The opinion
07/19/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 17, 2019
STATE OF TENNESSEE v. MICHAEL RAY HOWSER
Appeal from the Criminal Court for Sumner County
No. 2017-CR-502 Dee David Gay, Judge
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No. M2018-00603-CCA-R3-CD
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Defendant, Michael Ray Howser, pled guilty to aggravated assault, reckless
endangerment with a deadly weapon, and possession of a weapon by a convicted felon
with an agreed effective sentence of ten years as a Range II multiple offender with the
trial court to determine the manner of service. A sentencing hearing was held, and the
trial court ordered Defendant’s ten-year sentence to be served in confinement. On
appeal, Defendant argues that the trial court erred by denying alternative sentencing.
After a careful review of the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.
John D. Pellegrin, Gallatin, Tennessee, for the appellant, Michael Ray Howser.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Katherine
Brown Walker, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Background
The affidavit of complaint in this case contains the following description of
events:
On 5-14-2017 at approximately 2259hrs I, Deputy M. Rice, was
dispatched to the Sheriff’s Office to take a report for a domestic assault
that occurred earlier in the evening. Upon arrival I spoke to Taffie
Howser. Taffie stated that her husband, [Defendant] (a convicted felon),
came home angry at her and accused her of lying to him and started
consuming alcohol. Taffie was in the yard with [Defendant’s] juvenile
son when [Defendant] came outside with a .380 caliber handgun walked
over to her asked her to “uncock the gun.” [Defendant] then fired the
pistol into the air next to her head and took her keys to prevent her from
leaving the house. [Defendant] proceeded to lay the pistol on a tractor
and sat down by the tractor. [Defendant] consumed more alcohol picked
up the pistol unloaded it and took the pistol inside the house.
[Defendant] came back outside told his juvenile son to go in the house.
[Defendant] and Taffie remained outside where the argument continued.
[Defendant] stated he would never hurt her but she had to stop lying to
him. Taffie denied lying, [Defendant] insisted she was lying.
[Defendant] told Taffie to go in the house, she complied. [Defendant]
left the house for a short time and returned while the juvenile was eating
supper. [Defendant] told Taffie to sit and eat with the juvenile. Taffie
stated she wasn’t hungry; [Defendant] said “I said sit down and eat.”
Taffie sat next to the juvenile. [Defendant] said again “I said eat,”
grabbed a rib bone off a plate, grabbed Taffie by the hair on the back of
her head and tried to force feed her the rib bone and said, “Eat or I’ll
shove this bone down your throat.” Taffie separated from [Defendant]
and fled the living room. Taffie returned to the table and sat down again.
[Defendant] walked out of the front door, Taffie grabbed her phone and
left the house by the back door.
Sentencing Hearing
State’s Proof
Initially, we note that Taffie Howser’s testimony at the sentencing hearing differed
in several ways from her statement that she made to police at the time of the offenses.
Her written statement to police with appropriate edits indicated in brackets, and with lines
through words that Mrs. Howser marked out on the statement, is as follows:
[Defendant] has continued for several months of being controlling,
[mental] abuse, threats and his rage/anger has escalated until this last
week. [Defendant] wants to know where I am every minute requesting
pictures of my time clock while working. Last week while visiting his
dad in the hospital he kept sending text messages and his rage/anger
increased. He told me to leave and get away from his family. He sent
texts stating “I can’t stand you, I hate you, F[- -]cking lying b[- -]ch.” I
was scared to go home and called my dad for help. [Defendant]
convinced me to return home after meeting with my dad. Once I arrived
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home, [Defendant] stated to never tell my parents anything that ever
happens between us again. He made me call my dad and have it on
speaker phone telling him (my dad) that I was a liar and he was in charge
of the household. All this week [Defendant] has continued to change his
behavior back and forth and telling me I am a fake Christian, and he
hates a liar. Today [Defendant] came to my work and continued to argue
with me stating I was a liar and our marriage was not worth saving
because I continued with lies. Tonight once we arrived home
[Defendant] came home with alcohol and his anger increased. [J.H.] and
I was playing ball after [Defendant] and [J.H.] played and he brought the
[.]380 outside he came over to me and said uncock this gun. I said what?
and was looking at it and he shot it right up in the air by my and said
never mind. Then he sat down and laid it on the tractor step beside where
he was sitting. He also took my keys so I couldn’t go anywhere. He
continued with remarks about me and he would increase in anger [sic]
then be calm. He went and picked up the gun after drinking another beer
and [J.H.] and I continued to play ball. By the back porch before
walking into the house he unloaded the clip of the gun. Then he came
back out and told [J.H.] to come inside. [J.H.] went in then [Defendant]
started to talk to me calmly again stating he wasn’t going to hurt me. He
moved closer and I backed away. He said again he wasn’t going to hurt
me because I was still his delicate flower. He continued to ask me to tell
him the truth because “I was still lying” and he knew I was lying. He I
told him again and he said I was still lying and we will live a marriage of
where he will do what he wants and I will continue to live in a lie. He
told me to get in the house and he gave me a chance to come clean and I
still continued to lie. He left in the Yukon. I got [J.H.] supper and he
was sitting at the table eating. [Defendant] came in the front door and
said sit down and eat with him. I told him I didn’t want to eat that I
wasn’t hungry and he yelled saying “I said sit down and eat.” I sat down
in the chair beside [J.H.]. He went over to the plate of ribs and said I
said EAT! He came over and grabbed the back of my hair and tried to
shove the bone/rib in my mouth. He said I said eat or I will shove this
bone down your throat. [J.H.] began to cry and telling him to stop. I
was pushing it away the rib [sic] and trying to get away from him and
the chair fell. I moved around the living room automan coffee table to
keep him away then came back to the kitchen and picked up the chair
and sat back down [sic] he said from now on you are going to be my
slave. Then [J.H.] said to him stop again and [Defendant] went out the
front door. I kissed told [J.H.] I loved him grabbed my phone and ran out
the back. This is not the first time [Defendant] has been physical with
me. Another time [J.H.] and I came home and while helping [J.H.] get
out of the vehicle [Defendant] punched me in the face. I was late
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coming home because I was stopped by the train in Mitchellville which
outraged [Defendant]. [Defendant] continues to blame me for his
actions. I made him act this way.
Taffie Howser testified that she and Defendant have been married for two years,
and they are raising Defendant’s now ten-year-old son, J.H., together. As the result of an
incident on May 14, 2017, there was an order of protection put into place by the arresting
officer, and she asked the court to remove it shortly thereafter. She and Defendant
currently live together and have lived together since the no contact order was amended to
no violent contact.
Mrs. Howser testified that on May 14, 2017, she was outside playing baseball with
Defendant and J.H. At some point, Defendant sat down by the tractor, and he later
walked inside the house. Mrs. Howser testified that Defendant walked back outside
carrying her handgun. She said, “He handed it to me and asked if the gun was uncocked -
- or unlocked and I looked at it. I said, I don’t know. Then I handed it back to him.”
Mrs. Howser testified that Defendant turned the gun to the right and fired it “towards our
field towards the ground.” Mrs. Howser testified that she “was over, like, to the other
side of him, and, like, when he turned I was already over to the left.” J.H. was standing
further away toward the house. She said that Defendant did not say anything when he
fired the weapon.
Mrs. Howser testified that Defendant sat back down beside the tractor, and she and
J.H. continued playing baseball. She said that Defendant then got up and walked toward
the back of the porch and “stood up at the back door and fired the weapon up in the air.”
Again, Defendant did not say anything. Mrs. Howser testified that neither she nor J.H.
had any reaction to Defendant discharging the weapon because they were accustomed to
being around guns. She also said that she did not think about leaving at that time and that
“if I thought anything, you know, safety measures or [J.H.] and I was in danger, you
know, I would have done whatever I needed to do.” Mrs. Howser agreed that Defendant
took her keys when he went inside the house the first time. However, she did not feel
that she could not leave the property. Mrs. Howser agreed that in her written statement to
police she wrote, “He also took my keys so I couldn’t go anywhere.” Mrs. Howser
explained her statement as follows: “On the - - on the - - at the time when we were - -
when the gun incident - - you know, if I needed to leave or - - and all that stuff, I could
have left. But when I stated that in the report, that was when he got my keys is how I felt
at that time.” Mrs. Howser also said that she and Defendant took each other’s keys all
the time. Mrs. Howser testified that Defendant brought her keys back outside when he
walked out with the gun, and he placed them beside the tractor. She thought that
Defendant had been drinking beer. Mrs. Howser could not recall if Defendant said
anything while he was sitting on the tractor beside her keys. She testified that he was
“just sitting there.” She eventually agreed that Defendant said something about her. Mrs.
Howser said that she also wrote in the statement to police that Defendant, “Shot it right
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up in the air by my [sic].” She then crossed out the words “right” and “by my [sic].” She
did not know why she crossed out the words.
Mrs. Howser testified that J.H. eventually went inside the house for supper. She
and Defendant remained outside arguing while she picked things up. Mrs. Howser did
not remember what Defendant said to her. After reading her statement to police, Mrs.
Howser testified that she and Defendant had been in an argument earlier that morning and
that the argument had paused while she and Defendant were outside with [J.H.]. She
noted that Defendant had accused her the previous day of lying about her past. Mrs.
Howser agreed that Defendant called her “delicate flower” after he fired the gun, which
was her nickname. She admitted that she backed away from Defendant because he told
her that he was not going to hurt her. At that point, Mrs. Howser stated that she knew
that the gun was inside the house.
Mrs. Howser could not recall if Defendant told her to go inside for supper but she
agreed that it was in her statement to police. She also agreed that Defendant said that “he
would do whatever he wanted to do,” but he was not referring to their relationship. Mrs.
Howser initially could not recall if Defendant said anything else to her when he told her
to get inside the house. However, she eventually admitted that Defendant said that he
would give her a chance to “come clean” and that she “still continued to lie.” Mrs.
Howser testified that when she told Defendant that she was not hungry, he picked up a
“rib bone and he puts it to my lips and he says, [‘]You’re going to eat or I’m going to
shove it down your throat.[’]” Defendant had the other hand on the back of her hair.
Mrs. Howser testified that Defendant was upset at that point, and he was yelling. She
moved to get away from him, knocking the chair over, and Defendant followed her. Mrs.
Howser eventually sat down in a chair at the dining room table, and Defendant walked
out the front door. She then took her cell phone and went out the back door to a
neighbor’s house to “get away from the situation.” Mrs. Howser called her father,
George Wallace, who came and picked her up. They drove to the sheriff’s office and
filed a report. She said, “I didn’t know all this would happen. I just wanted to make a
report for a divorce in case I wanted one.” Mrs. Howser noted that she and Defendant
had several previous arguments but that was the first time that he threatened her. She had
never been injured during any of their previous fights. She sometimes stayed at her
parents’ home after she and Defendant argued. Mrs. Howser agreed that Defendant’s
rage and anger had escalated up until the incident in May 2017.
Mrs. Howser testified that Defendant knew everything about her daily routine
because “[w]e tell each other what we’re doing.” She did not recall how often he
contacted her each day. She said, “We would call and text back and forth all the time.”
Mrs. Howser worked as a home health nurse, and Defendant often had her make
photographs of her time sheets with her cell phone and send them to him. She agreed that
Defendant wanted to know her whereabouts “[a]ll the time.” Mrs. Howser could not
recall if Defendant contacted her while she was visiting his father in the hospital. She
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then read from her statement to police concerning the incident and stated that what she
said in the statement was true. We note that at that point in the sentencing hearing, Mrs.
Howser asked to go to the restroom. A brief recess was held, and when court resumed
the following exchange took place:
[Prosecutor]: Mrs. Howser, while we were on break did
[Defendant] talk to you?
[Mrs. Howser]: We gave each other a hug, yes.
[Prosecutor]: Did he say anything to you about your testimony?
[Mrs. Howser]: We - - no. We were - - hugging each other, told each
other we loved each other.
Mrs. Howser testified that she was afraid to go back home after Defendant
contacted her when she visited his father because “I didn’t know what would - - I mean,
if we were still arguing or what would happen or whatever.” She then called her father
for help. Mrs. Howser testified that she went back home, and Defendant told her that
they should keep their “business” between themselves and not tell her parents. Mrs.
Howser said that Defendant may have also had her call her father on speakerphone but
she could not recall what he told her to say to her father. Mrs. Howser then read from her
statement to police and said that Defendant told her to tell her father that she was a liar
and a “fake Christian.” Defendant also told her to say “[t]hat we’ll be keeping
everything, you know, in our marriage between us.” Mrs. Howser testified that
Defendant hit her in the jaw during one of their previous arguments.
On cross-examination, Mrs. Howser testified that she reported the incident in the
present case for the purpose of filing for divorce. She would not have reported the
incident if she had thought Defendant would be arrested or go to prison. Mrs. Howser
testified that she had tried to get the charges against Defendant dismissed. She admitted
that it would be a financial hardship, and they would lose everything if Defendant was
incarcerated.
Mrs. Howser testified that Defendant was involved in drug court when they began
dating. She said that he took drug court seriously, and he was not drinking or using drugs
during that time. Mrs. Howser agreed that Defendant was jealous and insecure.
However, she said that he had gotten much better since the latest incident. Mrs. Howser
testified that Defendant worked as a butcher for Cash Saver and that he had worked as a
butcher for more than twenty years. She said that Defendant was drinking at the time of
the incident in the present case but that it was an isolated event. She also did not think
that he had been drinking any since the event. Mrs. Howser testified that Defendant is
back in a recovery program, and she attends meetings with him. He also has a sponsor
named Eric, and he has received counseling through their church. Mrs. Howser testified
that she has not seen any evidence of drug or alcohol abuse since this incident.
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Mrs. Howser testified that she and Defendant previously attended church in
Lebanon where her father is the pastor. She said that they now attend church in Bowling
Green, Kentucky where Defendant’s brother-in-law is the pastor. Mrs. Howser testified
that she and Defendant attend every church service with J.H. unless Defendant has to
work, and she takes J.H. to church when Defendant is working. Mrs. Howser testified
that Defendant has shown remorse since this incident, and he apologized to her on several
occasions. She also said that Defendant was a good father who spends a lot of time with
J.H. Mrs. Howser testified that the four guns in the house belonged to her, and they are
no longer there.
The trial court asked Mrs. Howser about what happened when Defendant hit her in
the jaw. She testified:
I was late that night from working. I had picked up [J.H.] from day care
and I was on my way back from work and I pulled in the driveway. I
was stopped by a train. And pulled in the driveway and I was getting my
stuff out of the back and he came to the right and hit me in the jaw.
Mrs. Howser testified that Defendant hit her with his fist. Defendant was under the
influence of alcohol at the time. Mrs. Howser told the trial court that Defendant had
changed since this incident.
George Wallace, Mrs. Howser’s father, testified that he is a pastor of a church and
a bonding agent. He said that Mrs. Howser called him on May 14, 2017, and asked him
to pick her up. Mr. Wallace testified that Mrs. Howser was “crying and very terrified” on
the phone. She said that she had left Defendant and was at a neighbor’s house. Mr.
Wallace said that Mrs. Howser “come right straight out and got in the car and said - - she
was very disturbed and really crying and said, [‘]Let’s get out of here quick. Quick.
Let’s get out of here.[’]” Mrs. Howser was also afraid that Defendant would follow
them. Mr. Wallace testified that Defendant did follow them until they arrived at the
Sumner County Sheriff’s Office. He said that Mrs. Howser filed a report with the
deputies and then rode to his house to stay with Mr. Wallace. Mr. Wallace testified that
he noticed red marks on the victim’s shoulders. Mrs. Howser told him that Defendant
pulled her hair and grabbed and held her.
Mr. Wallace recalled a previous occasion that Mrs. Howser called when she and
Defendant were having trouble. He and his wife drove to the residence and spoke with
Defendant and Mrs. Howser. He said that Defendant was very jealous and did not want
the victim “seeing anybody or talking to anybody or going to - - you know, couldn’t even
trust her in any way to even talk with anybody on the phone.” Defendant also indicated
that “he was her husband and she was his wife and she was supposed to do what he
wanted her to do.” Mr. Wallace testified that Defendant did not want Mr. Wallace and
his wife involved in his business so they left. The next week, Mrs. Howser called Mr.
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Wallace to come and get her, and she stayed at his house for a couple of days. Mr.
Wallace testified: “But each time she would come to the house he would call her and
convince her that she was his wife and she needed to be back home and she - - that was
her place.”
Mr. Wallace testified that he seldom talked with Mrs. Howser by phone because
Defendant did not want her talking to Mr. Wallace. He noted that Defendant would
monitor Mrs. Howser’s phone calls and text messages. He had also heard Defendant in
the background during a phone call telling Mrs. Howser what to say. Mr. Wallace also
suspected that Defendant answered Mrs. Howser’s text messages.
Upon examination by the trial court, Mr. Wallace testified that there had been two
incidents since May 14, 2017, in which Mrs. Howser called him and said that she was
coming to his house. He testified:
On those incidents she called said, Dad, I’m coming home and she
brought her personal stuff and came to the house, stayed with us awhile
and then [Defendant], of course, called her and talked to her and got her
to come back.
And then another time just recently she left and she said, Dad, it’s over
this time, that I am through. And I even helped her change all of her
passwords on her phone and she changed her checking account,
everything, and I thought it was really that this was the time that it was -
- she was finished.
Mr. Wallace testified that the last incident occurred approximately eight weeks before the
sentencing hearing. He said that Mrs. Howser had told him that “she’s fearful for her
life.” He testified that six to eight weeks earlier, Mrs. Howser gave him her “last will and
testament and told [him] to put it up.” Mrs. Howser also told Mr. Wallace that she
thought about suicide.
Deputy Frank Winslow of the Sumner County Sheriff’s Department testified that a
week or two after Defendant’s case went to the grand jury, he called Mrs. Howser’s cell
phone to ask a couple of questions. Defendant answered her phone and wanted to know
why Deputy Winslow was calling Mrs. Howser. After talking to Deputy Winslow
several minutes, Defendant gave the phone to Mrs. Howser.
Defendant’s Proof
Billy Clay Moore, Defendant’s manager at Cash Saver, testified that he has known
Defendant for twelve years. He said that Defendant is a good employee who comes to
work on time and that Defendant had experience “running the meat department[.]” Mr.
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Moore further testified that Defendant “goes above and beyond what I ask him to do,
because obviously he has experience doing what I’m doing as far as running the market.”
He had not seen any evidence of drug or alcohol abuse by Defendant.
Windy Hinton testified that Defendant is her half-brother, and her husband is the
pastor of a church in Bowling Green, Kentucky that Defendant attends. She said that
Defendant “stayed in trouble” when he was younger and had to “raise himself[.]” Mrs.
Hinton noticed a difference in Defendant after he went through drug court, and she noted
that Defendant regained custody of his son after his son was placed in foster care. She
said that Defendant was stable and “staying off drugs[.]” Mrs. Hinton testified that she
now sees Defendant two to three times a week at church. She said that Defendant is at
church every time the doors are open unless he has to work. Mrs. Hinton testified that
Defendant was baptized, and Mrs. Howser also attends church with Defendant and his
son, and they are active in the church. Mrs. Hinton noted that in the last five or six
months Defendant was “doing better than I’ve ever seen him do.” She agreed that if
Defendant were to be placed on probation, he could do everything required of him.
Kevin Hinton, Defendant’s brother-in-law, testified that Defendant, Mrs. Howser,
and Defendant’s son attend church where he is the pastor. He said that Defendant attends
church regularly and participates. Mr. Hinton has noticed in the last several months that
Defendant appears happy and fulfilled. When asked if Defendant and Mrs. Howser seem
to get along, Mr. Hinton testified: “Yes, sir, I believe they do get along most of the time.
I think any couple is going to have a cross word, but I’ve never saw them at church or
never saw any kind of problem or, you know, anything like that.” Mr. Hinton testified
that other church members think a lot of Defendant and his family, and he felt that
Defendant was an honest person. He felt that if Defendant were to be placed on
probation he could do everything required of him. Mr. Hinton noted that he observed
Defendant going through drug court and that Defendant did the things required of him.
On cross-examination, when asked if he knew that Defendant pled guilty to
aggravated assault, reckless endangerment with a deadly weapon, and felon in possession
of a weapon, Mr. Hinton testified:
I knew nothing of any of this until just a few months ago - - or no, it
hasn’t been - - yeah, I guess it has. Maybe three months ago was when I
was really made aware of it because my wife wasn’t aware of it. And I
think [Defendant] had shared that he was going to have to be going back
to court, and she asked him why and, of course, he began to share about
the night he made this mistake. And he said, I messed up, and I’m going
to have to go back to court[.]
Mr. Hinton was not aware of the specific charges against Defendant until the sentencing
hearing.
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Tracye Bryant is the director of the Recovery Court Program in Sumner County.
She said that Defendant was referred to drug court in 2012 and did “exceptionally well.”
Ms. Bryant further testified:
He came into the program and we sent him to treatment on October 16,
2012, at Serenity in Memphis, Tennessee. He completed that program
and returned here to go reside in a halfway house in Madison called
Recovery Community, and he exceeded there with a sponsor and AA,
and he did everything there that he was asked to do as - - but you can be
there and work and go through the motions but not really get attached to
recovery, but [Defendant] went above and beyond and got attached in
recovery and was working a really good recovery program.
He did so well that the owner of that program helped him get into Urban
Housing Solutions, which are apartments for people who have addiction
problems so that when you move into those apartments you are still drug
tested. So you’re still held accountable for your recovery. And so he got
into those apartments, and he then started the process of getting custody
of his son back and did get custody back and moved him there with him.
And while he was there - - he’d had the same job the whole time he was
there working as a butcher there in Madison.
And then once he got his son back, he decided to move back to Sumner
County, and I’m not certain - - I think maybe it was for the school
systems, but then he met a lady that he married in 2016, and then he
reported on a monthly basis after that. Once he graduated the program,
he reported monthly.
Ms. Bryant testified that toward the end of Defendant’s monthly supervision, a few
months before his graduation from the program, Defendant had a positive alcohol test.
Defendant came in, and they “discussed that and how [she] felt like he was more focused
on work and not his recovery.” Ms. Bryant testified that Defendant was working too
much and needed to get “back to his meetings and being attached to recovery.” She also
thought that Defendant “got too comfortable and thought that he had the disease beat and
that maybe he - - he was married and he had a home and was providing a good life, it
seemed, for his family and just started not taking care of his recovery.”
Ms. Bryant testified that she spoke with Defendant a couple of months ago, and he
told her that he had “started going back to his meetings and doing the things he was
supposed to treat his disease, and we talked about that, and I strongly encouraged him to
keep that up and to never slack off of that again because he was going to have to always
treat his disease.”
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On cross-examination, Ms. Bryant testified that Defendant graduated from drug
court in 2013. She noted that Defendant reported to her by phone and email when he
moved out of Sumner County. Ms. Bryant testified that she contacted Defendant after he
moved back to Sumner County to get him to start reporting back to her because he missed
some appointments. She did not drug test Defendant during the time that he stopped
reporting.
Defendant submitted a letter from a clinical administrative assistant at Mending
Hearts, Inc., a treatment center, which indicated that Defendant should receive
counseling, meetings, and service work rather than time in prison.
Defendant testified that he has full custody of J.H., and he does not receive any
child support from the child’s mother. He said that his life was very unstable before drug
court, and he “did a lot of drugs” and “a lot of bad things.” Defendant testified that he
had “done just about everything, you know, alcohol, opiates, marijuana, cocaine,
everything, and I regret that.” He said that after drug court he is now a “changed man”
and that God had showed him how to live a productive life and be a good father and
husband. Defendant testified that he and Mrs. Howser have “had some trying times” and
that they both came from “some toxic relationships” and that they “had no clue how to be
married at all.” He further testified that “a lot of things that’s been said here today has
been twisted and turned to where it’s showing that since we’ve been back in church to
where it’s - - looks like we’re in the same behavior, and that’s just not the case at all.”
Defendant admitted that he was drinking on the night of the present offenses and
that he made the wrong choice. However, he pled guilty and accepted full responsibility
for his actions. Defendant agreed that he and Mrs. Howser have had arguments after the
one in the present case, as testified to by Mr. Wallace. Defendant said that on one
occasion Mrs. Howser received a letter from an inmate, and he had a “problem with it
just like I expect anybody would.” He said that Mrs. Howser thought that it would be a
good idea for her to leave. Defendant testified that there were no threats or violence and
that he was “pretty sure she thought that I was going to not want to be together anymore
because of this, but after some - - and I think it was a good decision that she did leave,
you know, so we could have some time apart and think about [it].” Defendant thought
that the argument occurred four or five months before the sentencing hearing rather than
eight weeks earlier as testified to by Mr. Wallace.
Defendant testified that Mrs. Howser left a second time because they were trying
to stop smoking and “were both on the edge really bad[.]” He said:
But she wanted to leave. I think mainly she wanted to go get a cigarette,
to be honest with you, and I was, you know - - I knew that we were - -
that was keeping us from being close to God. I knew God wanted to get
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- - wanted to draw closer to us and have us draw closer to him, and I
knew that was the only thing that was keeping us from getting close was
cigarettes, smoking cigarettes. And so, I mean, I don’t really know the
details about it.
Defendant said that there was no big argument or any threats. He thought that Mrs.
Howser was gone for “maybe a night or two.”
Defendant testified that he had gotten back in touch with his sponsor and was
attending AA and NA meetings. He and Mrs. Howser had done some counseling with
their pastor, and they were also attending church regularly. Defendant testified that he
understood that he would need to work on his disease the rest of his life. He said:
When I moved back, I just stopped recovery, you know, and I focused a
lot - - I took on a job as a meat manager on two different occasions, and I
was pulling 65, 70 hours a week and - - with no help, and it was really
stressful. That’s no excuse, but I just let it fall from me, you know, and
so I really consider myself in a relapse the whole time.
Defendant testified that he had not used drugs or drank beer since the incident in May of
2017. He said that he stopped and purchased a twelve pack of beer after the last time that
Mrs. Howser left. Defendant testified that he went home and took a sip out of one but
stopped when his son walked into the room and asked why he was drinking again.
Defendant said that he poured the remainder of the beer in the sink.
Defendant agreed that Deputy Winslow called Mrs. Howser’s phone shortly after
there was an order of protection put into place. He said that the call was placed after
midnight. Defendant testified:
And he had called, and I can’t remember exactly what was said, but he
asked me if I was at the house and I said, yeah, and then he got off the
phone pretty quick and we ended the conversation.
And then I was just laying there and I was wondering why he was calling
so late, you know. So I called him back and asked him why he was
calling at 12:30 at night. And I figured that the DA would be the one to
call to ask any kind of questions. And then he asked to speak to my wife
and he asked something about the gun.
Defendant said that the order of protection against him was later modified to no violent
contact. He said that Officer Winslow thought that his being at the house violated the
order of protection but he advised Officer Winslow that the order of protection had been
“dropped.”
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On cross-examination, Defendant agreed that he violated the conditions of his
bond by purchasing the twelve pack of beer. Defendant testified that he graduated from
drug court in May of 2013, and it changed his life. He met Mrs. Howser in December
2014, and at some point after that punched her in the jaw because she came home late.
His son was present at the time. Defendant admitted that he was very controlling of Mrs.
Howser, and he said that they both had insecurities. He agreed that he got angrier and
angrier with her, and he admitted that he probably called her some terrible names.
Defendant agreed that he had broken his wife emotionally in the past. He thought that
Mrs. Howser gave a copy of her will to Mr. Wallace because of an incident where she
lost custody of her children, and that was also the reason that she contemplated suicide.
Defendant testified that if placed on probation, he would continue to attend
meetings and be involved in recovery. He admitted that he had been drinking at the time
of the present offenses and that he obtained a weapon from the house. He acknowledged
he was not supposed to be around guns because he was a convicted felon.
Upon questioning by the trial court, Defendant agreed that he was still very
unstable if he did not have recovery and God in his life. Defendant thought that he drank
on at least four or five occasions from the time that he graduated from drug court until he
was arrested in May 2017. He said that he had “no recovery at all going on at the
time[.]” Defendant agreed that he had a total of thirteen misdemeanor convictions,
including several DUI convictions, and seven felony convictions, including burglary and
three counts of aggravated assault. He admitted that he had previously violated his
probation.
Mrs. Howser was recalled as a witness to testify about the two incidents that
occurred with Defendant before the sentencing hearing. She said that on one occasion,
she and Defendant were arguing about a letter, and she decided that it would be best to go
to her parent’s house. Mrs. Howser testified that Defendant was not drinking, and he did
not threaten her. The second incident occurred because she and Defendant were trying to
stop smoking, and they had been arguing. Mrs. Howser testified that she again decided to
go to her parent’s house. She said that Defendant did not threaten her, and he was not
drinking. Mrs. Howser also testified that she had not seen Defendant drink or use drugs
since May 2017.
Mrs. Howser testified that she gave Mr. Wallace a copy of her will the first time
that she went back home. She said that it was in reference to her other children because
they were “going through some court proceedings[.]” On cross-examination, Mrs.
Howser testified that she contemplated suicide before she and Defendant got together in
March 2015 after she lost custody of her children. She thought that Mr. Wallace was off
in his timeline of events by a couple of years. Mrs. Howser agreed that she heard
Defendant’s testimony concerning those events. She testified that Defendant was jealous
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over the letter that she received, and he got upset with her, and she felt that he blamed
her.
Analysis
Defendant contends that the trial court erred in ordering him to serve his sentence
in confinement. The State responds that the trial court did not abuse its discretion in
ordering Defendant to serve his sentence in confinement. We agree with the State.
The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.” State
v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
Supreme Court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).
Under the 2005 amendments to the Sentencing Act, trial courts are to consider the
following factors when determining a defendant’s sentence and the appropriate
combination of sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing
alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee;
(7) Any statement the defendant wishes to make in the defendant’s own
behalf about sentencing; and
(8) The result of the validated risk and needs assessment conducted by
the department and contained in the presentence report.
Tenn. Code Ann. § 40-35-210(b).
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The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. Id. § 40-35-210(e); Bise, 380 S.W.3d at 706. “Mere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.
Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “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.” Tenn. Code Ann. § 40-35-102(6)(A). However, no criminal defendant is
automatically entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558,
559 (Tenn. 1997). Instead, the defendant bears the burden of proving his or her
suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn.
Code Ann. § 40-35-303(b)).
When imposing a sentence of full confinement, the trial court should consider
whether:
(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[.]
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In addition, the sentence imposed should be (1)
“no greater than that deserved for the offense committed,” and (2) “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-
35-103(2), (4).
As a Range II multiple offender convicted of two Class C felonies and one Class E
felony, Defendant in this case was eligible for alternative sentencing, but he was not
considered a favorable candidate for alternative sentencing options. See id. § 40-35-
102(6). In this case, the trial court made the following extensive findings concerning
alternative sentencing:
And then going to the statute that I asked everybody to look at here in
going through these principles, 40-35-103. First of all, sentences
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involving confinement should be based on whether confinement, number
one, is necessary to protect society by restraining a defendant who has a
long history of criminal conduct.
I want you to understand that I’ve got to watch letting emotions taint or
affect my interpretation of the law, and I don’t know if I necessarily
agree about [defense counsel’s] assessment of confinement is necessary
to protect society. I think in this particular case we’ve got to look at
more than what he’s done since he committed this crime, and I’m not
thoroughly convinced that his wife is still not in some kind of danger
from his activities based on the testimony today.
But considering the whole thing, protecting society by restraining a
defendant who has a long history of criminal conduct, we’re not dealing
with a defendant who’s committed a crime in May of 2017 and looking
what to do. We have a long history of criminal conduct, and I’ve
covered much of this, but I’m going to cover it for the record.
In September of 2000, domestic assault was reduced to assault, and he
got probation. Then a couple of months later, false report on an
accident. He lied to the police about who was driving. And then in - -
the next year, May of 2001, conviction for theft under $500, and he
doesn’t even remember what he did, but he got probation again. And
then within a year he picks up a DUI and it’s reduced to driving while
impaired, and it’s - - also gets convicted of driving on a suspended
license.
Now, look at what we have done here for first offenders and somebody
in the defendant’s situation. We put him on probation. We’ve set up
programs for him. We’ve done what needed to be done in those
particular situations. Nobody asked that he go to the penitentiary for 10
years then.
And then he gets picked up for - - or arrested for failure to stop at the
scene of an accident. He doesn’t remember that. He gets picked up for
another assault, another probation, and then also a domestic assault that’s
reduced to assault, another probation. And then we get a period of time
here where he picks up three felonies, aggravated assault, 9/5/2003 and
8/26/2004. He gets probation again.
I sometimes begin to wonder if - - and, you know, the defendant has that
frame of mind that must be dealt with. On the phone he said, I’ll just get
probation again. It’s very frustrating being on this Court to see the
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number of probation violations we get every week, and it’s not a result
of lack of programs or being merciful. It’s a result of people being so
selfish that they just want to do what’s right in their own eyes all the
time and they’re not accountable and there are no serious consequences,
and that’s the society that we live in.
It seems that society no longer expects serious consequences for illegal
behavior. You know, the punishment aspect of criminal law seems to
have been replaced by excuses, blaming things, explaining behavior,
minimizing, and saying, I’m good now. Focus has shifted from the
criminal act and circumstances surrounding the act. And, you know, no
wonder why some people think and are alarmed at the increase in crimes
and the fact that some people are not deterred. So what are we doing?
What are we doing to deter criminal activity?
Well, this defendant, convicted of three felonies for aggravated assault in
2003, 2004, and he picks up three probation violations and another DUI
and a domestic assault, and he serves a whopping one year in jail. Wow.
That’s tough. It really helped him, really, really, helped him, all that
probation, all those programs, really did well.
...
We still have criminal conduct in the fact that we’ve got reckless
endangerment, we’ve got aggravated assault, possession of weapon [sic]
as a convicted felon. Now, there can be absolutely no excuse for
possessing a weapon as a convicted felon. That shows complete
disregard for the law. I don’t understand it, absolutely don’t understand
it, but there are times in people’s lives where you put self above
everything else, and that’s not necessarily a drug court, a mental health
court, or a government problem. It’s a problem about humanity and
making right choices and right and wrong.
Now, number two, confinement is necessary to avoid depreciating the
seriousness of the offense and particularly suited to provide and effect
[sic] deterrent to others likely to commit a similar offense. The deterrent
effect on domestic abuse is staggering, and I don’t know if it could ever
be accurately measured.
I see Mrs. Howser today, and I see signs that you don’t see in other
people. Standing by you, [Defendant], I’m not certain she is revealing
things that she doesn’t think you want her to reveal. I’m not too
comfortable with her credibility on a lot of issues. And I understand the
dynamics of domestic abuse and your attorney mentioned that that
frequently happens.
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But I’m convinced as much as anything else that what she said in her
statement to the police on 5/15/17 is true and accurate and straight from
her heart. And this goes to appreciating the seriousness of the offense,
and it goes to providing an effective deterrence.
She wrote (as read): “[Defendant] had continued for several months
being controlling, mentally abusive, threats, and his rage/anger had
escalated until this last week.” That’s all control with you, [Defendant].
(As read): “He wants to know where I’m going every minute, requesting
pictures of my time clock while working. Last week while visiting his
dad in the hospital he kept sending text messages and his rage and anger
increased. He told me to leave and get away from his family. He sent
texts stating, I can’t stand you. I hate you, you effing, lying “B.” I was
scared to go home and called my dad.”
And [Defendant], nobody needs to be called that. I don’t care whether
you’ve been through drug court or not. Nobody needs to be called those
names, much less your own wife.
She said she was scared to go home and called her dad for help. (As
read): “And [Defendant] convinced me to return home after meeting
with my dad.” And that’s frequently done in this type of environment.
(As read): “Once I arrived home [Defendant] stated to never tell my
parents anything that ever happens between us again. He made me call
my dad and have it on the speakerphone, telling him that I was a liar and
that he was in charge of the household. All this week [Defendant]
continued to change his behavior back and forth and telling me I’m a
fake Christian and he hates a liar.”
And then she goes on to what happened on May 15th - - or - - yeah, May
15th of ‘17, May 2017. (As read): “Today [Defendant] came to my work
and he continued to argue with me, stating I was a liar and our marriage
was not worth saving because I continued with lies.”
You’ve got angerness [sic], sir, and you’ve got bitterness, along with
drug issues, and that’s something that I’m scared about.
It goes on to say (as read): “Tonight once we arrived home, [Defendant]
came home with alcohol and his anger increased,” the nightmare of
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anybody that’s ever been through any emotional abuse. This abuse will
never leave her mind.
(As read): “[J.H.] and I were playing ball. [Defendant] and [J.H.]
played and he brought the gun outside, the .380, and he came over to me
and said unlock - - uncock the gun, and I said, what? He was looking at
it and he shot it up in the air and said never mind.”
But I think she’s wrong there. It’s shot into the ground.
(As read): “Then he sat down and laid it on the tractor step beside where
he was sitting and also took my keys so I couldn’t go anywhere. He
continued with remarks about me and he would increase in anger and
then be calm.”
Completely unstable.
...
Is that the way we treat human beings, sir, our own wives? And this
isn’t your first time around. You’ve assaulted another wife. You’ve
assaulted a family member. You’ve assaulted your neighbor. You’ve
been to drug court.
...
Typical, typical, total domestic abuser mentality.
Now, what else? One time before Mr. Wallace stated that she went to
her - - to Mr. Wallace’s house complaining she was supposed to do what
he wanted, he didn’t trust her. They got together and went over to the
house. They talked. She asked the defendant to talk about things and
bring things up, and he didn’t want to do it. He’s following his own
selfish ways, the mind of a domestic abuser in a home that is really
unsafe to live in.
...
So this is pretty serious, a pretty serious crime when you look at the
circumstances. We’re not talking about a guy that gets mad all of a
sudden, loses control, hits his wife, and is sorry. This is about as serious
as it gets because you took a gun and you’re a convicted felon and you
shot it, among other things. You threatened her while your son was
sitting right there. I don’t understand it.
Now, how are you going to deter this kind of activity? How are we
going to deter others likely to commit similar offenses? What kind of
punishment needs to be ordered to show that there should be no violence
in the home and it’s uncalled for? A man shouldn’t hit his wife ever.
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And what about more than one time? What about more than two times?
What about more than three times or even more? What are we to do
under the rule of law in court through cases to deter others? And there’s
a big deterrent effect here, huge, off the charts.
...
Three, measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant. I’ve never seen -
- I’ve never seen anything - - any system that has bent over backwards as
much as it has bent over backwards to try to help you through issues. As
my best count you’ve been on probation at least 12 times. You picked
up five to seven probation violations. You’ve been to drug court.
...
Government cannot force people to live responsibly, [Defendant], but it
can penalize those that don’t, and it’s about time. I deny you probation
in this case. I think the only option for this Court in reading the law, in
applying the law, in looking at every circumstance, you will go to the
department of correction on those sentences.
The trial court considered the facts of this case and the appropriate sentencing
principles. From the lengthy and detailed findings of fact the trial court denied
Defendant’s request for an alternative sentence based upon (1) the need to protect society
by restraining a defendant who has a long history of criminal conduct, (2) the need to
avoid depreciating the seriousness of the offense and provide an effective deterrent, and
(3) measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to Defendant. See id. § 40-35-103(1)(A)-(C). A trial court may deny
alternative sentencing if it finds that any one of the factors found at T.C.A. § 40-35-103
apply. State v. Christopher Allen, No. W2016-00505-CCA-R3-CD, 2017 WL 764552, at
*4 (Tenn. Crim. App. Feb. 24, 2017); State v. John Anthony Garrett, No. E2012-01898-
CCA-R3-CD, 2013 WL 5373156, at *4 (Tenn. Crim. App. Sept. 23, 2013). Accordingly,
the trial court did not abuse its discretion in ordering Defendant to serve his sentence in
confinement.
CONCLUSION
The trial court did not abuse its discretion when it denied Defendant’s request for
an alternative sentence. Accordingly, we affirm the judgments of the trial court.
____________________________________________
THOMAS T. WOODALL, JUDGE
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