State v. Raymond Paul Duncan

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
January 12, 2000
JANUARY 1998 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9706-CR-00208
)
) Washington County
v. )
) Honorable Arden L. Hill, Judge
)
RAYMOND PAUL DUNCAN, ) (Sentencing)
)
Appellant. )
For the Appellant: For the Appellee:
John T. Milburn Rogers John Knox Walkup
Jerry Laughlin Attorney General of Tennessee
100 South Main Street and
Greeneville, TN 37743 Sandy C. Patrick
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Michael Laguardia
Assistant District Attorney General
P.O. Box 38
Jonesborough, TN 37659
OPINION FILED:____________________
SENTENCE MODIFIED
Joseph M. Tipton
Judge
OPINION
The defendant, Raymond Paul Duncan, appeals as of right from his
conviction upon a guilty plea in the Washington County Criminal Court for voluntary
manslaughter, a Class C felony. He was sentenced as a Range I, standard offender to
five years confinement to be served in the custody of the Department of Correction.
The defendant presents the following issues for our review:
(1) whether the trial court erred by applying Tenn. Code Ann.
§ 40-35-114(10), that the defendant had no hesitation about
committing a crime when the risk to human life was high, to
enhance the sentence;
(2) whether the trial court erred by failing to apply Tenn. Code
Ann. § 40-35-113(2), that the defendant acted under strong
provocation, to mitigate the sentence;
(3) whether the trial court erred by refusing to apply Tenn.
Code Ann. § 40-35-113(11), that the defendant’s conduct was
not motivated by a sustained intent to violate the law, to
mitigate the sentence;
(4) whether the defendant’s sentence of five years confinement
is excessive; and
(5) whether the trial court erred by denying probation.
We modify the sentence to three years, six months confinement in the custody of the
Department of Correction.
The record reflects that at about 1:00 a.m. on March 22, 1996, the
defendant and his friend, Brian Osborne, became involved in an altercation with the
victim, Kyle Jaekel, and several of Jaekel’s friends outside Poor Richards, a
bar/restaurant in Johnson City. Two fights occurred simultaneously, one between
Osborne and Jaekel’s friends and another between the defendant and Jaekel. In the
fight between the defendant and Jaekel, the defendant pulled out a knife and stabbed
Jaekel in the abdomen. An employee broke up the fight, and Jaekel died a short time
later from massive bleeding resulting from the stab wound.
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Brian Osborne testified at the sentencing hearing. He stated that he and
the defendant went to Poor Richards at approximately 9:30 p.m. and that he drank
three or four glasses of beer during the evening. He stated that he saw a female
acquaintance, Jamie Cagle, talking to Jaekel. He stated that he did not know Jaekel
but that Cagle looked very intoxicated, and he thought Jaekel might be trying to take
advantage of her. He said Jaekel was encouraging Cagle to drink, and he became
concerned for her safety. Osborne said he asked Cagle if she needed a ride back to
her dormitory, and Cagle said that she did not. He testified that when his girlfriend,
Deena Kilgore, arrived at approximately 12:30 a.m., he asked Kilgore to ask Cagle if
she needed a ride to her dormitory. He said Cagle again said that she did not, and she
also said that Jaekel was a friend of her boyfriend. Osborne stated that he, Kilgore,
and the defendant then left Poor Richards.
Osborne testified that they were in the parking lot, talking for a few
minutes before they left, when Jaekel came running outside shouting at them. Several
of Jaekel’s friends followed him. Osborne said that Jaekel yelled, “What did you think I
was going to do to her?” and then pushed the defendant. Osborne testified that he
stepped between the two, putting his hands up to control the situation, but that Jaekel
then punched him in the nose. He stated that he was then attacked by several of
Jaekel’s friends. He said that his girlfriend managed to pull him into her car but that
Jaekel’s friends pulled him back out and threw him on top of the car. He said the police
arrived shortly thereafter and arrested him. He testified that he suffered a deviated
septum as a result of the altercation.
Osborne testified that he did not see the fight between the defendant and
Jaekel and that he did not know that the defendant had used a knife. He stated that he
knew the defendant owned a knife and that one time the defendant showed him the
knife as he was cleaning it.
3
Dr. Merry Miller, a psychiatrist, testified that the defendant was a student
at East Tennessee State University when she began treating him in 1995 for
schizoaffective disorder at the university clinic. She said the defendant had been
treated previously at the Quillen Dishner School of Medicine. She stated that although
schizoaffective disorder is characterized by marked mood swings and depression, she
believed that the stabbing was an isolated incident and that the defendant did not pose
a risk of harm to others. She also stated that if the defendant were incarcerated, there
would be a risk of decompensation, and the defendant might have suicidal thoughts.
She testified that she continued to treat the defendant after the stabbing and that the
defendant needed supportive therapy and continued medication. She said that the
defendant went through a period when he was not taking his medication regularly. She
also stated that he was not taking his medication regularly at the time of the stabbing.
Dr. Eric Engum, a clinical psychologist, testified that he evaluated the
defendant after the stabbing. He testified that although the defendant was suffering
from schizoaffective disorder on the night of the stabbing, the defendant was not
manifesting any symptoms that would have compromised his ability to judge reality. He
stated that the disorder probably affected the defendant’s behavior after the stabbing.
He also testified that the defendant showed clear signs of remorse.
Matthew Sikes, a resident assistant at Jaekel’s dormitory, testified that he
saw Jaekel the night of the stabbing before Jaekel went to Poor Richards. He stated
that Jaekel appeared to be intoxicated and that Jaekel said that he was going to go out
and “kick some ass.”
Deena Kilgore, Brian Osborne’s girlfriend, testified that she arrived at Poor
Richards at approximately 1:00 a.m. She stated that she did not know Jamie Cagle but
that at Osborne’s request, she asked Cagle if she needed a ride home. She said that
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Jaekel was standing next to her when she asked Cagle if she needed a ride home and
that Jaekel heard her tell Cagle that they were afraid Jaekel might be trying to take
advantage of her. She stated that Cagle laughed and said that she was fine. Kilgore
testified that she, Osborne, and the defendant left Poor Richards shortly thereafter and
went to the parking lot. She said that a few minutes later, Jaekel came out with several
of his friends. She stated that Jaekel then pushed the defendant and that when
Osborne stepped between them, Jaekel said he was going to kick Osborne’s ass, and
he punched Osborne in the nose. She said that Osborne was then attacked by a group
of Jaekel’s friends and that she tried to pull Osborne into her car, but Jaekel’s friends
pulled him out and continued the fight. She stated that she did not directly see the fight
between the defendant and Jaekel, but she could see some of the fight out of her
peripheral vision. She stated that she believed there were other men besides Jaekel
fighting with the defendant.
The testimony from the preliminary hearing of John Liggett, an employee
of Poor Richards on the night of the stabbing, was admitted into evidence. At the
preliminary hearing, Liggett testified that when he went outside to stop the fight, he saw
Osborne and Jaekel about twenty-five feet away, pushing each other and yelling. He
stated that as he started to walk towards them, he saw the defendant take a swing at
Jaekel then back away. He said the defendant was leaning against a car when Jaekel
came towards him and the two became entangled, at which time Liggett broke the two
men apart, told Jaekel to go back into Poor Richards and asked the defendant to leave.
Liggett stated that he did not realize that Jaekel had been stabbed, and he did not see
the defendant with a knife. Liggett also stated that because he did not go outside
immediately when the fight began, he did not see who initiated the fight.
Jonathan Felthouse testified that he arrived at Poor Richards at
approximately 9:30 p.m. He stated that he saw part of the altercation outside Poor
5
Richards. He said that Jaekel and his friends left Poor Richards and that Jaekel was
arguing with Osborne outside. He testified that although he did not see either Jaekel or
the defendant throw a punch, it looked like the defendant may have pushed Jaekel first.
He stated that the defendant and Jaekel then became entangled. He said that he did
not see the defendant stab Jaekel. He also said that Jaekel was approximately five
feet, eleven inches tall, weighed approximately one hundred sixty pounds, and that the
defendant was much bigger. Felthouse admitted that he did not see the beginning of
the fight because he did not go outside immediately when the altercation began.
Jamie Cagle testified that she was talking to Jaekel at Poor Richards on
the night of the stabbing. She stated that Jaekel was a friend of her boyfriend and that
Jaekel never forced or encouraged her to drink. She stated that she did not see the
altercation outside Poor Richards.
Sergeant Debbie Barron, with the Criminal Investigation Department of
the Johnson City Police Department, testified that investigators were sent to Poor
Richards to process the scene of the stabbing. She stated that witnesses were
questioned at the police station and that officers began searching for the defendant,
who had left Poor Richards after the stabbing. She said that officers looked for the
defendant at his dormitory and at his parents’ house, but they were unable to locate
him. She said that she was notified by the Greeneville Police Department at
approximately 11:15 a.m. on March 22 that the defendant had turned himself in to the
authorities. The knife used in the stabbing was then introduced into evidence.
Sergeant Brown testified that when the defendant was arrested, he stated that he did
not realize that he had killed Jaekel and that he thought Jaekel would have to go to the
hospital for a few stitches. Sergeant Brown stated that the autopsy report revealed
Jaekel’s blood alcohol content to be .148.
6
Jeff Jaekel, the victim’s father, read a prepared statement to the court in
which he expressed the impact of Jaekel’s death on his family. He stated that Jaekel’s
death was a horrifying experience for both Jaekel’s older brother and his younger sister.
He also stated that the victim was a man of integrity who was the heart of the Jaekel
family. He asked the trial court to sentence the defendant to the maximum sentence
available under the law and not to consider expunging the conviction from the
defendant’s record.
An autopsy report was admitted into evidence. The report reflects that
Jaekel was five feet, eleven inches tall, and weighed approximately one hundred forty
to one hundred fifty pounds.
A presentence report was introduced into evidence. The report reflects
that the then twenty-two-year-old defendant was five feet, eleven inches tall and
weighed one hundred eighty-five pounds. He was a student at East Tennessee State
University at the time of the stabbing and had also attended the University of Alabama
and Auburn University. The report reflects that the defendant began using alcohol at
age sixteen and used marijuana from age eighteen to twenty-one. It also reflects that
the defendant was in excellent physical health but was taking medication and being
treated for schizoaffective disorder and depression.
At the conclusion of the sentencing hearing, the trial court sentenced the
defendant to five years confinement. The trial court applied Tenn. Code Ann. § 40-35-
114(9), that the defendant used a deadly weapon, and Tenn. Code Ann. § 40-35-
114(10), that the defendant had no hesitation about committing a crime when the risk to
human life was high, to enhance his sentence. The defendant does not challenge the
application of factor (9). The trial court also found the following mitigating factors to be
applicable, as listed in Tenn. Code Ann. § 40-35-113:
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(3) substantial grounds exist to excuse or justify the
defendant’s conduct, though not establishing a defense;
(6) the defendant lacked substantial judgment because of his
youth;
(8) the defendant was suffering from a mental or physical
condition that significantly reduced his culpability;
(9) the defendant assisted the authorities; and
(13) the defendant showed remorse.
The trial court stated that it gave little weight to mitigating factor (6).
I. Length of Sentence
The defendant contends that the trial court erred in sentencing.
Specifically, the defendant argues that the trial court should not have applied
enhancement factor (10), should have applied two additional mitigating factors, and did
impose an excessive sentence in light of the number and weight of enhancement and
mitigating factors. The state contends that the defendant was properly sentenced.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. Tenn. Code Ann. §§ 40-
35-401(d), -402(d). As the Sentencing Commission Comments to these sections note,
the burden is now on the appealing party to show that the sentencing is improper. This
means that if the trial court followed the statutory sentencing procedure, made findings
of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness that accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances."
8
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. Tenn. Code Ann. § 40-
35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210
(1990); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn.
1986).
The sentence to be imposed for a Class C felony is presumptively the
minimum in the range unless there are enhancement factors present. Tenn. Code Ann.
§ 40-35-210(c) (1990). Procedurally, the trial court is to increase the sentence within
the range based upon the existence of enhancement factors and, then, reduce the
sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d),
(e) (1990). The weight to be afforded an existing factor is left to the trial court's
discretion so long as it complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record. Tenn. Code
Ann. § 40-35-210 (1990), Sentencing Commission Comments; Moss, 727 S.W.2d at
237; see Ashby, 823 S.W.2d at 169.
9
First, the defendant contends that the trial court erred by finding that he
had no hesitation about committing a crime when the risk to human life was high to
enhance his sentence. Tenn. Code Ann. § 40-35-114(10). The defendant argues that
because this factor is an essential element of the offense of voluntary manslaughter, it
cannot be applied to enhance his sentence unless there were other people present at
the time of the stabbing who were in danger. The state concedes that factor (10) is an
element of the offense of voluntary manslaughter, but it argues that there were other
people at risk when the defendant stabbed Jaekel.
We agree with the defendant that the trial court erred by applying
enhancement factor (10). A trial court cannot enhance a defendant’s sentence when
the factor used to enhance is an essential element of the offense. Tenn. Code Ann.
§ 40-35-114. The test for determining whether an enhancement factor is an essential
element of an offense is whether the same proof necessary to establish a particular
element would also establish the enhancement factor. See Jones, 833 S.W.2d at 601.
Under the facts of this case, we agree that factor (10) is inherent in the offense of
voluntary manslaughter. This does not end our inquiry, though, because factor (10)
may be applied if there were others present besides the victim who were at risk
because of the defendant’s conduct. Id. The rationale is that when there are others at
risk besides the victim, a greater culpability exists than that required to prove the
specific offense. Id. at 603.
Nevertheless, we still conclude that factor (10) should not have been
applied, because under the facts of this case, no other people were placed at risk when
the defendant stabbed Jaekel. Although the testimony is somewhat conflicting on the
specific details of the fight between the defendant and Jaekel, the record indicates that
the defendant and Jaekel were entangled with each other when the stabbing occurred.
No one was in immediate risk of harm, other than Jaekel. In addition, no one was
10
aware that the defendant had a knife, and no one knew that Jaekel had been stabbed.
Even the man who broke up the fight between the defendant and Jaekel testified that
he was not aware that the defendant had a knife, nor was he aware that Jaekel had
been stabbed. Because the facts indicate that no one other than the victim was placed
at risk when the stabbing occurred, the trial court improperly applied factor (10) to
enhance the defendant’s sentence.
Next, the defendant argues that the trial court should have applied as a
mitigating factor the fact that the defendant acted under strong provocation. See Tenn.
Code Ann. § 40-35-113(2). The defendant claims that factor (2) is applicable because
the defendant merely responded to the victim, who initiated the altercation. This court’s
holding in State v. Baxter, 938 S.W .2d 697, 706 (Tenn. Crim. App. 1996) is instructive
on this issue. In Baxter, the defendant was convicted of second degree murder after he
stabbed his business partner in the stomach following an altercation that the defendant
claimed was initiated by the victim. Id. at 699-700. This court determined that factor (2)
was not applicable because it was the defendant who escalated the conflict by
producing the knife. Id. at 706. The same conclusion is warranted in the instant case.
Although the defendant may have been provoked to enter into the altercation, the
provocation was not strong enough to justify the defendant’s use of deadly force,
particularly in light of the fact that the victim was unarmed. In this respect, we do not
see the existence of provocation that would justify further mitigation. We hold that the
trial court did not err by failing to apply mitigating factor (2).
The defendant contends that the trial court erred by failing to apply as a
mitigating factor the fact that he committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated the
conduct. See Tenn. Code Ann. § 40-35-113(11). We conclude that the trial court erred
by not applying this factor.
11
In refusing to apply mitigating factor (11), the trial court stated that
everyone is presumed to know the law and that the defendant intended to violate it.
Factor (11) does not depend upon whether the defendant was aware of the law and
intentionally violated it but rather upon whether the defendant’s conduct indicated a
sustained intent to violate the law. We conclude that the defendant’s conduct did not
indicate such an intent. This court has previously determined that factor (11) was
applicable to a conviction of reckless homicide when the defendant shot the victim
outside a bar following an altercation. In State v. Bobby Joe Russell, No. 03C01-9608-
CR-00319, Polk County (Tenn. Crim. App. Sept. 16, 1997), app. denied (Tenn. Apr. 27,
1998), this court stated that “the homicide arose from a rapidly arising set of
circumstances that does not lend itself to a conclusion that a sustained intent existed
relative to the homicide.” The same is true in the instant case in that the defendant
responded to a situation that, unfortunately, ended in tragedy. Based on these facts,
we conclude that the trial court erred by refusing to apply factor (11) to mitigate the
defendant’s sentence.
The defendant contends that the trial court’s imposition of a sentence of
five years confinement is excessive in light of the number and weight of mitigating
factors compared to the number and weight of enhancement factors. Because the trial
court erred by applying enhancement factor (10) and by failing to apply mitigating factor
(11), our review of the defendant’s sentence is de novo on the record with no
presumption of correctness. See Ashby, 823 S.W.2d at 169. Thus, we must start with
the presumption that the defendant is entitled to the minimum sentence of three years,
then apply the enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210(c).
We give great weight to enhancement factor (9), that the defendant used
a deadly weapon. Although no evidence exists that the defendant was intoxicated at
the time of the stabbing, the fact remains that the defendant voluntarily brought a
12
dangerous instrument into a drinking establishment, where other patrons were
intoxicated, and readily used it on the victim. Obviously, the result of the altercation
would not have been fatal were it not for the defendant’s possession and use of the
knife. We also give great weight to mitigating factor (11), that the defendant had no
sustained intent to violate the law. We give moderate weight to factors (9) and (13),
that the defendant assisted the authorities and displayed remorse, because these
factors tend to militate in favor of the defendant’s amenability to rehabilitation.
We give little weight to mitigating factors (3), (6) and (8). With respect to
excuse or justification, although the defendant may have been justified to some extent
in responding to the victim’s claimed aggression, he exceeded the scope of the
justification when he used deadly force. We give little weight to the fact that the
defendant was relatively young because there is no indication that he was a particularly
immature twenty-one-year-old, and he was in college and working. With respect to the
defendant’s mental condition, we believe this factor deserves little weight because the
defendant’s doctors testified that the stabbing was an isolated incident and that his
disorder was not a factor in the stabbing. Furthermore, even if the disorder did play a
role in the incident, the defendant must accept the responsibility because he was not
taking his medication regularly when the stabbing occurred. After applying and
weighing the enhancement and mitigating factors, we determine that a sentence of
three years and six months is appropriate.
II. Manner of Service
Finally, the defendant argues that the trial court erred by denying
alternative sentencing. As a Range I, standard offender convicted of a Class C felony,
the defendant is presumed to be a favorable candidate for alternative sentencing. Tenn.
Code Ann. § 40-35-102(6). This presumption may be rebutted upon finding any of the
following factors: (1) confinement is necessary to protect society by restraining a
13
defendant who has a long history of criminal conduct; (2) 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 (3)
measures less restrictive than confinement have been frequently applied unsuccessfully
to the defendant. See Tenn. Code Ann. § 40-35-103(1); Ashby, 823 S.W.2d at 169;
Fletcher, 805 S.W.2d at 787-88.
In the present case, confinement is not necessary to protect society by
restraining a defendant with a long history of criminal conduct, Tenn. Code Ann. § 40-
35-103(1)(A), because the defendant has absolutely no history of criminal behavior or
convictions. In addition, because there have been no measures less restrictive than
confinement attempted, Tenn. Code Ann. § 40-35-103(1)(C) is also inapplicable. The
state contends that confinement is necessary to avoid depreciating the seriousness of
the offense. Tenn. Code Ann. § 40-35-103(1)(B).
The trial court stated that confinement was necessary to avoid
depreciating the seriousness of the offense, remarking that the crime was especially
violent, horrifying, and reprehensible. The only basis the trial court noted for its
conclusion was the disparity in size between the defendant and the victim.
It is well established that the fact that a defendant’s conduct resulted in a
death, standing alone, is not enough to warrant a finding that confinement is necessary
to avoid depreciating the seriousness of the offense. See State v. Butler, 880 S.W.2d
395, 400-401 (Tenn. Crim. App. 1994); State v. Bingham, 910 S.W.2d 448, 455 (Tenn.
Crim. App. 1995). However, a court may deny probation based solely upon the
circumstances surrounding the offense if the offense is “especially violent, horrifying,
shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated
14
degree.” State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); State v. Hartley, 818
S.W.2d 370, 374-75 (Tenn. Crim. App. 1991).
The state contends that the offense was especially violent, horrifying,
shocking, reprehensible, offensive, and to an excessive or exaggerated degree. It
asserts that the defendant stabbed an unarmed person “in a senseless altercation, with
little apparent provocation,” stating that the defendant was thirty to forty pounds heavier
than the victim and essentially instigated the fight. However, we do not believe the
record supports a conclusion that the defendant was the aggressor. On the other hand,
the circumstances of the offense should not be taken lightly.
Our supreme court, as well as this court, looks with disfavor at defendants
who choose to mix deadly weapons or instruments with alcohol. See State v. Cleavor,
691 S.W.2d 541, 543 (Tenn. 1985); Butler, 880 S.W.2d at 401. We believe that doing
so in the environment of a public drinking establishment is of particular concern given
the heightened risk of physical altercations that exists in such a setting. See, e.g., State
v. Bobby Joe Russell, No. 03C01-9608-CR-00319, Polk County (Tenn. Crim. App. Sept.
17, 1997), app. denied (Tenn. April 27, 1998). Moreover, the fact that the evidence
does not show that the defendant was under the influence of alcohol is of little
consequence because it does show that the victim was under the influence. In the
present case, although the defendant’s knife can legitimately be called a pocket knife,
albeit a large one, it is no less a deadly weapon, particularly as it was used by him.
The defendant told the trial court that he was afraid and did what he
thought was appropriate to stop the victim’s attack. We question whether the defendant
has fully accepted responsibility for his actions. The evidence reflects that the
defendant weighed one hundred eighty-five pounds while the victim weighed one
hundred fifty pounds. Given the internal injuries suffered by the victim and the size of
15
the defendant’s knife, it is apparent that the defendant stabbed the victim with great
force. This belies any indication that the defendant may have been acting defensively.
Even if the victim was the aggressor, the circumstances do not justify the use of a
deadly weapon.
We are aware that this court has stated that the “fact that a death
occurred or that a firearm was employed in the commission of the offense are not
sufficient, without more, to justify a sentence of total confinement.” State v. Louis
Lavergne, No. 01C01-9803-CR-00128, Davidson County (Tenn. Crim. App. July 8,
1999). However, the circumstances surrounding the offense in the present case are
more serious than just the use of a weapon. We conclude that the record supports the
denial of probation in order to avoid depreciating the seriousness of the offense as
committed by the defendant.
In consideration of the foregoing and the record as a whole, the
defendant’s sentence is modified to three years and six months imprisonment to be
served in the custody of the Department of Correction.
________________________________
Joseph M. Tipton, Judge
CONCUR:
________________________________
Gary R. Wade, Presiding Judge
________________________________
William M. Barker, Special Judge
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