### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE February 11, 2003 Session STATE OF TENNESS EE v. DONNIE T HOMPSON Direct Appeal from the Circuit Court for Maury County

No. 12065 Jim T. Hamilton, Judge

No. M2002-01499-CCA-R3-CD - F iled March 3, 2003

A Maury County

jury convicted the de

fendant, Donnie Thompson, of voluntary manslaug hter and attempted voluntary manslaug hter. The trial cou

rt senten ced him a s a Rang e I st

andard o ffende

r to the maximum sent

ences of six years f

or voluntary manslaug

hter and four y ears for attempted voluntary manslaug hter, wit h the sentences to runconsecutively. On a ppeal, the defendant contends his sentences ar e excessive . We reduc e the sen tence f or volunta

ry manslaug

hter to fi ve y ears, affirm the four-ye ar sentence for attempted voluntary manslaughter, and order the sentenc es to run co nc ur re nt ly.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court

Affirme d in Part ; Modified in P art; Re manded
J OE G. R ILEY , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and T HOM AS T. W OODA LL , JJ., joined. John S. Colley, II

I, Columbia, Tennessee, for the a ppellant, Donnie Thompson. Paul G. Summers , Attorne y General and Repor

ter; Eliza beth B. M arney , Ass istant Att orney Genera l; Mike Bottoms, D istrict At to rn ey General; and Robert C. Sanders and Lawrence R. Nickell, Jr., Assistant District Attorneys Gener al, for the appellee, State of Tennessee. OPINION
Alth ough sufficiency

of the evidence is not an issue o n appea

l, we will r

elate c ertain f

acts as presented

at trial in order to place the sentencing issue in prope r perspective. On October 4, 2000, the defendant shot

and killed Sherri Hodge, who was four feet and eleven inches tall and weighed eighty- eight

pounds. He then shot her boyf riend, T o mmy K

eith Chapman, in the

shoulder and in the head, and as a result, Chapman suffere d permanent brain damage. Approximat

ely one week prior to theshooting s, the defendant, the owner of a trailer pa rk, ordered Hodge, a tenant , to move out of a trailer, which she had been renting from him. On October 4 th , the defe

ndant, Tony Crowe, and Jason Cummins were at the trailer replacing the front door a nd-2-

its frame. While they were r epairing the door, Hodge a nd Chapman arrived in her vehic le. Ho dge entered the trailer, cursed

the defe ndant, and walked

to the bac

k of the tr ailer wh ile the de fendant , Crowe, and Cummins remained in the living room. Ho dge returned to th e livi ng room hold ing a curtain rod an d aske d the d efenda nt whe re her r emain ing p ossessions we re. When the defendant told her that he and Crowe had bagg ed the items and placed them on the front po rch of another trailer, Hodge cursed at the defenda nt and poked him with the curtain rod. The defendant continued to repair the front door, and Hodge r eturned to the back of the trailer. Chapman then left the vehicle and entered the trailer , where both C hapma n and H odge cursed the defe ndant. The defendant told th em to leav e, but the

y c ontin ued to curse him. The defendant then walked to his vehicle and returned with a pistol. Crowe testified the defendant stood to the left of th

e front door, plac ed the g un by his side, a

nd told Cha

pman and H odge to

leave ; however , they

continue d to curse

the defe ndant.
Crowe testifie d that whe n the def endant r eturned with the pi stol, Crowe a pproached the defendant and told him, “Don’ t mess up,”and the de fendant told Crowe

to move out of the way a

nd “watchit.” Crowe statedHodge and Chapman began a dvancing toward the

defenda nt from op

posite directio ns, and that Ch apman thr eatene d the def

endant. The defendant then shot Hodge, who had been holding a curtain rod. Crowe stated Hodge walked out of the door, down thesteps, and to the front of her vehicle where she c ollapsed.
Crowe testified the defendant then fired two shots at Chapman, who was reaching for a hammer after th e defendant shot H odge. Cr owe stated he neve

r saw an yth ing in Chapman’ s hands. Chapman fellon the floor, and the defendant exited the trailer. Crowe called 911, and the defendant placed the gun inside his vehicle and waited for the police to arrive. The defendant testified he evicted Hodge due to compla

ints he rece

ived fro m other te

nants. He stated that on October 4 th , he, Crowe, and Cummins cleaned the trailer and began to repair the door. During the afternoon, Hodge and Chapman dr ove up in her v ehicle. The defendant stated Hodge left her

vehicle and immed

iately began cursing him while h

e continu ed to work. Hodg e shoved the defe

ndant, entered

the tr ailer , and c onti nued t o curs e him. The def endan t stat ed Hod ge had a cu rtain rod and poke d him with it. The defendant testified Chapman then entered the trailer and threatened him. The defendant testified he went to hisvehicle “to prev ent a fig

ht” and r etrieve d his gun inte

nding to s care them into leavi ng. The def

endant st ated he r eenter ed the tr aile r and p laced the gun by his side. Crowe approached

the defendant and said, “Don’t mess up;” however , the defenda nt s tated he shoved Crowe out of the way because H o dge and Chapman were coming toward them. According to the defenda nt, as they appr

oached him, he held the gun up; Hod ge wen t for the gun; and he shot her. He stated she did

not possess a weapon and thought she threw the curta in rod on the ground when she was going for the g

un. After he shot Hodge, she ran out of the tra iler. The defendant testified that after he shot Hodge, Chapman moved toward him at a faster rate, and he shot

Chapman in

his shoulde

r. The de fendant stated Cha

pman cont

inued to c ome at him, so he shot him in

the head. The defendant further testified he thought he saw something in Chapman’s-3-

hand, but he wa s uncert

ain as to whether the object was a knife. An office r subsequently found an open pocket knife on the floor under Chapman. The jury rejected the defendant’s cl aim of se lf-defense and found him guilty of voluntary manslaughter

and attempted voluntary ma nslaughter. The trial court imposed consecutive sentences of six ye ars for

the volu ntary

ma nslaughter conviction and four y ears for the attempted voluntary manslaughter conviction. SENTENCING HEARING
The presentencereport admitted at the sentencing hearing revealed that thefifty -six-year-ol d defendant has been married to his present wife for approximately thirty -three years, a nd they have two grown children. For many year s the defenda nt has bee n self-e mployed as a la

ndlord wit

h nu me ro us re nt al pr op er ti es . O th er th an a m in or tr af fi c o ff en se , h e h as no pr io r c ri mi na l h is to ry. The testimony at the sentenc ing hearing revea led that the defendant has regularly attended churchal l o f h is li fe , p ub li cl y sought forgi veness a t his chur ch shortl y a fter the incident , and is remorse ful. The def endan t conc eded h is wro ngdoi ng in s ecurin g th e gun from his vehicle and reente ring the residence, ther

eby leading to these tr

agic c onseque

nces. The testimony also indicat ed that the deceased victim had two teenage children who were great ly impacted by her

death. The testimony further re vealed that the surviving victim almost died as a result of his injuries, was hospitalized six weeks, has severe brain damage , has no memory of past events, and requires constant supervision. The trial court made no specific findings as to enhancement and mitigating factors, sentenced the de fend ant to the

maximum sent

ence fo r each o ffense , and ran

the sente

nces con secutive

ly with out m entio n of a s tatut ory basis for con secut ive se ntenc ing. STANDARD

OF REVIEW
A defenda

nt w ho chal lenges his or her sentence has the bur den of proving the sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35 -401, Sentencing Commission Comments; State v. Ashby , 823 S.W.2d 166, 1 69 (Tenn . 1991). I t is this cour

t’s duty to conduc t a de novo review of the record with a presumption the trial cour t’s determinations are correct when a defendant appeals the length, rang e, or manner of service of his or her se ntence. Tenn. Code Ann. § 40-35-40 1(d) (19 97). The presumpt ion of cor rectne ss is conditioned upon the affirmativeshowing in the record that the trial court considered the sente ncing principle s and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999). In order to allow meaningful appellate review, the trial court must place on the record its reasons for a rriving at the final sentencing decision, identify the miti ga ting and enhancement factors found , stat e the s pecifi c facts suppo rting e a ch enhancement-4- fac t or found, and articulate how the mitigating and e nhancement fa cto rs have been evaluated and balanc ed in determining the sentence. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).
In this case, the trial cou

rt did not identif

y the mitiga

ting and enhanc ement fa

ctors found, did notstate a st

atuto ry basis for

conse cutiv e sent encin g, and d id no t addr ess al ternat ive se ntenc ing. Accord ingly , our rev

iew is de novo without a p resumptio n of corr

ectness

. ANALYSIS A. Judicial Diversion
Ini ti al ly, the defendant contends he should have been granted judicial diversion. See Tenn. Code Ann. § 40-35-313(a) (1997). However, we note there was no specific request for judicial diversion at

the sentencing hearing. See State v. David E. Smith, Jr. , No. 01C01-9805-CR-00224, 1999 Tenn. Crim. App. LEXI S 573, at *11-12 (Tenn. Crim. App. June 9, 1999, at Nashville) (holding the failure to reques t judic ial diversion does not properly br ing the issue before the trial court). Rega rdless, for re asons hereinafter stated, we do not believe the de fendant has earned the largess of judicial diversion. B. Length of Sentences
At sentencing, the state contended enhanc ement fa

ctor (3) , the off

ense involved more than one victim, applied. See Tenn. Cod e Ann. § 40 -35-114( 3) (1997) . On appe al, the state concede s this enhancemen t factor is inapplicable since there were separ ate convictions for each victim; we agree. See State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). Alth ough the state concedes enhancement fa ctor (6), the personal

injuries inflicted upon the victi m were pa

rticular ly g reat, is inapplica

ble to both

convicti ons, we di sagre e as it re lates to th e conviction for attempted voluntary manslaughter. See Tenn. Code Ann. § 40 -35-1 14(6) (1997). Injury is not an element of this offense. The evidenc e established tha

t the victim of the attempted voluntary manslaughter indeed had particularly great injuries. Accordingly , enhancement factor (6) applies to the conviction for attempted voluntary manslaughter. Enha ncement

factor (9), the defendant possessed or e mployed a fire arm dur ing th e comm ission of the offense, applies to both convictions. See Tenn. Code Ann. § 40-35-114 (9 ) (1997). The use of a firea rm is not an element of either offense. See State v. Butler , 900 S.W.2d 305, 312-13 (Tenn. Crim. App. 1994) (holding the use of a firearm is not an e lement of second degree murder). Enhancement

facto r (1 0), the defendant had no hesitation about committing a crime whe n the risk to human life was high, presents a closer question. See Tenn. Code Ann. § 40-35-114(10) (1997). Although this fac tor may not be app lied as it w ould rela te to eac h named vi ctim, it is-5-

applica ble where persons other

than the victim are endangered by the defendant’s actions. See State v. Imfe ld , 70 S.W.3d 698, 707 (Tenn. 2002). The record reflects that the defendant’s friend, Tony Crowe, was standing beside the d efenda nt when the shots we

re fire d. Never

theless, it is questiona ble whether

the rec ord is suf

ficientl y c lear fo r us to conclude tha

t Crowe’ s life was in danger. Regardless, we r each the sa me sentencing determination whether this factor is or is not applied.
As to mitiga

ting fa ctors, we decline to give s ignific ant weig

ht to mitigating factors (2), the defendant acted under strongprovocation; (3), substantial grounds exist tending to excuse or justify the defendant’s criminal conduct; and (11), the crime w as committed under such unusual circumstances that it is unlikely that a sustained intent to violate the l aw motivated the criminal conduct. See Tenn. Code Ann. § 40-35-113(2), (3), (11) (1997). These fa ctors are largely

embodied in the offe

nses of vo luntary

mansl aught er and attempted voluntary manslaughter, although we reco gniz e there is no prohibition against “double mitigation.” State v. Donald Paul Presley , No. E2000-00592-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 629, at *23 (Tenn. Crim. App. Aug. 14, 2001, at Knoxville), perm. to app. denied (Tenn . 2002 ). We d o give w eigh t to miti gating factor (13), any other fa ctor con sis tent with the purposes of sentencing, based upon the lac k of a prior criminal record, positive social history , positive work history, and remor se. See Tenn. Code Ann. § 40-35-113(13) (1997). The range of punishment for a Range I standa

rd offender

for voluntary mansla

ughter is three to six years and for attempted voluntar y manslaug

hter is two to four yea

rs. See id. § 40-35

- 112(a)(3), (4) (199 7). We gi ve gre at weig ht to enha ncement factor (9), the employ ment of a firear m, fo r both convi ctions. Further, we give gr eat weight to enhancement factor (6) for the attempted voluntary manslaughter conviction. We give lesser we ight to the appl icab le mit

iga ting fact ors. We reduce the volunt

ary manslaug

hte r se ntence to five y ears and affirm the four-y ear sentence for attempted voluntary manslaug hter. C. Consec

utive Sent

encing
A court may

order consecutive sentencing if the tr ial court finds that

the defendant qualifies under one of the criteria set forth in Tennessee Code A nno tated se cti on 40-35-115(b). The trial court made n o find ing r e lating to any of these criteria. The only

possible criterion that could be applica ble in this cas e is t

he “dangerous offender” criterion. See Tenn. Code Ann. § 40-35- 115(b)(4) (1997). Even if the defendant is classified as a dange rous off ender, t he court must also find that consecutive sentences (1) are r easonably r

elated to the sever

ity of the off

enses, and (2) serve to protect the public from further criminal conduct by the offender. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). The tria l court did

not make t

hese finding s; neither

are we able to conclude that the def

endant mee ts these prerequisites. Accordingly , the sentences must run co nc ur re nt ly. D. Probation
Fi na ll y, the defendant contends the trial court erre d in denying him proba tion. A defendant is eligible for probation if the sente nce rec eived by the defe ndant is e ight y ears or less, subj ect to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a ) (1997).-6-

An especia

lly m iti gat ed or sta

ndard of fender convicte d of a Clas s C, D or E f elony is presumedto be a fa

vorable candida te for a lternati ve sentencing in the absence of evidenc e to the co nt ra ry. Id. § 40-35-1 02(6) (1 997). How ever, a lt hough a de fendant may be presumed to be a favora ble candidate for alternative sentencing , the defendant has the burd en of es tablishing suitability for total pro bation. Id. § 40-35-3 03(b) (1 997); Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Even though probation must be automatically consider ed, “the defendant is not automatically entitled to probation as a ma tter of law.” Tenn. Code Ann. § 40-35-303(b), Sentencing Comm ission Comme nts; State v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). Probation may be denie d based solely upon the c ircumstances surrounding the offense. State v. Bingham , 910 S. W.2d 448, 456 (Tenn. Crim. App. 1995) . However, the circumstances of the offense as committ

ed must be

especia lly v iolent, horrifying , shocking, reprehensible, offensive or othe rwise of an e xcessive o r exagg erated

degre e; and the

nature o f the off

ense must outweig h all factors favoring probation. Hartley , 818 S.W.2d at 374-75.
We conclude the defendant has not met his burd en of establishing suitability for total probation. Furthermore, the state has overcome the presumption favoring alterna tive sentencing. Under the facts and

circumst ances r elating to these convictions, we conclude alternative sentencing would deprec iate the s eriousne ss of the o ffense s. See Tenn. Code Ann. § 40-35-103(1)(B) (1997). In this regard, we must note that it was the defendant’s c hoice t o leave the r esidenc e, secur e his firearm from his vehicle, reente

r the re sidence

to confr ont the victims, and shoot both victims after b eing warn ed by his friend, “Don’t mess up.” There were two victims that suffered from the defendant’s criminal

acts. The slain

female v ictim had no weapon ; was four feet, eleven inc

hes tall; and weighed only

eighty- eight pounds. The male victim wa s shot twic e, once in the shoulder and once in the head. Although the male victim survived, he sustained permanent brain damage and requires constant care. T he ju ry r ejected the defendant’s claim of self-de fense. See id . § 39-11- 611(a) (1997). We conclude the f acts surrounding the offenses are suff iciently violent, shocking and repreh

ensible to justify the denial of alterna tive sentencing. See State v. Fields , 40 S.W.3d 435, 441 (Tenn. 2001). CONCLUSION
Based upon our review o f th e record, we reduce the de fendant’s sentence to five y ears for voluntary manslaughter, affirm the four-y ear sentence for attempted volun t ary manslaug

hter, and or de r t ha t t he se nt en ce s r un co nc ur re nt ly.

____________________________________ JOE G. RILEY, JUDGE