1

The terms 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 felony, a second count of “abuse of a corpse” would be dismissed.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 19, 2001 Session

STATE OF TENNESSEE v. GALEN DEAN 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, Galen Dean Eidson, was indicted by a Sumner County Grand Jury for second degree

murder. Pursuant to the terms of a plea agreement, Eidson pled guilty to the reduced 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 raises the following sentencing

issues for our review: (1) Whether the length of the sentence imposed by the trial court was

excessive; and (2) whether the trial court erred in sentencing him to total confinement in the

Department of Correction. Upon de novo review, we find that a total confinement sentence of four

years is justified in this case. Accordingly, the judgment of the Sumner County Criminal Court is

affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

DAVID G. HAYES,J., delivered the opinion of the court, in which THOMAS T. WOODALL,J. and L.T.

LAFFERTY, SR. J., joined.

Richard McGee and Wendy S. Tucker, Nashville, Tennessee, for the Appellant, Galen Dean Eidson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Patricia C.

Kussmann, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and

Sallie Wade Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.
2

During questioning by Trooper Carter, the Appellant stated that the accident took place during daylight hours,

sometime between 5:00 and 5:30 p.m. and that it was not yet raining or “had just begun to rain” at the time the accident

occurred.

3

The Appellant’s version to Trooper Carter was slightly different. He told Carter that he was driving too 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 operation. Tobacco is the principle agricultural crop. Although the Appellant worked

in the fields, he also supervised the farm workers, which included immigrant laborers. At

approximately 5:30 p.m. on October 8, 1999, the Appellant was transporting three Hispanic 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. According 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

some problems out on the farm” and requested that he bring him a chain. Jenkins agreed and later

he and his wife, Melissa Jenkins, met the Appellant on a paved road at the bottom of a hill near the

farm. Upon arriving, the Appellant told Jenkins, “I got to 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

not to go because it was too cold. On the way to his truck, the Appellant first explained to Jenkins

that three farm workers were riding with him when he swerved to miss three cows and overturned

the truck.3

 As they were approaching the vehicle, however, the Appellant told Jenkins, “I have a

problem, and I have totaled the truck. I flipped it upside down. I have 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 the 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 on the body. Jenkins complied. The Appellant then began discussing various ideas of
-3-

how to get rid of “the body” and decided that he was not going to call police because he had

previously “filed bankruptcy . . .[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 parents’ 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

shirt was torn off when the victim became ensnared on a fence. The Appellant dislodged 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 so he could shoot holes in the body to make it sink. Neither the Appellant nor Jenkins had a

gun and Jenkins “didn’t think [they] 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, which

the Appellant used to push the victim’s body under the water so that it would not float to the surface.

Several minutes later the Appellant emerged from the woods.

The Appellant asked Jenkins if he would help him clean up the debris from the truck.

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

gave up and said that he would come back to clean things up in the morning before his father arrived

to hang tobacco. Jenkins returned the Appellant to the Appellant’s house around 9:15 p.m.

Sometime that night, the Appellant’s wife left a message with the insurance company about 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. Trooper Robert Carter of the Tennessee

Highway Patrol also overheard the call and followed Officer Williams as they returned to search for

the truck. Approximately an hour later, at approximately 1:30 a.m., the “heavily damaged” truck was

located on the Eidson farm in an upright 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 Appellant,

his mother and brother were notified and asked to come to the scene. After being Mirandized by

Trooper Carter, the Appellant explained that he had been driving, 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 picked him up and took him home. The Appellant further explained

that he and his father-in-law had returned to the scene later that night and turned the truck upright

so that he [the Appellant] could retrieve some important papers. He stated that he did not call the

police because it was on private property and thought no one had been hurt. The Appellant agreed

to accompany the officers back to the sheriff’s department for further questioning.
-4-

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

Department, interviewed the Appellant and received a substantially similar story to the one the

Appellant gave Trooper Carter 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. Although Jenkins initially denied any knowledge of the victim’s death, he eventually told

Detective Edison about the events of the previous night and disclosed the location of the body.

Detective Edison then interviewed the Appellant a third time and told him “he knew there was a dead

Mexican on his property.” The Appellant started crying and asked for a lawyer. Detective Edison

ceased the interview.

As a result of the interview with Jenkins, Emergency Management was dispatched at noon

to the lagoon to search for the victim’s body. After 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 particular 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 later, the Appellant paged Jenkins and asked that he call him.

Jenkins first called Detective Edison, however, and told him about the Appellant’s message.

Detective Edison placed 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

control and [don’t] talk to the police; [I] have a lawyer and everything [is] under control; [I] have

it taken care of, just stick to the original story.” 

Dr. Charles Harlan, a forensic pathologist, performed an autopsy on the victim and

determined that “the cause 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 that “the injuries from the truck accident itself were insufficient to cause

death.” On cross-examination, 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 sentence imposed by the trial court was excessive

based upon the misapplication of enhancing factors and the failure to apply relevant mitigating

factors. When an accused challenges the length, range, or the manner of service of a sentence, this

Court has a duty to conduct a de novo review of the sentence with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This

presumption 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). Furthermore, when conducting a de novo review of a sentence, this

court must consider: (a) the evidence, if any, 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 characteristics of the criminal conduct involved; (e) any statutory mitigating or

enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the

potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, 103,

210.

 

If our review reflects that the trial court followed the statutory sentencing procedure, imposed

a lawful sentence 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 modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial

court fails to comply with the statutory provisions of sentencing, appellate review is de novo without

a presumption of correctness. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)(citing State v.

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 and not beyond a reasonable doubt. Id.

In the present case, the Appellant pled guilty, as a range I offender, to the offense of reckless

homicide, a class D felony. Tenn. Code Ann. § 39-13-215. The sentencing range for a class D

felony is “not less 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 factors, “then the 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 sentence in

the range, enhance 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 respect to whether the Appellant’s prior criminal

history was considered as an enhanc emen t factor pursuant to T enn. Co de Ann . § 40-35 -114(1 ). During the sentencing

hearing, the trial court stated, “I don’t think that the case law of this state is such that I can use the 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 responsibility.” Later, 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 hit a tile culvert and mailbox and immediately left the 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 property owner brought the Appellant back to the property where the mailbox was damaged and

called police. Officer Dewel Scruggs testified that the Appellant had been drinking, but was not charged 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 mitigating factors and apparently4 applied the following three enhancement

factors found in Tenn. Code Ann. § 40-35-114:

(1) The defendant has a previous history 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 be treated with

exceptional cruelty during the commission of the offense; and 

(15) The defendant abused a position of public 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 application of enhancement factor (1) was inappropriate

to establish prior criminal conduct and, thus, improperly considered by the trial court. The Appellant

had previously pled guilty to reckless driving and leaving the scene of an accident.5

 Although it is

not entirely clear from the record that the trial court applied enhancement factor (1), we find the

Appellant’s previous convictions of reckless driving and leaving the scene of an accident applicable

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 social history 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 considered as applicable under enhancement factor (1).

Second, the Appellant contends that the trial court erred by applying enhancement factor (5).

Specifically, he argues that because the Appellant thought the victim was dead when he removed his

body from underneath the truck and placed it in the lagoon, that his actions did not constitute

exceptional cruelty. We disagree. 
6

 The only mention of the theory that the victim drowned at the accident site was presented by defense counsel

in a hypothetical question:

Defens e Coun sel: And it occurred to me, Dr. Harlan, there is

another theory you and I had not discussed,

and that is that the deceased, as a result of the

car accident, was unconscious and face down

under the truck. That is consistent with the

injuries that you saw, true?

Dr. Harlan: Correct.

Defens e Coun sel: And that a rainstorm deposited water, and

due to the man’s unconsciou sness and the fact

that he was face down, he drowned?

Dr. Harlan: That is possible if a pool of water was there.

No proo f was ever introd uced by the d efense to suppo rt this hypothesis.

-7-

With respect to enhancement factor (5), we initially acknowledge that our supreme court has

determined that proof of serious bodily injury does not necessarily establish the enhancement factor

of "exceptional cruelty." State v. Poole, 945 S.W.2d at 98. Instead, our supreme court has found

that before this factor may be applied, the facts of the case must "support a finding of 'exceptional

cruelty' that 'demonstrates a culpability distinct from and appreciably greater than that incident to'

" the crime. Id. Nonetheless, our courts have upheld the application of exceptional cruelty based

upon proof of extensive physical abuse. State v. 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 cruelty. State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App.1995).

Although the trial court in this case did not articulate its reasons for finding exceptional cruelty, we

nonetheless conclude that the record is more than adequate to show that this enhancement factor

applies to the Appellant.

The plain language of the statutory enhancing factor requires that the victim “be treated with

exceptional cruelty during the commission of the offense.” Tenn. Code Ann. § 40-35-15(5).

(emphasis added). Despite the Appellant’s assertions that the victim drowned while under the truck,

the guilty plea hearing foreclosed 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 agreed 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 victim was thrown in the lagoon occurred “during the

commission of the offense.” Instead of seeking medical assistance, the Appellant left the victim

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 yards 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 could shoot holes in the body to make it sink. When no

gun was available, he broke off a tree branch and poked the body repeatedly until it stayed 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 argues that enhancement factor (15) was also improperly applied by

the trial court. Specifically, the Appellant argues that no trust relationship existed that made the

victim particularly vulnerable to him. He further asserts that even if there was a trust relationship,

the victim’s death was not caused through an abuse of that trust.

In finding that enhancement factor (15) was applicable, the trial court reasoned 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 on his farm, and I think that

they have a right to trust him and to trust that, having had an accident, that he would

do something to care for them.

The application of enhancement factor (15), that the defendant abused a position of public 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 significantly facilitated the

commission of the offense. See State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.1996). 

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

application of the private trust factor as follows:

As stated inState v. Kissinger, to determine the application of the private trust factor,

the court must look to "the nature of the relationship," and whether that relationship

"promoted confidence, reliability, or faith." State v. Kissinger, 922 S.W.2d at 488.

It is the exploitation of this vulnerability to achieve criminal purposes which is

deemed more blameworthy and thus justifies application of the enhancement factor.

Accordingly, factor (15) is construed to apply only where there is evidence that the

nature of the 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

Trooper Carter testified that during his initial questioning of the Appellant, which occurred approximately

nine hours after the wreck, he observed nothing which 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, pursuant to Tenn. Code Ann. § 40-35-113, during sentencing:

(3) Substantial grounds exist tending to excuse or justify the defendant’s

criminal conduct, though failing to establish a defense;

(11) The defendant, although guilty of the crime, committed the offense

under such unusual circumstances 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 record, (2) model citizen and (3) remorse 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 causing 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. Moreover, 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 the drowning of the victim, was motivated by monetary reasons and

concealment of the factual events of the accident.

Finally, 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 family,

his community and church.” He further argues that his “remorse” should have also been considered

as mitigating evidence. As discussed previously, the Appellant does, in fact, have a criminal record.

Further, 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 previously

drank one beer and was splitting a twelve-pack of beer with the three passengers.7 Further testimony

revealed that the Appellant had a severe drinking problem during the past two to three years and

Jenkins testified that the Appellant had a “violent history.” We find the trial court properly declined

to consider the Appellant’s alleged status as a “model citizen” in the community as mitigating

evidence under factor (13). 

Lastly, with respect to the Appellant's expressions of remorse, "genuine, sincere remorse is

a proper mitigating factor." State v. Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995)(citing

State v. Buttrey, 756 S.W.2d 718, 722 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.1988)).
-10-

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

not earn an accused a sentence reduction." Williamson, 919 S.W.2d at 83. The finding of the

presence or absence of remorse, similar to assessing the credibility of a witness, is best left for

determination by the trial court. In determining whether actual remorse is present, the reviewing court

may consider the Appellant’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 concluded

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 conclude that the record preponderates against this

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 conclude

that the sentence of four years is justified in this case.

II. Total Confinement

The Appellant asserts that the trial court erred by ordering him to serve his four-year 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-confinement. At the time of his arrest, the Appellant was

married with three young children, and had previously attended two and one-half years of college

before quitting.

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 TENN. CODE ANN. § 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 defendant is entitled to the statutory

presumption of alternative sentencing, the State has the burden of overcoming the presumption with

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 suitability for total probation, the defendant must

demonstrate that probation will “subserve the ends of justice and the best interest of both the public

and the defendant.” Id. at 456. The following criteria, while not controlling the discretion of the

sentencing court, shall be accorded weight when deciding the defendant's suitability for probation:

(1) "the nature and [circumstances] of the criminal conduct involved", Tenn. Code Ann. §

40-35-210(b)(4); (2) the defendant's potential or lack of potential for rehabilitation, including the risk

that during the period of probation the defendant will commit another crime, Tenn. Code Ann. §
-11-

40-35-103(5); (3) whether a sentence of full probation 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 circumstances of the offense

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 review, we find the facts and circumstances of this case 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 further sought the help of a friend to

cover up the crime and continued to mislead police concerning the events surrounding the incident.

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

persisted in the cover-up of this horrible 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 Sentencing

 The Appellant next argues that the trial court erred by not granting him a sentence of 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 restraining a defendant

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense

or confinement is particularly suited to provide an effective deterrence to

others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant.

Upon de novo review, we first note that neither (A) nor (C) apply in the present case. The Appellant

does not have a long history of criminal conduct nor have measures less restrictive than confinement

been previously applied to the Appellant. We further acknowledge that confinement would not

provide an effective deterrence to others likely to commit similar offenses. See State v. Hooper, 29

S.W.3d 1, 9 (Tenn. 2000). Accordingly, our inquiry must be whether confinement is necessary to

avoid depreciating the seriousness of the offense.

In order to deny an alternative sentence based upon the seriousness of the offense, the

circumstances of the offense "as committed, must be 'especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree,' and the nature of the
-12-

offense must outweigh all factors favoring probation." State v. Bingham, 910 S.W.2d at 454,

overruled on other grounds, (citing State 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 Appellant had a cell phone with him, he made no effort to

seek medical attention for the victim. Instead, the Appellant used the phone to call his friend to assist

in the concealment of his actions. The Appellant also called his wife to inquire about insurance on

the truck. Several hours after the accident, the Appellant proceeded to drag the unconscious victim

300 yards to a nearby lagoon. Because the body was floating, the Appellant broke off a tree branch

and “pushed” the body under the surface of the water until it sank. Four hours later the Appellant

returned home. Despite repeated questioning from the police that night and throughout the next day,

the Appellant denied any knowledge of the victim’s whereabouts or any knowledge that anyone had

been injured at the scene on that particular night. Nine days later, the Appellant was still attempting

to interfere with the investigation by admonishing his friend, “. . . don’t talk to the police . . . just

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 favoring a sentence other than confinement. 

CONCLUSION

After de novo review, we find the four-year sentence imposed by the trial court to be

appropriate. We also find that total confinement is necessary to avoid depreciating the seriousness

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

___________________________________ 

DAVID G. HAYES, JUDGE