        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 21, 2016

                STATE OF TENNESSEE v. STEVEAN WILSON

                  Appeal from the Criminal Court for Knox County
                         No. 103214    Scott Green, Judge


                 No. E2015-01446-CCA-R3-CD – Filed April 22, 2016


The Defendant, Stevean Wilson, pleaded guilty to aggravated assault, and the trial court
entered the agreed sentence of six years with the manner of service of the sentence to be
determined after a hearing. After the hearing, the trial court denied the Defendant an
alternative sentence and ordered that he serve his sentence in confinement. On appeal,
the Defendant contends that the trial court erred when it denied his request for an
alternative sentence. After review, we affirm the trial court‟s judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE, J., joined. CAMILLE R. MCMULLEN, J., filed a dissenting opinion.

Keith Lee Lieberman, Knoxville, Tennessee, for the appellant, Stevean Wilson.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme P. Knight, District Attorney General; and Phillip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                        I. Facts

        This case arises from a video-recorded incident during which the Defendant and
his friends assaulted the victim in a Cookout restaurant. For this incident, a Knox County
grand jury indicted the Defendant for aggravated assault and criminal gang offense
enhancement. The Defendant entered a plea of guilty to aggravated assault, and the State
agreed to dismiss the other charge. A transcript of the guilty plea hearing is not included
in the record.
        At the sentencing hearing, the parties presented the following evidence: Terry
Pate, an officer with the Repeat Offender Squad of the Knoxville Police Department,
testified that he investigated the assault in this case, which occurred on February 14,
2014. He said that his son showed him a video of the incident, which had been uploaded
to a website called “World Star Hip Hop,” and he recognized one of the suspects
involved. Officer Pate made a recording of the video, which he said was still accessible
online and had been viewed more than two million times. Officer Pate said that there
were over 18,000 comments on the video, most of which were in support of the suspects‟
actions.

       Officer Pate testified that he accessed the Defendant‟s Instagram account, a social
media site wherein members can post videos and pictures. In one picture of the
Defendant on his Instagram account, the Defendant was displaying his fingers to show a
“Westside” sign. Through further investigation, the officer determined that the
Defendant, whose nickname was “Tank Loc 60,” was affiliated with the Crips gang.
More specifically, he was a member of the Rolling 60s Crips. In another Instagram
picture, the Defendant was showing another known gang sign with a shotgun held over
his shoulder. Officer Pate was unsure of the timeframe during which this photograph was
taken, but he said that it appeared to be close in time to the assault.

       Officer Pate testified that he interviewed the Defendant about the assault and that
the version of events the Defendant provided differed from the account the Defendant
gave to the officer creating the presentence report. During Officer Pate‟s interview with
the Defendant, the Defendant told him that the assault occurred because of “racial slurs
that were said.” The Defendant also told him that he was the “last one there so that‟s
why he assaulted [the victim].” In the presentence report, the Defendant did not mention
any racial slurs.

       The State then played the video of the assault. The video, which was entered into
evidence, showed the Defendant‟s friends attempting to restrain the Defendant. The
Defendant broke free and repeatedly hit the victim in the face, throwing several punches
directly at the victim‟s face until the assault was stopped by bystanders.

       Officer Pate noted that one of the men in the group of suspects can be heard
yelling “Westside MF‟ers.” Officer Pate clarified that “Westside” was gang affiliation
language. Officer Pate said that the police department was requesting that the Defendant
be sentenced to incarceration.

       During cross-examination, Officer Pate testified that it was clear that the
Defendant did not make the video in question. Officer Pate was unaware who uploaded
the video to the website where he viewed the video. The officer agreed that the
Defendant had no control over how many people viewed the video online or who
commented on the video.

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       Officer Pate said that the Defendant voluntarily came and spoke with him before
the Defendant was charged with this offense. He agreed that the Defendant was both
polite and respectful at that time. The Defendant told him that a female accompanying
the victim made the first contact between the two groups by commenting to one of the
Defendant‟s friends that he should “pull [his] damn pants up.” After that comment was
made, the victim and another male in his group approached the Defendant and his group.

       Officer Pate agreed that “Westside” was a word used in multiple hip hop songs,
but he indicated that artists, such as “Snoop Dogg,” were Crip‟s gang members.

       During redirect-examination, Officer Pate testified that there was a second video
recovered from the surveillance video at the Cookout. It showed that the Defendant left
the restaurant before the altercation, shutting the front door behind him. At another
man‟s request, he came back into the restaurant.

        The victim testified that he was twenty years old at the time of the sentencing
hearing and nineteen years old and a freshman at the University of Tennessee at the time
of this incident. The victim said that his friend had knocked a milkshake out of the hands
of one of the Defendant‟s friends. The victim recalled standing in a group of the
Defendant‟s friends attempting to diffuse the situation by offering to replace the
milkshake and informing them that they did not wish to fight. Someone hit the victim‟s
friend, who fell toward the victim, knocking the victim on a chair. The victim said he
was then hit. He never saw the initial hit coming, and he did not recall the subsequent
hits that were shown on the recording. The victim said that he never spoke directly to the
Defendant before the Defendant repeatedly hit him.

        The victim said that, as a result of this assault, his jaw was broken in three or four
places. For doctors to fix the breaks, they had to insert a plate, making it impossible for
the victim to eat. He lost twenty-eight pounds. The victim said that he missed classes
and suffered pain. The victim said that he lost feeling in a portion of his face due to the
nerve damage and, at the time of sentencing, the feeling had not returned. Doctors were
hopeful that it would eventually return. The victim said that he had $15,000 in medical
bills, of which $4,000 or $5,000 was not covered by insurance.

        During cross-examination, the victim said that a female that he was with said to
the Defendant‟s group, “Pull your pants up.” The victim agreed that, at some point, he
and his friend got up from their seats, and the Defendant‟s friends also got up. The male
with the victim made the initial aggressive move by knocking a milkshake out of the
hand of the Defendant‟s friend. The victim reiterated that he attempted to diffuse the
situation by offering to buy a new milkshake and saying that they did not want to fight.



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       The Defendant testified that he was born in Detroit, Michigan and raised in
Knoxville, Tennessee by his father. He said that the picture from his Instagram account
was “a long time ago.” The Defendant said that, at the time of this picture, he was
sixteen or seventeen years old, in high school, and following the “wrong crowd.” The
Defendant said that he had learned from his mistakes. The Defendant said that he had
never joined a gang and that he thought they were “horrible.”

       The Defendant testified that he had not uploaded the video to the website, had not
commented on it, and had no control over it. He further testified that he was truthful
when speaking with the officer in this case. He described the incident saying that, when
they were at the door of the restaurant, the victim and the victim‟s friend, who were both
intoxicated, approached them. The Defendant‟s friend told them to back up. The
victim‟s friend “smacked” a milkshake out of the Defendant‟s friend‟s hand and called
them the “N” word. The Defendant said that, when the victim got pushed towards him,
he thought the victim was making an aggressive move towards him so he hit him.

      The Defendant said that he had told the probation and parole officer that he
smoked marijuana, as many as ten to fifteen marijuana cigarettes a day. He stopped
using marijuana when he learned that he would be drug tested, and he had not smoked
marijuana since being on probation.

       The Defendant said that he had graduated from high school and enrolled as a
student in community college for a period of time. He obtained employment with a
moving company and subsequently with Home Depot. The Defendant said that he felt
that “[b]oth the victims” were in the wrong because “[t]hey both used the “N” word.” He
said to the victim “I feel like both of us was in the wrong really. We both got to make up
for our mistakes.”

       The Defendant described a previous assault charge for which he had received
diversion. He said that a female friend was mad at him because he was cheating on her.
She smacked him and he “shoved her off of” him as she was punching and smacking
him. He pleaded guilty to assault.

       During cross-examination, the Defendant said that he had not smoked marijuana
since before he pleaded guilty in February. He agreed that he tested positive for
marijuana the day of the sentencing hearing, but he said that must be from the marijuana
that he had smoked before his guilty plea. He agreed that his drug test for marijuana for
his employment was negative and that this test was shortly before the sentencing hearing.
He maintained that he had not smoked marijuana since shortly after his plea, so the test
showing he had must be wrong.

       The Defendant agreed that he had been at the restaurant with six or seven of his
friends and that, after eating but before this incident, he left the restaurant. One of his

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friends requested that he return, and the Defendant said he returned because he believed
there was going to be a fight. The Defendant said that he did not feel threatened by the
victim and that the only reason that he hit the victim was because the victim “came close
to [him].” The Defendant agreed that, in the video, one of the Defendant‟s friends
attempted to restrain the Defendant but that this did not deter him from assaulting the
victim.

        About the previous assault, the Defendant said that the warrant incorrectly
indicated that he had been harassing the victim before he assaulted her. He denied saying
to her that they were not at school so now he could “kick [her] fucking ass.” He agreed
that this warrant was read out loud before he pleaded guilty, but he said that he did not do
those things. He denied smacking the girl in the face and then hitting her with his closed
fist. The Defendant said that he only pleaded guilty “just because [he] wanted to get out
of trouble fast.” The Defendant agreed he received probation. He did not agree that
probation did not work for him, saying that he would have never hit the victim if the
victim had not come close to him.

        The Defendant noted that he had used a lot of marijuana in the past. When the
State asked him where he obtained his marijuana, the Defendant said “I get it from where
I get it from. I can‟t tell you where I get it from.” The Defendant then offered the first
name of the man who sold him marijuana but said he did not know his last name or
address. He agreed he purchased marijuana from this seller every day for four years but
maintained that he did not know the seller‟s address.

      Upon questioning by the trial court, the Defendant said that the pictures of him
showing the gang signs were because he was young and immature and following the
wrong crowd.

       Based upon this evidence, the trial court found the following:

               You know, [Defendant], when I read this presentence report after I
       had seen the video of what happened within that restaurant, I was confident
       that this was a case that did not call out for straight probation.

              This wasn‟t a fight. You know, I‟m a hick from Loudon County, I
       grew up fighting all the way up through school, but a fight is when two
       people are standing there squaring off toe to toe, one‟s throwing a punch,
       and the other one‟s throwing a punch. This wasn‟t a fight.

              So I‟m looking at the presentence report, I‟m remembering the
       video, I didn‟t ever really think that probation – straight probation was a
       good or viable option in this case. But if you could do more wrong today in


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      this hearing than what you‟ve done, I‟m having a hard time imagining how
      that could be.

             General Morton makes the very valid point, and I know why he was
      putting in – of course you don‟t own that website, of course you don‟t have
      any responsibility for loading that video, but the fact remains that that is on
      the internet, all you have to do is Google Knoxville Cookout fight, boom,
      up it pops.

             And anybody and everybody can watch that. And they watch an
      individual, who as we just saw, is standing there, as he testified, trying to
      diffuse a bad situation. His friend was the one that did whatever it was that
      happened. And you weren‟t even present for a part of this.

             But you came in, it‟s obvious, you can see it in the video, people are
      trying to hold you back but you just can‟t have that. You‟ve got to get in
      the middle of this and have a piece of the action.

             And then you pummeled, you hit him time after time after time as
      he‟s standing there. And he did nothing. There is no way any reasonable
      person could think that there was any further need to defend yourself when
      there wasn‟t the need to defend yourself on the front end.

            And then you come in here today, the chance at sentencing to truly
      express remorse and truly be sorry, and you suggest he‟s got some fault in
      this.

             I was contemplating when I came in here today giving you a split
      confinement sentence and letting you do some time in local custody, the
      balance served on some form of probation, but I‟m not doing it now. You
      are going to the penitentiary. Stand up.

             Based upon your previous plea of guilty, the Court having
      previously found you guilty in case number 103214 of aggravated assault,
      and having previously entered a sentence of six years, you are ordered to
      serve that sentence in the Tennessee Department of Corrections. Your
      bond‟s revoked. You‟re in custody.

It is from this judgment that the Defendant now appeals.

                                       II. Analysis



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       On appeal, the Defendant contends that the trial court erred when it denied him an
alternative sentence. He notes that the victim‟s friend made the first aggressive move
and, while the Defendant overreacted, he simply engaged in “imperfect self defense.” He
further notes that the victim never fell down, so it was not apparent that the victim was
helpless. The State counters that the trial court did not abuse its discretion when it
ordered that the Defendant serve his sentence in confinement.

       The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). With regard to alternative sentencing, Tennessee
Code Annotated section 40-35-102(5) (2014) provides as follows:

      In recognition that state prison capacities and the funds to build and
      maintain them are limited, convicted felons committing the most severe
      offenses, possessing criminal histories evincing a clear disregard for the
      laws and morals of society, and evincing failure of past efforts at
      rehabilitation shall be given first priority regarding sentencing involving
      incarceration.

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2014). A
defendant is not, however, automatically entitled to probation as a matter of law. The
burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-35-303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997);
State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this
burden, the defendant “must demonstrate that probation will „subserve the ends of justice
and the best interest of both the public and the defendant.‟” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant‟s background.” State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
determining if incarceration is appropriate in a given case, a trial court should consider
whether:

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




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       (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.

T.C.A. § 40-35-103(1) (2014). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103. We also observe that
the lack of remorse has a direct bearing on a defendant‟s prospect for rehabilitation. State
v. Richerson, 612 S.W.2d 194, 196 (Tenn. Crim. App. 1980).

       The record supports the trial court‟s findings in this case. Two years before this
incident, in 2012, the Defendant pleaded guilty to assault, and the trial court granted him
diversion. The Defendant said that he pleaded guilty to assault based upon the State‟s
incorrect allegation that he hit a female victim with an open hand and then again with a
closed fist. In this case, the Defendant, a Crips gang member, was not present for a
portion of an altercation between his friends and two other men. He came back into the
restaurant, saw the victim get shoved toward him, and then repeatedly hit the victim, who
was not in an aggressive stance and was attempting to diffuse the situation. The
Defendant hit the victim directly in the face using both his fists and landing at least nine
direct blows. The Defendant said that he did not feel “threatened” by the victim but that
he hit him because the victim “came close to him.” The victim‟s jaw was broken in three
or four places, and he required extensive medical care for a prolonged period of time.
Even after agreeing that the victim was attempting to diffuse the situation, the Defendant
said that he felt that “[b]oth the victims” were in the wrong because “[t]hey both used the
“N” word.” He said to the victim “I feel like both of us was in the wrong really. We
both got to make up for our mistakes.” The Defendant showed a lack of candor by
denying both the allegations supporting his previous convictions and that he used
marijuana before his court hearing. He expressed a lack of remorse and ability to
understand that his actions were not justified, which show his lack of potential for
rehabilitation. The trial court did not err when it denied the Defendant an alternative
sentence. The Defendant is not entitled to relief.

                                     III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court‟s judgment.
                                               _________________________________
                                              ROBERT W. WEDEMEYER



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