         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 28, 2004

                    STATE OF TENNESSEE v. BRYANT DUNN

                     Appeal from the Criminal Court for Sullivan County
                            No. S46,463   R. Jerry Beck, Judge



                    No. E2003-02526-CCA-R3-CD - Filed October 7, 2004


The defendant, Bryant Dunn, pled guilty to theft over one thousand dollars, a Class D felony, and
the Sullivan County Criminal Court sentenced him to two years incarceration in the Department of
Correction. The defendant appeals, claiming that the trial court erred by denying him probation or
alternative sentencing. We affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN
EVERETT WILLIAMS, JJ., joined.

Charles L. Moffatt, IV, Bristol, Tennessee, for the appellant, Bryant Dunn.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Rebecca H. Davenport and Joseph
Eugene Perrin, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to the defendant’s stealing food from a grocery store. At the plea hearing,
the state gave the following account of the crime: on March 26, 2002, a video camera at the Food
Lion in Bristol, Tennessee recorded the defendant loading shopping carts full of groceries and
leaving the store without paying. The store manager, Regie Moore, gave the videotape to detectives
from the Bristol Police Department. During their investigation, the detectives were able to discover
that the defendant was giving money to employees of the Food Lion, and in return, the employees
were allowing the defendant to leave the store without paying. The detectives questioned the
defendant, and the defendant admitted that he paid employees of the Food Lion to allow him to leave
the store without paying. He admitted that he stole a total of approximately six to seven thousand
dollars worth of “meat and assorted frozen food.” However, one of the employees bribed by the
defendant placed the value above ten thousand dollars.
        The defendant was charged with theft over ten thousand dollars, a Class C felony, but after
negotiating a plea agreement with the state, he pled guilty to theft over one thousand dollars, a Class
D felony. At the plea hearing, the defendant was categorized as a Range I, standard offender, and
the court sentenced him to a term of two years, the presumptive minimum sentence within the range,
reserving for a later date the question of the manner by which the defendant was to serve his
sentence.

         At the probation/community corrections hearing, the defendant testified concerning the
circumstances surrounding (1) his twenty-four prior misdemeanor convictions and (2) his five prior
juvenile adjudications. He testified that most of his prior misdemeanor convictions were for traffic
offenses. He said that he had always paid his misdemeanor court costs and fines, and he said that
he currently had a valid driver’s license and three validly registered cars. He said that he had
successfully completed probation as a juvenile and that he had successfully completed probation at
a halfway house resulting from a misdemeanor theft conviction when he was eighteen years old. He
testified that although he had an intermittent work history, he was currently employed by Martin
Enterprises, a construction firm engaged in the rebuilding of low-income homes for the government.
He said that he enjoyed his current job because he liked building houses and because he did not have
to work nights.

        No one else testified at the probation/community corrections hearing. However, the state
introduced into evidence the presentence report. The court considered the presentence report in
making its ruling, focusing on the cumulative nature of the defendant’s prior convictions and on the
fact that the prior efforts at rehabilitating the defendant short of incarceration had obviously failed.
The court then ordered the defendant to serve his two-year sentence in confinement with the
Department of Correction.

         On appeal, the defendant claims the trial court erred in denying probation or alternative
sentencing. Specifically, the defendant claims the trial court gave too much weight to his prior
traffic offenses, that the trial court gave too much weight to his juvenile adjudications, that the trial
court failed to give weight to the nonviolent nature of the offense, and that the trial court improperly
evaluated his work history. The state contends that the trial court properly considered the
defendant’s criminal history, that the trial court properly placed great emphasis on the fact that
measures less restrictive than confinement have been unsuccessfully applied to the defendant, and
that confinement is necessary to protect the public from the defendant.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness is
“conditioned upon the affirmative showing in the record 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). The burden is on the appealing party to show that the sentence is improper. T.C.A. § 40-35-
401(d), Sentencing Commission Comments. This means that if the trial court followed the statutory
sentencing procedure, made findings of fact that are adequately supported in the record, and gave


                                                  -2-
due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        When determining if incarceration is appropriate, a trial court should consider whether (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. § 40-35-
103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set forth in
T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438
(Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s potential or lack
of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and 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,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -
210; see Ashby, 823 S.W.2d at 168.

        Initially, we note that the trial court’s determinations as to the sentences are entitled to a
presumption of correctness because the record reflects that in denying probation, the trial court
considered the relevant facts, circumstances, and sentencing principles. Regarding the defendant’s
claim that the trial court should have given weight to mitigating factor (1), that the defendant’s
conduct did not cause or threaten serious bodily injury, as long as the trial court followed the
sentencing purposes and principles, the weight to be afforded an existing factor is left to the trial
court’s discretion.

        The record reflects that the defendant has been convicted of twenty-four misdemeanors as
an adult. Additionally, the record reflects that the juvenile court adjudicated the defendant
delinquent on five occasions for offenses ranging from burglary to aggravated assault. The defendant
was given sentences less severe than incarceration on all of his prior convictions; yet, these attempts
at rehabilitation had proven wholly inadequate in preventing the defendant from continuing to show
disregard for the laws of this state. We conclude that the defendant is not entitled to relief on this
issue, and we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE


                                                 -3-
