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

Briefs A ugust 20, 2002

STATE OF TENNESSEE v. TONY DEAN MORGAN

Direct Appeal from the Circuit Court for Blount County No. C-13156-57 D. Kelly Thomas, Jr., Judge

No. E2001-02924-CCA-R3-CD October 23, 2002

The Defend ant pled “ no contes t” to ag grava ted assa ult and as sault. Pursuant t o the plea agree ment, the Defendant received concur rent sentences of three

years f or the aggravate d assault conviction and eleven months and twenty-nine day s for the assault conviction, for an ef f ective sentence of three ye ars. The manner of service of the sente nce was to be d eterm ined b y the tria l cour t. Fol lowi ng a sentencing hearing, the trial court ordered tha t the Defendant serve his entire sentenc e in the Tennessee Department of Correction. The Defendant now appeals, a rguing that the trial court erre d by ordering him to serve

his sentence in confinement. Findingno error, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J AMES C URWOOD W ITT , J R ., J., joined.

George H. Waters
, Assistant Public Defender, Mary ville, Tennessee, for

the appellant, Tony De an Morgan.

Paul G. Summers
, Attorney Gene ral and Reporter; Braden

H. Bouc ek, Assist

ant Attor ney Genera l; Michael L. Flynn, District Attorney General; Kirk E. Andrews and Edward P. Bailey, Jr., Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION

I. FACTS

The following

facts we re adduc ed at the

Defend ant’s se

ntencin g hea

ring: Of ficer Ra ndall Ailey of the Blount County Sheriff’ s Department testified that he an d Officer Angie Condee responded

to a 911 call concerning a fig ht which involved knives at 627 Reservoir Road in Blount Co un ty. Ailey rec alled that when he arrived at the scene, the Defendant, who wa s “obviousl y intoxicated,” was standing in the driveway flagging him down. Ailey testified that he spoke with the Defendant and ascertained that he ha d been fighting with his cousin. Acco rdi ng to Ailey, the-2-

Defendant

stated that the fight had occurred during a card game in which he said that his cousin had been cheatin g. Aile

y te st ified that the D efenda nt told him th at he and

his cousin

got into a

“fist fight,” but that no knives were involved. Ailey reported that it was obvious that the Defendant had been in a fight because his lip was bleeding and because he

had bruises on his face. Ailey stated that when he arrived at the scene, the Def endant’s cousin was standing around the corner of a nearby trailer. Ailey a

ttempted to find the cousin, but was unable to locate him.
Officer Ailey

testified that he then entered the Defendant’s trailer and noticed a loaded .22 rifle laying beside the door. Ailey

reported that he unloaded the rifle and laid it on the couch. He testified that the Defendant, who was “very irate,” told him that he was going to use the

gun to kill his cousin. Ailey rec alled that Officer Condee arrived immediately after he unloaded the rifle. Ailey testified that he c ontinued t o talk to the

Defend ant w hile Co ndee searched for the Def endant’s cousin. Ailey

stated tha t Condee f

ound the c ousin “pa ssed out” in a nearby field. Ailey testified that he and Conde e were

prepar ing to put

th e cousin int o the police vehicle when Officer Yoa kum arrived.
Ailey testified that as they we

re passing by

the Defendant’s trailer to put the cousi n into the police car, he observed the Defenda nt walk by the front door c arrying a compound bow. Ailey recalled that the D efenda

nt had the bow in his left hand and an arrow in his right hand. According to Ailey, the

Defendant again made thre ats to kill his cousin with the .22 rifle. Ailey stated that he then entered the Defendant’s trailer with his gun in a “ready pos ition.” He testified that as he roundeda corner in the trailer, he saw the De fendan t d raw the bow back with an arrow. Ailey explained that the Defenda nt had the bow, which was just two or three feet from Ailey , aimed directly at Ailey’s che st. Ailey stated that he orde red the Defendant several times to drop the bow, and then Ailey kicke d it out of the Defendant’s hands.
Ailey testified that he and Condee were then able to g et the Defendant on the ground. Ailey stated that the Defendant

continu ed to resist arrest and that the Defendant hit Condee on the rig ht side of her f

ace. Ai ley

recalled that he and Condee continued to struggle with the Defendant f or another fifteen or twenty

seconds before they

were able to handcuff him. The Defendant was then placed in the police cruiser.

On cross-examination, Ailey testifie d that he d

id not know

what hap pened to the arrow that had been in

the bow. He stated that

it must have

dischar ged be cause it

was not on

the gro und with them d uring the struggle, but he did not think it caused any damage. Ailey

reported that the Defendant

had the bow pulled back “at least seventy -five percent.” He state d that the Defend ant did notsay any

thing or make any

threats while he was holding the bow. Ailey testified, “I guess he was surprised to see me.” Ailey stated that the De fendant had the bow pointed at him for three or four seconds before Ailey

kicked it out of his hands. He recalled that after subduing the

Defendant, Ailey askedhim

“what he thought he was doing,” but the De fendant did not respond. Ailey was not sure if th e D ef en da nt kn ew th at hi s c ou si n w as in cu st od y.-3-

Ailey testified that someone other than the Defendant made the 911 call. He believed that the card game was in a third party’s tra

iler and that third party a

ctually made the c all. Ailey testified that the Defendant was moderately intoxicated when he arrived at the scene. Ailey

recalled that the Defendant

had “slurred speech,” was “unstea dy on his feet,” and was “sort of weaving .” According to Ailey, the Def

endant said that he was angry at his cousin. Ailey testified that he unloade d the gun in the Defendant’s presence.

The Defen dant testi fied tha t he lives a

t 627 Rese

rvoir Roa d in Bloun

t County with hi s girlfriend of five months, Valerie Johnson. He stated that his mother, Katie Fran klin , live s next door. The Defendant testified that at the time of the sentencing hearing, he w as taking five different kinds of medication in accordance with doctor’s orders. He reported that the medica tions were first prescribed

approximately three months ear lier. The Def

endant te stified th at he re ceives a monthly So cial Security disability check based on his bipolar disorder. He stated that his mother is th e guard ian of his Social Sec

urity checks.

The Defendant acknowledged that he had been

charged with several misdemeanor offenses relating to alcohol in the 1980' s an d continuing until 1994. The Defendant testified that approxima

tely one or two weeks after the events in this case, he called the “Crisis Unit.” He stated that he was then admitted to Peninsula Hospital, where he stay ed for seven day s until he was evaluated. The Defendant testified that he wa s diagnosed with a bipolar disorder.

The De fe nd an t t es ti fi ed th at at th e t im e o f t he he ar in g, he ha d n ot co mm it te d a ny o ffenses since those that are the subject of this case. He also testified that he no longer had any weaponsin his home. T

he Defe ndant sta ted that he quit

drinking but

admitted drinking a beer “on occasion.” He reporte d that prio

r to Dece mber 2000 , he ty

picall y drank one or two “fifths” of liquor a week. However, he claimed that since that date, he had drunk a total of “ma ybe three beers” and no liquor. The Def endant a lso submitte d to a drug

screen on May 22, 2001, w

hich y ielded negative

results.

The Defend ant state d that bef ore this i ncident, he was “basically . . . killing [himself] . . . [w]ith the drinking.” He explained, that “[a]ll [he] wanted to do before was die.” Howeve r, the Defend ant

testified that he now has a better outlook on life. He stated that now wh en he feel s depressed, he “find[s] something to do in the yard, or . . . play [s] a video g ame . . . [or ] lift[s] weights.” The Defendant admitted that he still has the urge to drink, but he refrains from doing so.
Regarding the events in this case, the Defendant testified tha t he was in a friend’s trailer listening to music, when “for no reaso n at all [his ] cousin just jumps up out

of his seat and

starts a fight with [the De

fendant ].” The De

fendant testifie d that he punched h is cousin in

the fac e, and his cousin punched him in the face. He stated, “Next thing I know a knife’s drawn.” The Defe ndant testified that his fr

iend was able toconvince his cousin, Ron, to leave, and then the Defendant called the police. The Defendant stated that he waited a t his friend’s trailer for the police to arrive.

The Defend ant admitt

ed that he had drun k approxima

tely a fifth of liquor plus several beers on the day

of the cr imes in this case. H e stated , “The on ly thing I remember

is being at home and-4-

next thing I know there’ s three or four officers standing in my living room with guns drawed.” The Defendant

claimed that he did not know what happened with regard to the bow and the officers, but he “believe[d] he was startled.” He stated, “I remember attempting to put the bow up and next thing I know ther

e’s off icers with guns drawed.” The Defendant claimed that he did not remember speaking to the off

icers be fore the y ha d their g uns draw n. He adm

itted bein g ang

ry withhis cousin, buthe claimed that

he did not

intend to harm any off

icers. The Defendant testified that the g un that Officer Ailey

found was not loaded. The Defendant stated that he ha d the shells in his pocket.

The Defendant testified

that his mother provides him with transportation and that his brother, Deway ne, sometime h

elps. The Defend ant state d that he s ees his brother “may be once a week.” The Defendant testified that his medication has “leveled [him] out.” He stated tha

t his mother, w

ho is fifty-four years old, insure s that he takes his medication regularly

. The Defendant testified that he is not a “mean person,” but that he just made a mistake.

On cross-examination, the Defendant testified that he remembered “ having” thebow when the officers entered the t

railer, buthe state d that he d id not reme

mber dra wing the bow. He a

lso testified that he did not remember loading the gun or Of ficer Ailey

unloading it. The Defendant claimed that he did not remember say ing that he wa

nted to kill his cousin, although he stated that he remembered

being angry

at his cousin. When asked if he intended to kill his cousin, the Defendant replied, “May be.”

The Defendant

testified that although he ordinarily stored his bow in a “custom container” in his bedr

oom, the bo w was out o f its conta iner bec ause

he had been shooting at

targe ts in his yar d e arlier that day . The Defendant recalled that on the day of the offense, he was not on medication, but admitted that he had consumed “whiskey and beer.”

The Defendant

acknowl edged

that he wa s convict

ed in 1998 of assault, for which he received probation. He stated that he attended a class on managing emotions as pa rt of his proba ti on. In addition, the Defendant admitted that he assaulted his wife on another occasion, but he reported that he believed that the case had been dismissed. He testified that he was convicted in 1994 for rec kless endangerment because he was driving “too fast” on his motorcy cle.

The Defendant testified that he had received disability

payments for ten

ye ars base d on his bipolar disorder. He reported seeing two doctors since he began receiving disability

payments. He stated that the first physician who tre ated him passed away and that he subsequently ha d trouble w ith his in surance and finding a new doctor . He testified that over a year elapsed before he found a seconddoctor, whom he had last visited approximately a month or two pri o r to the sentencing hearin g. On redir

ect examin ation, a l etter fr om Peninsul a Outpati ent Cente rs was en tered in to evidence showing that the Defenda nt was a current patient.

The S tate read into evidence portions of the probation report, in which the Defendan t reporte dly

told his probation officer that while in the back of the police cruiser, he had asked why he had been arrested. According to the State, he was told to “sh ut up” or s omeone w ould “shut [him] up.” I n the rep ort, the D efenda

nt stated t hat he wo ke up in jail with his mouth and lips “busted so-5-

bad [he] couldn’t eat.” However, at the hearing, the D efendant admitted that he was not suggesting that the officers hurt him.

The Defendant’s mother, Katie Rose Franklin, testified that she had livednext door to her

son for eleven y ears and that s he sees h im every day . Frank

lin testifi ed that a

fter the offense s in this
case, the Defendant sought treatment. She stated he e nteredPeninsula Hospital and was placed on medication “which controls his temper.” Franklin explained that the Defendant “had a very

violent temper.” She testified that since being treated, the Defend ant had be

en making

progre ss. Fran

klin testified that she insures that the De fendant takes his medication by giving it to him herself. She testified that she w alks to the Defendant’s home every morning and every

evening to makesure that the Defendant takes his medication.

Franklin stated tha

t s he k new that the Defendant drank too much in the past, but she maintained that she had not seen him drink sincehe began treatment. Although F ranklin testified t hat the Defendant had not had any alcohol in a yea

r, she admitted on cross-examination that he would not tell her if he did drink. She testified that the Defendant would try to hide his drinking.

Franklin testified that she is the pay ee for t he Defe ndant’s So cial Sec urity

disability checks. Franklin explained that the Defendant overdosed in Knoxville, Tennessee, and the Social Sec

urity board“had to ha

ve so mebody to be over

his check.” She stated that although her name is on the checks, the checks are deposited into the Defendant’s account. She also testified that she pay s the Defend ant’s rent, makes sure h is ut ilit ies ar e paid , and b uys his cl othi ng.

II. AN ALYS IS

The Defendant now challenges on appeal the trial court’s order that he serve his entire fouryear sentenc e in the Te

nnessee Departm e nt of Correction. When a criminal defendant challeng es the length, range, or manner of service of a sentenc e, the reviewing court must conduct a de novo review of the sentence with a presumption that the determin ations mad e by the trial court ar e correct. Tenn. Code Ann. § 40-35-401(d). This presumption, however, “is conditioned upon the affirmative showing in the record that the trial court co nsidere d the sent encing principle s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the rec ord fails to sh ow su ch co ns id er at io n, th e r ev ie w o f t he se nt en ce is pu re ly de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In maki ng its sentencing determination, the trial court, at the c onclusion of the senten cin g hearin g, determines the range of sentenc e and then determines thespecific sentence and the propr iety of sentencing alternatives by cons idering (1) the evidence, if any , received at the trial and the sentencing hearing, (2) the presentenc e report, (3) the principles of sentencing and arguments as to sentencing alterna

tives, (4 ) the nat

ure and c haract eristics of the cr

iminal conduct inv olved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statemen ts the defendant wishes to make in the defen dant's beh alf about sentencing, and (7) the-6-

potenti al forrehabilitation or treatment. Tenn. Cod e Ann. §§ 4 0-35-210 (a), (b ), -103( 5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumpt

ive sente nce to be imposed by

the trial court fo r a Class B , C, D or E felo ny i s the minimum within the applicable range unless there are e nhancement or mitigating factors present

. Tenn. Code Ann. § 40-35-2 10(c). I f there are enh anceme

nt or mitig ating f

actors, the court must start at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then reduce the sentenc e in the r ange a s appropr

iatefor the mitigating factors. Id. § 40-35-210(e). The weight to be given eac h factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. However, the sentence must be adequately supported by the record and comply with the purposes and principles of the 1989 Sentencing Reform Act. Statev. Moss , 727 S.W.2d 229, 237 (Tenn. 1986), superceded by s tatute asstated in State v. George Blake K elly , No. 01C01 -9610-CC00448, 199 8 Te nn. Cri m. App . LEX IS 1085, at * 24 (Tenn . Crim. App., Nashville, Oct. 13, 1998).

When imposing a sentence, the trial court must make specific findings of fact on the rec ord sup porting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also includ e an y enhancement

or mitigating factors applied by the trial cour t. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court mus t state

its reasons on the record. The purpose of recording the court’s reasoning is to guara ntee the prepar ation of a prop er rec ord for a ppellate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

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 prop er weig ht to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by

the record, then we may

not modify the sentence

“even if we

would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

Sp ec if

ic al ly, the Defendant argues that he should ha ve been g ranted s ome form of alternative sentenc ing. Te

nnessee Code Anno tated § 40 -35-102( 5) provid es as fol lows: In recognitionthat state prison capacities and the funds to build an d maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society , and evincing failure of

past efforts at rehabilitation shall begiven first priority regarding sentencing involving incarcera tion . . . . A defendant who does not fall within this class of offenders “and w ho is an e specially mitigate d offende r or stan dard off

ender c onvicted

of a ClassC, D, or E felony is pre sumed to be a favora ble candidate for alternative sentencing in the absence of evidence to the contrar y.” Tenn. Code Ann. § 40-35-1 02(6). F

urthermo re, unle ss sufficient evidence rebuts the presumption, “[t]he trial court must pre sume that a defendant sentenced to eight y ears or less and not an offender for whom incarceration

is a prior

ity i s subject

to altern ativ e sentenc ing and that a sentence other than incarceration

would result in successful rehabilitation . . . .” Statev. Byrd
, 861 S.W.2d 377, 379-80-7-

(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard offender convicted of a Class C felony
, see Tenn. Code Ann. § 39-13-102(d), is pre su med to be a favorable candidate for alterna tive sentencing as to the agg ravated assault conviction.

However, all offen d ers who meet the criteria are not entitled to relief ; instead, sentencing issues must be determined by the f acts and circumstances of each case. S ee State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing Moss , 727 S.W.2d at 235). Even if a defendant is presumedto be a favorable candidate for a lternative sentencing under Tennessee Code Annotated § 40-35-1 02(6), th

e statutor y pr esumption

of an alt ernativ e sentence may

be overc ome if (A) [c]onf

inement isnecessa

ry to protec t society

by restraining a defendant who has a long hist ory of crimin al conduct; (B) [c]onfinement is necessary to avoid de precia ting the seriousness of the offense or confinement

is particu larly

suited to p

rovide a n effective dete

rrence to others likely to commit similar offenses; or (C) [m]easures less restrictive than conf inement h ave frequently

or rece ntly been applied unsuccessfully to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C). I n choosing among possible sentencing a lternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103( 5), which states, in pertinent part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be considered

in determining the sentence alternative or le ngth of a term to be imposed.” Id. § 40-35- 103(5); see also State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

In making its sentencing determination, the trial court found that alternative sentencing was notappropr

iate in thi s case because of the Defe ndant’s “ extensive

crimi nal h istory of dang erous
o ffense s, both drivi ng unde r the i nflue nce and assau lt.” T he tri al cou rt ackn owled ge d that th e Defendant

had taken steps toward rehabilitation. However, it noted that “continuing to drink, [regar dless of] how sma

ll an amount[,] is totall

y c ontrary to any long-te rm reha bilitation , partic u larly when you’re on me dication that is not to be combined with alco hol and tha t is . . . one of the problems that

keeps recurring in all of

[the Defendant’s] criminal cases and what was instrumental in this event.” The trial court stated that the Defendant’s “h istory of violence as sho wn by his criminal history

and testif ied to by h is mother a

nd [his] conti nuing to

drink mak

es him inap

propria te for community

releas e and for

serving this sente nce in the Community

Corrections Program.” The trial court also found that alternative sentencing would depr eciate the seriousness of the offense.

In addition, the trial court found that the offense was committed when the risk to human life

was high. The trial court stated, “Pointing a bow that’s already been drawn

back at someone takes

a conscious decision not to let go of the bowstring. But this is an unusual case in that reg ard.” The Defendant

argued that the tr ial cour t should not

have co nsidere d the hig

h risk to human lif

e becau se its consideration of this factor was equivalent to enha ncing the De fendant’s sentence based on an element of the offense. However, the info rmation which charged the Defe ndant with aggravated assault al leged that the Defendant cause d the victim to reasonably fe ar imminent bodily injury by using or display ing a we apon. The

trial cou rt corre ctly concluded that a

high ris k to human l

ife is-8-

notan eleme

nt of the c harge d offens e. Ther

efore, the fac t that the D efenda nt crea ted a hig h risk to human life

was a pr oper sen tencing consider ation for the trial court.

In our view, the record supports the manner of ser vi ce of the sent ence imposed. The Defendant aimed a

loaded weapon at a police officer, punc hed another police officer, and claimed that he did not remember any

thing because he

had been drinking. The Defenda nt has a long history of criminal conduct involving alcohol, and he admitted at the sentencing hear ing that he continues to drink on occasion. For

these reasons, we conclude that the presumption of alternative sentencing

was sufficie

ntly rebutted in this case and

that the trial court thus did not err by imposing a sentence of confinement.

Accord ingly , we AFF

IRM the judgme

nts of the trial cou rt.

___________________________________ ROBERT W. WEDEMEYER, JUDGE