State v. William Moore ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE SESSION, 1999 July 2, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) No. 03C01-9810-CC-00375
Appellee )
) JEFFERSON COUNTY
vs. )
) Hon. Richard R. Vance, Judge
WILLIAM MOORE, )
) (Aggravated Assault)
Appellant )
For the Appellant: For the Appellee:
Lu Ann Ballew Paul G. Summers
Asst. Public Defender Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725 Clinton J. Morgan
Assistant Attorney General
Edward C. Miller Criminal Justice Division
Public Defender 425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Alfred C. Schmutzer, Jr.
District Attorney General
James L. Gass and
Charles Murphy
Asst. District Attorneys General
Sevier County Courthouse
Suite 301
Sevierville, TN 37862
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, William Moore, appeals the sentencing decision of the
Jefferson County Criminal Court following his June 1998 guilty plea to one count of
aggravated assault, a class C felony. Specifically, the appellant contends that the
trial court erred by ordering him to serve his three year sentence in the Tennessee
Department of Correction.
After a review of the record, we affirm the judgment of the trial court.
Background
During the afternoon hours of April 19, 1994, the appellant, the owner of Bill’s
Auto Sales in Knoxville was joined by several friends and “had a little party” at the
office of his used car lot. The appellant became very intoxicated and, a friend, Larry
Brewer, drove him to his residence in Strawberry Plains which he shared with his
girlfriend, Brenda Collins.
At approximately 7:00 p.m., Robert Taylor, Ms. Collins’ insurance agent,
traveled to the Moore-Collins’ residence for the purpose of collecting a premium on
an insurance policy. At the time of his arrival, Larry Brewer and Billy Anderson,
friends of the appellant, were also at the appellant’s residence. Billy Anderson
approached Mr. Taylor’s vehicle. After Mr. Taylor had identified himself as Ms.
Collins’ insurance agent, Billy Anderson informed him of the appellant’s intoxicated
condition, the appellant’s recent argument with Ms. Collins, and that Ms. Collins was
not at home at the time. Mr. Taylor responded that he would “be back later.” As Mr.
Taylor was turning his vehicle around in the driveway, he noticed the appellant
“shaking a chrome plated pistol in the air.” “[J]ust as [he] turned out of the
driveway,” the appellant fired the pistol and “the round came through the windshield.
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. . [and] hit the seat,” missing Mr. Taylor by inches. Mr. Taylor drove to a nearby
residence where he notified local law enforcement officers.
On September 20, 1994, the Jefferson County Grand Jury returned an
indictment charging the appellant with one count of aggravated assault by use of a
firearm. On June 24, 1998, the appellant entered a guilty plea to this charge.1
Pursuant to the negotiated plea agreement, the appellant received a three year
sentence as a range I offender. The manner of service of the sentence was
submitted to the trial court for determination.
A sentencing hearing was held on September 17, 1998. The State
introduced two presentence reports into evidence, one prepared in October 1994
and the second submitted September 1998. Both reports indicate that the appellant
was forty-eight years old at the time of the offense, fifty-two years old at the time of
sentencing. His marital status varied during the time between the date of the
offense and the sentencing hearing. At the time of the offense, the appellant was
divorced from his first wife and living with Brenda Collins. When the second
presentence report was prepared, he was in the process of divorcing his second
wife, Tina Newcom, and was living with his girlfriend, Debra Hill. By the time of the
sentencing hearing, the appellant was married again.
Although the appellant had been the proprietor of Bill’s Auto Sales in
Knoxville since 1972; in 1994, he was forced to relinquish his interest in the
business due to medical problems. At the time of the sentencing hearing, the
appellant was receiving food stamps and was in the process of applying for
disability. The appellant’s medical history reveals that the appellant suffers from
“severe carotid artery disease . . ., seizure disorder, alcoholism, depression and
1
The record indicates that the four year delay between indictment and entry of guilty plea
was the result of the appellant’s medical conditions and his failure to appear for court on June 24,
1996, and “on a number of [other] occasions . . . .” In fact, “there was a period for about a year
that there was a capias outstanding for [him].” The capias was served on January 8, 1998.
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anxiety order, hypertension, hyperlipidemia, tobacco addiction . . . and degenerative
disc disease....” Despite his numerous medical conditions, “[the appellant’s] ability
to see, speak, [and] walk is not impaired.” The record also indicates that there is no
dispute as to his abuse of alcohol. The appellant denies any prior opportunities for
rehabilitative treatment of his addiction. Notwithstanding, the record does indicate
that the appellant failed to appear at two scheduled counseling sessions with Dr.
William Conklin.2 Moreover, the appellant’s medical records of February 25, 1996,
reveal his physicians’ recommendations for alcohol rehabilitation.
Additionally, the appellant has a prior criminal history reflecting his
longstanding abuse of alcohol and his proclivity to go armed. Specifically, the
appellant’s criminal record consists of six convictions for public intoxication, three
convictions for unlawful possession of a weapon, one conviction of disorderly
conduct, and one conviction for malicious mischief.3 Indeed, his most recent
arrests and resulting convictions for public intoxication and unlawful possession of a
weapon occurred while on bail for the present charge. The record also indicates that
the appellant has previously been granted a suspended sentence. Both
presentence reports concluded that the appellant was “a high risk candidate for
probation” and “would be considered a maximum risk to successfully complete
probation.”
In support of his request for probation, the appellant testified on his own
behalf. He described to the court his account of the extenuating circumstances that
led to the instant conviction for aggravated assault. He explained that, seven or
eight months prior to the incident involving Mr. Taylor, he was responsible for a
judgment of $15,000 being entered against his former business partner.
Consequently, he testified, his life was threatened by his former partner. Because
2
The nature of these counseling sessions is not discernible as they are merely labeled
“couns eling ses sions.”
3
The appellant was originally charged with shooting into a vehicle.
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of his fear of retaliation by his former partner, he felt threatened by Mr. Taylor’s
unexpected presence on his property and fired a warning shot to frighten Mr. Taylor
from the premises. 4 The appellant maintained that he had not intended to hit Mr.
Taylor’s vehicle; rather the impact was the result of the appellant’s intoxicated state
and the hair trigger on the pistol.
The appellant admitted that he had not suffered any symptoms of alcohol
withdrawal since being incarcerated in the county jail. He also denied any previous
placement on probation. Moreover, he explained his failure to appear for court on
numerous occasions in the instant matter as a result of his medical condition and
the death of his mother. Finally, in response to a pending charge of failure to
appear on another matter, the appellant denied the allegation, averring that he was
in court.
In a reasoned recitation of its findings, the trial court denied any form of
alternative sentencing and ordered that the appellant report to confinement on
October 5, 1998. Specifically, the trial court found that the nature and
circumstances of the offense, the appellant’s contradictory testimony at the
sentencing hearing, the appellant’s history of alcohol-related prior convictions, the
appellant’s recent convictions committed while on bail for the pending charge, and
the appellant’s poor potential for rehabilitation supported the denial of a sentence
other than one of total confinement.
In this appeal, the appellant challenges the trial court’s finding arguing that an
alternative sentence cannot be denied because “he has never had any treatment or
rehabilitation to address his [alcohol] problem,” he exhibited remorse over the
4
All parties agree that, at the time of the incident, the appellant and Mr. Taylor had never
previous ly met.
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incident, and he was fearful of retaliation by his former business partner. We find no
merit to the appellant’s contentions.
When a challenge is made to the manner of service of a sentence, this court
conducts a de novo review with the presumption that the determination made by the
trial court is correct. Tenn. Code Ann. § 40-35-401(d)(1997). This presumption only
applies if the record demonstrates that the trial court properly considered relevant
sentencing principles. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991), In
the present case, the trial court properly considered such principles and the
presumption of correctness applies. Moreover, the appellant bears the burden of
showing that the sentence imposed by the trial court is improper. See Tenn. Code
Ann. § 40-35-210 (b)(3)(1997).
The appellant has failed to carry his burden. First, the appellant’s assertion
that the absence of any previously imposed substance abuse treatment program by
the State prohibits a finding that past efforts at rehabilitation have failed is
misplaced. The appellant has a twenty year history of criminal behavior resulting
from his abuse of alcohol and his propensity to carry a weapon while intoxicated.
See Tenn. Code Ann. § 40-35-103(1)(A) (1997). Despite his numerous convictions
and prior recommendations to obtain such treatment, the appellant has ignored
such warnings and continues his destructive conduct. Next, the circumstances of
the offense are particularly serious in that the appellant, without provocation, had no
hesitation in firing a weapon at an unarmed and innocent person. Additionally, Mr.
Taylor testified that, at the time of the incident, children were playing in the yard next
door to the appellant’s residence and could have been injured. See Tenn. Code
Ann. § 40-35-103(1)(B). Finally, the appellant committed similar offenses and failed
to appear for numerous court dates while on bail pending resolution of the present
charge. This, in and of itself, reflects greatly upon the appellant’s lack of
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rehabilitative potential and upon the obvious risks of placing the appellant on any
form of release.
The record supports the findings of the trial court. We conclude that a
sentence of total confinement is appropriate and justified under the Sentencing Act.
The judgment of the trial court denying the appellant a non-incarcerative sentence is
affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________
JOHN H. PEAY, Judge
________________________________
JOHN EVERETT W ILLIAMS, Judge
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