# FILED
February 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C 0 1-9610-CC-0045 7 ) vs. ) Grundy County ) SAMUEL D. BRADEN, ) Hon. Thomas W . Graham, Judge ) Appellant. ) (Voluntary Manslaughter) )

FOR THE APPE LLANT: FOR THE APPELLEE: HOWELL G. CLEMENTS (trial & appeal) JOHN KNOX WALKUP JANE M. STAHL (appeal) Attorney General & Repor ter Attorneys at Law 801 Pine St. DARYL J. BRAND Chattanooga, TN 37401-1749 Assistant Attorney Gener al Criminal Justice Div

ision PAUL CROSS (trial) 450 James Robertson Parkwa y CATHERINE CLARK (trial) Nashville, TN 37243-0493 P.O. Box 99 Monteagle, TN 37356 J. MICHAEL TAYLOR District Attorney General THOMAS D. HEMBREE Asst. District Attorney Ge ne ral 2d Floor, Lawyers Bld g. Jasper, TN 37347

OPINION FILED: ____________________
AFFIRMED CURWOOD WITT JUDGE2 OPINION Samuel D. Braden appeals his conviction of the voluntary manslaughter

of his wife. Braden recei ved his conviction following a jury trial in the Grundy County Cir cuit Court and was sentenced to serv e six years in the Departmentof Correction. In this direct appeal, Braden raises threeissues for our consideration: 1. Whether the trial court erred i n exclud ing evi dence that the victim was having an affair, possess ed bi rth control pills and condoms

despite the defendant having had a vasectomy, and did not love the defendant. 2. Whether the ev iden ce sufficiently supports hi s conviction of voluntary manslaughter. 3. Whether the trial court imposed the proper s entence. Followinga thorough review of the record, the briefs and the oral argu ments of the parties, we affirm the judg ment of the trial court.

Samuel Braden, the def endant, and Angela Braden, the victim, married in 1981. Twin daughters were born of this union. Mrs. Braden also had a
son from an earlier marriage w ho lived in the Braden house hold. Apparently, th e Bradens had experienced mari tal discord for some time pri or to March 16, 1995.

On that date, the victim informed the defendant that she was leav ing the marital home; therefore, he should be ho me when the children arr ived home from school th at afte rnoon. T he defe ndant we n t fishing and consumed sever al beers du ring the da y, returning home in the afternoon hours as he was instructed to do by his wife. Upon his arr ival, the defendant found the vic tim still at home, packing the defendant's belongings. Discussion ensued, with the victim expressing her displeasure with the defendant's consumption of alcohol. Th e victim t ook some of the defendant's belongings she had packed and placed them in the defendant's truck, an d the d efendant brought them back into the hous e. Apparently, the defendant's belongings were c arried out to the truck by the victim and back into the house by the defendant several times. Ultimately, the defendant and the victim had1 The trial court made a limited ruling, indicating it would allow the defendant to introduce the evidence "if it is close in time and related to something that would amount to a threat or something of th at nature, but if it's just idle discussion about an emotional affair that may have been told to a friend days, weeks, and months pr ior" it would not be all owed.

3 a confrontation in and around the car port which endedin the victim receiving a fatal injury from a gunshot w ound to the neck.
Shortlyafter the shooting, the defenda nt was arrested and charged with f irst-degree murder. A t trial, the defendant claimed that the victim po inted a handgun at him, a nd the g un went off twi ce as he and the victim fell into a flower bed and struggled for control of the gun. Essentially, his positio n is based upo n self-defense and accident. The state's position at trial wa s that the shooting was not accidental. At the conclus ion of the state's proof, the trial court granted the defendant's motion for

judgment of acquittal on the charge of first-degree murder. At the conclusion of all the proof, the trial court submitted the issues of secon ddegree murder, vo luntary man slaughter and criminal ly negli gent homi cide to the jury. The jury returned a guilty verdicton the offense of voluntary manslaug hter and fixed a fine of $10,000.00.

I

In his first issue, the d efendant contends the trial court c ommitted error of pr ejudi cial dimensions by prohibiting him from introducing evidence that the victim
was having an affair, was no longer in love w

ith him and was taking birth control pills
even though the def end ant had undergone a vasectomy . According to the defendant, this evidence was essential to his defense because it establish ed the victim's motive for

initiatin g a confronta

tion with him, thereby proving his claim of self defense. The trial court foundthis had, at best, only s light probative v alue, which
was substantially outweighed by the danger of creating unfair prejudi ce in the minds of the ju ry. 1 See

Tenn. R. Evid. 403.

The evidence, as developed outside the jury's pres ence, is as follows.2 Diane Braden is the wife of Louis "Buster" Braden, the de fendant's

brother.

3 Burnett admitted he was not good with dates. He testi fied he had not seen the victim, as of the firs t part of March 1995, for "sever al weeks," and for "probably a month before her death." Read as a whole, his tes timony indicates he and the victim had not seen ea ch other for a period of approxi mately two to four weeks. 4 Dia ne Braden, the victim 's sister in law, 2 testified th at the victim admi tted i n Februa ryor March 1995 to having an adulterous affair with Diane Braden's first cousin, David Wayne Burnett. The victim also admitted she was taking birth control pills because of her sexual activity with Burnett and that she was cons idering divorcingthe defendant. The defen se also proffered a stipulation that the defendant had undergone a vasectomy and that the purp os e of a vasectomy is to pre vent pregnancy from occurring in the female sexual part n er. Likewise, the defendant testified that he found a box of condoms in his wife's effects after her deat h, as well
as a package of birth control pills bearingthe date February 18, 1995. Most of the birth control pills ha

d been taken.

The court received the

proffered testimony of Burnett, w ho claimed to have had a brief a ffair wit h the victi m in early 1 995; not ably, he testified he and the victim engaged in sexual intercourse on two occ

asions and that they used condoms. Burnettsaid, however, he had not seen the victim for some weeks p rior to her death. 3 He testified that he and the victim were no longer seeing each other at the time of her death because the victim told him she was trying to work things out w ith her husband. According to Bur nett, he and the vi ctim had no plans to see each other in the event the vi ctim was unable to salv age her marriage.

The defendant claims this evidence is admissible under one or more of the following theories: (1) as the victim's statement against interest, Tenn. R. Evid. 804(b)(3), (2) as

evidence of the victim's state of mind, Tenn. R. Evid. 803(3), and (3) as evidence , otherwis e hearsay in character, which must be admitted in order to preser ve the def endant' s due proc ess right t o presen t witnesse s in his own defense. See Chambers v. Mississ ippi , 410 U.S. 284, 93 S. Ct.1038 (1973).4 Furthermore, the defendant's proff er included evidence that the victim

told one of her confidants that she had been to church because she had done something of which she w as ashamed and which she w ould not do again. The defendant sought to offer this evidenc e as probative of the vic tim's alleged affair. However, if believed, this evidence undercuts the defendant's self-def ense theory. It would sho

w that the victim w

as remorseful for her affair, not that s he was eager to resume it and needed her husband out of the way in order to do so.

5 Although our determination tha t this evidence is ir

relevant pretermits our inquiry into the constitutionality of excluding the evidence under Chambers , we note as an aside that the defendant failed to raise a constitutional ch allenge to the exclusion of the evidence in his motion for new trial. As such, the issue has been waived. State v. Len Martucci , No. 213 (Tenn. Crim. App., Knoxville, Apr. 3, 1990), perm. app. denied (Tenn. 1990); Tenn. R. App. P. 3(e). 5 In analyzingthese evidentiary and constitutional questions, we begin with a determination of wheth er the pr offered evidence is releva nt. Irrelevant evidence is not admissible. Tenn. R. Evid. 402; see Rock v. Arkansas , 483 U.S. 44, 55, 107 S. Ct. 2704, 2711 (1987) (character izing the Chambers due process right
as “th e right to present rele vant testimony”). In the case at bar, the challeng ed evidence amounts to testimony that the v ictim had an affair shortly before her death. However, she broke off the relationship to try to work th ings out with her hus band. After ending the affair, she had no more contact with her former lover, and there
were no plans to resume the relations hip if the victim's marital reconciliation prov ed unsuccessful. The record is totally devoid of any evidence that the victim planned to turn her husband out of themarital home or initiate an armed confrontation with him in order to facilitate a return to her fo rmer lover. Likewise, the victim's possession of birth control paraphernali a and profession not to love the defendant do nothing to make i t more probable that she initi ated a violent confrontation w ith him which culminated in her death. 4 Contrary to the defendant's argument, these facts are not probative of the v ictim's state

of mind because the defendan t's theory
assumes a premi se (that the victim w as the first aggressor

in order to facilitate resumption of the affair) that the profferedevidence fails to support. Thus, we fail to see the relevance of these facts. 5 Because we find the evidence irrelevant, it is unnecessary for us to determine whether i t is ad missible under exception s to the hearsay rule.6 In sum, the trial court did n ot abuse its discretion in exclud ing this evidence.

II

In his second issue, the defendant claims the evidence insufficiently supports his conviction. When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is whether, after consideri ng the evidence in the

light most favorable to

the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable do ubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781,2791-92 (1979 ); St ate v. Duncan , 698 S.W.2d 63, 67 (Te nn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon di rect evidence, circu mstantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determini ng t he sufficiency of the evidence, this court should not reweigh or reevalu ate the e vi dence. Sta te v. Matth ews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses , the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidenc e. Liaka s v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

More over, a criminal offense may be established exclusively b y circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Te nn. Crim. App. 1995); State v. Lequire , 634 S.W.2d7

608 (Tenn. Crim. App. 1987). However, before an accused may be c

onvict ed of a criminal offense based upon circumstantial eviden ce alone, the facts and circumstances

"must be so strong andcogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones , 901 S.W.2d at 396. In other words, "[a ] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw

no other reasonable inference save the guilt of the defendant beyond a reasonable doubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

The cr ime of voluntary manslaughter "is the intentional or knowin g killing of another in a state of passionproduced by adequate prov ocation sufficient to lead a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39- 13-211 (1997). In attacking the sufficiency of the evidence as to this crime, the defendant essentially argues he acted in self-defense. Specifically, the defendant claims the proof ofhis intent to kill his wife is "doubtful." First , we note that the jury passed on and rejected the defendant' s sel f-defense claim. In the light most favorable to the state, this record mor e th an suffici ently supports this con clusion. See State v. Fugate , 776 S.W.2d 5 41, 545 (T enn. Crim. App. 1988) ("Whe ther a homicide is excusable because done i n defen se of person presents a classic question for jury determination.") (citations omitted). Se cond, the circumstantial evidence strongly supports a finding the defendant intentionally or knowingly k

illed his wife. The victim and the d efendant w ere engag ed in a disagreement which escalated from words to physical force to deadly force. The trigger on the gun with which the victim was shot required the shooter to ex ert approximately fou r times
mo re force than the trigger on the average handgun in orde r to cause the gu n t o discharge. Two shots, fired in rapi d succession, struck the victim. By the defendant's own admission, he did not check his wife for sig ns of life as she lay wounded. When one of the defendant's daughters picked up the telephone to call foremergency assistance , he preve nted her from making the call. Rather than8

summoning help himself, the defendant waited until he had traveled

to his parents' house, and his mother called for an ambula nce for the victim. From the fact s, a rational jury could, and did , find the defendant guilty of vol untary manslaughter beyond a reasonable doubt. Cf

. State v. Kendricks , 947 S.W.2d 875, 880 (Tenn. 1996) (sufficiency of evidence of defen dant's intent to commit first degree murder supported, in part, by evidence defendant failed to render assistanc e to vic tim); State v. Marqueti a Brown , No. 01C01-9509-CR-00316 (Tenn. Cri m. App., Nashville, Dec. 13, 1996) (jury within its province in rejecting defendant's claim of self-defense
a nd returning conviction of second degree murder), perm. app. dismissed(Tenn. 1997); State v. William Roberts , No. 01C01-9110-CC-00 296, slip op . at 5 (Te nn . Crim. App., Nashville, July 15, 1993) (even if jury accr edited defendant's claim the victi m wa s the first aggressor during struggle for weapon, evidence w as neverth el ess sufficient to find defendant guilty of voluntary manslaught er), perm. app. denied (Tenn. 1993).

We find the defendant's complaint lacking in merit.

III In his final issue, the defendant prote sts the trial court's imposition of a six-year in carcerat ive sentence. He claims the cour t erred in sentencing hi m to the maximum term available and in failing to consider an alternative sentence.

In determin ing whether the tria l court has properly sentenced an individual, this court engages in a de novo review of the record with a presumption that the trial court's determinations were cor rect. Tenn. Code Ann. § 40-35-401( d) (1997). This presumption is "conditi oned upon the affirmative showing in the record that the trial cour

t co nsidered the sentencing pr inciples and all relev

ant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we must consider theevidence at sentencing,the presentence report, the sentencing principles , the arguments of counsel, the statements of the9

defend ant, the nature and characteristics o f the offe nse, any mitigatin g an d enhancement fa ctors, and the defendant’s amenability to rehabilitation. Tenn. C od e Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby , 823 S.W.2d at 168. On appe al, the appellant has theburden of showing the sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Se ntenc ing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

The defendant argues in his brief tha t our review should be de novo . We find that an enhancement factor has beenmisapplied, and that pertinent facts
were not found relative to the alte rnative sentencing, and for these reasons, our review is not accompanied by the presumption of correctness.

A The record of

the sentencing hearing a nd the court's order reflect that the court found the presence of both enhancem ent and mitigating factors. The enhancement factors were:

(1) T he defendant has a previous histor y of crimina l convictions

or criminal behavior

in addi tion to those necessary to establish the appropriate range; (9) The defendant possessed or employed a f irearm, expl osive device or other deadly weapon during the commission of the offense; (10) The defendant had no hesitation about committing a crime when the risk to hu man life was high; Tenn. Code Ann. § 40-35-114(1), (9), (10) (1997). The court likewise found three mitigating fact ors based on the evidence presen ted at the sent encing hearing:

(3) Substantial grounds exist tend ing t o excuse or justify the defendant' s cr iminal conduct , though failing to establish a defense; (8) The defenda nt was suffering from a mental or physical condition that significantly reduc ed the defendant's culpability for the offense; however, the voluntary use of intoxicants does not f all within the purview of this factor; (11) Th e defendant, although guilty of the cri me , comm itt ed the offense under such unusual10 circumstances

that it is unlikely

that a sustained intentto violat e the law motivated the cri minal conduct. Tenn. Code Ann. § 40-35-113(3), ( 8), (11) (1997). The court accorded great

weight to each of the three enhancement factors. It further evaluated mitigating factor (11) as the only one of the applicabl e factors with "any tr ue significance."

The defendant concedes the applicability of enhancement factors (1) and ( 9) but cha llenges the court's appl ication of factor (10). He al so claims the court erred in failing to apply tw o additional mitigating

factors, that heacted under strong provocation, andthat he harbors genuine remor se for his crime. See Tenn. Code Ann. § 40-35-113(2), (13) (1997).

The trial court found enhancement factor (10) applicable based upon the jury's finding the shooting was not an accident and the fact that multiple shots
were fired. The state urges us to affirm the trial court's appli cation of the factor because the defendant's daughters wer e inside the house when the defendant shot the victim outside in the carport area. We disagree with the trial cour t and the state
as a matter of law. It is well settled in Tennessee that this enhancement factor is genera lly ina pplicable in sentencing in voluntary manslaughter cases where the only “risk” imposed was to the vic tim of the hom icide. See, e.g. , State v. Mitzi Ann Martin , No. 02C01-9408-CC-00170, s lip op. at 21 (Tenn. Crim. Ap p., Jackson, Au g. 30, 1995), perm. app. denie d (Tenn . 1996); State v. David Keith Daugherty , No. 03C01-9203-CR-00082, slip op. at 9 (Tenn. Crim. App., Knoxville, Aug. 27, 1993);
see also State v. Randy Cotham , 01C01-9509-CC-00287, sli p op. at 8-9 (Tenn. Crim. App., Nas h ville, Dec. 5, 1996) (attempted voluntary mansl aughter), perm. app. denied (Tenn. 1997); State v. Makoka , 885 S.W.2d 366, 370 (Tenn. Crim. App. 1994) (attempted first degree murder and attempted sec ond deg ree murder). However, the factor may be applied where the defendant's actions create risk to one
or more individuals other than the victim. State v. R uan e , 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); Makoka , 885 S.W.2d at 3 73. We believe the trial court6 The state does not urge the correctness of this determin ation on appeal. 11 erred in applying this factor in this case. Though the defendant's daughters were inside the house, there is no evidence of r ecord that th ey were l ikely to c ome outside during the criminal epi sode which resulted in the victim's death. When the children arrived home, the def endant told th em to go inside and do their homework. Theycomplied wit h his dir ective and did not come outsi de until they heard the gunfi re. S ee David Keith Daughert y , slip op. at 9 (enhancement factor (10) inappropriatewhere there is no ev idence individua ls othe r than the victim were "expected or even likely t o appear"). Moreover, we find no a uthority to support the t rial cour t's determination that this fact or is appropriate simply because the defendant fired multiple gunshots. 6 But cf

. State v. Charles Reagan , No. 2 (Tenn. Crim. App., Jackson, Feb. 1, 1989) ( under prior sentencing act, enhancement

factor accounting for defendan t's lac k of hesitation in committing a crime where the risk to human life was high appropr iat e when defendant fired five shots into victim's body at very close range), perm. app. denied (Tenn. 1989). As such, we beli eve the trial court erred as a matter of law in applying this enhancement factor.

With respect to the mitigating factors the defendant claims were overlooked, the trial court decline d to apply factor (2), that the defendant acted under strong provocation, because the jury had already accounted for provocation in its ve rdict o

f volunt ary man slaughter as o pposed t o a conv iction fo rthe greater crimeof second-degree murder. However, contrary to the trial court’s c onclusion, there is no per

se prohibition against "doubl e mitigation," that is, appl ying mitigating factor (2) after the jury extended leniency to a defendant by finding him guilty of the lesser o ffense of voluntary manslaughter

. See, e.g. , State v. Lisa D. Caslin , No

. 03C01-9605-CR-0 0202, sli p op. at 6 (Tenn. Crim. App., Knoxville, May 1, 1997), pet. for perm. app. filed (Tenn. July 2, 1997); State v. Michael D. F razier , No. 03C01-9602-CR-00084, slip op. at 7-8 (Tenn. Crim. App., Knoxville, June 4, 1997); State v. Randy Cotham , No. 01C01-9509-CC-00287, s lip op. at 9- 10 (Tenn. Cri m. App., Nashville, Dec. 5, 1996), perm. app. denied (Tenn. 1997). Of course, "[a]cting12

under strong provocation may no t be an appropriate mitigating factor in circumstances in whi ch the jury had already accounted for that factor in its verdict and in which additional c onsideration at sentencing is not merited." David Keith Daugherty , slip op. at 10; see State v. David Paul Martin , N o. 03C01-9412-CR00448, slip op. at 30-31 (Tenn. Cr im. App., Knoxville, Oct. 13 , 1995), aff'd on other grounds , 950 S.W.2d 20 (Tenn. 1997); see also Ra ndy Cotham , slip op. at 9-10. In that regard, it is note worthy that the vol untary manslaughter sta tute req uires a finding of "adequate provocation," whereas the mitigati ng factor requires a findi ng of "strong pr

ov ocation." Compare Tenn. Code Ann. § 39-13-211(a) (1997) with Tenn. Code Ann. § 40-35-113(2) (1997). In the presentcase, provocation is n ot an appropriate mitigating factor , albeit for a different reason. Ev en though the trial court should have considered it as an avail able m itigating factor, the defendant maintained the victim’s death was the result of his justifie d self-def ense and/or accident. His theory does not embr ace provocation as an operative factor. There is no error in failing to

apply miti gating factor (2). See State v. McKinzie M onroe Black , No. 01C01-9401-CC-00006 (Tenn. Crim. App., Nashville, July 14, 1995).

The defendant also urges us to find fa ult with the trial court's failure to find as an additional mitigating factorthat the defendant harbored genuine
remorse for his crime. See Tenn. C ode Ann. § 40-35-113(13) (1997). The t rial court found that the record did not s u pport "any significant s howing of remorse." The defendant chose no t to testify

at the sentencing hearing ; thus, he declined the opportunity

to express his remorse to thetrial court. At tri al, the defendant claimed "the only mistake" he

would admit making on the day he shot and killed his wife was not letting his daughter call 911 i mmediately after the shooting. While there is also evidence that the defendant apologized to his daughte r s for killing their mother, cried over his wife's death, and visited her grave, th is evidenc

e does not ov

ercome the trial court's determination as a trier of fact. See State v. Joseph Lebron Derrick , No. 03C02-9601-CR-00036, slip op. at 11 (Tenn. Crim. App., Knoxv ille, Apr. 1, 1997) (remorse properly not a pplied as mitigating fact or where defendant did not13

testify at sentencing hearing an d did not comment on his alleged remorse dur ing his trial testimony), perm. app. denied (Tenn. 1997); State v. Michael Robinson , No. 03- C-01-9510-CC-00303, slip op. at 24 (Tenn. Crim. App., Knoxville, June 24, 1997) (trial court is in the bes t positio n to obse rve the defendant' s mood and manne risms in evaluating whether his alleged remorse should qualify as a miti gating factor), pet. forperm. app. filed (T enn. Aug. 8, 1997, Aug. 15, 1997, Aug . 20, 1997, Aug. 21, 1997, Aug. 22 , 1 997) (numerous defendants). Thus, we find th e trial court appropriately denied the application of these propose d mitigating factors.

In summary, the trial cour t incor rectly applied enhancement factor (10). Althoug h the trial court heavi ly and equally w eighed all three enhancement factors in reaching its

sentencing determination, w e must determine theappropriate sentence where one of three heavily weighted enhancement factors is removed and there are mitigating factors accorded comparatively less weight. It be

ars noting that this court, in conduc ting de novo appellat e review, does not weigh the applicable factors mathematicall y accor ding to th e numbe r of mitig ating fa ctors. A ca se-bycase approach underlies the sentencing law and

“‘[a]ny case-by-case approach will embody discretion, since all of the appropriate factors and cir cumstances must be weighed and considered as a whole for the disposition of each case.’” Ashby , 823 S. W.2d at 168 (quoting State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986) ) (emphasis added).

In general, both of the two applicable enhancement factors, (1) (prior criminal record or behavior) and (9) (use of a firearm during the commission of the offense), have been previously accorded significant

weight by this court. See State
v. Milton S. Jones, Jr. , No. 02C01-9503-CR-00061, slip op. at 8 (Tenn. Crim. App., Jackson, Mar. 7, 1997) (prior misdemeanor

conviction and misdemeanor behavior sufficientalone to support a one-year sentence enhancement) , pet. perm. app. filed (Tenn. May 6, 1997); Da vid Paul Martin , slip op. at 31-32 (factor (1) as single enhancement factor supports a two-y ear enhancement); see also State v. Maurice7 The record of one of the weapons charges consists of the presentence

report narrating the defendant’ s admission that he receiv ed Tracy City convictions for weapon and marijuana possession in “the late 1970's.” No record of such convictions from the muni cipal court in Tracy City were found. The defendant was convicted of possession of a pistol by the Grund y County Circuit Court in 1994. Most of the defendant’s remaining convicti ons were alcohol related.

8 Inexplicably, the state has chosen not to adequately respond to this argument in its brief. We take this opportunity to remind litigants standing in the shoes of the appellee of their obligation to provide argument , citation to authorities and appropriate r eferences to the record in thei r briefs to the appellate courts. See Tenn. R. App. P. 27(b). 14 Garner , No. 02C01-9508-CR-00223,slip op. at 12-13 (Tenn. Crim. App., Jackson, May 19, 1997) (assig ning great weight to factor (9) along with factors (1) and (10) supporting a five-year enhancement for second-degre e murder ), pet. perm. app. filed (Tenn. Aug. 20, 1997).

In the present case, factors (1) and (9) should be weig hed heav ily , considering that the defendant’s criminal record of seven misdemeanors i ncludes two weaponscha rges. 7 These factors are sufficient, not onl y to elevate the sentence to the maximum ceiling, but also to firmly embed the sentence in the ceiling. Given this conclusion and the trial court's p r oper finding that the only mitigating factor entitled to significant weight was factor (11), that the defendant lacked a sustained intent to vio late the law, we conc lude that the maximum sentence of six years is supported by the record and is the appropriate sentence in this case.

B

The remai ning i ssue is whether the tr ial court properly denied alternat ive sentencing. 8 Again, we review thisissue de novo without the presumed correctness of the trial c ourt’s sentencing determi nation.

As a Range I, Class C felon,the defendant is presumed to be a favorable candidate for alternative se ntencing. See Tenn. Code Ann. § 40-35- 102(6) (1997). Moreover, he is eligible for probation. See Tenn. Code Ann. § 40-15

35-303(a) (1997). In determining that the def endant s hould se rve his sentence in the Department of Correction, the trial court relied on

Code section 40-35-103(1)(B). That section provides that "[ c]onfinement is necessar y to a void depreciating the seriousness of the of fense or confinement is particular ly suited to provi de an effect ive deterrence to others lik ely tocommit similar offenses[.]" Tenn. Code Ann. § 40-35-103(1)(B) (1997).

Despite its reliance on this consider ation as the basis for imposing incarceration, the defendant argues, the trial court failed to make a finding that the nature and circumstances of the offense were "espec ially violent, horrif ying, shocking, reprehensibl e, offe nsive, or otherwi se of an excessive or ex aggerated degree,”outweighing

all other factors favoring an alternative sentence. See State
v. Bingham , 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995); State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991) ; State v. Travis , 622 S.W.2d 529, 534 (Tenn. 1981). The defendant is correct tha t the trial court failed to make a Bingham/Hartley/Travis finding. However, the trial court's explanation of its basis for applying deterrence as a sentencing consideration is instructive. The parties were not the same in size and strength. Two shots were fir e d. A mother is dead. Two chi ldren have no mother and hav e a father who is guilty

of the death of the mother. Anothe r child . . . lost his mother. . . . The seriou sness of the offense and in this case it would seem that under

the facts that this is certa inly a serious offense and must be dealt with seriou sly. Obviously, by placing emphasis on the status of the victim as the mother of y oung children rather than upon the manner of the killing, the tr ial court implicitly

found the nature and circums

t ances of the defendant's crime offensive and excessive. Furthermore, the trial judge spoke about the leniency ex tended by the jury. He said, I think the jury was

compassionate in this case f or the defendant by actuallygetting t o the point of finding this to be voluntary manslaughter. I think it was possible on the proof that that happened a nd they did that, and so w e’re in a situation w

here the maximum sentence . . . is not parti cularly lengthy

. . . .. “This factor [of jury leniency ] i s p roperly considered by the court in finding that confinement is necessary under section 103(1)(B).” State v. Steven A. Bush , No. 01C01-9605-CC-00220, slip op. at 9 (Tenn. Crim. App., Nashville, June 26,1997)16

(citing State v. Fredrick Dona Bl ack , N o. 03C01-9404-CR-00139, slip op. at 3-4 (Tenn. Crim. App., Knoxvil le, April 6, 1995) and State v. Nealy Walter Perry , No. 89- 133-111, slip op. at 4-5 (Te nn. Cr im. App., Nashville, Au g. 29, 1990) (Dwy er, J., concurring and dissenting)), pet. for perm. app. filed(Tenn. Aug. 20, 1997); see also Michael D. Frazier , slip op. at 1 2. Thus, the trial court did not err in denying alternative sentencing based upon section 40-35-103(1)(B).

Having so found, we find it unnecessary t o address the defendant's argumentthat the record did not c ontain any proof that confinement of the defendant would have a deterrent effect on crime in the community. See Tenn. Code Ann. § 40-35-103(1)(B) (1997).

In conclusion, we affirm the defendant's conviction and sentence.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE