1 The t erms of the plea agreem ent further provid ed that in addition to red ucing the hom icide from a class A

felony to a class D fe

lony, a se

cond count of “abuse of a corpse ” would be dismis sed. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE June 19, 2001 Session
STATE OF TENNESSEE v. GALEN D EAN EIDSON Direct Appeal from the Criminal Court for Sumner County

No. 965-1999 Jane Wheatcraft, Judge

No. M2000-02390-CCA-R3-CD - Filed August 16, 2001

The Appellant, GalenDean Eidson, was i ndicted by a

Sumner County

Grand Jury for second degree murder. Pursuant to the terms of a plea agreement, Eidson pled guilty to the reduc ed offense of reckless homicide. 1 Following a sentencing hearing, the trial court sentenced Eidson to four years confinement

in the Department

of Correction. On

appeal, Eidson ra

ise s the fol lowing sentencing issues for our review: (1 ) Whether the l ength of the sentence imposed by the trial court was excessive; and (2) whether the trial court er

red in sentencin

g him to total confinement in the Department

of Correction. Upon de novo review, we find that a total confinement sentence of four years is j ust ifi ed i n th is c ase. Acco rdi ngly, the judgment of the Su mner County Cr

iminal Court is affirmed.

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

l Court is Affirme

d.

D AVID G. H AYES , J., delivered the opinion of the court, in which T HOMAS T. W OODALL , J. and L. T. L AFFERTY , S R . J., joined.
RichardMcGee and Wendy S. Tucker, Nashville, Tennessee, for the Appellant, Galen Dean Eidson.
Paul G. Summers, Attorne y General and Re

porter; Michael M

oore, So lici tor General; Patr icia C. Kussm ann, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; an d Sallie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.2 During questioni ng by Trooper Carte

r, the Appel

lant st ated that the accident took pl ace duringdaylight hours,
some ti me between 5:00 and 5: 30 p.m. and that it was not

yet raini ng or “had just

begun to rai

n” at the time the accident occurred.

3 The Appellant’s versi on to Trooper Carter was slight ly diffe rent. He t

old Carter

that he was driving t

oo fast and swerved to miss som e deer.
-2- OPINION Factual Background

In 1999, the twenty-six-year-old Appellant worked on the family farm near Portland in Sumner County. The farm

is owned by the Appellant’s parents; however, the Appellant is a partner in the farming o peration. T obacco is th e principl e agricultur al crop. Alt hough the Appellant worked in the fields, he also supervised the farm workers, which include d immigrant laborers. At approximately

5:30 p.m. on Octobe

r 8, 1999, the Appe

llant was transpor

ting three His

pa nic farm workers in his truck over a field road on the family

farm when the truck overturned. 2 It had begun to rain that afternoon and continued to rain throughout the night. The site at which the accident occurred involved an up-hill grade. The Appellant swerved to miss some deer, overturning the truck and pinning the victim, Emilio Almaraz Monjaraz, underneath the vehicle.
All three passengers were illegal immigrants. Acc o rding to the Appellant, the other two passengers told him “no police, no problems” just before leaving the scene on foot. The Appellant used his cell phone to

call his best

friend, Timmy Jenkins. The Appellant told Jenkins that “he had
someproblems out on the farm” and requested that he bring him a chain. Jenkins agreed and later he and his wife, Melissa Jenkins, metthe Appellant on a paved road at the bottom of a hill near the farm. Upon arriving, t

he Appellant told Jen

kins, “I got t

o go home first. My

battery is going dead
on my phone. I need to call Nikki [the Appellant’s wife] and tell her what’s going on.” Jenkins then took the Appellant back to his [Jenkins] house where the Appellant phoned his wife.
Jenkins and the Appellant decided to go back to the truck. However, Jenkins’ s wife chose notto go because it was too cold. On the way to his truck, the Appellant first explained to Jenkins that three farm workers were riding wit h him when he swer

ved to miss three cows and overturned the t ruck. 3 As th ey were approaching the vehicle, howe ver, the Appellant told Jenkins, “I have a problem, and I ha ve tot aled t he tru ck. I fl ipped it up side d own. I h ave a dead Mexican on my hands.” Jenkins first thought the Appellant was joking. The Appellant then told Jenkins to

turn his headlights off because “he didn’t want anybody to call the law.”
The Appellant asked Jenkins to help him upright the truck so they could take it to the bottom of the hill and hide it in the shed. Jenkins refused to help. The Appellant then grabbed th

e chain from the back of

Jenkins’s truck and “attached it to the truck and the tractor that was already backed up to the truck before[Jenkins] got there.” The Appellant got on the tractor, started it, and pulled the truck upright. The Appellant told Jenkins to shine his flashlight toward “the Mexican” so he could check onthe body. Jenkins complied. The Appellant then began discussing various ideas of-3-

how to get rid of “the b ody” and decided that he was not going to call police bec ause he had previously

“filedbankruptcy

. . .[and didn’t want

] to lose [his truck].” The Appellant also stated that he did not want anyone to know that the accident had occurred on his pare nts’ land.
After some discussion about what he should do next, the Appellant reached down, grabbed the victim’s ankles and started dragging him. He proceeded to drag the body approximately 300 yards towards a hog waste lagoon surrounded by dense woods. During the dragging, the victim’s shirtwas torn off when the victim became ensnared on a fence. The Appellant dislodg ed the victim and proceeded into the wooden area. Jenkins heard a “big splash” before the Appellant yelled, “He’s floating. What should I do?” Because the body was still floating, the Appellant asked Jenkins for
a gun sohe could shoot holes in the body to make it sink. Neither the Appellant nor Jenkins had a gun and Jen kin s “d idn ’t t hin k [t hey] should shoot it so it would sink better.” Jenkins then asked the Appellant if he saw a stick anywhere. Jenkins heard the Appellant break off a tree branch, whi ch the Appellant used to push the victim’s body under the water so that it would not float to the surface. Several minutes la

ter the Appellant

emerged from t

he woods.
The Appellant asked Je

nkins if he would he

lp him clean up the d

ebris from the truck

. Jenkins refused, telling him that it was late and that he had to get up early f or work. The Appellant gaveup and said that

he would come bac

k to clean things u

p in the morning be

fore hisfather arrived to hang tobacco.

Jenkins returned th

e Appellant to the A

ppellant’ s house around 9:15 p .m. Sometime

that night, the Ap pellant’s wi fe left a message with the insurance company a bout the wrecked truck. The Appellant’s wife testified that the Appellant never mentioned anything about the victim or his death that night, but only mentioned that he had wrecked his truck. By 12:30 a.m., the two other Hispanic farm workers, who spoke no English, had contacted
a Spanish interpreter and the three proceeded to the Portland City Police Department to report the accident. After advising Officer Kevin Williams of the incident, the three returned with the officer to the scene to assist in locating the overturned truck. Troope r Robert Ca

rter of the Tennessee Highway Patrol also overhe

ard the call

and followed Officer

Williams as they returned to search for the truck. Appr o ximately an hour later, at approximately 1:30 a.m., the “heavily damaged” truck was locatedon the Eidson farm in an u p right position. Although debris from the truck was scattered over the ground, no body was found at the scene.
Once the dispatcher identified the license plate as belonging to the Appellant, the App

ellant, his mother and brother were notified and asked to come to the scene. After being Mira ndized by Trooper Carter, the Appellant explained that he had been d riving, had wrecked his vehicle, and after being knocked unconscious, awoke to find that the three men riding with him “had done gone.” The Appellant stated that

he “guess[ed] they hit the road running.” He related that he used his cell phone to call Jenkins who came and pick ed him up and took him home. The Appellant further explained that he and his father-in-lawhad returned to the scene later that night and turned the truck upright so that he [the Appellant] coul d retrieve some im

portant papers.

He stated that he did not call the police because it was on private property and thought no one had bee n hurt. The Appellant agreed to accompan y the officers b ack to the sh eriff’s depa rtment for f urther ques tioning.-4-

At appr oximately 7:00 a.m., Detective Carl Edison, of the Sumner County Sheriff ’ s Department,

int ervi ewed the App ell ant and rece ive d a s ubs tan tia lly s imi lar sto ry t o the one the Appellant gave Trooper Car

ter at the scene. During a second interview later that morning, the Appellant again told Detective Edison that he was knocked unconscious and awoke to find no one present.
After the interviews with the Appellant, Detective Edison interviewed Jenkins for a second time. A lthough J enkins initially denied any

knowledge of th

e victim’s death, h

e eventually

told Detective Edison about the ev ents of the previo

us nig ht an d di scl ose d th e lo cat ion of t he b ody. Detective Edison then intervi ewed the Appella

nt a third time

and told him “he knew there was a dead Mexican on his property.” The Appellant started cry ing and asked

for a lawyer. Detective

Edison ceased the interview.
As a result of the inte

rview with

Jenkins, Emergency Management was dispatche d at noon to the lagoon to sea

rch for the victim’s body. Aft er two attempts,

and through the use of grappling hooks, the victim’s body was retrieved from the lagoon. The victim was found without a shirt. A search of the area immediately surrounding the lagoon revealed “questionable impressions or bent vegetation.” Officers believed these marks suggested the par ticular path taken by the

Appellant as he drug the victim’s body through the woods to the lagoon. No “drag marks,” however, were found in the surrounding

fields. Approximately

nine days la

ter, the Appellan

t paged Jenkins an

d asked that he call

him. Jenkins first called Dete ctive Edison, howe

ver, and told him ab

out t he Appellant’s message. Detective Edison p laced a recording device on Jenkins’s telephone before Jenkins answered the Appellant’s page. When Jenkins called the Appellant, the Appellant stated, “Everything [is] under
co ntro l and [don’t] talk to the police; [I] have a lawyer and every thing [is] under control; [I] have it taken care of, just stick to the original story.”
Dr. Ch arles Harlan, a forensic pathologist, performed an autopsy on the victim and determinedt hat “the ca use of death was drowning.” Dr. Harlan further noted that the victim had other injuries “consistent

with trauma such as you

might see in a motor vehicle accident.” However, Dr. Harlan testified

that the injuries sustained during the wreck were neither “life threatening or life terminating injuries” and tha t “the injuries fr

om the truck acci

dent itself were

insufficient to ca

use death.” On cross-examinat ion, defense

counsel asked Dr. Harlan if it was possible for the victim to have “drowned” while

pinned under the truck if he had been pinned face down. Dr. Harlan replied that it “is possible if a pool of water was there.”-5- ANALYSIS I. Whether Sentence Imposed was Excessive
The Appellant argues that the four-year sentenc e imposed by the trial court was exces sive basedupon the misapplication of enhancing factors and the failure to apply r el eva nt mitigating factors. When an accused challenges the length, range, or the manner of service of a sentence, th is Courtha s a duty to cond uct a de novo review of the sentence with a presumption that the determinations made by the t rial court are c

orrect. Tenn. Co

de Ann. § 40-35-40 1(d). This pr esumption is “conditioned upon the affirmative showing in the record that the t rial cour t considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Furthermore, when conducting a de novo review of a sent ence, this court mus t co nsi der: (a) t he ev ide nce, if a ny, received at the trial and the sentencing hearing; (b) the pre-sentence

report; (c) the principles of sentencing and arguments

as to sentencing alternatives; (d) the nature and char

acteristics of th

e criminal conduc

t involved; (e) any stat

utory mitigating or enhancemen tfactors; (f) any statement that the defendant made on his own behalf ; and (g ) th e potential or lack of potential for rehabilitat io n or treatment. Tenn. Code Ann. §§ 40-35-102, 103, 210.
If our review reflects that the trial court followed the statutory sentencing pr ocedure, imposed
a lawful sente

nce after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact that are adequately supported by the record, then

we may not mo

dif y the sentence even if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial court fails to comply with

the statutory

provisions of sente

ncing, appella

te review is de novo without
a presumption of correctness. State v. Winfield , 23 S.W.3d 279, 283 (Tenn. 2000 )(citing Statev. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). Furthermore, we emphasize that facts relevant to sentencing must be established by a preponderance of the evidence a nd not beyond a reasonable doubt. Id.

In the pres ent case , th e Ap pel lan t pl ed gu ilt y, as a range I offender, to the offense of rec

kless homicide, a class D felony. Tenn. Code Ann. § 39 -13-215. The sen tencing rang

e for a class D felony is “notless than two (2) nor more than four (4) years.” Tenn. Code Ann. § 40- 35-112(a)(4). The presumptive sentence for a class D felony “shall be the minimum sentence in the range if there
are no enhancement or mitigating factors.” Tenn. Code Ann. § 40-35-210(c). Where enhancement factors are present, but no mitigating fac tors, “then t he court may set the sentence above the minimum in that range but still within the range.” Tenn. Code Ann. § 40-35-210(d). Where there
are both enhancing and mitigating factors present, “the court must start at

the minimum sentenc

e in the range, enhan

ce the sentence

within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.” Tenn. Code Ann. § 40-35-210(e).4 The evidenc e in the record is somewhat contradictory with res pect to whether the Appellant ’s prior cri minal history was considered as an enhanc emen t factor pur suant to T enn. Co de Ann . § 40-35 -114(1 ). During the se ntencing hearing, the tr

ial court stated,

“I don’t think that

the case l

aw of this s

tate i s such that

I can use t

he leaving a

scene of
an accident of a property damage accident as an enhancing factor. I am consid ering that because it shows me that there is a tendency to avoid responsibi lity.” Lat er, in its order d enying bond, th e trial court ind icated that it ha d, in fact, applied th is enhanc emen t factor.

5 On October 24, 1997, the Appellant hi t a tile culvert and mailbox and immediately left t he scene. The property owner found the Appellant at another location changing the tire “he had busted” when he h it the tile culvert and mailbox. The prope rty owner brought

the App ellant back to the propert y where the mail

box was damaged and called police. Officer Dewel Scruggs tes

tifi ed that t he Appellant

had been drinki

ng, but was no t cha rged with DUI “becau se he wa s not imp aired.”
-6- A. Enhancement Factors Upon de novo review, we first address the Appellant’s argument that the trial court erred by applying three enhancement factors during sentencing. When imposing the sentence, the trial court found no applicable mitig ating factors a

nd apparently

4 applied the followi ng three enhancement factors found in Tenn. Code Ann. § 40-35-114: (1) The defendant has a previous histor y of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range ; (5) The defendant treated or allowed a victim to b e treated with exceptional cruelty during the commission of the offense; and (15) The defendant a

bused a position of p

ublic or private

trust, or used a special skill in

a manner that significantly facilitated the commission or the fulfillment of the offense.
The Appellant first contends that the applica tion o f enhancement f

actor (1) was ina

ppropriate to establish prior

criminal conduct and, thus, improperly considered by the trial court. The Appellant had previously p

led guilty t

o reckless driving

and leaving the

scene of an acc

ident. 5 Although it is not e ntirely clear from the record that the trial court applied enha ncement factor (1), we

find th e Appellant’s previous convictions of reckless driving and leaving the scene of an accident applic

able in this case. Additionally, we note that the Appellant was arrested for assault in 1997, placed on probation, with his record later being expunged. The testimony and evidence of the criminal acts preceding the arrest are admissible as evidence of prior bad acts or evidence of socialhistory even if expungement is later obtained. State v. Schindler , 986 S.W.2d 209, 211 (Tenn. 1999). Thus, all three criminal convictions may properly be consider ed as applicable under enhancement factor (1). Second, the Appellant contends that the trial court erred by

applying enhancement factor (5). Spe cif ica lly, he argues that because the Appellant thought the victim was dead when he removed

his bo dy from underneath the truck and placed it in the lagoon, that his actions did not constitut e exceptional cruelty. We disagree.6 The only mention of the theory that the victim drowned at the acci dent site was presented by defense counsel in a hypothet

ical ques tion:

Defens e Coun sel: And it occur red t o me, Dr . Ha rlan, there is another theory yo u a nd I had not dis cussed, and that is that t

he deceased,

as a resul

t of the
car accident, was unconscious and face down under the truck. That is c onsiste nt with t he injuries t hat you saw, true? Dr. Harlan: Correct.

Defens e Coun sel: And that a r ainstorm deposited water, a n d due to the man’s unconsciou sness and the fact that he was f

ace down, he drowned?

Dr. Har lan: That is possibl e if a pool of water was t here.
No proo f was ever introd uced by the d efense to suppo rt this hypothesis.
-7- With respect to enhan

cement factor (

5), we initially

acknowledge that our

supreme court has determinedthat proof of serious bodily injury does not necessarily establish the enhancement factor of "exceptional cruelty." State v. Poole , 945 S.W.2d at 98. Inst

ead, our supreme court has found that before this factor may be applied, the facts of the case must "support a finding of 'exceptional
crue lty' that 'demonstrates a culpability distinct from and appreciably greater than

that incident to'

" t he crime. Id. Nonetheless, our courts have upheld the application of exceptional cruelty based upon proof of extensive physical abuse. Statev. Arnett , No. E1998-00051-SC-R11-CD (Tenn. at Knoxville, July 3, 2001), not yet released for publication. When the trial court applies enhancement factor (5), it should state what actions of the defendant, apart from the elements of the offense, constituted exceptional crue lty

. State v. Goodwin

, 909 S.W.2d 35, 45 (Tenn. Crim. App.1995). Although the trial court in t his case did not articulate

its reasons for finding exceptional cruelty, we nonetheless

conclude that t

he record is more than adequate to show that this enhancement factor applies to the Appe

llant.
The plain language of the statutory enhancing factor require

s that the victim “be

treated with
exce ptio nal crue lty during the commis sion of the offens e .” Tenn. Code Ann. § 40-35-15(5). (emphasis

added). Despite theAppellant’s assertions that the victim drowned while under the truck, the guilty plea

hearing fore

closed any

issue as to when the

victim ’s death occurred. 6 During the prosecutor’s recital of the facts supporting the guilty plea, the Appellant agr eed to the statement that “. . . the autopsy by Dr. Harlan ruled that [the victim] died from drowning after he was thrown in the pig pond.” Thus, the Appellant’s ongoing treatment of the victim from the time the victim

was pinned under the truck to the time the vi ctim was th rown in the lagoon occurred “during the commission of the offense.” Instead of seeking med ical a ssistance, the Ap

pellant left the vi

ctim under the truck until his friend arrived with a chain. Once he uprighted the truck, the Appellant drug the victim’s unconscious body three hundred yar ds across tobacco fields. The victim was ensnared
on a fence during

this dragging process. He then proceeded to drag the victim through dense woods-8-

until he reached the

“pig pond” or lagoon. He threw the victim into the lagoon and, upon realizing that he was floating, asked

for a gun so he c

ould shoot holes in

the body to make it sink. When no gun was available, h

e broke off a tre

e branch and pok

ed the body r

epeatedly until it sta

yed under water. Certainly, the facts of this case are sufficient to be considered exceptionally cruel as they represent a culpability distinct from and appreciably greater than that incident to the offense. Finally, the

Appellant argu

es that enhance

ment factor (15)

was also improper

ly applied by the t rial court. Speci

fically, the

Appellant argu

es that no trust rel

ationship existed tha

t made th e victim particularly

vulnerable to him.

He further asse

rts that even if the

re was a trust relationship, the victim’s death

was not caused thr

ough an abuse of

that trust.

In finding that enhancement factor (15) was applicable, the trial court re

asoned as follows : The defendant abused a position of public or private trust, I think is applicable. He was the employer of these people. They came to work onhis farm, and I think that they have a right to tr

ust him and to trust

that, having had an accident, that he would do something to ca

re for them.
The application of enhancement factor (15), tha

t the defendant a

bused a position of p

ublic or private trust, requires a finding, first, that the defendant occupied a position of trust vis-a-vis the victim and, second, that the defendant abused that position in a manner that sig nificantly facilitated the commission of the offense. See State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.1996).

In State v. Gutierre z , 5 S.W.3d 641, 645 (Tenn. 1999), our supreme court discussed the application of the

private trust fac

tor as follows:
As stated in State v. Kissinger , to determine the application of the private trust factor, the court must look to "the nature of therelationship," and whether that relationship "promoted confidence, reliability, or faith." State v. Kissinger , 922 S.W.2d at488. It is the exploitation of

this vulnerability

to achieve crimin

al purposes which

is deemed more blameworthy and thus justifiesapplication of the enhancement factor. Acco rdi ngly, factor (15) is construed to apply only where there is evidenc e that the natu re of th e relationship between the perpetrator and the adult victim caused the victim to be particularly vulnerable. If such a relationship or "

private trust" is shown, the State must then prove that the perpetrator abused that relationship in committing the crime. As with all determinations regarding the application of an enhancement factor, the utilization of this analysis " is a task that must be undertaken on a case-by-case basis." Poole , 945 S.W.2d at 96. Although a private trust may have existed between the Appellant and the victim by virture of
a supervisor/employee relationship, we are unable to conclude that the Appellant abused this position of trust in a manner that significantly facilitated the commission of the offense. Accordingly, we find the trial court improperly applied enhancement factor (15).7 T rooper Car ter te st if ied tha t du ri ng his i nit

ial que st ion ing of t he Ap pel lan t, whi ch o ccu

rre d ap pro xima

tel y nine hours after the wreck, he obser ved nothing whi ch would have led him to believe that the Appellant had been consuming alcohol. Officers did find empty beer containers at the scene. -9- B. Mitigating Factors
The Appellant next argues that the trial court erred by not applying the following mitigating factors, pu rsuant to T enn. Code An n. § 40-35- 113, durin g sentencing: (3) Substantial grounds exist tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense; (11) The defendant, althoug h guilty of t he crime, committed theoffense under such unusual c

ircumsta nces that it is unlikely that a sustained intent to violate the law motivated the criminal conduct; and (13) Any

other factor consistent with the purposes of this chapter, [ i.e. , (1) no prior r ecord, ( 2) model c

itizen and (3) remor

se for his conduct. ].
With respect to

mitigating factors (3) and (11), the Appellant argues that the overturning of his truck
was an “unintentional act” and that the Appellant “had no intention of c ausing the death of [the victim].” We first note that the Appellant’s argument is misplaced as it focuses upon the vehicular accident rather than the Appellant’s conduct which resulted in the victim’s death. Moreove r, the offense of reckless homicide does not require an intentional act. According, we find that no grounds exist to excuse or justify the Appellant’s conduct. Furthermore, we find that the Appellant’s criminal conduct, which resulted in t he drowning of th

e victim, was motiv ated by monetary rea sons and concealment of t

he factual even

ts of the acciden

t.
Fin all y, the Appellant argues that, pursuant to mitigating factor (13), the trial court erred by refusing to consider “that he has no prior record, and that he has been a model member of his fam ily, his community an

d church.” He f

urther argue

s that his “remorse” shoul d have also

been considered
as mitigating evidence. As discussed prev iously, the A

ppellant does,

in fact, have a criminal record. Fur ther, despite the Appellant’s claims that he was a model citizen, the evidence in the record indicates otherwise. At the time of the accident, the Appellant related to Jenkins that he pre

viously drank one beer and was splitting a twelve-pack of beer with the three passengers. 7 Further testimony revealed that the Appel lant had a severe drinking problem during the past two to three y ears and Jenkins testified that the Appellant had a “violent history.” We find the trial court properly dec lined to consider the Appellant’s alleged status as a “model citizen” in the com munity as mitigating evidence under factor (13).
Last ly, with respect to the Appellant's expr

essions of remors

e, "genuine, s

incere remorse

is
a proper mitigating factor." State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995)(citing Statev. Buttrey , 756 S.W.2d 718, 722 (T enn. Crim. A pp.), perm. to appeal denied, (Tenn.1988)).-10-

However, "the mere speaking of remorseful words or a genuflection in the

direction of remo

rse will notearn an accused a sentence reduct ion." Williamson , 919 S.W.2d at 83. The finding of the presenc e or absence of remorse, similar to assessing the credibility of a witness, is best left f or determination by the trial court. In determining whether actual remorse is present, the reviewing court may consider the A ppell ant’s conduct and statements immediately following the unlawful act, any underlying

motivation for the expression of remorse and the Appellant’s statements at the sentencing hearing. In this case, the Appellant did not testify at the sentencing hearing. The trial court c oncluded that the Appellant’s expressions of remorse for his conduct were not genuine, stating that it “didn’t
see any sign of

remorse.” We are unable to c onclude that the r

ecord preponde

rates against t

his finding.

In sum, following a de novo review, we find the presence of two enhancement factors, Tenn. Code Ann. §§ 40-35-114(1)&(5), and find no mitigating factors applicable. As such, we conc lude that the sentence of four years is justified in this case.
II. Total Confineme

nt
The Appellant

asserts that the trial court erred by ordering him to serve his four-y ear sentence in total confinement. He contends that the trial court should have placed him on probation or, in the alternative, sentenced him to a term of split-conf

inement. At the time

of his arrest, the Appellant was married with three young children, and had previously attended t wo and one-ha lf years of coll ege before quit ting.
Because the Appellant

was convicted of

a class D felony, he is entitled to the presumption that he is a favorable candidate for alternative sentencing. See T ENN

. C ODE A NN . § 40-35- 102(6). We note, however, that “the determination of whether the Appellant is entitled to an alternative sentence and whether the Appellant is entitled to full probation are different inquires.” State v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Where a def endant is entitled to the statutory presumption of alternative sentencing, the State has the burden of overcoming the presumption wit

h evidence to the contrary. State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled
on other grounds. “Conversely, the defendant has the burden of establishing [his] suitability for

total probation, even if the Appellant is entitled to the statutory presumption of alternative sentencing.” Id. ; Boggs , 932 S.W.2d at 477.
A. Total Probation
To meet the burden of

establishing suita

bility for tot

al probation, the d

efendant must demonstrate

that probation will “subserve the ends of justice andthe best interest o f both the public
an d the defendant.” Id. at 456. The following criteria, while not controlling the discretion of t h e sentencing court, s hall be accorded weight when deciding the defendant's suitability for probation: (1) "the nature and [circumstances] of the criminal conduct involved", Tenn. Cod e Ann. § 40-35-210(b)(4); (2) the defendant's potential or lack of potential for rehabilitation,including the risk that dur ing the period of probation the defendant will commit another crime, Tenn. Code Ann. §-11-

40-35-103(5); (3) whether a sente nce of full proba

tion would unduly

depreciate

the seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and (4) whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes, Tenn. Code Ann. § 40-35-103(1)(B). Denial of probation may be based solely upon the circum s tances of the off ense when they are of such a

nature as to outweigh all other factors favoring probation. State v. Bingham , 910 S.W.2d at 456, overruled on other grounds ; State v. Fletcher , 805 S.W.2d at 788-89. Upon de novo r eview, we find the facts and circu

mstances of this ca

se to be clearly aggravated. The record reveals a callous indifference by the Appellant

toward the victim and shows the calculated nature

of the Appellant’ s actions. The Appellant fur ther sought the h

elp of a friend to
cover up the crime and continued to mislead police concerning the events surrou

nding the incide

nt. Lack of candor and credibility are indications of a defendant' s potential for reha

bilitation

. State v. Bunch , 646 S.W.2d 158, 160 (Tenn.1983); State v. Nunley , 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999). The trial court found that the Appellant was not amenable to rehabilitation because he “had persistedin the cover-up of this hor rible crime.” We agree and find that the circumstances of the offense are of such a nature as to outweigh all factors favoring probation.
B. Alternative Se

ntencing The Appellant next a

rgues that the tr

ial court erred

by not gra

nting him a sentenceof splitconfinement. When imposing a sentence of total confinement, the trial court should base its decision on the considerations listed in Tenn. Code Ann. § 40-35-103(1): (A) Confinement is

necessary

to protect society by restrai ning a defendant who has a long his

tory of cri minal conduct; (B) Confinement is nec essary to a

void depreciatin

g the seriousne

ss of the offense
or confinement is

parti cularly sui

ted to provide an e

ffective deter

rence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or

recently been applied unsu

ccessfully to the defendant. Upon de novo review, we first note that neither (A) nor (C) apply in the present c ase. The Appellant does not have a

long history of criminal conduct nor have measures less restrictive than confineme nt been previously applied to the Appellant. We furt h er acknowledge that confinement would not provide an effective de

terrence to othe

rs likely to c

ommit similar offen

ses. See State v. Hooper , 29 S.W.3d 1, 9 (Tenn . 2000). Accordingly , our inquiry

must be whether c

onfinement is nec

essary to avoid depreciating the seriousness of the offense.

In order to deny an alternative sentence based upon the ser i ousness of the offense, the circumstances of the offense "as committed, must be 'especially violent, horri fying, sho cking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,' and the nature of the-12-

offense must outweigh all facto rs favoring probation." State v. Bingham , 910 S.W.2d at 454, overruled on other grounds , (citing Sta te v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App.1991)). After review, we find the facts of this case to be particularly reprehensible, offensive and shocking. Despite the fact that the A ppellant h ad a cell phone wi th him, he made no ef

fort to seek medical attention

for the victim. I

nstead, the Appel

lant used the phone

to call his friend to assist in the concealment of his actions. The Appellant also called his wife to inquire about insuranceon the truck. Several hours after the accident, the Appellant proceeded to drag the unconscious victim 300 yards to a nearby lag

oon. Because the body was floating, the Appellant broke off a tree branch and “pu she d” t he b ody underthe surface of the water until it sank. Four hours later the Appellant returned home. Despite repeated questioning from the police tha t ni ght a nd t hro ugho ut t he n ext day, the Appellant denied any knowledge of the victim’s whereabouts or any knowledge that any one had been injured at the sceneon that particular night. Nine days later, the Appellant was still attempting to interfere with the inv estigation by admonishing his fr

iend, “. . . don’t ta

lk to the police . . . j ust stick to the original story.”
We find that the facts surrounding this case are so reprehensible and offensive that the nature of the offense outweighs any and all factors fa voring a sentence other than confinement.
CONCLUSION
After de novo review, we find t he four-ye

ar se ntence im

posed by the trial court to be appropriate. We a

lso find that total c

onfinement is nec

essary to avoid depreciating t

he seriousness of the offense. Accordingly, the judgment of the Sumner County Criminal Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE