### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 20, 2002 STATE O F TENNESSEE v. LYNN L. DA VIS Direct Appeal from the Circuit Court for Hickman County No. 02-5010CR-II Russ Heldman, Judge

No. M2002-01061-CCA-R3-CD - F iled May 13, 2003
The defendant, Ly

nn L. Dav is , p le d g ui lt y to robber y, a Class C fel ony , and wassentenc ed as a Range II , multiple offender to eight years in the Department of Correct ion. I n his appe al, he argues that the tr ial co urt er red in faili ng to ap ply miti gating f actors and in denying al ternat ive se ntenc ing. Following our review, we aff irm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W EL L ES and J OE G. R ILEY , JJ., joined.
John H. Henderson, District Public Defender; and Vane ssa Pettigrew Bry an, A ssistant Pub lic Defend er, for the appe llant, L ynn L. Da vis.
Paul G. Summers , Attorney Gene ral and Reporter; Christine M. Lapps, Assistant Attorney Genera l; Ronald L. Davis, District Attorne y G eneral; and Michael J. Fahey , II , Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
FACTS Wearing a green tre

nch coat, gloves, a “Yogi B ear” mask, and armed with a loaded pi stol, the defenda

nt robbed the East F

ood Cente

r inHickman County on November 2, 2001. He gave the store clerks a

pillowcase to put the money in. Witnesses who saw the defendant leave the store g ave a description to the Hickman County Sheriff ’s Department of thedefendant and thevehicle he was drivi ng. Less than half a mile from the robbe ry, an off icer spotted at Kelly ’s Corner Café a car matching the desc

ription of that of the

defenda nt’s. Officers found the defendant in the ca fé eating a shrimp dinner and, after

advising him o f his cons titutional rights, asked if

they could sea

rch his vehicle, to which he agreed. Inside the trunk, officer s found a loaded Ruger .357 Magnum handg un, a green trench c oat, glo ves, a

Yogi B ear mas k, and a p illowcas e containing a la rge am ount of ca sh and checks.-2-

At the sente

ncing hearing , Detec tive Jimmy Barne tt of the H

ickma n C ou nt y Sheriff’s Department

testified that

the defendant gave a wr

itten statemen

t which sta

ted, “The reaso n I did

this is because

I didn ’t have a

ny m oney or food. I

had a Mar

ine Corps o vercoa

t, a .357 Ma

gnum pist ol, a Yogi Bear

mask and a wool ski mask. End of statement.” Detective Barnett also testified that the defendant had taken between $1900 and $2000 f rom the store.
Several witnesses testified on the defendant ’s be ha lf at th e s en te nc in g h ea ri ng . C ar ol yn Morris, the defendant’s second cousin, testified that he was an only child and his parents had been in their mid-forties when he was born. The defendant’s mother was “overpr otective in a

way that wasn’t normal.” After he gradua ted from high school, the defendant worked in a fire tower asa lookoutfor several years but was laid off when his position

was elimin ated. Hisfather died in 1985, leaving the defendant his house and five acres of land, as well as a sum of money. Other than doing occasional odd jobs, th

e defen dant had not worke d for the past four teen y ears. His fa mily was unaware of his dire circumstances bec ause the defendant was the type of per son, according to Ms. Morris, who would not ask anyone for anything a

nd had been raised not to “talk about [his] needs.” She said that the defendant had never been in trouble before and that his “situation is unique . . . as far as the criminal world or the lega l world.”
The def endan t’s fi rst co usin , Ray Overb y, testi fied t hat th e defen dant h ad been “just a big, ol’ kid all his life. He couldn’t do nothing on his own.” He said the defenda nt h ad a “real good” reputation in the community and was not a n aggressive person.
HoraceLitton, a neighbor and fr iend of the defendant, testified that the defendant

had worked at a feed st or e, an d t he de fe nd an t’ s f at he r a lw ays went with him. The defendant occasionally helped Litton’s family haul hay , but the defendant’s father also helped to justify his son getting paid. He said that the defendant was “absolutely not” a violent person and that heha d been unaware of the defendant’s financi al situati on. Li tton did not

b el ieve that the defendant “had been taug ht to be productive and survive in the present world.”
The fifty-y

ear-old defendant testified at the hearing that he had depleted the f unds his father had left him about two or

three weeks before

he committed the robbery . He had not eaten for three da ys and did no t know wha t else to do

to get f ood, so he robbed th e store to get money. Questioned about not having a job, the defendant said he had not applied for any “public”jobs and that his la st job had been for a farmer two y ears earl ier, but he had not been able to find a job since then. He testified that he did not know about g overnme

nt assista nce and didnot think to ask the church for help. When asked about the robbery, the defendant asserted

that he di d not take

the gun out of his pocket. Asked as to why he even took a pi stol in t he store at all, instead of just pretending to be armed, the defendant

responded, “Yeah, that’s what I should of [sic] done. I shouldn’t of [sic] done none of it.”
ANALYSIS-3-

The defendant argues his eig ht-year sentence is excessive and that the trial court erred by failing to apply c ertain mitigating factors and in deny ing probation or alternative sentencing

. I. Standard of Review
When an accu sed challengesthe leng th and man

ner of se rvice of a sentence, it is the duty

of this court to conduct a de novo review on the record with a presumption that "the d eterminations made by the court fr

om which t he appea l is taken are correct." Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the rec ord that the trial court considered

the sentencing principles and all relevant facts and circumst ances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the leg al conclusions reached by the trial court in sentencing the accused or to the determinations made by the trial c ourt which are predicated

up on u ncontroverted facts. State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith , 891 S.W.2d 9 22, 929 (Tenn. Crim. App. 1994 ); Statev. Bonestel , 871 S.W.2d 163, 166 (Ten

n. Crim. Ap

p. 1993). Howeve

r, this court is req

uired to give great weig

ht to the trial court 's determination of controverted facts as the trial cour t's determination of these facts i s predi cated u pon t he wit nesse s' deme anor an d appe arance w hen te stif ying.
In conducting a de novo r eview of a sentence, this court must consider (a) any evidence received at th e trial and/or sentencing hearing , (b) the presentence report, (c ) the principles of senten c ing, (d) the arguments of counsel relative to se ntencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g ) any statements made by the accused in

his own behalf, and (h) the accused' s potential or lack of potential for rehabilitation or treatme nt. Tenn. Code Ann. §§ 40-35- 103, -210 ; State v. Sc ott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987).
The party challenging the sentences imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentenci n g Commission Cmts.; Ashby , 823 S.W.2d at 169. II. Length of Sentence
T he defenda

nt pled g uilty to robber y, a Class C fel ony , with the p lea ag reemen t provid in g that he would be s entenc ed as a Range I I, multiple offender instead of a Range I off

ender, the sentence range

for which is a

minimum of six years and a maximum of ten y ears. Tenn. Code Ann. § 40-35-112(b)(3).
In determining the appropriate sentence for a felony

conviction, the sentencing court, if there are enhancement and

mitigating factor s for a Cla ss C felony , must star t at the min

imum sente

nce in the range, enhance the se ntence within the range as appropr iate for the enha

ncement fac tors, then reduce the sentence within the range as appr opriate for the mitigating factors. See Tenn. Code Ann. § 40-35-210(e) (Supp. 1999). There is no mathematical formula of evaluating the enhancement factors to calculate the a

ppropria te sente nce. Se e gene

rally Stat e v. Boggs , 932 S.W.2d 467, 475-4-

( Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is left to the tria l court 's discreti o n so l ong as the court complies with the purposes and principles of the 1989 Sentencing Ac t a nd it s f

in di ng s a re ad eq ua te ly s up po rt ed by the reco rd.” Id. at 475-76 (citations omitted).
As a Range

II , multiple o ffende

r, the se ntencing range for the d efenda nt was six to te

n ye ars. The trial court explained why a n eight-y ear sentence was being imposed:
In deliberating, based upon the evidence presented

today and, also, the testimony and demeanor of the witnesses and the testimony and demeano

r [of] y ourself

, Mr. Davis, the court finds that there are enhancement

factors that are

su st ai ne d b y th e p ro of

ov er wh el mi ng ly. And those enhancement

factors are thus: One, the offense involved more than one victim; two, the defen dan t possessed or employed a firearm during t he commiss ion of the offense, a firearm or other deadly weapon, but a fir

e arm, a deadly

weapon during the commission of the offense; three, the cour t fi nds that the defendant

. . . had no he sitation a

bout commit

ting a c rime whe n the risk to human life was high.
And the court finds four enhancement factors: This cr ime was committed under ci

rcumstan ces unde r which th e potenti al for bo dily injur y to a victim w as gre at, and in this case it was to tw o victims. Therefore, theoretically, the c ourt could find five enhancement factor s, but, basically, the cour tfinds four

enhancement factors. And, therefore, if it ended there the court would find that this man, Mr. Da vi s, should be sentenced to ten y ears incarceration with the Tenness ee Depa

rtment of Correct ions.
The court has considered all the evidence and the next step is giving due cons i dera tion to any statutory and non-statutory but acceptab le mitigating factors in this case, and able counsel has offered somemitigating factors for the court’s consideration. This is how the court looks atthose proposed mitigating factors: The court re jects the mitigating fa ct or th at Mr . D av is wa s m ot iv at ed by a desire to provide necessities for himself because Mr. Dav i s voluntarily and intentiona

lly placed himself in that situation. It was not a situation that was imposed upon him by circumstanc es beyond his contr ol, so that mitigating factor, with a ll due re spect . . . is rejected by the evidence and by

this court’s understanding of that factor.

. . . .-5- The court also finds that

Mr. Da vis d id ack nowle dge his guilt and has shown a willingness to as sume res ponsibility for his c onduct, which is a second mitigating factor. However, the court does not find that Mr . Davis is s ufficie

ntly repenta nt and con

trite. Mr . Davis’ attitude on the witness stand was the attitude of an “ aw-shuc ks, got caugh t” attitude more than deep repentance, and had to be led into the answer ing of those quest

ions by counsel.
The court was also discouraged when the general was making his argument and was pointing out that Mr. Dav is could’ve done other things if he needed

to eat that were even against the law othe r than what he did, and during that argument Mr. Davis was ove r here grinning about all that, and I watched tha t and I was bothere d by

that. And I tak e that into consideration because the court must consider the credibi lity

of the defendant

in making

these de terminat ions. Therefore, the court, whenall is said and done, finds that the eviden ce supports only two mitigating f actors and, therefore, the sentenc e for thisman is eig ht y ears. In setting the defe

ndant’s s entence

at eigh t ye ars, the trial court applied enhancement factors (3), the offense involved more than one victim; (9), the defendant possessed a firear m or other deadly weapon during the commission of the offense; (10), the defe ndant had no hesitation about committing a crime when the risk to human life was high; and (16), the crime was committed under circumstances under which the potential for bodily injury

to a victim was great. Tenn. Code Ann. § 40-35-114(3), (9), (10), (16) (1997).
On appeal, the defendant does not dispute the application of these e nhancement factors but argues that t he tri al cou rt erre d by not ap plying, as addit ional miti gating f actors , the f ollo wing: “[t]he defendant has the capacity to adjust to a law abiding citizen in that he has no criminal record and Defendant has never been tested on pr obation or other

alternative sentencing”; “[t]he defendant has shown re

morse for his criminal conduct”; and thedefendant’s crime was motivated by a desire to provide

necessities for h

imself. We

will consi der this a

rgumen t.
In its findings, the trial court rejected t he defe ndant’s r equeste d mitigat

ing factor that hi s actions were motivated by a desire to provide necessities for himself. The court stated:
The court rejects the mitigating factor tha t Mr. Davis was motivated by a desire to provide

necessities for h

imself be cause Mr . Davis voluntar ily and intentionally placed himself in that situation. It was nota situation that was imposed upon him by circumstance s beyond his control, so that mitigating factor, wi th all due respec t . . . is-6- rejected by t he evide nce and by t his court ’s u n derstanding of that factor.
We cannot conclude that the trial court erred in re fusing to app ly th

is mi tigating

factor . We note that, according to the affidavit of indigency executed by the def

endant, he owned a home, which he valuedat $34,000, and a 1968 Chevelle Malibu valued at $1000. According ly, at the time o f the offense, the defendant had assets of approximately $35,000 but, apparently, no c ash. However, even if the defendant

did not hav e these a ssets, we still could

not concl ude, bas ed upon the factsof this case, that the defendant committed the crime to provide necessities for himself. In Stat e v. Jaun Jerome Brya

nt , No. 01C01-9805-CR-00217, 1999 WL 308649, at *3 (Tenn. Crim. App. May 18, 1999) , this cour

t determined that t

he defe ndant wa s not motiva

ted to commit

the crime by a

desire to provide necessities for his family because he committed

the crimes before his son was born. Also, the defendant in Brya

nt had the a bility to obtain a

job, but chose inst ead to sell d rugs and stolen cars while his mother financially suppor ted his child. Likewise, in State v. Matthew DeLoss L arsen , No. M2000-01675-CCA-R3-CD, 2001 WL 1218578, a

t *7 (Tenn . Crim. App. Oct. 12, 2001), this court concluded

that the d efenda nts did not c ommit the c

rimeto provide for their needs as evidenced by the fact that they

purchased beer and ciga

rettes with the stolen money.
Si mi la rl y, we cann ot con clude tha t the def endant’ s crime w as motivat ed by a desire to provide for his necessitie s. Even if the sh rim p dinner, the defendant’s first purchase af ter the ro bb er y, were classified as a “nece ssity,” he took in the robbery not just the price of the dinner but between $1900 and $2000. In f act, it would appear that

he could have sold his .357 Magnum and his vehicle, rather than use them to commit a robbery . Accordingly , we conclude that the trial court appropriately

declined to apply this factor. The defendant asserts that the trial court erred in not apply ing as a catch-all mitigating factor that he showed remorse for his criminal conduct. See Tenn. Code Ann. § 40-35-113(13 ) (1997)

. During the sentencing hearing, whe n asked if he was “sorry

for this,” the defendant responded that he was “very

sorry” and would not do it again. However, the trial court obse rved that the defendant did not app ear to be

remorse ful:
The court was also discouraged when the general was making his argume

nt and wa s pointin g ou t that Mr. Davis could’ve done other thin gs if he needed to eat that were even ag ainst the law other than what he did, and during that argument Mr. Davis was ove r here grinning about all that, and I watched that

and I was bothe

red by that. And I take tha t into consideration because the court must consider the credibi lity

of the defendant

in making

these de terminat ions.
Based upon the te stimony

and the tr

ial cour t’s findings as to t

he defe ndant’ s behavior du ring the sentencing he aring, we cannot conclude that the tria l court erred in not apply ing as a mitigating factor that the defendant was remorse ful for his conduct.-7-

The defendant also argues on appe al that the trial court erred in not apply ing as a catch -all mitigating factor

that he “has the c apacity

to adjust to a law abiding citizen in that he has no criminal record and Defendant has never been tested on probation or other alterative sentencing.” The trial court did not directly addre ss this claim, but the record reflects that the defendant had been previous ly c onvicted

in 1986 of DUI, resulting in his pay ment of a fine and costs, as well as being placed on probation for eleven months and twent y-nine day s. Even if the trial court erred in not address ing this mitigating factor, the enhancement fa ctors were properly

applied and would have outweighed the two mitigating factor s applied by the trial cour t as well as this factor, if applied.
Accordi ngl y, we conc lude that the rec ord suppo

rts enha ncing th e defendant’s se

ntence t o eight ye ars from the presumptive minimum of six years.
III. Denia

l of Alter native Sentencing
The trial court explained why alter native sentencing was being denied and the defendant was to be incarcerated for his sentence :

Now, the question is whether Mr. Davis, under the s tatute, is presumedto be a fa

vorable candida te for a lternati ve sen tenci ng. According to Tennessee law, this presumptio n can be rebutted by several things, o ne of whi ch is conf in ement necessa

ry to avoid depreciating the seriousness of the offense, or is confinement particularly

suited to provide an effective deterrenc e to others likely to commit sim

ilar off enses. Based upon the te stimony

in this case, the court finds that this is a very se

rious offense. The way

it was done is very

serious to this court and certainly

to this community, and that confinemen t i s necessary to a v oid depreciating the seriousness of this offense. Furthermore, the cour

t finds tha t confine ment is particularly suited to provide an effective d eterre nce to others likely to commit similar offense s. The way that Mr. D avis went about his eff orts to obtain a way to allegedly

feed him self

was an e xtreme method and, therefore, the court finds that that needs to be deterred i n this community and, therefore, the pres umption ha s b een eff ectively rebutte d, in this court’sjudgmen

t. Therefore, the court deni es t he request for probation and sentences Mr. Davisto eight ye ars in the

Tenness ee De partment of Corrections with no fine[.]-8-

The defendant argues that he should have been placed on probat

ion or gra nted alternative sente ncing. Since the defendant was sentenced as a Range II , multiple offender, he was eligible for probation but was not entitled to a presumption that he was a favorable candidate for alternative sente ncing. Tenn. Code Ann. §§ 40-35-303(a), -102(6) (1997). The burde n was on the defendant to show that he was a suitable candida te for pr obation. Id. § 40-35-3 03(b); State v. Goode , 956 S.W.2d 521, 527 ( Tenn. Crim. App. 199 7); Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). To meet this burden, a defendant “must demonstrate that probation will ‘subserve the ends of justice and the best interest of both the public and the defendant.’” Statev. Bingham , 910 S.W.2d 448, 456 (T enn. C rim. A pp. 19 95) (q uoti ng State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).
There is no bright line rule for determining when a defendant should be granted probation. Bingham , 9 10 S .W.2d at 456 . Every sentenc ing dec ision nec essarily require s a case -by -case analy sis. Id. Factors to be considered include the circ umstances surrou nding the offense, the d efendant’s criminal record, the defendant’s social history and present condition, the need for deterrence, and the best interest of the defendant and the public. Goode , 956 S.W.2d at 527

. Another appropriate factor

for a tri al court

to conside

r in dete rmining whether to gran t probatio n is a defenda

nt’s cre dibility

or lack t

hereof , as this re

flects on the defe

ndant’s p otential fo r rehabilitation. Id.
In support of his claim that he should have been granted a lternative sentencing, the

defendant argues that his cr

ime was not “viole

nt, horri fying, sho cking, repreh ensible, offensi ve, or oth

erwise o f such an excessive or exaggerated degree that the nature of the of fense outweighs all fa

ctor s favoring probation.”
In determining that the defendant should be confined ra ther than granted alternative sente ncing, the trial court was guided by Tennessee Code Annotated section 40-35-103(1), which provides that the trial court may order confinement when: (A) Confinement

is neces sary

to protect soci ety by restrai ning a defenda nt who hasa long h

istory of crimin al conduct; (B) Confinement

is neces sary

to avoid de

precia ting the seriousness of the offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have freq uently or recently been applied unsuccessfully to the defendant[.] Applying this section, the trial court determined that confinement was “ne cessar

y to avoid depreciating the seriousness of the offense,” and “to provide an effective de

terrence to others lik

ely to com mi t s im il ar o ffe nse s.” In State v. Hooper , 29 S.W.3d 1 (Tenn. 2000), our supreme court set-9-

outa l ist of none xclusive considerations to guide the courts of this state in ascertaining whe ther incarceration was appropriate f or purposes of deterrence: (1) Whether other incidents of the charg ed of fense a re incr easing ly present in the community, jurisdiction, or in the state as a whole. (2) Whether the de fend ant’s cr ime was th

e result o f intentio nal, knowi ng, or re ck le ss co nd uc t o r w as ot he rw is e m ot iv at ed by a desire to profit or gain from the criminal behavior. (3 ) Whether the defendant’s crime and conviction have r e ceive d substantial publicity bey

ond that normally expected in the ty pical case. (4) Whether the defendant was a member of a cr iminal enterprise, or substantia lly encouraged or assisted

others in achieving the criminal objective. (5) Whether the defendant has previously engaged in criminal conduct of the same type

as the offense in question, irrespective of whether such conduct resulted in previous arre sts or convictions.
Id. at 10-12.
In this matter, there being no proof a s to the frequency of robberies in the area or the amount of publicity this matter received, the only deterr ence cons id eration which would appear to be applica ble is that the

defenda nt’s crim e was an intentiona

l act whic h netted h im an amount of cas h far in excess of that needed to provide necessities, which he argue s w as the motivator for the ro bb er y. Howeve

r, the tri al court

also grounded its determination that inca rcera tion was a ppropria te upon the finding that it was necessary to avoid depreciating t he seriousness of the offense. The undisputed facts being that the defendant took a loaded pistol into a convenience store, wi t h two clerks behind the counter, robbed them of $2000, and the trial court finding that the defendant was unremorseful at the sentencing hearing, w e conclude that the record justifies the determination that incarceration was appropriate.
CONCLUSION
Based upon the foregoingauthorities and rea soning, we affi rm the judg

ment of the

trial cou rt.

____________________________________ ALAN E. GL

ENN, JUDGE