### FILED July 1, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9801-CC-00009

Appellee, * BLOUNT COUNTY VS. * Hon. D. Kelly Thom as, Jr., Judge KENNETH MOATS, * (Voluntary Manslaughter; Reckless Endangerment) Appellant. *
For Appellant : For Appellee : George H. Waters John Knox Walkup Independent Contractor Attorney General & Repor ter 419 High Street Maryville, TN 37804 Todd R. Kelley Assistant Attorney Gener al 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Charles Carpenter Assistant District A

ttorney General 363 Court Street Maryville, TN 37804

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Kenneth Moat s, pled guilty to the voluntary manslaughter of his son, Gene Moats, and the Class E fe lony reckless endangerment of his granddaught er, Michelle Gribble.The state approved a plea agreement which prov

ided for concurrent three-y ear and one-year sentences respectively w

ith the trial court to det

ermine the manner of service. After an extensive sentencing hearing, the trial court ruled that the three-year sentence would be suspended after serv ice of ten months in the Blount County Jail. Immediate probation was gr anted on the one-year sentence. The sole issue on appeal is whether the tr ial court erred by r

efusing to grant immediate pr obation on the three-year term.

We affirm the judgment of the trial court.
On March 3, 1997, the defendant was at his home on 4013 Payne Hollow Road in Walland, Tennessee. The v ictim, Gene Moats, liv

ed next door in a trailer with his sister, Teresa Moats Gri bble, and her daughter, Mic helle Gribble. The defendant was eating dinner w hen his daughter, Ms. Gr ibble, telephoned to warn that the victi m "has gone psychotic and i s coming to kill y ou and Momma." When the defendant stepped onto his porch, he saw the v ictim armed with a handgun approaching the defendant's house. The victim continued adv ancing toward the residence, des pite the defendant's warning to stop. When the victim was about seventy to eight

y feet from his parents' home, he ai med his weapon at the defendant . The defend ant responded by firing a single shot from his sixteen ga uge shotgun, killing the victim. The defendant's granddaughter, Michelle Gribble, was in the line of fire but was uninj ured.3 Authorities found a functional .38 cal iber pistol loaded with five rounds of live ammunition next to t he victim's body. The de fendant remained at the scene of the shooting and cooperated w ith the police. An autopsy report showed that the victim had a blood alcohol content of .17. The defendant had a blood alcohol content of .10.

Teresa Moats Gribble, the defendant' s daughter, testified that she has not had any contact with her father since the shooting . She claimed that after the shooting, her father threatened h er life. She also related that her daughter, who was the victim of the r

eckless endangerment, has soug ht psychological cou nseling and, as a result of the incident, has not done as well in s chool since the shooting. Ms. Gribble, who adm itted telepho ning her fathe r on the night of the shooting, recalled that her father and her brother had a long histor y of hostility. She i nsisted, however, she did not phon e her father to offer any type of w arning and contended that the defendant had simply decided that "he was going to put an end to" the situation. Ms. Gribbl e specifically recall ed an instance where the v ictim had fired a weapon inside her trail er after having an arg ument with the defendant.

Mary Crystal Moats, the defendant's wife of thir ty-four years, testi

fied that after the victim (her son) left the army in the 1980 's, he began to abuse alcohol and drugs. The Moats' rel ationship with the v ictim deteriorated. Dur ing the ten years the victim l ived with his par ents, Ms. Moats was r

equired to call the author ities on several occasions bec ause the victim had pulled a gun on her or the defendant.

Ms. Moats recalled that the defendant had worked for TVA as a cr ane operator for several y

ears before a disabling car accident. After the accident, he started his own pa inting business. She recalled tha t on the day of th e shooting,4 their daughter had called warning that the vi ctim intended to kill them. M s. Moats testified that she was cal ling 911 when she heard the gun go off. She stated that her husband exp ressed regret every da y since the shooti ng.

Gary Spence, a longtime fr iend to the defendant, recalled that he was at the defendant's home one night w hen he observed an altercati on between the defendant and the victim. He remembered tha t each had aimed a gun at the other; but then the defendant stated he did not w ant to "kill his own s

on," lowered the weapon, and retreated. Spence also recalled that he had see n Teresa Gribble provide the victim V

alium.

The defendant testified that his relati onship with his son deter iorated after his son left the military . He acknowledged that he argued with his so n often and recalled previous oc casions where his son aimed a weapon at him. The defendant recalled that on the day of the incident, his daughter h ad called, warning that the victim intended to k ill him and his wife. The d efendant stated that he picked up his shotgun and went to the front porch. He testified that when he saw the victim aim his weapon, he fired a single shot: "when I [came] down that step, evidently when that foot rolled, I touched that trigger ... I don't know how I [pulled that trigger] when I made that step." He claimed that he was unaware of his granddaughter's presence in the area.

The defendant admitted tha t while he was in jail awaiting his release on bail, he "smoked part of a joint. " He also acknowledg e that he smoked marijuana "every now and then." The presentence report also indicates that a drug test conducted on the defendant after his relea se was positive for the presence of marijuana. The defendant expressed r egret over the death of his son, "if I could do5 it over, it'd be me." The tr anscript indicates the defendant w as overcome with emotion during por tions of his testim ony.

The presentence report establis hes that in the early 1970' s, the defendant was convicted of publi c intoxication, carr ying a weapon, and DU I. The defendant, who is in his mid-fifties, worked from the 19 60's through the mid-1990's as a crane operator for var ious companies. He was u nable to continue that type of work after a car wr

eck. While the defendant drinks alcohol, he does not consider himself a problem drinker. H e admitted to using marijuana "on and off" since 1975.

The trial court m ade the follo wing ruling: This is a tragic sit uation. ... Mr. Moats ex presses extreme remorse and I'm sur e sincerely feels as badl y as he says he does. ... I think that the seriousness of this offense invol

ving both of these vic

tims demands s

ome confinement. ... Rehabilitation is ... getting a pers on to the point where they w ill follow the law

and not violate the law or violate the orders of courts. And I can't think of very many things

that show or reflect more poorly on a person's likelihood of being rehabilitated than buying marijuana in jail and buy ing it after you're out

of jail on a $25,000 bond and have been ordered by a judge not to drink. ... [T]hat's a v

ery primar

y consider

ation in my decision. ... I'm going

to order a split confinement of ten months in the jail, the balance to be served on supervised probation.
When a challenge is made to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a "de nov o review ... with a presumption that the determinations mad e by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). See State v. Ashby , 823 S.W.2d 166 (Tenn. 1991). The Sentencing Commission C omments provide that the burden is on the defendant to show the impropriety of the sentence

.6 Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, -210.
Especially mitigat

ed or standard offenders convict ed of Class C, D, or E feloni es are, of course, p resumed to be favo rable can didates "for alt ernative sentencing options in the abs ence of evidence to the contrar y." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply here, probation must be automatically considered by the trial court if the sente nce imposed is eight years

or less. Tenn. Code Ann. § 40- 35-303(b). Among the factors applicable to probatio n consideration are the cir cumstances of the offense, the defendant's criminal recor d, social history, an d present condition, and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285 (Tenn. 1978).

A sentence of split confinement inv olves the grant of probati on after the partial service of a sentence. Tenn. Code Ann. § 40-35-306.It may include a jail or workhouse s

entence of up to one year with the probationary term to e xtend for any period thereafter up to the statutory maximum for the offense. Id.

The complaint in this case is that the trial court err

ed by failing to grant immediate probation. W e cannot agree. That the defendant use d marijuana while in jail and then out on bail s uggests that he is les s than an ideal candidate for rehabilitation. While remorsef ul about his son's death, he failed to take full7 responsibility for the shooting, contending that the gun discharged accid entally. In our view, the tri al court's ruling i s supported by the record

.

In Ashby , our supreme court encouraged the grant of considerable discretionary authori

ty to our trial cour

ts in matters such as these. 823 S.W.2d at 171. See State v. Moss , 727 S.W.2d 229, 235 (Tenn.1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). "'It is not the pol icy or purpose of this c ourt to place trial judg es in a judicial straight-

jacket in this or any

other area, and we are always reluctant to interfere with their tr

aditional discretionary

powers.'" Ashby , 823 S.W.2d at 171 (quoting Moten v. State , 559 S.W.2d 770, 77 3 (Tenn. 1977)).

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Norma McGee Ogle, Judge

______________________________ John K. Byers, Senior J udge