                                                                                       01/24/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs May 7, 2019

        STATE OF TENNESSEE v. SHANDEJAH ANDREA STONE

               Appeal from the Criminal Court for Davidson County
                   No. 2018-A-262    Mark J. Fishburn, Judge
                    ___________________________________

                          No. M2018-01519-CCA-R3-CD
                      ___________________________________


A Davidson County jury convicted Shandejah Andrea Stone of simple assault. The trial
court sentenced Defendant to eleven months and twenty-nine days, with all suspended
except ninety days to be served by incarceration. Following release from jail, Defendant
is to be on two years of unsupervised probation. On appeal, Defendant argues that her
sentence is excessive and that her alternative sentence should not include any period of
incarceration. In addition, Defendant asserts as an issue that during the sentencing
hearing, the trial court erroneously allowed admission into evidence a Facebook video
over objection that the exhibit had not been properly authenticated. After review of the
record and the parties’ briefs, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and D. KELLY THOMAS, JR., JJ., joined.

David Von Wiegandt, Nashville, Tennessee, for the appellant, Shandejah Andrea Stone.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Vince Wyatt,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

Trial

       Since Defendant does not challenge her conviction, we will summarize the
evidence at trial, in the light most favorable to the State, as necessary to address the
issues raised by Defendant.
       At the time of the assault, Defendant and the victim, Shitia Cotton, had been
friends for several years, but had developed animosity toward each other which resulted
in angry communications on social media, specifically on Facebook. The assault
occurred at approximately 8:30 a.m. on Monday, January 23, 2017, in the parking lot of
the childcare business where the victim was employed. The victim had just arrived at
work and had parked her car. Defendant, accompanied by a friend, had driven into the
parking area just behind the victim. Defendant got out of her car and began attacking the
victim as the victim was getting out of her own vehicle. The victim was punched and
thrown down on the pavement. Defendant kicked the victim in the face. Defendant’s
friend filmed the attack. Employees of the childcare came outside and said they were
calling the police. Defendant ultimately stopped the attack, and she and her friend left in
Defendant’s car. When paramedics arrived, the victim was on the ground, bleeding with
a cut below one of her eyes. The victim was taken to a nearby hospital and received
stitches for the cut. Her eye soon swelled until it was shut. Previously, on Friday,
January 20, 2017, Defendant had gone to the childcare and banged doors, yelling for the
victim to come outside and fight. The victim stayed inside, and Defendant ultimately left
the premises. Both Defendant and the victim were in their mid-to-early twenties in age at
the time of the assault.

Sentencing Hearing

       The victim and Defendant were the only witnesses who testified at the sentencing
hearing. In addition to recounting a portion of her trial testimony, the victim testified that
she was terminated from her employment following the assault. Her employer took this
action because parents of the children became concerned about the children’s safety
following Defendant’s actions on January 20th and 23rd, 2017. The victim was
unemployed four months before she again became employed.

       The victim indicated that Defendant used Facebook posts to harass the victim
multiple times up to the time of the sentencing hearing. In particular, the victim testified
about a “Facebook Live” post wherein Defendant appeared to be in Florida where she
had moved after the assault. Defendant threatened to get people kicked out of their
residences in the housing authority in Nashville, that she was going to “get back” at
certain people who had done things to her, and that she is the “M.F.-ing [sic] queen of
get-backs.”

        Defendant objected to the introduction of the Facebook Live video on the basis
that its authentication had not been established. Defendant argues that its authentication
had to be established by a Facebook representative or by Defendant. Also, Defendant
objected on the basis that playing the Facebook Live video was a violation of her rights
under the First Amendment to the United States Constitution. It was undisputed at the


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sentencing hearing that Defendant was shown on the video speaking what was said. The
trial court overruled Defendant’s objection, and viewed the Facebook Live video.

      Defendant’s testimony included her acknowledgement that it was her who
appeared in and spoke on the Facebook Live video which had already been admitted into
evidence at the sentencing hearing. She testified that some of the things she said in the
video were directed at the victim, but not only the victim, but also toward other women.

       When asked why she had committed the assault upon the victim, Defendant stated
that she had been bullied and provoked by the victim and friends and relatives of the
victim. Defendant testified that she has mental health disorders which include being
bipolar, depression, and anxiety. She added that she attends counseling sessions for
anger management once each week where she resides in Florida.

       Other evidence at the sentencing hearing included Defendant’s prior conviction for
assault in June 2014, for which she was placed on probation. She violated probation, and
was ordered to be incarcerated for approximately two weeks and then placed back on
probation. She was also convicted of misdemeanor theft in General Sessions Court of
Davidson County in October 2014, for an offense committed in April 2014, and she was
sentenced to “time served.”

        In the case sub judice, the trial court found that Defendant had a prior criminal
record for convictions, in addition to a probation violation. The trial court found that
Defendant had a bond revocation hearing in the present case. The trial court stated there
had been new criminal charges against Defendant in which the evidence showed her
arrest for the new charges was “warranted.” The trial court also found that the nature of
the assault for which Defendant was convicted was exacerbated by the fact that
Defendant went to the premises of an open childcare business with the clear intent to
assault the victim, and she took someone with her to video the attack.

       As to alternative sentencing, the trial court commended Defendant for attending
counseling, but found that Defendant’s efforts had not been successful. The trial court
found Defendant still exhibited significant anger issues, and Defendant is “lashing out”
and willing to get her vengeance in this case. The trial court, based upon Defendant’s
tenor and tone of her testimony, concluded that Defendant clearly feels justified in
committing the assault on the victim.

       After considering its finding and the principles of sentencing, the trial court
imposed a sentence of eleven months and twenty-nine days, all suspended except ninety
days, with unsupervised probation for two years following release from incarceration.




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                                           ANALYSIS

Admissibility of Facebook Video

        On appeal, Defendant argues that the Facebook video was not properly
authenticated pursuant to Tennessee Rule of Evidence 901, and therefore the trial court
erred by allowing its admission into evidence over Defendant’s objection. The record
reflects the video showed Defendant in Florida talking about various matters.
Defendant’s statements in the video contributed to the trial court’s factual findings that
Defendant continued to exhibit significant anger issues and continued to lash out and is
willing to get vengeance in this case. Defendant used an expletive to describe herself as
the “queen of get-backs.”

       Tennessee Rule of Evidence 901 provides in pertinent part that

        Rule 901. Requirement of Authentication or identification.– (a)
        General Provision. – The requirement of authentication or identification
        as a condition precedent to admissibility is satisfied by evidence
        sufficient to the court to support a finding by the trier of fact that the
        matter in question is what its proponent claims.

        Rule 901 provides that, by illustration, one method of authentication or
identification of an exhibit which complies with the rule’s requirements is the exhibit’s
“[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics,
taken in conjunction with circumstances.” Tenn. R. Evid. 901(b)(4).

        The proponent of the evidence, the State, submitted the evidence as a video
recording of Defendant making statements which were relevant to the sentencing
considerations which were to be made by the trial court. The trial court had seen
Defendant at trial and heard her testimony. The trial court again saw Defendant at the
sentencing hearing. The pertinent factual findings made by the trial court, based in part
on what it observed in the video, related to what Defendant said in it. Information as to
the video having been distributed via any social media, who may have distributed the
video, and who may have previously seen it was not necessary for the ultimate use of the
video as evidence. The video was thus properly authenticated and Defendant is not
entitled to relief on this issue.

Defendant’s Sentence

       As stated above, the portion of Defendant’s sentence relevant to this issue is the
incarceration portion of her sentence of split confinement, which is ninety days.
Defendant argues that she should have received an alternative sentence that does not
include any incarceration. Defendant argues that the trial court inaccurately applied

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enhancement factors. The trial court applied as a statutory enhancement factor (1) that
Defendant has a prior history of criminal conduct or convictions. T.C.A. § 40-35-114(1).
The record clearly shows that application of this enhancement factor was appropriate.
The trial court applied factor (8) because of Defendant’s probation violation in a prior
sentence. Id. § 40-35-114(8). Again, the record clearly supports the application of this
factor.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). This Court will uphold the trial court’s sentencing decision “so
long as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-
10. Moreover, under those circumstances, we may not disturb the sentence even if we
had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).
The party appealing the sentence has the burden of demonstrating its impropriety. T.C.A.
§ 40-35-401, Sent’g Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). At a sentencing hearing, the trial court, as the trier of fact, listens to the testimony
and observes the demeanor of the witnesses. The appellate court gives great weight to
the determinations made by the trial court concerning the credibility of witnesses. This
Court will not interfere with the trial court’s findings unless the record preponderates
against them. State v. Melvin, 913 S.W.2d 195, 202 (Tenn. Crim. App. 1995).

        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant made in the defendant’s own behalf
about sentencing; and (8) the result of the validated risk and needs assessment conducted
by the department and contained in the presentence report. See T.C.A. § 40-35-210; State
v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). 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 (2017).

      While the trial court determined that no mitigating factors applied, on appeal
Defendant asserts the following statutory mitigating factors should apply: factor (1), that
Defendant’s conduct neither caused nor threatened serious bodily injury. T.C.A. § 40-
35-113(1) (emphasis added). Defendant asserts this applies because the jury, by its

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verdict, conclusively found no serious bodily injury or attempt to cause bodily injury.
Defendant did not ask the trial court to apply this mitigating factor, and therefore it is
raised for the first time on appeal. Even if not waived by Defendant, the trial court was
justified by not applying this mitigating factor because it is reasonable to find that
whenever a person is kicked in the vicinity of an eye, there is a threat of serious bodily
injury to the eye, bones in the face, or even brain injury.

         The only mitigating factors suggested by Defendant at the sentencing hearing was
that she was provoked by the victim, T.C.A. §40-35-113(2), and that Defendant has made
efforts to improve herself by moving away from Davidson County, attending counseling,
and addressing her anger management problem. Id. T.C.A. § 40-35-113(13). The record
clearly supports the trial court’s decision to not apply these mitigating factors. Defendant
also submits, for the first time in her appeal, that mitigating factor (11) applies, that she,
although guilty of the crime, committed the offense under such unusual circumstances
that it is unlikely that a sustained intent to violate the law motivated the criminal conduct.
T.C.A. § 40-35-113(11). Even if not waived, the record reflects that Defendant drove to
the victim’s place of work, actually following the victim there and elicited a friend to
come along and film the assault, which began as soon as Defendant arrived. This is a
classic example of a “sustained intent to violate the law.” There is no error in the trial
court’s decision as to applicability of enhancement factors and its decision that no
mitigating factors applied.

        Defendant asserts the trial court erroneously relied on deterrence more than
rehabilitation and erroneously denied full probation on the basis of Defendant’s probation
violation in a prior case. Defendant also asserts that there was no evidence for the need
of deterrence to deny a sentence of full probation. Specifically, Defendant argues that the
trial court erred in its findings of fact that Defendant’s testimony lacked credibility, that
her efforts at rehabilitation seemed to not be working, and that her explanations of an
innocent misunderstanding caused her probation violation. The record clearly supports
the trial court’s findings of fact, including its credibility determinations of Defendant’s
testimony.

        Finally, Defendant argues that there is no evidence in the record to support the
trial court’s decision to deny full probation on the basis of deterrence.

       The trial court found that the sentence it imposed was necessary to provide a
deterrence to Defendant, and not necessarily to the public at large. The trial court
specifically stated,

        The reality of this situation is that I - - I mean, this message may not get
        out to the public in terms of any type of deterrent effect on the public,
        but at some point in time on an individual basis, everyone who is using


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        social media to do what was done in this case is going to have to start
        paying the piper.

       In her argument on appeal Defendant relies heavily on her assertion that the
Facebook video viewed by the trial court was the primary source of all the trial court’s
sentencing determinations, and the incarceration portion should be set aside because the
video was not authenticated. We have concluded otherwise. Not only the Facebook
video, but Defendant’s own testimony at trial and the sentencing hearing showed that
Defendant’s reaction to social media postings led her to commit the criminal assault on
the victim. The trial court noted Defendant’s anger issues and desire for vengeance. The
trial court also relied on Defendant’s prior probation violation and the fact that she
committed an additional criminal offense while on bond in the case sub judice, leading to
a bond condition violation. Thus, deterrence of Defendant was not the sole basis upon
which the trial court denied full probation.

        In misdemeanor sentencing, the “trial court need only consider the principles
of sentencing and enhancement and mitigating factors in order to comply with the
legislative mandates of the misdemeanor sentencing statute.” State v. Troutman, 979
S.W.2d 271, 274 (Tenn. 1998). Thus, the trial court is afforded considerable latitude
in misdemeanor sentencing. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim.
App. 1999). The “Bise standard is the appropriate standard of review in misdemeanor
sentencing cases.” State v. Gregory Gill, No. W2018-00331-CCA-R3-CD, 2019 WL
549651, at *16 (Tenn. Crim. App. February 11, 2019).

       As for the denial of full probation, “the abuse of discretion standard, accompanied
by a presumption of reasonableness, applies to . . . questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). In
determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social
history and present condition, the need for deterrence, and the best interest of the
defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). “[T]he
burden of establishing suitability for probation rests with the defendant.” T.C.A. § 40-
35-303(b). “This burden includes demonstrating that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Carter, 254
S.W.3d 335, 346 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357
(Tenn. Crim. App. 1997)). A trial judge must consider the following factors before
imposing a sentence of incarceration:

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

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        (C) Measures less restrictive than confinement have frequently or
        recently been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103(1). Additionally, the sentence imposed should be the least severe
measure necessary to achieve its purpose, and the defendant’s potential for rehabilitation,
or lack thereof, should be considered when determining whether to grant alternative
sentencing. T.C.A. 40-35-103(4) and (5). Trial judges are encouraged to use alternative
sentencing when appropriate. T.C.A. 40-35-103(6). The trial court ordered a sentence
which included probation with all but ninety days suspended. This split confinement
sentence is an alternative sentence to full incarceration. The trial court’s findings of fact
support a basis to conclude that an alternative sentence involving some incarceration is
necessary to avoid depreciating the seriousness of the offense. Defendant violated
probation conditions imposed in a prior sentence. As to charges brought against
Defendant for a criminal offense committed while released on bail for the current offense,
the trial court determined at the sentencing hearing that those charges were “warranted.”

       Having reviewed the record and applied the applicable law to the trial court’s
sentencing determination, we find no error by the trial court’s decision to deny full
probation. Defendant is not entitled to relief in this appeal.

                                      CONCLUSION

       The judgment of the trial court is affirmed.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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