FILED

March 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER 1997 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9611-CR-00417

Appellee, )

) SHELBY COUNTY

VS. )

) HON. W. FRED AXLEY,

ROBIN BAKER, ) JUDGE

)

Appellant. ) (Alternative Sentencing)

FOR THE APPELLANT:

MARVIN G. BALLIN

MARK A. MESLER

200 Jefferson Avenue, Suite 1250

Memphis, TN 38103-2328

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

DEBORAH A. TULLIS

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

JOHNNY R. McFARLAND

Assistant District Attorney General

201 Poplar Avenue, Suite 301

Memphis, TN 38103-1947

OPINION FILED: 

AFFIRMED

JERRY L. SMITH,

JUDGE
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OPINION

The defendant, Robin Baker, appeals from misdemeanor convictions of

one (1) count of reckless endangerment and one (1) count of possession of

explosive components. He pled guilty and agreed to concurrent terms of six (6)

months and a $500 fine for each conviction. The sole issue presented for review

is whether the trial court erred in denying the defendant's petition to suspend his

sentence. The judgment of the trial court is affirmed.

I.

The defendant alleges the trial court erred by refusing to suspend his

sentence. He contends that he is presumptively a favorable candidate for

alternative sentencing. Tenn. Code Ann. § 40-35-102 (6). Further, he contends

the trial court failed to make an affirmative showing in the record that it

considered all sentencing principles and all relevant facts and circumstances in

its denial of alternative sentencing. See State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

II.

When reviewing sentencing issues, including alternative sentencing, this

Court conducts a de novo review with a presumption of correctness. Tenn. Code

Ann. § 40-35-401 (d). This presumption is conditioned upon an affirmative

showing in the record that the trial judge considered the sentencing principles

and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d at 169. If

the trial court fails to comply with the statutory directives, there is no presumption

of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).

A defendant convicted of a misdemeanor is presumed to be a favorable
3

candidate for alternative sentencing in the absence of evidence to the contrary. 

Tenn. Code Ann. § 40-35-102(6). However, although a defendant may be

presumed to be a favorable candidate for alternative sentencing, the defendant

has the burden of establishing suitability for total probation. State v. Boggs, 932

S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b). 

Though probation must be automatically considered, “the defendant is not

automatically entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-

303(b) Sentencing Commission Comments; State v. Hartley, 818 S.W.2d 370,

373 (Tenn. Crim. App. 1991).

In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the

defendant’s social history and present condition, the need for deterrence, and

the best interest of the defendant and the public. State v. Grear, 568 S.W.2d

285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.

1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The

defendant's lack of credibility is also an appropriate consideration and reflects on

a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306

(Tenn. Crim. App. 1994).

Under the 1989 Sentencing Act, sentences which involve confinement are

to be based on the following considerations contained in Tenn. Code Ann. § 40-

35-103(1):

(A) [c]onfinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.

See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

III.
4

Our review reveals that the trial court did not make a showing on the

record of his findings regarding sentencing principles and all relevant facts and

circumstances. Therefore, no presumption of correctness is afforded to the

sentence of the trial court. The trial court did, however, make two (2) findings on

the record.

First, the trial court placed great weight on not depreciating the

seriousness of the offense. In order for this criteria to serve as the basis for

denying probation, the circumstances of the offense must be “especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree and the nature of the offense must outweigh all factors

favoring probation.” State v. Hartley 818 S.W.2d 370, 374-75 (Tenn. Crim. App.

1991). We have no difficulty finding that the circumstances of the offense in the

case sub judice are sufficiently shocking and exaggerated to warrant a denial of

probation when weighed against factors favoring probation. 

The only evidence favoring probation consisted of evidence that the

defendant is being treated for paranoia and his condition has improved since his

arrest. Balanced against this is evidence that at his home in a densely populated

urban area the defendant stored large quantities of materials used to make

explosives. Among the dangerous materials possessed included: nitromethane,

a key ingredient for making “C-4" explosive compound; magnesium turnings, a

heat inducer for homemade bombs; eight (8) empty hand grenades; “ram set

shells,” potentially used as detonators for re-arming grenades; an empty antitank

weapon and canon fuse. Also found in the defendant’s home were instructional

books on how to re-arm an antitank weapon, how to make “C-4" and “semtex”

explosives, a book on detonators, and various pieces of hate mail. 

It is clear from the evidence that these materials are designed to make

weapons of terror or at a minimum military style explosives with no purpose other

than the killing of human beings or the unlawful destruction of property. Under

the circumstances the trial court was warranted in concluding that incarceration

was necessary to avoid depreciating the seriousness of the offense.
5

Secondly, the trial court found the defendant’s failure to testify truthfully at

the first sentencing hearing a factor in denying alternative sentencing. At that

hearing the defendant explained he possessed the materials for innocuous uses

such as entertainment for his son or fuel additives for his car. Subsequently, he

related his possession of these materials to preparing for the possible collapse of

the federal government. A defendant’s untruthfulness bears on his amenability

to rehabilitation, the purpose of probation. United States v. Grayson, 438 U.S.

41, 50, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582, 590 (1978); State v. Neely, 678

S.W.2d 48, 49 (Tenn. 1984). The defendant’s lack of candor with the Court

warrants a denial of probation.

IV.

Regrettably, the trial court did not make the required findings on the

record at the defendant’s sentencing hearing. However, the trial court did make

two (2) findings and we find them persuasive. We acknowledge that the trial

court had a better opportunity to judge the credibility of the defendant and gauge

his suitability for probation than we do. For these reasons, we will not disturb the

trial court’s denial of probation.

The judgment of the trial court is affirmed.

__________________________

JERRY L. SMITH, JUDGE

CONCUR:

______________________________

JOE B. JONES, PRESIDING JUDGE

______________________________

CURWOOD WITT, JUDGE