State of Tennessee v. Don Birdwell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 21, 2009 Session

STATE OF TENNESSEE v. DON BIRDWELL

Direct Appeal from the Circuit Court for Grundy County

No. 4349 Thomas W. Graham, Judge

No. M2008-02313-CCA-R3-CD - Filed July 29, 2010

Defendant, Don Birdwell, was convicted of one count of aggravated assault, a Class C

felony, and one count of vandalism of property valued between $1,000 and $10,000, a Class

D felony. The trial court sentenced Defendant as a Range I, standard offender, to concurrent

sentences of three years, six months for his aggravated assault conviction, and two years, six

months, for his vandalism conviction, for an effective sentence of three years, six months.

The trial court ordered Defendant to serve ninety days in confinement, after which the

sentence was suspended and Defendant placed on probation. On appeal, Defendant argues

that (1) the evidence is insufficient to support his convictions of aggravated assault and

vandalism; (2) the trial court impermissibly commented on the evidence; and (3) the trial

court erred in denying Defendant’s request for full probation. After a thorough review of the

record, we affirm the judgments of the trial court.

Tenn. R. App. P. Appeal as of Right; Judgments of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and

R OBERT W. W EDEMEYER, JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Don Birdwell.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; James Michael Taylor, District Attorney General; and David McGovern, Assistant

District Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

Marilu Gilbert, the victim, testified that in July 2006 she bought approximately five

acres of property located at 1121 Barker Road in Grundy County. The victim said that

Defendant owned property adjacent to her land. Shortly after she moved in, Defendant told

the victim that he had completed a survey of his property in January 2006. Defendant said

that according to this survey, the victim’s chain link fence had been constructed on his

property, and an outbuilding located at the back of the victim’s property was partially on

Defendant’s property. Defendant stated, however, that he believed the survey was incorrect.

Defendant told the victim that his property line extended much further into her property than

what was indicated on the survey and that he planned to order another survey.

The victim said that Defendant never hired a surveyor despite her repeated requests

that he do so. The victim stated that Defendant became “more aggressive” during their

conversations. Defendant told the victim that he would use a bulldozer to tear down her

chain link fence and dig up the driveway. The victim stated:

he kept telling me that he was tired of telling me he knew where the fence line

was, that people who wouldn’t listen to him and kept trying to steal his

property, [that] there was nothing to do but kill them. He said that once, and

then the second time he said that, he said, “And that includes you.”

In January 2007, Defendant again told the victim that he was going to order a survey

and asked her to be present while the survey was conducted. The victim told Defendant that

she would be home the first week in January except for January 3, 2007, when she had

scheduled dental surgery. The victim returned home on January 3rd at approximately 5:00

p.m. What appeared to be survey stakes were driven into her driveway and pink tags were

tied on her chain link fence. Defendant told the victim that this current survey was also

inaccurate and insisted that he owned more property than what was indicated by the survey.

Although Defendant briefly showed the survey to the victim, he refused to give her a copy.

The victim said that her property had been surveyed prior to the closing in 2006 by

William Williford, and markers were placed along the boundary line. However, the markers

were missing when she did a final inspection of the property before closing. The victim

ordered a second survey from Mr. Williford in February 2007. After the survey was

completed, the victim installed fencing approximately twelve to eighteen inches inside the

boundary markers to accommodate any overlap in the property descriptions between her

property and Defendant’s.

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On April 14, 2007, Defendant, using a backhoe, pulled up the posts supporting the

victim’s fence. The victim approached Defendant. Defendant said, “You stand right there.”

He pointed the backhoe in the victim’s direction. The victim testified:

He got off the backhoe and came up to the fence and pulled his right arm all

the way back with his fist and he said, “If you were a G.D. [sic] . . . man, I

would beat you to death right now. I’d beat the H-E-L-L [sic] out of you,” and

all, and then he got back on the backhoe and he leaned down to the left and

when he came up he had a gun in his hand and he said, “I told you what was

going to happen to you and your blankety blank [sic] fence if you kept trying

to take my property.” And he said, “I’ll kill you,” and he had a gun in his

hand, and he was holding it close to his left side and just doing it like back and

forth a little bit. He was so mad. He was spitting everywhere and he had drool

off of his chin and I thought he was going to kill me.

The victim said that she was unable to move. Defendant eventually began tearing

down the fence again, and the victim ran to her house. The victim said that during the

incident she noticed Keith Tate’s truck parked on Barker Road. The victim stated that

Defendant destroyed approximately 210 feet of fencing, or two-thirds of the fence. The

victim said that the entire fence cost $3,334.82. The victim stated, “It’s all still laying there

all tangled up. It’s just ripped to shreds, it wasn’t just pushed over.”

On cross-examination, the victim compared the survey prepared by Mr. Williford on

December 12, 2006, prior to the victim’s closing, with the survey prepared by John W.

Johnston, Jr. on January 5, 2007 at Defendant’s request. The victim acknowledged that Mr.

Johnston’s survey showed an overlap between the victim’s and Defendant’s property of

approximately two-tenths of one acre. The victim also acknowledged that she had filed a

petition in Chancery Court prior to trial to determine the boundary line between the two

properties, but the matter was still pending. On redirect examination, the victim said that she

had not seen Mr. Johnston’s survey prior to trial.

Roland Keith Tate testified that he was driving down Barker Road on April 14, 2007,

when he noticed Defendant tearing down the victim’s fence with a backhoe. Mr. Tate spoke

to the victim and described her as “very upset.” Mr. Tate stated that the property marker

located at the corner of the victim’s chain link fence had been there for years. Mr. Tate said

that the fence Defendant tore down was located on the victim’s side of the property marker.

William Sydney Williford testified that he has been a surveyor since 1986. Mr.

Williford said that in preparing the victim’s survey, he pulled the tax map for the property

and the deeds for all of the adjoining landowners. Mr. Williford stated that both the victim’s

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and Defendant’s property were originally part of the “Huling tract.” Mr. Williford said that

the property descriptions for the victim’s property in the intervening deeds since 1968 were

consistent. Mr. Williford said that Mary Jo Huling transferred property to Defendant in

1999. According to the property description in Defendant’s deed, his property line extended

onto the victim’s property by approximately two-tenths of an acre.

Mr. Williford stated that he informed Defendant that he was going to re-survey the

victim’s property. Defendant met Mr. Williford at the boundary line. Mr. Williford asked

Defendant where he thought the boundary line was located, and Defendant said that it went

through the middle of the victim’s house, or between eighty and one hundred feet inside the

boundary line indicated in the property description contained in the victim’s deed. Mr.

Williford stated that the victim’s chain link fence was situated approximately two inches

from the corner marker. The driveway, which had been on the property for between ten and

twenty years, was located inside the chain link fence. Mr. Williford said that both the chain

link fence and the driveway were on the victim’s property. On cross-examination, Mr.

Williford acknowledged that he had observed a number of posts set in concrete during his

survey, but he stated that the posts were not reflected on the survey because they were located

on the victim’s property.

The State rested its case-in-chief, and Defendant presented his defense. Defendant

testified that he bought the property located on Barker Road from Mary Jo Huling. At that

time, Clarence Pemberton owned the property next door. Defendant said that he and Mr.

Pemberton had never had a disagreement over the boundary line between the two properties.

Defendant stated that he placed posts embedded in concrete along the boundary line.

Defendant said that the posts disappeared after the victim moved onto the property.

Defendant testified that he tore down the victim’s fence because it was located on his

property. Defendant denied threatening the victim. Defendant said that he spoke with the

victim five or six times, and he never spoke any “hard words” to her. Defendant stated that

he did not own a gun. Defendant said that he had a pair of channel lock pliers with him on

the day of the incident.

II. Sufficiency of the Evidence

On appeal, Defendant challenges the sufficiency of the evidence supporting both his

aggravated assault and vandalism convictions. When a defendant challenges the sufficiency

of the convicting evidence, we must review the evidence in a light most favorable to the

prosecution in determining whether a rational trier of fact could have found all the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979). Once a jury finds a defendant guilty, his or her presumption of

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innocence is removed and replaced on appeal with a presumption of guilt. State v. Black, 815

S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this

presumption, and the State is entitled to the strongest legitimate view of the evidence along

with all reasonable inferences which may be drawn from that evidence. Id.; State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts and

drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542,

547 (Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value

to be given the evidence, and all factual issues raised by the evidence are resolved by the trier

of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules

are applicable to findings of guilt predicated upon direct evidence, circumstantial evidence,

or a combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990).

A. Aggravated Assault

As relevant here, a person commits aggravated assault when he or she intentionally

or knowingly commits an assault as defined in Tennessee Code Annotated section 39-13-101

and uses or displays a deadly weapon. See T.C.A. § 39-13-102(a)(1)(B). A person commits

an assault if he or she “[i]ntentionally or knowingly causes another to reasonably fear

imminent bodily injury.” Id. § 39-13-101(a)(2). Defendant argues that while he may have

been “angry and verbally abusive” during the confrontation on April 14, 2007, there was

insufficient evidence that he intended to cause the victim to fear imminent bodily injury.

The victim testified that Defendant was armed with a gun during the confrontation.

The victim stated that Defendant threatened to kill her, and that he waved the gun back and

forth in front of her. The victim said that she could not move, and she thought Defendant

was going to kill her. The jury heard Defendant’s testimony that he was not armed and that

he did not threaten to kill the victim. By its verdict, the jury obviously found the victim’s

testimony credible and rejected Defendant’s version of the event, as was its prerogative.

Viewing the evidence in a light most favorable to the State, we conclude that a rational trier

of fact could find beyond a reasonable doubt that Defendant was guilty of the offense of

aggravated assault. Defendant is not entitled to relief on this issue.

B. Vandalism

Defendant argues that the State failed to prove that he acted “knowingly” with respect

to the destruction of the victim’s fence. Citing Tennessee Code Annotated section 39-11-

502, Defendant submits that his “good faith belief that the fence was on his property”

indicated that he “was not aware of the nature of the conduct or of the circumstances so that

he knew that he could not do what he did.”

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In order to support a conviction for vandalism, the State is required to prove: (1) that

Defendant caused damage or destruction to real or personal property; (2) the damage or

destruction was done knowingly; (3) the property belonged to the victim; and (4) Defendant

did not have the victim’s effective consent to destroy or damage her property. T.C.A. § 39-

14-208. “Acts of vandalism are to be valued according to the provisions of § 39-11-106(35)

and punished as theft under § 39-14-105.” Id. § 39-14-408(c). The definition of value under

T.C.A. § 39-11-106(36) includes the fair market value of the property at the time of the

offense, or “[i]f the fair market value of the property cannot be ascertained, the cost of

replacing the property within a reasonable time after the offense.”

“[I]gnorance or mistake of fact is a defense to prosecution if such ignorance or

mistake negates the culpable mental state of the charged offense.” Id. § 39-11-502(a).

However, the defense is “a narrow defense.” Id., Sentencing Comm’n Cmts. A person acts

“knowingly with respect to the conduct or to circumstances surrounding the conduct when

the person is aware of the conduct or that the circumstances exist.” Id. §39-11-302(b). In

the case sub judice, Defendant’s belief that he owned the land under the victim’s fence,

whether “good faith” or not, did not serve to negate his knowing destruction of the victim’s

fence without her consent. Instead, Defendant’s “mistake” is not one of fact, but of law. See

Cheek v. United States, 498 U.S. 192, 199, 111 S. Ct. 609 (1991) (noting that it has long been

held that ignorance of the law is no defense to criminal prosecution).

Although he cites no authority in support of his position, Defendant argues that he

“had the right to present a defense based on his belief that he had a right to remove the fence

since [he] had the good faith belief that the fence was on his property.” Thus, a defense

based on a mistake of fact, that is, whether or not Defendant had a good faith belief that he

owned the land beneath the fence, is only pertinent if Defendant’s theory of defense is a

correct statement of the law.

Prior to the 1989 revisions of the Criminal Code, Tennessee Code Annotated sections

39-11-101, et seq., the statutes defining crimes addressed and prohibited numerous

destructive acts in successive sections of the code. T.C.A. § 39-14-408, Sentencing Comm’n

Comments; id. § 39-3-1301, et. seq. (repealed). Section 39-14-1408 consolidated and

simplified the former code sections. Id. § 39-14-408, Sentencing Comm’n Comments.

“[Section 39-14-408] is written broadly to include damage or destruction of any property

without the consent of the owner.” Id. (emphasis added).

Thus, for example, a panel of this Court has previously held that it is no defense to a

charge of vandalism that the accused has a possessory interest in the property destroyed.

State v. Franklin Doug Sweeney, Jr., No. M2006-02581-CCA-R3-CD, 2008 WL 2743693,

at *8 (Tenn. Crim. App., at Nashville, June 16, 2008), perm. to appeal denied (Tenn. Dec.

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22, 2008) (in which the defendant was accused of arson and vandalism after he set fire to his

estranged wife’s house). The panel stated:

[f]irst of all, we conclude contrary to Appellant’s suggestion, that the

legislature did not intend to absolve persons from criminal liability for

vandalism merely because they have a possessory interest in the property

vandalized. The statute prohibits the “damage” or “destruction” of property

without the “owner’s” consent. If we are to accept Appellant’s assertion that

he could not be guilty of vandalism because he had a possessory interest in the

house at the time of the fire because he was still married to Mrs. Davis,

Appellant would still not have the “owner’s” consent to destroy the house and

its contents as the house would be owned by both Mrs. Davis and Appellant.

There is no testimony in the record to indicate that Mrs. Davis consented to the

vandalism of the house. Moreover, the provision of Tennessee Code Annotated

section 39-11-106(a)(36)(D) providing for a deduction in value calculation, but

not absolution from criminal liability belie Appellant’s contention.

Id. 2008 WL 2743693, at *8; see T.C.A. § 39-11-106(a)(36)(D) (providing that “[i]f the

defendant gave consideration for or had a legal interest in the property or service that is the

object of the offense, the amount of consideration or value of the interest shall be deducted

from the value of the property or service ascertained under subdivision (A)(36)(A), (B), or

(C) to determine value”.

A second case, State v. Anthony Noe, No. 01C01-9407-CR-00252, 1997 WL 763030

(Tenn. Crim. App., at Nashville, Dec. 9, 1997), perm. to appeal denied (Tenn. Sept. 14,

1998), involved a dispute between the victim and the defendant over the victim’s fence

which extended into a city-owned alley which abutted the defendant’s property. The

defendant argued that he did not act with the requisite intent to commit vandalism because

the ownership of the destroyed fence was in dispute. The defendant also asserted that he was

acting “in a noncriminal fashion” because the fence interfered with his property rights by

blocking the alley. Id. at *2. The panel found, however, that the evidence showed that the

defendant knowingly cut down his neighbor’s fence without consent, and affirmed the

defendant’s conviction of vandalism. Id. at *2.

The statutory provisions setting forth the elements of vandalism, section 39-14-408,

do not provide a defense to prosecution based on the location of the property destroyed. See

T.C.A. § 39-11-203(a) (stating that “[a] defense to prosecution for an offense in this title is

so labeled by the phrase: ‘It is a defense to prosecution under . . . that . . .’”). Instead, the

State is required to prove only that the defendant caused damage to or destruction of “any

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real or personal property of another . . . knowing that the person does not have the owner’s

effective consent.” Id. § 39-14-408(a) (emphasis added).

Viewing the evidence in a light most favorable to the State, the victim built the fence

after Mr. Williford’s second survey of the property. The victim placed the fence

approximately twelve to eighteen inches inside of the property line to accommodate the

disputed strip of land as reflected on Mr. Johnston’s survey. The victim testified that

Defendant ripped up two-thirds of the fence with a backhoe. The victim stated that the fence

cost approximately $2,222 to replace, or two-thirds of $3,334.82. Defendant acknowledged

on direct examination that he tore down the victim’s fence. Based on our review, we

conclude that a rational trier of fact could conclude beyond a reasonable doubt that

Defendant was guilty of the offense of vandalism of property valued between $1,000 and

$10,000. Defendant is not entitled to relief on this issue.

III. Improper Comment on the Evidence

Defendant argues that the trial court made impermissible comments on the evidence

on two occasions. The first comment occurred during Defendant’s direct examination.

Defense counsel began to question Defendant about Mr. Pemberton’s knowledge of the

boundary line, and the State objected on hearsay grounds. After sustaining the objection, the

trial court observed that “everybody is bound and determined to make this a boundary line

lawsuit.” The trial court stated, “We’re going to talk about that at the end of this trial. This

is not a boundary line lawsuit.” Defense counsel responded, “It has to go to [Defendant’s]

good faith, Your Honor, and his intent.”

Later, during its instruction to the jury on the statutory elements of the offense of

vandalism, the trial court stated, “And to make it perfectly plain, the property we’re talking

about here is the fencing. We’re not talking about the land, we’re talking about the fencing.”

Before the trial court finished instructing the jury, Defendant objected to the trial court’s

instructions to the extent that they did not reflect Defendant’s position as stated in his motion

for judgment of acquittal after the State presented its case-in-chief. See Tenn. R. Crim. P.

29(b). Defendant submits that the trial court’s comments during his direct examination and

during the jury’s instruction essentially told the jury not to consider Defendant’s theory of

defense at trial, and these comments, therefore, were “tantamount to a comment on the

evidence to the effect that [Defendant] was guilty.”

In Tennessee, judges are constitutionally prohibited from commenting upon the

credibility of witnesses or the evidence in a case. See Tenn. Const. art. VI, § 9 (providing

that “judges shall not charge juries with respect to matters of fact, but may state the testimony

and declare the law”); State v. Suttles, 767 S.W.2d 403, 407 (Tenn. 1989) (“In all cases the

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trial judge must be very careful not to give the jury any impression as to his feelings or to

make any statement which might reflect upon the weight or credibility of evidence or which

might sway the jury.”). Our supreme court has held, however, that “not every comment on

the evidence made by a judge is grounds for a new trial.” Mercer v. Vanderbilt Univ., Inc.,

134 S.W.3d 121, 134 (Tenn. 2004). The trial court’s comments must be considered in the

overall context of the case to determine whether they were prejudicial. Id. (citing State v.

Caughron, 855 S.W.2d 526, 536-37 (Tenn. 1993).

The admission of evidence is a matter within the trial court’s discretion, and it is

undisputed that a trial court may limit testimony that is irrelevant. State v. Dooley, 29

S.W.3d 542, 548 (Tenn. Crim. App. 2000); State v. Carroll, 36 S.W.3d 854, 867 (Tenn.

Crim. App. 1999). In this instance, the trial court allowed Defendant considerable leeway

in introducing evidence to explain the basis of the dispute between the victim and Defendant

which led up to the destruction of the victim’s fence. The trial court cautioned Defendant,

however, on several occasions that the ownership of the land was not relevant to establishing

the statutory elements of the offense of vandalism. See Tenn. R. Evid. 401 (“‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.”). The trial court observed at a hearing outside the presence of the

jury and before the trial court’s instructions to the jury that:

[The ownership of the property matters] in your argument to the jury. As far

as this Court’s concerned, it has nothing to do with anything. The issue is

whether or not [Defendant] threatened bodily injury on this woman and

whether or not [Defendant] destroyed property of this woman, and it does not

depend on whether he thought he owned [the] property or not. That may be an

argument with the jury’s contemplation of some basis of fairness, but it’s not

a legal argument.

As for the first comment cited by Defendant on appeal, the trial court was explaining

that it was excluding Defendant’s testimony about Mr. Pemberton’s knowledge of the

boundary line not only as hearsay but also as irrelevant to a material issue at trial. The trial

court’s comment, therefore, was not directed to the weight or credibility of the evidence but

on its relevancy and was not improper in the context in which it was made.

As for the comments during the jury’s instruction, the trial court instructed the jury,

in part, that the State must prove beyond a reasonable doubt “that the defendant caused

damage to any real or personal property” and “that the property was owned by another.” We

do not view the trial court’s subsequent comment that “the property we’re talking about here

is the fencing . . . not . . . the land,” as an impermissible comment on the credibility or guilt

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of Defendant. Rather, the trial court has an obligation to properly instruct the jury, and, in

so doing, may provide a supplemental instruction to clarify the original charge. State v.

Robinson, 239 S.W.3d 211, 228 (Tenn. Crim. App. 1989). In light of the extensive testimony

at trial concerning the dispute over the boundary line, we conclude that a clarification for the

jury as to the object of the vandalism charge was not improper. Defendant is not entitled to

relief on this issue.

IV. Denial of Full Probation

At the sentencing hearing, the victim testified that she lost not only the value of the

fencing through Defendant’s conduct, but also her business. The victim stated that at the

time of the incident, she was boarding goats for a customer. The customer cancelled the

contract because she was afraid she would lose her goats if Defendant tore down the fencing

again. The victim said that she was afraid to go to the back of her property because there was

nowhere to hide if Defendant threatened her again. The victim stated that Defendant

continued to come onto her property to cut hay and continued to maintain that he owned an

acre of what the victim considered to be her property. The victim also said that Defendant

covered up the drainage ditch that ran between the two properties so that her property was

flooded. On cross-examination, the victim acknowledged that her civil petition to quiet title

was still pending in Chancery Court.

Defendant’s presentence report was introduced as an exhibit at the sentencing hearing

without objection. According to the presentence report, Defendant was sixty-seven years old

at the time of the sentencing hearing. Defendant reported dropping out of high school after

his freshman year. Defendant reported working for the Coffee County Farmer’s Coop for

between twenty-five and thirty years. Defendant stated that he and his wife, Christeen

Birdwell, have three adult daughters. Defendant reported that his mental and physical health

were good, and he did not have any history of drug or alcohol abuse. Defendant was

convicted of vandalism in 2003 and was sentenced to eleven months, twenty-nine days.

Defendant’s sentence was suspended and he was placed on probation. Defendant stated in

the presentence report, “I have never pulled a gun on Marylu [sic] Gilbert. I do not own a

gun like she described. I have never called[,] threatened or harrassed [sic] her. I have never

called there 13-15 times like she stated.”

At the conclusion of the sentencing hearing, the trial court sentenced Defendant, as

a Range I standard offender, to concurrent sentences of three years, six months for his

aggravated assault conviction, and two years, six months for his vandalism conviction, for

an effective sentence of three years, six months. The trial court denied Defendant’s request

for full probation and ordered Defendant to serve ninety days in confinement, after which his

effective sentence was suspended and Defendant placed on probation. On appeal, Defendant

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does not challenge the length of his sentence. Defendant argues, however, that the trial court

erred in denying his request for full probation.

On appeal, the party challenging the sentence imposed by the trial court has the burden

of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n

Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant

challenges the length, range, or manner of service of a sentence, 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 form which the appeal is taken are correct. T.C.A. § 40-35-401(d). This

presumption of correction, however, “‘is conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant facts and

circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.

Ashby, 823 S.W.2d 166, 169 Tenn. 1991)). “If, however, the trial court applies inappropriate

mitigating and/or enhancement factors or otherwise fails to follow the Sentencing Act, the

presumption of correctness fails,” and our review is de novo. Carter, 254 S.W.3d at 345

(quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); State v. Pierce, 138

S.W.3d 820, 827 (Tenn. 2004)).

In conducting a de novo review of a sentence, this Court must consider (a) the

evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the

parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated

sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70

S.W.3d 698, 704 (Tenn. 2002).

A defendant who does not possess a criminal history showing a clear disregard for

society’s laws and morals, who has not failed past rehabilitation efforts, and who “is an

especially mitigated or standard offender convicted of a Class C, D or E felony, should be

considered as a favorable candidate for alternative sentencing options in the absence of

evidence to the contrary.” T.C.A. § 40-35-102(6)(A). “A court shall consider, but is not

bound by, this advisory sentencing guideline.” Id. § 40-35-102(6)(D). No longer is any

defendant entitled to a presumption that he or she is a favorable candidate for probation.

Carter, 254 S.W.2d at 347. The following considerations provide guidance regarding what

constitutes “evidence to the contrary”:

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(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 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); see also Carter, 254 S.W.3d at 347. Additionally, the principles of

sentencing reflect that the sentence should be no greater than that deserved for the offense

committed and should be the least severe measure necessary to achieve the purposes for

which the sentence is imposed. T.C.A. § 40-35-103(2), (4). The court should also consider

the defendant’s potential for rehabilitation or treatment in determining the appropriate

sentence.

Defendant is eligible for probation because his actual sentence was less than ten years

and the offenses for which he was sentenced are not specifically excluded by statute. See

T.C.A. § 40-35-303(a). Because Defendant was convicted of Class C and Class D felonies,

he is considered a favorable candidate for alternative sentencing. See id. § 40-35-102(6).

We note, however, that “the determination of whether the [defendant] is entitled to an

alternative sentence and whether the [defendant] is entitled to full probation are different

inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant

has the burden of establishing his or her suitability for full probation, even if the defendant

should be considered a favorable candidate for alternative sentencing. T.C.A. § 40-35-

303(b); Boggs, 932 S.W.2d at 477. In determining whether to grant probation, the court must

consider the nature and circumstances of the offense; the defendant’s criminal record; his or

her background and social history; his or her present condition, both physical and mental; the

deterrent effect on the defendant; and the defendant’s potential for rehabilitation or treatment.

State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002).

In denying Defendant’s request for full probation, the trial court found that some

period of confinement was necessary to avoid depreciating the seriousness of Defendant’s

offenses. The trial court particularly considered Defendant’s response to what was

essentially a minor boundary dispute that could have easily been resolved through the court

system. The trial court observed that:

the real issue here is just bulldozing somebody’s property down without regard

to how it might affect even that property as they say that wasn’t in dispute,

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even though some of it may have been in dispute, but the real serious question

here was losing temper enough to threaten somebody’s life and show a gun

and that sort of thing.

The trial court found credible the victim’s testimony that she was “scared to death”

of Defendant, and that her situation was made worse by her isolation and lack of support

from friends or family. The trial court also considered Defendant’s prior conviction for

misdemeanor vandalism, and the fact that an eleven month, twenty-nine day sentence for that

offense did not deter him from committing another, more serious, vandalism offense.

Defendant argues that his offenses were not so “especially violent, horrifying

shocking reprehensible, offensive, or otherwise of an excessive or exaggerated degree” as

to deny his request for full probation. See State v. Grissom, 956 S.W.2d 514, 520 (Tenn.

Crim. App. 1997). The trial court found otherwise based on Defendant’s exaggerated

responses to the erection of the fence between the two properties, noting that “[e]ven if she

was on his property that gave [Defendant] no right to threaten her life or to go in with just

sheer force and tear stuff up.” Nonetheless, the seriousness of the offenses was not the trial

court’s only concern.

Although Defendant admitted destroying the victim’s fence at trial, he expressed no

remorse for his conduct. Moreover, the victim testified at the sentencing hearing that

Defendant continued to ignore the boundary line between the two properties after trial. As

for the aggravated assault offense, Defendant consistently maintained that he did not threaten

Ms. Gilbert or wave a gun at her while he was tearing down the fence. “This court has

previously recognized a ‘nexus between a remorseful attitude and the potential for

rehabilitation.’” State v. Kevin Donald Friedman, No. E2008-00353-CCA-R3-CD, 2009 WL

2424289, at *5 (Tenn. Crim. App., at Knoxville, Aug. 7, 2009), perm. to appeal denied

(Tenn. Feb. 1, 2010) (quoting State v. Tadaryl Darnell Shipp, No. 03C01-9907-CR-00312,

2000 WL 290964, at *4 (Tenn. Crim. App. at Knoxville, Mar. 21, 2000), no perm. to appeal

filed). In addition, the trial court also considered the fact that Defendant’s prior vandalism

conviction had not deterred him from engaging in similar, but more serious, conduct. See

State v. Lisa Gay Wilson, No. E2007-02665-CCA-R3-CD, 2008 WL 5130609, at *5 (Tenn.

Crim. App., at Knoxville, Dec. 5, 2008), no perm. to appeal filed (concluding that the trial

court properly considered the defendant’s commission of an earlier similar offense as

reflecting poorly on the defendant’s amenability to rehabilitation).

Based on our review of the record, we conclude that Defendant has not met his burden

of demonstrating that the trial court abused its discretion in denying his request for full

probation. Defendant is not entitled to relief on this issue.

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CONCLUSION

After a thorough review, we affirm the judgments of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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