         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 14, 2001 Session

          STATE OF TENNESSEE v. MICHAEL T. MEGHREBLIAN

                    Appeal from the Circuit Court for Williamson County
                         No. I-998-315    Donald P. Harris, Judge



                  No. M2000-02444-CCA-R3-CD - Filed November 16, 2001


The defendant, Michael T. Meghreblian, is serving a seven and one-half year sentence in the
Department of Correction as a result of his Williamson County Circuit Court conviction of
aggravated assault. On appeal, he complains that the trial court erred (1) in determining the length
of his Range II sentence and (2) in denying any form of alternative sentence. Because the record
supports the trial court’s determinations, we affirm.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
JOE G. RILEY, JJ., joined.

J. Robin McKinney, Jr., Nashville, Tennessee, for the Appellant, Michael T. Meghreblian.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William Edward Gibson, District Attorney General; Derek K. Smith, Assistant District Attorney
General; and Elizabeth K. Ryan, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                             OPINION

                 A Williamson County grand jury indicted the defendant for aggravated child abuse,
and the defendant entered a negotiated plea of guilty to aggravated assault. He agreed to be
classified as a Range II offender even though his lack of a prior criminal record would have qualified
him for Range I treatment. The plea was otherwise “open,” and the parties deferred to the trial court
to determine the length and the manner of service of the sentence. After a sentencing hearing, the
trial court imposed a sentence of seven and one-half years to be served in confinement.

               We glean our knowledge of the circumstances of the conviction offense from the
testimony of witnesses during the sentencing hearing. The state’s evidence showed that, on a day
in June, 1998, the defendant was keeping his six-year-old nephew, Austin, the victim in this case.
Also present in the defendant’s home was his young son. In the afternoon, Austin’s mother picked
up Austin, who complained to her that he had stomach pains. Within a short time, Austin began
having vomiting spells that persisted for a couple of days and culminated in his mother taking him
to the hospital. Ultimately, he was diagnosed as having a “baseball-sized” hematoma in the
intestinal area. Because the injury was the result of a blunt-force trauma, the attending medical staff
notified law enforcement officials of possible child abuse. Upon being questioned, Austin stated that
the defendant became upset because Austin “wasn’t minding” and that the defendant punched him.

                The defendant’s ex-wife testified that when she asked the defendant if he had
assaulted Austin, he was evasive and would neither admit nor deny the assault. Although the
defendant had held the same job for fourteen years, he lost his job in 1998 due to his use of cocaine
and his refusal to submit to his employer’s drug test. During their marriage, the defendant sold some
of his wife’s jewelry to raise cash for buying cocaine. At the time of the sentencing hearing, the
defendant was not employed and was approximately $5,000 in arrears in child support payments.

               The defendant testified at the sentencing hearing that he became “stressed out” after
working for several years in the plumbing supply business and began drinking alcohol and taking
drugs. He maintained, however, that he was not under the influence of alcohol or drugs on the
afternoon that Austin was injured.

               On that afternoon, he placed Austin and his son in a bedroom to watch television
while he took a shower. When he returned to the room, he discovered that the boys were wearing
“capes” and playing “Power Rangers.” As he entered the room, his son jumped from the bed onto
Austin, who was lying on his back in the floor. The defendant surmised that this impact caused
Austin’s injuries and denied that he had assaulted Austin in any way. When asked why he had not
previously given this account of the injury, the defendant said he was scared.

                The defendant testified that he was arrested for the aggravated child abuse charge in
late 1998. After the arrest, he enrolled in a structured, residential, rehabilitation program called
Hope House, but Hope House ejected him from the program when, during a holiday pass, the
defendant consumed alcoholic beverages. The defendant then spent several weeks as a cook with
the Salvation Army. Afterward he rejoined Hope House, where he resided at the time of the
sentencing hearing. Since his arrest in this case, the defendant has not been gainfully employed,
except for a brief period of time. He explained that the program at Hope House is very structured
and does not permit the residents to work. He admitted that he is delinquent in paying child support
but vowed that, when his Hope House program ended, he would undertake two jobs as a means of
paying his arrearage.

                Although the defendant had received no convictions prior to his June, 1998 assault
of Austin Brown, he thereafter acquired within a short period of time two convictions for driving
under the influence (DUI). Also, the presentence report showed that, in the second DUI case, the
defendant’s first DUI probation had been revoked. The defendant’s counsel questioned the accuracy
of the revocation report but offered no proof to counter it.

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                When a defendant appeals a sentence, the reviewing court conducts 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. Fields, 40 S.W.3d 435, 439 (Tenn. 2001); State v. Hooper, 29 S.W.3d 1,
5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the
sentence is improper is upon the defendant. Fields, 40 S.W.3d at 439. In the event the record fails
to demonstrate the required consideration by the trial court, review of the sentence is purely de novo.
Ashby, 823 S.W.2d at 169. 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 our independent judgment on the question might differ. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                 An appropriate determination of the specific sentence and the propriety of sentencing
alternatives is reached 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); 40-35-103(5) (1997); see Fields,
40 S.W.3d at 439.

                The record in this case reflects that the trial court properly considered and followed
the sentencing principles. Accordingly, the trial court’s determination is entitled to the presumption
of correctness.

                Aggravated assault as committed by the defendant is a Class C felony, Tenn. Code
Ann. § 39-13-102 (Supp. 2000), for which the minimum Range II sentence is six years and the
maximum is ten years. Id. § 40-35-112(b) (1997). The trial court applied sentencing enhancement
factors (1), that the defendant had a previous history of criminal behavior, and (4), that the victim
was particularly vulnerable because of age, see Tenn. Code Ann. § 40-35-114(1), (4) (Supp. 2000),
to fix the sentence at seven and one-half years. It denied probation or any other form of alternative
sentencing because it determined that the defendant is a poor candidate for rehabilitation. The trial
court based this determination upon its findings that the defendant’s account of Austin’s injury was
unbelievable and, in fact, untrue, and upon the defendant’s failure to responsibly provide for the
needs of his family.

               First, we examine the length of the sentence. Although the defendant does not per
se challenge the use of enhancement factors (1) and (4), we note that, at seven and one-half years,
the sentence fell in the lower half of the six-to-ten-year range. We hold that this sentence is
supported by properly applied enhancement factors (1) and (4), and these factors were entitled to
moderate to significant weight. The trial court based its finding of a “previous history of . . .

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criminal behavior” upon the defendant’s use of cocaine. See Tenn. Code Ann. § 40-35-114(1)
(Supp. 2000). Not only is the application of factor (1) supported by this finding, but the application
of this factor is also supported by his two DUI convictions. See State v. Chad Douglas Poole, No.
02C01-9506-CC-00178, slip op. at 5-6 (Tenn. Crim. App., Jackson, Jan. 31, 1996) (in determining
applicability of enhancement factor (1), sentencing court may consider criminal convictions or
behavior which occurred “prior to the sentencing hearing as constituting a previous history of
criminal convictions or criminal behavior, regardless of whether the convictions or behavior
occurred before or after the criminal conduct under consideration”), aff’d on other grounds, 945
S.W.2d 93 (Tenn. 1997). Thus, factor (1) was properly applied.

                 We also hold that factor (4), that the victim was particularly vulnerable, was properly
applied. Even though proof of age alone may be insufficient to establish particular vulnerability for
purposes of factor (4), see State v. Lewis, 44 S.W.3d 501, 504-05 (Tenn. 2001), the proof in the
present case showed that the victim was not a robust six-year-old; he was solely under the
defendant’s physical control during the day of the assault; he had no ability to summon help while
in the defendant’s home; and he was unwilling or, due to his injuries, unable to explain the nature
of the assault for several days. See id. at 505 (in determining applicability of factor (4), court should
look at whether victim was unable to resist the crime, summon help, or testify at a later date). The
totality of the circumstances support the application of factor (4).

                The defendant urges us to hold that the sentence should have been mitigated because
he made substantial efforts to overcome his drug addiction. See Tenn. Code Ann. § 40-35-113(13)
(1997). During his testimony at the sentencing hearing, however, the defendant stated that he was
not under the influence of an intoxicant or drugs at the time of the assault and that his drug addiction
played no active role in the commission of the offense. Under these circumstances, we believe that
any mitigation effect of his subsequent drug rehabilitation would have been slight and would be
insufficient, compared to the more weighty enhancement factors, to influence any change in the
sentence. We stress that the sentence, as imposed, falls within the lower half of the applicable
range. We find no error in the imposition of this sentence.

              Next, we examine the trial court’s decision to impose incarceration rather than
granting some form of alternative sentence.

                As a Range II offender, the defendant is not presumed to be a favorable candidate for
alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). “As such, the state had no burden
of justifying confinement through demonstrating the presence of any of the considerations upon
which confinement may be based.” State v. Joshua L. Webster, No. E1999-02203-CCA-R3-CD, slip
op. at 3 (Tenn. Crim. App., Knoxville, Dec. 4, 2000).




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               Moreover, having been convicted of aggravated assault, he is ineligible for placement
in a community corrections program.1 See Tenn. Code Ann. § 40-36-106(a)(2) (Supp. 2000). Thus,
any alternative to confinement that could have been considered would have necessarily included
probation, see Tenn. Code Ann. § 40-35-104(c) (1997), and the defendant bore the burden of
establishing that he was entitled to any probation. Joshua L. Webster, slip op. at 3-4. This initial
burden, combined with the post-judgment presumption of correctness of the trial court’s sentence,
equates to a daunting burden on the defendant to show on appeal that he should have been awarded
some measure of probation.

                As noted earlier, the potential for rehabilitation or treatment is one of the factors that
forms the basis for granting sentencing alternatives, particularly probation. See Tenn. Code Ann.
§ 40-35-103(5) (1997); State v. Anderson, 985 S.W.2d 9, 21 (Tenn. Crim. App. 1997). Lack of
candor and credibility are reliable indications of a defendant’s potential for rehabilitation. State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App.
1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); State v. Dowdy, 894
S.W.2d 301, 305-06 (Tenn. Crim. App. 1994). A defendant’s lack of candor to the sentencing court
reflects poorly on the defendant’s rehabilitative potential and thus is a basis to deny probation. State
v. Leggs, 955 S.W.2d 845, 851-52 (Tenn. Crim. App. 1997); State v. Gennoe, 851 S.W.2d 833, 837
(Tenn. Crim. App. 1992).

                In the present case, the trial court specifically found that the defendant was not candid
and truthful and that, therefore, he was a poor candidate for the rehabilitation that alternative
sentencing is designed to engender. The trial judge is in the best position to assess a defendant’s
credibility and potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999). We must defer to the trial court’s determination of demeanor and credibility issues. We hold
that these findings support the trial court’s denial of alternative sentencing.

                  For the reasons explained above, we affirm the judgment of the trial court.


                                                                 ___________________________________
                                                                 JAMES CURWOOD WITT, JR., JUDGE




         1
           The defendant makes no claim that he is a candidate for “special needs” community corrections placement
despite his ineligibility. See Tenn. C ode An n. § 40-3 6-106 (c). Moreover, the record contains insufficient evidence of
a treatable su bstance a buse co ndition to suppor t “special ne eds” plac emen t.

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