### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVILLE A ssi gne d on Br ie fs A pr il 20, 200 4

STA TE OF TEN NES SEE v. JON B REWB AKE R

Direc t Appeal from the Cr im inal Cou rt for Bradley County

No. M- 02-888 Car roll L. Ross, Jud ge

No. E2003-02706-CC A-R3- CD June 18, 2004

T h e D e f e n d a n t, Jo n B r e w b ak e r , p le d g u il ty to s e c o n d d e g r e e mu r d e r , a Cl a s s A f e lo n y . After

a h e ar in g , th e tria l c o u r t s e n te n c e d th e D e f e n d a n t to tw e n ty

- th r e e y e ar s in th e D e p artment of Correc tion. The sole issue on appe al is whether the sentenc e imposed by

the trial court is ex cessive. We a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., d el i v er ed the opinion of the court, in which J OE G. R I L EY and T H O M A S T. W O O D A LL , J J ., joined.
Richard Hug hes, Public Defe nder, Cleve land, Tenne ssee, f or the a ppellant, J on Br ewba

ker.

Pa ul G . Su mme rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , As sis ta nt A tto rn e y Ge ne ra l; Jer ry N. Es te s, Di stric t At torne y Ge ne ra l; a nd Jose ph V. Ho ff e r, As sis ta nt Di stric t At torne y Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

At the guilty plea hearing
, the assis tant district attorney g ener al g ave the following rec itation of the re le va nt f

a c ts, wh ic h w e re g le a ne d f ro m st a te me nts the De fe nd a nt ma de to the po lic e . E arl y on the morning of Oc tober 17, 2002, the Defe ndant m et t he victim , J onathan Shanks, by way of the internet. The y ag ree d to me et at the Charleston Boa t Dock, which the y

did. They

left the victim’s

car parke d at the boat doc k, and they then went to the Def

endant’ s residenc e. The re the Def endant perf ormed oral sex on t he victim. After the sexual encounter , the victim disclosed to the Def endant that he suffere d from genital warts. The De fenda nt beca me “upse t,” and they beg an to ar g ue. The

arg ume nt b e c a me ph y sic a l, with th e vic tim bit ing the De fe nd a nt, the De fe nd a nt h itt ing the vic tim
, and both of them wr estling with eac h other. Eve ntually the victim’s head “ hit the window,” bre aking it, and his head beg an to bleed. At this point the fight stopped. The Defenda nt ag ree d to take the victim back to his car at the boat doc k. When they arrived, the victim took the Def endant’ s pag er-2-

and told him that he was g oing to r eport him to the police a nd acc use him of rape

. I n his statement to the po lic e , th e De fe nd a nt s a id tha t he wa s n ot “ ou t” abo ut [h is] s e xua l orie ntatio n; the re fo re , th is threa t “truly

scar ed [him] ” and he “just snapped.” As the victim walked a way from the De fenda nt’s

car , the Def

endant g ot his revolve r and shot the victim in the back. The victim fell down, a nd the Def endan t s h o t h i m twice more : once in the c hest and onc e in the fa ce. A ccor ding to the De fe nd a nt’ s state me nt, he kil le d the vic tim to pr e ve nt his fa mil y a ndfrie nd s f

ro m di sc ov e ri ng his homosex ual lifesty le.

At the s entenc ing hearing, Dr. R onald Tool sie testified t hat he perf ormed the autopsy

on the bo dy of the vic tim . H e fo un d th re e g un sh ot w ou nd s on the bo dy , one in the he a d, on e in the c he st, and one in the ba ck. The g unshot w ound to the chest would ha ve itself bee n fata l because it passed throug h the hea

rt and lung s. L ikewise, the g unshot wound to the back w ould alone have been f atal b ec au s e i tp as s ed t h ro u gh t h e s p i n al co rd an d a l u n g, wh i ch ca u s ed s i gn i fi ca n tb l ee d i n g.
The victim’s mother, Susan Marie Shanks, testified that the victim was openly g ay . At the time of his murder, he was a biology major at Chattanoog a State Te chnica l Comm unity College and

wo rk e d a t L on g ho rnRe staur a nt. Ms. Sha nk s te sti fi e d tha t the vic tim ha d g e nit a l wart s at the tim e of hi s death. The victim ’s fa ther, Char les Victor Shanks, a lso testified about the prof ound impact that th e vic tim ’s de a th h a d o n a ll the pe op le that lo ve d h im.

The De fenda nt’s older sister, Car rie Andr eu, t es t i fi ed that she a nd the Def endant we re phy sically

and mentally

abused by

their stepfather

. S h e al s o testified that their mother ha d been marrie d four times and had moved sever al times w hile the Def endant was g rowing up. Finally , she stated that, appr ox imately two y ear s befor e the murde r, their mother had run of

f with the De fenda nt’s bio log ic a l f

a the r, wh ic h w a s v e ry

dif fi c ult fo r the De fe nd a nt.

L y nne Eaks, the Def

endant’ s aunt, testified t hat the De fenda nt had worke d in law enfor ceme nt and had carried a g un in his car for “protec tion.” She also testified t hat he ha d a history of b e in g u n ab le to c o n tr o l h is te mp e r

. F in a ll y , s h e e xp la in e d th a t th e D e f e n d a n t’ s mo ther ne ver nurtured him, and this left him fe eling abandone d.

Acc ording to the prese ntence report, at t he ti me of sentenc ing, the Def endant was thirty -three y ear s old and single . Although he dropped out of hig h school, he re ceive d his G.E.D. in 1989. He also completed se ver al hours of E.M.T. a nd law enf orce ment training at vocational schools. He described his mental and phy sical health as g ood, but he was taking sever al pre scription drug s for “ner ves,” hig h blood pressure , and “stomach problems.” The prese ntence report states that “[i] n the la st d e c a de , th e De fe nd a nt h a s h a d a t le a st 1 7 jo bs . Mos t of th ese job s e nd e d a ft e r a fe w m on ths

. The long est period of

employ m en t was with University of Tenne ssee - Chattanoog a’s police department.” He worke d at t hat j ob for almost two y ear s. Furthermore
, the report states that “[t] here

wer e discre pancie s in dates, wag e and r ea s o n for termination of employ ment that Mr. B rew baker g a v e v e r s u s w h a tt h e p a s te m p l o ye r s g a v e

. ” T h e D e f e n d a n th a s n o p r i o r

c r i m i n a l h i s t o r y.-3-

A tt h e c o n c l u s i o n o f

t h e s e n t e n c i n g h e ar i n g , t h e t r i a l c o u r ti mp o s e d a s e n t e n c e o f

t w e n t ythree y ear s based upon the e x istence of one enha nceme nt fac tor. The De fenda nt asser t s that the sentenc e is excessive.

Be fore a trial court imposes a sentenc e upon a convic ted criminal defenda nt, it mus t consider (a) the evidenc e adduc ed at the trial and the se ntencing hearing; ( b) the presentenc e report; (c) the principles of se ntencing and ar g uments as to sentenc ing a lternatives; (d) the nature and char acte ristics of the criminal conduct involved; (e) evidenc e and inf ormation offe red by

the parties

on the enhanceme nt and mitigating fac tors set forth in Tenne ssee Code A nnotated sec tions 40-35- 113 and 40-35- 114; and (f) any statement the de fenda nt wi s h es t o m ak e in the def endant’ s own behalf about sentenc ing. See Tenn. Code Ann. § 40-35-210( b); State v. I mfeld, 70 S.W.3d 698, 704 (T e nn . 2 00 2) . T o f

a c ili ta te app e lla te re vie w, the tr ia l c ou rt is r equ ir ed to pl a c e on the re c or d it s
rea sons for imposing the specific sentenc e, including the identifica tion of the m i t i g ating and enhanc ement fa ctors found, the specific fac ts supporting e ach e nhance ment fa ct o r fo und, and the

me tho d b y

wh ic h th e mit ig a tin g a nde nh a nc e me nt f a c tor s h a ve be e n e val uat ed andba la nc e d in determining the se ntence . See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a challeng e to the sente nce imposed, this court has a duty to conduct a de novo revie w of the sentenc e with a presumption that the determinations made by the trial court a re c orre ct. See Tenn. Code Ann. § 40-35- 401(d). How ever , this presumption “is conditioned upon the aff irmative sh ow ing in the re c or d th a t th e tr ia l c ou rt c on sid e re d th e se nte nc ing pr inc ipl e s a nda ll r e le va nt f a c ts and cir cumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . I f our r eview ref lects that the trial court followed the statutory sentenc ing pr ocedur e, that the c ourt imposed a lawf ul sentence afte r having g iven due c onsideration and pr oper w eig ht to the fac tors and princ iples set o u t under the sentenc ing la w, and that the tr ial court’s findings of fac t are adequately supported bythe re cord, then the pre s u m p t i o n i s appli cable , and we may not modify

the sentenc e eve n if we w ould have pr e fe rr e d a

dif fe re nt r e su lt. Se e Sta te v. Pik e , 9 78 S.W. 2d90 4 app

. a t 92 6- 27 (T e nn . 1 99 8) . We wi ll uphold the sentenc e i m p o s ed b y t h e trial c ourt if (1) the sentenc e complies with the purpose s and principles of the 1989 Sentencing Act, and ( 2) t he trial c ourt’s finding s are adequately supported by the re c or d. S ee S tat e v. Arne tt, 49 S.W. 3d25 0, 25 7 ( Te nn . 2 00 1) . T he bu rd e n o f s ho wi ng that a sentenc e is imp r o p e r

is u p o n th e ap p e a li n g p ar ty

. Se e T e n n

. Co d e A n n

. § 4 0

- 3 5

- 4 0 1 Se n te n c ing Commi ssion Com ments; Arnett, 49 S.W.3d at 257.

“Second de g ree murder is a Class A felony .” Te nn. Code An n

. § 3 9 -1 3-210(b) . The trial court de termined the Def

endant to be a Rang e I offe nder, see id. § 40-35-105( a), ( b), and, a s such, the Def endant was subject t o a potential sentenc e of fiftee n to twenty -five y ear s. See id. § 40-35- 112(a) (1). The presumptive sentence for a Class A felony is the m idpoint of the ra ng e, see id. § 40- 35-210(c ), and ma y

be enha nced or reduc ed based upon the exis tence of applica ble enha nceme nt and mitigating fac tors. See id. § 40-35-210( d), (e ).

I n this case, the tr ial court e nhance d the Defenda nt’s sentenc e fr om the presumptive sente nce of twenty y ear s to twenty -three y ear s based upon the e nhance ment fac tor that the De fenda nt“[T ]h e trial c o u rt m a y lo o k b e h ind a p le a a g re e m e n t an d c o n sid e r th e tru e na tur e o f t h e o ff e n se c o m m itt e d .” 1
St at e v

. La t oy a Ande r s on , N o. 02C 01- 9707- CR

- 00251, 1998 W L 599527, at * 3 ( T en n

. Cr i m. App. , J ac k s on , Se pt

. 11, 1 9 9 8 ) (ci t i ng Stat e v. H o l l i ngswort h, 6 4 7 S.W

. 2 d 9 3 7 , 9 3 9 (T enn. 19 8 3 )) ; Stat e v. B i ggs, 76 9 S.W

. 2 d 50 6 , 50 7 (T enn. C ri m

. A p p

. 19 8 8 ).

-4- employ ed a f

irea rm during the commission of the offe nse. See id. § 40-35- 114(10). The court found

no mit ig a tin g fa c tor s.

The De fenda nt’s challeng e to his sentence is twofold. First, he a ss er t s t h at the trial court
err ed by failing to f

ind a s a mitigating fac tor that he “a cted unde r strong provocation.” I d. § 40-35- 113(2). He arg ues that the victim first provoke d him when he disclosed t hat he suffere d from g enital

wa rt s, a ft e r the De fe nd a nt ha d pe rf or me d fe llatio on him

. Th e De fe nd a nt c on te nd s th a t he wa s a g a in pr ov ok e d w he n th e vic tim too k his pager, acc us e d h im o f r ape , a ndtol d h im tha t he wa s g oin g to report him to t he police.

Th e tr ia l c ou rt

e xpla ine d it s d e c isi on to n ot a pp ly mit ig a tin g fa c tor

(2 ) a s f oll ow s: The State re duced this from first deg ree , and ce rtainly , whateve r bene fit he g ets for any provocation, I think it comes in by that reduc tion. And I don’t think the proof 1 here shows anything that would be subject to f inding a mitiga tion factor ba sed on any provocation here. A nd I base that specific ally on the fac t that w e had in effe ct two
se pa rate a ssa ult s h e re . Unf

ortun a te ly , th e se c on d o ne re su lte d in e vid e ntl y the de a th of the victim. I t’s clea

r he took the vic tim back from his re sidence in Athens bac k to the boat dock in Cha

rleston, from what I

see in the pr esente nce r eport he re. A nd I don’t think anything that ha ppened the re w ould serve a s any kind of provocation. I t’s clea r at that point they

wer e proba

bly upset at each other, and they may have ha d

rea son to be upset with e ach other for what eac h other had said or done or w hateve r, bu t th e y ha d n o r e a so n to sh oo t on e a no the r, e ith e r on e of the m, f or that matte r. So I don’t find that subpara g raph ( 2) has be en shown a s an ade quate pr ovocation.

We c on c lud e that th e tr ia l c ou rt did no t e rr by de c lin ing to app ly thi s f a c tor . F ir st, fo r the fa c tor to apply , it must be shown that the de fenda nt acted “ under strong provocation.” I d. (empha sis added). Nothing the victim did or said constituted strong provocation. Second, even if the De fenda nt had be e n a c tin g un de r prov ocat io n initia lly , s a id p ro vo c a tio n w a s in no way su ff ic ie nt t o ju sti fy

him g etting out of

his vehicle a nd shooting the victim, who lay helpless and wounde d on the g round, twice more . The trial c ourt did not err by declining to awar d mitigation on this basis.

Second, he a

rg ues that the trial court place d too much weig ht on the enhanc ement fa ctor that he used a firea rm during the commission of the offe nse. He complains that the trial court should not have e nhance d his sentence by three y ear s. He sug g ests one y ear as a more appropriate alternative. We are unpersua ded. The Def endant c oncede s that the trial court did pr operly find that enha nceme nt fac tor (10) w as applica

ble, and we conclude that the trial court did not err or abuse its discretion by

e nh a nc ing the De fe nd a nt’ s se nte nc e by thr e e y e ars ba se d u po n th e we ig ht g ive n to thi s f a c tor . T his iss ue is w ith ou t me ri t.-5-

The judg ment of the trial c ourt is affirmed.

___________________________________ DAVID H. WEL LES, J UDGE