, the victim, Martha Ellison, testified that she was sitting in the bar
with a third person on July 30, 1999, when Defendant came inside, stood around a while, and then
went to the restroom. When Defendant came out of the restroom, he walked up to Ellison and
slapped her. Ellison stated that when Defendant shot her, she did not have a weapon in her
possession and had never picked up her beer bottle. She was in the hospital approximately ten days.
The bullet which struck her had entered her lungs, and she almost died. She was required to use a
walker for approximately four months after her release from the hospital.

        Defendant testified at the sentencing hearing that he was seventy-nine years old and had
never before been charged with a criminal offense. He was a part-time security guard at a
condominium complex in Nashville. Defendant stated that he was not searching for the victim when
he entered the bar. Instead, he asserted that he chose that bar on the evening of the incident because
he did not see the victim’s car parked there. Defendant testified that after he noticed the victim
inside the bar, he leaned over to talk to her but she stiff-armed him, stood up, and then charged at
him with a beer bottle. He claimed that the shooting was accidental and that he was only trying to
frighten her to prevent her from harming him. He claimed that a week or two before the shooting,
the victim had beaten him up. Defendant testified that he suffers from high blood pressure, arthritis
in one hip, and partial blindness in his left eye due to a cataract. Defendant’s credibility was
impeached with documentary evidence that his age was sixty-nine years rather than seventy-nine
years. He also admitted that he did have a prior DUI conviction. Two character witnesses testified
on behalf of Defendant: one was a neighbor who worked as an assistant fire chief in the Metro Fire
Department, and the other was a minister.



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       After the testimony and arguments of counsel, the trial court made detailed findings of fact
and sentenced Defendant to serve nine years in the Department of Correction. The trial court found
three enhancement factors and one mitigating factor applicable. Accordingly, the trial judge
enhanced the sentence three years above the minimum based upon the enhancement factors and then
decreased that sentence by two years, which resulted in a sentence of nine years.

                                            ANALYSIS

        On appeal, Defendant primarily argues that the trial court failed to apply all appropriate
mitigating factors and also failed to properly weigh the enhancement and mitigating factors in
determining the length of his sentence. We respectfully disagree.

        When an accused challenges the length, range, or the manner of service of a sentence, this
Court conducts a de novo review of the sentence with a presumption that the determinations made
by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption 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). If the trial court followed the statutory sentencing procedure, made findings of fact that are
adequately supported in the record, and gave due consideration and proper weight to the factors and
principles relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence
even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). Our review of this case is de novo with a presumption of correctness.

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and 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,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
103, 210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986). Defendant
bears the burden of demonstrating that the sentence is improper. Ashby, 823 S.W.2d at 169.

        In Defendant’s case, the trial court found that the following three enhancement factors were
applicable: (a) the defendant has a previous history of criminal behavior in addition to those
necessary to establish the appropriate range, see Tenn. Code Ann. § 40-35-114(1); (b) the personal
injuries inflicted upon the victim were particularly great, see Tenn. Code Ann. § 40-35-114(6); and
(c) the defendant employed a firearm during the commission of the offense, see Tenn. Code Ann.
§ 40-35-114(9). Defendant does not dispute that the above factors were applicable. Rather, he
contends that the trial court gave these factors improper weight.

       Specifically, the record reveals that the trial judge found proof of previous criminal behavior
based on Defendant’s testimony that he routinely carried his firearm for the purpose of going armed,
and without a permit to do so. In addition, it was clear that Defendant had a prior conviction for
DUI. Thus, we agree that enhancement factor (1) was properly applied. With regard to the second

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enhancement factor applied by the trial court, we note that proof of personal injury to the victim is
not required in order to establish the offense of attempted second degree murder. In this case, the
victim testified that she was hospitalized for ten days, her lungs were “cut” by the bullet, and she was
required to use a walker in order to move about for approximately four months after her release from
the hospital. The trial court correctly noted that the victim almost died before she could be taken to
the hospital, as reflected by the presentence report. Therefore, enhancement factor (6) was also
properly applied. Finally, there is no question that Defendant employed a firearm in commission
of the offense and, thus, enhancement factor (9) was also properly applied. The weight to be
afforded an existing factor is left to the trial court’s discretion so long as it complies with the
purposes and principles of the Sentencing Act, and its findings are adequately supported by the
record. Id. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby,
823 S.W.2d at 169. Our review reveals that the trial court has complied with the Act and its findings
are adequately supported by the record. Consequently, we find that the weight given the
enhancement factors determined appropriate in this case was left to the court’s discretion and, thus,
no error exists.

         Defendant also contends that the mitigating factors submitted by Defendant were appropriate,
the trial court erred by refusing to apply them all, and the length of his sentence was improper as a
consequence. The record reflects that the trial court considered as a mitigating circumstance only
the fact that Defendant had a distinguished military career, under Tenn. Code Ann. § 40-35-113(13).
With regard to other mitigating factors, the trial court specifically found that Defendant had not acted
under strong provocation, Tenn. Code Ann. § 40-35-113(2); that there were no grounds existing to
excuse or justify Defendant’s criminal conduct, Tenn. Code Ann. § 40-35-113(3); that Defendant
did not assist the authorities in investigating the matter, Tenn. Code Ann. § 40-35-113(10); and that
his claims of remorse were suspect, as shown by the fact that he immediately left the scene and went
home after the shooting.

        At the conclusion of the sentencing hearing, Defendant was then sentenced as a Range I
standard offender for the Class B felony offense of attempted second degree murder. The sentence
to be imposed by the trial court for a Class B felony is presumptively the minimum in the range
when no enhancement or mitigating factors are present. See Tenn. Code Ann. § 40-35-210(c)
(1997). As a Range I offender, the sentence range in this case was eight (8) to twelve (12) years.
See id. § 40-35-112(2). In determining the sentence, the trial court found that the enhancement
factors elevated the appropriate sentence from eight to eleven years, but, after considering the
applicable mitigating factor, the proper sentence should be decreased to nine years.

        With regard to the mitigating factors found inapplicable by the trial court, we find no abuse
of discretion. The trial court made detailed findings of fact, including the conclusion that the
victim’s testimony was more credible than that of Defendant, and we find no error in its conclusion
that further mitigation was not appropriate. Further, as stated above, the weight given the sole
mitigating factor applied in this case is a matter within the discretion of the trial court. Since we
agreed that the trial court also properly weighed the enhancement factors, we conclude that the
sentence length of nine years was appropriate.

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       Consequently, we also observe that Defendant was also not eligible for a sentence of
probation or split-confinement, because his sentence was more than eight (8) years. See Tenn. Code
Ann. § 40-35-303(a) (1997). Even though Defendant has not requested to be placed in the
Community Corrections Program in this appeal, the trial court properly concluded that Defendant
was not eligible to be sentenced in the Community Corrections Program because of the nature of the
offense. See 40-36-106 (1997). Defendant is not entitled to relief on this issue.

                                        CONCLUSION

       Accordingly, we affirm the judgment of the trial court.


                                                     ____________________________________
                                                     THOMAS T. WOODALL, JUDGE




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