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State v. Sutton5/14/1999
y been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1).
This court has recognized that the voluntary combination of alcoholic intoxication with dangerous instrumentalities is a matter of serious public concern which may justify a denial of probation. State v. Bobby Russell, No. 03C01-9608-CR-00319, slip op. at 8, Polk County (Tenn. Crim. App., at Knoxville, September 16, 1997), perm. app. denied (Tenn. 1998) (citing State v. Cleavor, 691 S.W.2d 541 (Tenn. 1985)) ; State v. Butler, 880 S.W.2d 395, 401 (Tenn. Crim. App. 1994). Defendant's conduct was the result of his voluntary combination of intoxication and firearms, and his reckless conduct and disregard for the lives of his family and friends justifies some confinement to avoid depreciating the seriousness of the offense. Id. (citing Tenn. Code Ann. § 40-35-103(1)(B)). A court may deny probation solely from the circumstances of the crime itself, if the crime as committed was "especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree." State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). Under the circumstances of this shocking and reprehensible offense, we conclude that the seriousness of the offense adequately supports the trial court's decision to deny probation.
While Defendant is correct that he meets the statutory requirements for presumptive eligibility for probation, his lack of a criminal record and history of employment and various medical maladies will not suffice to overcome the seriousness of this offense. Two (2) lives were lost as a result of Defendant's firing of a deadly weapon while he was extremely intoxicated. One of the victim's, Mr. Hance, was shot in the back. The trial court appropriately relied upon the need to avoid depreciating the seriousness of this offense in denying an alternative sentence. State v. Michael Benson, No. 02C01-9708-CC-00333, Hardin County (Tenn. Crim. App., at Jackson, July 21, 1998), perm. app. denied (Tenn. 1999) (Voluntary manslaughter of the victim while defendant was under the influence of an intoxicant and used a deadly weapon was sufficient to justify a total denial of alternative sentencing where defendant pled guilty to voluntary manslaughter of brother-in-law).
The burden is on the Defendant to show that the sentence he received is improper and that he is entitled to probation. Ashby, 823 S.W.2d at 169. Defendant has failed to meet this burden, and we affirm the judgment of the trial court.
THOMAS T. WOODALL, Judge
CONCUR:
JERRY L. SMITH, Judge
L. T. LAFFERTY, Senior Judge
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