         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 27, 2004

                STATE OF TENNESSEE v. JOHN CHRIS ELROD

                  Direct Appeal from the Circuit Court for Warren County
                         No. F-8968    Larry B. Stanley, Jr., Judge



                    No. M2003-01600-CCA-R3-CD - Filed March 17, 2004


The defendant, John Chris Elrod, was indicted by the Warren County Grand Jury on one count of
aggravated kidnapping, a Class B felony, and one count each of assault and vandalism under $500,
both Class A misdemeanors. He pled guilty to the Class A misdemeanors of false imprisonment,
assault, and vandalism under $500 and was sentenced to eleven months, twenty-nine days at 75%
on each count with counts one and two consecutive and count three concurrent with count one. In
this appeal as of right, the defendant contends that the trial court abused its discretion in imposing
consecutive sentences for two misdemeanors arising from the same episode. Following our review,
we affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

J. Hilton Conger, Smithville, Tennessee, for the appellant, John Chris Elrod.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
C. Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       The few details of the incident resulting in the defendant’s convictions are set out in the
presentence report:
                Aggravated Kidnapping (False Imprisonment):

                “Chris Elrod is charged with Aggravated Kidnapping in that on
                December 19, 2001[,] Ms. Christy Elrod stated to investigators that
                Mr. Elrod busted the window out of her father’s vehicle pulling her
                from the vehicle leaving marks on Ms. Elrod’s arms and chest. Ms.
                Elrod did not consent to going with Mr. Elrod. Ms. Elrod had an
                active order of protection signed prior to this incident.”

                Aggravated Assault (Assault):

                “Chris Elrod is charged with Aggravated Assault in that on December
                19, 2001[,] Mr. Elrod was found to be with his wife Christy Elrod
                who has an order of protection on Mr. Elrod. Ms. Elrod stated to the
                investigators that Mr. Elrod drug her from her father’s vehicle busting
                the window[.] Ms. Elrod had bruising on her upper arms and
                scratches on her chest and [her] shirt had been torn.”

                Vandalism:

                “Chris Elrod is charged with Vandalism in that on December 19,
                2001[,] Ms. Elrod stated to investigators that Mr. Elrod drug her from
                her father[’s] vehicle busting the window. Mr. Elrod was also
                charged with Aggravated Assault due to Ms. Elrod having a order of
                protection on Mr. Elrod.”

                Defendant’s Statement:

                “This was a meeting gone bad. It did not happen the way she [s]ays
                it did! So for the plea I really wish it could be my time on
                probation[,] not in jail. When this first happened, I was away from
                my kids for a year. Now [that] I have visitation they have adjusted[.]
                [I]f gone for another year it will be hard on them understanding and
                adjusting all over.”

                                             ANALYSIS

                                      Consecutive Sentencing

        The defendant’s sole issue on appeal is that the trial court erred in ordering that the sentences
for counts one and two be served consecutively. He argues that consecutive sentencing is “clearly
excessive and inappropriate given the fact that the assault and the false imprisonment charges are
essentially one and the same.” When an accused challenges the length and manner of service of a


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sentence, it is the duty of this court to conduct a de novo review on the record 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). 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing the accused or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311
(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v.
Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the
trial court's determination of controverted facts as the trial court's determination of these facts is
predicated upon the witnesses' demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App. 1987). The party challenging the sentences imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Cmts.; Ashby, 823 S.W.2d at 169. 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. Pettus, 986 S.W.2d 540, 543 (Tenn.
1999). 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).

        In sentencing the defendant, the trial court stated that it had considered the presentence report
and the testimony, at the sentencing hearing, of the probation officer who had prepared the report
and the victim, as well as the arguments of counsel. Reviewing this information, the court noted that
the defendant was on probation when he committed the instant offenses and that “he was unwilling
to abide by those terms of probation.” The court discussed the defendant’s prior criminal history,
which included four convictions for speeding from 1997-2000; two convictions in 1996 for passing
worthless checks; a conviction in 1998 for theft under $500, for which he was sentenced to six
months probation; and a conviction on August 13, 2001, for domestic assault on the same victim as
in the present appeal, with the defendant being placed on probation and ordered to stay away from
the victim and attend conflict management classes. The trial court also noted that the defendant
tested positive for methamphetamine on March 28, 2003, two weeks after entering his guilty pleas.
The court concluded that the defendant had an extensive criminal record, had committed the instant
offenses while on probation, was unwilling to abide by terms of probation or court orders, and, as
a result, two of his sentences should be served consecutively. A court may order sentences to run
consecutively if the court finds by a preponderance of the evidence that “[t]he defendant is an


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offender whose record of criminal activity is extensive” and “[t]he defendant is sentenced for an
offense committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(2), (6). The record
supports the trial court’s determination as to the defendant’s prior record and consecutive sentencing.

                                          CONCLUSION

         Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

                                                       ___________________________________

                                                       ALAN E. GLENN, JUDGE




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