             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                              July 2000 Session

                     STATE OF TENNESSEE v. STEJANA HOLDER

                   Direct Appeal from the Criminal Court for Davidson County
                          No. 99-A-66, J. Randall Wyatt, Jr., Trial Judge



                      No. M1999-02470-CCA-R3-CD - Filed September 8, 2000


The appellant, Stejana S. Holder, was convicted of one count of aggravated assault, one count of
resisting arrest, and one count of disorderly conduct. The Davidson County Criminal Court imposed
an effective sentence of three years to serve sixty days in the workhouse followed by two years
probation. On appeal, the appellant alleges that the trial court erred by denying total probation. Upon
review, we find no error and affirm the sentence of the Davidson County Criminal Court.

                  Tenn. R. App. P. 3; Judgment of the Criminal Court affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL , J. and
NORMA MCGEE OGLE , J. joined.

Cynthia M. Fort, Nashville, Tennessee (on appeal) and Glenn R. Funk, Nashville, Tennessee (at
trial) for the appellant, Stejana Holder.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T.
Ryan, Assistant Attorney General, Victor S. (Torry) Johnson, III, District Attorney General, and
Phil Wehby, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                    OPINION

       The appellant, Stejana S. Holder, was indicted by the Davidson County Criminal Court on
two counts of Class C aggravated assault, one count of resisting arrest, and one count of disorderly
conduct. After a bench trial, the trial court found the appellant guilty on all counts.1 The appellant
was subsequently sentenced to three years, suspended, with sixty days to serve in the county
workhouse, followed by two years probation on the aggravated assault count. The appellant was also
placed on six months probation for resisting arrest and thirty days probation for the disorderly


         1
           Count I, which charged aggravated assault involving serious bodily injury, and Count II charging aggravated
assault by use o f a deadly we apon, a ve hicle, were m erged into C ount I by the trial c ourt.
conduct charge.2 All sentences were to run concurrently. Aggrieved by the trial court’s decision,
the appellant appeals to this Court asserting that the trial court erred by imposing an excessive
sentence. Specifically, she seeks “relief in the form of a sentence of probation or other appropriate
sentence alternative to her sixty (60) day sentence to serve”. After review, this Court finds that the
trial court properly sentenced the appellant. Accordingly, the judgment of the Davidson County
Criminal Court is affirmed.

                                                 Background

         On June 23, 1998, Eunice Burks, a security officer at Tennessee State University, was
checking parking decals in one of the school’s parking lots when the appellant, a student at the
university, parked in a lot designated for employees. The appellant’s vehicle had no parking decal.
Burks told the appellant that she could not park in the lot without the appropriate decal and asked
her to move her car. The appellant replied, “Well, what are you going to do about it?” and walked
off stating, “Give me a ticket.” Burks then informed the appellant that her vehicle would be towed
if she did not move it. The appellant continued to ignore Burks and went to class.

        Burks called for a tow truck. While waiting for the tow truck to arrive, Karen Hodge, a
police officer for Tennessee State University, pulled up because she had heard the call and was
nearby. Burks explained the situation to Hodge, who said she would run the vehicle’s plates to
determine the name of the owner. As Burks was writing out a ticket, the appellant reappeared.
Hodge asked the appellant for her student identification and driver’s license. The appellant stated
that she had neither. Hodge informed the appellant that she could not “allow [her] to move [the]
vehicle without seeing some proper identification,” but the appellant proceeded to get into her car
anyway.

         Hodge was standing behind the appellant’s vehicle, off to one side, calling dispatch to run
her tag number. The appellant started the vehicle and Burks yelled, “If you hit her, you’re going to
jail.” The appellant put the car in reverse and hit Hodge, causing her to stumble. The appellant then
pulled forward, put the car in reverse again, and hit Hodge the second time, injuring her right knee.
Hodge testified that the appellant then “stuck her head out and said that if I didn’t move she was
going to hit me the third time, because she had somewhere important to go and then she sped off.”
Hodge got into her patrol car, attempting to chase the appellant, but lost her on the interstate. Hodge
then returned to the scene, picked up Burks, and drove to the office to report the incident. Hodge
testified that she began feeling a burning sensation and noticed abrasions on her leg. She then went
to the Emergency Room.

        The next day, Tennessee State University police officers, Carlton Bowen and Jacqueline
Bumpas, called the appellant out of class to serve an arrest warrant on her. The appellant became
belligerent, cursed at the officers, and refused to let them search her. Because of her physical
resistance, the officers handcuffed the appellant. The officers took the appellant to see Dean


       2
           The appellant was also ordered to undergo anger management counseling.

                                                       -2-
Lockridge, the Associate Vice President of Student Affairs who handles disciplinary sanctions at the
university. The Dean asked the appellant whether she would have the same attitude if it had been
a metro police officer in Davidson County that had asked her to move. The appellant replied that
she would have reacted in the same manner regardless.

       As a result of the accident, Hodge has been diagnosed with Reflex Sympathetic Dystrophy,
which is trauma to the nervous system of the leg. She suffers from severe swelling in the leg and
has been unable to return to work. Presently, there is no cure for this disorder. At trial, the appellant
admitted that she told the officer to move, but denied knowledge of hitting her. The appellant also
admitted to writing a letter of apology to Hodge, but stated that she only wrote the letter because the
university required her to do so as a condition of graduation and that she was not sorry about the
incident.

                                     I. Length of the Sentence

        The appellant contends that the sentence “imposed was excessive” and asks this Court to
grant her “relief in the form of a sentence of probation or other appropriate sentence alternative to
her sixty (60) day sentence to serve.” Upon review, we find the sentence imposed by the trial court
to be proper. Therefore, we affirm the judgment of the Davidson County Criminal Court.

        The appellant bears the burden of establishing that the sentence imposed by the trial court
was erroneous. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Boggs, 932 S.W.2d 467,
473 (Tenn.Crim.App. 1996); State v. Fletcher, 805 S.W.2d 785, 786 (Tenn.Crim.App. 1991).
Appellate review of a sentence is de novo, with a presumption that the determinations made by the
court from which the appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d); Ashby, 823
S.W.2d at 169. In determining whether the appellant has carried the burden, this Court must
consider the evidence received at the trial and the sentencing hearing, the presentence report, the
principles of sentencing, the arguments of counsel, the nature and characteristics of the offenses,
existing mitigating and enhancing factors, statements made by the offender, and the potential for
rehabilitation. Ashby, 823 S.W.2d at 169; Tenn. Code Ann. § 40-35-210.

        The appellant is twenty-three years old and is a graduate of Tennessee State University with
a degree in mathematics. Her prior criminal history reflects two misdemeanor arrests for assault and
drugs. The assault charge was retired following completion of a diversion program. Following her
conviction for drug possession, she was granted probation. In the present case, the appellant was
convicted of aggravated assault, a class C felony. See Tenn. Code Ann. § 39-13-102. Because the
appellant was convicted of a class C felony, she is entitled to the presumption that she is a favorable
candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6). Accordingly, the trial
court imposed a sentence of split confinement, which is listed as a sentencing alternative in Tenn.
Code Ann. § 40-35-104(4). Therefore, the trial court properly applied the statutory presumption
under Tenn. Code Ann. § 40-35-102(6).




                                                  -3-
        The appellant, in effect, argues that the trial court erred by not sentencing her to full
probation. “The determination of whether the appellant is entitled to an alternative sentence and
whether the appellant is entitled to full probation are different inquires.” State v. Boggs, 932 S.W.2d
467, 477 (Tenn.Crim.App. 1996). Where a defendant is entitled to the statutory presumption of
alternative sentencing, the State has the burden of overcoming the presumption with evidence to the
contrary. State v. Bingham, 910 S.W.2d 448, 455 (Tenn.Crim.App. 1995). Conversely, the
defendant has the burden of establishing her suitability for total probation, even if the appellant is
entitled to the statutory presumption of alternative sentencing. Id.; Boggs, 932 S.W.2d at 477. To
meet the burden of establishing suitability for full probation, the defendant must demonstrate that
probation will “subserve the ends of justice and the best interest of both the public and the
defendant.” Id. at 456.

        In determining a defendant’s suitability for probation, the sentencing court should consider
(1) the nature and circumstances of the conduct involved; (2) the defendant’s potential or lack of
potential for rehabilitation, including the risk that during the period of probation the defendant will
commit another crime; (3) whether a sentence of full probation would unduly depreciate the
seriousness of the offense; and (4) whether a sentence other than full probation would provide an
effective deterrent to others likely to commit similar crimes. Tenn. Code Ann. §§ 40-35-210(b)(4),
-103(5), -103(1)(B); see also Bingham, 910 S.W.2d at 456.

        At sentencing, the appellant offered the testimony of three witnesses. The first witness,
Susan Sims, stated that it was out of character for the defendant to be arrogant, but that she did “have
an experience where [the appellant] was disrespectful to authority.” The second witness, Calvin
Peters, described the appellant as a role model, a team player, and never disrespectful, or arrogant.
The third witness, Morris Fitzgerald, testified that the appellant was a leader and stated that he had
never known her to be disrespectful to authority.

         The trial court ultimately concluded that the appellant had shown no remorse for the incident,
other than a meager “I’m sorry” during sentencing when she began to realize the severity of the
proceedings. While the trial court recognized that the appellant was an intelligent young lady with
a bright future and commended the witnesses who testified on her behalf, the court indicated that the
appellant had never accepted responsibility for her actions and stated, “she still thinks that what the
officer did is what caused the problem, not her arrogance or disrespect or whatever it was for them.”
The trial judge further stated that he felt the appellant “should serve a short period of time in jail
where [she could] reflect on exactly what [she] did.” Lastly, the trial court concluded that the period
of jail-time would serve as a deterrence to similar behavior by the appellant in the future.

        Upon review, we find the trial court properly imposed a sentence of split confinement. “The
potential or lack of potential for the rehabilitation or treatment of the defendant should be considered
in determining the sentence alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-
103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn.Crim.App. 1994). The record makes obvious
the lack of remorse on the part of the appellant. It is also readily apparent from the record that the
appellant has accepted no responsibility for the incidents which occurred. “We have held that a


                                                  -4-
defendant’s credibility and willingness to accept responsibility for the offense are circumstances
relevant to determining his rehabilitation potential.” Dowdy, 894 S.W.2d at 306; see also State v.
Anderson, 857 S.W.2d 571, 574 (Tenn.Crim.App. 1992). Moreover, the injury inflicted upon Hodge
is permanent and has left her unable to work or care for her two children. It is clear from the record
before us that a sentence of full probation would depreciate the seriousness of the crime the appellant
committed. The appellant showed a callous indifference towards both the officers issuing the ticket
and the officers who served the arrest warrant. Accordingly, the appellant’s actions were of an
excessive degree and are sufficiently reprehensible to deny full probation.


                                          CONCLUSION

       Upon de novo review and in accord with the presumption of correctness, we are unable to
conclude that the trial court erred in denying the appellant full probation and sentencing her to split
confinement. The appellant did not meet her burden to establish that she was suitable for full
probation. Finding the sentencing decision justified, the judgment of the Davidson County Criminal
Court is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -5-
