# FILED
March 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9611-CR-00417 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, ROBIN BAKER, ) JUDGE ) Appellant. ) (Alternative Sen tencing)

FOR THE APPELLANT : MARVIN G. BA

LLIN MARK A . MESLER 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103-2328 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DEBORAH A

. TULLIS Assistant Attorney Gener al Cordell Hull Buildi ng, 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 FI LED:

AFFIRMED

JERRY L. SMITH, JUDGE2 OPINION
The defendant, Robin Baker, appeals from mis demeanor convictions of one (1) count of reckless endang erment and one (1) count of possessi on of explosive components. H e pled guilty and agr eed to concurrent terms of six (6) months and a $500 fine for each convic tion. 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 favor

able 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 p resumpt ion is con ditione d upon an affirm ative showing in the recor

d that the trial judge cons idered the sentencing pri nciples and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d at 169. If the trial court fails to c

omply with the statutor y directives, ther

e 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 misdemea nor is presumed to be a favorable3

candidate for alternative s entencing in the absence of ev idence to the contrary. Tenn. Code Ann. § 40-35-102(6). H owever, although a de fendant may be presumed to be a favorable candidat e for alternative sentenci ng, the defendant has the burden of establishing suitability for total p robation. 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 automatical ly considered, “the defendant is not automatically entitled to probation as a matter of law. ” Tenn. Code Ann. § 40-35- 303(b) Sentencing Commissi on 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 rec ord, the defendant’s social history and present condition, the need for deterrence, and the best interest of the defendant and the pub lic. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. B oyd , 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 cons ideration and reflects on a defendant's potential for rehabili tation. 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]onfine ment is necessa ry to protect societ y by restraining a defendant who has a long histor y of criminal conduct; (B) [c]onfinement is necessar y to avoid depreciati ng the seriousness of the offense or confinement is particularly suit

ed to provide an effective deterr ence to others likely to commit similar offenses; or (C) [m]easures less r

estrictive than confinement ha ve frequently or recently been applied unsuc cessfully to the defendant. See State v. Millsaps , 920 S.W.2d 267, 27 0 (Tenn. Crim. App. 1995).

III.4 Our review rev

eals that the trial court did not make a showing on the record of his findings regarding sentencing pri nciples and all relev ant facts and circumstances. Therefore, no pr esumption of correctness is afforded t o the sentence of the trial court. The t rial court did, howev er, make two (2) findings on the record. First, the trial cour

t placed great weig ht on not depreciating the seriousness of the offense. In order for this criteria to ser ve as the basis for denying probation, the ci rcumstances of the offense must be “especial ly violent, horrifying, shocking , reprehensible, offensive, or otherwise of an excess ive or exaggerated degree and the nature of the offen se 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 th e circumstances of the offense in the
case sub judice are sufficiently shocking and exaggerated to w

arrant a denial of probation when weig hed against factors favoring probation. The only evidence favori ng probation consisted of ev idence that the defendant is being treated for paranoia and his condition has improved since his arrest. Balanced against this is evidence that a

t his home in a densely popul ated urban area the defendant stored large quantities of materials used to make explosives. Among the dangerous materials poss essed included: nitromethane, a key ingredient for maki ng “C-4" explosiv e compound; magnesium turnings,a heat inducer for homemade bombs; eight (8) empty hand grenades; “ ram set shells,” potentially

used as detonators for re-armi ng grenades; an empty anti tank weapon and canon fuse. Also found in the defendant’s home were instruc tional books on how to re-a rm an ant itank weap on, how to make “C-4 " and “sem tex” explosives, a book on detonators, and various pi eces of hate mail. It is clear from the evidence that these materials are designed to make weapons of terror or at a mi nimum military styl e explosives wi th no purpose other than the killing of human beings or the unlawful destruction of property. Under the circumstances the trial court was warr

anted in concluding that inc arceration was necessary to av

oid depreciating the ser iousness of the offense.5 Secondly, the trial cour t found the defendant’s failure to testify truthfully at the first sentencing heari ng a factor in denying alternative sentencing . At that hearing the defendant explained he possessed the materials for i nnocuous 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 purpos e of probation. United States v. Gray son , 438 U.S. 41, 50, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 58 2, 590 (1978); State v. Neely , 678 S.W.2d 48, 49 (Ten n. 1984). The defendant’s lack of cand or with the Court warrants a denial of probat ion.

IV.
Regrettably, the tri al court did not make the req uired findings on the record at the defendant’s sentencing hearing. However, the trial court did make two (2) findings and w

e find them persuasive. We acknowledge that the trial court had a bet ter opportunit y to judge the credib ility of the def endant and gau ge his suitability for pr

obation than we do. For thes e reasons, we wil l not disturb the trial court’s denial o

f probation.
The judgment of the trial court i s affirmed.

__________________________ JERRY L. SMITH, JU DGE

CONCUR:

______________________________ JOE B. JONES, PRESIDING JU DGE

______________________________ CURWOOD WITT, JUDGE