# FILED September 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708- CR-00343 ) Appellee, ) ) ) HAMBLEN COUNTY VS. ) ) HON. JAMES EDWARD BECKNER LARRY WIL SON, ) JUDGE ) Appe llant. ) (Sentenci ng)

FOR THE APPELLANT : FOR THE APPELLEE : P. RICHARD TALLEY JOHN KNOX WALKUP P. O. Box 950 Attorney Generaland Reporter Dandridge, TN 37725 SANDY C. P ATRICK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0943 BERKELEY BELL Distri ct Attor ney General JOHN DUGGER Assistant Distri ct Attor ney 510 Allis on Street Morristown, TN 37814
OPINION FILED ________________________ MODIFIED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On Ma rch 12, 1997 , a Hamb len County jury fou nd Appe llant, Larry Wilson , guilty of reckless hom icide. The jury imp osed a fine of $5 ,000. After a sentencing hear ing, the t rial cour t sentenced Appel lant to t he maximum penalty of four years incarceration to be served as a R ange I stand ard offender. Appellant appeal s from the trialcourt’s sentence, rai sing two issues:
1) whether t he trialcourt err ed in imposing t he maximum sentence and in fail ing to consi der applicable miti gating fac tors, and 2) whe ther the trial cou rt erred in den ying A ppella nt prob ation o r spilt confinem ent.

After a revie w of the re cord, we modify th e judgm ent of the tria l court to refl ect a sentence of t hree year s with one year i ncarceration f ollowe d by two years of super

vised probat ion.

FACTS:
According to testimony pres ented at trial, Appellan t and his brother, Randy Wilson, the vi ctim, had a st rained rel ationshi p for many years . The victi m threatened Appell ant’s l ife on many occasi ons. On the morning of the homicide, around 4:30 in the morning, t he victim and his gir lfriend, Rocky Ward showed up unannoun ced at Appel lant’ s door. Appella nt all owed the t wo to sleep i n his home untilsometime after midday. Appell ant testified that the-3-

victi m and Ms. Ward appeared to have been under t he influ ence of drugs and alcohol. The pair lef

t the farm around two o’cl ock with Ms. Ward going
some ti me i n th e ev eni ng t o pi ck u p her son for her summe r v isitat ion wit h hi m. Randy Wilson returned to the farm late that eveni ng, and Ms. Ward arriv ed with he r fourte en yea r old so n and her five y ear old daug hter to m eet him around 11:30.
Randy Wilson was recli ning on the porch, and when Ms. Ward arri ved, she did not im mediately see him. So M s. Wa rd went into the sh ed where Appellant was working and asked hi m where Randy was. Appell ant pointed toward the house. Ms. Ward then got her chi ldren out of the car, s lamming the car door in t he process. When Randy Wilson heard the car door he sat up, and M s. W ard joined him on the porc h.
Randy Wilson and Ms. Ward checked for t he key on the porc h, and, not finding it, Ms. Ward returned to theshed to ask Appell ant for t he key. She got no response from Appel lant, and returned to the porch wi thout the k ey. Randy Wilson then stat ed that he woul d get the key and went to the shed. A few seconds after

Randy Wilson entered t he shed, Appell ant shot hi m. Randy Wilson turned to l eave the shed, h olding hi s stomach, and Appell ant foll owed him out of t he shed, shooti ng him in the back . Ms. Ward and her two chi ldren fled the p roperty, hearing a th ird shot as they ran. Ms. Ward flagged down a car which took her to callthe authoriti es.

The victi m’s body was recover ed at the scene wi th three gunshot wounds to the body (and an additional wo und to the ha nd which co uld have-4-

been from the same shot as one of the wounds to the body): one shot to t he chest which c rossed throu gh the ches t wall and the top of the victim’s liver, another sho t to the abdom en which w ent through the top of the left kidney, injured t he spleen and passed t hrough the vi ctim’s stomach, and a thir d shot which entere d high unde r the victim’s jaw and e xited just below his ea r, severing t he carotid artery. According to medical test imony at trial, either of the first two wound s would have been fatal had the victim received e xtensive medical care wi thin thi rty minutes of recei ving eit her wound. The thi rd shot caused d eath instantane ously.
Appellant i nitial ly denied k illi ng his brot her, but eventually signed a statem ent adm itting to shoo ting Ran dy W ilson after h is brother th reatene d to “blow his b rains out”

if he di d not give t he victi m the key to hi s house. Appe llant wa s afraid of the vic tim as a resu lt of the vic tim’s p rior thre ats to k ill him and f

elt that, if he d id n ot p rotect

him sel f, thevi cti m woul d sh oot him
. Appellant f urther testifi ed that when thevicti m turned to le ave the shed, he fea red that t he v ict im wo uld ret ri evea gu n fr om hi s ca r an d re turn toki ll him
. Though the vict im was unarmed at the t ime of the shoot ing, undi sputed testimony was p resented that the vict im always carried a gun, usual ly wore a bullet p roof-vest , and had a reputation for violence.
I. Length of Sentence
Appellant ar

gues that t he trialcourt err ed in imposing t he maximum sentence for this cri me. When a defendant complains of his or her s entence, we must conduct a de novo review wi th a presumpti on of correct ness. Tenn.-5-

Cod e Ann . § 40-3 5-401 (d). Th e burd en of s howin g that th e sen tence is improper is u pon the appeali ng party. Tenn. Code Ann. § 40-35-401(d) Sente ncing Com miss ion Co mm ents. T his pre sum ption, h owev er, is conditioned u pon an affirm ative showing in the record that the trial court considered t he sentencing principl es and all t he relevant facts and circum stance s. State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).
The Sentencing Reform Act of 1989 establi shed specifi c procedures which must be fol lowed in sentencing. These procedures, codi fied at Tenn. Code Ann. § 40-35-210, mandated the court ’s consider ation of t he following:
(1) The evidence, if any, received at the tri al and the sentencing hear ing; (2) [t]he pr esentence report ; (3) [t]he princip les of sen tencing a nd argu ments as to sentencing al ternati ves; (4) [t]he nat ure and characteri stics of

the crimi nal conduct i nvolved; (5) [e]vi dence and infor mation offer ed by the part ies on the enhancement and mitigat ing factors in §§ 40-3 5-113 and 40-35-114; and (6) [a]ny statement t he defendant wishes to make in his own behalf about sentenci ng. T.C.A. § 40-35-210

.

This sectio n further

provides t hat the mini mum sentence within t he range is th e presumptive se ntence. The court must begin wit h the minimum sentence a nd enhan ce that senten ce to approp riately reflect any statutory enhancement factor

s that thecourt fi nds to be present . After enhancing the sentence, t he court must reduce the sentence giving consi deration to the weight of any

mitigati ng factors that the court fi nds. The weight to be given each fa ctor is left to the discretion of the trial judg e. State v. Shelton , 854-6-

S.W .2d 116, 123 (Tenn. Crim . App. 1992 ). Because w e find the trial court erred in r

ejecti ng a number of appli cable miti gating fac tors out of

hand, our review of the sen tence in this case is purely de novo . Having bee n convicted of a C lass D felony as a Range I standard offender Appel lant is

subject to a minimum sentence of t wo years and a maximum sentence of four years. The t rial cour t found that

two enhancement factors wer

e applicabl e, i.e. , Appellant treated Randy Wilson with except ional cruelty , Ten n. Co de An n. Sec . 40-35 -114( 5), and Appe llant us ed a fire arm in the commission of the offense, Tenn. Code Ann. Sec. 40-35- 114(9). The trial court decl ined to fi nd that any of the miti gating fac

tors offered by Appell ant were applicab le to the case. It is from the refusal on the pa rt of the trial court to apply any of these mit igating factor s that Appellant appeals.
Appe llant urged the trial cour t to apply the following m itigating facto rs to his sentence:

(2) the defendant acted under st rong provocat ion; (3) substanti al grounds exi st tendi ng to excuse or justif y the defendant’s cri minal conduct, though faili ng to establ ish a defense. (8) the defendant was sufferi ng from a mental or physical conditi on that si gnificantly r educed culpabil ity for the offense; and (11) the defendant, although gui lty of the crime, committed the of

fense under such unusua l circumstances t hat is unl ikely t hat a sustai ned intent to violate the law m otivated the condu ct. Tenn. Code Ann. § 40-35-113.-7-

We will address theapplicabi lity of each factor in turn.
Strong Provocat ion.

The evidence in t his record i s undisputed t hat Appellant was a peaceful
man who h ad ne ver be en in tro uble b efore in his life. Lik ewise it is uncontradic

ted that Randy

Wilson was a viol ent man who wore a bull et proof vest an d wen t arme d virtua lly all the tim e. Ran dy W ilson h ad intim idated his brother, th e Appe llant, for years through threats an d belligere nt beha vior. Indeed the mother of both Appell ant and Randy Wilson test ified t hat the latter
was so violent she was sca red of him and ac tually slept w ith a base ball bat to protect her

self fr om her own son. Appell ant testified that at the ti me of the shooting his bro ther threatened to kill him as he had many time s previously.

It is obvious the j ury beli eved that Appel lant act ed under some degree of prov ocatio n that re duce d his cu lpability fo r the ho micid e. Altho ugh o riginally indict ed for second degr ee murder, i. e. a “knowing” kill ing the j ury found Appellant gui lty of

only the “ reckless”

kill ing of Randy Wilson. We believe that under the ci rcumstances the t rial cour t should have found that Appel lant when he shot Randy Wilson was act ing under st rong provocat ion.

Substa ntial Grou nds Exis t Wh ich Ten d to Excu se App ellant’s Co nduct.

From its ver

dict i t is cl ear that t he jury r ejected t he notion t hat Appellant acted in a m anne r which would cons titute the com plete d efens e of se lf defens e thereb y excusin g Appe llant from c riminal res ponsib ility altogether.1 The trialjudge in r ejectingthis mitigating fact or indi cated that

the jury ’s havingapparentl y taken this fact or into account in r

eaching it

s verdict

precluded hi m from considering it . We know of no case or statute whi ch mandates such a conclusi on. -8- However, for

the reasons stated in th e preceding sect ion it is also cl ear that the jury did not bel ieve Appell ant to be gui lty of a murder or any i ntentional homicide. S ince Appe llant admitted sho oting his brother rep eatedly we are left to conclude that

the jury must have beli eved that Randy Wilson’ s previous threats and hi s reputati on for vi olence and going armed tended to excuse t he Appe llant’s cond uct. 1 From the rec ord we agree and fin d the tria l court s hould have applied t his miti gating fac tor to Appel lant’s

sentence.
Appellant’ s Mental Condit ion.
Expert test imony establi shed that Appel lant had a l ow I.Q. al though he was not retarded. He also suffer ed from a form of post-traumatic st ress syndrome. However, Appellant was a fully functio ning indi vidual who r an a farm, dated, and took care of his elder ly aunt. He had never been tr eated for
men tal or em otiona l proble ms. U nder th ese c ircum stanc es the trial cou rt did not err in rejecting this m itigating factor.

Sustain ed Inten t to Vi olate t he Law.
The uncontradicted proof in the r ecord revealed that Appellant is a peace ful man who ha s never c rossed paths w ith the law p rior to this incid ent. By all account

s he led a quiet

life on his famil y farm where he car ed for an elderly aunt. Again, it is

apparent fr

om its verdi ct that t he jury found the kil ling of Randy Wilson to be at most an isolated act motivated by fear and-9-

intimidation. W e find that Appe llant’s actions were n ot motivated by a sustaine d intent to vio late the law . This facto r should h ave bee n applied to Appellant’ s sentence.
In summary is i t the opin ion of thi s Court that mitigati ng factors (2), (3) and (11) apply to the sentence i n this case. In bal ancing these factors against the su bstan tial weig ht acc orded by the tr ial cou rt to the a pplica ble enhancement factor

s we modify the sentence of four years to one of three years in l ength.

II. Alter native Sentencing
Appellant f urther chal lenges the t rial cour t’s order that he serv

e the entiret y of his s entence in conf inement. The Sentenci ng Reform Act requi res the tri al court t

o begin its considerat ion with t he presumption t hat the appel lant is subject

to alternative sentencing if he meets the requi rements of Tennessee Cod e Ann otated § 40-3 5-102 (6), wh ich req uires th at the a ppella nt not fa ll under Tennessee Code An notated § 40-35-102(5) and that he recei ves a sentence of l ess than eight years. This

means that the defendant must be a standard or mit igated off ender, convi cted of a Clas s C, D, or E fel ony who cannot have a cri minal history evinc ing eith er “clear disregard f

or the laws a nd morals of soci ety” or “ failur e of past ef

forts at rehabili tation. ” Tenn. Code Ann. § 40-35-102(5) . Appellant clearly falls within t he parameters of t he-10-

presumption th at he is ent itled t o a sentence other

than conti nuous confinem ent.

The presumption t hat Appellant is a candidate for alternative sentencing does not settl e the matter. This presumption may be rebutted by “evidence to the contrary.” Tenn. Code Ann. § 40-35-10 2(6). Tennessee Code Annotated § 40-35- 103 gives guidance as to whatmay be considered i n making this determination:

(1) Sen tenc es involv ing confi nement should be based on the following considerat ions:

(A) Confinement is necessary to protect society by restrai ning a defendant who has a long history of crimina l conduc t;

(B) Conf in eme nt is ne cess ary to a void depreciati ng the seriou sness of the of fense or conf inemen t is partic ularly suited to providean effective deterren ce to others li kely to co mmit similar offenses; or (C) Meas ures le ss restrictive than confinementhave fre quently or recently

been applied unsuc cessfully to the defen dant.
State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1). In this case, the trial court found that confinement was necessary to avoi d depreciating the seri ousness of the off

ense. The tri al court s pecifi cally bas ed the sentence of continuous incarcerat ion upon the l awlessness of so ciety say ing, “so what should the
mess age be ?”. In my o pinion, pro bation w ould say that it’s okay to go bac k to lawles sness in a time when viol ence causes a ll of us to l ive i n fear. What we need more of, folks , is just pla in old la w and order, and th en if you kill someone and it’s not in sel f-defense, and you know what you’ re doing, and you do i t cru ell y, you go to jai l. Tho se are h ard wor ds, bu t they’re tru e. So that’s the mes sage.”-11- We agree with the tr ial court that thi s case is seri ous and that some incarcerat ion is necess ary to avoi d depreciati ng this fact. However, Tenn. Code Ann. S ec. 40-3 5-103(4 ) cautions us that:

The sen tence impo sed shou ld be the least seve re measure necessary to achieve the purposes for which the sentence is imposed.
The hom icide in th is case is not on ly seriou s, as is a ny hom icide, b ut it is also trag ic. Here o ne othe rwise law abiding b rother is ap parently d riven to kill his viol ent sibl ing through t hreats and i ntimidati on meted out by thelatter for the bet

ter part of a li fetime. As stated prev iously, although Appel lant
cann ot and shou ld not b e com pletely r elieved of crim inal res pons ibility for his actions, a sentence of cont inuous confi nement in the peni tentiar y does not appear to be the least sever e measure necessary to avoid depreci ating the seriousness of

the offens e. It i s our opini on that pursuan t to Tenn. Code Ann. Sec. 40 -35-306 , Appella nt shou ld serve a senten ce of one year in the c ounty jail or workhouse fol lowed by a peri od of two year s supervised probation upon such terms and condi tions as t he trialcourt may deem appropri ate.
The judgment of the t rial cour t is modif ied to ref lect a sentence of three years to be ser

ved as set forth herei nabove. This case is remanded to t he trialcourt for

further proceedings consi stent wit h this opi nion.

____________________________________ JERRY L . SMI TH, J UDGE-12-

CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ WILLI AM B. A CREE, SPECI AL JUDGE