IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 10, 2001 Session

STATE OF TENNESSEE v. MARLO JONES

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, attempted aggravated assault,

and two counts of felony reckless endangerment. The trial court sentenced the defendant to

concurrent sentences of eleven months and twenty-nine days for aggravated criminal trespass, two

years for attempted aggravated assault, and one year each for both counts of felony 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 sentence imposed by the trial court.

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

JOE G.RILEY,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT

W. WEDEMEYER, JJ., joined.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Marlo Jones.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;

Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant was convicted of aggravated criminal trespass, attempted aggravated assault,

and two counts of felony reckless endangerment and received an effective sentence of two years,

with probation after service of 120 days. In this appeal, the defendant challenges the trial court’s

denial of full probation. We affirm.
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FACTS

Evon Reed, David Willis’ girlfriend, testified at trial that on November 14, 1999, Willis

arrived at her home at approximately 11:30 p.m. Reed, her eleven-month-old child, and Willis

retired to her bedroom at approximately 12:00 a.m. At approximately 3:00 a.m., Reed was awakened

by a “pounding” on her door, and the defendant, with whom 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. The defendant then responded that she “didn’t give a

damn,” because they “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 stated that she did not want to harm Willis but only wanted Reed. The

defendant discharged her weapon again, and Willis yelled that he was hit. The defendant then

inquired, “I shot you, David?” The defendant then exited the home, went to the bedroom window,

shot it out, and inquired, “[w]here is that bitch at?” Willis, already bleeding, climbed out of the

broken window. The defendant then apologized to Willis and said she loved him. Willis left with

the defendant, who carried him to the hospital.

Willis testified that he never heard forcible entry through the back door of the residence; the

defendant never threatened anyone; the defendant was unaware of the infant’s presence in the

bedroom; he was never shot; 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 years preceding this

incident. She testified she did not forcibly enter the residence but entered through a door that was

“cracked” open. She denied knowing the baby was in the bedroom and stated her weapon

accidentally discharged on two occasions while she was beating on the bedroom door. She testified

that she helped Willis out of the bedroom window and took him to the hospital.

SENTENCING

The defendant contends that the trial court’s denial of full probation was erroneous. We

disagree.
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A. Standard of Review

This Court’s review of the sentence imposed 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

affirmative showing in the record that the trial judge considered the sentencing principles and all

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

A defendant is eligible for probation if the sentence received by the defendant is eight years

or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). An especially

mitigated or standard offender convicted of 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 defendant may be presumed to be a favorable candidate for

alternative sentencing, the defendant has the burden of establishing suitability for total probation.

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 defendantis not automaticallyentitled

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 grant or deny probation, a trial court should consider the

circumstances of the offense, the defendant's criminal record, the defendant’s social history and

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); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.

1995). The defendant's lack of credibility is also an appropriate consideration and reflects on a

defendant's potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.

1999).

B. Sentencing Hearing

Evidence at the sentencing hearing revealed that the defendant was 29 years of age, was a

high school graduate, had no prior criminal record, and was gainfully employed. The defendant

admitted she had done wrong, but again denied 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 fired 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.
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C. Full Probation v. Split Confinement 

The trial court sentenced the defendant to split confinement, a form of alternative sentencing,

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 offense, namely that two adults as well as one infant child

could have been killed or seriously injured, the defendant’s sentence of 120 days confinement is

justified. It is further apparent that the trial court did not consider defendant’s testimony at trial and

at the sentencing hearing truthful relating to whether she intentionally shot through the bedroom

door. See Nunley, 22 S.W.3d at 289 (holding the defendant's lack of credibility is an appropriate

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