                                                     FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               July 9, 1999
                            AT KNOXVILLE
                                                            Cecil Crowson, Jr.
                                                           Appellate C ourt
                           MAY 1999 SESSION                    Clerk




STATE OF TENNESSEE,               )
                                  )
             Appellee,            )      C.C.A. No. 03C01-9809-CR-00325
                                  )
vs.                               )      McMinn County
                                  )
JAMES RICHARD WATSON,             )      Hon. R. Steven Bebb, Judge
                                  )
             Appellant.           )      (Sentencing)



FOR THE APPELLANT:                       FOR THE APPELLEE:

CHARLES M. CORN                          PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter
53-A Central Avenue
Cleveland, TN 37364                      R. STEPHEN JOBE
                                         Assistant Attorney General
WILLIAM C. DONALDSON                     425 Fifth Ave. N., 2d Floor
Assistant Public Defender                Nashville, TN 37243-0493
110 ½ Washington Avenue N.E.
Athens, TN 37303                         JERRY N. ESTES
                                         District Attorney General

                                         AMY REEDY
                                         Assistant District Attorney General
                                         130 Washington Avenue
                                         Athens, TN 37371




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                               OPINION
              The defendant, James Richard Watson, appeals from his sentence

imposed for aggravated assault, a Class C felony, in the McMinn County Criminal

Court. See Tenn. Code Ann. § 39-13-102(a)(1)(B) (1997). The trial court imposed

a five year sentence in the Tennessee Department of Correction. In this direct

appeal, the defendant challenges the length of the sentence imposed and the

manner of service. After a review of the record, the briefs of the parties, and the

applicable law, we affirm the sentence.



              The evidence of the circumstances of the offense was presented at

the sentencing hearing after the defendant pleaded guilty. The victim testified that

on January 28, 1998, a neighbor, the defendant, knocked on the front door of his

home asking about his dog. As the victim’s wife attempted to close the door, the

defendant pushed the door open, knocked the victim’s wife back against a doorway

and caused a lump on the back of her head. The victim barely heard his wife yelling

for him as the defendant hit her and choked her. The victim approached the

defendant with a rifle which the defendant grabbed. The defendant drew and

opened a large switch-blade-type knife with a serrated edge. The victim told the

defendant twice to put the knife back in his pocket. As the defendant was leaving,

he cut the victim’s hand with the knife.



              At the time of sentencing, the 29-year old defendant had a sparse

employment history. He had been married for eleven years and had four children.

The presentence report reveals no prior criminal convictions, but the preparer of the

presentence report testified at the sentencing hearing regarding the defendant’s

criminal history in Indiana.   At the time of the offense, the defendant had been

released only eight days earlier from jail in Indiana on his own recognizance. There

were pending charges for rape, criminal deviate conduct, and public intoxication in

Indiana. The defendant admitted that he had a 1997 Indiana criminal conviction for

                                           2
battery, a Class A misdemeanor.



               The defendant contends that the court erred in applying three of the

five enhancement factors the court used to assess the length of his sentence.

When there is a challenge to the length, range, or manner of service of a sentence,

it is the duty of this court to conduct a de novo review of the record with a

presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d) (1997). This presumption is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, this court must affirm the

sentence, “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              In making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the range of sentence and then

determines the specific sentence and the propriety of sentencing alternatives by

considering (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 enhancement

and mitigating factors, (6) any statements the defendant wishes to make in the

defendant’s behalf about sentencing, and (7) the potential for rehabilitation or

treatment. Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-

                                          3
103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).



              In the present case, the trial court’s sentencing determination is not

entitled to the presumption of correctness because the trial court erred in applying

two enhancement factors and did not place on the record its findings regarding the

need for incarceration. Accordingly, we will review the sentence under a purely de

novo standard.



                              1. Length of Sentence

              In determining the sentence, the trial court applied five enhancement

factors: (1) a previous history of criminal convictions and behavior, (2) the offense

involved more than one victim, (3) both victims were particularly vulnerable because

of their age, (4) a previous history of unwillingness to comply with the conditions of

release in the community, and (5) the offense was committed while on bail. See

Tenn. Code Ann. § 40-35-114(1), (3), (4), (8), (13) (1997). The trial court found

mitigation applicable for the defendant’s show of remorse and the defendant’s

voluntarily seeking treatment for alcohol or drug abuse. The defendant contests the

application of three enhancement factors: a previous history of criminal convictions

and behavior, a previous history of unwillingness to comply with the conditions of

release in the community, and that the offense was committed while on bail.



                                    a. Factor (1)

              Regarding enhancement factor (1), a previous history of criminal

convictions or criminal behavior, the defendant argues this factor should not be

applied because his criminal history was not extensive. A defendant’s criminal

history need not be extensive for enhancement factor (1) to be applied. The

defendant admitted a prior conviction for battery in Indiana. Additionally, the

defendant testified that he abused alcohol and drugs throughout his life and used

                                          4
drugs up to two and one-half to three years before the date of the current offense.

This was ample evidence to apply enhancement factor (1). See State v. Melissa

Ann Sweat, No. 03C01-9708-CC-00348, slip op. at 6 (Tenn. Crim. App., Knoxville,

Oct. 12, 1998); State v. Algernon Willie Rice, No. 03C01-9707-CR-00252, slip op.

at 7 (Tenn. Crim. App., Knoxville, Aug. 14, 1998).



                                    b. Factor (8)

              The defendant argues enhancement factor (8), a previous history of

unwillingness to comply with the conditions of release in the community, should not

apply to his case because there was no evidence presented at the sentencing

hearing showing he was on probation or any other form of release in the community.

Specifically, the defendant contests application of this factor because no probation

orders were entered as evidence. There was testimony presented at the sentencing

hearing by Ginger Long, the preparer of the defendant’s presentence report. Long

testified she had sent a “record check” to Connersville, Indiana, and in response,

she received a phone call from a probation officer in Connersville regarding the

defendant’s criminal record. The defendant objected to her testimony as hearsay,

but the trial court overruled the objection. Long testified that the probation officer

said the defendant received one year probation on August 5, 1997, following a

Class A misdemeanor battery conviction. Long also testified that the defendant had

charges pending in Indiana on which he had been released on his own

recognizance, a circumstance the defendant confirmed by his own testimony. Long

had not received the defendant’s records from Indiana at the time of sentencing, but

she had confirmed that the records had been sent and received in “Nashville” and

that “Nashville” forwarded them to her on Thursday before the Monday on which the

sentencing hearing was held.



              Although the defendant objected to this testimony as hearsay at the

                                          5
sentencing hearing, he does not reiterate that argument in his brief. Instead, the

defendant argues there is no evidence in the record showing the defendant was on

probation at the time of this offense. The state points to Ginger Long’s testimony

as the evidence necessary to prove the defendant was on probation at the time of

the present offense. The trial court allowed Long to testify because it found her

testimony was reliable hearsay.



              The standard of review applicable to the decision to admit evidence

is abuse of discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997); State

v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1980). Pursuant to Tennessee

Code Annotated section 40-35-209(b), reliable hearsay is admissible at the

sentencing hearing if the opposing party has a fair opportunity to rebut the evidence.

Additionally, the evidence must have an indicia of reliability to satisfy due process.

See State v. Taylor, 744 S.W.2d 919, 921 (Tenn. Crim. App. 1987). The defendant

had a fair opportunity to rebut Long’s testimony at the sentencing hearing. Long’s

testimony bears an indicia of reliability because the defendant does not deny that

he was on probation at the time of this offense. See State v. Anthony D. Hines, No.

01C01-9406-CC-00189, slip op. at 6 (Tenn. Crim. App., Nashville, May 25, 1995).

Furthermore, Long reported various details and specifics of the Indiana criminal

record, some of which the defendant himself confirmed.



              We do not wish to signal to prosecutors and presentence investigators

that testimony of the type offered by Long should be routinely tolerated by trial

courts. In fact, in this day of instantaneously transmitting documents by facsimiles,

an oral recitation of a defendant’s criminal record based upon a telephone

conversation should be avoided, especially when the presentence investigation was

ordered 35 days in advance of the hearing as it was in the present case.

Nevertheless, in view of the factors we have cited which indicate the reliability of the

                                           6
hearsay evidence, especially the defendant’s failure to challenge or controvert that

evidence, we find the trial court did not abuse its discretion by admitting Long’s

testimony as reliable hearsay. See State v. Richard Douglas Lowery, No. 03C01-

9604-CC-00146, slip op. at 10-11 (Tenn. Crim. App., Knoxville, May 19, 1997),

perm. app. denied (Tenn. 1998). With Long’s testimony, there is evidence in the

record that the defendant was on probation at the time of this offense.



              However, enhancement factor (8) is not applicable to the present

offense, even though committed during the probationary period. See State v.

Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995) (“commission of the offense

for which a defendant is being sentenced should not make factor (8) applicable”).

Enhancement factor (8) applies when there is a previous history of unwillingness to

comply with the conditions of a sentence involving release into the community. The

trial court may have applied this factor due to the defendant’s admitted drug use

during his probationary period. Drug abuse for which the defendant is not presently

being sentenced could support the application of enhancement factor (8). See

State v. George Blake Kelly, No. 01C01-9610-CC-00448, slip op. at 23 n.9 (Tenn.

Crim. App., Nashville, Oct. 13, 1998) (offenses committed while the defendant was

on probation in close proximity to the offense for which the sentence is being

determined support the application of factor (8)). However, there is no evidence in

the record which supports the trial court’s finding of drug abuse during the

probationary period.1 Therefore, the trial court erred in applying enhancement

factor (8).




       1
          The defendant admitted illegal drug use two and one half to three years
prior to the present offense, but not during the probationary period. Additionally,
the defendant admitted taking Valium prior to the current offense, however, there
is no evidence regarding how the defendant obtained the Valium. We cannot
conclude that he obtained Valium illegally.

                                         7
                                   c. Factor (13)

             The third enhancement factor the defendant contests is enhancement

factor (13), committing a felony while on bail from a prior felony if ultimately

convicted of the prior felony. At the time of sentencing, the defendant’s criminal

record only consisted of the battery conviction which is a Class A misdemeanor in

Indiana. For enhancement factor (13) to apply, the defendant must be on a form

of release from a prior felony. See Tenn. Code Ann. § 40-35-114(13) (1997). Eight

days prior to sentencing, the defendant was released on his own recognizance from

an Indiana jail. There were pending charges which could be felonies, but there was

no proof of a conviction on any of the charges. The state concedes the trial court

erred in applying this factor. We find enhancement factor (13) was inapplicable to

the defendant in this case.



             The trial court erred in applying two enhancement factors, but three

enhancement factors were properly applied. We accord the three enhancement

factors substantial weight. We have considered and apply the mitigating factors

found by the trial court. We conclude that a high-range, but less-than-maximum

sentence is appropriate and set the sentence at five years.



                              b. Alternative Sentencing

             Next, the defendant contends he should have been granted some

form of alternative sentencing. A defendant “who is an especially mitigated or

standard offender convicted of a Class C, D, or E felony is presumed to be a

favorable candidate for alternative sentencing options in the absence of evidence

to contrary.” Tenn. Code Ann. § 40-35-102(6) (1997). Thus, a defendant who

meets the criteria of section 40-35-102(6) is presumed eligible for alternative

sentencing unless sufficient evidence rebuts the presumption. However, offenders

who meet the criteria are not automatically entitled to such relief because

                                         8
sentencing issues should be determined by the facts and circumstances presented

in each case. State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).



             The defendant, a Range I standard offender, enjoyed the presumption

of favorable candidacy for alternative sentencing for the Class C felony involved in

this case. See Tenn. Code Ann. § 40-35-102(6) (1997). However, he is not eligible

for sentencing pursuant to the Community Corrections program because he

committed an aggravated assault. See Tenn. Code Ann. § 40-36-106(a)(2)-(4)

(1997).



             There is sufficient evidence in the record to rebut the presumption of

the defendant’s candidacy for alternative sentencing. The defendant was on

probation when he committed the current offense. Therefore, the record supports

a finding that confinement was necessary because “measures less restrictive than

confinement have . . . recently been applied unsuccessfully to the defendant.”

Tenn. Code Ann. § 40-35-103(1)(C) (1997). We find the evidence supports a

sentence of total confinement.



              The sentence imposed by the trial court is affirmed.



                                          ________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
JOHN EVERETT WILLIAMS, JUDGE



_______________________________

                                         9
ALAN E. GLENN, JUDGE




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