         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON
                                                  FILED
                            JUNE 1998 SESSION
                                                     July 28, 1998

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )             Appellate C ourt Clerk
                                    )    NO. 02C01-9710-CC-00421
      Appellee,                     )
                                    )    CARROLL COUNTY
VS.                                 )
                                    )    HON. JULIAN P. GUINN,
DIRK BRADEN CARTER,                 )    JUDGE
                                    )
      Appellant.                    )    (Aggravated Assault - Sentencing)



FOR THE APPELLANT:                       FOR THE APPELLEE:

C. DAVID JONES                           JOHN KNOX WALKUP
P.O. Box 707                             Attorney General and Reporter
150 W. Main Street
Huntingdon, TN 38344-0707                MARVIN E. CLEMENTS, JR.
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         G. ROBERT RADFORD
                                         District Attorney General

                                         ELEANOR CAHILL
                                         Assistant District Attorney General
                                         111 Church Street
                                         P.O. Box 686
                                         Huntingdon, TN 38344-0686




OPINION FILED:



AFFIRMED AS MODIFIED



JOE G. RILEY,
JUDGE
                                         OPINION



       The defendant, Dirk Braden Carter, was convicted by a Carroll County jury

of aggravated assault, a Class C felony. He received a sentence of three (3) years

as a Range I, standard offender. The trial court ordered that defendant serve six

(6) months in confinement, with the remainder of defendant’s sentence to be served

on supervised probation.           The trial court further ordered that defendant be

prohibited from entering the State of Tennessee during his probationary period. On

appeal, defendant claims that the trial court erred in (1) failing to sentence him as

an especially mitigated offender, and (2) ordering that defendant serve six (6)

months in confinement.            We find that the trial court erroneously prohibited

defendant from returning to Tennessee during his probationary period; therefore,

the judgment is modified to delete this provision. In all other respects, the judgment

of the trial court is affirmed.



                                          FACTS



       On May 3, 1996, defendant, a college student living in Texas, was visiting his

father in Carroll County. That evening defendant joined his father at the Carroll

Lake Country Club. Defendant’s father, Harold “Chick” Carter, frequented the bar

and was a known alcoholic. As the evening progressed, “Chick” Carter became

increasingly intoxicated and made rude and derogatory comments towards others

in the bar.

       “Chick” began cursing Todd Walker and Kelly Hastings, patrons of the bar.

The victim, Richard Glen Burns, was sitting with Walker and Hastings at that time

and walked over to defendant and his father to try and calm “Chick” Carter. Burns

placed his hand on the back of “Chick” Carter’s chair and asked that he refrain from

using such language. Defendant then stated, “keep your hands off my father.”

Burns told defendant that he did not want any trouble. Defendant then grabbed

Burns and bit down on Burns’ nose, biting off part of his nose. Defendant and his



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father were then thrown out of the Carroll Lake Country Club, and defendant was

subsequently arrested. Burns’ injury required extensive medical treatment.

       At the time of trial, defendant was twenty-eight (28) years old and had no

prior criminal convictions. He was receiving counseling because of his father’s

alcoholism and as a result of the present offense.

       In determining defendant’s sentence, the trial court found one enhancement

factor applicable, that the personal injuries inflicted upon the victim were particularly

great. Tenn. Code Ann. § 40-35-114(6). The trial court found no specific statutory

mitigating factors to apply, but found in mitigation that defendant had no prior

record, was undergoing counseling, was attending college, was working and had

strong family support. See Tenn. Code Ann. § 40-35-113(13). The trial court,

therefore, imposed the minimum sentence of three (3) years as a Range I,

standard offender.     The trial court next considered alternative sentencing as

required by statute. However, the trial court found that a period of incarceration was

warranted considering the inexplicable and extreme nature of the offense

committed.     As a result, defendant was ordered to serve six (6) months in

confinement, with the remainder of his sentence to be served on supervised

probation. Defendant now brings this appeal as of right.



                              STANDARD OF REVIEW



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.



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In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.



                     ESPECIALLY MITIGATED OFFENDER



       In his first issue, defendant contends that the trial court erred in sentencing

him as a standard offender. He argues that the trial court erroneously applied Tenn.

Code Ann. § 40-35-114(6), that the victim’s injuries were particularly great, because

this enhancement factor is inherent in the offense of aggravated assault. Therefore,

because the trial court found applicable mitigating factors, he insists that the trial

court abused its discretion in failing to sentence him as an especially mitigated

offender.

       Tenn. Code Ann. § 40-35-109(a) provides that a trial court ”may find the

defendant is an especially mitigated offender, if: (1) [t]he defendant has no prior

felony convictions; and (2) [t]he court finds mitigating, but no enhancement factors.”

However, whether a defendant is sentenced as an especially mitigated offender is

a determination that rests within the sound discretion of the trial court. State v.

Hicks, 868 S.W.2d 729, 730-31 (Tenn. Crim. App. 1993); State v. Braden, 867

S.W.2d 750, 762-63 (Tenn. Crim. App. 1993). This provision is not mandatory.

Braden, 867 S.W.2d at 762-63. Indeed, especially mitigated status is reserved for

“instances where the trial judge may desire to depart from even the minimum

sentence for a Range I offender and impose lesser penalties.” Tenn. Code Ann. §

40-35-109, Sentencing Commission Comments.

       The state concedes that the trial court misapplied Tenn. Code Ann. § 40-35-

114(6), as it is inherent in the offense of aggravated assault as a result of serious

bodily injury. We agree. See State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994).



                                          4
However, upon our de novo review of the record, we find that another enhancement

factor would apply in this case. Defendant admitted in the pre-sentence report that

he had used marijuana in the past, evidencing past criminal behavior. See Tenn.

Code Ann. § 40-35-114(1). While this factor would be given little weight to enhance

defendant’s sentence, it is an enhancement factor and is certainly relevant in

determining whether a defendant should be sentenced as an especially mitigated

offender.

       Furthermore, considering the nature, facts and circumstances of the offense,

we find that the trial court did not abuse its discretion in refusing to sentence

defendant as an especially mitigated offender.

      This issue is without merit.



                                     PROBATION



      Defendant next argues that the trial court erred in failing to grant total

probation. He claims that a six (6) month period of incarceration is unwarranted in

this case due to his lack of prior record, his good work and social history and his

favorable potential for rehabilitation. He, therefore, contends that the trial court

should have granted full probation or, in the alternative, a lesser period of

confinement.

                                        A.

       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 in the

absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court

must presume that a defendant sentenced to eight years or less and who is not an

offender for whom incarceration is a priority is subject to alternative sentencing.

State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further

presumed that a sentence other than incarceration would result in successful

rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.

However, although a defendant may be presumed to be a favorable candidate for


                                         5
alternative sentencing, the defendant has the burden of establishing suitability for

total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see

Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically

considered, “the defendant is not automatically entitled to probation as a matter of

law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State

v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).

       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); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Grigsby, 957 S.W.2d

541, 545 (Tenn. Crim. App. 1997).

                                         B.

       In denying a sentence of total probation, the trial court noted that defendant

committed a brutal act with little provocation or explanation.       The trial court

determined that the best interest of the public and the defendant would not be

served by a sentence of full probation. The trial court then concluded that an

incarceration period of six (6) months was necessary to avoid depreciating the

seriousness of the offense.

       At the time of the sentencing hearing, the victim had undergone five

surgeries as a result of his injury. Because the initial reattachment of his nose was

unsuccessful, the victim’s nose is disfigured. He is also suffering from emotional



                                         6
trauma due to the notoriety of this incident in his hometown.

       Alternative sentencing may be denied solely on the nature of the offense if

the offense is “especially violent, horrifying, shocking, reprehensible, offensive, or

otherwise of an excessive or exaggerated degree,” and the nature of the offense

outweighs all factors favoring a sentence other than confinement. State v. Leggs,

955 S.W.2d 845, 851 (Tenn. Crim. App. 1997) (citations omitted).

       The record before this Court supports the trial court’s decision that a six (6)

month period of incarceration was warranted to avoid depreciating the seriousness

of the offense. The defendant bit off a portion of the victim’s nose in response to

seemingly little to no provocation. We find this offense to be reprehensible and of

an excessive degree to justify a limited period of incarceration. Defendant has not

met his burden of establishing that he is entitled to total probation.

       This issue is without merit.



                                         C.

       This Court notes that the trial court ordered that defendant would be

prohibited from returning to the State of Tennessee during his probationary period.

We find this to be an inappropriate condition of probation, especially considering

defendant’s family ties in Tennessee.         We, therefore, order that defendant’s

judgment be modified to delete this provision as a condition of probation.



                                   CONCLUSION



       We find that the trial court did not abuse its discretion in sentencing

defendant as a Range I, standard offender. Moreover, an incarceration period of

six (6) months is supported by the record. Accordingly, the judgment of the trial

court is affirmed as modified to delete the provision prohibiting defendant from

returning to Tennessee.




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                             JOE G. RILEY, JUDGE



CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID H. WELLES, JUDGE




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