        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                         JANUARY 1998 SESSION        FILED
                                                     February 19, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,           )
                              ) C.C.A. No. 02C01-9703-CC-00113
     Appellee,                )
                              ) Chester County
V.                            )
                              ) Honorable W hit Lafon, Judge
RONNIE HOLMES,                )
                              ) (Sentencing)
     Appellant.               )




FOR THE APPELLANT:               FOR THE APPELLEE:

Mike Mosier                      John Knox Walkup
Attorney at Law                  Attorney General & Reporter
204 West Baltimore
P.O. Box 1623                    Janis L. Turner
Jackson, TN 38302-1623           Counsel for the State
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Jerry Woodall
                                 District Attorney General

                                 James W. Thompson
                                 Assistant District Attorney General
                                 P.O. Box 2825
                                 Jackson, TN 38302




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                             OPINION
       Ronnie Holmes, the appellant, entered a plea of nolo contendere to

vandalism under five hundred dollars and criminal trespass in the Chester

County Circuit Court. The court sentenced the appellant to thirty days for each

offense to run concurrently. The court further ordered that, after serving fifteen

days, the appellant would be eligible for work release. On appeal, the appellant

argues he should have been sentenced to full probation.



       The sentencing range for vandalism under five hundred dollars, a class A

misdemeanor, is no greater than eleven months and twenty-nine days

incarceration. Tenn Code Ann. § 40-35-111(e)(1) (1990). The range for criminal

trespass, a class C misdemeanor, is no greater than thirty days incarceration.

Tenn. Code Ann. § 40-35-111(e)(3).



       When an appellant challenges the manner of service of a sentence, this

Court reviews the evidence de novo with a presumption that the determinations

of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The

presumption of correctness is conditioned upon an affirmative showing 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). Our review

consists of an analysis of the evidence at the sentencing hearing, the

presentence report, the principles of sentencing, the arguments of counsel, the

nature and characteristics of the offense, mitigating and enhancement factors,

the defendant’s statements and the defendant’s potential for rehabilitation or

treatment. Tenn Code Ann. §§ 40-35-102 (Supp. 1994), -103 (1990), -210

(Supp. 1992); Ashby, 823 S.W.2d at 169.



       Misdemeanor sentences must be specific and in accordance with the

principles, purposes and goals of the Criminal Sentencing Reform Act of 1989.

State v. Palmer, 902 S.W .2d 391, 394 (Tenn. 1995). The trial judge shall fix a



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percentage of the sentence that the defendant shall serve; after service, the

defendant is eligible for rehabilitative programs. Tenn. Code Ann. § 40-35-

302(b) & (d) (Supp. 1994); Palmer, 902 S.W.2d at 394. Alternatively, the court

can grant probation immediately, or after a period of split or continuous

confinement. Tenn. Code Ann. § 40-35-302(e)(1) & (2).



       The evidence at the sentencing hearing consisted of the testimony of the

victim, the appellant, two photographs and the presentencing report. The

appellant is twenty-nine years old, a high school graduate and a lifelong resident

of Chester County. He is married and employed as a security guard. The

appellant has no criminal record. The appellant has no history of drug or alcohol

use. He has no history of psychiatric or medical problems.



       Debra Schwartz is the victim. Ms. Schwartz owns a realty business in

Chester County, and, at one time, she employed the appellant’s wife. After Ms.

Schwartz fired the appellant’s wife, her business was egged numerous times and

the locks were liquid soldered shut. The appellant described his wife’s

termination as unpleasant. Ms. Schwartz suspected that the appellant was the

perpetrator, but she had no proof. Ms. Schwartz installed a video camera at her

office. She videotaped the appellant placing the head of a dead deer at the front

door of her business and throwing eggs at the business. Ms. Schwartz identified

the appellant as the person in the videotape. After the appellant pled guilty, the

vandalism stopped. The photographs of the scene, including the head of the

dead deer, were introduced into evidence.



       The appellant testified that he did not recognize himself in the video taken

by Ms. Schwartz. He denied placing the deer head at the office doors. The

appellant further denied committing any of the criminal acts complained of by

Ms. Schwartz. He said that he pled guilty to the charges because it was in his

best interest.



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        “‘The misdemeanant, unlike the felon, is not entitled to the presumption of

the minimum sentence.’” State v. Connors, 924 S.W.2d 362, 363, (Tenn. Crim.

App. 1996)(citing State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.

1994). In determining the percentage of the sentence to be served, the court

must consider enhancement and mitigating factors as well as the legislative

purposes and principles related to sentencing. Connors, 924 S.W.2d at 364.



        At the sentencing hearing, the state did not ask the court to consider any

enhancement factors in setting the sentence. The appellant argued that he

should receive probation primarily because he had never been arrested for, or

convicted of, any criminal offense. The trial court did not make specific findings

of fact or state the basis of his ruling. Accordingly, our review of the record is de

novo.



          We affirm the sentence of the trial court based on the nature of the

offense and the appellant’s lack of candor. Placing the head of a deer at the

doors of Ms. Schwartz’ business is especially offensive, repulsive, and juvenile.

Ms. Shwartz identified the appellant as the perpetrator on the video; the

vandalism to her business stopped once the appellant was charged or pled

guilty. From this evidence, we infer that the appellant testified untruthfully when

he denied any involvement in the crimes committed against Ms. Schwartz.



        The judgment of the trial court is affirmed.




                                                __________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:




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_____________________________
DAVID G. HAYES, Judge




_____________________________
JOE G. RILEY, Judge




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