Knoxville, TN - Criminal Defense lawyer represented defendant with three counts of premeditated first-degree murder charges.

Defendant shot and killed Wanda, Willard, and Doug Waters, who were his aunt,

uncle, and cousin, during an argument concerning an ongoing family property dispute.

07/28/2022

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Defendant's defense was that Willard1

and Doug were attempting to kill him and his father,

George Waters. Wanda was present and allegedly participated in the argument, but it was

not alleged that she attempted to kill Defendant or George. The Polk County grand jury

returned an indictment against Defendant charging him with three counts of premeditated

first-degree murder.

Trial

The Waters Family lived on George Road in Copperhill. George and Shirley,

Defendant's parents, lived on the top of a hill at the end of the road, and Willard (George's

brother) and Wanda (Shirley's sister) lived next door. Two of Willard and Wanda's

children, Doug Waters and Lora Kennedy, lived in a mobile home behind Willard and

Wanda's home. Defendant and his wife and daughter lived down the road from the others.

The two families were embroiled in a boundary dispute that arose in 2010 concerning

George and Shirley's property and Willard and Wanda's property. At various times, the

families obtained retraining orders against each other, and George and Shirley eventually

filed a petition to quiet title which was pending in chancery court at the time of the

shootings. The chancery court ultimately resolved the boundary dispute in favor of George

and Shirley.

Defendant testified concerning the ongoing property dispute and explained that the

judge in chancery court had said that no one was supposed to be doing any work in the

disputed property area. He said that the judge had also advised the parties to take notes

and make pictures of anyone doing anything in the area. George then purchased a camera

for that purpose. Defendant noted that on one occasion in chancery court, Wanda pointed

her finger in Defendant's face and said, "I'll see you dead.” He said that the chancery court

judge heard her comment. Defendant testified that due to the constant tension between the

families, he and George each acquired a handgun carry permit and handguns for personal

protection.

On the afternoon of August 17, 2012, Doug was grading the road with a tractor on

the disputed property. Lora Kennedy testified that the highway department had stopped

grading the road, and part of it had washed away at the time Doug was grading it. At

approximately 2:10 p.m., Doug called 911 and reported that Defendant and George were

"trying to stop us from grading our road.” Doug said that Defendant and George had guns

and were using their trucks to "block the tractor.” He also reported that Defendant and

George were "trying to fight with us,” and one of them "even acted like he was [going to]

pull his gun out.”



1 Because a number of the individuals involved in this case share the same last name, we will refer

to those parties by their first names. We mean no disrespect.

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Defendant called 911 a few minutes later and said that he had shot Willard, Wanda,

and Doug. He reported that there had been a property dispute with the neighbors who had

driven their tractor over and "started their shit.” Defendant said: "They took my daddy's

gun away from him, and they hit him and knocked him down. And they turned and [were

going to] kill him.” Defendant told the 911 operator that he "had to shoot” and "had to

stop all three of them.” Defendant then gave the phone to Shirley, and she said that George

had traveled down the road to take pictures of Willard, Wanda, and Doug who were in the

"disputed area.” Shirley reported that Willard and Doug began "beating the tar” out of

George and "took his gun away from him.” At that time, she did not know who had been

shot. Shirley asked Defendant if Wanda had been shot, and she then told the dispatcher

that "Wanda tried to take [Defendant's] gun away from him.”

Emergency personnel arrived on the scene, and Wanda and Doug were pronounced

dead. Doug was lying in the road and had gunshot wounds to the back of his head and

lower back. Wanda was lying in the grass approximately ten feet away and had a gunshot

wound to the top of her head. Willard was still alive and lying in the road near Doug. He

had also been shot in the back of the head and was transported to the hospital where he

later died. Defendant was still at the scene tending to George who had a wound to his head

and abrasions on his knee. Shirley was also there. George was transported to the hospital,

treated, and later released. At the scene, George's truck was parked perpendicular to

Doug's tractor near the intersection of George Road and Doug's gravel driveway

Deputy Frank Bean of the Polk County Sheriff's Office responded to the shooting

and retrieved George's gun that was lying between Willard and Doug, and Defendant

surrendered his weapon. Both weapons were nine-millimeter semi-automatic handguns.

George's gun was blood-stained; it was later determined that Doug's DNA was on

George's gun. It had been fired once and was jammed. Defendant's gun had been fired

five times. Three of the bullets fired from Defendant's gun were recovered from Wanda's

and Doug's bodies during the autopsy, and the two other bullets were never found. A

gunshot residue test indicated that Doug was shot from a maximum distance of five feet.

The bullet that struck Willard in the back of the head exited his forehead and was never

found.

Deputy Bean testified that Defendant said Doug attacked George before the

shootings and took George's gun from him. Defendant said that Doug then hit George on

the top of the head with the gun. Deputy Bean noted that Defendant was calm after the

shootings. Defendant told him that Wanda stood up as he fired at Doug. Deputy Bean

transported Defendant to the Polk County Jail where he was booked in by Deputy Scott

Davis. Deputy Davis testified that Defendant told him that Willard, Wanda, and Doug

were beating George and that he had to protect George.

Shirley Waters testified that on August 17, 2012, she was in the bathroom cleaning

up from having prepared supper when she heard rapid gunfire. She walked outside onto

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the porch and saw Defendant's truck. Shirley ran to the bottom of the hill and saw

Defendant who told her to get some wet towels for George, whom she thought was dead.

She testified that Defendant wrapped the towels around George's head and face and held

pressure to George's head. Shirley said that George's shirt was open, and his holster was

showing. She testified that Defendant was on the phone with the 911 operator and then

handed the phone to her. Shirley told the operator that Wanda attempted to take

Defendant's gun, but testified that she did not know how she obtained that information

because she was not present when Wanda or any of the others were shot. She also told the

911 operator that Willard and Doug were "beating the tar” out of George. However, she

admitted that no one told her George was beaten by Willard and Doug. Shirley testified

that she was "scared out of [her] mind” at the time. She admitted that she did not see

anything that happened at the time of the shootings. Shirley testified that George left the

house in his truck before the shootings to take pictures of Willard and Doug who were in

the disputed property area. She also testified that both George and Defendant had

purchased firearms and obtained gun carry permits due to increasing tension between the

parties over the property dispute.

Defendant testified that he was working for the Polk County Road Department on

the day of the shootings and that he and his co-workers were dismissed early from work

that day due to the heat. Defendant left work between 1:30 and 2:00 p.m. and drove home.

He spoke with George on the way home, and they discussed their plans for the remainder

of the day. Defendant testified that there was no discussion at the time about George taking

pictures of anything. When Defendant arrived home, he was checking his mail at the

mailbox and saw a tractor. He could not tell who was operating the tractor. He thought at

that point there was going to be trouble.

Defendant testified that as he drove toward George and Shirley's house, he could

see George's truck, and the tractor was pulled against the side of the truck. He noted that

the driveway to George's house was blocked, but the road was not blocked. Defendant

testified that Doug was standing in front of George and had each of his arms pinned against

the side of the truck. Defendant drove around George's truck and parked. Doug pointed

at him as he drove around. Defendant testified that he got out of his truck and heard Doug

screaming and cursing at George, and Doug said that he was going to "stomp” George's

and Defendant's "brains out.” Defendant said that Doug also threatened to kill him and

George. Defendant testified that Willard and Wanda were standing in close proximity to

Doug. He said that at some point George attempted to walk back toward Defendant, and

George told Doug that he was only taking pictures of them in the disputed area. Defendant

testified that George told Doug to call the "law” to verify that he was supposed to be taking

pictures, and Doug said that he had already called them. Defendant said that George

attempted to walk back to his house to wait for police but Doug said that he was tired of

having his picture taken, and he "jerked” the camera out of George's hand.

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Defendant testified that Doug then punched George in the face, knocking him to the

ground. He said that Doug stood over George and grabbed him by the neck. Willard then

grabbed George's left arm and told Doug to get George's gun, and Willard shouted, "shoot

the son of a bitch.” Defendant testified that Willard, Wanda, and Doug were all

"screaming, hollering, and cussing.” He said that Doug had George's gun in his hand and

hit George on the head with it. Doug then placed the gun against George's head. Defendant

drew his weapon and yelled at Doug to drop the gun. Defendant said that Wanda, who was

on his left side, grabbed his shirt as he drew his weapon and was hitting him while trying

to pull him back. He either shoved or elbowed her to get her "off of him.” Defendant

testified that Doug then pointed George's weapon at him, and Defendant shot him because

he was afraid that Doug was going to kill him or George.

Defendant said that he and Willard both attempted to get the gun after Doug fell,

and Willard hit Defendant on top of the head. Defendant yelled at Willard to leave the gun

on the ground, and shot Willard as he reached for the gun. Defendant did not know where

Wanda was at the time, and he did not know how she got shot. He noted that George was

lying on the ground unconscious between Willard and Doug. Defendant said that he

noticed Wanda's body on the ground as he dragged George's body away from the others.

He testified that George had a cut on the right side of his head and blood on his face. At

that time he realized that George had not been shot as he previously thought. Defendant

noted that George's shirt had been ripped open, and his gun holster was unfastened but still

around his body. He called 911 and handed the phone to Shirley at some point. When

Deputy Bean arrived on the scene, Defendant told him where the guns were located.

Defendant denied telling anyone that Wanda stepped out in front of him and that he shot

her by accident. He also thought that he said, "I don't know” when Shirley asked him

during the 911 call if Wanda had been shot.

Dr. Steven Cogswell, a forensic pathologist and Deputy Chief Medical Examiner

for Hamilton County, testified for the defense. He examined the forensic evidence in this

case and opined that that bullet which struck Wanda was most likely the same bullet that

struck Willard. Dr. Cogswell testified that Wanda's death would not have been instant but

would have occurred within a matter of five to ten seconds which would explain the short

distance between Willard and Wanda's bodies. Additionally, Dr. Cogswell opined that due

to the downward flow of blood from the bullet wound, Wanda would have been upright at

some point after she was struck by the bullet. He further testified that brain matter found

on Wanda likely belonged to Willard suggesting very close proximity, and that one bullet

caused both deaths.

Dr. Thomas Deering, who performed the autopsies on Willard, Wanda, and Doug,

testified on rebuttal. He opined that while it was possible that the bullet from Willard

passed through to Wanda, it was not likely or probable.

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Based on this evidence, the jury acquitted Defendant of first-degree murder in the

deaths of Willard and Doug. The jury convicted Defendant of the lesser-included offense

of reckless homicide in the death of Wanda.

Sentencing Hearing

The presentence report was introduced as an exhibit at the sentencing hearing.

Victim impact testimony was given by family members, and several victim impact

statements were read into the record.

Sherry Gaston, an employee with the Tennessee Department of Probation and

Parole, testified that she prepared the presentence report and administered a Strong 'R'

Assessment on Defendant which is a "risk needs assessment.” She explained that the

assessment measures Defendant's possibility of reoffending, and the same questions are

asked of every person who is assessed. Ms. Gaston testified that based on his score,

Defendant was at a low risk to reoffend. She said that Defendant had no prior criminal

history, including no traffic violations. Ms. Gaston testified that Defendant graduated from

high school and had a history of maintaining continuous gainful employment. She noted

that the only time that Defendant had a lapse in employment was during his incarceration

for the present offense. Ms. Gaston testified that Defendant had a supportive family and

housing, and he had no mental health issues. She also said that he had a low risk of

aggression. Ms. Gaston testified that Defendant wore an ankle monitor after his release

from jail, and he had no reported bond violations. He also had no disciplinary actions

during his incarceration, as verified by Polk County Jail Administrator Teresa Hammons.

Reverend Jim Mabe testified that he was involved in an anger management program

at the Polk County Jail for approximately seven years, and he met Defendant through the

program while Defendant was incarcerated. He described Defendant as "outstanding” and

said that Defendant never missed a meeting while in the program. It was Reverend Mabe's

opinion that Defendant was a truthful, kind, and loving individual. He said that Defendant

worked for him for three months after Defendant was released from jail. Reverend Mabe

testified that Defendant was a reliable worker who never missed a day of work. He said

that he had invited Defendant into his home, and he loved and respected Defendant like his

own son. Reverend Mabe noted that Defendant had a pacemaker, but his health issues did

not affect his job performance.

Josh Bosdell and Gary Pike, two of Defendant's coworkers at Crystal Geyser,

testified that Defendant was an honest, law abiding, hardworking, and peaceful person.

Mr. Bosdell said that Defendant helped him out when Mr. Bosdell's wife was sick with

cancer. Jason Waters, Defendant's cousin and Willard and Wanda's son, testified that he

lived beside Defendant growing up, and he had never known Defendant to get into a fight.

Jason also said that Defendant was an ordained minister and always had a job. He also

believed Defendant to be an honest person.

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Defendant testified that he was an ordained Baptist preacher, and he had also been

ordained as a deacon. He said that he lived beside his aunt, uncle, and cousins growing up,

and he got along with them. Defendant testified that he began working as a mechanic at

the age of sixteen, and he graduated from the Polk County High School in 1998. He recited

his work experience until he went to work for the Polk County Road Department in 2004.

He remained there until his arrest in this case. Defendant testified that he had never been

without a job since the age of sixteen, and he had never been fired from a job until his

arrest. He said that he immediately found a job after he was released on bond from jail.

Defendant testified that he left Copper Hill after the offense, and he never returned.

He requested to wear an ankle monitor after he was released from jail so that no one else

had to keep up with him. Defendant testified that the only times he left the 10th Judicial

District in nearly five years was to attend medical appointments. Defendant testified that

the ankle monitor was removed one time when he had surgery to have his pacemaker

replaced. He said that he always notified the monitoring company when he went to a

medical appointment or when he and his daughter were going fishing.

Defendant testified that he was acting in defense of his father at the time of the

shootings, and he did not know how Wanda got shot. He remembered shoving her off of

him before the shooting. Defendant testified that Wanda participated in the argument with

George, and she was the "instigator.” He said that Wanda made it difficult to reason with

Willard and Doug. Defendant testified that there was brain matter on the top of Wanda's

head that was washed off during the autopsy which was never tested to see if it was

Willard's. He noted that he and George both had a handgun carry permit, and Defendant

always carried his weapon. Defendant testified that he had never pulled his gun on anyone

else.

Defendant testified that he sees a doctor every three to six months for his heart

condition, and he is currently seeing an orthopedic doctor because he dislocated his

shoulder at work. Defendant testified that he no longer works at Crystal Geyser due to his

injury and that he reports to the staffing agency every day and helps with paperwork until

he is cleared to go back to Crystal Geyser.

On cross-examination, Defendant testified that the shooting was Wanda's fault and

that she instigated everything. He also blamed Wanda for not trying to pull Willard and

Doug back. Defendant noted that the chancery court judge had ordered that pictures be

taken of anyone working on the disputed property. When asked if he placed any blame on

himself, Defendant testified:

What more could I have done? I come in on a heated argument. I

come in on a situation, that there was a gun introduced - - and they

had my father down. They was killing him. And upon fear of his

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life, and upon fear of mine, I done the only thing I possibly could do,

and that's stop the threat.

Defendant further testified:

They might not have found me guilty if that brain mat[t]er had been

saved, right along with the other nail scrapings showing the blood -

- everything else that was excluded from this trial from being

introduced. You not only robbed the family that's 'a [sic] grieving

that wrote you letters, you not only robbed them of the opportunity

to know exactly how it happened, or what happened, but you robbed

me of the part of the proof of my innocence. Therefore you got a

conviction of a reckless homicide, because of a main important part

that [the prosecutor] argued standing right here. There were no way

the bullet went through Willard's head, then struck Wanda in the top

of the head, but that brain mat[t]er that could have proved that

without a reasonable doubt. If you noticed in your pictures of your

crime scene, it was there. But once she was in the body bag

according to Mr. Thomas Deering, it was not sent with it. It was

never saved. You robbed me of that.

Defendant said that a verbal altercation escalated to a physical altercation, and he felt that

Wanda's shooting was an accident. He testified that he drew his weapon because his and

his father's lives were threatened.

Scott Cranmore testified that he provided the GPS ankle monitor that Defendant

wore after he was released from jail. He said that Defendant paid $210 per month for the

monitoring service. Mr. Cranmore testified that Defendant was responsible for charging

the device and reporting any problems with it. He said that Defendant reported any time

that he left the confines of the 10th Judicial District and that Defendant only left to attend

medical appointments in Chattanooga. Mr. Cranmore noted that the ankle monitor was

removed one time when Defendant had surgery. He said that Defendant followed the

monitoring program "110 percent” and would call anytime that he went fishing.

Mr. Cranmore testified that Defendant was always respectful and held himself

accountable. He believed Defendant would be a good citizen and that he is an honest

person. Mr. Cranmore further believed that Defendant was sorry for what happened. He

felt that Defendant was a peaceful person, and he had never seen Defendant behave

aggressively. On cross-examination, Mr. Cranmore agreed that he heard Defendant blame

other people for what happened. On redirect examination, he said that he had also heard

Defendant take responsibility for having been involved in the shooting and that Defendant

was in a difficult situation.

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In considering Defendant's request for judicial diversion, the trial court reviewed

the facts of the case and the evidence presented at the sentencing hearing, noting that Jason

Water's testimony had very little value because the court questioned his credibility. The

trial court further recited the law concerning judicial diversion and found Defendant to be

statutorily eligible for diversion. The trial court further found that Defendant's amenability

to correction, his criminal record, social history, including his employment history, and his

mental health weighed in favor of a grant of diversion. The trial court addressed

Defendant's physical health which she noted as "fair” due to a heart condition, and said, "I

don't know that it speaks to either for or against a grant [or] denial of diversion.” In

considering Defendant's social history, the trial court said: "I saw little remorse, and I

heard no apology from the Defendant. I did hear him say that he loves all of the people in

the room.” The trial court felt that Defendant "doesn't take responsibility for what

happened, and so that causes me to have some concern for his - - the emotional status.”

In ultimately denying Defendant's request for diversion, the trial court found:

Okay. I skipped over the circumstances of the offense. The

incidents of August 17[], 2012, have resulted in the loss of the lives

of three persons, but he was acquitted by a Jury of the two cases.

Nonetheless, the circumstances of this offense are aggravated in that

there is loss of life over basically, a feud. A feud over land in

dispute, and who had the right to grade the road at the time. So that

weighs against diversion.

And then, deterrence to both the accused and others. The law in a

sentencing hearing, so once diversion had been - - or if diversion is

denied the law requires that I look at statistics. And among the

statistics I reviewed were reports from the Administrative Office of

the Courts.

I looked at the sentencing statistics, which I'll come back to, but I

looked at the annual report of the Tennessee Judiciary for [fiscal]

years 2015, [20]16, 2014 and [20]15, and 2013, [20]14.

There are no statistics as to reckless homicide, but if you look at the

filings, filings, in this judicial district for homicide cases and

assaultive cases, in 2013, [20]14 there were eleven.

In [20]14, [20]15, the sum of the filings, there was one homicide and

fourteen [sic] assaultive cases were fifteen. And in 2015, [20]16 the

sum of those two categories were nineteen.

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And so looking at those statistics, it appears that violent or assaultive

crimes are on the increase in Polk County, cuz' [sic] those are the

only ones that I looked at, and they have gone from eleven to fifteen

to nineteen. Those statistics support evidence that there is a need to

deter not only this accused, but others from this sort of behavior, so

that weighs against a grant of diversion.

And then the last one is, whether [j]udicial [d]iversion will serve the

ends of justice for both the public and the accused.

In my mind this seems like a senseless crime. And all crimes - - all

crimes, I ask myself, why? How did we get there? And sometimes

it's drugs that impaired somebody's judgment. Or alcohol that

impaired their judgment. In this case, it seems as though there was

a long[-]standing problem, and the parties went to the court, and the

courts deferred them, or brushed them off; and issued orders of

protection, suggest that they take photographs, had them do surveys,

but the problem just kept festering.

And for the safety of the public, and in the interest of justice, this is

one of those cases where [j]udicial [d]iversion just does not serve the

ends of justice, so for those reasons I deny the request by the

[d]efense for [j]udicial [d]iversion.

In determining the appropriate sentence for Defendant to serve, the trial court again

considered the evidence presented at trial and at the sentencing hearing, including the

presentence report; the principles of sentencing and arguments as to sentencing

alternatives; the nature and characteristics of the criminal conduct involved; evidence

regarding the mitigating and enhancement factors; statistical information provided by the

Administrative Office of the Courts; Defendant's allocution; and the results of Defendant's

risk and needs assessment.

The trial court noted that Defendant was a Range I offender convicted of a Class D

felony, which carried a sentencing range of two to four years. The court applied two

enhancement factors: Defendant treated, or allowed the victim to be treated, with

exceptional cruelty during the commission of the offense; and Defendant possessed or

employed a firearm during the commission of the offense. See T.C.A. § 40-35-114 (5) and

(9). In determining that enhancement factor (5) applied in Defendant's case, the trial court

said:

In this case, the Defendant called for his mother to bring wet towels

and he cared for his father's abrasions, yet he rendered no aid to

Marion Doug Waters, Willard Waters, or Wanda Waters, inspite

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[sic] of the fact that when the rescue squad arrived, at least eleven

minutes later, Willard Waters was still breathing. And so I think

failure to render aid to other harming - - to other persons that were

suffering shows exceptional cruelty under the circumstances.

The trial court did not find that any mitigating factors applied and said, "Once again, I think

the [j]ury mitigated this case by acquitting on Counts 1 and 3.”

In considering the manner of service of Defendant's sentence, the trial court

considered all of the appropriate factors and reiterated its findings relative to the denial of

judicial diversion. The trial court noted that Defendant's risk of committing another crime

was low and that "[i]t is likely he would not commit further crimes if he were placed on

probation.” In considering whether to grant Defendant full probation, the trial court found:

Whether or not a sentence of full probation would unduly depreciate

the seriousness of the offense. I believe that a sentence of full

probation would unduly depreciate the seriousness of the offense.

This crime involves the loss of life, and although, as I started this,

there is nothing that I can do that would replace the life, and no

sentence that I could impose, that will value the life when life is

taken, a sentence of full probation is inappropriate.

And whether or not confinement is particularly suited to provide an

effective deterrent to others likely to commit [a] similar offense. In

my discussion of diversionary treatment, I talked about the statistical

information available, and so I rely on this in this finding as well.

And whether or not the offense was particularly enormous, gross or

heinous. That's one of those, every murder is enormous, gross, and

heinous; therefore, it carries no particular weight in this Defendant's

case.

The trial court concluded that a sentence of split confinement was appropriate in

Defendant's case. The court sentenced Defendant to four years, suspended to ten years of

supervised probation after service of 364 days in confinement.

ANALYSIS

I. Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support his conviction for

reckless homicide because "there was no gross deviation from the standard of care of a

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person engaging in self-defense,” and "the unfortunate killing of Wanda Waters was

justified under the doctrine of self-defense and defense of another.” The State responds

that the evidence presented was sufficient to sustain Defendant's conviction.

"Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

"Appellate courts evaluating the sufficiency of the convicting evidence must determine

'whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.'” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court

evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from that

evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318

S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691

(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review

for sufficiency of the evidence "'is the same whether the conviction is based upon direct

or circumstantial evidence.'” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the

credibility of the witnesses, determine the weight given to witnesses' testimony, and

reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.

2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,

the jury determines the weight to be given to circumstantial evidence, the inferences to be

drawn from this evidence, and the extent to which the circumstances are consistent with

guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice,

184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence,

this court "neither re-weighs the evidence nor substitutes its inferences for those drawn by

the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997)).

A self-defense instruction was given in this case. In Tennessee, a person who is not

engaged in unlawful activity may use deadly force in self-defense when that person has a

reasonable belief, based upon reasonable grounds, that there is an imminent, real danger of

death or serious bodily injury. T.C.A. § 39-11-611(b)(2). It is well established, under

Tennessee law, "that whether an individual acted in self-defense is a factual determination

to be made by the jury as the sole trier of fact.” State v. Goode, 956 S.W.2d 521, 527

(Tenn. Crim. App. 1997) (citing State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.

1993)).

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Tennessee Code Annotated section 39-11-612 permits a person to also use deadly

force "to protect a third person” when the person using deadly force "reasonably believes”

that the third person would be justified in using deadly force under the self-defense statute

and that "the intervention is immediately necessary to protect the third person.” "The

application of the right to defend another should be 'determined in the same fashion as the

right of self-defense' under [section] 39-11-611.” State v. Hawkins, 406 S.W.3d 121, 128

(Tenn. 2013) (quoting T.C.A. § 39-11-612 Sentencing Comm'n Cmts). "A person's right

to defense of a third party is no greater than the third party's right to defend himself or

herself.” Id. (citing State v. Barnes, 675 S.W.2d 195, 196 (Tenn. Crim. App. 1984)).

Reckless homicide is defined as the "reckless killing of another.” T. C. A. § 39-13-

215(a).

"Reckless” refers to a person who acts recklessly with respect to

circumstances surrounding the conduct or the result of the conduct

when the person is aware of but consciously disregards a substantial

and unjustifiable risk that the circumstances exist or the result will

occur. The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an

ordinary person would exercise under all the circumstances as

viewed from the accused person's standpoint.

T.C.A. § 39-11-106(a)(31). Tennessee Code Annotated section 39-11-301(a)(2) provides:

When the law provides that criminal negligence suffices to establish

an element of an offense, that element is also established if a person

acts intentionally, knowingly or recklessly. When recklessness

suffices to establish an element, that element is also established if a

person acts intentionally or knowingly. When acting knowingly

suffices to establish an element, that element is also established if a

person acts intentionally.

In this case, viewing the evidence in a light most favorable to the State, a reasonable

juror could have concluded that the evidence was sufficient to support Defendant's

conviction for reckless homicide. The proof shows that while Wanda was involved in the

argument, there was no evidence that she attempted to kill George or Defendant or that

Defendant feared that she would kill him or George. Although Defendant testified that

Wanda grabbed his shirt and was hitting him and trying to pull him back before he shot at

Doug, Defendant testified that he pushed her away from him, thereby eliminating her as a

threat. Defendant told the officers during his interview, and he testified at trial, that he did

not know how Wanda got shot. Therefore, a reasonable juror could have concluded that

Defendant acted with reckless disregard when he shot and killed Wanda.

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Defendant argues that the evidence was insufficient to convict him of reckless

homicide because he shot Wanda in self-defense and in defense of George. He asserts that

Wanda injected herself into the confrontation and helped escalate it, she remained in close

proximity to Willard and Doug during the confrontation, and she failed to prevent Doug

from "committing violence with a gun.” Defendant further asserts that Wanda "actively

tried to prevent [him] from protecting himself and his father.” However, the jury heard the

evidence and rejected Defendant's claim of self-defense and defense of another as to

Wanda's death, as was its prerogative. We conclude that the evidence was sufficient

beyond a reasonable doubt to support Defendant's conviction for reckless homicide.

Defendant asserts that an acquittal as to Wanda's death would "square [ ] with the

jury's verdict on Doug and Willard Waters,” and "[t]he same logic should apply to the

actions against all three persons.” However, "inconsistent jury verdicts are not a basis for

relief.” State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015); Wiggins v. State, 498 S.W.2d 92.

93-94 (Tenn. 1973). The supreme court in Davis recognized the "sanctity of the jury's

deliberations and the strong policy against probing into its logic or reasoning, which would

open the door to interminable speculation.” Davis, 466 S.W.3d at 77 (quotations omitted).

Defendant is not entitled to relief on this issue.

II. Sentencing

Defendant contends that the trial court erred in denying his request for judicial

diversion and that his sentence is excessive. The State responds that the trial court

"properly exercised its discretion” in imposing the sentence.

Our standard of review of the trial court's sentencing determinations is whether the

trial court abused its discretion, and we apply a "presumption of reasonableness to withinrange sentencing decisions that reflect a proper application of the purposes and principles

of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The party

challenging the sentence on appeal bears the burden of establishing that the sentence was

improper. T.C.A. § 40-35-401 (2017), Sentencing Comm'n Cmts. In determining the

proper sentence, the trial court must consider: (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 Tennessee Code Annotated sections 40-35-113 and -

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

made 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. See T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.

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2001). The trial court must also consider the potential or lack of potential for rehabilitation

or treatment of the defendant in determining the sentence alternative or length of a term to

be imposed. T.C.A. § 40-35-103.

A. Judicial Diversion

Following a determination of guilt by plea or by trial, a trial court may, in its

discretion, defer further proceedings and place a qualified defendant on probation without

entering a judgment of guilt. T.C.A. § 40-35-313(a)(1)(A); State v. Dycus, 456 S.W.3d

918, 925 (Tenn. 2015). If the defendant successfully completes the period of probation,

the trial court is required to dismiss the proceedings against him, and the defendant may

have the records of the proceedings expunged. Id. § 40-35-313(a)(2), (b); Dycus, 456

S.W.3d at 925.

As an offender convicted of a Class D felony and with no prior criminal record,

Defendant met the statutory requirements to be considered for judicial diversion. See

T.C.A. § 40-35-313(a)(1)(B). Mere eligibility, however, does not entitle a defendant to

judicial diversion. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). Instead,

the decision to grant or deny a qualified defendant judicial diversion "is entrusted to the

trial court.” State v. King, 432 S.W.3d 316, 323 (Tenn. 2014) (citation omitted). In

determining whether to grant diversion, the trial court is to consider the following factors:

(a) the accused's amenability to correction, (b) the circumstances of the offense, (c) the

accused's criminal record, (d) the accused's social history, (e) the accused's physical and

mental health, (f) the deterrence value to the accused as well as others, and (g) whether

judicial diversion will serve the interests of the public as well as the accused. State v.

Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App 1998).

"A trial court's decision to grant or deny judicial diversion is reviewed for an abuse

of discretion with a presumption of reasonableness.” King, 432 S.W.3d at 327. In King,

our supreme court held that "nothing in Bise or its progeny requires the abrogation of the

Parker and Electroplating factors:

Under the Bise standard of review, when the trial court considers the

Parker and Electroplating factors, specifically identifies the relevant

factors, and places on the record its reasons for granting or denying

judicial diversion, the appellate court must apply a presumption of

reasonableness and uphold the grant or denial so long as there is any

substantial evidence to support the trial court's decision. Although

the trial court is not required to recite all of the Parker and

Electroplating factors when justifying its decision on the record in

order to obtain the presumption of reasonableness, the record should

reflect that the trial court considered the Parker and Electroplating

factors in rendering its decision and that it identified the specific

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factors applicable to the case before it. Thereafter, the trial court

may proceed to solely address the relevant factors.

Id., 432 S.W.3d at 327 (footnote omitted).

The record reveals that the trial court carefully considered and weighed each of the

Electroplating factors in its decision to deny Defendant's request for judicial diversion.

The court found that Defendant's amenability to correction, his criminal record, social

history, including his employment history, and his mental health weighed in favor of a

grant of diversion. However, the trial court was concerned that Defendant showed little

remorse and made no apology for his actions. The trial court further felt that Defendant

"doesn't take responsibility for what happened, so that causes me to have some concern

for his . . . emotional status.”

The trial court found that the circumstances of the offense were aggravated and that

there was "loss of life over basically, a feud,” and found that the circumstances of the

offense, the need for deterrence, and the interests of the public all weighed against a grant

of judicial diversion. In considering deterrence, the trial court reviewed statistics from the

Administrative Office of the Courts and noted that it appeared that violent or assaultive

crimes were on the rise in Polk County. The trial court specifically stated that "[t]hose

statistics support evidence that there is a need to deter not only this accused, but others

from this sort of behavior[.]” Finally, in considering the interest of the public, the trial

court noted that this seemed to be a senseless crime and that "for the safety of the public,

and in the interest of justice, this is one of those cases where [j]udicial [d]iversion just does

not serve the ends of justice[.]”

We find no abuse of discretion in the trial court's denial of Defendant's request for

judicial diversion. As pointed out by the State, this court should not disturb the trial court's

decision because there is more than "a scintilla” of evidence to support the denial of

diversion. Accordingly, we affirm the judgment of the trial court.

B. Length of Sentence

Trial courts are "required under the 2005 amendments to 'place on the record, either

orally or in writing, what enhancement or mitigating factors were considered, if any, as

well as the reasons for the sentence, in order to ensure fair and consistent

sentencing.'” Bise, 380 S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). Under the

holding in Bise, "[a] sentence should be upheld so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the purposes

and principles listed by statute.” Id. at 709-10. Although the trial court should consider

enhancement and mitigating factors, the statutory enhancement factors are advisory only.

See T.C.A. § 40-35-114; see also Bise, 380 S.W.3d at 701. Moreover, a trial court is

"guided by - but not bound by - any applicable enhancement factors when adjusting the

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length of a sentence[,]” and its "misapplication of an enhancement or mitigating factor does

not invalidate the sentence imposed unless the trial court wholly departed from the 1989

Act, as amended in 2005.” Bise, 380 S.W.3d at 706.

In this case, Defendant faced a sentencing range of two to four years as a Range I,

standard offender for his conviction of reckless homicide, a Class D felony. The trial court

imposed the maximum sentence of four years. The record reflects that the trial court

considered the enhancement and mitigating factors and applied two enhancement factors:

Defendant treated, or allowed the victim to be treated, with exceptional cruelty during the

commission of the offense; and Defendant possessed or employed a firearm during the

commission of the offense. See T.C.A. § 40-35-114 (5) and (9). The trial court did not

find any applicable mitigating factors. Defendant challenges the court's findings as to

enhancement factor (5) and the lack of mitigating factors.

Having reviewed the record before us, we conclude that the trial court clearly stated

on the record its reasons for the sentence imposed, and Defendant's sentence is within the

appropriate range and "justly deserved in relation to the seriousness of the offense.” T.C.A.

§40-35-102(1). The record reflects that the trial court considered the purposes and

principles of the Sentencing Act. Although we agree with Defendant that enhancement

factor (5) is not applicable in this case, "a trial court's misapplication of an enhancement

or mitigating factor does not invalidate the sentence unless the trial court wholly departed

from the [Sentencing Act].” Bise, 380 S.W.3d at 706; see also State v. Gray, 960 S.W.2d

598, 611 (Tenn. Crim. App. 1997) ("Enhancement factor (5) is usually found in cases of

abuse or torture”). We note that enhancement factor (9) was appropriately applied. There

is no dispute that Defendant employed a firearm. State v. Bobby Joe Russell, No. 03C01-

9608-CR-00319, 1997 WL 573475, at *6 (Tenn. Crim. App. Sept. 16, 1997) (Because

employing a firearm is not an element of reckless homicide, enhancement factor (9) was

properly considered to enhance sentence). Therefore, the trial court's imposition of the

maximum sentence of four years for reckless homicide is presumed reasonable.

C. Full Probation

As for the denial of full probation, "the abuse of discretion standard, accompanied

by a presumption of reasonableness, applies to . . . questions related to probation or any

other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). 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[.]” T.C.A. § 40-35-102(6). In determining

whether to grant or deny probation, a trial court should consider the circumstances of the

offense, the defendant's criminal record, the defendant's social history and present

condition, the need for deterrence, and the best interest of the defendant and the public.

State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). "[T]he burden of establishing

suitability for probation rests with the defendant.” T.C.A. § 40-35-303(b). "This burden

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includes demonstrating that probation will 'subserve the ends of justice and the best interest

of both the public and the defendant.'” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008)

(quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A trial

judge must consider the following factors before imposing a sentence of incarceration:

(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). Additionally, the sentence imposed should be the least severe

measure necessary to achieve its purpose, and the defendant's potential for rehabilitation,

or lack thereof, should be considered when determining whether to grant alternative

sentencing. Id. § 40-35-103(4) and (5). Trial judges are encouraged to use alternative

sentencing when appropriate. Id. § 40-35-103(6). In this case, Defendant received the

sentencing alternative of split confinement. See id. § 40-35-306(a). Split confinement

involves an initial period of confinement followed by probation:

A defendant receiving probation may be required to serve a portion

of the sentence in continuous confinement for up to one (1) year in

the local jail or workhouse, with probation for a period of time up to

and including the statutory maximum time for the class of the

conviction offense.

Id.

The trial court's findings of fact in this case support its conclusion that Defendant

was not a suitable candidate for full probation and the order for Defendant to serve 364

days in confinement followed by ten years of supervised probation. The trial court

reiterated its findings relative to the denial of judicial diversion and found that some period

of incarceration was necessary to avoid depreciating the seriousness of the offense and to

deter others from committing a similar offense. T.C.A. § 40-35-103(1)(B); State v.

Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (deferring to the trial court's decision to

deny probation where the court "combined the need to avoid depreciating the seriousness

of the offense with the need for deterrence and the nature and circumstances of the

offense”). We also note that in considering judicial diversion, the trial court was concerned

that Defendant showed no remorse for his actions. A lack of remorse can be utilized by a

trial court during the consideration of probation. State v. Dowdy, 894 S.W.2d 301, 306

(Tenn. Crim. App. 1994); State v. Celeste Hall, No. M2005-00715-CCA-R3-CD, 2005 WL

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3543416, at *5 (Tenn. Crim. App. Dec. 27, 2005); and State v. Brian Goodrich, No.

M2002-03017-CCA-R3-CD, 2004 WL 367719, at *3 (Tenn. Crim. App. Feb. 27, 2004).

We also find that the trial court acted within its discretion by placing Defendant on

probation for a period of ten years following the suspension of his four-year sentence after

service of 364 days. As pointed out by the State, the Sentencing Act gives a trial court the

authority to impose a period of probation "up to and including the statutory maximum time

for the class of the conviction offense.” T.C.A. § 40-35-306(a). The offense of reckless

homicide has a maximum statutory punishment of twelve years. Id. § 39-35-112(c). The

trial court determined that the probationary period of ten years was appropriate given the

serious nature of the offense. The court noted that had Defendant been ordered to serve

his entire four-year sentence in confinement, he would be eligible for parole soon after the

sentence was imposed. However, a period of split confinement would allow the trial court

to impose a longer probationary period, which would avoid depreciating the seriousness of

the offense and ensure public safety.

The trial court did not abuse its discretion in denying full probation and ordering

split confinement in this case given Defendant's lack of remorse, combined with the need

to avoid depreciating the seriousness of the offense and to deter others from committing a

similar offense. Defendant is not entitled to relief on this issue.

Based on foregoing analysis, we affirm the judgment of the trial court.