# FILED
April 14, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9803-CR-00119 Appellee, ) ) Hamilton County v. ) ) Honorable Step hen M. Bevil, Judge SHARON MARIE SHELL, ) ) (Voluntary Manslaughter) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Leonard M. Caputo John Knox Walkup 312 Vine Street Attorney General & Repor ter Chattanooga, TN 37403 425 Fifth Avenue, North Nashville, TN 37243-0493 R. Stephen Jobe Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 William H. Cox, III District Attorney General 600 Market Street, Suite 310 Chattanooga, TN 37402 Barry A. Steelman Assistant District A

ttorney General 600 Market Street, Suite 310 Chattanooga, TN 37402

OPINION FILED: ____________________________

_____ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### O P I N I O N
The appellant, Sharon Marie Shell, referred herein as “the defendant,” appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Proced ure. Upon her plea of guilty to voluntary manslaughter, the trial court imposed a sentence of three years in the Departmentof Correction, denying an alternative sentence and full probation at the conclusion of the sentencing hea ring.
The sole issue for appellate review is: whether the trial courterred in denying the defendant an alternative sentence i n the form of probation or split confinement.

After a review of the entire re cord, the briefs of the parti es, and a pplicabl e law, we AFFIRM the trial cour

t’s judgment.

FACTUAL BA

CKGROUND

On March 27, 1996, the Hamilton C ounty grand jur

y indi cted the defendant for murder first degree in the killing of her fiancé, Charles Popp, on December 6, 1995. The victim died from a gunshot wound to th e chest which penetrated th e heart. On January 14, 1997, the defendant entered a guilty plea to voluntary man s laughter and requested that the trial c

ourt det ermine the appro priate sentenc e. The def

e ndant als o requested alternat ive sentencing of spli t confine ment or full probation. A presentence report was p repared and, at the conclusion of a sentencing hearing on June 4, 199 7, the trial c our t imposed a three-year sentence and ordered the defendant confined in the Depar tment of Correction.

SENTENCING HEARING

Detective Gary Gaskill, of the H amilton County She riff’ s Department, testified he responded to a 911 call made by the defendant from h er hom e in a trai ler park on December

6, 1995. Upon arrival, Detective Gaskill met the defendant and her daughte r,3

Brandy Shell. Detective Ga

skill ob served the victim’ s body lying in the hallway of the tr ailer. The defendant appeared calm, but somewhat distraught. The defendant’s initia l statementwas that the victi m been beating her. Detective Gaskill had photographs

taken of the defendan t’s fa ce and arms, as well as those of Brandy Shell. There w as no evidence of visible trauma. At his office, Detective Gaskill obtained tape recordings fro m both the defendant and her daughte r.

In the pertinent parts of her statement, the def endant related that in May, 1995, she and the victim had been drink ing and became involv

ed in a heated argument. The victim beat her and blac kened her eye, which r equired medical treatment. Since that incident, the victim made an effort to control himself, but the coup le continued to have arguments. On the d ay of the offense, the defendant and victim began drinking at 12:00 noon and continued drinking upon their arrival at a tavern at 3:00 p.m., where the victim discussed business with an acquaintance. After consuming seven or eig ht beers each, they left the tavern aro und 6:00 p.m.

At 7:00 p.m., the defendant, thevictim, the victim’s brother, H ouston Scudgins, and B randy Shell went to Cancun’s , a Mexican restaurant.While eating, the victim and hi s brother began teasing the defendant about Swedi sh women. In response, the defendant placed an empty bowl that had contained avocado dip on the victim’s shirt front. The victim gotmad and attempted to pour half of a pitcher o f margaritason th e defendant. The defendant spilled some when she knoc ked the pitcher

away. At home, the victim started slapping the defendant and told her, “You need to get out of here.” Brandy screamed, and the victim began yel ling at her and went in her

room, acting as if he was going to hit her. The defendant retrieved a gun from a desk drawer in the livin g room, turned, and said, “That’s enough.” The victim w as at Brandy’s bedroom door. The defendant then shot the victim, but stated she di d not mean to shoot him. She then call ed 911 for help.

Based on the defendant’s statement, Detect ive Gaskill estimated the distance between the defendant and the v ict im to be twelve to fifteen feet at the time of the4

shooting. The desk was located nex t to the front door of the t r ailer. During crossexamination, Detective Gaskill testified that the physical eviden ce contradicted the defendant’s statement of where she was standing when the shot w as fired. The deskwas situated diagonally across the living room from the hal lway entrance where the body was found. The medical report indicated the defendant and victim wer e within two to thr

ee feet of each other at th e time of the s hooting, which indicated to Detective Gaskill the defendant
w as going toward the v ictim. Detective Gask

ill testified that the defendant, w hen s h e obtained the gun, had ample time to l eave the trailer.

Houston Scudgi ns, brother of the vict im, testified he and his brotherwere subframing contractors working at var ious job sites. The defendant and his brother bought

a computer

for the business, as the defendant kept the books. Scudgins described all three
as heavy drink

ers, but not during w

orking hours. On the ni ght of the offense, Scudgins testified he went t o Cancun’s with the defendant, the victim, and Brandy. Scudgins described the circumstances surroun ding the avocado d ip on the victim’s shirt and the spilling of the margaritas. Later t hat evening, Scudgins heard about the shooting, but could not bel ieve it, a

s the defendant

and the vic

tim appeared calm when he left them.

Evonne Burrows, a friend of the v ictim, testified in May , 1995, she, her husband, Billy Burrows, the vic

tim, and the defendant ha d din ner together. The witnes s observed the defendant had a black eye. In discuss ing an unrelated murder, w here a wife had killed her husband, Mrs. Burrow quoted the defendant, “W ell, if you plan it right and say theright things at the right time anybody can get away

with murde r.” The de fendan t said her exhusband had taught her how to shoot, and she was a good shot, commenting furthe r, “I could shoot Charlie [the victim] tomorrow and I wouldn’t spend a day for it.” At the time the defendant made these statements, Mrs. Bur rows did not take them ser iously.
Billy Burrows tes tified he was a longtime fri end of the victim. During the dinner described by his wife, Evonne Burrows, Burrow s asked the defendant, “Well, can you hit whatyou shoot?”

The defendant responded, “W ell, I hit can what I shoot, and more than5

that, I’m not going to shoot nobody unless I’m killing th em. . . . I’ m not givin g nobody a chance to get well and come back and get me.”

Paula Hargis, the victim’s sister, testified as to the effect her brother’s death had on herself and the family. The witness believed the shooting was uncalled for.
Myrna Scudgins, the victim’s mother, testified she had known the defen dant since her son and the def endant were in jun ior high school together. Mrs. Scudgins believed she and the defendant had a good relationship, and on occasions, the defenda nt would take her to the doctor. Mrs. Scudg ins testified that he rson and Brandy Shell had a good relationship. Mrs. Scudgins testi fied she does not have a life any more and has to go out of her way to work

to avoid passing the c emetery where her son is buried.

Chris Chambers, Directo r for t he Domestic Violence Division of the Sheriff’s Department, testified as to the number of domestic violen ce hom icides occurring in Hamilton County since 1994. Chambers’s unit came

into existence in October, 1995. In 1994, in Hamilton County thirty-five percent of all h o micides in Hamilton County were a result of dome stic violen ce. In 199 5, the rat io was again thirty-fi ve percent. In 1996, the ratio was runningtwenty-five to tw enty-seven percent. Detective Chambers testified there is a need to deter domestic violence in Hamilton County due to the growing number o f t hose type of cases. Detectiv e Chambers did not investi gate this particular h omicide. Also, Detective Chambers agreed domestic violence is not repor ted in a large number of cases for various reasons.
Kathy Lewis, the defendant’s sister, testified the defe ndant calle d her af ter the incidentin May, 199 5. Mrs. Lewi s a nd her husband took the defendant to the hospital. Mrs. Lewis described her s ister’s body as having marks all

over it. Mrs. Lew

is testified her sister was devastated over

killing the

victim. Since the inc

ident, the defendant has enrolled in school to become a medical assi stant. Mrs. Lewis d enied her sister had a dri nking problem or a temper, but admitted her sister had a previous DUI case in Catoosa C ounty,6

Georgia.

Rebecca Graybill, another si ster of the defendant, testified the defendant came to her home every morning after her release from jail. Her s ister would cry , pull her hair out, and begin screaming uncontrollably. Her sister kept saying, “I didn’t mean to do it. I loved him.”
Brandy

Shell testified at the time of the h earing she was 15 years old. B randy
v erified the truthfulness of her statement to De tective Gaskill. A

t the time of the May incident, Brandy was in North Carolina with her father, and her mother never talked to her about the event. Brandy testified the victim became enraged afte r the avocado incident at Cancun’s. Brandy heard the victim slap her mother while in their bedroom. Brandy w ent to the bedroom and observed the victi m strike her mother. She admonis hed the victim not to hit her mother. Brandy r eturned to her

room, and the victim came in with his fist raised
as if to strike her, so she fell on the bed and covered her face. In the meantime, her mother wentto the living room. Brandy could not see her mother, but saw the vi ctim being sh ot and falling at her bedroom door. After release from jail, her mother was dis traugh t
over this event and cried often. Although the victim span ked her one time, Brandy testified she had a good

relationsh ip with th e victim.

At the time of th e hearing, the defendant wasliving in Walker County, G eorgia, and attending school to become a medical assi stant. The defendant needed nine more months to complete a fifteen-month course. As t o the May inc ident, the defendant testified it began at a friend’s house, where she and the vic tim had stopped to allow their overheated truckto cool down. When the victim refused to leave, the defendant began walking home. The victim followed

her, grabbed her by the hair, struck her, and forced her into thetruck. At their home, the victim continued to hi t and choke the defendant. She was able to get outside, but the victim drug her back inside and continued to abuse her. After the victim fell asleep, the defend ant was able to call her sister and obtain medical tr eatment. She returned to live with the victim.7 On the night o f the offense, the defendant described the vic tim’s mood as being similar to the May incident. U pon arriving home from the restaurant, the victi m slapped the defendant four or five times i n their bedr oom. She heard

Brandy y

ell, “Don’ t you hit my Mom.” The victim was extremely angry and proceeded to Br andy’s room. The defendant could not leave the trailer, because she did not want to leave Brandy alone with the victim forfear he would hurt her. The defendant denied making any stat ements to the Burro ws about shooting a gun. The defendant was arrested in Georgia in March, 1996, for DUI, and was ultimately conv

icted.
During cross-examination, the defendant insisted she meant no harm to the v

ictim, and that the gun just went off. Whe n the defendant pulled the gun, she believed it would shockthe victim, and he woul d stop and let her and Brandy go. However, the defendant recalled reaching i nto the d esk drawer and turni ng wh en the gun fir ed. The defendant testified she was scared and fearful as to what the victim would do to her daughter. She also testified that the victim had pinned her o n the floor during one incid ent in the past and had put a gun to her head.

It was st ip ulated by both parties that an official report submitte d by the Georgia Bureau of Investigation, Division of Forensic Sciences, verified that the .357 caliber pistol used by the defendant took a force of approximate ly five pounds topull the trigger in single action and a force of approximately thirteen pounds to pull the tr igger in double actio n.8 SENTENCING CONSIDERATIONS

The defendant contends she is entitled to a complete suspended sentence or, in the alternative, to an alternative sentence including split confinement. The state counters the trial court was correct in determiningthat confinement was necessary to avoid depreciating the seriousness of the offense an d to provide an effective deterrence to others.

When a defendant compla ins of the imposition of his or her sentence, we must conduct a de novo review with a presumption of corr ectness. Tenn. Code Ann. § 40-35- 401(d). Therefore, the burde n of showing that the sentence is improper is upon the appealing party. Id

. The presumption that deter minations made by the trial court are correct is conditio ned upon the affirmative showing in the record that the trial court considered the sentencing principl es and all relevant facts and c ir cumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Smith, 898 S.W.2d 742, 745 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995).

If appellate review r

eflects the trial court pr operly considered all

relevant facts

and its findings of fact are adequately supported by the

record, this Court must affirm the
s entenc e “even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an appropriatesentence, the trial court must co nsider: (1) the evid ence, if any, received at the guilty plea and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternativ es; (4) thenature and characteristics of the criminal conduct inv olved; (5) evidence and inform ation offered by the parties on enhancementand mitigating factors; ( 6) any statements the defendant wishes to make in the defendant’s behalf about the sentencing;and (7) the potential for rehabi litation a nd treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210; State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

The defendant contends the record does not affirmatively show the trial court9

considered the sentencing principles and all relevant facts and circumstances, thus this Court’s review should be de novo without a presumption of correctness. State v. Ashby, 823 S.W.2d at 169. Ho wever, we believe the record establishes the trial court did consider the sentencing principles of the Tennessee Criminal Sentencing R eform Act of 1989, thus our review is w

ith a presumption of correctness

.

Part A Denial of Alt

ernative Sentence

The defendant contends tha t the tria l court sho uld have im posed an alternat ive sentence pursuant to Tenn. Code Ann. § 40 -35-102 (b) and § 4 0-35-30 3(b). Thu s, we must determine whether thedefendant i s entitled to the statutory presumption that she is a favorable candidate for such sentencing. State v. B ingham, 910 S.W.2d 448, 453 (Tenn. Crim. App.), per. app. denied (Tenn. 1995); State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993). To meet this statutor y presumption of alte rnative sentencing, the defendant must satisfy three requi rements: (1) the defen dant i s an especially mitigated offender or standard offe nder; (2) the defendant must be convicted of a Class C, D, or E felony, Tenn. Code Ann. § 40- 35-102(6); a nd (3) the defendant must not fall within the par am eters of Tenn. Code Ann. § 40-35-102(5). Thus , the defendant cannot have a criminal history indicating either “clear disregard f or the l aws and morals of society ” or “failure of past efforts at rehabilitation.” Bingham , 910 S.W.2d at 454 (quoting Tenn. Code Ann. § 40-35-102(5)). Since the defendant pled guilty to voluntary manslaughter and is a first time standard offender, she is entitled to the presumption.
However, this presumption of en titlement to an alternativ e sentence may be rebutted by“ev ide nce to the contrary.” Tenn. Code Ann. § 40-35-102(6) (1 994 Supp.). The sentencing considerations in Tenn. Code A nn. § 40-35-103 are of assi stance in determining if the presumption i s still viable:

(1) Sentences involving confinement should be based on the following considerations:10 (A) Confinementis necessary to p rotec t society by restraininga defendant who has a long his tory of criminal conduct; (B) Con f inementis necessary to av oid depreciating the serious n ess of the offense or confinem ent is particularlysuited to provide an effectiv e de ter rence to others likely to commit similar offenses; or (C) Measuresless restrictiv e than confinement hav e frequently or recently been applie d unsuccessfully to the defendant.

In this case, the trial court spec ifically found that any sent ence other than confinementwould depreciate the ser iousness of theoffense, and that confinem ent would providean effective deterrent to others likely to commit simi lar offenses. Tenn. Code Ann. § 40-35-103(B).

In denying an alternativ e sentence based on the seriousnes s of the o ffens e, “the circumstances

of the offense as committed mu st be especially viole nt, horrifying, sh ocking, reprehensible, offensive, or otherwise of an excessi ve or exaggerate

d degree,” and the nature of the offense mus t outwei gh all of the factors that favor a sentence other than confinement. State v. Hartley, 818 S.W.2d 370, 37 4-75 (Tenn. Crim. App. 1991); State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981).

In de nying an alternative sentence, the trial court commented on the def endant’s lifestyle before and after the offense. In its ruling, the tri al court stated:

There’s been proofand this Court has consider ed the proof of the May incident. Now , as far as what really happened on that occasion we’ve heard different v ersions. We do know that she was beaten on that occasion and we do k now that she went

to the hospital. But we also know that after that i ncident happened she stayed with him an d continued to be with hi m, continued to live in that relationship with him, even having her daughter come and live with them w hich indicates

to me there was no fear on her part of Char lie Popp. * * * * * I don’t think

she was in

fear of him. I don’t think a person who is in fear of being beaten se ve rely would pick up a bowl of avocado dip or guac

amo le dip and pour it on somebody w ho she’s afraid of being beaten.11 Ms. Shell appears to

me, although not today, but bas ed on the facts that are presented to be a very fiery

hot-tempered person and could hold her

own especially when s he’s been drinking or she wouldn’t have poured that avocado dip on Charlie Popp or she wouldn’t have trie

d to knock away

the margaritas when he was pouring them on her. But there’s a little bit of fault I think on both parties. What the Court ha s to look at, too, is at the ti me this incident happened was she justified in tak ing his life? She’s pled guilty to voluntary manslaughter which is admitting that she kill ed him in the heat of passion. I’m concerned about the fact that I think she had al ternatives available to her. She coul d have l eftthe trailer. She said, well, I was af raid for Brandy. She knew where the gun was.S h e could have come back in the trailer. She could have gotten the gun if he had stayed there and if he had done something to Brandy. She did not have to stay there for that. At the time

she said shewas afraid for Bran dy. Brandy’ s own testimony

was he said, “You bet

ter go to bed.” And she said, “I’m in bed and he turned and walk ed away.” Ther

e was no threat. There wasno threat to Brandy. There was no fear at all to Brandy

at the time and as soon as he turne d before he had a chance to take much of a step she shot him andkilled him

. * * * * * I t hink to not require Ms. Shell to be confined would be depreciating the ser

iousnes s of this offe nse. It would mean that Mr. Popp’s life wasn’t worth much. And I think it woul d be telling a message to Brandy to say, Brandy, if a guy beats up on you it is oka y to live with him because if he get s too bad you can just pull out a gun and k ill him and you can walk away. Again, I’m not condoning domestic v iolence. I detest it. I think ther e is no reason in the wor ld for it. But I think it w ould be sending a wrong mess age to the community. I think it will be sending a wrong message to Brandy. I think it will be sending the wrong message to anyone else who is in a si milar situation to stay if you choose.

The trial court was

very concerned about

the defendant’s arrest for DUI while on bail release and her lack of respect for the law. Likewi se, it is obvious from the r ecord that the trial court was v

ery concerned about the facts s urrounding the victi m’s death.

We cannot say that

the facts in this record met all the standards set forth in Hartley, 818 S.W.2d at 374-75. However, in arr iving at a proper

sentence and its imposition, the trial court is entitled to inq uire into the natu re and characteristics of the criminal conduct involved. Tenn. Code A nn . § 40-35-210(b)(4); State v. Hollingsworth, 647 S.W.2d 937,12

939 (Tenn. 1983). The state argues that exceptional circums tances must beshown by the defendant in order to

support probation or an alternativ e sentence in cases invol ving the death of another person. This issue has been addressed in a number of appellate cases. However persuasive this arg ument may be, the existence of the d eath of a person in and of itself cannot constitute sufficient “evidence to the

contrary” under Tenn. Code Ann. § 40- 35-102(6); Hartley, 818 S.W.2d at 374; Bingham, 910 S.W.2d at 455; State v. Bradley Joe Housewright, No. 03C01-9705-CR-00195, 1997 WL 785672 (Tenn. Crim. App., Knoxville, December 16, 1997), per. app. denied (Tenn. 1998).

From our analysis of the evidence in this rec ord, we concur in the trial cour t’s finding that th e d ea

th of th e v ic ti m w as ne ed le ss

an d u nn eces sa ry . We believe the death of

the victim was violent, offensiv e, and exces sive under these facts. Therefor e, the nature of these facts outweighs all factors favoring a sentence other than confinement. As part of the denial of an altern ative sentence, the trial court was concerned with deterrence. Before
a trial court can deny

an alternative sentence on the ground of deterrence, there must be
some evidence contained in the r ec ord that the sentence imposed wil l have a deterrent effect within the jurisdi cti o n. State v. Bonestel, 871 S.W.2d 163, 170 (Tenn. Crim. App. 1993). This Court has repeatedly held thatthe finding there will be a deterrent effect within the jurisdiction cannot be mer ely conclusory but must be supporte d by proof. State v. Ashby, 823 S.W.2d at 170.

In support of deterrence in domestic violence offenses i n Hamilton County, the state offered proof from the Director of the Dome stic Viole nce Unit. It was esta blished t hat thirt yfive p ercent of all homicides committed in Hami lton County from 1994 to 1996 w ere a result of domestic violence. The trial court commented that m uch emphasis is placed on drinking and driving, but li ttle thought is giv

en to drinking andg uns, which was the case here. Guns and drinking play a substantial part in domestic violence o ffense s. We believe it was proper for

the trial court to consi der such factors in determini ng whether deterrence was applicable. There i s no merit to this issue.13 Part B Full Probation

The defendant contends that she is entitled to f ull probation. There fore, the defendant has the burden of establishing she is suitable for full p robation , even if the defendant is entitled to the statutory presumption of an alternative sentence. Tenn. Code Ann. § 40-35-303(b); State v. Grissom, 956 S.W.2d 514, 52 0 (Tenn. Crim. App. 1997); State v. Bingha m, 910 S.W.2d 448, 455 (Tenn. Crim. App.), per. app. denied (Tenn. 1995). In doing so, the defendant must demonstrat e that probat ion will “ subserve the ends of justice and the best interes ts of both the public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.), per. app. denied ( Tenn. 1990) (qu oting Hooper v. State , 201 Tenn. 156, 162, 297 S.W .2d 78, 81 (1956)).

When dete rm ining suitability for probation, the sentencing court considers the following factors: (1) the nature and circumstances of the criminal co nduct invo lved; (2) the defendant’s potential or lack of potential for rehabilitation, including the risk that during the period of probation, the defendant wi ll commit another crime; ( 3) whether

the sentence of full probation would unduly depreciate theseriousness of the offense; and (4) whether
a sentence other than full probatio n would provide an effective deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§ 40-3 5-210(b)(4), -103(5), 103(1)(B) (1990); Bingham, 910 S.W.2d at 456.

In considering probation, the trial court may inquire into the facts and circumstances surrounding the criminal con duct. Denial of probation may be based solely upon the circumstances

of the offense when they outweig h all other factors favorin g probation. State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). The comments made bythe trial court in deny ing an alternative se ntence are app licable t o the request for full probation. We concur in the trial court’s findings. Upon de novo review andin accord with
a pre sumption of correctness, we are unable to conclude that the trial court erre d i n determining the defendant had not met her burden of esta blish ing suitability for full14

probation.
The judgment of the trial court i s affirmed.

________________________________________ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JAMES CURWOOD WITT, JR., JUDGE