        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                      FEBRUARY SESS ION, 1998      September 15, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9708-CR-00343
                           )
      Appellee,            )
                           )
                           )    HAMBLEN COUNTY
VS.                        )
                           )    HON. JAMES EDWARD BECKNER
LARRY WILSON,              )    JUDGE
                           )
      Appe llant.          )    (Sentencing)




FOR THE APPELLANT:              FOR THE APPELLEE:

P. RICHARD TALLEY               JOHN KNOX WALKUP
P. O. Box 950                   Attorney General and Reporter
Dandridge, TN 37725
                                SANDY C. PATRICK
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243-0943

                                BERKELEY BELL
                                District Attorney General

                                JOHN DUGGER
                                Assistant District Attorney
                                510 Allison Street
                                Morristown, TN 37814



OPINION FILED ________________________

MODIFIED AND REMANDED

JERRY L. SMITH, JUDGE
                                    OPINION


      On Ma rch 12, 1997 , a Hamb len County jury fou nd Appe llant, Larry

Wilson , guilty of reckless hom icide. The jury imp osed a fine of $5 ,000. After a

sentencing hearing, the trial court sentenced Appellant to the maximum

penalty of four years incarceration to be served as a R ange I stand ard

offender. Appellant appeals from the trial court’s sentence, raising two issues:



      1) whether the trial court erred in imposing the maximum sentence and

in failing to consider applicable mitigating factors, and

      2) whe ther the trial cou rt erred in den ying A ppella nt prob ation o r spilt

confinem ent.



      After a revie w of the re cord, we modify th e judgm ent of the tria l court to

reflect a sentence of three years with one year incarceration followed by two

years of supervised probation.



                                       FACTS:




      According to testimony pres ented at trial, Appellan t and his brother,

Randy Wilson, the victim, had a strained relationship for many years. The

victim threatened Appellant’s life on many occasions. On the morning of the

homicide, around 4:30 in the morning, the victim and his girlfriend, Rocky

Ward showed up unannounced at Appellant’s door. Appellant allowed the two

to sleep in his home until sometime after midday. Appellant testified that the



                                          -2-
victim and Ms. Ward appeared to have been under the influence of drugs and

alcohol. The pair left the farm around two o’clock with Ms. Ward going

sometime in the evening to pick up her son for her summer visitation with him.

Randy Wilson returned to the farm late that evening, and Ms. Ward arrived

with he r fourte en yea r old so n and her five y ear old daug hter to m eet him

around 11:30.



      Randy Wilson was reclining on the porch, and when Ms. Ward arrived,

she did not im mediately see him. So M s. Wa rd went into the sh ed where

Appellant was working and asked him where Randy was. Appellant pointed

toward the house. Ms. Ward then got her children out of the car, slamming the

car door in the process. When Randy Wilson heard the car door he sat up,

and M s. W ard joined him on the porc h.



      Randy Wilson and Ms. Ward checked for the key on the porch, and, not

finding it, Ms. Ward returned to the shed to ask Appellant for the key. She got

no response from Appellant, and returned to the porch without the key. Randy

Wilson then stated that he would get the key and went to the shed. A few

seconds after Randy Wilson entered the shed, Appellant shot him. Randy

Wilson turned to leave the shed, holding his stomach, and Appellant followed

him out of the shed, shooting him in the back. Ms. Ward and her two children

fled the property, hearing a third shot as they ran. Ms. Ward flagged down a

car which took her to call the authorities.



       The victim’s body was recovered at the scene with three gunshot

wounds to the body (and an additional wo und to the ha nd which co uld have

                                         -3-
been from the same shot as one of the wounds to the body): one shot to the

chest which c rossed throu gh the ches t wall and the top of the victim’s liver,

another sho t to the abdom en which w ent through the top of the left kidney,

injured the spleen and passed through the victim’s stomach, and a third shot

which entere d high unde r the victim’s jaw and e xited just below his ea r,

severing the carotid artery. According to medical testimony at trial, either of

the first two wound s would have been fatal had the victim received e xtensive

medical care within thirty minutes of receiving either wound. The third shot

caused d eath instantane ously.



       Appellant initially denied killing his brother, but eventually signed a

statem ent adm itting to shoo ting Ran dy W ilson after h is brother th reatene d to

“blow his brains out” if he did not give the victim the key to his house.

Appe llant wa s afraid of the vic tim as a resu lt of the vic tim’s p rior thre ats to k ill

him and felt that, if he did not protect himself, the victim would shoot him.

Appellant further testified that when the victim turned to leave the shed, he

feared that the victim would retrieve a gun from his car and return to kill him.

Though the victim was unarmed at the time of the shooting, undisputed

testimony was presented that the victim always carried a gun, usually wore a

bullet proof-vest, and had a reputation for violence.



                                 I. Length of Sentence




        Appellant argues that the trial court erred in imposing the maximum

sentence for this crime. When a defendant complains of his or her sentence,

we must conduct a de novo review with a presumption of correctness. Tenn.

                                             -4-
Cod e Ann . § 40-3 5-401 (d). Th e burd en of s howin g that th e sen tence is

improper is upon the appealing party. Tenn. Code Ann. § 40-35-401(d)

Sente ncing Com miss ion Co mm ents. T his pre sum ption, h owev er, is

conditioned u pon an affirm ative showing in the record that the trial court

considered the sentencing principles and all the relevant facts and

circum stance s. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



      The Sentencing Reform Act of 1989 established specific procedures

which must be followed in sentencing. These procedures, codified at Tenn.

Code Ann. § 40-35-210, mandated the court’s consideration of the following:



      (1) The evidence, if any, received at the trial and the
      sentencing hearing; (2) [t]he presentence report; (3)
      [t]he princip les of sen tencing a nd argu ments as to
      sentencing alternatives; (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.


T.C.A. § 40-35-210.



      This section further provides that the minimum sentence within the

range is the presumptive sentence. The court must begin with the minimum

sentence a nd enhan ce that senten ce to approp riately reflect any statutory

enhancement factors that the court finds to be present. After enhancing the

sentence, the court must reduce the sentence giving consideration to the

weight of any mitigating factors that the court finds. The weight to be given

each fa ctor is left to the discretion of the trial judg e. State v. Shelton, 854



                                          -5-
S.W .2d 116, 123 (Tenn. Crim . App. 1992 ). Because w e find the trial court

erred in rejecting a number of applicable mitigating factors out of hand, our

review of the sen tence in this case is purely de novo.



       Having bee n convicted of a C lass D felony as a Range I standard

offender Appellant is subject to a minimum sentence of two years and a

maximum sentence of four years. The trial court found that two enhancement

factors were applicable, i.e., Appellant treated Randy Wilson with exceptional

cruelty , Ten n. Co de An n. Sec . 40-35 -114( 5), and Appe llant us ed a fire arm in

the commission of the offense, Tenn. Code Ann. Sec. 40-35-114(9). The trial

court declined to find that any of the mitigating factors offered by Appellant

were applicab le to the case. It is from the refusal on the pa rt of the trial court

to apply any of these mitigating factors that Appellant appeals.



       Appe llant urged the trial cour t to apply the following m itigating facto rs to

his sentence:

              (2)    the defendant acted under strong provocation;

              (3)    substantial grounds exist tending to excuse or
                     justify the defendant’s criminal conduct, though
                     failing to establish a defense.

              (8)    the defendant was suffering from a mental or
                     physical condition that significantly reduced
                     culpability for the offense; and

              (11)   the defendant, although guilty of the crime,
                     committed the offense under such unusual
                     circumstances that is unlikely that a sustained
                     intent to violate the law m otivated the condu ct.


Tenn. Code Ann. § 40-35-113.




                                          -6-
We will address the applicability of each factor in turn.



Strong Provocation.



       The evidence in this record is undisputed that Appellant was a peaceful

man who h ad ne ver be en in tro uble b efore in his life. Lik ewise it is

uncontradicted that Randy Wilson was a violent man who wore a bullet proof

vest an d wen t arme d virtua lly all the tim e. Ran dy W ilson h ad intim idated his

brother, th e Appe llant, for years through threats an d belligere nt beha vior.

Indeed the mother of both Appellant and Randy Wilson testified that the latter

was so violent she was sca red of him and ac tually slept w ith a base ball bat to

protect herself from her own son. Appellant testified that at the time of the

shooting his bro ther threatened to kill him as he had many time s previously.



       It is obvious the jury believed that Appellant acted under some degree

of prov ocatio n that re duce d his cu lpability fo r the ho micid e. Altho ugh o riginally

indicted for second degree murder, i.e. a “knowing” killing the jury found

Appellant guilty of only the “reckless” killing of Randy Wilson. We believe that

under the circumstances the trial court should have found that Appellant when

he shot Randy Wilson was acting under strong provocation.



Substa ntial Grou nds Exis t Wh ich Ten d to Excu se App ellant’s Co nduct.



       From its verdict it is clear that the jury rejected the notion that Appellant

acted in a m anne r which would cons titute the com plete d efens e of se lf

defens e thereb y excusin g Appe llant from c riminal res ponsib ility altogether.

                                            -7-
However, for the reasons stated in the preceding section it is also clear that

the jury did not believe Appellant to be guilty of a murder or any intentional

homicide. S ince Appe llant admitted sho oting his brother rep eatedly we are

left to conclude that the jury must have believed that Randy Wilson’s previous

threats and his reputation for violence and going armed tended to excuse the

Appe llant’s cond uct. 1 From the rec ord we agree and fin d the tria l court s hould

have applied this mitigating factor to Appellant’s sentence.



Appellant’s Mental Condition.



        Expert testimony established that Appellant had a low I.Q. although he

was not retarded. He also suffered from a form of post-traumatic stress

syndrome. However, Appellant was a fully functioning individual who ran a

farm, dated, and took care of his elderly aunt. He had never been treated for

men tal or em otiona l proble ms. U nder th ese c ircum stanc es the trial cou rt did

not err in rejecting this m itigating factor.



Sustained Intent to Violate the Law.



        The uncontradicted proof in the record revealed that Appellant is a

peace ful man who ha s never c rossed paths w ith the law p rior to this incid ent.

By all accounts he led a quiet life on his family farm where he cared for an

elderly aunt. Again, it is apparent from its verdict that the jury found the killing

of Randy Wilson to be at most an isolated act motivated by fear and


        1
          The trial judge in rejecting this mitigating factor indicated that the jury’s having apparently taken
this factor into account in reaching its verdict precluded him from considering it. We know of no case or
statute which mandates such a conclusion.

                                                    -8-
intimidation. W e find that Appe llant’s actions were n ot motivated by a

sustaine d intent to vio late the law . This facto r should h ave bee n applied to

Appellant’s sentence.



       In summary is it the opinion of this Court that mitigating factors (2), (3)

and (11) apply to the sentence in this case. In balancing these factors against

the su bstan tial weig ht acc orded by the tr ial cou rt to the a pplica ble

enhancement factors we modify the sentence of four years to one of three

years in length.




                              II. Alternative Sentencing




       Appellant further challenges the trial court’s order that he serve the

entirety of his sentence in confinement. The Sentencing Reform Act requires

the trial court to begin its consideration with the presumption that the appellant

is subject to alternative sentencing if he meets the requirements of Tennessee

Cod e Ann otated § 40-3 5-102 (6), wh ich req uires th at the a ppella nt not fa ll

under Tennessee Code An notated § 40-35-102(5) and that he receives a

sentence of less than eight years. This means that the defendant must be a

standard or mitigated offender, convicted of a Class C, D, or E felony who

cannot have a criminal history evincing either “clear disregard for the laws and

morals of society” or “failure of past efforts at rehabilitation.” Tenn. Code Ann.

§ 40-35-102(5). Appellant clearly falls within the parameters of the

                                            -9-
presumption that he is entitled to a sentence other than continuous

confinem ent.



       The presumption that Appellant is a candidate for alternative sentencing

does not settle the matter. This presumption may be rebutted by “evidence to the

contrary.” Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated § 40-35-

103 gives guidance as to what may be considered in making this determination:

              (1) Sentences involving confinement should be
       based on the following considerations:
                       (A) Confinement is necessary to protect
       society by restraining a defendant who has a long history
       of crimina l conduc t;
                       (B) Conf inement is ne cess ary to a void
       depreciating the seriousness of the offense or confinement
       is partic ularly suited to provide an effective deterren ce to
       others likely to commit similar offenses; or
                       (C) Meas ures       le ss  restrictive   than
       confinement have frequently or recently been applied
       unsuc cessfully to the defen dant.


State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). In this case, the trial court

found that confinement was necessary to avoid depreciating the seriousness

of the offense. The trial court specifically based the sentence of continuous

incarceration upon the lawlessness of society saying, “so what should the

mess age be ?”. In my o pinion, pro bation w ould say that it’s okay to go bac k to

lawlessness in a time when violence causes all of us to live in fear. What we

need more of, folks , is just pla in old la w and order, and th en if you kill

someone and it’s not in self-defense, and you know what you’re doing, and

you do it cruelly, you go to jail. Those are hard words, but they’re true. So

that’s the mes sage.”




                                          -10-
       We agree with the trial court that this case is serious and that some

incarceration is necessary to avoid depreciating this fact. However, Tenn.

Code Ann. S ec. 40-3 5-103(4 ) cautions us that:



              The sen tence impo sed shou ld be the least seve re
              measure necessary to achieve the purposes for
              which the sentence is imposed.


       The hom icide in th is case is not on ly seriou s, as is a ny hom icide, b ut it

is also trag ic. Here o ne othe rwise law abiding b rother is ap parently d riven to

kill his violent sibling through threats and intimidation meted out by the latter

for the better part of a lifetime. As stated previously, although Appellant

cann ot and shou ld not b e com pletely r elieved of crim inal res pons ibility for his

actions, a sentence of continuous confinement in the penitentiary does not

appear to be the least severe measure necessary to avoid depreciating the

seriousness of the offense. It is our opinion that pursuant to Tenn. Code Ann.

Sec. 40 -35-306 , Appella nt shou ld serve a senten ce of one year in the c ounty

jail or workhouse followed by a period of two years supervised probation upon

such terms and conditions as the trial court may deem appropriate.



       The judgment of the trial court is modified to reflect a sentence of three

years to be served as set forth hereinabove. This case is remanded to the

trial court for further proceedings consistent with this opinion.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




                                          -11-
CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
WILLIAM B. ACREE, SPECIAL JUDGE




                             -12-
