        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 9, 2012

           STATE OF TENNESSEE v. JOSEPH ALFONSO SIGALA

                Appeal from the Circuit Court for Williamson County
                    No. CR125356      Timothy L. Easter, Judge


                 No. M2011-02517-CCA-R3-CD - Filed July 16, 2012


Joseph Alfonso Sigala (“the Defendant”) pleaded guilty to two counts of aggravated burglary
and two counts of theft between $1,000 and $10,000, but the plea left open the issue of
sentencing. Following a sentencing hearing, the trial court ordered the Defendant to serve
an effective five-and-a-half-year sentence in confinement. The Defendant appeals, arguing
that the trial court erred by: (1) admitting the Defendant’s social networking web page as an
exhibit; (2) denying judicial diversion; (3) improperly applying the statutory enhancing and
mitigating factors; (4) finding that the Defendant lacked credibility; and (5) denying the
Defendant probation. Upon a thorough review of the record and the applicable law, we
affirm the judgments of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Venus Niner, Franklin, Tennessee, for the appellant, Joseph Alfonso Sigala.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel Harmon, Assistant Attorney
General; Kim Helper, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                            Factual and Procedural Background

       The Defendant was indicted on two counts of aggravated burglary, two counts of theft
over $1,000 but under $10,000, and one count of vandalism over $1,000 but under $10,000.
On September 7, 2011, he entered an open plea to the two counts of aggravated burglary, a
Class C felony, and the two counts of theft over $1,000 but under $10,000, a Class D felony.
The indicted count of vandalism over $1,000 was dismissed.

       The trial court accepted the guilty plea. The guilty plea did not contain any agreement
with the State as to sentencing. However, as part of the agreement, the State recommended
that the trial court sentence the Defendant as a Range I standard offender. Thus, the
sentencing range for the two aggravated burglary convictions would be between three and
six years, and the range for the two theft convictions would be between two and four years.
At the sentencing hearing, the State notified the trial court that it would not seek consecutive
sentencing. The State then proceeded with its proof.

        Robert Nick testified at the sentencing hearing that he and his wife went on vacation
July 1-7, 2010. Upon returning home, he observed that the garage door was open, a car was
missing, doors had visible signs of forced entry, and the house was in total disarray. After
a brief inventory, he realized that he also was missing a digital camera, watches, seven guns,
and certain jewelry belonging to his wife. His total amount of losses and damages was
approximately $2,800. Although Nick had received some restitution from other defendants,
approximately $1,300 remained unreimbursed at the time of the hearing. Since the break-in,
Nick had installed a security system in his home and kept a gun with him while sleeping.

       Detective James Colvin, Brentwood Police Department, testified that he reported to
the scene of the burglary at the Nick residence. He noticed in the garage a shelving unit that
had been hit such that its contents were strewn across the floor. The frame of the garage also
was damaged where the perpetrators apparently had scraped the side in an attempt to flee
with the vehicle.

       As part of his investigation, Detective Colvin ran a check on the license plate of the
stolen vehicle. When police found the vehicle, it was occupied by four juveniles. Detective
Colvin interviewed the juveniles. During the course of those interviews, he learned about
the Defendant’s involvement in the burglary.

       Detective Colvin then interviewed the Defendant.1 In that interview, the Defendant
explained that there was not simply one but two break-ins. On the first occasion, the
Defendant and his accomplices entered the home and retrieved the weapons from the gun
safe. A few days later, the Defendant drove the juveniles back to the Nick residence to steal
the vehicle in the garage. During the course of Detective Colvin’s interviews with the
Defendant and his accomplices, he also learned that the Defendant’s mother and stepfather



       1
           The Defendant was eighteen years old when he broke into the Nick residence.

                                                   -2-
confiscated the guns from the boys and dumped them in Percy Priest Lake. A search of the
lake produced two of Nick’s guns.

       Detective Colvin gleaned from the interviews that the boys wanted a car to take to
parties for the Fourth of July, so they stole Nick’s vehicle. As far as their reason for
choosing the Nick residence, they indicated that it was by checking mailboxes. Detective
Colvin stated that the suspects would

        check a mailbox and if there’s mail stacked up in the mailbox, . . . it appears
        that no one is checking the mail, possibly nobody is home. They then ring the
        doorbell and knock on the front door. If no one answers, they go around and
        do the same for the rear door and then kick it.

The Defendant was familiar with the Brentwood area because his mother cleaned houses
there. Detective Colvin also stated that this particular area of Brentwood recently had
experienced a marked increase in burglaries.

        The defense then proceeded with its proof. Gerald Finney testified that he works for
Finney Social Services, which contracts with the Davidson County Department of Children’s
Services. Through his employment, he met the Defendant when the Defendant and the
Defendant’s brother completed an outpatient alcohol and drug treatment program. Finney
believed that the Defendant was receptive to and successful in the program, and Finney and
his wife still maintained contact with the Defendant’s family. Finny perceived that the
Defendant and the Defendant’s brother were both remorseful for their actions. The trial court
asked Finney about the Defendant’s brother, and Finney confirmed that the Defendant’s
brother was one of the juveniles involved in the break-ins at the Nick residence. When asked
about the Defendant’s drug use, he acknowledged that the Defendant had used marijuana at
least from the age of twelve until the time of his arrest for the charges in this case. Because
of the events surrounding the commission of these crimes, the Defendant’s stepfather had
been deported to Mexico. Consequently, the Defendant’s mother had gone to Mexico and
was there at the time of trial in order to visit the Defendant’s stepfather. The trial court asked
Finney if he had any knowledge about the Defendant’s grandmother being ill.2 Finney

        2
          On November 14, 2011, the day before the sentencing hearing, the Defendant filed a motion to
continue the sentencing hearing. As his basis, he stated, “defendant would show that he intended to call his
mother at his sentencing hearing to testify on his behalf. Due to the grandmother’s illness, defendant’s
mother returned to Mexico and has not yet returned.” The trial court and defense counsel agreed that the
sentencing hearing would proceed as scheduled on November 15, 2011. If defense counsel still desired to
call the Defendant’s mother at the conclusion of all the proof, the trial court would suspend proceedings until
the Defendant’s mother returned. However, at the close of the defense’s proof, defense counsel told the trial
                                                                                                 (continued...)

                                                     -3-
replied that he did not and said, “I heard . . . that . . . [the stepfather] was going to be deported
there, and if he couldn’t come back, [the Defendant’s] mom wanted to go visit him.”

        The Defendant began his testimony by apologizing to Nick for what he did. He then
stated that his mother had been in Mexico for the past two-and-a-half months because of his
grandmother being sick. Although his mother planned to return in order to testify at the
sentencing hearing, a problem with her passport kept her in Mexico. Because of his mother
being gone, the Defendant was responsible for ensuring his younger siblings attended school
and providing for them. He clarified, however, that his only financial responsibility was
paying for his own cell phone bill. He admitted that his driver’s license had been revoked
because of outstanding tickets. Although he claimed that he had been employed for the past
three weeks working between forty and fifty hours per week at nine dollars per hour, he
could not remember the name of his employer.

       On cross-examination, the State asked the Defendant why he first entered the Nick
residence. The Defendant answered that it was a combination of peer pressure and wanting
extra money. He admitted that he was the only individual who was not a minor at the time
of the break-in. He also stated that he “trashed” Nick’s residence because he and his
accomplices were looking for more valuables. The Defendant agreed that he was involved
in removing the guns from the Nick residence, and he admitted to keeping two or three of the
guns until his mother disposed of them in the lake.

       He stated that after he was bonded out of jail, the State gave him a plea offer of four
years. However, he did not like the offer and posted the following on his social networking
web page: “4 years to do judge? betta suck on dis nuts set dat b***h for trial! lol.” Defense
counsel objected to this web page’s admission as irrelevant, but the trial court overruled the
objection. The Defendant also admitted to receiving a citation for contributing to the
delinquency of a minor, but he explained that it was because he let someone drive his car
who he thought had a valid driver’s license. Before his current employment, the Defendant
was fired from Wal-Mart. He stated that the computer system that posted his schedules did
so incorrectly such that he was misinformed about his work schedule. Accordingly, Wal-
Mart fired him for not reporting to work. During the months between his employment at
Wal-Mart and his current employment, he acknowledged that he was unemployed and that
he made no effort during that time to complete his General Education Development (“GED”)
credential.




        2
         (...continued)
court that the defense no longer felt it necessary to call the Defendant’s mother as a witness.

                                                    -4-
        At the end of closing arguments, defense counsel requested judicial diversion from
the trial court. The trial court found that based on the Defendant’s failure to work toward the
completion of his GED, his work history, and “generally, just an attitude of not being one
who can follow the rules,” the factor of amenability to correction pointed toward denial of
diversion. Additionally, the trial court found that, whereas most diversion cases are marked
by instances in which a defendant does something unplanned and uncharacteristic of his or
her nature, the Defendant’s actions in this case were well-planned, as shown through the
methodology of checking the mailboxes. Although the Defendant had no prior felonies, the
trial court found him to have a poor social history. As for the Defendant’s mental and
physical health, the trial court found that factor to be neutral based on a lack of testimony or
evidence. The trial court also found the deterrence factor to weigh against diversion based
on the involvement of several juveniles in this case and the necessity for them to understand
the gravity of the offense. Finally, the trial court found that judicial diversion would not
serve the interests of the public. Accordingly, the trial court denied diversion.

        The trial court found the Defendant to be a standard Range I offender, establishing
the Defendant’s range at three to six years for the burglaries and two to four years for the
thefts. Looking at potential enhancing factors, the trial court found applicable the factor
assessing the Defendant’s history of criminal behavior. Although he had no convictions on
his record, the trial court found that the Defendant had engaged in criminal behavior through
his illegal drug use and by driving with an invalid license. The trial court also found
applicable that the Defendant, as the only individual involved who had reached the age of
majority, acted as a leader in the commission of the offense. The trial court placed great
weight on this factor and noted particularly that the Defendant’s younger brother was one of
the juveniles engaged in the criminal activity. Additionally, the trial court found that on the
first day of the offense the Defendant acquired a deadly weapon, satisfying another
enhancing factor.

        Turning to possible mitigating factors, the trial court found disingenuous the
Defendant’s argument that he checked the mailboxes to avoid human contact out of regard
for human life. To the contrary, the trial court found merit in believing that the Defendant
committed these crimes with utter disregard to the value of human life. With regard to other
mitigating factors, the trial court considered the fact that the Defendant was young, and
applied that finding as the sole applicable mitigating factor. Based upon the consideration
of all of these relevant factors, the trial court sentenced the Defendant to five and a half years
for each burglary conviction and three and a half years for each theft conviction. The State
notified the trial court at the sentencing hearing that it would not seek consecutive
sentencing. Therefore, the trial court ordered that all the sentences run concurrently for an
effective sentence of five and a half years.



                                               -5-
       Regarding the method of service of the sentences, the trial court found that
confinement was necessary in this case to avoid depreciating the seriousness of the offenses,
given the Defendant’s “cavalier attitude” and his destruction of the Nick residence. In
addition, the trial court found confinement to be necessary as a deterrent to others based on
the Defendant being a leader in a group of juveniles as well as the testimony by Detective
Colvin that the area had experienced an increase in burglaries. Finally, besides the
Defendant’s assertion that he currently was not using illegal drugs, the trial court found the
Defendant to be a “dishonest person.”

        Accordingly, the trial court ordered that his sentence be served in confinement. The
Defendant timely appeals, raising five issues. First, he argues that the trial court should not
have admitted the Defendant’s social networking web page. Second, he contends that the
trial court erred in denying judicial diversion. Third, the Defendant also asserts that the trial
court erred in its application of enhancing and mitigating factors at sentencing. Fourth, he
claims that the trial court erred in its credibility finding regarding the Defendant’s testimony.
Fifth, the Defendant argues that the trial court should have granted the Defendant probation
rather than order that he serve his sentence in confinement.

                                           Analysis

                         Admission of Social Networking Web Page

       The Defendant contends that the trial court erred in admitting as evidence at the
sentencing hearing the Defendant’s social networking web page. Shortly after his release on
bond, the Defendant posted a comment to his social networking site that read, “4 years to do
judge? betta suck on dis nuts set dat b***h for trial! lol.”

       At the hearing, defense counsel objected to the web page’s admission, arguing that
its contents were irrelevant. Although he provides no legal authority on appeal, the
Defendant asserts, “This posting was months prior to his sentencing, and although it
obviously angered the judge, . . . [it wa]s not relevant to a proper sentence.”

        Generally, we review issues regarding the admissibility of evidence under an abuse
of discretion standard. State v. Looper, 118 S.W.3d 386, 422-23 (Tenn. Crim. App. 2003)
(quoting State v. James, 81 S.W.3d 751, 760 (Tenn. 2002)). Thus, the trial court’s decision
on the issue of relevancy will remain intact unless the reviewing court determines that the
trial court abused its discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). The only
situations in which reviewing courts in Tennessee will find an abuse of discretion are “when
the trial court applied incorrect legal standards, reached an illogical conclusion, based its
decision on a clearly erroneous assessment of the evidence, or employed reasoning that

                                               -6-
causes an injustice to the complaining party.” Banks, 271 S.W.3d at 116 (citing Konvalinka
v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)); see also
Looper, 118 S.W.3d at 422.

        Tennessee Rule of Evidence 401 prescribes the threshold determination regarding the
admissibility of evidence. Initially, the trial court must decide whether the particular
evidence is relevant. Relevant evidence is that which has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Put another
way, “evidence is relevant if it helps the trier of fact resolve an issue of fact.” State v. James,
81 S.W.3d 751, 757 (Tenn. 2002) (quoting Neil. P. Cohen, et al., Tennessee Law of Evidence
§ 4.01[4], at 4-8 (4th ed. 2000)).

        The trial court, in determining whether to grant the Defendant probation, considered
several factors including “amenability to correction.” This factor encompasses a Defendant’s
“general attitude, including behavior since arrest.” State v. Blackhurst, 70 S.W.3d 88, 97
(Tenn. Crim. App. 2001) (citing State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993);
State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995)). Although the trial court did
not state that it relied on the contents of the Defendant’s social networking page in any of its
determinations, the comment posted by the Defendant is indicative of an attitude of
disrespect toward authority and a lack of remorse for his actions. Thus, the web page was
relevant to the trial court’s sentencing determination.3 Accordingly, the Defendant is not
entitled to relief on this issue.

                                          Judicial Diversion

        The Defendant asserts that the trial court erred in denying the Defendant judicial
diversion. Pursuant to Tennessee Code Annotated section 40-35-313, a trial court “may, at
its discretion, following a determination of guilt, defer further proceedings and place a
qualified defendant on probation without entering a judgment of guilt.” State v. Robinson,
328 S.W.3d 513, 519 (Tenn. Crim. App. 2010) (citing Tenn. Code Ann. § 40-35-
313(a)(1)(A) (2006)). We review the trial court’s decision to grant or deny judicial diversion
under an abuse of discretion standard. Id. (citing State v. Cutshaw, 967 S.W.2d 332, 344
(Tenn. Crim. App. 1997)). Thus, the trial court’s decision will remain intact so long as the
decision is supported by substantial evidence in the record. Id. (citing Cutshaw, 967 S.W.2d
at 344); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996)).




       3
           The Defendant did not object to the document based on hearsay grounds.

                                                   -7-
       According to Tennessee Code Annotated section 40-35-313, a “qualified defendant”
for purposes of judicial diversion is one who:

       (a) Is found guilty of or pleads guilty or nolo contendere to the offense for
       which deferral of further proceedings is sought;

       (b) Is not seeking deferral of further proceedings for a sexual offense, a
       violation of § 71-6-117 or § 71-6-119, or a Class A or Class B felony; and

       (c) Has not previously been convicted of a felony or a Class A misdemeanor.

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(a)-(c) (Supp. 2007).

        In determining the appropriateness of judicial diversion, the trial court shall consider
the following factors: “(1) the defendant’s amenability to correction; (2) the circumstances
of the offense; (3) the defendant’s criminal record; (4) the defendant’s social history; (5) the
defendant’s physical and mental health; . . . (6) the deterrence value to the defendant and
others,” Robinson, 328 S.W.2d at 520 (citing Parker, 932 S.W.2d at 958; Cutshaw, 967
S.W.2d at 343-44); and (7) “whether judicial diversion will serve the ends of justice, i.e., the
interests of the public as well as of the defendant.” State v. Bonestel, 871 S.W.2d 163, 168
(Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10
(Tenn. 2000).

        The Defendant satisfies the requirements of Tennessee Code Annotated section 40-35-
313(a)(1)(B)(i) in that he entered an open plea for the four charged offenses, all of which
satisfy the parameters of section 40-35-313(a)(1)(B)(i)(b). Additionally, he previously had
not been convicted of a felony or Class A misdemeanor.

        Thus, we must decide whether the trial court abused its discretion in its application
of the factors that resulted in its determination that judicial diversion was inappropriate for
the Defendant. The trial court found that the first factor, amenability to correction, weighed
against judicial diversion. The trial court relied on the Defendant’s failure to work toward
the completion of his GED, his work history, and “an attitude of not being one who can
follow the rules.” In assessing the circumstances of the offense, the second factor, the trial
court noted that most diversion cases characteristically involve instances in which a
defendant does something unplanned and out of the ordinary for his or her nature. The trial
court found, however, that in this case the Defendant’s actions were well-planned, as
evidenced by the methodology of checking the mailboxes. The trial court found that the
Defendant did not have a criminal record, which weighed in favor of judicial diversion.



                                              -8-
However, the trial court found that the Defendant had a poor social history. As reliance, the
court stated:

       What I have before this Court is someone that, according to the presentence
       report, dropped out of high school in the ninth grade and has made efforts that
       are minimal at best to obtain his GED. He’s not been able to hold a steady job
       for any significant period of time.

        Regarding the factor assessing the Defendant’s physical and mental health, the trial
court found that there was no testimony given regarding this factor and, accordingly, found
it to be neutral. On the other hand, the trial court found that the deterrence value of the
offense weighed heavily against granting judicial diversion. The court noted that the
Defendant was the sole adult committing the offenses with a group of juveniles and that all
individuals involved needed to understand the gravity of those offenses. Finally, the trial
court determined that nothing in the record supported a finding that expunging the
Defendant’s record from these offenses would in any way serve the interests of the public.
After balancing these factors, the trial court found that judicial diversion was not appropriate
for this case.

        Upon review, we conclude that substantial evidence in the record supports the trial
court’s decision to deny judicial diversion. The Defendant testified that he was unemployed
for several months between his employment at Wal-Mart and his employment at the time of
the hearing. Moreover, he could not recall the name of his current employer. During his
period of unemployment, he made no effort to complete his GED. Although he offered an
excuse for his termination at Wal-Mart, he admitted that the reason for his termination was
failure to report to work. The record establishes that the Defendant was familiar with the
neighborhood because his mother cleaned houses there. Additionally, the boys decided they
needed a car to take to some parties, and they chose to return to burglarize the Nick residence
for a second time in order to steal a vehicle. This, of course, was in addition to first casing
the Nick home by checking the mailbox. Finally, the Defendant testified that he was
eighteen at the time of the offense, and out of all the accomplices, he was the only individual
who was not a juvenile. Based upon this evidence, the record supports the trial court’s
decision. Therefore, we conclude that the trial court did not abuse its discretion.
Accordingly, the Defendant is entitled to no relief on the basis of this claim.

                    Application of Enhancement and Mitigating Factors

      The Defendant’s next contention is that the trial court improperly applied the statutory
enhancement and mitigating factors in determining the Defendant’s sentence. When a
defendant challenges the length, range, or manner of service of a sentence, the applicable

                                              -9-
standard of review is de novo on the record with a presumption of correctness. Tenn. Code
Ann. § 40-35-401(d) (2006). However, 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).
If the trial court did not do so, then the presumption fails, and this Court’s review is de novo
with no presumption of correctness. State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004). If
the trial court considered the statutory criteria, imposed a lawful but not excessive sentence,
stated its reasons for the sentence on the record, and its findings are supported by the record,
then this Court is bound by the trial court’s decision. State v. Carter, 254 S.W.3d 335, 346
(Tenn. 2008). On appeal, the party challenging the sentence has the burden of demonstrating
that it is improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; Carter, 254
S.W.3d at 344.

       In this case, the record demonstrates that the trial court carefully and thoroughly
considered the sentencing principles and all relevant facts and circumstances. Therefore, in
our review of the Defendant’s sentence, we will apply a presumption of correctness.

        In conducting an appellate review of a sentence, we must consider the following: (a)
any evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c)
the principles of sentencing and arguments of counsel regarding sentencing alternatives; (d)
the nature and characteristics of the criminal conduct; (e) any enhancement or mitigating
factors as provided in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement made by the defendant on his
or her own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2006); see also
Carter, 254 S.W.3d at 343.

      In imposing a sentence within the appropriate range of punishment, the court shall
consider, but is not bound by, the following advisory sentencing guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.




                                              -10-
Tenn. Code Ann. § 40-35-210. From this, “the trial court is free to select any sentence within
the applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting Tenn. Code Ann.
§ 40-35-210(d)).

      Of relevance to this case, the trial court considered the following factors to enhance
the Defendant’s sentence:

       (1) The defendant has a previous history of criminal convictions or criminal
       behavior, in addition to those necessary to establish the appropriate range;

       (2) The defendant was a leader in the commission of an offense involving two
       (2) or more criminal actors; [and]

       ....

       (9) The defendant possessed or employed a firearm, explosive device or other
       deadly weapon during the commission of the offense[.]

Tenn. Code Ann. § 40-35-114 (2010). In order to apply, enhancement factors always must
be “appropriate for the offense” and “not already an essential element of the offense.” Id.

        Also relevant to this case, possibly to mitigate the sentence, the trial court considered
that “[t]he defendant, because of youth or old age, lacked substantial judgment in committing
the offense.” Tenn. Code Ann. § 40-35-113 (2010).

        In its application of the statutory enhancement and mitigating factors, the trial court
found that the Defendant’s criminal history satisfied the first enhancement factor. Although
he had no prior convictions, the trial court found that the Defendant had engaged in criminal
behavior through his admitted drug use and driving with an invalid license. Additionally, the
trial court found applicable that the Defendant, as the only adult among juveniles, acted as
a leader in the commission of the offense, satisfying the second factor. The trial court placed
great weight on this factor and particularly emphasized the fact that the Defendant’s brother
was one of the juveniles associated with the criminal activity. Finally, the trial court found
that on at least the first break-in the Defendant acquired and possessed a deadly weapon
when he broke into Nick’s gun cabinet and stole the guns contained there. As the sole
mitigating factor, the trial court applied the factor of age, noting that the Defendant was
young.




                                              -11-
       The record supports the trial court’s findings. As established by the record, the
Defendant had several traffic violations and had used marijuana from at least the age of
twelve until the time of his arrest for these offenses. The Defendant was eighteen when he
committed the offenses underlying his convictions. Conversely, all of his accomplices were
juveniles, including his younger brother.

        The record also establishes that the boys stole seven guns from Nick’s gun cabinet,
and the Defendant acknowledged that he was involved in removing the guns from the Nick
residence. While this factor presents a close question, the evidence does appear to support
a finding that the Defendant possessed a firearm during at least a portion of the first burglary.
We also conclude that even if the trial court erred in applying this factor, the record still
supports the sentence imposed by the trial court.

       Accordingly, because the trial court considered the statutory criteria, imposed a lawful
but not excessive sentence, stated its reasons for the sentence on the record, and its findings
are supported by the record, we are bound by the trial court’s decision. Carter, 254 S.W.3d
at 346. Consequently, the Defendant is not entitled to relief on this issue.

                     Credibility of Defendant and Denial of Probation

        Finally, the Defendant argues that the trial court erred in finding the Defendant’s
testimony untruthful and in denying the Defendant probation . When a court determines the
manner of service of a sentence, it is no longer presumed that a defendant is a favorable
candidate for alternative sentencing under the revised Tennessee sentencing statutes. Carter,
254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-102(6)). Rather, the advisory sentencing
guidelines now provide that a defendant who does not possess a criminal history showing a
clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts,
and who “is an especially mitigated or standard offender convicted of a Class C, D or E
felony, should be considered as a favorable candidate for alternative sentencing options in
the absence of evidence to the contrary.” Tenn. Code Ann § 40-35-102(5)-(6)(A) (Supp.
2007). Additionally, a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. Id. § 40-35-102(6)(D).

      In determining whether to impose a sentence of confinement, the trial court should
consider the following:

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




                                              -12-
       (B) Confinement 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) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2006); see also Carter, 254 S.W.3d at 347. Additionally,
the principles of sentencing reflect that the sentence should be no greater than that deserved
for the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). A trial
court should also consider a defendant’s potential for rehabilitation or lack thereof when
determining the manner or length of the sentence. Tenn. Code Ann. § 40-35-103(5).

        We first address the Defendant’s argument that the trial court improperly assessed the
Defendant’s credibility. In assessing the appropriateness of probation for the Defendant, the
trial court found the Defendant generally to be “a dishonest person.” The Defendant asserts
that his testimony was “uncontroverted,” and, thus, the trial court should have considered it
credible. We yield to the trial court’s finding, as “[t]he trial judge is in the best position to
assess a defendant’s credibility and potential for rehabilitation.” State v. Nunley, 22S.W.3d
282, 289 (Tenn. Crim. App. 1999). Moreover, the State successfully attacked the
Defendant’s credibility by questioning the Defendant about his traffic infractions and his
disrespect for the Nick residence and the court system. Additionally, the State highlighted
the inconsistency in the Defendant’s reason for why his mother was in Mexico. Furthermore,
the Defendant could not remember the name of his current employer. Thus, we will not
disturb the trial court’s finding on this issue.

       Regarding the manner of the Defendant’s sentence, the trial court found that the
Defendant’s “cavalier attitude” and the manner in which he destroyed the Nick residence
pointed toward confinement in order to avoid depreciating the seriousness of the offense.
Additionally, the trial court found that the Defendant was a leader among a group of
juveniles, and the area where the Nicks lived had seen an increase in burglaries. Such
findings, the court determined, pointed toward confinement in order to serve as a deterrent
to others.

       The record supports the trial court’s findings. The Defendant’s explanation for
leaving the residence in such disarray was the group’s desire to acquire more valuables. He
made numerous excuses at the hearing as to why he had been fired in the past or why he had
received multiple citations. As stated previously, the record indicates that the Defendant was
the only individual involved in the offense who was not a juvenile. Moreover, his younger

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brother accompanied him in the commission of the offense. Finally, Detective Colvin
testified that this particular area of Brentwood had experienced a notable increase in the
instances of burglaries. Thus, we will not disturb the trial court’s denial of alternative
sentencing. Therefore, the Defendant is entitled to no relief on this issue.

                                    CONCLUSION

      For the foregoing reasons, the judgments of the trial court are affirmed.




                                         _____________________________
                                         JEFFREY S. BIVINS, JUDGE




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