         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 20, 2004

                   STATE OF TENNESSEE v. JON BREWBAKER

                  Direct Appeal from the Criminal Court for Bradley County
                           No. M-02-888     Carroll L. Ross, Judge



                                   No. E2003-02706-CCA-R3-CD
                                          June 18, 2004

The Defendant, Jon Brewbaker, pled guilty to second degree murder, a Class A felony. After a
hearing, the trial court sentenced the Defendant to twenty-three years in the Department of
Correction. The sole issue on appeal is whether the sentence imposed by the trial court is excessive.
We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Richard Hughes, Public Defender, Cleveland, Tennessee, for the appellant, Jon Brewbaker.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Joseph V. Hoffer, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                               OPINION


         At the guilty plea hearing, the assistant district attorney general gave the following recitation
of the relevant facts, which were gleaned from statements the Defendant made to the police. Early
on the morning of October 17, 2002, the Defendant met the victim, Jonathan Shanks, by way of the
internet. They agreed to meet at the Charleston Boat Dock, which they did. They left the victim’s
car parked at the boat dock, and they then went to the Defendant’s residence. There the Defendant
performed oral sex on the victim. After the sexual encounter, the victim disclosed to the Defendant
that he suffered from genital warts. The Defendant became “upset,” and they began to argue. The
argument became physical, with the victim biting the Defendant, the Defendant hitting the victim,
and both of them wrestling with each other. Eventually the victim’s head “hit the window,” breaking
it, and his head began to bleed. At this point the fight stopped. The Defendant agreed to take the
victim back to his car at the boat dock. When they arrived, the victim took the Defendant’s pager
and told him that he was going to report him to the police and accuse him of rape. In his statement
to the police, the Defendant said that he was not “out” about [his] sexual orientation; therefore, this
threat “truly scared [him]” and he “just snapped.” As the victim walked away from the Defendant’s
car, the Defendant got his revolver and shot the victim in the back. The victim fell down, and the
Defendant shot him twice more: once in the chest and once in the face. According to the
Defendant’s statement, he killed the victim to prevent his family and friends from discovering his
homosexual lifestyle.

       At the sentencing hearing, Dr. Ronald Toolsie testified that he performed the autopsy on the
body of the victim. He found three gunshot wounds on the body, one in the head, one in the chest,
and one in the back. The gunshot wound to the chest would have itself been fatal because it passed
through the heart and lungs. Likewise, the gunshot wound to the back would alone have been fatal
because it passed through the spinal cord and a lung, which caused significant bleeding.

        The victim’s mother, Susan Marie Shanks, testified that the victim was openly gay. At the
time of his murder, he was a biology major at Chattanooga State Technical Community College and
worked at Longhorn Restaurant. Ms. Shanks testified that the victim had genital warts at the time
of his death. The victim’s father, Charles Victor Shanks, also testified about the profound impact
that the victim’s death had on all the people that loved him.

        The Defendant’s older sister, Carrie Andreu, testified that she and the Defendant were
physically and mentally abused by their stepfather. She also testified that their mother had been
married four times and had moved several times while the Defendant was growing up. Finally, she
stated that, approximately two years before the murder, their mother had run off with the Defendant’s
biological father, which was very difficult for the Defendant.

       Lynne Eaks, the Defendant’s aunt, testified that the Defendant had worked in law
enforcement and had carried a gun in his car for “protection.” She also testified that he had a history
of being unable to control his temper. Finally, she explained that the Defendant’s mother never
nurtured him, and this left him feeling abandoned.

        According to the presentence report, at the time of sentencing, the Defendant was thirty-three
years old and single. Although he dropped out of high school, he received his G.E.D. in 1989. He
also completed several hours of E.M.T. and law enforcement training at vocational schools. He
described his mental and physical health as good, but he was taking several prescription drugs for
“nerves,” high blood pressure, and “stomach problems.” The presentence report states that “[i]n the
last decade, the Defendant has had at least 17 jobs. Most of these jobs ended after a few months.
The longest period of employment was with University of Tennessee - Chattanooga’s police
department.” He worked at that job for almost two years. Furthermore, the report states that “[t]here
were discrepancies in dates, wage and reason for termination of employment that Mr. Brewbaker
gave versus what the past employers gave.” The Defendant has no prior criminal history.




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        At the conclusion of the sentencing hearing, the trial court imposed a sentence of twenty-
three years based upon the existence of one enhancement factor. The Defendant asserts that the
sentence is excessive.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and the
method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, 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 our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904 app. at 926-27 (Tenn. 1998). We will
uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes and
principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported by
the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

        “Second degree murder is a Class A felony.” Tenn. Code Ann. § 39-13-210(b). The trial
court determined the Defendant to be a Range I offender, see id. § 40-35-105(a), (b), and, as such,
the Defendant was subject to a potential sentence of fifteen to twenty-five years. See id. § 40-35-
112(a)(1). The presumptive sentence for a Class A felony is the midpoint of the range, see id. § 40-
35-210(c), and may be enhanced or reduced based upon the existence of applicable enhancement and
mitigating factors. See id. § 40-35-210(d), (e).

       In this case, the trial court enhanced the Defendant’s sentence from the presumptive sentence
of twenty years to twenty-three years based upon the enhancement factor that the Defendant



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employed a firearm during the commission of the offense. See id. § 40-35-114(10). The court found
no mitigating factors.

        The Defendant’s challenge to his sentence is twofold. First, he asserts that the trial court
erred by failing to find as a mitigating factor that he “acted under strong provocation.” Id. § 40-35-
113(2). He argues that the victim first provoked him when he disclosed that he suffered from genital
warts, after the Defendant had performed fellatio on him. The Defendant contends that he was again
provoked when the victim took his pager, accused him of rape, and told him that he was going to
report him to the police.

         The trial court explained its decision to not apply mitigating factor (2) as follows:
         The State reduced this from first degree, and certainly, whatever benefit he gets for
         any provocation, I think it comes in by that reduction.1 And I don’t think the proof
         here shows anything that would be subject to finding a mitigation factor based on any
         provocation here. And I base that specifically on the fact that we had in effect two
         separate assaults here. Unfortunately, the second one resulted in evidently the death
         of the victim. It’s clear he took the victim back from his residence in Athens back
         to the boat dock in Charleston, from what I see in the presentence report here. And
         I don’t think anything that happened there would serve as any kind of provocation.
         It’s clear at that point they were probably upset at each other, and they may have had
         reason to be upset with each other for what each other had said or done or whatever,
         but they had no reason to shoot one another, either one of them, for that matter. So
         I don’t find that subparagraph (2) has been shown as an adequate provocation.

We conclude that the trial court did not err by declining to apply this factor. First, for the factor to
apply, it must be shown that the defendant acted “under strong provocation.” Id. (emphasis added).
Nothing the victim did or said constituted strong provocation. Second, even if the Defendant had
been acting under provocation initially, said provocation was in no way sufficient to justify him
getting out of his vehicle and shooting the victim, who lay helpless and wounded on the ground,
twice more. The trial court did not err by declining to award mitigation on this basis.

        Second, he argues that the trial court placed too much weight on the enhancement factor that
he used a firearm during the commission of the offense. He complains that the trial court should not
have enhanced his sentence by three years. He suggests one year as a more appropriate alternative.
We are unpersuaded. The Defendant concedes that the trial court did properly find that enhancement
factor (10) was applicable, and we conclude that the trial court did not err or abuse its discretion by
enhancing the Defendant’s sentence by three years based upon the weight given to this factor. This
issue is without merit.


         1
           “[T]he trial court may look behind a plea agreement and consider the true nature of the offense committed.”
State v. Latoya Anderson, No. 02C01-9707-CR-00251, 1998 W L 599527, at *3 (Tenn. Crim. App., Jackson, Sept. 11,
1998) (citing State v. Hollingsworth, 647 S.W .2d 937, 939 (Tenn. 1983)); State v. Biggs, 769 S.W.2d 506, 507 (Tenn.
Crim. App. 1988).

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The judgment of the trial court is affirmed.



                                               ___________________________________
                                               DAVID H. WELLES, JUDGE




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