             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                  FILED
                            JUNE 1998 SESSION
                                                            September 9, 1998

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )
             Appellee,         )    No. 03C01-9708-CC-00335
                               )
                               )    Blount County
v.                             )
                               )    Honorable D. Kelly Thomas, Jr., Judge
                               )
GARY EUGENE TEEPLE,            )    (Two counts of misdemeanor assault)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

Raymond Mack Garner                 John Knox Walkup
District Public Defender            Attorney General of Tennessee
   and                                     and
Natalee S. Hurley                   Georgia Blythe Felner
Assistant Public Defender           Assistant Attorney General of Tennessee
419 High Street                     425 Fifth Avenue North
Maryville, TN 37804                 Nashville, TN 37243-0493

                                    Michael L. Flynn
                                    District Attorney General
                                            and
                                    Edward P. Bailey, Jr.
                                    Assistant District Attorney General
                                    363 Court Street
                                    Maryville, TN 37804




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



              The defendant, Gary Eugene Teeple, appeals as of right from his

convictions for two counts of assault, Class A and B misdemeanors, respectively, in a

jury trial. The trial court sentenced the defendant to concurrent sentences in the county

jail for a term of eleven months and twenty-nine days for the Class A misdemeanor

assault and a term of six months for the Class B misdemeanor assault. Although the

court provided that the defendant would be immediately eligible for existing programs, it

ordered that he serve thirty percent of his sentences before full release. On appeal, the

defendant challenges the sufficiency of the evidence and the denial of full probation.

We affirm the trial court’s judgments of conviction.



              Larry Kauker, a former police officer with the Alcoa Police Department,

testified that he and Officer Hubert Holden responded to a 911 call reporting a domestic

violence complaint. He said that they drove to Lakeview Terrace Mobile Home Park

and a woman directed them to a trailer. He said that Lieutenant Ronnie Sellers and

several other officers arrived. Officer Kauker testified that he and Officer Holden

entered the trailer and saw Cynthia Jenkins, one of the assault victims. Officer Kauker

testified that Ms. Jenkins was distraught, upset and crying. He testified that he did not

know whether the victim was intoxicated, but he did not see any signs that she had

been drinking or was intoxicated. He said that Ms. Jenkins had blood on her face and

that her face appeared to be injured. He stated that another woman in the trailer told

him what happened.



              Officer Kauker testified that based on what the woman told him, he,

Officer Holden, and Lieutenant Sellers went to the defendant’s trailer where a party was

being held. Officer Kauker testified that the trailer had been damaged as evidenced by

a door that had been torn from its frame. He stated that the defendant was inside, that



                                            2
Lieutenant Sellers talked to the defendant, and that Lieutenant Sellers then instructed

Officer Kauker to arrest the defendant for domestic violence. Officer Kauker testified

that the defendant did not appear to be injured. He stated that he could not remember

whether the defendant was drunk. He said that he did not have any problems

handcuffing the defendant and placing him in the back of the cruiser.



             Officer Kauker testified that they then learned that the Blount County

Sheriff’s Department had jurisdiction over the crime. He said that the defendant was

removed from his cruiser, and he and Officer Holden stood behind the defendant and

removed his handcuffs. Officer Kauker testified Lieutenant Sellers was standing

approximately an arm’s length in front of the defendant. He said that the defendant

then shouted at Lieutenant Sellers that he knew were he lived and that he was going to

get him and his family. He stated that as they were switching the handcuffs, the

defendant began struggling and then spat in Lieutenant Sellers’ face. He said that the

defendant was then sprayed with a chemical restraint device. Officer Kauker testified

that he had been sprayed with the device before and that a person can detect if the

defendant had been sprayed by its odor. He said that he did not smell the spray on the

defendant before handcuffing the defendant and before the defendant spat on

Lieutenant Sellers. He stated that the defendant calmed down after being sprayed and

that he was then placed in the county cruiser. On cross-examination, Officer Kauker

conceded that he did not know when the damage to the trailer door occurred. He

admitted that he did not investigate whether the defendant and the victim had been

drinking.



             Officer Hubert Holden, a reserve police officer for the City of Alcoa,

testified that Ms. Jenkins had been crying and had quite a bit of blood on her arms and

on her face. He said that her mouth and nose were bleeding and that a third of her

face was covered in blood. He testified that there was also quite a bit of blood on her



                                            3
clothing. Officer Holden testified that when Lieutenant Sellers questioned Ms. Jenkins,

she told him that the defendant was the one who had caused her injuries. He said that

Ms. Jenkins told Lieutenant Sellers that she and the defendant had argued but that the

argument worsened and the defendant hit her. He stated that Ms. Jenkins appeared to

have been drinking but that she appeared to be more injured than she was intoxicated.



              Officer Holden testified that the steps to the defendant’s trailer had been

torn away. He said that the inside of the trailer was in disarray, and he believed that a

struggle had taken place. Officer Holden testified that the furniture and the lamps were

knocked over. He stated that there was a hole in the door that looked like someone

had stuck a fist through it. Officer Holden testified that the officers found the defendant

inside the trailer sitting on the couch. He stated that the defendant was agitated when

they went inside the trailer. He said that the defendant was in a very intoxicated state,

and he described the defendant as being “out of it” and being “way beyond controlling

himself.” He said that the defendant could not walk without assistance. He stated that

the defendant did not appear to be injured.



              Officer Holden testified that the defendant told him that there had been an

argument but that it was not a big deal to him. He stated that the defendant resisted

somewhat when they tried to place him in the cruiser after being handcuffed. Officer

Holden stated that when they removed the defendant from the cruiser to transfer

custody to the sheriff’s department, the defendant cussed Lieutenant Sellers,

threatened him, and spat on him. He said that Lieutenant Sellers then sprayed the

defendant. He stated that the defendant did not calm down and that it took five or six

officers to subdue the defendant in order for the officers to completely change the

handcuffs. Officer Holden testified that Lieutenant Sellers did nothing to upset the

defendant but rather he tried to calm the defendant down. Officer Holden conceded




                                              4
that he did not know when the damage to the trailer took place. He stated that the

defendant admitted striking at Ms. Jenkins and knocking a hole in the door.



              Deputy Sheriff Lynn Steadman testified that he arrived at the Lakeview

Terrace Mobile Home Park and saw the defendant sitting in the back of a police cruiser.

He stated that the officers decided to transfer the defendant to his cruiser because the

offense occurred in Blount County. He said that as he was removing items from the

backseat of his cruiser, he heard Lieutenant Sellers state that the defendant spat on

him. Deputy Steadman testified that he turned around and saw Lieutenant Steadman

wiping spit off his face.



              Cynthia Jenkins testified that she was the defendant’s girlfriend and that

they had lived together for four years. She said that she and the defendant had two

children together. She stated that she sustained physical injuries, including bruising all

over her body and face, on the night of September 9, 1994, but that she did not know

how the injuries occurred. Ms. Jenkins testified that she was very intoxicated. She said

that she stayed at her grandparent’s house after the offenses occurred. She testified

that she went back to the trailer park the next day and that her neighbors told her what

happened. Ms. Jenkins stated that she did not remember going to the hospital. She

acknowledged that her signature appeared on a sworn affidavit detailing that the

defendant hit her with his fists, causing cuts, bruises and abrasions on her face. She

asserted that she did not remember giving the statement or going to the courthouse to

sign the warrant. Ms. Jenkins testified that she remembered going to the defendant’s

parent’s house to pick up her youngest daughter and taking her to her grandparent’s

house. She stated that she began living with the defendant again approximately three

months later. She said that she tried to reconcile within the three-month period but that

the defendant would not speak to her.




                                            5
              On cross-examination, Ms. Jenkins testified that several people were at

her and the defendant’s trailer. She said that she remembered that she and the

defendant drank over half of a fifth bottle of tequila on the night of the offense but that

she could not remember if they finished the bottle. She stated that they drank the liquor

when she returned from work at approximately 6:00 p.m., and she said that she drank

the liquor quickly. Ms. Jenkins testified that she remembered drinking with a woman

that lived nearby and asking her if she wanted to be with the defendant. Ms. Jenkins

testified that she became very angry because the woman said that the woman was

going to have sex with the defendant. She stated that she did not remember much

after this point. She said that she did not remember getting in the shower, getting

dressed in the bedroom, or fighting with the defendant at a neighbor’s house. Ms.

Jenkins testified that she also did not remember the police coming to the trailer.



              Ms. Jenkins stated that during her relationship with the defendant, he had

never struck her, although she had hit him a few times when she was angry and had

been drinking. She admitted that she had a very bad temper. She said that her temper

was bad enough for her to lie to the police because she was angry at the defendant.

Ms. Jenkins testified that she had lied to other people about the defendant’s conduct

because she was angry at the defendant. On redirect examination, Ms. Jenkins

testified that the defendant had never gone to the hospital as a result of her attacks.

She stated that it was possible that she could knock a hole in a door. On recross-

examination, Ms. Jenkins testified that the trailer she and the defendant lived in had

holes in the doors when they moved there.



              Deputy John James of the Blount County Sheriff’s Department testified

that he arrived when the defendant was siting in the back of a City of Alcoa police

cruiser. He stated that he spoke to Ms. Jenkins very briefly as she was receiving

medical treatment. He stated that she told him that she and the defendant had been



                                             6
fighting. He said that Ms. Jenkins had blood on her face. He stated that he spoke to a

neighbor regarding her 911 call for help.



             Deputy James testified that he followed the ambulance to the hospital

where he spoke to Ms. Jenkins. He said that Ms. Jenkins was still excited but that she

was not drunk and was able to talk to him. He stated that he did not detect an odor of

alcohol and did not notice any slurred speech. Deputy James testified that Ms. Jenkins

told him that she and the defendant argued and eventually began fighting inside the

trailer. He said that Ms. Jenkins stated that she ran to a couple of neighbors and asked

them to call 911. Deputy James testified that he told Ms. Jenkins that she could speak

to a judge or a judicial commissioner at the sheriff’s department about obtaining a

warrant against the defendant. On cross-examination, Deputy James testified that Ms.

Jenkins essentially told him at the hospital that the defendant had assaulted her,

although he could not remember the exact words used by Ms. Jenkins. He conceded

that he did not test the victim for alcohol consumption.



             John Tindell testified that he was a judicial commissioner for Blount

County when the offenses occurred. He stated that he met with Cynthia Jenkins and

that he received a sworn affidavit from her. He said that he issued a warrant on

September 10, 1994, between the hours of midnight and 6:00 a.m. Mr. Tindell stated

that he could not remember Ms. Jenkins’ face but that he would not have issued a

warrant had the victim been drinking because it was against policy procedures. He said

that if Ms. Jenkins was intoxicated, she would have been incarcerated at the jail. He

testified that policy procedures required that they tell a person who was not intoxicated

but had been drinking to come back later when they had not been drinking. Mr. Tindell

stated that he had never issued a warrant to someone who had been drinking, and he

said that Ms. Jenkins had not been drinking. The affidavit signed by Ms. Jenkins and

Mr. Tindell was introduced as an exhibit. It states that Ms. Jenkins reported that the



                                            7
defendant hit her with his fists, causing multiple cuts, bruises and abrasions on her

face. On cross-examination, Mr. Tindell conceded that he did not give breathalyzer or

field sobriety tests to determine whether an affiant is under the influence of an

intoxicant. He stated on redirect examination that he believed he could have detected if

Ms. Jenkins had drunk a fifth of tequila.



              Lieutenant Ronnie Sellers of the Alcoa Police Department testified that he

received a call to assist the Blount County Sheriff’s Department. He stated that when

he arrived at Lakeview Terrace Mobile Home Park, he spoke to Cynthia Jenkins in one

of the trailers. He stated that Ms. Jenkins had a lot of blood on her face, hands and

clothes, and she was crying. Lieutenant Sellers testified that blood was also in the

floor. He did not believe that she was drunk, although he conceded that he did not get

very close to her. He stated that when he asked Ms. Jenkins what happened, she

replied that the defendant had beaten her. He said that she told him that the defendant

was in another trailer.



              Lieutenant Sellers testified that he went to a nearby trailer and found the

defendant inside sitting on the couch with a man. He stated that he asked the

defendant what had happened, and the defendant replied that they had a fight.

Lieutenant Sellers testified that he did not remember seeing a hole in the door, but he

stated that he was concentrating on the defendant. He said that he had earlier dealings

with the defendant, although he did not realize it at the time. He stated that he arrested

the defendant and placed him in the back of a City of Alcoa police car. He said that the

defendant had been drinking but that he cooperated with the police initially.



              Lieutenant Sellers testified that when the defendant was taken out of the

Alcoa police car to be transferred to a Blount County police car, the defendant began

threatening Lieutenant Sellers and his family, telling him that he knew where they lived.



                                             8
He said that he tried to assist the officers in taking the handcuffs off the defendant, but

he had trouble because the defendant kept struggling. He stated that when he leaned

up to tell the defendant that he could not get the handcuffs off with him struggling and

to tell him to calm down, the defendant turned and spit in his face. He said that he was

standing a couple of feet from the defendant when the defendant spat in his face.

Lieutenant Sellers testified that he then wiped the spit out of his face, and the

defendant continued to struggle. He said that he then sprayed the defendant’s face

with pepper spray because the defendant was out of control, and the defendant

stopped struggling. Lieutenant Sellers testified that he did not say anything to make the

defendant threaten him. He said that after the fourth or fifth threat, he told the

defendant to stop by if he wanted. Lieutenant Sellers stated that he went to the

emergency room to have his eyes flushed and his face scrubbed. He said that it scared

him when the defendant spat in his face.



              The defendant testified that he and Cynthia Jenkins had been dating

approximately four years, had two children together, and planned to get married soon.

He said that they were living together at the time of the offenses. He stated that he had

been employed as a painter for a long time. The defendant testified that several people

came to his trailer on the evening of September 4, 1994, and began drinking. He stated

that he was drinking beer and that Ms. Jenkins was drinking tequila with a female

neighbor. He said that they drank a fifth of tequila in approximately forty-five minutes

and that they began drinking his beer at approximately 7:00 or 7:30 p.m. The

defendant testified that they became intoxicated but that Ms. Jenkins got very

intoxicated because she drank more than the neighbor. He stated that the neighbor

began making passes at him and that Ms. Jenkins became very angry at him and the

neighbor when she heard the neighbor state that she was going to get the defendant

into bed. He said that he tried to explain to Ms. Jenkins that he was not interested in

the neighbor. The defendant said that he asked the neighbor to leave but that Ms.



                                             9
Jenkins was still real mad. He stated that he took their child to his mother’s house, and

Ms. Jenkins went to a neighbor’s house. The defendant testified that his parents tried

to get him to stay the night, but he told them that he needed to check on Ms. Jenkins

because she was really drunk. He said that when he returned, Ms. Jenkins was still at

the neighbor’s house but that he did not go there to speak to her. He stated that

several people told him that the police were coming after him. He said that he invited

the police into his trailer when they arrived and that he was then arrested.



              The defendant believed that Ms. Jenkins suffered her injuries when she

fell out of the bathtub at approximately 9:00 p.m. He stated that Ms. Jenkins slipped

when she reached down to turn off the faucet. He said that she also hit her head on

the toilet next to the bathtub. The defendant stated that Ms. Jenkins cut her mouth or

her nose in the bathroom and that it bled heavily. He said that he tried to clean the

blood off her but she would not let him because she was angry at him. The defendant

testified that Ms. Jenkins then went into the bedroom and fell down. He stated that Ms.

Jenkins walked naked in front of their guests and that she fell several times in the

house and fell once off the front porch. He stated that Ms. Jenkins dressed herself at

some point after falling in the bathtub and walking naked in front of their guests.



              The defendant testified that he and Lieutenant Sellers did not really talk

but rather Lieutenant Sellers taunted him as they came off the front porch by saying

that the police had him now and that he was going down and would never get out of jail.

He said that this made him very angry. He conceded that he did not like Lieutenant

Sellers. The defendant stated that Lieutenant Sellers continued to taunt him as he was

behind the defendant trying to remove the handcuffs. He said that he was not

struggling, although he was upset for being arrested because he believed that he had

done nothing wrong. He admitted that he was extremely mad at Lieutenant Sellers and

that he threatened to harm Lieutenant Sellers. He said that he also told Lieutenant



                                            10
Sellers that he did not have to take off his handcuffs because he would fight him

wearing handcuffs. The defendant testified that he did not remember threatening

Lieutenant Sellers’ family, and he said that he did not know where they lived. The

defendant stated that it was clear that Lieutenant Sellers did not like him either. He

said that a man behind Lieutenant Sellers sprayed him with pepper spray. He stated

that when the spray hit his face, he spat because it got in his mouth, eyes and nose.

The defendant asserted that he did not know which direction he was spitting. He

testified that he did not intentionally spit on anyone, although he conceded that he was

mad enough to spit on Lieutenant Sellers.



             The defendant did not believe that the pepper spray was necessary

because the only person he had any trouble with was Lieutenant Sellers and that was

only because he was taunting the defendant. He denied that he was drunk on the night

of the offense, although he admitted that he had a few drinks. He also admitted that he

probably threatened Lieutenant Sellers’ family, although he claimed that it was not

intentional and that he would not actually hurt his family. He said that he did not speak

to Ms. Jenkins after the arrest for several months. He stated that they no longer drink

in the house. The defendant testified that he had never struck Ms. Jenkins, although

she had struck him on earlier occasions. He stated that she had a very bad temper.

He said that he tried to leave when Ms. Jenkins became violent. On cross-examination,

the defendant conceded that he and Ms. Jenkins drank heavily at the time of the

offenses, and he acknowledged that it caused a lot of problems for them. The jury

found the defendant guilty of assaulting Ms. Jenkins and Lieutenant Sellers.



                         I. SUFFICIENCY OF THE EVIDENCE

              The defendant asserts that the evidence is insufficient to support his

convictions. He argues that the only way the jury could have found the defendant guilty

was if they ignored all of his testimony and the inconsistencies in the testimony of the



                                            11
state’s witnesses. Our standard of review when the sufficiency of the evidence is

questioned on appeal is "whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence, but presume

that the jury has resolved all conflicts in the testimony and drawn all reasonable

inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              In the light most favorable to the state, the evidence shows that the

defendant and Ms. Jenkins argued after they consumed alcohol at their trailer. The

evidence reflects that after the defendant struck Ms. Jenkins, injuring her, Ms. Jenkins

ran to a neighbor’s house and called the police. When the police arrived, Ms. Jenkins

had blood on her face, hands and clothes, and she was crying and was upset. Ms.

Jenkins told the officers that the defendant had beaten her up and had caused her

injuries. Later, Ms. Jenkins also signed an affidavit asserting that the defendant hit her

with his fists, causing cuts, bruises and abrasions on her face. Also, the trailer was in

disarray, a hole had been punched in the door, and the steps to the trailer had been

torn away. The defendant admitted striking at Ms. Jenkins and knocking a hole in the

door. Although the defendant claimed that the victim was highly intoxicated and

received her injuries when she fell in the bathtub, off the front porch, and in the

bedroom and throughout the house, the jury was entitled to reject this testimony. The

officers at the scene and the judicial commission who issued the warrant testified that

Ms. Jenkins was not intoxicated. We hold that the evidence establishes beyond a

reasonable doubt that the defendant assaulted Ms. Jenkins. See T.C.A. § 39-13-

101(a)(1).




                                            12
              As for the assault charge against Lieutenant Sellers, the proof shows that

the defendant was very intoxicated and that he began shouting and threatening

Lieutenant Sellers as he was moved from one police car to another. The defendant

admitted being very angry at Lieutenant Sellers and conceded that he threatened

Lieutenant Sellers and his family. When Lieutenant Sellers assisted in the removing of

the defendant’s handcuffs, the defendant spat in Lieutenant Sellers’ face. Lieutenant

Sellers then sprayed the defendant with pepper spray, and the defendant calmed down.

Afterwards, Lieutenant Sellers went to the emergency room to have his eyes flushed

and his face scrubbed. Lieutenant Sellers testified that he was scared when the

defendant spat in his face. Although the defendant testified that he did not spit until

after he was sprayed with pepper spray and that he did not intentionally spit on

Lieutenant Sellers, the jury was entitled to reject his testimony. This evidence is

sufficient to prove an assault. See T.C.A. § 39-13-101(a)(3).



                           II. DENIAL OF FULL PROBATION

              The defendant contends that the trial court erred by denying full probation.

He argues that he is an appropriate candidate for alternative sentencing. He concedes

that he has a lengthy history of criminal behavior. However, he asserts that his prior

convictions were alcohol-related and that society does not need to be protected from

him because he had stopped drinking. The defendant also argues against the trial

court’s consideration of his prior unsuccessful attempts at measures less restrictive

than confinement because it had been six years since the defendant had last been

placed on probation and the defendant had changed his life since that time. The state

responds that the trial court properly sentenced the defendant. We agree.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). A

misdemeanant, unlike a felon, is not entitled to a statutory presumption of a minimum



                                            13
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However,

the sentence imposed should be the least severe measure necessary to achieve the

sentencing purpose. As the Sentencing Commission Comments state, although

“probation must be automatically considered as a sentencing option for eligible

defendants, the defendant is not automatically entitled to probation as a matter of law.”

See also State v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). A defendant

who is eligible for probation has the burden of establishing suitability for probation.



              At the sentencing hearing, the defendant testified that he worked as a

painter for a company but that he had started his own painting business because the

company went out of business. He said that he planned to be a painting subcontractor

for home constructions. He stated that he had painted one apartment and had other

painting jobs scheduled. The defendant stated that he supported two children other

than those he had with the victim. He conceded that he did not pay the full amount of

child support and was approximately sixty thousand dollars behind in payments. He

also admitted that it had been approximately six months since he had made a child

support payment. The defendant said that he and Ms. Jenkins planned to get married

in April.



              The defendant admitted that he had eight prior misdemeanor convictions

and three prior felony convictions, and he claimed that they all involved alcohol. The

defendant stated that the breaking and entering and concealing stolen property

convictions involved entering and taking alcohol from a VFW Club. The defendant

admitted that he was an alcoholic, but he said that he had been sober since November

19, 1996. He stated that he went to a couple of AA meetings for the first week. The

defendant testified that after becoming sober, he had gone to church on a regular

basis. The defendant admitted that he had used marijuana after the trial, but he

claimed that he used it only because he was depressed over being wrongly convicted.



                                             14
The defendant also asserted that he only inhaled twice. He admitted that when he was

interviewed for the presentence report, he lied to the probation officer about his prior

use of marijuana even though a drug test showed that the defendant had used

marijuana. He acknowledged that he should have told the truth, but he claimed that he

was scared.



              On cross-examination, the defendant acknowledged that he was granted

probation for several of his prior convictions and that he violated the conditions of his

probation for the burglary and theft convictions. The defendant denied being granted

probation for an aggravated assault conviction and violating the conditions of the

probation. The defendant testified that it was a rare occurrence that he tested positive

for drugs. The state introduced a printout of the defendant’s child support payments,

and it reflects that the defendant had not made a payment in approximately fourteen

months. An order revoking probation for the aggravated assault conviction was also

introduced, reflecting that the defendant had violated the conditions of release.



              The presentence report reflects that the then thirty-three-year-old

defendant dropped out of high school in the tenth grade but that he had obtained his

GED. It shows that the defendant had been employed as a painter for approximately

one year. The defendant claimed to be in good physical and mental health, although

he admitted that he had been through driving under the influence school on three

occasions. He admitted that he had drunk alcohol since the age of thirteen and that he

began drinking at least once a week when he was sixteen years old. The defendant

claimed that he stopped drinking alcohol in 1996 when his driver’s license was

reinstated. The presentence report reflects that the defendant denied that he had ever

used drugs, but the report states that an earlier presentence report showed that the

defendant admitted trying marijuana when he was in high school. It shows that a drug




                                            15
screen conducted in January 1997 tested positive for marijuana but that the defendant

continued to deny that he used marijuana.



                The report shows that the defendant had several prior convictions for

offenses including assault, aggravated assault, breaking and entering, concealing

stolen property, two counts of driving on a revoked license, three counts of public

intoxication, and two counts of driving under the influence. It shows that the defendant

was granted alternative sentencing several times but that he violated the conditions of

release. The defendant denied that he committed the present offenses. The

presentence report reflects that the victim blamed herself for the offenses, stating that

she was highly intoxicated and had hit the defendant in the past during heated

arguments. The victim stated that she told lies about the defendant because she was

angry at him.



                The court determined that the defendant had a previous history of criminal

convictions or criminal behavior and a previous history of unwillingness to comply with

the conditions of a sentence involving release in the community. See T.C.A. § 40-35-

114(1) and (8). The trial court denied immediate probation. It noted that the fact that

the defendant had started a painting business weighed in favor of probation. However,

it found that the defendant had been untruthful, had a long criminal history, and had

failed to pay child support for fourteen months. The trial court also determined that the

offenses committed by the defendant were violent ones. It found that the defendant

used marijuana after being convicted of the present offenses and then lied to the

probation officer regarding his drug use. The trial court held that the defendant was not

amenable to rehabilitation.



                In this case, the evidence demonstrates that the trial court followed the

requirements of the law and exercised solid judgment in its determination that the



                                              16
defendant should serve thirty percent of his sentences in confinement. The defendant

has failed to establish that the trial court’s sentencing decision was improper.



              In consideration of the foregoing and the record as a whole, we affirm the

trial court’s judgment of conviction.



                                                 ____________________________
                                                 Joseph M. Tipton, Judge

CONCUR:



___________________________
John H. Peay, Judge



___________________________
David G. Hayes, Judge




                                            17
