           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON            FILED
                         JULY 1997 SESSION         August 15, 1997

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,             )    NO. 02C01-9702-CR-00073
                                )
      Appellee,                 )    SHELBY COUNTY
                                )
VS.                             )    HON. ARTHUR T. BENNETT, JUDGE
                                )
SHANNON W. POTTER,              )    (Sentencing - Denial of Probation)
                                )
      Appellant.                )


FOR THE APPELLANT:                   FOR THE APPELLEE:

JAMES V. BALL                        JOHN KNOX WALKUP
217 Exchange Avenue                  Attorney General and Reporter
Memphis, TN 38105
                                     KENNETH W. RUCKER
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-4351

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     THOMAS D. HENDERSON
                                     PERRY HAYES
                                     Assistant District Attorney General
                                     201 Poplar Avenue, 3rd Floor
                                     Memphis, TN 38103




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION


       Defendant, Shannon W. Potter, was convicted by a Shelby County jury of two

(2) counts of aggravated assault and sentenced to concurrent terms of three (3) years.

The sole issue for our review is whether the trial court erred in denying probation. We

affirm the denial of probation.



                                  TRIAL TESTIMONY



       On March 4, 1994, the defendant and co-defendant were driving around and

passed three (3) young males who were walking. Each young male was wearing a

yarmulke. Alex Katz and Jonathan Wogan, two (2) of the young males, were in the

seventh and eighth grades, respectively. The defendant and co-defendant stopped

and exited their vehicle and approached the juveniles.         Defendant had in his

possession a wooden sword which is used in the martial arts. Defendant referred to

Katz as a “f_ _ _ ing Jew boy.” Without provocation, the defendant struck Katz with

the sword knocking him to the ground. Defendant ordered Katz to get up and then

struck him again with the sword. Defendant, again without provocation, then struck

Wogan in the kidney area. Defendant and the co-defendant returned to the vehicle

and fled.

       Both victims were taken to the hospital. Wogan suffered a lacerated kidney and

was hospitalized. Katz received treatment for his arm injury and wore his arm in a

sling for a short period of time. Thereafter, Katz continued to experience severe pain

and swelling and had various problems with his arm up until the time of trial.

       The defendant and co-defendant were not immediately apprehended. Based

upon the description of the suspects and their vehicle, they were arrested

approximately one (1) week after the incident.




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                       SENTENCING HEARING TESTIMONY



       Defendant was seventeen (17) years of age at the time of the assault and was

transferred from juvenile court to criminal court for these offenses. He had run away

from home on four (4) prior occasions and, on one of those occasions, had remained

away for approximately one (1) year. He had been diagnosed as having Attention

Deficit Hyperactivity Disorder and had received professional help on prior occasions.

       Defendant testified that at the time of the assault he was very angry as a result

of breaking up with his girlfriend. He testified that he did not attack the victims out of

anti-Semitism.

       Defendant also had a prior criminal history as a juvenile. Two (2) burglary

charges were adjusted non-judicially as was a reckless endangerment adjudication.

       At the conclusion of the hearing, the trial court sentenced the defendant as a

standard offender to the minimum term of three (3) years on each of the offenses to

run concurrently; however, the trial court denied probation.



                              PROBATION ELIGIBILITY



       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 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


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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).

       Under the 1989 Sentencing Act, sentences which involve confinement are to

be based on the following considerations contained in Tenn. Code Ann. § 40-35-

103(1):

       (A) [c]onfinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

       (B) [c]onfinement is necessary to avoid depreciating the seriousness of
       the offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

       (C) [m]easures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

       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 our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper weight

to the factors and principles set out under sentencing law, and the trial court’s findings

of fact are adequately supported by the record, then we may not modify the sentence

even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d 785,

789 (Tenn. Crim. App. 1991).




                                            4
                                   CONCLUSION



      The trial court made extensive findings in denying probation. The trial court

noted that the testimony from the licensed psychologist at the sentencing hearing did

not provide justification for defendant’s violent conduct on this occasion. The court

noted defendant’s prior criminal history as a juvenile and that he did not seem to have

benefited from the non-restrictive measures imposed in those matters. The trial court,

further noting the unjustified and violent nature of these offenses which led to

substantial injuries to these two (2) young males, concluded that incarceration was

necessary so as not to depreciate the seriousness of these offenses. Finally, the trial

court concluded that the interests of society would be better served by the

incarceration of the defendant. These findings and conclusions are adequately

supported by the record. Accordingly, we find no error in the denial of probation.



       The judgment of the trial court is AFFIRMED.




                                                 JOE G. RILEY, JUDGE




CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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