         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                           JUNE 1998 SESSION
                                                                 FILED
STATE OF TENNESSEE,               )                                 July 21, 1998
                                  ) C.C.A. No. 02C01-9708-CR-00312
      Appellee,                   )                              Cecil Crowson, Jr.
                                  ) Shelby County                Appellate C ourt Clerk
V.                                )
                                  ) Honorable Arthur T. Bennett, Judge
                                  )
BRYAN E. BASTEL,                  ) (Assault - Denial of Probation)
                                  )
      Appellant.                  )




FOR THE APPELLANT:                   FOR THE APPELLEE:

Edward Witt Chandler                 John Knox Walkup
Attorney at Law                      Attorney General & Reporter
2502 Mt. Moriah Rd., Suite A100
Memphis, TN 38115                    Marvin E. Clements, Jr.
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     William L. Gibbons
                                     District Attorney General

                                     Lee Coffee
                                     Assistant District Attorney General
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge




                                  OPINION
      Originally charged with aggravated assault, the appellant, Bryan Bastel,

pled guilty to assault in the Shelby County Criminal Court. The court denied the

appellant’s petition for a suspended sentence and sentenced him to serve thirty

days in the Shelby County Correctional Center. He appeals. The sole issue for

our review is whether the trial court erred in denying an alternative sentence.

We affirm the judgment of the trial court.



       The appellant is a twenty-two-year old electrical engineering student at the

University of Memphis. In May of 1995, the appellant and several friends went to

a festival known as “Memphis in May.” As they were leaving the festival, the

appellant’s friend, Chris Belue, stopped to use the restroom. The appellant and

his other friends walked on toward their car. They then heard Belue “hollering”

for them to come back. The victim, Timothy Evans, had Belue by the wrist.

Evans saw that Belue had entered a vehicle without the owner’s consent.

Apparently Evans was a volunteer at the festival and intended to take Belue to

the police for questioning. Belue told Evans and the appellant that a girl had

given him permission to get cigarettes out of a white car. The appellant told

Evans to let go of Belue. Evans refused, saying that he was taking Belue to the

police. The appellant broke Evan’s grip on Belue’s wrist. The appellant claims

that Evans pulled “something” out of his pocket. The appellant claims that his

friends who were several feet behind him stated “Watch out. He’s got

something.” The appellant later learned that Evans pulled out scissors. The

appellant kicked at Evan’s hand twice and swung at him twice. He actually hit

Evans in the hip as he swung at Evan’s hand. Evans left and notified the police.

The appellant testified that he and his friends walked toward their car to leave.

Several minutes later, the police arrested the appellant. The appellant testified

that he did not go to the police to resolve the issue because he was tired and

had to get up early the next morning to go to work. The appellant testified that he

thought that Evans was picking on Belue. The appellant did not believe that

Belue had done anything wrong.


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      The court also considered the presentencing report. Evans and the police

gave a slightly different account of the events than the appellant. Evans stated

to the police that the appellant made two aggressive attempts to cut him with a

six-inch hunting knife. Evans stated that if the appellant’s friends had not

intervened, he, Evans would have been murdered. Evans stated that the

appellant “reeked” of alcohol. From the record it appears that the police report

indicates that the appellant pulled a knife on Evans and threatened him. The

report also indicates that the police had to chase the appellant and Belue.



        The appellant denied that he had a six-inch hunting knife, but admitted

that he did have a small pocket knife. He denied pulling any kind of knife on

Evans. He denied that he made the threatening statements to Evans. He

denied that the police chased him.



       Assault is a class A misdemeanor punishable by up to eleven months,

twenty-nine days in jail. Tenn. Code Ann. §§ 39-13-101(b) (1990), 40-35-

111(e)(1) (1989). The court denied the appellant’s application for a suspended

sentence. He sentenced the appellant to serve thirty days. The court allowed

the appellant to serve the time on weekends or nonconsecutive days when the

appellant was not in school. The court found that the appellant lacked credibility.

The court did not believe that the appellant was telling the whole story about the

offense in question. The court found that the appellant had a history of criminal

convictions involving assault and a history of criminal behavior. The appellant

was convicted of assault in 1993. He was arrested for or convicted of battery or

assault and battery in Arkansas. He was arrested for public intoxication and

disorderly conduct in 1993. At the time of the offense, the appellant was out on

bond for possession of a controlled substance. The trial court also found that

suspending the appellant’s sentence would depreciate the seriousness of the

offense. From the record, it appears that the court was concerned about the

appellant’s cocky attitude and inability to appreciate the seriousness of the

offense. Past attempts at rehabilitating the appellant with measures less


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restrictive than incarceration have failed. The court took into consideration that

the appellant was in school and was gainfully employed.



       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).



       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

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).



       We affirm the judgment of the trial court. The evidence amply supports

the court’s denial of the appellant’s petition. The appellant’s lack of credibility,

his prior history of criminal behavior, and the failure of past rehabilitation are

supported by the evidence. They are appropriate factors upon which to deny

probation.



       The judgment of the trial court is affirmed.



                                                _____________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:




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_________________________
DAVID H. WELLES, Judge




__________________________
JOE G. RILEY, Judge




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