IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 20, 2004

STATE OF TENNESSEE v. JON BREWBAKER

Direct Appeal from the Criminal Court for Bradley County

No. M-02-888 Carroll L. Ross, Judge

No. E2003-02706-CCA-R3-CD

June 18, 2004

The Defendant, Jon Brewbaker, pled guilty to second degree murder, a Class A felony. After a

hearing, the trial court sentenced the Defendant to twenty-three years in the Department of

Correction. The sole issue on appeal is whether the sentence imposed by the trial court is excessive.

We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.

WOODALL, JJ., joined.

Richard Hughes, Public Defender, Cleveland, Tennessee, for the appellant, Jon Brewbaker.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Jerry N. Estes, District AttorneyGeneral; and Joseph V. Hoffer, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

At the guilty plea hearing, the assistant district attorney general gave the following recitation

of the relevant facts, which were gleaned from statements the Defendant made to the police. Early

on the morning of October 17, 2002, the Defendant met the victim, Jonathan Shanks, by way of the

internet. They agreed to meet at the Charleston Boat Dock, which they did. They left the victim’s

car parked at the boat dock, and they then went to the Defendant’s residence. There the Defendant

performed oral sex on the victim. After the sexual encounter, the victim disclosed to the Defendant

that he suffered from genital warts. The Defendant became “upset,” and they began to argue. The

argument became physical, with the victim biting the Defendant, the Defendant hitting the victim,

and both of them wrestling with each other. Eventually the victim’s head “hit the window,” breaking

it, and his head began to bleed. At this point the fight stopped. The Defendant agreed to take the

victim back to his car at the boat dock. When they arrived, the victim took the Defendant’s pager
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and told him that he was going to report him to the police and accuse him of rape. In his statement

to the police, the Defendant said that he was not “out” about [his] sexual orientation; therefore, this

threat “truly scared [him]” and he “just snapped.” As the victim walked away from the Defendant’s

car, the Defendant got his revolver and shot the victim in the back. The victim fell down, and the

Defendant shot him twice more: once in the chest and once in the face. According to the

Defendant’s statement, he killed the victim to prevent his family and friends from discovering his

homosexual lifestyle.

At the sentencing hearing, Dr. Ronald Toolsie testified that he performed the autopsy on the

body of the victim. He found three gunshot wounds on the body, one in the head, one in the chest,

and one in the back. The gunshot wound to the chest would have itself been fatal because it passed

through the heart and lungs. Likewise, the gunshot wound to the back would alone have been fatal

because it passed through the spinal cord and a lung, which caused significant bleeding.

The victim’s mother, Susan Marie Shanks, testified that the victim was openly gay. At the

time of his murder, he was a biology major at Chattanooga State Technical Community College and

worked at Longhorn Restaurant. Ms. Shanks testified that the victim had genital warts at the time

of his death. The victim’s father, Charles Victor Shanks, also testified about the profound impact

that the victim’s death had on all the people that loved him.

The Defendant’s older sister, Carrie Andreu, testified that she and the Defendant were

physically and mentally abused by their stepfather. She also testified that their mother had been

married four times and had moved several times while the Defendant was growing up. Finally, she

stated that, approximately two years before the murder, their mother had run off with the Defendant’s

biological father, which was very difficult for the Defendant.

Lynne Eaks, the Defendant’s aunt, testified that the Defendant had worked in law

enforcement and had carried a gun in his car for “protection.” She also testified that he had a history

of being unable to control his temper. Finally, she explained that the Defendant’s mother never

nurtured him, and this left him feeling abandoned.

According to the presentence report, at the time of sentencing, the Defendant was thirty-three

years old and single. Although he dropped out of high school, he received his G.E.D. in 1989. He

also completed several hours of E.M.T. and law enforcement training at vocational schools. He

described his mental and physical health as good, but he was taking several prescription drugs for

“nerves,” high blood pressure, and “stomach problems.” The presentence report states that “[i]n the

last decade, the Defendant has had at least 17 jobs. Most of these jobs ended after a few months.

The longest period of employment was with University of Tennessee - Chattanooga’s police

department.” He worked at that job for almost two years. Furthermore, the report states that “[t]here

were discrepancies in dates, wage and reason for termination of employment that Mr. Brewbaker

gave versus what the past employers gave.” The Defendant has no prior criminal history.
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At the conclusion of the sentencing hearing, the trial court imposed a sentence of twentythree years based upon the existence of one enhancement factor. The Defendant asserts that the

sentence is excessive.

Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider

(a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the parties

on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-

113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own

behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704

(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its

reasons for imposing the specific sentence, including the identification of the mitigating and

enhancement factors found, the specific facts supporting each enhancement factor found, and the

method by which the mitigating and enhancement factors have been evaluated and balanced in

determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review

of the sentence with a presumption that the determinations made by the trial court are correct. See

Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant facts

and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence

after having given due consideration and proper weight to the factors and principles set out under

the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,

then the presumption is applicable, and we may not modify the sentence even if we would have

preferred a different result. See State v. Pike, 978 S.W.2d 904 app. at 926-27 (Tenn. 1998). We will

uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes and

principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported by

the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a

sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing

Commission Comments; Arnett, 49 S.W.3d at 257.

“Second degree murder is a Class A felony.” Tenn. Code Ann. § 39-13-210(b). The trial

court determined the Defendant to be a Range I offender, see id. § 40-35-105(a), (b), and, as such,

the Defendant was subject to a potential sentence of fifteen to twenty-five years. See id. § 40-35-

112(a)(1). The presumptive sentence for a Class A felony is the midpoint of the range, see id. § 40-

35-210(c), and may be enhanced or reduced based upon the existence of applicable enhancement and

mitigating factors. See id. § 40-35-210(d), (e).

In this case, the trial court enhanced the Defendant’s sentence from the presumptive sentence

of twenty years to twenty-three years based upon the enhancement factor that the Defendant
“[T]he trial court may look behind a plea agreement and consider the true nature of the offense committed.” 1

State v. Latoya Anderson, No. 02C01-9707-CR-00251, 1998 WL 599527, at *3 (Tenn. Crim. App., Jackson, Sept. 11,

1998) (citing State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983)); State v. Biggs, 769 S.W.2d 506, 507 (Tenn.

Crim. App. 1988).

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employed a firearm during the commission of the offense. See id. § 40-35-114(10). The court found

no mitigating factors.

The Defendant’s challenge to his sentence is twofold. First, he asserts that the trial court

erred by failing to find as a mitigating factor that he “acted under strong provocation.” Id. § 40-35-

113(2). He argues that the victim first provoked him when he disclosed that he suffered from genital

warts, after the Defendant had performed fellatio on him. The Defendant contends that he was again

provoked when the victim took his pager, accused him of rape, and told him that he was going to

report him to the police.

The trial court explained its decision to not apply mitigating factor (2) as follows:

The State reduced this from first degree, and certainly, whatever benefit he gets for

any provocation, I think it comes in by that reduction. And I don’t think the proof 1

here shows anything that would be subject to finding a mitigation factor based on any

provocation here. And I base that specifically on the fact that we had in effect two

separate assaults here. Unfortunately, the second one resulted in evidently the death

of the victim. It’s clear he took the victim back from his residence in Athens back

to the boat dock in Charleston, from what I see in the presentence report here. And

I don’t think anything that happened there would serve as any kind of provocation.

It’s clear at that point they were probably upset at each other, and they may have had

reason to be upset with each other for what each other had said or done or whatever,

but they had no reason to shoot one another, either one of them, for that matter. So

I don’t find that subparagraph (2) has been shown as an adequate provocation.

We conclude that the trial court did not err by declining to apply this factor. First, for the factor to

apply, it must be shown that the defendant acted “under strong provocation.” Id. (emphasis added).

Nothing the victim did or said constituted strong provocation. Second, even if the Defendant had

been acting under provocation initially, said provocation was in no way sufficient to justify him

getting out of his vehicle and shooting the victim, who lay helpless and wounded on the ground,

twice more. The trial court did not err by declining to award mitigation on this basis. 

Second, he argues that the trial court placed too much weight on the enhancement factor that

he used a firearm during the commission of the offense. He complains that the trial court should not

have enhanced his sentence by three years. He suggests one year as a more appropriate alternative.

We are unpersuaded. The Defendant concedes that the trial court did properlyfind that enhancement

factor (10) was applicable, and we conclude that the trial court did not err or abuse its discretion by

enhancing the Defendant’s sentence by three years based upon the weight given to this factor. This

issue is without merit.
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The judgment of the trial court is affirmed.

___________________________________ 

DAVID H. WELLES, JUDGE