 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT KNOXVILLE                                  FILED
                                                                    November 12, 1999
                  OCTOBER SESSION, 1999
                                                                    Cecil Crowson, Jr.
                                                                   Appellate Court Clerk



STATE OF TENNESSEE,            *
                               *       No. 03C01-9901-CC-00011
      Appellee,                *
                               *       ANDERSON COUNTY
vs.                            *
                               *       Hon. JAMES B. SCOTT, JR., Judge
DAVID LEE HURST,          *
                               *       (Sentencing)
      Appellant.               *



For the Appellant:                     For the Appellee:

Leslie Hunt                            Paul G. Summers
139 North Main Street                  Attorney General and Reporter
Clinton, TN 37716
                                       Clinton J. Morgan
                                       Assistant Attorney General
                                       Criminal Justice Division
                                       425 Fifth Avenue North
                                       2d Floor, Cordell Hull Building
                                       Nashville, TN 37243-0493


                                       James N. Ramsey
                                       District Attorney General
                                       Jan Hicks
                                       Asst. District Attorney General
                                       127 Anderson County Courthouse
                                       100 North Main Street
                                       Clinton, TN 37716


OPINION FILED:

AFFIRMED


David G. Hayes, Judge
                                               OPINION



        The appellant, David Lee Hurst, appeals the sentencing decision of the
Anderson County Criminal Court following his guilty plea to Class D felony child

abuse. In accordance with the plea agreement, the appellant received a two year

sentence with the determination of probation to be submitted to the trial court.1 At
the sentencing hearing, the trial court denied probation and ordered confinement in

the Department of Correction. The sole issue on appeal is whether the trial court

erred by denying the appellant total probation.


        Following review, we affirm.



                                     SENTENCING HEARING

        The conviction stems from the physical abuse of the appellant’s five year old

stepson in January of 1998. At the sentencing hearing in November of 1998,

Detective Penny Baker of the Anderson County Sheriff’s Department testified that

the child exhibited injuries to both ears, bruising on the inside and outside of his

ears, “faint” bruises to the side of the face, numerous bruises to one arm, “faint”

bruising on his back, an abrasion to his neck, a severe bruise to the top of his foot, a

bruise to the back of the head, and a severe bruise to his penis. The presentence
report characterized the victim’s injuries as being “bruised from his ears to his toes

in various stages of healing.” The appellant explained to Baker that the bruising to

the penis was the result of his kicking the child and the rest were the result of
“playing rough” with the child. Detective Baker testified that the appellant initially

was untruthful and later changing his story, attempted “to make light” of the severity

of his actions. The presentence report indicates that the appellant “beat (the victim)
with a board, stomped his foot,” and “beat him about the head and face.” The

appellant is six feet and six inches tall and weighs two hundred pounds; the victim

weighs forty-six pounds.



         The appellant has two prior felony convictions from 1983 when he was


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      The transcript of the guilty plea hearing is not included in the record. Thus, the specific terms
of the plea agreement are unknown. At the sentencing hearing and on appeal the appellant
argues only his entitlement to total probation. For these reasons, appellate review is limited to the
senten cing altern ative of pro bation.

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nineteen years old for third degree burglary and grand larceny, both arising from the

same incident. He received a three year sentence for each offense and was placed

on unsupervised probation. The appellant admits to recent marijuana use. The
probation officer testified that in preparing the presentence report, he believed the

appellant purposefully misadvised him that the prior theft conviction was committed

as a juvenile when in actuality it was an offense committed when the appellant was
nineteen years old.



       The thirty-four year old appellant testified that he was currently employed by
ABC Transport where his duties involve moving and setting up mobile homes. He

explained that he experiences disabilities from bone deterioration in his spine and

from other medical problems. He currently resides with his mother while he and his
wife are in the process of getting a divorce. Although he admitted to problems

controlling his anger, he denied that any of the child’s injuries were a result of his

anger. He advised that he “had no desire for any mental health treatment.” He

explained that he told the probation officer that his crime was committed as a

juvenile because he could not remember the dates and times as a result of a head

injury from which he had to learn to write and read again. On cross-examination,

the appellant denied the accusation by the child that he hit him with a board.



       At the conclusion of the hearing, the trial court denied the appellant’s request

for probation.



                                      PROBATION

       The sole issue on appeal is whether the trial court properly denied probation.

   Although the appellant requests that we conduct a de novo review of his
sentence, which requires an examination of the “nature and characteristics of the

criminal conduct involved,” Tenn. Code Ann. § 40-35-210(b)(4) (1997), we are

precluded from doing so because the record is void of the guilty plea transcript. We

have repeatedly held that failure to include the transcript of the guilty plea hearings
in the record prohibits this court from conducting a meaningful de novo review.



       If the appellate record is inadequate, the reviewing court must presume that

the trial judge ruled correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim.

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App. 1993). The obligation of preparing a complete and adequate record for the

issues presented on appeal rests upon the appealing party. See Tenn. R. App. P.

24(b). For this reason, this issue is waived. However, we are able to glean from the
record the nature and circumstances of the offense through the testimony of

Detective Baker and the presentence report. See Tenn. Code Ann. § 40-35-

210(b)(1) and (2). Within this limitation, we elect to address the issue.


       In this case, the trial court denied probation based upon the circumstances of

the offense and the appellant’s prior criminal history:
       He [appellant] was in unsupervised probation disposition if I remember
       correctly before. He has admitted to smoking marijuana. This was a
       five-year old child. Here we have a person that looks to be about six
       foot, five, or somewhere around there that comes to this courtroom . . .
       fully accountable for his conduct. This is not just one blow. . . two
       blows. . . [or] three blows. And I . . . feel like that even though the
       defendant comes here and says it wasn’t out of temper, there appears
       to be that if it wasn’t out of temper, such poor judgment I am not sure
       we could trust you out here with other young individuals. This child
       has been not only bruised and abused, but it will follow that child
       through life. . . .
               I don’t think you are a proper subject for probation based on the
       type of crime committed here and the past. I find that you are not
       suitable for probation. . . . Had you not had all of these problems
       before, you come here the first time. Had this condition of this child
       reflected something other, you say you have maybe some lapse of
       memory. Well, it may become very convenient when it comes to this
       type of conduct. I just find that this kind of conduct is reprehensible. It
       should be discouraged and not only that, but you have a past history in
       coming here - both as a juvenile and as an adult - and you admitted
       that you had been smoking marijuana. So for those reasons, the court
       denied you probation.



       First, the appellant argues that the presumption of correctness does not apply

to the trial court’s decision because it did not consider the appropriate factors for

denying probation. Second, he contends that the trial court erred by placing the
burden of probation on the appellant because he was entitled to the presumption of

an alternative sentence.



       This court’s review of the length, range, or manner of service of a sentence is
de novo with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. § 40-35-401(d) (1997). See also State v. Bingham, 910 S.W.2d

448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is
only applicable if the record demonstrates that the trial court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).


                                           4
The record reflects that the trial court considered the relevant principles of

sentencing; accordingly, the presumption is afforded.



       The appellant’s argument that “the trial court erred when it held that Hurst

[appellant] had the burden of demonstrating that probation was appropriate” is

misplaced. It is settled law that whereas the State has the burden of overcoming
the defendant’s entitlement to the statutory presumption of an alternative sentence,

“[c]onversely, the defendant has the burden of establishing suitability for full

probation, even if the defendant is entitled to the statutory presumption of alternative
sentencing.” Bingham, 910 S.W.2d at 455-456 (emphasis added). When deciding

suitability for probation, although not controlling, the sentencing court should use the

following criteria:
       (1) “the nature and [circumstances] of the criminal conduct involved,”
       Tenn. Code Ann. § 40-35-210(b)(4);
       (2) the defendant’s potential or lack of potential for rehabilitation, Tenn.
       Code Ann. § 40-35-103(5);
       (3) whether a sentence of full probation would unduly depreciate the
       seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and
       (4) whether a sentence other than full probation would provide an
       effective deterrent to others likely to commit similar crimes, Tenn.
       Code Ann. § 40-35-103(1)(B).

See Bingham, 910 S.W.2d at 456. Denial of probation may be based solely upon

the circumstances of the offense when they are of such a nature as to outweigh all

other factors favoring probation. State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn.
Crim. App. 1991).



       The facts and circumstances of this case are clearly aggravated. The record
reveals a callous indifference by the appellant for the gravity of this criminal offense

in which the child experienced countless bruises to his entire body and even severe

bruising to his genitalia. The appellant repeatedly stated that the abuse to the child
was only the result of “play fighting too rough” and “hit[ting] too hard or something”

indicating further a lack of repentance and remorse. See State v. Pierson, 678

S.W.2d 905 (Tenn. 1984) (finding lack of remorse sufficient basis to deny

probation). Moreover, the trial court noted and the record supports the appellant’s
lack of candor which reflects negatively upon the appellant’s potential for

rehabilitation and is a sufficient basis for denying total probation. See State v.

Dowdy, 894 S.W.2d 301, 305-306 (Tenn. Crim. App. 1994); Tenn. Code Ann. § 40-

35-103(5).

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       Upon de novo review and in accord with the presumption of correctness, we

are unable to conclude that the trial court erred in determining that the appellant had

not met his burden of establishing suitability for full probation.


       Accordingly, the judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge


CONCUR:




_________________________________________
GARY R. WADE, Judge


_________________________________________
DAVID H. WELLES, Judge




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