               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT KNOXVILLE                 FILED
                                  FEBRUARY 1998 SESSION                  June 2, 1998

                                                                      Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                              )        C.C.A. NO. 03C01-9705-CC-00190
                                                  )
         Appellee,                                )       BLOUNT COUNTY
                                                  )
VS.                                               )       No. C-9610 Below
                                                  )
BILLY SLAUGHTER,                                  )       HON. PHYLLIS MILLER,
                                                  )       JUDGE BY INTERCHANGE
         Appellant.                               )



                                             ORDER



         The defendant, Billy Slaughter, was convicted by a Blount County jury of

reckless endangerment with a deadly weapon, a Class E felony. The trial court

sentenced him as a Range I offender to one (1) year, with all but ten (10) days

suspended, and ordered that defendant serve two (2) years on probation. On

appeal, defendant contends that the trial court erred in denying full probation. We

find no error and affirm the judgment of the trial court pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals.



                                                  I



         Defendant was driving to his mother’s home when his vehicle slid into a ditch

due to snow and ice on the ground. A companion and the victim, Timothy Self,

stopped to give assistance. After Self and his companion pulled defendant’s vehicle

out of the ditch and onto the road, defendant’s vehicle slipped on the ice and drifted

into a telephone pole, causing damage to the vehicle. An argument ensued, and

defendant hit Self with a “bumper jack,” breaking Self’s arm.1 At trial, defendant

claimed that Self brandished a gun, and he was merely defending himself.



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             The victim raised his arm above his head in order to shield himself from defendant’s
blows.
Defendant was charged with aggravated assault, but the jury convicted him of the

lesser offense of felony reckless endangerment.

       At the sentencing hearing, defendant testified that he was twenty-four (24)

years old, was married and had a four-year old son. He never completed high

school or obtained his GED. He worked part-time doing repair work at a tennis

court facility. He reported occasional alcohol use and had used marijuana in the

past. He maintained that the victim had a weapon during the altercation.

       The trial court sentenced defendant as a Range I offender to one (1) year.

In determining whether an alternative sentence would be appropriate, the trial court

noted defendant’s poor social and work history. The court found that defendant was

less than candid in his insistence that the victim was carrying a gun. Furthermore,

the trial court determined that a period of incarceration was necessary to avoid

depreciating the seriousness of the offense. Therefore, the trial court suspended

defendant’s sentence, with the exception of ten (10) days, and ordered that

defendant serve two (2) years on supervised probation. From the trial court’s

judgment, defendant brings this appeal.



                                            II



       We agree with the trial court that a period of incarceration is necessary to

avoid depreciating the seriousness of the offense. During a verbal argument,

defendant struck the victim with a “bummer jack,” breaking the victim’s arm. The

victim’s injuries could have been much more serious, possibly resulting in death,

had he not lifted his arm above his head in self-defense. Furthermore, the trial court

found that defendant was not truthful in his claims that the victim was carrying a

gun. Lack of candor is an appropriate consideration for the trial court and reflects

on a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306

(Tenn. Crim. App. 1994).

       Considering the nature of the offense and the defendant’s negative

rehabilitation potential, we find that the period of incarceration of ten (10) days in the



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county jail is appropriate. It is, therefore, ORDERED that the judgment of the trial

court is affirmed in accordance with Rule 20, Rules of the Court of Criminal

Appeals.

       In the event the defendant indicates an intention to file an application for

permission to appeal to the Tennessee Supreme Court, he may be admitted to bail

in the additional amount of $2,500, for a total bond amount of $5,000, with sufficient

sureties to be approved by the clerk of the trial court pending filing and disposition

of said application. In default of such bond, he shall be remanded to the custody

of the Sheriff of Blount County. Costs of appeal will be paid by the State of

Tennessee as it appears defendant is indigent.




                                                  JERRY L. SMITH, JUDGE



CONCUR:




THOMAS T. WOODALL, JUDGE




WILLIAM B. ACREE, JR., SPECIAL JUDGE




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