### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Septem ber 17, 200 2 Session
STATE OF TENNESSEE v. ANTHONY TONY SANDY
Direct Appeal from the Circuit Court for Lawrence County

No. 21529 Robert L. Jones, Judge

No. M2001-02376-CCA-R3-CD - F iled January 30, 2003

Defend ant, Anthony “Tony ” Sandy, was indicted by

the Lawrence

County Grand Jury

for first degree murder. Defen dant was convicted by a jury of the lesser

-included offense of voluntary manslaughter. The trial court sentenced Defendant, as a Ra nge I standa

rd offender, to serve four ye ars and s ix months in the Tennessee Department of Correction and imposed a fine of $1 0,000, which was assessedby the jury . In this appeal as of right, De fendant argues that the evidence at trial was insufficient

to support

a finding of guilt beyond a re asonable doubt and that the trial court er red in sentenc ing Def

endant. We

affirm t he judg ment of the

trial cou rt. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBER T W. W EDEMEYER , JJ., joined.

Robert D. Massey , Pulaski, Tennesse e, for the appell ant, Anth ony Tony Sanders. Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; T. Michel

Bottoms, D istrict At

torney Genera l; and James G. White, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

Facts

On October

9, 1999, St. Joseph Polic e Chief D ennis Da niels wasdispatched to Defendant’s residence. When he arrived, shortly be fore midnight, he found La rry “B o Jack” Jackson, the victim, sitting on the couch, drenched in blood. Defendant was sitting beside the victim

on the cou ch with his arms a

round the victim. The victim had been shot in the head while sitting on the couch. The bullet en tered the corne

r of the victim’s ri ght ey

e and exite d betwee

n his left ear

and neck. A gun
was found lying on the ba ck of the couch, directly

behind the victim’s head. The victim’s feet were-2-

crossed, and he was holding, in his left hand, a cigarette tha t had burned down to the filter, and there
were c igare

tte ashe s on his pan

ts.
Police Chief Daniels testified that he took a statement from Defendant on the day following the shooting . In h

is stateme nt, Defe ndant told police th at the vic tim and Da vid Gann c ame over

to his house around 11:30 a.m. on October 9, 1999. The three men dra nk beer and watc hed footb all all day

. That eve

ning, the victim and

Gann lef t Defend ant’s hou se to go t o the liquo

r store in Pulaski. Around the same time, De fendant went to another sto

re to buy beer. Whe

n they all returned, they sat and wa

tched television. Gann fell asleep, then woke up and left shortly bef

ore 10 p.m. Defendant went to bed, and the victim stay ed on the couch. Defendant told Chief Daniels that he did not remember

hearing a gunshot, but something startled him awa ke. He remembered

trying to hold the victim up and calling for help. He had not fired the gun that night, and there w as no possibility

that the gun fired accidentally from his “playing ” w it h it beca use he ne ver play s with guns. Defendant told Chief Daniels that he did not know how the victim had been shot. Defe ndant normally keeps his gun b eside him o n the couc h, but he la

id it on the c offee t

able ea rlier tha t night. Wayne Wesson, a criminal investig ator with

the Tennessee Bureau of I nvestigation (TBI ),
was dispatched around 11:40 p.m. on October 9, 1999, to Defendant’s home. He spoke to Def endant that same night, and Defendant tol d h im that the victim and Gann had been at his house all day watching footb all an d drin king. When the vi ctim and G ann retu rned fr om the liquo

r store, they

all watched television. Defendant began to “doze of

f.” He d id not know

how the vi ctim had b een shot. All he could re

member w as holding

the victim

and try ing to stop his bleeding. At one point, Agent Wesson overheard Def

endant talking to himself, saying , “I’ve killed somebody . I’ve killed
some body.” Agent Wesson did not question Defendant about the statement. Defenda nt allowed Agent We sson to phot

ograph him, and h

e consen ted to a g unshot re sidue tes t.

Laura Hodge, with the TB I cr

ime labor atory , perfor

med a gu nshot res idue test o n Defen dant, which she testified was inconclusive. She also testified that blood can wash away

gunshot residue, and Agent

Wesson tes tified tha

t gunsho t residue

may also rub off by putting

hands in pockets. No gunshot residue test was p erformed on David Gann or t

he victim.

Office r Chuck Neese, with the St. Joseph Police Department, testified that he an d othe r officers arrived at David Gann’s residence in the early morning

hours of Octob er 10, 1999. They knockedon his door numerous times, shined a spotlight on his house, flashed their blue lights, blew the horn, an d sounded

the si ren, but nobody answere d the door. They trie d to wake Gann for approxima

tely ten minutes. They soug

ht a search warrant before going to his house that night, but they could not locate a

judge to issue one.

David Gann testifiedthat he arrived at Defendant’s house a round noon on October 9, 1999. The victim, Defendant, and he spent the day wa tching football and drinking beer. At ar ound 5 or 6 p.m., he a

nd the vic tim went to P

ulaski to purchase

whiskey. Gann testified tha twhen he and the victim returned from the liquor store, Defendant was ang ry beca use they had boug

ht only whiskey and no beer. Gann sat

in the cha ir acro ss from the

couch wh

ere Defendant

and the vi ctim wer

e both-3-

sitt ing. He felt sick from having eaten tac os while they wer e out, and he b egan to “doze off” watching television. He heard a “click, click” sou nd, and he looked over and saw Defenda nt “messin g around”with his pis tol, pointin g it at the victim and

say ing, “I ought to s hoot you o r something for not bringing no beer bac k.” The pistol was not loaded at that time. The victim was
sm iling and he did not t o appe ar to b e afrai d or th reaten ed. A fe w min utes l ater, G ann le ft to go home.

Gann arrived home sometime between 9:30 and 10 p.m. He went straight to bed. He did not hear the polic e come to

his house later tha t night a nd attempt to wake h

im with sirens and flashing lights. Syble Gann, David Ga nn’s mother, lives about 100 yar ds from her son. She testified that on the night of Octobe r 9, 1999, her son was at home by 10 p.m. Later that night, she hea rd horns honking and people shouting. She did not hear any one say “police ,” andshe did not see blue lights. She did not go outside because it was late and she lives alone. The next morning, she told her son that there had been a shooting at Defe ndant’s home. Agent Wesson interviewed Gann the follow ing day

. During the interview, Gann did not mention that Defendant had been “messing around” with the gun. Gann a lso told Agent

Wesson that he did not see any g

uns lying ar

ound the house that night. At trial, Gann testified that the reason for his omissions to Agen

t Wesson wa s that he d

id not wan

t any thing to h appen to D efenda nt. Gann’s conscience, however, began to bother him after the initial interview, so he contacted Agent Wesson ag ain a few day s later and told him about the incident with the pistol. Agent Wes son searche d Gann’s home and truck and collected the clothes that Ga

nn said he had worn the night before. The only witness to

testify as to wha t Gann ha d worn the

night before wa s his mother. She testified that she had seen her son around 3 p.m. on the afternoon of October 9, 1999, and he was we aring blue jeans and a short sleeved shirt. Those are the clothes that Ag ent Wesson took from Gann’s house. Agent Wesson tes tified tha

t the pistol

with whic h the vict

imwas shot was found lying on the couch directly behind the victim’s hea d. He also testified that he found a box of ammunition, the same kind

as that us ed to kill th

e victim, lying open on D efendant’s kitchen table. The pistol was found “d ec oc ke d. ” S he ll y Be tt s, wi th th e T BI c ri me la bo ra to ry, testifie d that the pistol has three safetie s, and in order to “decock” the g un, it takes two hands. The gun had fired the bullet that killed the victim, and one add itional bullet was fo und in the c hamber o f the gu

n. No iden

tifiable fingerprints were found on the g un.
Doctor Charles Harlan, the medical examiner who performe d the victim’s autopsy, testified that the victim’s blood alcohol content was .28 percent. He also testified that, in his expert opinion, the gun wasfired fr

om m ore than t wenty-four inches away

because there were no “g unpowder burns” on the victim’s face. Agent Wesson, an

expert at r

ecrea ting cr ime scenes, could

not determine the exact position in which the

victim wa s sitting w

hen he wa s shot. Wess on testifi ed that t he bullet tha t killed the vict imwas found lodged in the door to the left of where the victim was sitting on the couch

. Drawing a straig

ht line be tween the victim’s exit wound and the location of the lodged bullet-4-

indicated that the victim was s itting sli ghtly forwar d on the co

uch, rat her than with his headagains t the back of the c ouc h. This is because the couch had a wing a rm. Had the victim’s head been against the back of the couch, the bullet would have lodged in the arm of the couch.

Gann testified that

the victim and Defendant were good f riends and had

grown up together, and he “couldn’t

see just messing around and being friends like tha t, how people cut

up and stuff, any reason why

he would, you know, would have shot him, y ou know, why either

one of the

m would have got mad enough to do any thing like that.” He testified that Defendant and the victim

had not been in any kind of serious ar gument that

night, and that, at

most, they were me

rely “jawing,” like frie n ds do. Gann also testified that he has seen people “play ing with guns and accidentally shoot their TV or a hole

in the door , throug

h the cei ling. I ’ve see

n it happen many times and ma ny places.” He testified that he had “seen a lot of crazy people with guns, y ou kn ow, and got – been c lose to being shot before by pe ople being drunk, I me an, drinking like that. So that was one of the bigge st reasons I took off.” Sufficiency of the Evidence

Defendant

argues that the evidence at trial was insufficient to supp ort his conviction for voluntary manslaughter. When an accused cha llenges the sufficiency

of the convicting evidenc e , we must determine whether “any rational trier of fact

could have found the essential elements of the crime beyond a re asonable doubt.” State v. Keough , 18 S.W.3d 175, 180-81 (Tenn. 2000) ( quoting Jackson v. V

irginia , 443 U.S. 307, 319, 9 9 S. Ct. 2781, 2789, 61 L . Ed. 2d 560 (1979)) . In s o determ inin g, this Court must review the evi dence in a light most favorable to the prosecution, affording it the stro ngest le gitimate view of th

e evidence in

the rec ord as we

ll as all reasonable and legitima te inferences which may

be drawn from the evidence. Keough , 18 S.W.3d at 181 ( citing State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997)). Questions regarding the credibility of the witnesse s, t he weight to be given the evidenc e, and any factual issues raised by

the evidence ar e resolvedby the trier of f

act, not this Court. Bland , 958 S.W.2d at 659. Further more, a g uilty verdict replaces the presumption of innocence with a

presumption of guilt, which defendant has the burden of overcoming on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).

The standard for

appella te review of the sufficiency of the evidence i s the same whether the conviction is based on direct or circumstantial evidence. State v. Johnson , 6 34 S.W .2d 670, 672 (Tenn. Crim. App. 1982). Further more, ci rcumstan tial evide nce alon e may be suffi cient to su stain
a conviction. State v. Tharpe , 726 S.W.2d 8 96, 899-9 00 (Tenn . 1987); State v. Buttrey , 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The circumstantial evidence, however, must exclude ever y other
reasona ble theory or hy

pothesis except that of guilt. Tharpe , 726 S.W.2d at 900. Like other factual questions , the dete

rmination of whether all

other reasonable theories or hy potheses are excluded

by the evidenc e is prima

rily a questio n of fac t for the j u ry. Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958).

Defendant

was charged

in the indictmentwith committing premeditated first degree murde r. The trial cou rt prope

rly instructed the jury as to the c rimes of first degree murder, second degree-5-

murder, voluntary manslaug hter, reckless homicide, and criminally negligent homicide. Based upon the evidence, the jury

found Defendant guilty

of voluntary manslaug

hter.

A convicti on for vol

untary mansla u ghter requires proof bey ond a reasonable doubt that Defendant

either k nowingl y or intentio nally ki lled the victim “in a state of passion produced by adequa te provocation sufficient to lead a reasonable person to actin an irrational manner.” Tenn. Code Ann. § 39-13-211(a) (1997). A person acts “knowing ly” with respect to aresult of his conduct when he is aware that the conduct is reaso nably

certain to cause the result. Tenn. Code Ann. § 39- 11-106(a)(20) (1997). A person acts “intentionally ” with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tenn. Code Ann. § 39-11-106(a)(18) (1997). Defendant argues that there is no evidence to support the jury’s conclusion that De fendant acted in the heat of passion or

that he wa s adequa

tely provoke d. Defe

ndant ass erts that

the high est degree of homicid

e for wh ich the evidence

supports a

finding of guilt bey ond a rea sonable d

oubt is reckle ss homicide, which is defined as “a reckless killing of another.” Tenn. Code Ann. § 39-13- 215(a) (1997).

The issue of what degree

of homicide for which a defendant is guilty is for the jury

to decide in view of a

ll the facts of the case. State v. Ke els , 753 S.W.2d 140, 143 (Tenn. Crim. App. 1988). The determination that Defendant was adequately provoked is within the province of the jury. State
v. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). The crit ical evid ence in t his case was the testimony of David Gann that the victim, Defendant and he had been drinking all day. Gann testified that when the victim and he returned f rom the liquor

store not having bought a ny b eer, it angered Defendant. Gann further testified that shortly before

he left Defendant’s home, Defendant
was “messing around” with the gun, pointing it at the victim and threatening, “I ought to shoot you for not bringing no beer bac k.” The jury could infe

r that Defendant was anger ed and upset

by the victim’s actions. Furthermore, the jury is entitled to disregard

Gann’s testimony that Def endant and the victim were only joking and draw a different conclusion from Ga nn’s testimony that

he l eft shortly after Defendant picked up the g un and thre aten ed th e vic tim wi th it. We conclude that this evidence is sufficient to support the jury’s finding

that Defendant was sufficiently provoked and that he acted in the heat of passion. Regar dless of h ow strong

the evide nce was in this case, the Tennessee Supreme Court has held that where “a defendant could have been c onvicted of a higher degr ee of homicide,” he may

not complain of having been convicted of a lesser offense. State v. Smith , 695 S.W.2d 527, 529 (Tenn. 1985). Voluntar

y ma nslaugh ter is a lesser -include offense of first degre e premeditated murder. State
v. Sims , 45 S.W.3d 1 app. at 20-21 (Tenn. 2001) (affirming the appellate court’s ho lding that voluntary manslaug hte r is a lesser- in cluded of first degree murder under the Burns statutory

elements test). In Howard v. State , 506 S.W.2d 951, 954 (Tenn. Crim. App. 1974), thi s Court concluded that where the jury

was war ranted i n convicti ng the d efenda nt of sec ond deg

ree mur der, it c ould

elect to convict the defe ndant of v oluntary

manslaug hter, ev en if the

facts did not comportwith the technical definition of the crime.-6-

Second degree murder is statutorily defined as “[a] knowing killing of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1997). “Knowing ” has the same def inition for second d egree murder a s it has for voluntary manslaug

hter. See Tenn. Code Ann. § 39-11-106(a)(20) (1997). In our view, the jury could hav e convic ted Defe ndant of k

nowingl y ki lling the

victim.

Viewed in a light most favorable to the State, the evide nce show s that Def

endant kn owingly killed the victim. The gun with whic h the vict

im was shot

belong ed to Defendant. Defendant had been handling the gun shortly before the shooting. A box of ammunition w as ly in g open on Defendant’s kitchen table. The gun was not loa

ded at ap proximatel

y 9 p .m., when

David Gann saw Defendant

aiming it the victim and “clicking” it. The gun was found ly ing on the couch

behind the victim’s head, ha

ving fir ed one bullet, with o ne rema ining in the chamber. It was f

ound “decocked,”
w hich requires the use of two hands. The victim was holding a burned down cigarette in his left hand and ashes had fallen onto his leg, indicating that the victim did not shoot himself. There was
no evidence of

a fight or confrontation. Dr. Harlan te stified that the victim was shot from a distance of more than twenty-four

inches away

and he did not have any

stippling on his face. Thevictim was shotin the right ey e, and the bullet exited through his left ear and lodged in the door fra me to the left of where he was sitt

ing. Ag ent Wesson

testifie d th at t he trajectory of the bullet indicated that the gu n was shot from the right of where the victim was sitting. Da vid Gann testified that Defendant had been sitting to the right of the victim on the couch all night and was still sitting there when Gann left Defendant’s house.

We conclude that a rational trier of fact coul d find the essential elements of the crime of seconddegree murder bey ond a reasonable doubt. The jury could ha ve concluded

that Defendant knowing ly

killed the victim basedon the evidence that Defendant was the last per son in possession of the pistol, that it was unloaded when Gann left Defendant’s house, and that Defendant

later loaded the gun and shot the victim in the head. Defendant is not entitled to relief on this issue.
SENTENCING

D efendant

contends that the trial court erred in sentencing him. Defendant was sentence d
as a Range I

standard offender, to four y ears and six months for his voluntary manslaug hter conviction, to be served in the Tennes see Dep artm ent of Correction. The trial court denied Defend ant’s reques t for p robat ion o r any other form o f alte rnati ve sen tenci ng.
We review a defendant’s ch al lenge to the length or nature of his sente nce de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-40 1(d) (1 997). The presumption of
correctness is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review, we consider the following fa ctors: (1) the evidence , if any, received at trial and the sentencing hea ring; (2) the pre-sentence r eport; (3) th e principles of sentencing and arg uments as to sentencing al ternativ es; (4) the n ature a nd chara cteristi c of the criminal condu ct involve d; (5) evidence a nd informati on offer ed by the par ties on enhancement

and mitigating factors; (6) any statemen t by the defe ndant in his own behalf; and (7)-7-

the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210 (1997). Defenda nt bears the burden of

showing that his sentence was improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Co mments; see also S tate v. Griffin , 914 S.W.2d 564, 567 (Tenn. Crim. App. 1995). Length of Service

Defendant

was convicted of voluntary manslaughter, a Class C felony . Tenn. Code Ann. § 39-13-211(b) (1997). He was s ente nced as a Range I standar d offend er, for which the

applica ble sentencing range

for a Cla ss C felony

is three t o six ye ars. Tenn. Code Ann. § 40-35-112(a)(3) (1997 ). For a Class C felony , the presumptive sentence is the minimum in the ran ge when n o enhancement

or mitigating factors are pre sen t. T enn . C ode Ann . § 4 0-3 5-2 10( c) ( 199 7). If enhancement

factors exist, but there are no mitigating factor s, the trial court must start at the minimum sente nce wi thin the ran ge and enhance the sentence within the range as appropriate for

the enhancement

factors. The trial court shall then reduce the sente

nce within the ran ge as a

ppropria te for the mitigating factors, if any . Tenn. Code Ann. § 40-35-210(d), (e) (1997).

In determining the length of Defendant’s sentence , pursuant to Tenn. Code Ann. § 40-35-1 14 , the trial court applied enhancement factors (1) and (9) and disregarded f actors (6), (10), and (11). The trial court considered

Defendant’s previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate sentencing rang e. Tenn. Code Ann. § 40- 35-114(1) (199 7). Specifically, the tria l court considered Defendant’s 1993 conviction for possession of a weapon with intent to go armed, his 1995 convictions for public intoxication and resisting arrest, and another 1998 public intoxication conviction. The trial court emphasized that the
conv ictions, while they are all misdemeanors, are particularly relevant under the facts and circ umstances of this case because Defendant’ s prior record shows a history of alcohol abuse an d unlawful gun possession. Defendant was intoxicated on the night of the shooting, and the trial court noted, “when you look a

t this particular crime, mixing guns and alcohol d oesn’t wo rk. I t’s worse than mixing vehicles and alcohol because it’s likely to cause death or serious bodily injury.”

The trial court also properly determined tha t Defendant’s use of a firearm during the commission of the offense was an appropriate enhancement factor. See Tenn. Code Ann. § 40-35- 114(9) (1997). As in a co nviction f or second degr

ee murde r, the use of a firearm is not an essential element of voluntary manslaug

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

The State argued for the trial court’s applica tion of enhancement factors (6), (10), a nd (11), that the pers onal injur

ies inflicted upon th

e victim were particularly

great; that the defendant

had no he sitation about com

mitting a crime wh

en the ri sk to human

life was high; and th at the felon y resultedin another person’s death and the defendant had previously bee

n convicted of a felony

that resultedin deat h or bod ily injury . Tenn. Code Ann. § 40-35-114(6), (10), (11) (1997). The trial court properl y r ejecte d those en

hanceme nt facto rs. The trial court determined that factors (6) and (11) do not apply beca

use death is a necessary

element of a homicide offense and should not be further used by the

court to increase the punishment. The trial court gave no consideration to factor-8-

(10) because

the evide nce did not establis h that Def endant had no hesit ation about commi ttin g a crime when the ri s k to human life was high. We find no reversible error in the tr ial court’s determin ations re garding the ap plication of these enhanc ement fa

ctors.
The trial court gave little, if any , weight to the following mitigating factors: (1) that substantial ground s exist to excu se or justi fy the condu ct while

failing to establish a defense, Tenn. Code An n. § 40-35-113(3); (2) that Defendant assisted authorities in locating or recovering any propert y or person involvedin the crime, Tenn. Code Ann. § 40- 35-113(1 0); and ( 3) that the crime
was committed under such unusual c ircumsta nces tha t it is unlike

ly th at a susta

ined inte nt to violate the law motivated the criminal conduct, Tenn. Code Ann. § 40-35-113(11).

Defendant

argues that his intoxication at the time of the offense supports the application of mitigating factor

(3), tha t substanti al grou

nds exist tending to excuse or justify the defe ndant’s conduct while failing to establish a defense. The trial court g ave some

consideration to the factor, recognizing that Defendant was intoxicated at theti me of th e c ri me , b ut de te rm in ed th at “M r. Sa nd y, having been drunk so many times before, should have known not to have been drinking to that extent and especially while the

re were firearms in the house. But it is a factor in mitigation.” This Court has previous ly

held that voluntary intoxication is not an acceptable ground upon which to sustain the
use of this mitigating factor. See State v. Ricky Harlin Neal , 19 99 T enn . C rim . Ap p. LE XIS 328, No. 01C01-9806-CR-00270 (Tenn. Crim. App. at Nashville, April 8, 1999), no app. for perm. to appeal filed

. With respec t to mitiga ting fa ctor (10 ), that De

fendant assisted a

uth oriti es in locating and recovering property involved with the crime, we agree with the trial c ourt’s determination that little, if any, weig

ht should be afforded this mitigating factor. The e vidence shows that Defendant called his mother, w

ho inturn, contacted the police, and the gun was f ound lying on

the couch behind the vict im’s head. The trial court noted that Defendant “didn’t g o much beyond that and he ’s neve r assumed any re sponsibility for his conduct that this Court knows of. . . .”

The trial court also rej ected Defendant’s argument that the offense was committed under such unusual circumst

ances th at it is unlikely that a sustained intent to violate the law motivated the criminal conduct, mitigating factor (11). Ag ain, Defendant asserts his intoxication in support of the application of thi s mit iga ting factor . The trial court found that Defendant’s “g etting drunk and displaying

or threatening people with firearms is not an unusual e vent.” The evidencepresented at the sentencing hearing

shows that Defendant has, on several occasions, displayed a

nd even “pulled guns” on other people while intoxicated. David Gann testified at trial, and aga in at the sentencing hearin g, that he decid ed to leave De fendant’s house on the night of the shooting when he saw Defendant

pull out his gun. We agree with the trial court that Defe ndant’s intoxication does not qualify as an “unusua

l circums tance,”

and ther efore, does not su

pport the applica tion of this mitigating factor.

Defendant

complains that the trial court should have conside r ed his cooperation with the investigation by g

iving thr ee state ments to la

w enfor cement u nder the catch- all provision of Tenn.-9-

Code Ann. § 40-35-11 3(13) (199 7). The trial court denied application of this factor, finding that Defendant was “evasive and [has] not admitted any responsibility for the death of [the victim].”

The trial court properly

stated in the record its conclusions of law and findings of fact. The trial court, in its discretion, afforded greate r weight to the two enhancement factor s and ver

y lit tle weight to the one

mitigati ng fac tor, which we conc lude is noteven applicable to Defendant’s case

. Therefore, we conclude the length of Defendant’s sentence

is justified based on the existence of the enhanc ement fa

ctors.
Manner of Service

Defendant

also challenges the manne r in which

he was or

dered to serve hi s sentence. The trial court sente nced De fendan t, as a Range I sta ndard of fender , to serve the sentence in confinement in the Department of Correction. Defendant argues that he should have been granted full proba tion,
or in the alte

rnative , split

confinement, analternative sentencing option under Tenn. Code Ann. § 40-3 5-306 (1997), whereb y a defenda nt serve s a portio n of his se ntence, up to one y

ear, in confinement and the remainder on probation. The State contends that the recor d supports the trial court ’s jud gment i n denying p robat ion o r any other form o f alte rnati ve sen tenci ng.
A defendant is eligible for probation if the sentence rece ive d is eight yea

rs or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a) (1997). An especially mitigated or standardoffender convicted of a Class C, D, or E felony is presumed to be a favorable candidate f or alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997) . Def endant w as convicted of voluntar y ma nslaugh ter, a Cla ss C felony, and received an effective sentenc e of four

ye ars and s ix months. Accord

ingly , Defen dant is en

titled to the statutor

y pr esumption

in favor of alter nati v e sente ncing. Where a d efendant is entitled to the statutory pr esumption favoring alternative sente ncing, the State

has the burden of overcoming that pr es um pt io n w it h e vi de nc e t o t he co nt ra ry. State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds , State v. Hooper , 29 S.W.3d 1, 9-10 (Tenn. 2000);
see Tenn. Code Ann. § 40-35-102(6), -103 (1997).

The determination of whether Defendant is entitled to an alternative sentence and

whether he is entitle d to full

probation, however, are two separate inquiries, as they require different burdens of proof. State v . Bo ggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Although Defendant, a Class C felony offe

nder, is presumed to be a favorable ca ndidate for

alter nativ e sent encin g, he has the burden of establishing his suitability for full probation. Bingham , 910 S.W.2d a t 455; see Tenn. Code Ann. § 40-35-303(b) (1997). To satisfy that burd en, Def endant mu st show tha

t probatio n will “subserve the ends of justice and the best interest of both the public and the defenda nt.” Bingham , 910 S.W.2d at 456 (q uoti ng State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) overruled
on other grounds , Stat e v. Hooper , 29 S.W.3d 1, 8 (Tenn. 2000)). A lthough p robation must automatic ally

be considered b y th e trial c ourt, “the defendant is not automatic ally

entitled t

o probation as a matter of

law.” Tenn. Code Ann. 40-35-303(b) (1997), Sentencing Commission Comments; State v. Hartley , 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).-10-

In determining whether

to grant or deny

probation, the trial court must consider the nature and circumstances of the offense, the def endant’s criminal record, the defendant’s social history and present condition, the need for deterrence, a nd the bes t interests of the defendant and the public. State v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). The court should also examine the d efendant’s potentia

l for reh abilitatio n or lack thereof when con sidering

whether alterna tiv e sentencing is appropriat e. Tenn. Co de Ann. § 40-35-103(5) (1997). Sentencing issues must be decided in light of the unique facts and circumstances of e ach case. State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

Reasons for the trial court’s denial of probation included Defendant’s history of gun misus e and alcohol a

buse and that inca rcera tion would p

rovide a n effective dete

rrent to others in

the small
co mm un it y. Furthermore, the trial court found that Defendant’s lack of consistent employ ment and failure to pay

child supp ort, and h

is failur e to assum

e respon si bility fo r the offense and lack of candor at his trial and sentencing hear ing weighed aga

inst granting probation.

The trial court found that Defendant lacked candor at

trial and at the sentencing hearing . The defend ant's lack of c

redibilit y ma y a ppropria te ly b e consid ered as it ref lects on a de fendan t's potential for rehabilitation. State v. Goode , 956 S.W.2d 521,527 (Tenn. 1997). Although Defendant didnot testify at trial, the trial court e mphasized his failure to assume responsibility for the victim’s d eath. De fendant did not testify at the se ntencing hearing either, but the tria l court referred to a petition presented by

Defend ant at the

sentenc ing hea

ring, w hich bea rs the signaturesof 133 pe ople and argue s that Def

endant is“a quiet , hardwor king pe rson who l

ives by himself on the fa mily farm. He maintains the farm as well as pursuing his normal occupation as a licensed welder.” In rebutta l, the Statepresented proof

that Defendant’s union membership was going to lapse for failure to pay dues and that h

e had not w orked since the sp ring of 1998, and

the union h ad since

restric ted him from working. At the sentencing hearing, the c ourt heard from two witnesses who testified that they signed the petiti on, but did not know De fendant persona lly and could not attest to the representations made by Defe

ndant in the petition. The witnesses knew Defendant’s mother, who had circulated the petit ion fo r signi ng.
We conclude that the State submitted sufficient evidence to overcome the f avor abl e presumption regardi ng a lternati ve sente ncing. Further

more, De fendant failed to establish his suitability for full proba tion. Lack of truth fulness isprobativ e on the is sue of am enability to rehabilitation andis, there fore, a n approp riate fa ctor to c onsider i n granting or deny ing probation. State v. Neely , 678 S.W.2d 48, 49 (Tenn. 1984). A lack of rep entance and r emorse is also an appropr iatefactor to consider. See State v. Pierson , 678 S.W.2d 905 (Tenn. 1984). Although the trial court expressed a concern for deter rence, no spe cific proof was presented as to the need for deterrence, and our su

preme c ourt has h

eld that su ch evide

nce is necessa

ry in order to deny

probation
on that basis alone. State v. Hooper , 29 S.W.3d 1, 13 (Tenn. 2000). We share the trial court’s belief that i n Defendan t’s case, confinement is necessary to avoid depreciating the seriousness of the offense. Tenn. Code Ann. § 40-35-103(1)(B) (1997). The se are all factors that provide a sufficient basis upon which to deny proba tion.-11-

The trial court placed the greatest significance on the proo f presented at the sentencing hearing of Defendant’s history of “mixing guns with alc ohol.” In making its determination, the trial court stated, “we’ve got to do something in [Defendant]’s case to break this chain or this way that he lives his li fe, of dr

inking c onstantly

and using firear ms consta ntly or displaying and mishandling themconstantly.” We agree with the trial court’s determination that these circumstances make any probation an inappropriate sentence in this case.
CONCLUSION

After a caref ul revie w of the r

ecord, w e affir

m the judgment of the

trial cou rt.

___________________________________ THOMAS T. WOODALL , JUDGE