State of Tennessee v. Gary Wayne Ford ( 2020 )

07/21/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 25, 2020 Session
STATE OF TENNESSEE v. GARY WAYNE FORD
Appeal from the Criminal Court for Meigs County
No. 2015-CR-53 Jeffery Hill Wicks, Judge
No. E2019-00684-CCA-R3-CD
The defendant, Gary Wayne Ford, appeals the Meigs County Criminal Court’s denial of
alternative sentencing for his conviction of voluntary manslaughter, arguing that the trial
court applied an incorrect legal standard, admitted improper rebuttal evidence at the
sentencing hearing, and based its decision on unreliable or contradicted evidence. After
careful examination of the record, we affirm the trial court’s judgment.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Gregory Scott Kanavos, Cleveland, Tennessee, for the appellant, Gary Wayne Ford.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Russell Johnson, District Attorney General; and Lauren M. Bennett, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Meigs County Grand Jury charged the defendant, Gary Wayne Ford,
with one count each of second degree murder and voluntary manslaughter arising from the
death of Francis C. Turner. In a superseding indictment, the Grand Jury charged the
defendant with alternative counts of the second degree murder of the victim. Pursuant to
a plea agreement with the State, the defendant entered a plea of nolo contendere to the
lesser charge of voluntary manslaughter in count one, and the State dismissed the second
count of second degree murder. Under the terms of the agreement, the defendant would be
sentenced as a Range I offender with the length and manner of service of the sentence to
be determined by the trial court. At the plea submission hearing, the State provided the
following statement of facts:
[S]hould this matter have gone to trial, the State would have
proven beyond a reasonable doubt that in Meigs County, and
in the State of Tennessee, on April 9, 2015, that the defendant
Gary Wayne Ford, intentionally or knowingly killed Colleen
Francis Turner, in a state of passion produced by an adequate
provocation sufficient for any reasonable person to act in an
irrational manner . . . .”
We glean the following facts from the Meigs County Sheriff Department’s
(“MCSD) incident report as stated in the presentence report:1 On the morning of April 10,
2015, Investigator Alex Clary responded to the defendant’s 9-1-1 call in which the
defendant stated that he arrived at his home at 1197 Lefew Lane sometime after 6:30 a.m.
and found the victim deceased. When Investigator Clary arrived at the scene, he found the
deceased victim seated in a chair “wearing panties rolled down around her thighs and a
bra.” He noticed “visible signs that a physical altercation had occurred” throughout the
house, including “a television in the master bedroom that ha[d] been knocked over,
contents of an ash tray scattered throughout the living room and a pair of broken eyeglass
. . . lying under the entertainment center. The main bathroom had human feces scattered
over the floor, vanity and walls” and a “human tooth [wa]s found lying in the feces in the
bathroom.” The feces “had been stepped in by someone wearing shoes.” Investigator
Clary noticed bruising, cuts, and scrapes on the victim’s body and “a visible scratch on the
forehead of [the defendant] ‘that appears to have been made by fingernails.’”
The defendant told the police that the victim arrived at his house at
approximately 9:00 p.m. on the night of April 9, 2015. He stated that the victim began to
get upset, and he “left and went and spent the night with my brother.” The defendant said
that the victim called him at approximately 6:30 a.m. the next morning, and he told her to
leave the house. The defendant stated that he went to the house that same morning on his
way to work and found the victim deceased.
After a lengthy sentencing hearing, the trial court imposed a five-year
sentence to be served in confinement.
The defendant filed this timely appeal, asserting that the trial court erred by
imposing a fully-incarcerative sentence, that the trial court admitted improper rebuttal
evidence, and that the trial court based its decision on unreliable or contradicted evidence.
1
Although the defendant objected to the inclusion of this statement in the presentence report at the
sentencing hearing, the trial court ruled that this statement was sufficiently reliable for inclusion in the
report, and the defendant has not raised the issue on appeal.
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I. Sentencing Hearing
At the sentencing hearing, Meigs County probation supervisor Douglas
Brannon testified that he had prepared the defendant’s presentence report. In the report,
Mr. Brannon included all charges—including those that had been dismissed—and provided
commentary related to each charge based on information he gathered from the defendant
and the affidavits of complaint related to each charge. The defendant acknowledged to Mr.
Brannon that he had previously received drug and alcohol treatment and that he still “drank
a lot,” stating that he drank a six-pack of beer per day and that his longest period of sobriety
had been one week. Mr. Brannon testified that he was concerned with the defendant’s
suitability for probation due to his alcohol and drug issues, noting that those issues could
contribute to his having difficulty maintaining employment.
During cross-examination, Mr. Brannon acknowledged that the Tennessee
Department of Correction (“TDOC”) policy on the preparation of presentence investigative
reports required that the report “must be based upon an independent and objective
investigation” and that “[o]fficers shall . . . investigate, interview and collect
documentation and verification for each report as detailed in the TDOC community
supervision investigation reports and book.” He further acknowledged that the policy
stated, “Officers shall not include information that pertains to criminal or legal matters that
have been terminated in favor of the offender unless otherwise requested by the court.”
Mr. Brannon conceded that the dismissed charge of October 7, 2014 should not have been
included in his report “[a]s applies to that particular policy,” but he contended that the
dismissed charge was important to show “the relationship between the victim and the
defendant” and that he included it because “[t]he court is to be informed as best as it can.”
Mr. Brannon explained that he provided commentary to the defendant’s prior
convictions because the online form provides “a narrative section for commentary,” and he
“filled it out.” He acknowledged that he did not independently investigate the information
provided in the affidavit of complaint related to the defendant’s DUI conviction, but he
presumed that “[t]here was no issue with the affidavit” because the defendant had pleaded
guilty to the charge. He described his investigation as including his request to obtain
relevant documents from the district attorney’s office, speaking with Investigator Alex
Clary of the Meigs County Sheriff’s Department (“MCSD”) and Tennessee Bureau of
Investigation (“TBI”) Agent Jason Legg, and conducting “some independent research” on
the defendant. He acknowledged that he did not investigate the crime scene but
emphasized that, because he was preparing the report three years after the victim’s death,
he “had to rely on the paperwork.” He stated that the summary of the incident that he
provided as relevant to this case was a “summation of . . . [the] Meigs County report.” He
took contemporaneous notes during his interview with the defendant, and, throughout the
interview, the defendant maintained that he had nothing to do with the crime and that he
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found the deceased victim when he arrived home.
Mr. Brannon stated that he had not been provided the victim’s full autopsy
report despite his having “requested all documents through the DA’s office that were
applicable.” He acknowledged that he made no reference to the victim’s criminal history
in the presentence report and that the Habitual Motor Vehicle Offender petition that had
been filed against the victim indicated that the victim had three prior DUI convictions.
Mr. Brannon acknowledged that the defendant’s Strong-R assessment
“indicate[d] that he would be a low risk at probation to re-offend.”
Doctor Amy Hawes, an assistant medical examiner at the Knox County
Regional Forensic Center, conducted the victim’s autopsy. She found that the victim had
“about one point one liter of blood in the abdomen,” “a laceration of her spleen,” “a
displaced fracture to the left 11th rib on the back,” and “two . . . small abrasions about one
quarter inch each on her left lower chest.” The victim also had “scattered abrasions and
contusions of the forehead and face” and extremities, “contusions beneath the scalp[,] and
bleeding in her left temporalis muscle.” Doctor Hawes explained that it would take a “very
strong punch,” a “very strong kick,” a “fall,” or a “car wreck” to break a rib as the victim’s
was broken. She stated that the victim’s injuries were not likely caused by a “common
household fall,” noting that “[t]here would be more force required to cause this particular
type of injury.” Doctor Hawes said that the victim’s injuries appeared to have been
inflicted “relatively close in time” but that “the aging of injuries is very difficult to put
within an exact time window.” Noting that some of the bruises may have been as much as
12 to 24-hours old, Doctor Hawes stated that the spleen injury “did appear acute or fresh.”
Doctor Hawes determined the victim’s cause of death to be “multiple blunt force injuries
of the torso.” Although she was not asked to determine a manner of death for the autopsy
report, she testified that she “would classify the manner of death as homicide.”
During cross-examination, Doctor Hawes explained that no medical field is
able to determine an exact timeline of bruising because “[t]he medical literature shows that
there’s no firm timeline other than a yellow color in a bruise that would indicate that it
might be several days old.” She acknowledged that a splenic laceration is “more commonly
seen in car wrecks” because “the impact has to be pretty significant.” She stated, however,
that the victim’s injuries could have been caused by “a punch or a kick or anything that
would cause blunt trauma or impact to the body,” noting that a rib fracture caused from
hitting the steering wheel during a car wreck “would cause rib fractures on the front of the
chest,” whereas the victim had “a rib fracture on the back of the chest.” She acknowledged
that a car wreck can cause bruising all over a person’s body.
Doctor Hawes acknowledged that she did not perform an x-ray of the
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victim’s body but explained that she did not require one in this case because she “was able
to determine the cause of death and the extent of the injuries based on the examination that
I did.” She found the victim to have alcohol, methamphetamine, and hydroxyzine in her
system at the time of her death, but Doctor Hawes did not consider that combination to be
lethal in this case, although she acknowledged that the combination of alcohol and
methamphetamine “can cause altered behavior.” She concluded that the victim’s manner
of death was homicide based on the victim’s having been “in an altercation that led to her
injuries,” which information she learned from the investigators in this case. Doctor Hawes
maintained that it was her medical opinion that the victim “died from blunt force injuries
that are consistent with being in an altercation.”
Upon questioning by the court, Doctor Hawes explained that in looking at
microscopic sections of the victim’s spleen, she was able to determine that “all the bleeding
appeared acute or fresh,” which indicated “that it ha[d] not had a chance to heal or clot.”
From that information, she concluded that the splenic injury had “happened within a
relatively short period of time”—specifically, “minutes or hours”—prior to the victim’s
death. Considering “the totality of the evidence,” including “the rib fracture being on the
back of the chest as opposed to the front,” Doctor Hawes concluded that the victim did not
receive her injuries in a car wreck a day prior to her death.
On further recross-examination, Doctor Hawes stated that she could not
narrow down the victim’s time of death beyond sometime between 10:00 p.m. and 6:30
a.m. Although the victim had no injuries that would have caused immediate death, Doctor
Hawes could not determine how long the victim may have been alive after receiving the
injuries.
MCSD Investigator Alex Clary responded to the scene and was assisted in
the investigation by TBI Jason Agent Legg. Investigator Clary took the defendant’s
statement, attended the victim’s autopsy, and collected fingernail clippings from the victim
for DNA testing. Upon arriving at the scene, he noticed that the defendant “had some
scratch marks on his face.” Although the defendant told him that he had received the
scratches at work, Investigator Clary stated that he thought the scratches “could have been
part of fingernails scratching down the face,” noting that, although they had started to clot
and dry, they “looked to be fresh.” He stated that he found feces with what appeared to be
shoe prints throughout the house, although most was contained to the bathroom.
During cross-examination, Investigator Clary testified that, at the time he
investigated this case, he had not yet been to crime scene investigation school but that a
senior officer had been present at the scene with him. Although he started a crime scene
log at the scene, he acknowledged that it was unavailable, and he did not know what had
happened to it. He stated that he collected the defendant’s boots at the scene but
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acknowledged that he did not test them for fecal matter. He noted that the victim had fecal
matter on the bottom of her feet and that there was no indication that she had been moved
after her death. He acknowledged that in order to have taken some of the crime scene
photographs, Agent Legg would have had to enter the bathroom where most of the feces
and shoe prints were found. He further acknowledged that none of the fecal matter was
collected as part of the investigation.
Investigator Clary acknowledged that he did not contact the defendant’s
employer at Coleman Glass to verify the defendant’s account of receiving the scratches on
his face from work. He also stated that he did not swab the defendant’s face for DNA
evidence, did not test the victim’s clothing or cellular telephone for DNA evidence, did not
collect fingerprints from the scene, and did not process the victim’s vehicle as part of his
investigation. He conceded that several pieces of evidence lacked a proper chain of
custody.
Investigator Clary was present at the victim’s autopsy and informed the
medical examiner that the victim had been in a verbal altercation with the defendant. He
could not recall the exact wording of what he had said, but he stated, “I don’t think I would
have told her there’s no physical altercation.” He acknowledged that it was possible that
the victim had driven her vehicle while having alcohol and drugs in her system and that the
bruising on the victim’s knee had been obtained in a car accident. He also acknowledged
that the victim had been in a car accident only a couple of days prior to her death and that
the victim’s daughter had told him that the victim had been bruised in that accident.
TBI Special Agent Kim Lowe testified as an expert in DNA analysis. She
tested fingernail clippings collected from the victim and found the presence of male DNA
on the clippings from the victim’s left hand. The results were inconclusive as to the
defendant because of “the limited value of the DNA profile obtained.” However, when the
TBI obtained Y-STR capability in July 2016, she retested the victim’s fingernail clippings
and determined that the “Y-STR profile obtained matches [the defendant]; therefore [he]
cannot be excluded as the source of this male DNA profile, and barring a mutation, neither
can any of his parental male relatives.”
During cross-examination, Agent Lowe testified that, like the defendant, the
defendant’s brother and father also could not be excluded as contributors of the DNA if
they are biologically related, unless a mutation had occurred. She did not test for blood on
the fingernail clippings and speculated that the DNA contribution was “more than likely
probably skin cells.” She acknowledged that the defendant was excluded as a contributor
of DNA found on other items, including the fingernail clippings of the victim’s right hand.
On redirect examination, Agent Lowe clarified that she compared the DNA
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on the fingernail clippings to buccal swabs collected from the defendant. She stated that
the defendant’s being excluded as a contributor of the DNA found on several other items
meant that she did not find his DNA on those samples.
The State rested.
Terri Stone, the chief monitoring supervisor agent for All Counties DUI and
Ankle Monitoring, testified that she placed an ankle monitor on the defendant on August
19, 2015, in relation to this case and removed it on December 14, 2017. During that
monitoring period, she had no issues with the defendant—he made all of his payments and
called her before leaving for work each day to report his work location.
Coleman Glass owner Keven Hensley testified that the defendant had worked
for him since approximately 2007 and described the defendant as “a good employee.” He
stated that mishaps were “a common occurrence” in glass installation and estimated that
his employees “probably see their own blood about every day.” Since making bond in this
case, the defendant had never been late to work and displayed a good work ethic. Mr.
Hensley stated that, if the defendant was granted probation, he would allow him to continue
working at Coleman Glass.
The defendant made an allocution and then rested.
In rebuttal, the State called Rachel Shutt Dockery,2 the victim’s daughter,
who testified that the damage to the victim’s vehicle, which was visible in several crime
scene photographs, had occurred a “[c]ouple of months prior to her death.”
On cross-examination, Ms. Dockery acknowledged that the victim had been
violent with her on a previous occasion, grabbing her by the hair and hitting her in the face
after Ms. Dockery had “talk[ed] to my mom probably not the way that I needed to.” She
acknowledged that the victim used methamphetamine but denied that it was on a frequent
or regular basis. She also denied that the victim had ever given her “any kind of drugs,”
but she acknowledged that once, when the defendant had “laid a line [of
methamphetamine] out for me,” the victim had “done it with him.” The last time that she
had seen the victim was on the Sunday preceding the victim’s death.
At the conclusion of Ms. Dockery’s testimony, Ms. Dockery read a victim
impact statement, and the prosecutor read a victim impact statement from the victim’s
mother.
2
The presentence reports identifies Ms. Dockery as Rachel Shutt. We will refer to her here as Ms.
Dockery as this is how she identified herself at the sentencing hearing.
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The trial court struck from the presentence report the dismissed October 17,
2014 domestic violence charge and its accompanying commentary as well as the
commentary related to the September 23, 2005 domestic violence conviction, finding that
those statements were unreliable hearsay. The court ruled that the narrative summary
related to the instant case was properly included in the report as reliable hearsay because
Mr. Brannon knew both of the officers from whom he gathered the information and had
testified that they were credible.
The trial court waived a fine and imposed a sentence of five years’
incarceration to be served in confinement.
In rendering its decision to impose a fully-incarcerative sentence, the trial
court considered the “presentence report, the defendant’s physical and mental condition
and social history, the facts and circumstances surrounding the offense and the nature of
the circumstances of the criminal conduct involved, prior criminal history of the defendant
or the lack thereof.” The court found that “the defendant had a history of domestic
violence” based on the defendant’s Roane County conviction in 2005 and had a DUI
conviction from 2015. The court also found that the defendant did not “really appreciate
the seriousness of the offense and refuse[d] to accept any responsibility.”
The trial court found no mitigating factors and found the following three
enhancement factors: That the defendant had a “previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range,” that
“the personal injuries inflicted upon . . . the victim was particularly great,” and that the
defendant had “no hesitation about committing a crime when the risk to human life is high.”
See T.C.A. § 40-35-114(1), (6), (10). Additionally, the court found that confinement was
“particularly suited to provide an effective deterrent to others likely to commit similar
offenses,” stating, “[I]t would send[] a terrible message to the community at large that
someone can kill their husband or wife or boyfriend or girlfriend even in a heat of rage and
be allowed to walk free on probation.” See T.C.A. § 40-35-103(1)(B).
II. Denial of Alternative Sentencing
The defendant appeals the imposition of a fully-incarcerative sentence,
arguing that the trial court based its decision “upon an incorrect legal standard” by failing
to consider the defendant’s “favorability for probation.” The State contends that the trial
court did not err.
Our supreme court has adopted an abuse of discretion standard of review for
sentencing and has prescribed “a presumption of reasonableness to within-range sentencing
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decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial courts are
“required under the 2005 amendments to ‘place on the record, either orally or in writing,
what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, in order to ensure fair and consistent sentencing.’” Bise 380 S.W.3d at 698-
99 (quoting T.C.A. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be
upheld so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.” Id.
at 709. The abuse-of-discretion standard of review and the presumption of reasonableness
also applies to “questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
The imposition of a five-year sentence in this case mandated the trial court’s
considering probation as a sentencing option. See T.C.A. § 40-35-303(a) (“A defendant
shall be eligible for probation under this chapter if the sentence actually imposed upon the
defendant is ten (10) years or less . . . .”). Traditionally, the defendant has borne the burden
of establishing his “suitability for full probation.” State v. Mounger, 7 S.W.3d 70, 78
(Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b). Such a showing required the
defendant to demonstrate that full probation would “subserve the ends of justice and the
best interest[s] of both the public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990) (quoting Hooper v. State, 297 S.W.2d 78, 81 (1956), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000)).
When a trial court orders confinement and therefore rejects any form of
alternative sentencing such as probation, split confinement, or periodic confinement, it
must base the decision to confine the defendant upon the considerations set forth in Code
section 40-35-103(1), which provides:
(1) Sentences involving confinement should be based on the
following considerations:
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of criminal
conduct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited
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to provide an effective deterrence to others likely to commit
similar offenses; or
(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the
defendant; . . . .
T.C.A. § 40-35-103(1). When a sentence involving confinement is based solely on the
need for deterrence, the record must reflect “that (1) a need to deter similar crimes is present
in the particular community, jurisdiction, or in the state as a whole, and (2) incarceration
of the defendant may rationally serve as a deterrent to others similarly situated and likely
to commit similar crimes.” State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000). “When
deciding whether a need for deterrence is present and whether incarceration is ‘particularly
suited’ to achieve that goal,” trial courts should consider the following non-exclusive
factors:
(1) Whether other incidents of the charged offense are
increasingly present in the community, jurisdiction, or in the
state as a whole;
(2) Whether the defendant’s crime was the result of intentional,
knowing, or reckless conduct or was otherwise motivated by a
desire to profit or gain from the criminal behavior;
(3) Whether the defendant’s crime and conviction have
received substantial publicity beyond that normally expected
in the typical case;
(4) Whether the defendant was a member of a criminal
enterprise, or substantially encouraged or assisted others in
achieving the criminal objective; [and]
(5) Whether the defendant has previously engaged in criminal
conduct of the same type as the offense in question,
irrespective of whether such conduct resulted in previous
arrests or convictions.
Hooper, 29 S.W.3d at 10-12; see also State v. Fields, 40 S.W.3d 435, 441-42 (Tenn. 2001).
Here, the trial court relied solely on the need for deterrence under Code
section 40-35-103(1)(B) to deny alternative sentencing to the defendant; however, the court
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failed to make any finding relative to the need for deterrence or how the defendant’s
incarceration would achieve that goal. Furthermore, the record is devoid of any evidence
of the need for deterrence in the particular jurisdiction or community. The trial court
identified only the elements of the offense of voluntary manslaughter in articulating the
need for deterrence. Our legislature, however, has seen fit to make voluntary manslaughter
a probation-eligible offense. See T.C.A. § 39-13-211(b) (identifying voluntary
manslaughter as a Class C felony); T.C.A. § 40-35-102(6)(A) (providing that a defendant
who is a “standard offender convicted of a Class C . . . felony, should be considered as a
favorable candidate for alternative sentencing”). Consequently, a trial court cannot rely on
the elements of the offense as the basis for denying alternative sentencing. See State v.
Trent, 533 S.W.3d 282, 292 (Tenn. 2017) (“If trial courts were permitted to deny probation
solely on the basis of the elements of probation-eligible offenses, then the statute providing
for probation-eligibility for those offenses would be rendered a nullity.”) Because the trial
court made no factual findings relative to the need for deterrence, and no such evidence
was presented at the sentencing hearing, the trial court erred by ordering the defendant to
serve his sentence in confinement on that basis.
Additionally, in denying the defendant probation, the trial court failed to state
on the record whether the defendant had carried his burden of establishing his suitability
for full probation. Similarly, although the trial court found that the defendant failed to
“really appreciate[] the seriousness of the offense and refuse[d] to accept any
responsibility,” the court did not make any finding regarding the defendant’s amenability
to rehabilitation. See T.C.A. § 40-35-103(5) (“The potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the
sentence alternative or length of a term to be imposed.”).
We also note that the trial court misapplied enhancement factor number six,
that “[t]he personal injuries inflicted upon . . . the victim was particularly great,” and
number 10, that “[t]he defendant had no hesitation about committing a crime when the risk
to human life was high.” See T.C.A. § 40-35-114(6), (10). Enhancement factor number
six is inapplicable when the death of the victim is an element of the offense. See State v.
Kevin E. Trent, No. E2018-02239-CCA-R3-CD, slip op. at 16 (Tenn. Crim. App.,
Knoxville, Apr. 17, 2020) (stating that enhancement factor six is inapplicable when “death
of the victim is an element of the offense” (citing State v. Williamson, 919 S.W.2d 69, 82
(Tenn. Crim. App. 1995))); State v. David Keith Daugherty, No. 03C01-9203-CR-00082,
1993 WL 330454, at *4 (Tenn. Crim. App., Knoxville, Aug. 27, 1993) (stating that “[s]ince
this factor ‘is present in every homicide as an element of the offense,’ it cannot be used as
an enhancement factor on the voluntary manslaughter offense” (citations omitted)).
Similarly, enhancement factor number 10 “is applicable only when there is proof that the
defendant’s conduct in committing the offense created a high risk to the life of someone
other than the victim.” Trent, 533 S.W.3d at 294 (citing State v. Bingham, 910 S.W.2d
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448, 452-53 (Tenn. Crim. App. 1995) overruled on other grounds by Hooper, 29 S.W.3d
at 9-10). The record before us contains no evidence that the defendant’s offense posed a
risk to anyone other than the victim. The trial court’s misapplication of these enhancement
factors, however, is not “a basis in and of itself for vacating a sentence.” Trent, 533 S.W.3d
at 294; accord Bise, 380 S.W.3d at 706.
Because the trial court erred by denying alternative sentencing and ordering
incarceration contrary to the principles of sentencing, the presumption of reasonableness
does not attach to the trial court’s decision. See Trent, 533 S.W.3d at 295. Because the
record before us is “sufficient to allow meaningful appellate review,” we will “undertake
an independent review of the record” to determine the manner of service of the defendant’s
sentence. See id.
In determining whether a defendant has carried his burden to prove his
suitability for full probation, a court should consider the following factors: “(1) the
defendant’s amenability to correction; (2) the circumstances of the offense; (3) the
defendant’s criminal record; (4) the defendant’s social history; (5) the defendant’s physical
and mental health; and (6) special and general deterrence value.” Trent, 533 S.W.3d at 291
(citing State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).
Here, as to the defendant’s amenability to rehabilitation and correction, Ms.
Stone testified that the defendant complied with all supervision requirements while wearing
an ankle monitoring device during a 28-month period from August 2015 to December
2017, including reporting his work locations and paying all monitoring fees. The Strong-
R assessment, included in the presentence report, indicates that the defendant poses a low
risk of re-offending. Although the defendant’s criminal history is relatively short and
includes only a misdemeanor conviction for domestic violence in 2005 and a misdemeanor
conviction for DUI in 2014, in his interview with Mr. Brannon, he acknowledged using
opioids and methamphetamine daily in the past, and Ms. Dockery’s statement as relayed
in the presentence report indicates methamphetamine usage as recently as 2013 or 2014.
Additionally, the presentence report indicates that the defendant committed the present
offense in April 2015 while his DUI case was pending. The defendant continued to engage
in illegal behavior during the pendency of this case, acknowledging to Mr. Brannon that
he smoked marijuana only a few days prior to his September 2018 interview for the
presentence investigation. On balance, we find that the defendant has failed to establish
his amenability to correction, and this factor weighs against a grant of probation.
The defendant’s employment history weighs in favor of a grant of probation.
Mr. Hensley testified that the defendant had worked at Coleman Glass Company since
2007 and that he was “a good employee.” Since making bond in this case, the defendant
maintained a good work ethic and always arrived to work on time. Mr. Hensley also stated
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that the defendant could continue his employment at Coleman Glass if granted probation.
The evidence in the record indicates that the defendant has a history of
alcohol and substance abuse issues. Mr. Brannon testified that the defendant had reported
drinking a six-pack of beer per day with his longest period of sobriety being one week, and
the presentence report indicates that the defendant acknowledged that he had an “alcohol
abuse issue” and that he was advised to undergo a drug and alcohol treatment program in
June of 2018, but he discontinued that treatment due to his inability to afford it. As stated
above, the defendant acknowledged smoking marijuana five to six days prior to his
presentence interview with Mr. Brannon, and the defendant acknowledged having abused
opioids and methamphetamine until approximately 10 to 12 years prior to the interview.
The presentence report also indicates, however, that Ms. Dockery described to Agent Legg
an incident in which the defendant was using methamphetamine as recently as 2013 or
2014. Additionally, Ms. Dockery testified that, on one occasion, the defendant had “laid a
line [of methamphetamine] out” for her. Although the trial court did not make any finding
of fact regarding the defendant’s drug and alcohol abuse, the trial court deemed the
inclusion of Agent Legg’s summary of the investigation in the presentence report to be
reliable.
Moreover, the defendant failed to complete treatment for his substance abuse
issues. Although he was sent to Peninsula clinic in Knoxville for treatment for alcohol
abuse and was advised to continue treatment, he discontinued the treatment after two days
because he could not afford it despite his spending over $300 per month on alcohol.
Consequently, the defendant’s history of drug and alcohol abuse and his unwillingness to
complete treatment weighs against a grant of probation.
The trial court found, and we agree, that the defendant failed to accept
responsibility for this offense. Although the defendant expressed sorrow for the loss to the
victim’s family, he maintained his ignorance of the circumstances of the victim’s injuries
and death, which assertion the trial court deemed incredible. The defendant’s no-contest
plea does not preclude a finding that he failed to “accept responsibility for his criminal
conduct as it relates to his rehabilitation potential.” See State v. Jeremy Lance Przybysz,
No. M2007-02169-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Nashville, Apr. 27, 2009)
(quoting State v. Homer L. Evans, No. E2000-00069-CCA-R3-CD, slip op. at 5 (Tenn.
Crim. App., Knoxville, Mar. 20, 2001)). A defendant’s failure to accept responsibility
weighs against a grant of probation and is sufficient in and of itself to support the denial of
probation. See State v. Cody Garris, No. M2012-01263-CCA-R3-CD, slip op. at 9-10
(Tenn. Crim. App., Nashville, Mar. 6, 2013) (stating that a “defendant’s lack of candor and
failure to accept responsibility . . . are both acceptable grounds for the denial of both
judicial diversion and probation”) (citing State v. Souder, 105 S.W.3d 602, 608 (Tenn.
Crim. App. 2002); State v. Dowdy, 894 S.W.2d 301, 307 (Tenn. Crim. App. 1994)).
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The defendant’s social history is somewhat inconsistent. According to the
presentence report, the defendant was close with his brother and considered him to be his
primary family member. The Strong-R assessment indicates that the defendant’s family
was “generally positive or pro-social” with “minimal family conflict” and that some family
members were “generally willing to intervene and support” the defendant. In contrast, the
trial court found that the defendant and the victim had “a history . . . of domestic violence,
domestic assaults where teeth were knocked out, [and] punches in the ribs,” which finding
is supported by the Agent Legg’s summary of his investigation and the victim impact
statements as included in the presentence report. Despite the defendant’s having a
supportive family, this factor weighs against the grant of probation in light of the
defendant’s history of domestic violence.
The defendant was 61 years old at the time of his sentencing hearing, and the
presentence report indicated that the defendant reported no physical health issues and a
“fair” mental health status. He acknowledged a prior suicide attempt in 1985 after the
death of his wife, after which he spent three days in a mental health facility. At some point,
he completed four to five months of outpatient treatment at Hiawassee Mental Health
Center, but he ceased participation in that program because he “didn’t see the need.”
Nothing in the defendant’s mental health indicates that he could not be successful on
supervised probation, and this factor weighs in favor of a grant of probation.
The circumstances of the offense cannot be determined in this case. The trial
court found the victim died from injuries inflicted during an altercation with the defendant,
and we agree with that assessment; however, without knowing the impetus for the
altercation, the manner in which the defendant injured the victim, or the period of time over
which the injuries were inflicted, we cannot determine the circumstances of the offense,
and this factor has no bearing on our decision of whether to grant the defendant probation.
As stated above, the record contains no proof of what deterrence value the
defendant’s confinement would provide.
On balance, we find that the defendant has failed to demonstrate that he
should be granted alternative sentencing in this case. The defendant’s unwillingness to
accept responsibility, his substance abuse issues, his history of domestic violence, and his
lack of amenability to supervision in the community indicate that he is not a good candidate
for supervised probation, and, based on the record before us, we decline to grant an
alternative sentence.
III. Rebuttal Evidence
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Next, the defendant contends that the trial court erred by permitting the State
to present certain evidence in rebuttal. Specifically, the defendant argues that the State
should not have been permitted to present victim impact statements as part of its rebuttal
evidence. The State argues that the defendant has waived appellate review of this issue for
failure to object to the reading of the statements contemporaneously. In the alternative, the
State contends that the trial court did not err in admitting the statements.
The failure to lodge a contemporaneous challenge results in a waiver of the
issue. See Tenn. R. Evid. 103; Tenn. R. App. P. 36(b) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988)
(waiver applies when the defendant fails to make a contemporaneous objection); State v.
Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6,
11-12, 18 (Tenn. Crim. App. 1987). Here, the record reflects that the defendant did not
object to the reading of the victim impact statements after the defendant’s case in chief.
The defendant’s only objection to the victim impact statements was regarding any
reference to a recommended sentence, which objection the trial court sustained. Because
the defendant failed to object to the timing of the reading of the victim impact statements,
he has waived this issue.
Waiver notwithstanding, the record is clear that the statements in question
were not presented as rebuttal evidence. Although Ms. Dockery read her victim impact
statement immediately after she finished testifying, the record makes it clear that her
testimony had ended before she read the statement. At the close of the defendant’s cross-
examination of Ms. Dockery, the State indicated that it would not conduct a redirect
examination, stating, “I have nothing further, Your Honor. Although, [Ms. Dockery] does
desire to read a victim impact statement that she’s got prepared.” The victim impact
statement from the victim’s mother could not reasonably have been construed as rebuttal
evidence as the statement was read into the record by the prosecutor. Furthermore, both
victim impact statements were made a part of the presentence report, which had already
been exhibited to the hearing. Accordingly, this issue lacks merit.
IV. Trial Court’s Assessment of Evidence
Finally, the defendant argues that the trial court’s decision to impose a
sentence of confinement was “not supported by the relevant and reliable evidence” and that
the court’s findings “were either contradicted by the evidence in the record or were
otherwise unreliable and should not have influenced the court’s sentencing decision.” The
State argues that the trial court properly considered the evidence.
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The defendant points to the following four issues that factored into the trial
court’s sentencing decision, but which, the defendant alleges, were “either contradicted by
the evidence in the record or were otherwise unreliable”: 1) the court’s finding that the
defendant had a history of domestic violence, 2) the court’s reliance on the medical
examiner’s testimony in determining that the victim sustained her injuries in an altercation
rather than in a car accident, 3) the court’s finding that the defendant did not appreciate the
seriousness of the offense, and 4) the court’s consideration of the victim impact statements.
The defendant asserts that the court failed to state facts supporting its finding
of enhancement factors as they related to the victim’s injuries and the risk to human life
and that the court erred by finding that the defendant had a history of domestic violence.
As stated above, the trial court erred by applying enhancement factors six and 10.
Accordingly, only the trial court’s finding that the defendant had a history of domestic
violence is at issue here. The presentence report’s indication that the defendant had a prior
conviction for domestic violence is sufficient to support the trial court’s finding.
Next, the defendant asserts that the court should not have relied on Doctor
Hawes’ testimony to find that the victim sustained her injuries in an altercation because
Doctor Hawes had also stated that such injuries were more commonly associated with
vehicle accidents. Doctor Hawes, however, testified that the victim’s manner of death was
homicide and that her injuries were inconsistent with a vehicle accident in this case, in part
because the victim’s broken rib was in the back of her chest rather than in the front. This
evidence supports the trial court’s findings as to the victim’s injuries.
The defendant next argues that the trial court erred by finding that the
defendant did not appreciate the seriousness of the offense. The defendant maintained
throughout the sentencing hearing his theory that the victim sustained her injuries in a car
accident and that he had nothing to do with her death. As stated above, the trial court found
the defendant’s ignorance of the circumstances surrounding the victim’s injuries
incredible. The trial court also found that the defendant and the victim had “a history . . .
of domestic violence, domestic assaults where teeth were knocked out, [and] punches in
the ribs,” all of which the trial court determined “seemed to be consistent with the injuries
that [the victim] suffered on the date that she died.” Consequently, the trial court did not
err by finding that the defendant failed to take responsibility or appreciate the seriousness
of the offense.
Finally, the defendant contends that the court gave undue weight to the victim
impact statements while failing to consider evidence in his favor such as his full
compliance with his bond conditions, his lack of prior felony convictions, and his being
identified as “low risk” on the Strong-R assessment. The trial court, however, explicitly
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stated that, in rendering its decision, it considered the presentence report, the defendant’s
social history, and his prior criminal convictions, and, consequently, this issue lacks merit.
Accordingly, we affirm the judgment of the trial court.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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