1 Additionally, following the appellant’s reconciliation with his wife, the Orrs’ home was

burglarized. Several o f t he appellant’s belongings, including two guns, were stolen during the 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE v. DAVID CARL ORR

Direct Appeal from the Circuit Court for Madison County No. 98-303 Franklin Murchison, Judge

No. W1998-00010-CCA-R3-CD - Decided May 19, 2000

The appel lant, David Carl Orr, was convicted in the Madison County Circuit Court of voluntary manslaughter. The trial court sentenced the appellant as a standard, Range I offender to four years andsix months in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s sentencing determination. In essence, the appellant contests the length of his sentence, arguing that the trial court erroneously applied the enhancement factor set forth in Tenn. Code Ann. § 40-35-114(1) (1997) in determining his sentence. The appellant also contests t he trial court’s denial of a sentencing alternative to incarceration. Following a thorough review of record and the parties’ briefs , we affirm the ju dgment of the trial

court.

Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is Affirme

d.

O GLE , J., delivered the opinion of the court, in which W ADE , P.J., and W ILLIAM S , J., joined.

Daniel J. Taylor, Jackson, Tennessee, for the appellant, David Carl Orr.

Paul G. Summers, Attorne y General and Re

porter, R. Stephen Jobe, Assistant Attorney General, Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The appellant’s conviction of voluntary manslau

ghter arose

from the fatal shooting of Alton Templeton on November 20, 1997, in front of the appellant’s home in Jackson, Tennessee. The evidence adduced at trial established that Mr. Templeton had engaged in an affair with the appellant’s wife, Sandra Orr, during a per iod of s eparation between the appellant and his wife. Subse quently, the Orrs decide d to reconcile, w

hereupon Ms. Orr

confessed to the a

ppella nt he r relationship

with Mr. Temp leton and attempted to terminate the relationship. However, Mr. Templeton beg an t o call the appellant’s home during all hours of the day and night. On several occasions,he spoke with the appellan t, “cus s[ed] and harass[ed] him,” and, according to the appellant, threa

tened to kill him. 1burglary. The appellant attributed this burglary to Mr. Templeton and also attributed to

the victim several nighttime disturbances at the appellant’s home.

2 On the night of the murder, Mr. Templeton had a blood alcohol level of 0.17 and also tested positive for the presence

of a marijuana metabolite. The appellant had a blood alcohol level of 0.18.



### -2- On the night of the homicide, the appellant returned home intoxicated and informed his wife that

he intended to call Mr. Templeton and confront him concerning his repeated telephone calls to the appellant’s home. The appellant did in fact call Mr. Templeton and demand a n explanation for

the harassment. A

ccording to the ap

pellant, Mr. Templeton aga in threatened to k

ill him and also th

reatenedto burn his house down. The appellant concluded the conversation by stating, “Just come over here. Just come over here then.” Following the conversation, the appellant locatedhis shotgun and loaded the weapon with ammunition. According to Ms. Orr, the appellant stated at this time that he intended to kill Mr. Templeton.

Mr. Templeton soon arrived a t the ap pellant’s residence. He got out of his car, removedhis shirt, and began y elling obscenities

at the appellant.

He also informed the appellant that he and Ms. Orr were currently engaged in an affair. Accordingly, the appellant we ntoutside to meet Mr. Templeton, initiall

y leaving his shotgun

inside the carpor

t attached to his home. He and M r. Templeton then began to fight. Several neigh bors who witnessed the altercation testified at the appellant’s trial that the two men appeared to be engaged in “mutual combat.” Finally, the appellant threatened

to call the police, and Mr. Templeton responded that he intended to leave. Mr. Templeton pickedup his shirt, got into his ca r, and shifted the car’ s transmission into r everse gear. A

t this point, the appellant re

trieved his shotgun

and shot into Mr. Te

mpleton’s vehicle

, killing the victim. 2

The appellant was ind

icted by a Madison C

o unty Grand Jury on one count of first degree murder, and his ca

se proceeded to trial on September 28, 1998. At the conclusion of the trial, the jury returned a verdict of guilt of the lesser included offense of voluntary manslaughter. The trial court conducted a sentencing hearing on November 3, 1998.

At th e sentencing hearing, the State relied primarily upon the evidence adduced at trial and the pre-sentence report. The pre-sentence report reflects that the appellant has been steadily employedat least since 1996. His criminal record included one conviction in 1 993 for public intoxication. Additionally, at the time of the instan t offense, the appellant had been indicted for aggravated

assault and was released on bond in that case.

With respect to the appellant’s indictment for aggravated assault, the State also presented the testimony of Sandra Orr that the appellant had whippedher with a belt. Finally, Mr. Templeton’s parents and his brother submitted statements for the court’s consideration.

The appell an t, in turn, present ed letters from va

rious individuals inc

luding family members, friend

s, former employe

rs, and former te

achers, and als

o presented the te

stimony of his uncle, William Luther Hinds. Mr. H inds testified that

, if the appellant

were release

d, he would
return to his hometown of Lewisburg, Tennessee, where “he has a support system behind him in his

### -3-

family and his friends.” Mr. Hinds further testified that the appellant possesses a “very good work ethic.” He observed

that the appellant had

always worked, w

as a certified p

ipe welder, and w

ould face no difficulty in finding employment following his release from incarceration.

As a Range I offender, the appellant was subject to a sentence of not less than three

nor more than six years incarceration in the Tennessee Department of Correction for the offense of voluntary manslaughter. See Tenn. Code. Ann. § 39-13-211 (b) (1997) and Tenn. Code. Ann. § 40- 35-112(a)(3) (1997). As noted earlier, the trial court imposed a mid-range sentence of four years and six months incarceration in the Tennessee Department of Correction. In support of its sentencing determination, the

court entered th

e following finding

s of fact: All right, in this case

, the C ourt finds the following aggravating circums tances, and I use reference to 40-35-114. The Court fi nd s Number 1 to be present, the defendant has a previous history of criminal behavior in addition to tho se neces sary to establish the appropriate

ra nge. Of cou rse, the range is one. This is not a heavy aggravating factor, I’ll admit. He does have some prior history of domestic violence. It does

appear that he h

ad a public drunke

nness conviction way back there s omewhere. It d oes appear from the evidence that he had been driving under t he i nfluence. Now, t

hese

are no convictions exce pt for th e public drunkenness but that one conviction for a Class C misdemeanor and some criminal behavior. * * * The Court does find as an enhancement fac tor Number 9, the defendant possessed or employed a firearm during the commission of the offense . That’ s pretty clear tha t that happened. T

hat is not a necessary element of the offense of homicide and can be andwill be and is considered an aggravating factor. * * * So, we find Number

1 and Number

9 enhancement factors. Number 1 i s not particularly serious. The Court does always consider , an d very serio us though, the possession of a firearm. That is a very seri ous enhancement factor. That pulls the case up off of the minimum sentence of

three years. Additionally, the court found in mitigation that the appellant possesses a good employment history andalso possesses a high potential for rehabilitation. In particular, the court noted that the appellant enjoyed“a great deal of family and friend support.” Nevertheless, the trial court denied the appellant any form of sentenci

ng alternative to

incarceration

in order to avoid depreciating the seriousness of the appellant’s offense and in light of the need for deterrence.

II. Analysis Again, the appellant challenges both the length of his sentence and the trial court’s denial of a

sentencing alternative to incarceration. Appellate review of the length, range, or manner of service of a sentence is de novo. Tenn. Code. Ann. § 40-35-401(d) (1997). In conducting its de

novo review, this court considers the following factors: (1) the evidence, if any, received at the trial

### -4-

andthe sentencing hearing; (2) the pre-sentence report; (3) the principles of sentenc in g and arguments

as to sentencing a lternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence a

nd in formation offere d by the parties on e nhancement and m

itigating factors ; (6) any statement by the defendant on his own behalf; and (7) the potential for rehabilitation or
treatment. Tenn. Code. Ann. § 40-35-102, -103, -210 (1997). See also State v. Ashby , 823 S.W.2d 166, 168 (T enn. 1991). The bu rden is upon the ap

pellant to demonstr

ate the improprie

ty of his
sentence. Tenn. Cod e. Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the

trial court adeq

uately considered sentencing principles and al l relevant facts andcircumstances,

this court will acc

ord the trial cour

t’s determin

ation a presumption of correctne ss. Id. at (d); Ashby , 823 S.W.2d at 169.

The statutorily prescribed procedure for determining the length of a felony sentence is set forth in Tenn. Code . Ann. § 40-35-210. The presumptive se

ntence for a cla

ss C felony is

the minimum sentence in the ra nge. Id. at (c). However, if there are enhancement and mitigating factors, a court must start at the minimum sentence in the range, enha

nce the sentenc

e as appropriate for the enhancement factors, and then reduce the sentence as appropriate for the

mitigating factor

s. Id. at (e). Assigning the appropriate we ight to applicable

factors is within

the discretion of the trial
court when "’bala

ncing the r elative degrees of culpability within the totality of the circumstances of the case involved

.’" State v. Boggs
, 932 S.W.2d 467, 475 (Tenn.Crim.App. 1996)(citation omitted).

Initially, the record supports the trial court’s imposition of a mid-range sentence. In reaching this conclusion, we note that the appellant does not contest the trial court’s applicationof Tenn. Code Ann. § 40-35-114(9), concerning the appellant’s use of a firearm during the commission of the offense; nor

does the appellan

t contest the trial

court’ s cons ideration of mitiga ting factors. Moreover, we reject the appellant’s assertion that Tenn. Code. Ann. § 40-35-114( 1) is inapplicable in this case, because the trialcourt relied upon criminal behavior by the appellant of which he was
notconvicted. Weacknowledge tha t a mere arrest o

r criminal charg

e does not constitut

e "criminal behavior" within the meaning of Tenn. Code Ann. § 40-35-114(1). Statev. Carico , 968 S.W.2d 280, 288 (Tenn. 1998). Conversely , however, this en

hancement fact

or is not solely appl

icable to "actual convi ctions ." State v. Johnson , No. 03C01-9901-CR-00009, 1999 WL 1052006, at *7 (Tenn.Crim.App. at Knoxville, Nove mber 12, 1999). Ra

ther, in enhancing a sentence, a trial court may utilize criminal behavior shown by a preponderance of th e evidence. Carico , 968 S.W.2d at 288. See also State v. Ro bi nson , No. 01C01-9710-CR-00496, 1998 WL 934577, at **4-5 (Tenn. Crim. App. at Nashville, December 30, 1998), perm. to appeal denied , (Tenn. 1999).

In this c ase, testimony at trial established that, on the day of the homicide an d immediately

before the homic

ide, the appellan

t committed the off

ense of driving under the influence of an intoxicant. Of course, this court has been reluctant in the past to use Tenn. Code Ann. § 40-35- 11 4(1 ) “to enhance subs

equent criminal a

cts as a result of p

revious ones occ

urring very close

in time.” State v. Hicks , 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993). Accordingly, this testimony alone would not support the application of the criminal history enhancer. Id. However, Sandra Orr’s testimony at the sentencing hearing also established that the appellant had pre

viouslyassaulted her3 Ms. Orr’s testimony at the sen tencing hearing s

uggests that this inc

ident occurred p

rior to the Orrs’ separation and the commencement of Ms. Orr’s relationship with Mr. Templeton.



### -5- witha b elt

. 3 Finally, the pre-s entence repor

t reflects a misde

meanor convictio

n in 1993 of public intoxication. In sum, while we agree with the trial court that enhancement factor (1) is not entitled
to great weight, we cannot conclude that the trial court erred in affor

ding some consider

ation to this factor in determining the length of the appellant’s sentence.

We also reject the a

ppellant’s a

sse rtion that the tria

l court erred in d

enying him a sentencing alternative to incarceration. In this regard, however, the trial court faile

d to state on the record whether it was applying the presumption in f avor of alterna

tive sentencing se

t forth in Tenn. Code. Ann. § 4 0-35-102 (6). On appeal, the State concedes that the appellant was entitled to the presumption. Nevertheless, upon a de novo review, weconclude that “evidence to the contrary” not only overcomes the presumption but militates in favor of the appellant’s confinement. Id.

We note, and the State properly co ncedes, that the r

ecord before th

is court does not support the tria l court’ s finding of a need for general deterrence. “A finding that the appellant's
sentence will have a deterrent effect cannot be merely conclusory.” State v. Zeolia , 928 S.W.2d 457, 461 (Tenn.Crim.App. 1996). Yet, under Tenn. Code. Ann. § 40-35-103(1)(B) and Tenn. Code. Ann. § 40- 35-210(b )(4), the nature and circumstances of an offense may serve as the sole basis for denying a sentencing alternative to incarceration if the offense was especially viol e nt, horrifying, reprehensible, offensive, or otherwise of an excessive or exaggerated degree, a nd the nature of

the offense outweighs all factors favoring a sente ncing alternativ

e to incarceration. State v. Grissom
, 956 S.W.2d 514, 520 (Te

nn. Crim. App. 1997)(citing State v. Bingham
, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995)).

We agree with the State that our dec ision in Sta te v. Buell , No. 01C01-9607-CC

00292, 1997 WL 677947 (Tenn. Crim. App. at Nashville, November 3, 1997) , is s omewhat analogous to the instant case and does provide some guidance. In Buell , the victim and the defendant hadbeen friend s for approximately two years. Id. However, on the morning of the defendant’s offense, thevictim accused the defendant of sexually assaulting the victim’s daughter. Id. at *1. Twenty minutes later, the victim arrived at the defendant’s house and verbally accosted the defendant’s wife. Id. While the victim was cursing at the defendant’s wife, the defendant retrieved a “.30 caliber lever action rifle” and fired a round into the air. Id. The victim immediately entered his vehicle, whereupon the defendant fire

d a second shot. Id. The second shot entered the windshield

of the victim’s vehicle and struck the victim in the chest. Id. The defendant asserted at his trial that he had fired the second shot accidentally. Id. At the conclusion of the d efendant’s tria

l,

a lthough the defendant had been indicted on one count of first degree murder, the jury fo und th e appellant guilty of the lesser included offense of voluntary manslaughter. Id. at *2. In sentencing the defendant, the trialcourt denied the defendant an alternative sentence solely on the basis of the seriousness of the offense. Id. at *4.

In upholding the trial court’s sentencing determination, this court in Buell noted that4 The appellant testifi ed that he only

obtained his shotgun, because Mr. Templeton threatened
to kill him and burn his house down. However, theappellant instigated the confrontation with Mr. Templeton on the evening in qu estion. Moreover

, at the time the app

ellant used his

sho tgun, Mr. Templeton was departing.



### -6- “[c]onsideration

of leniency in both t he verdict and the length of the sentence are proper considerations for finding confinement necessary under Tenn. Code Ann. § 40-35-103(1)(B).” Id. See also State v. Braden , No. 01C01-9610-CC-00457, 1998 WL 85285, at *8 (Tenn. Crim. App. at Nashville, February 18, 1998)(jury leniency is properly considered by the trial court in finding that confinement

is necessary under Tenn. Code Ann. § 40-35-103(1)(B)). Additionally, this courthas recognized

that “the voluntar

y combination of al

coholi c intoxication with dangerous instrumentalities is a matter of serious public concern which may justify a denial of [an alternative sentence].” State v. Sutton , No. 03C01-9806-CC-00204, 1999 WL 301587, at *4 (Tenn. Crim. App.
at Knoxville, May 14, 1999). 4 Finally, as corre ctly noted by the State,

the record does

reflect that,
at the time of the instant offense, the appellant was released on bond in anothe r criminal case involvin g a vi olent act. See also Tenn. Code Ann. § 40-35-103(1)(C)(in imposing a sentence involving confinement, a

court may consider that “[m]easures less restrictive than confinement have . . . recently been applied unsuccessfully to the defendant”).

III. Conclusion For the foregoing

reasons, we aff

irm the judgment of t

he trial court.