State v. Campbell ( 1998 )

IN THE COURT OR CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
February 20, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 03-C-01-9603-CC-00103
)
) Carter County
v. )
) Arden L. Hill, Judge
)
) (Sentencing)
ELIZABETH R. CAMPBELL, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Donald E. Spurrell John Knox Walkup
Attorney at Law Attorney General & Reporter
128 East Market Street 500 Charlotte Avenue
Johnson City, TN 37604 Nashville, TN 37343-0497
(Trial and Appeal)
Peter M. Coughlan
Stacey L. Street Assistant Attorney General
Attorney at Law 450 James Robertson Parkway
630 Elk Avenue Nashville, TN 37243-0493
Elizabethton, TN 37643
(Trial Only) David E. Crockett
District Attorney General
Route 1, Box 99
Johnson City, TN 37641
Kenneth C. Baldwin
Assistant District Attorney General
Carter County Courthouse Annex
Elizabethton, TN 37643
Steven R. Finney
Assistant District Attorney General
Carter County Courthouse Annex
Elizabethton, TN 37643
OPINION FILED:_______________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Elizabeth R. Campbell (defendant), was convicted of criminally
negligent homicide, a Class E felony, by a jury of her peers. The trial court, finding the
defendant to be a standard offender, imposed a Range I sentence consisting of a $3,000
fine and confinement for one (1) year in the Department of Correction. In this court, the
defendant contends the trial court should have suspended her sentence and placed her
on probation or imposed some form of alternative sentence. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issue presented for
review, it is the opinion of this court that the judgment of the trial court should be affirmed.
The defendant and Glen Campbell, the victim, were married on the date in question.
The record reflects the defendant and the victim had frequent arguments. As a general
rule, the arguments involved money. On numerous occasions the defendant became
violent and physically attacked the victim. No one ever saw the victim retaliate. The
defendant admitted to a friend the victim had never hit her.
On April 17, 1994, the defendant told several people if the victim did not obtain
another job making more money she would “blow his brains out.” She stated to these
people the victim’s salary was insufficient to pay the couple’s financial obligations and she
wanted a better life for herself.
The victim made arrangements to purchase a four-wheeler recreational vehicle from
his employer on April 29, 1994. He took the vehicle to his father’s home and began riding
it. He permitted some of his friends to ride it. The defendant arrived later that afternoon.
The victim and the defendant began to argue. The victim gave the defendant $150
according to one witness, and $120 according to the defendant, to pay the couple’s
financial obligations. While the victim was holding the couple’s seven month old child, the
defendant kicked the victim in the groin. Later, the victim gave someone money to
purchase pizza for supper.
When the defendant and the victim reached their residence, they continued to
argue. The defendant removed her clothes from the closet and threw them on the bed.
She told the victim she was going to leave him. The defendant testified the victim became
violent, struck her several times, and subsequently grabbed her hair and threw her on the
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bed. He then sat on top of her and used his knees to pin the defendant’s arms against the
bed. The defendant told the victim she really was not going to leave and she loved him.
The defendant stated the victim told her he was either going to kill her or kill himself.
The victim retrieved a .12 gauge shotgun from the closet and nitromagnum shells
from the dresser. When the victim placed the shotgun at the end of the bed, the defendant
stated she moved the gun down a hallway and eventually hid the shotgun underneath a
blanket lying on the floor in the living room. The victim eventually came into the living room
and asked the defendant where she had placed his shotgun. His foot eventually hit the
shotgun, and the victim retrieved the gun. He sat on a couch, placed the shotgun between
his legs, and aimed the gun at his face. He could not reach the trigger with his finger. He
obtained a fly swatter and attempted to activate the trigger with the loop end of the fly
swatter.
The defendant testified she again told the victim she loved him and she would not
leave him while kneeling on the floor near his feet. She asked the victim to place the
shotgun back on the shelf in the closet. According to the defendant, she placed her hands
on the wooden stock or butt of the shotgun and attempted to take the shotgun from the
victim. The shotgun discharged. The victim was shot near the middle of his chest. The
pellets did massive damage to the victim’s heart and left lung, and several pellets
penetrated the aorta, one of the major arteries. The victim died within seconds after being
shot.
The defendant was twenty-three years of age when she was sentenced. One child
was born to the defendant’s marriage to the victim. The child was two years of age on the
date of the sentencing hearing. The defendant graduated from high school, and she has
a stable work history. The presentence report reflects the defendant has never been
arrested, and she has not engaged in criminal behavior other than assault and battery
committed against the victim on several occasions.
When an accused challenges the manner of serving a sentence imposed by the trial
court, it is the duty of this court to conduct a de novo review on the record with a
presumption that “the determinations made by the court from which the appeal is taken are
correct.” Tenn. Code Ann. § 40-35-401(d) (1990 Repl). This presumption is “conditioned
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upon the affirmative showing in the record the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). The presumption does not apply to the legal conclusions reached by the trial
court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994). However, this court is required to give great weight to the trial court’s
determination of controverted facts as the trial court’s determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.
In conducting a de novo review of a sentence, this Court must consider (a) any
evidence received at the trial and sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,
(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)
any statements made by the accused in her own behalf, and (h) the accused’s lack of
potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103and 210 (1990 Repl.); State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app.
denied (Tenn. 1987).
The party challenging a sentence imposed by the trial court has the burden of
establishing the sentence is erroneous. Sentencing Commission Comments to Tenn.
Code Ann. §40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311. In this
case, the defendant has the burden of illustrating the sentences imposed by the trial court
are erroneous.
In this case, the defendant is entitled to a presumption, rebuttable in nature, that she
is a favorable candidate for alternative sentencing unless disqualified by a provision of the
Tennessee Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-102(6)
(1990 Repl.). She was convicted of a Class E felony, and sentenced as a standard
offender.
The trial court refused to grant the defendant probation or some other form of
alternative sentence. The court based its decision on the following grounds: (a) the nature
and circumstances of the offense, Tenn. Code Ann. § 40-35-210(b)(4) (1990 Repl.); (b)
avoiding depreciating the seriousness of the offenses, Tenn. Code Ann. § 40-35-103(1)(B)
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(1989); and (c) the deterrent effect confinement would have upon residents of Carter
County. Tenn. Code Ann. § 40-35-103(1)(B) (1989).
The trial court properly considered the nature and circumstances of the offense.
Here, the defendant and the victim constantly argued. The defendant apparently became
violent when she was angry because she physically attacked the victim on numerous
occasions in the presence of several individuals. No one ever saw the victim retaliate with
violence toward the defendant. The end result of the constant bickering and the physical
attacks was the death of the victim. These circumstances also support the denial of an
alternative sentence predicated upon deterrence. See State v. Davis, 940 S.W.2d 558,
560 (Tenn. 1997). Furthermore, the granting of an alternative sentence would result in
depreciating the seriousness of the offense. Id.This court concludes the defendant has failed to establish the judgment of the trial
court was erroneous. Therefore, the judgment of the trial court should be affirmed.
_________________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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