### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 1, 2003 Session
STATE OF TENNESSEE v. ANTONIO HUNTSMAN
Appeal from the Criminal Court for Shelby County No. 00-14659 James C. Beasley, Jr., Judge

No. W2002-00708-CCA-R3-CD - Filed July 25, 2003

The defenda

nt, Antonio

Huntsman, was convicted of reckless homicide and the trial court ordered
a sentence of three y

ears and six months. In this appeal of right, the de fendant asserts (1) that

the trial court erroneously

limited cross-examination of an eyewitness; (2) that the trial court allowed the admission of i rrelevant evidence; (3) that the sentenc e was excessive; and (4) that he was erroneously de

nied some form of alternative sentencing. The judgment is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined.

Leslie I . Ballin, Memphis, Tennessee, for the appellant, Antonio Huntsman.

Paul G. S ummers, Attorn ey Gene ral & Reporter; Braden H. B oucek, Assistant Attorney G eneral; and Lee Coffee a

nd Jerry Harris, Assist ant Di strict Attorneys Gene ral, for the appellee, State of Tennessee.
OPINION In the early

morning hours of November 14, 2000, the victim, Clayton Hicks, Jr., was shot and killed in Memphis. On the night before, the defe ndant and the victim , who was a

police officer,
were guests at the residence of Dar rell Baldwin. Baldwin and hi s b ro th er , T ra ce y, invited the victim, who was off- duty , and his brot her to watch Monday Night Football. Later

in the evening, the defendant arrived at the Ba ldwin res idence a

ccompan ied by Steven F reeman , Nathan

iel Sturdiv ant, and Morris Vaughn. Two women, Shannon Howard and Ta kelia Glover, were also p resent. Ms. Howard got into a n argument with th e victim a

fter she recog nized him ashaving previous ly investigated

a domestic disturbance in which she was involved. At that poi nt, the defendant and his three friends, who had been in another room playing

video games, came in and beg an “argu ing at” the victim. When the victim announced that he was “fixing to go” and ma de his way to the door, the defendant and the three other men attacked him from behind. Accord ing to B aldwin, th

e victim didnotfight ba

ck, but wa s able to r

eturn to his vehicle and remove the police radio from the trunk.-2-

Becau se the victim had left his hat inside the residence, Baldwin returned to the r esidence to retrieve it, closing and locking the door as he stepped ba ck ou tside . He then

looked up

to see the

victim moving toward the porch holding a pistol by his side in his right hand. At that point, Baldwin heard two or three shots and then saw the defendant, partially in the doorway a

nd partially on the

porch, with “large heavy

artillery.” A

fterward, the victim lay

in the yard.

Baldwin acknowledged that the victim had arrived at his residence with an open Heineke n beer and t wo six- packs of the beverage. B ecause every one present shared in the beer, it was consumed quickly

and Baldwin and the victim went out to purchase another twe lve-pack. Baldwin confirmed

that the victim was agitat ed prior to the shoo ting and

had used curse w ords in

addressing Ms. Howar

d and the d

efenda nt. Tracey Baldwin recalled that the victim had promised to take them all to jail as he stood at his car. Becau se he had

an elder ly u ncle and did no t want him to

be distur bed, he a sked the v

ictim notto call for backup. He described the vi ct im , w ho wa s a ng ry, as charging towards the f ront door with his gun pointed downward when the shots were fired.

At the time of the shooting , Shannon H oward ha d been da ting the defenda nt for fiv e or six months. At trial, she testified that on the evening befor e the sho oting, sh

e was at t he Bald win residence drinking and play ing cards when she recog

nized the victim as the police officer who had invest igated a dom estic dist

urbance betwee n her and her aunt . She rec alled tha t when the

victim confirmed

that he remembered her, they had a heated discussion about

whether he could be trusted, the victim used the “f”word, and Sturdivant “rushed him.” Ms. Howard contended

that Freeman, Vaughn, and the defendant joined in the attack on the victim. Shetestified that no one was injured in the enc oun ter and that the victim and his brother fled to the outside of the residence with the Baldwins. Ms. Howard stated that the defe ndant the n went to a

hallway closet a nd armed himself with a gun. She related that when the defendant opened the door to look out, he fired two or three shots at the victim, who was running towards them with a gun in his hand. Ms. Howar d recalled that the defenda

nt had y elled, “ [D]on’t come

up o n me,” to the victim. Afterwards, the defendant left with Sturdivant, Freeman, and Vaughn.

Takelia Glover, who was dating Tracey Baldwin, testified

that she had seen the gun used by the defendant some three day s previ ously, when he brought it to the Baldwin residence. She was asleep in a back bedroom at the time

of the sho oting and was awa kened by the sound o f gunsh ots.
Steven Freeman confirmed that Ms. Howard a nd the victi m had argued over the victim’s work as a police officer and reca lled that Ms. Ho ward ha

d called the victim

a “croo ked-assofficer” and a “liar.” He remembered the victim’s using the “f” word and say ing, “[Y]ou don’t know me.” He testified that when the defendant attempted to intervene on beha lf of Ms. H oward, he and t he victim pushed eachother. Freeman recalled that whe n Vaughn and Sturdivant joined the scuffle, the victim left, saying, “All right. I ’ll be ba ck.” He testifie d that the

defenda nt remove d an AK-4 7 rifle from a closet and opened the front door before the victim rushed onto the porchwith his gun by h is side. He stated that when the victim was shot, he, Vaughn, Sturdivan t, and the defenda nt drove t o-3-

his grandmother’s residence nine or ten blocks away. While there , Vaughn removed the gun fr om the car and l eft it on the fence because the def endant refused “to mess with it.” Freeman testified that the defendant instructed him to “lay low” and stated that he was going to Mexico. Accor ding to Freeman, he placed the g un in his gra ndmother’s garage a nd surrendered himself to the police hours later.

Freeman acknowledged that he had initially lied to police, telling them that he had dropped the defenda

nt off af ter the shooting ra ther than taking him to his grandmother’s residenc e. He explained that he did so because he did not want his grandmother to be involved. Freeman described the vi ctim as agit ated j ust b efore t he sho otin g. Betty Jean Vaughn, Freem an’s mother, testified that Freeman, Vaug hn, and Sturdivant awakened her at approximately 4:30 a.m. on the morning of the shooting. She r ecalled tha t the defendant “walked the living room floo r” for approximately fiftee n minutes using his cellular telephone and that

she directed Freeman to remove the gun from the property . Later, after speaking with Sergeant Fitzpatrick of the Memphis Police Department, Ms. Vaug hn arranged for the re

turn of the gun and surrendered it to police.

Officer Trent Swims of

the Memphis Police Department, who was dispatched to the scene, found the unconscious victim lying in fr ont of the house next door to the Baldwin residence. He was “facedown” with a gun in his rig ht hand. Danny Arquitt, a member of the Memphis Police Department crime scene unit, testified that there was a small amount of blood in the ya rd of the house next door to the

Baldwin residence. None
was found on the Baldwin porch or lawn area. A spent casing, a spent bullet, and a police radio we re also found. Memphis Po li ce S erg ean t J ame s L. Fitzpatrick, the lead investigator, began se arching for the defendant on the day following

the shoo ting. H e first c ontacte d the def endant’ s mother, a deputy jailor, and then canvassed the defendant’s neig hborhood. After obtaining an unlawful flight warrant throu gh the Safe Streets Tas k Force, an agency comprised of local, state, and federal law enforcement

officers, he helped prepare a segment

on the missing defendant

for a national television show. The def endan t surr endere d on Ma y 31, 2001 , more than s ix m onth s afte r the s hoot ing.

The weapon u sed by

the defe ndant wa s a

Maadi se miautomat

ic rifle witha caliber of 7.62 by 39-millimeter and a folding stock for easy porta

bility. Dr. Cynthia Gardne r, who performed the
au to ps y, testified tha t while there was no evidence of marijuana in the vic tim’s system, he had a blood alcohol level of .08 grams per deciliter a nd a urine a lcohol le vel of .15 grams per deciliter. According to Dr. Ga

rdner, a high velocity

gunshot wound to th

e chest caused the victim’s death. She testified that the bullet entered the victim’s arm between the armpit and the elbow, exited three and one-half inches away, a

nd then entered the chest, fracturing the fourth rib, damaging the left lung, and transecting the aorta. It was Dr. Gardne r’s opinion that the victim had been at least two feet or more away

from the shooter.-4-

The defenda

nt, who was twenty- five yea rs old at the time of trial, testified that he had known Tracey and Darrell Baldwin for y ears, having met Tracey

in junior high school. A daily visitor to the Baldwin residence, he stated that he ar rived at the residence sometime between 11:00 p.m. and midnight o n the eve ning of the shooting accompanied by Freeman, Vaughn, and Sturdivant. He recalled that previously, he and the others had been drinking beer and watching football on

television at his residence. According to the def endant, he did not know the victim or his brother, who were playing vide o games when he arrived. He stated that when the two menfinished, he played vide o games for some time before hearing a n argument elsewhere in the re sidence. He maintained that the victim was “pointing at every

body” and c

ursing. He testified that after the victim cursed a t him, they struggled and foug ht befor e the vic tim stopped , say

ing, “[T]h at’s all r

ight. I’ll be

back. I’m fixing to get this pistol.” He testified that he observed the defendant go to his vehic le and then run towards the residence before Darr ell Baldwin shut and locked the door. The defendant maintained that the victim repeatedly

struck the front door and demand ed entry, using curse words as he did so. He stated that at tha

t point, he took posse ssion of the gun th at he had previous ly le

ft ina hallwa

y c loset. The defendant claimed that he shot the

victim af ter he he ard some one yell and looked up to see the victim running toward the door, pointing a gun in his direction.

The defendant contended that after the shooting, he was “like in [a] trance” until he heard
someone yell out, “Come on, let’s go,” at which point he left in Freema n’s vehicle. Later, he called
a friend named Quisha Mims, who drove him by his residence to get

some money. The de

fendant stated that he stayed a

t her residence for approximately two days and maintained tha the did not

turn himself in after the shooting because he had panicked upon seeing a television report that indicate d that the victim was a Memphis Police office r. He co ntended t

hat he wa s afraid

of retribution from other law enfo rcemen t office rs and tha t he “knew that the

re would be a cov er-up.”

The def endant, who was aware that police were looking for him, testified that he went to L ouisiana, Mississippi, and Georgia.

I Initially , the defendant

argues that the trial

court erred by

restricting his cross-examination of Tracey Baldwi n. The state c ontends that the contested testimony was imper missible and irrelevant and that i f there

was any error, it was har

mless.

Denial of the right to e ffe ctively cross-e xamine is “‘ constituti onal err or of the first magnitude’” and amounts to the denial of a ba sic right essential to a fair trial. State v. H ill , 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980) (quoting Davis v. Alaska , 415 U.S. 30 8 (1974)) . While the right is fundamental, propriety , scope, and control of cross-examination is left to t h e sound discretion of the trial judge. Davis v. State , 186 Tenn. 545, 212 S.W.2d 374, 375 (1948). Appellat e courts cannot interfere with the exercise of that discretion absent a clear and plain abuse. See State
v. Fowler , 213 Tenn. 239, 373 S.W. 2d 460, 464 (1963); Coffee v . State , 188 Tenn. 1, 4, 216 S.W.2d 702, 703 (1948). During Baldwin’s cross-examination by the defense, the following exchange took place:-5- Q At the time that he was ru

nning tow ard [the d

efenda nt], did you think that [ the v ictim] was g oing to sho ot [the

defe ndan t]? [STAT E]: Object, Your Honor. Calls for a conclusion. THE COURT: Sustained. [DEF ENSE] : I’m asking what [this witness] thought, Your Honor.

. . . * * * THE COURT: I’ll allow him to

testify to what . . . he thoug

ht.

Baldwin then testi fied tha

t alt hough he did not know whether the victim intended to shoot the defenda nt, that was his impression. Later, the trial court reconsidered the issue and reve rsed itself, concluding that t

he proff ered te stimony

was irre levant:

I’m going to reverse my

ruling . . . . I don’t think it’s relevant or proper what [Baldwin] thought. . . . * * * I have no problem with [ Baldwin] or any other witness testifying to wha t they saw
or what they obser

ved as to wha t the ac tivities of [the victim] a

nd [the def

endant]
were. But the q

uestio n of whether . . . [the defendant’s] actions [in self-defense]
were reasonable is a question for this jury to determine and not a que stion for [] Baldwin to determine . . . .

At the state’s request , the trial court provided a curative instruction that the jury was to disregard Baldwin’s testimony on the issue.

In our view, the trial court did not err by e xcluding Tracey

Baldwin’s testimony as to whe ther the victim intended to shoot the defendant. At trial, the defendant contendedthat he acted in selfdefense. The defense requires “a re asonable belief that there i s an imm inent danger of death or serious bo di ly i nj ur y. The danger creating the belie f of immine

nt death o r seriou s bodily

injury must be real, or honestly be

lieved to be real at the time, and must be founded upon reasonable grounds.” Tenn. Code Ann. § 39-11-611(a). Thus, subjectiv e impress ions about the level of dang er, eve

n those of the defendant, are

far less important than the facts and circum stanc es sur round ing th e shoo ting. See Tenn. R. Evid. 401, 402; State v. B ult , 989 S.W.2d 730, 732 (Tenn. Cr im. App. 19 98). Ba

ldwin and otherwitnesses were allowed to testify in great detail as to the circumstances, includi ng th e victim’s attitude, demeanor, and actions. The j ury had suff icient information to evaluate the defendant’s claim

of self-defense, i.e., and whether a reasonable per son in the defendant’s position would have believed hi mself to be in imminent danger of death or serious bodily injury. Thus, there
was no error.
II The defenda

nt next cont

ends that the trial court er red by allowing Serge ant Fitzpa

trick to testify that he assisted with a national tel evision pr ogram in an eff

ort to app rehend t he defe ndant. He asserts that such testimony was irr elevant and that its probative value was substan tiall y-6-

outweighed

by the danger of unfair prejudice

. See Tenn. R. E vid. 402, 4 03. The st

ate responds that the testimony constituted

evidenc e of flig

ht by the defe ndant tha t was rel evant and indicat

ive of g uilt. Relevant evidence is that “having any tendency to make

the existence of any f

act that is of consequenceto the det

erminati on of th e action more probable or less pr obable” than it othe

rwise would be. Tenn . R. Evid. 40 1. Gener ally , all releva

nt evidence is admissible. Tenn. R. Evid. 402. At the discretion of the trial court, however, releva nt eviden ce may be

excluded i f it prese

nts a danger of unfair prejudice :

Alth ough r ele vant, evi dence ma y be excluded i f its proba

tive valu e is substantia lly outweighed by

the dange

r of unfa ir prejud ice, con fusion of the issue s, or mis leading

th e jury, or by

considerations of undue delay , waste of time, or needless presentation of cumulative evidence.

Tenn. R. Evid. 403 . This cou rt must not r

everse the trial court on a

n issu e such as this absent an abuse of discretion. See State v. Stout , 46 S.W.3d 689, 700 (Tenn. 2001).

In Hall v . Sta te , 584 S.W.2d 8 19, 821 (T enn. Crim. App. 1979 ), this court quote d 29 Am. Jur. Evidence § 280 a

t 329 on the

issue of f light:

“The fact tha

t a defenda nt after the commis sion of a c

rimeconcealed himself or fled from the vicin ity where the crime was committed, with knowl edge th at he wa s likely to be arrested f

or the c rime or charge d with its c ommission, may be shown a s a circumstance tending to indicate guilt.”
Earlier, in Rogersv. State , 2 Tenn. Crim. App. 491, 455 S.W.2d 182, 1 87 (1970) , this court adopted the view s et out in 22A C.J.S. Crimin al La w § 625:

“The law makes no nice or refined distinction as to the manner or method of
a flight; itmay be open, or it may be a hurr

ied or concealed departure, or it may be
a concealment within the jurisdiction. However, it takes both a leaving the scene of the difficulty and a subseq ue nt hi di ng ou t, ev as io n, or co nc ea lm en t i n t he co mm un it y, or a leaving of the community for parts unknown, to constitute flight.”

It is our conclusion that the defendant’s efforts to avoid capture are admissible circumstantial evidence tending to indicate guilt. See Tenn. R. E vid. 401, 4 02; Hall , 584 S.W.2d at 821. The evidence at trial s howed tha t imme diately

after the shooting, the defendant left the sc ene and disposed of the weapon. He telephoned a girlfriend to provide tra nsportation, took possession of a large sum of money from his residence, and then remained hidden at his girlfriend’s residence for several days. The defendant av oided arrest for six and one-half months. That a nationwide televisio n broadc ast was ut ilized to as sist in his capture was relevant to showthe extensiveness of poli ce effortsto locate

the defe ndant. Th

e trial c ourt did no t abuse itsdiscreti on by admit tin g Se rg ea nt Fi tz pa tr ic k’ s t es ti mo ny.-7- III Finally, the def

endant argue s that his sentence is excessive and that the trial court erred by ordering a sentence of incarcera tion. The state asserts tha t the trial court’s determinations are supported by the record and that the sentence should be affirmed.

At the sente ncing hearing , the vict

im’s mothe

r testified that th e victim

had wanted to be a police officer since he was a child and that he had been with the Chattanooga Police Department for three years, inc luding his time spent training in the police academy . She also stated that he had had some A ir Forc e trai ning. Speaking indirectly to the victim’s family , the defendant testified that he “was sor

ry for [his] part in the tragedy .” He stated that heno longer intended to be involved with weapons and that he had possessed the gun involved in the shooting for self-protection. According to the defendant, he had arranged for

a job with M CI upo n relea se, inten ded to live withhis mother , who was a deputy ja iler , and planned on enrolling in the University of Memphis. During cross-examination, he acknowledged

that he had been convicted for possession of marijuana in 1995 a nd that he had engaged in selling drugs during that time period. The defendant also acknowledged 1996 and 1998 convictions for weapons offenses, both of which involved handg uns, and one of which

resulted in
a probationary

sentence. He estimated that he had owned four guns in his lifetime and admitted that he had carried

them on his person a

nd in his ve

hicles. The defendant contended that he left the sce ne of the shooting before police could arrive beca use he “was just in a state of shock that somebody got shot. That [he] shot somebody.”

Gre gory Huntsm an, the defendant’s uncle and an offic er with the Houston Police Department for approxima

tely ninetee n ye ars, testifie d that he h ad spoke n with the d

efenda nt and tha t it was his opinion that the defendant was “sincerely sorry” a nd would not have any

further involveme

nt with guns. He stated that he believed the defendant to be capable of successfully

completing a sentence of proba tion and th at there

would be a

mple fami ly s upport.
The present

e nce r eport revealed that the defendant, who ha d two minor daughters, had provided the reporting officer with the following statement concerning the offense:

I just wanted to state that I wish I could take that night of the tragedy back.

. . . The L

ord knowsI only

acted in self def ense ca use I’m not that

type of per son. I hope that you s ee fit to help me and give me a chance to prove my char

acter and grant me this probation. I

have a family with kids th at I c

herish to my h eart. I would like to be able to get back to them. And I also would

like the chance to

prove doubts of me wrong . If y

ou see fit for me

to have a nother chance, th[e]n you won’ t be disappointed! . . . Just see in your hear t to give me . . . a try . I can uphold any kind of stipulations to the probation, including any kind of classes. My kids are my life and most of all, now, God is all I live for! . . .-8-

The defendant had not been employ ed in the last six years. The report did not include any work hi st or y.
The trial court found three enhancement fac tors: (1) that the defendant had a previous history of criminal convictions or

behavior in addition to that necessary to establish the appropriate range; (9) the defendant possessed or employ ed a firearm

during the commission of the offense; and (10) that the defe ndant had no hesita tion about committing

a crime w

hen the r isk to human life was high. SeeTenn. Code Ann. § 40-35-114(1), (9), (10). As mitigating factors, the trial court found that the defendant acted under

strong provocation and that substantial grounds existed tending to excuse or justify the defend ant’s crimi nal co nduct , tho ugh failing to establish a defense. See Tenn. Code Ann. § 40 -35-113(2), (3). The trial judge plac ed great weight on the def endant’s “consistent pattern o f possessing firearms ” and two prior weapons conviction s, s tating that “had [the defendant] not poss esseda firea

rm . . . a de ath would

not have o ccurre d.” I

t also plac ed gre at empha sis on th e defendant’s possession of a firearm during the commission of the offense , citing the natu re of the weapon used by the def

endant as something “high powered,” “dang erous,” and appr

opriate for use by th e military. Finding

that the enhancement factors outweighed the mitigating factors, the tria l court or dered a Range I sentenc e of three y ears an d six months.

When there is a challenge to the leng th, range, or manner of servic e of a sent ence, it is the duty of this court

to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial cou

rt consid ered the sentenc ing principles a

nd all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial cour t app lies inappropriate factors or otherwis e fails to follow the 1989 Sentencing Act, the presumption of corre ctness falls.” State v. Shelton , 854 S.W.2d 11 6, 123 (Te nn. Crim. App. 1992 ). The Se ntencing Commission Co mments provide that the burden is on the defendan t to show t he impropriety of the se ntence. Tenn. Code Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our review requires an analy sis of (1) the evidence, if any , received at the trial and sentencing hearin g; (2) the presentence rep ort; (3) the principles of sentencing and the arg uments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any

mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or tre atmen t. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In ca lculating

the sente nce for a Class B , C, D, or E

felony convicti on, the pr

esumpti v e sentence is the minimum in the range if there are no enha ncement or mitigating factors. Tenn. Code Ann. § 40 -35 -21 0(c ). If

there are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating fac tors req uir es an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35--9-

210(e). The sente nce mu st th en be re duced with in th e range by any weight assigned to the mitigating factors present. Id.

I n this appeal, the defendant does not contest the applicability of the enhancemen t an d mitigating factor s found by the trial court, bu t in stead contends that the factors were assigned disproportional weight. The only argument he submits, however, is that, “[w]hile an equal number of enhancement and mitigating factors were applied, the sentence is wi th in six months of the maximum for a [R]ange I offe nder convicted of

[r]eckles s [h]omicide.” In our view, the trial court properl y weighed the enhancement and mitig ating factor s t hat it con sidered . The def endant, altho ugh only twenty -five ye ars of age at the time o f t he shooting, had a significant history of firear ms usage, including two prior weapons c onvictions. He had left the gun used in the shooting at the Baldwin residence because he spent so much time there. The result was the death of a police officer. In our vie

w, the trial court did not abuse its discretion.

The defendant also contends that the trial court erred by

denying him an alternative sentence. He arg ues that the death of the victim is not sufficient to overcome the presumption in favor o f alternative sentencing and points out that his criminal history consisted only of misdemeanors.

In denying

the defendant’s request for probation, the trial cour t found that the defendant had poor potential for rehabilitation and that confinement was nec essary to avoid de preciating the seriousness of the of

fense. Sp ecifica

lly, it cited the defen dant’ s role in escalating the situation leading up to the sh ooting, h is failure to work or attend school for the past f ive to six y

ears, a nd his having been g ranted t wo previ ous proba

tionary sentenc es. Especia lly mitigated or standard

offenders co nvicted of Class C, D, or E felonies are, of course, presu med to be favo rable c andid ates “f or alt ernati ve sen tenci ng o ptions in the absence of evidence to the con

trary .” Tenn. Code Ann. § 40-35-1 02(6). With certain statutory exceptions, none of which apply her

e, probation must be automatically c onsidered by the trial court if the sentence imposed is eight yea

rs or less. Tenn. Code Ann. § 40-35-303(b) (Supp. 2000). Among the fac tors applicable to probation consideration are the circumstanc es of the offens e , the defendant's criminal

record, social history

and present condition, and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). The nature and circumstances of the offenses may often be so egregious as to preclude the grant of probation. See State v. Poe , 614 S.W.2d 40 3, 404 (Te nn. Crim. App. 1981). A lack of candor may also militate against a grant of probation. State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983).

The purpose o f the Commu nity Corrections Act of 1985 was to provide an alternative means of punishment for

“selected, nonviolent felony offe nders in front-end community ba sed alternatives to incarc eration .” Tenn. Code Ann. § 40-36-1 03. The c ommunity corrections sente

nce prov ides a desireddegre e of flexibility that may be both benefic ial to the d

efenda nt y et serve

legitima te societal aims. State v. G

riffith , 787 S.W.2d 3 40, 342 (T enn.1990 ). Even in cases w here the defenda nt meets the minimum requirements of the Community Corrections Act of 1985, the de fendant is n ot-10-

necessa rily entitled t o be sentenced under the Act as a matter of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offende rs are e ligible f or commun

ity
corrections:
(1) Persons w ho, withou

t this option , would

be incarcerated in a

correctional institution; (2) Person s who are convicted of property-related, or drug/alcohol-re lated felony offens es or other felony

offenses not involving crimes against the per son as provided in title 39, chapter 13, parts 1-5; (3) Pers ons who ar

e convic ted of non

violent fe lony offense s; (4) Persons w

ho are c onvic t ed of felony offenses in which the use or possession of a weapon was not involved; (5) Persons w

ho do not de

monstrate a prese nt o r pa st pattern of behavior indicating violence; (6) Persons who do not demonstrate a pattern of committing violent of fenses; and Persons who are sentenced to inc arceration or on escape at the time of consideration will not be eligible. Tenn. Code Ann. § 40-36-106(a).
Moreover, in Ashby , our supreme court encouraged the grant o f conside rable discretionary authority to our tria

l courts in matte rs such as these. 823 S.W.2d at 171. See State v. Mo ss , 727 S.W.2d 22 9, 235 (Te nn.1986). “[E]ach case must be bottomed upon its own facts.” Taylor , 744 S.W.2d at 92 2. “It is not the policy or purpose of this court to place trial judges in a judicial straight-jacket

in this or any

other area, and we are a

lways reluc tant

to interfere with their traditional discretionary pow ers.” Ashby , 823 S.W.2d at 171.

The trial court did not err by ordering a sentence of inca rceration. Because the de

fendant was convictedof a violent felony of fense involving the possession and use of a weapon and has failed to sh ow "special needs" elig ibility, he is not eligible for a c ommunity corrections sentenc e
. See Tenn. Code Ann. § 40- 36-106(a )(3), (4). Althou gh he wo

uld qualify for a

presumptive sentence of probation, the evidence in the record supports the trial court’s dete rmination thatthe defendant exhibited little pote

ntial for rehabilitation. I

n spite of two prior

weaponsoffense s a nd two prior sentences of probation, the defendant has continued to utilize weapons and, in this case, he had no hesitation about resorting to the use of a high v elocity , semi-au tomatic, a ssault rif

le. His employment

record is non-existent. In our view, inc arcer

ation is ne cessar

y to avoid depreciating the seriousness of the offense. The defendant display ed a semiautomatic weapon to a man he kne

w to be a polic e offic er. The

results w ere fa

tal. Accordingly , the judgment of the trial court is affirmed.-11- ___________________________________ GARY R. WADE, PRESIDING JUDGE