### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 10, 2001 Sessi

on STATE OF TENNESSEE v. MARLO JON ES Direct Appeal from the Criminal Court for Lauderdale County

No. 6909 Joseph H. Walker, Judge

No. W2000-01565-CCA-R3-CD - Filed May 29, 2001

The defendant was convicted by a jury of aggravated criminal trespass, attem pte d aggravate

d assault, and two counts of felon y reckless endangerment

. The trial court s

entenced the de

fendant to concurrent

sentences of eleven months and twenty- nine days fo

r aggravate

d criminal trespa

ss, two yearsfor attempted ag

gravated assa

ult, and one y

ear each for b

oth counts of felon

y reckless endangerment

. The defendant was granted probation after service of 120 days. In this appeal, the defendant challenges the trial court's denial of full probation. After

a thorough review of the record, we affirm the se

ntence imposed by

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS and R OBERT W. W EDEMEYER , JJ., joined. J. Thomas Caldwell, Rip

ley, Tenne

ssee, for the app

ellant, Marlo Jones. Paul G. Summers, Attorney General and Reporter; Ma

rk E. Davidson, Ass

istant Attorney

General; Elizabeth T. Rice, District A

ttorney Gen eral; and Tracey A. Brewer, A ssistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant was convicted of aggravated

criminal trespas s, attempted agg ravated assault

, and two counts of felony reckless endangerment and re ceived an effective

s entence of two y

ears, withprobation after service of 120 days. In t his appeal, the defendant challenges the trial court’s denial of full pro

bation. We affirm.-2- FACTS
Evon Reed, David Willis’ gi rlfriend, testif ied at trial that on

November 14, 1999 , Willis arrived at her home at app

roximately 11: 30 p.m. Reed, her e leven-month-old c

hild, and Willis retired to her bedroom at approximately 12:00 a.m. At approximately 3:00 a.m., Reed was awa kened by a “pounding” on

her door, and the

defendant, with w

hom Willis also

had a romantic relationship, stated, “[t]ell David to bring his ass outside.” Reed, without unlocking the door, returned to the bedroom to awaken Willis. Before she could reach Willis, Reed heard the defendant kick in her back

door. Reed then closed and locked her bedroom door. When the defendant reached the locked bedroom door, she yelled, “[y ]ou know what I got and I’ll blow this mother f---er up.” Willis then informed her that a baby was with them in the bedroom and pleaded that

she go outside. Th

e defendant the

n responded that s

h e “d idn’t give a damn,” b ecau se t hey “all was [sic] going to die tonight.” The defendant then fired her weapon through the bedroom door. Reed placed her infant baby under the bed, then she and Willis pushed the dresser in front of

the bedroom door to block the defendant’s entry. Reed then joined her baby under the bed. The defendant state

d that she did not wa

nt to harm Willis but o nly wanted Reed. The de fendant discharged her weapon again, and Willis yelled that he w as hit. The defendant then inquired, “I shot you, David?” The defendant then exited the home, went to the bedroom window, shotit o ut, and inq uir ed, “[w ]he re i s th at b itc h at ?” W ill is, alr eady bleeding, c limbed out of the broken window. The defendant then apologized to Willis and said she loved him. Willis left with the defendant, w

ho carried him to th

e hospital. Willis testified that he never heard forcible entry throug h the back door of the residence; the defendant never threatened anyone; the defendant w as unaware of the infant’s presence in the bedroom; he was never sho t; the window was broken by him when he attempted to leave; and the broken window caused his injury. The defendant testified that she had been living with Willis for five yea rs preceding th

is incident. She testi

fied she did

not forcibly enter the residence but entered through a door that was “cracked” open. She denied knowing the baby was in the bedroo m and stated her weapon accidentally

discharged on two occasions while she was beating on the bedroom door. She testified that she helped Willi

s out of the bedroo

m window and took him t o the hospital.

SENTENCING The defendant contends that the trial c ourt’s de nial of fu ll probati on was err

oneous. We disagree.-3-

A. Standard of Review This Court’s review of the sentence i mposed by the

trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an aff i rmative showing in the re cord that the tria

l judge consider

ed the sentencing

principles and al

l relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
A defendant is elig

ible for probation if the sentence received by the defendant is eight years or less, subject to some

statutory e

xclusions. Tenn. Code

Ann. § 40-35-303(

a). An especial

ly mitigatedor standard offe nder convicted o

f a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). However, although a defenda nt maybe presumed to be a favorable candidate for alternati ve sentencing, the defendant has the burden of establishing suitability for total proba tion. State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically considered, “the def endant is not automatically ent itled to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking full probation bears the burden on appeal of showing the sentence imposed is improper

, and that full probation will be in the best interest of the defendant and the public. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).
In determining whether to gran t or deny probation, a trial court should consider the circumstances of the offense, t he def endant's criminal record, the defendant’s social history a nd present condition, the need for deterrence, and the best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); Sta te v . Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). The defendant's lack of credibi lity is als o an a ppropriate consideration and reflects on a defendant's potential for rehabilitation. State v. Nunley , 22 S .W.3d 282, 28 9 (Tenn. Crim. App. 1999). B. Sentencing Hearin

g Evidence at the sentencing hearing revealed that the defendant was 29 y ears of age, wa s a high school gradua

te, h ad no prior criminal record, and was gainfully employ ed. The defendant admitted she had done wrong, but again de nied intentionally shooting into the bedroom. Two witnesses testified as to her good reputation. The trial court found this to be a “frightening crime” in which the defendant fire

d shots into the bedroom with three people inside, each of whom could have been killed. The trial court concluded

that the seriousness of the offense justified 120 days of jail time followed by supervised probation.-4-

C. Full Probation v. Split Confinement The trial court sentenced the defendant to split confinement, a form of alte rnative sen tencing, and noted that the seriousness of the offense dictated that some amount of jail time was appropriate. The record readily supports the trial judge's conclusion. See Tenn. Code Ann. § 40-35-103(1)(B). Considering the seriousness of this violent offe

nse, namely

that two adults as w

ell as one infant chil

d could have been killed

or seriously

injured, the defe

ndant’s sentence

of 120 days confinemen t is justified. It is further apparent that the trial court did not consider defendant’s testimony at trial and at the sentencing h earing truthful relating to whether she intentionally shot through the be droom door

. See Nunley , 22 S.W.3d at 289 (hold ing the defenda

nt's lack of cre

dibility is an a

ppropriate consideration and reflects on a defendant's potential for rehabilitation). The defendant has f

ailed to prove that full probation

will be in the best

interest of the defendant and the public. See Baker , 966 S.W.2d at 434. In view of the findings by the trial court and our review of the record, we conclude the trial court properly denied total probation.

CONCLUSION
Based upon our review of the record, the sentence imposed by the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE