1 

# FILED
October 6, 1999 Cecil Cro wson , Jr. Appellate Co urt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1999 SESS ION

STATE OF TENN ESSEE, ) C.C.A. 03C01-97 11-CR-00504 ) JOH NSO N CO UNT Y CRI MIN AL ) Appellee, ) Hon. Arden L. Hill, Judge

) ) ) vs. ) (SETTING FIRE TO ) PERSONAL PROPERTY, ) ASSAULT) WILLIAM W. CARPENTER, ) ) NO. 2788 ) Appellant. )

FOR THE APPELLANT: FOR THE APPEL LEE :
GERALD L. GULLEY, JR., ESQUIRE PAUL G. SUMMERS P.O. Box 1708 Attorney General & Reporter Knoxville, TN 37901 ROBERT Y. OAKS TODD R. KELLEY Assistant Publ ic Defender Assistant A ttorney General Main Courthouse 425 Fifth Avenue North Elizabethton, TN 3764 3 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 JOE C. CRUMLEY, JR. District Att

orney General KENT W. GARLAND Assis tant Dist rict Attor ney Main Street, Unicoi County Courthouse Erwin, TN 37650

OPINION FILED:_________________
AFFIRMED
CORNELIA A. CLA

RK Special Judge2 OPINION The appellant, William W . Carpenter, appeals asof right the sentencing determination of the Johnson County Crimi nal Court. The appellant w as convicted of setti ng fire to personal propert y, a Class E felony, an d assault, a Class A misdemeanor. The court imposed an e ighteen month s ent ence for setting fire to property, to be served concurrently with an eleven month, twenty-nine

day sen tence forthe assault. All but ninety days of each sentence
was suspended. The sole issue rai sed by appe llant on appeal is whether the trial court erred in failing to grant complete probation.For the reas ons set fort h below, we affirm the judg ment of the trial court.

In September 1995 appellant was mar ried to Shelly Carpenter. Mrs. Carpenter

was t hen eng aged in a romantic relati onship with another man, James David Kennedy. Kennedy and the appellant had argued pr eviously, and the appellant dir ected Mr. Kennedy not to continue seeing his wife. However, Mr. Kennedy did continue the relationship with M rs. Carpenter.
Kennedy testified at trial that on Sept ember 8, 1995, he and Mrs. Carpenter

spent the evenin g “fro licking around” in the woods before later returning to the Carpenter residence. While they were sitting on the back steps the appellant burst out of the house and s truck Kennedy on the head w ith a piece of fire wood. According to Kennedy, he rolled off the steps i nto the di rt. The blow impaired his vision an d hearing. As he tried t o get to his feet , th e appellantstruck

him sev

eral ti mes. He began to bleed pr

ofu sely. W hen Kenn edyfinally managed to stand up and lean on the fend er of a nearby truck, the appellant came back out of the house w ith a shotgun, an d made Mr s. Carpenter

and Kennedy go inside. Appellant stat ed that he intended to kill all three of them.3 Once inside the house, Kennedy tes t ified that the appellant took a wooden dow el rod and s wung at him. Kennedy managed to duck or avoid being hit each t ime. Ken nedy fina lly was able tolift a chair to defend hi mself. He fea red f or his life throughout the or deal. At one point appellant w ent outside and tr ied to blow up Kennedy’s car. Mrs. Carpenter eventually managed to leave and call the sheriff’s department.Kennedy also testified that appellanthit his wife sever al times, including once on the shoulder and once on the thigh.

After Mrs. Carpenter left, Kennedy testified that appellant “went ballistic” and again began beating him with a steel b ar. Kenned y put his arms up to protect himself. Both arms were br oken by the blows. Appel lant then b e gan “whalingon” his legs. Kennedy was a fraid to run because appellant kept his
s hotgun nearby. Appellant then began trying to destroy Kennedy’s knees

. Appellan t ’s anger grew and his blows got harder. At one point he used a hunting knife to cut Kennedy’s clothes off, and inf licted numero u s stab wounds in the process. Appellant put hi s shotgun t o Kennedy ’s face and said he was going to blow Kennedy’s br ains out. Kennedy believ ed he was going to di e, and began to pray. While he was on hi s knees app ell ant hit him over the back of the head, probably knockin g him unconscious. The next thing he rememb ered was appellant holding his legs spread-eagled while hitting his groin area with a steel bar.Appellant told Kennedy he w as going to castrate him and fe ed h is private parts to the dogs. The intense pain agai n caused Kennedy to lose consciousness. When he awoke again appellant had left the house. Kennedy heard a boom and saw a large flash of light. H e knew it was his van beginning to bur n. At that time Kennedy wa s unable tom ove. A bone was protruding from one of hi s legs. Shortly thereafter help arrived.4 The a ppellant, a Vietnam veteran, testified but described the encounte r much differently

. He confirmed that in June 1995, he had confronted Kennedy abou t the af fair with his wife and instructed Kennedy not to see her again. On July13 the Carpenters formally separated and Mrs. Carpente r an d the children moved out of the residence. Appellant c ontinued his job as a lo ng haul truck driver.

On Friday, September 8, 1995, appellant testi fi ed that he returned from
a road trip and found his driv eway gate locked w

ith a strange lock. Afrai d th at
someone was stealing from him, he left his veh icle and walked up the l ong driveway

. When he arrived at the house he recognized David Kennedy’s van . He entered the house through the back door. He found his son’s shotg un lying in the living room. It

was loaded. He then testi fied that he knew “what w as going on.” He called to his w ife and Ke nnedy ups tairs, and Kennedy repli ed. After a short time Mrs. Ca rpenter and Kennedy came dow nstairs. Appellant test ifie d that he assumed Kennedy thought h e was about to receiv e a thrashing, but that appellant hoped things wou ld work ou t. However, Kennedy pushed at appellant. Appellant at thi s point only intended to thrash or “w hoop” Kennedy, and did not intend to kill him. After K ennedy pushed him, appellant testified the men began a fist fight , out the door and dow n the steps. He admitted he struck one blow that “ad dled” Kennedy. Appellant testified that he hoped to get in one more good lick and end the fight. Howev er, Kenned y picked up a piece of firewood and hit appell ant across the arm. According to appellant, “Then I knew in my heart that the fight was o n.”
Appellantadmitted mak ing animal g rowls in response to blows he received. He st ated he did not intend to kill Kenne dy, but only to put him on the ground and walk away. He testified that his arm was use less , but he continued to fight Kennedy and eventual ly put him on the ground. How ever, Ke nnedy got up and ran into the house w ith Mrs. Carpenter. R ath er tha n5

leaving, appellant follo wed hi m to tell both parties to leav e. Appellant testified that it was Kennedy w

ho picked up the dowel rod.Appellant grabbed Kennedy bythe neck and pants and tried to throw him out the door. Kennedy attacked him with the rod and they continue d t o give each other parr y blows. Appellant took the rod from Kennedy, who then apologized and ask ed to stop the fight. When Kennedy continued to express fe ar appellant even handed him the rod back. He d enied eve r threate ning to kil l Kenned y.
Appellanttestified he then asked Kennedy an d his wi fe to sit down, and began lecturing them on the ev ils of their actions. He admitted that his tone
was very forceful , and he co ncluded by saying tha t if Kenn edy did no t leave hi m alone he w ould thrash him again. Appel lant stated that his wife pi cked up the shotgun and told Kennedy it was unloaded. Mrs. C ar penter t hen ran to get help. Kennedy tried to grab the steel rod andcame at appellant, who threw his
arm up and was hit in the wri st. Kenn edy fell on top of appellant and they began wrestling. Appellant testified that he nev er intended to kill Kennedy, but did decide to “ren der this man so helpless that all he could do was lay there . . .” and then go report this i ncident to law en forcemen t officers. Appellant admitted he attempted several blows to Kennedy’s groi n area, trying to r ender him helpless. He continued to s trike Kennedy’s ankles and l egs beca use he
was still struggli ng. Appellant never i nten ded to hit a de ath blow. F inally, Ke nne dystarted reciting the Lo rd’s Prayer and appell ant knew he had “done the job [he] needed to do . . .” He then gave Kennedy a cigarette. Appellant knew without a doubt Kennedy w as fine. At trial appellant expressed remorse and testified that everythi ng he did was in self-d efense. He also denied ever drawing a knife.6 Appellant stated he th en left the house. As he passed by Kennedy’s
van he noticed some of his own tool s inside. He also notic ed photographs of his wife. This discovery infuriated him. Observing a five-gall o n can of gas sitting in the van, appel lant reasoned that since Kennedy had trespassed and taken his tools, it wa

s reasonable to burn his v an. He said:

The old van ain’t no g ood anyway, and I’ll make sure he don’t drive it aw

ay from here even though he may -

- I left him one good leg. I di dn’t leave the man to where he couldn’t fend for him self as far as whatever. I mean, I didn’t kill this

man to the point, or hurt him to the point of - - that he still wasn’t cap able of doing things for himself.

. . . I felt at this point the van a ctually belonged to me.
ShellyCarpenter testified for the stat e as a rebuttal witness . She s tated she had moved back into the m arital home on September 7 because her husband was on the road and tol d her she could stay there. She did not expect him home on September 8. Mrs. Car pente rremembered a “terrible fig ht” between the men, in volvin g a steel bar, a wooden s tick of some kind, and a long gun that was unloaded. She saw appellant first hit Kennedy with either the bar or the wooden stick. Appellanthit Kennedy on his arms, l egs and head. She went looking for the gun, which she had loaded earlier in the day for protection. She found it unloaded. She remembered her husband picking it up, but could not remembe r if he t hreatened anyone. She did admit to being very frightened.

Mrs. Carpenter testified that her husband took out severa l k nives, started sharpening them, and commented that he oughtto c astrate K ennedy. She left to look for help, and did not obs erve anything el se inside. She did see appellantflatten all the tires on Kennedy ’s van and get a gas c

an. She did no t
see wha t he did with the can. When she last saw Kennedy he was sitti ng up ,7

but had blood on his arms and head.

Mrs. Carpenter stated that she coul d not rem em ber who struck the first blow. She also admitted on cross-examination that she lied duri n g her testimony

at the preliminary hear ing in November 1995. At tha t hearing her testimony

was very simi lar to that of Mr. Kennedy. In particular she testified at the preliminary hearing that t he figh t began outside on the porch and that appellantattacked Kennedy first. She r emembered many more details of the process of the fight at the preliminary hearing than she did at trial.

Both Kennedy and his treating physician testified about hi s injuries. As
a result of th e incident Kennedy suffered a broken right wrist, t

wo broken arms, and a fractured left leg and left ankle. He also had numerous lacerations
on his head and back, bruises and swelling about the f

ace, an d a blunt tra uma injuryto his spleen which nec essitated its removal. Kennedy retains metal plates in his arms. Appell ant did not seek medical treatment after the fight.
Appellantwas initially charg ed with the aggravated assault of Shelly C arpenter; the attempted first degree murder of James David Kenn edy; an d setting fire to Ke nnedy’s p ersonal p roperty. A fter a ju ry trial, appellant was found not guilty of any offense against Mrs. Ca rpenter, g uilty of assault, a Class A misdemeanor, as to M r. Kennedy, and guilty of setting fire to Kennedy’s personal property, a C lass E felony

. The trial court sentenced him to eleven months twenty-nine days for t he assa ult and eighteen months for sett ing f ire to personal property. The sentences were order ed to be served
concurre ntly. Each sentence was suspended after the service o f ninetydays. On the felony offense the appellant was placed on supervise d probat ion for f ive years.
In his brief appellant raises only a sentencing is

sue: whether

he s hould h av e been granted complete probation as to the sentence s imposed for each conviction. When an accused challenges t he length , range or the manner of8

service of a sentence, this court conducts a de novo review of the sentence with a presumption that the determinations made by the trial court are corr ect. Tenn. Code Ann . §40- 35-401(d). This presumption i s conditioned upon an affirm ative showing in the record that the trial jud ge consid ered the sentencing principles

and all relevant facts and c ircumstances. State v. Ashby , 823 S. W. 2d 166, 169 (Tenn. 199 1). The b urden is on the appealing par ty to show that the sentence is improper. T enn. Co de Ann.§40-35-401(d) Sentencing Commission comments.

A defendant is eligible for probation if the sentence imposed is ei ght years or less. Te nn. Code Ann. §40 -35-303 (a). An esp ecially miti gated or standard offen der convicte d of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentenci ng in the absence of evidence to the contrary. Tenn. Code Ann. §40-35-102(6). However, the appell ant has the burden of establishing suitabil ity for total probati on. State v. Boggs , 9 32S. W. 2d 467, 477 (Tenn. Crim. App. 1996).

In determining whether to grant or deny probation, the trial court should consider the circumstances of the offense, the ap pe llant’s criminal rec ord, social history and present physica l an d mental condition, the need for deterrence, the accused’s potential for r eha bilitatio n, and the best interest of the appellant and the public. State v. Parker , 932 S.W. 2d 945, 959 (Tenn. Crim. App. 1996); State v. Grear , 568 S.W. 2d 285, 286 (Tenn. 1978).1 Under the terms of an “ Agree d Order” entered November 12, 1997,the judgment order was am end ed to reflec t that a ppe llant w ould report t o jailin Carter

County on Janu ary 1, 1 998 , wou ld stay for 120 days rat her than ninety days, woul d be granted work r elease, and woul d be permitted to sleep in the chapel area of the jail rather than “behind actual bars”.

9 The trial court based its d ecision to impose incarcer ation for the offenses upon several factors, including (1 ) the existence of several enhancementfactors, (2) the seriousnes s of the offense and the necessity to avoid depreciating the seriousn ess of the injuries inflicted on the victim, (3) the cruelty of the appellant’s actions, an d (4) his lack of regar d for the risk to human life. All of these are valid co nsiderat ions. Even give n these concerns, the court suspended all but nin ety days of the sentences.

We give great deferen ce to the trial cou rt who was in a position to judge the appeara nce and d emeanor of t he appellant . The action of the trial court
was justified. Appellant ha s not shown he is a favor able candidate for complete probation. His concern about his reaction to incarcerat ion based on his post-traumatic stress disorder apparently has been address ed by the trial court. 1

For

the reasons set forth above, w e affirm the judgment of the trial court in all other respects.

______________________________ CORNELIA A. CLARK SPECIAL JUDGE

_______________________________ GARY R. WADE PRESIDING JUDGE

_______________________________ NORMA McGEE OGLE JUDGE