        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs December 7, 2011

        STATE OF TENNESSEE v. JUSTIN ALEXANDER DEWEESE

               Direct Appeal from the Circuit Court for Bedford County
                           No. 17098 Lee Russell, Judge




                              No. M2011-00534-CCA-R3-CD - Filed June 28, 2012


Upon a plea of guilty, Defendant, Justin Alexander Deweese, was convicted of child abuse
of a child eight years of age or less, in violation of Tennessee Code Annotated section 39-15-
401(a), a Class D felony. He submitted to the trial court to determine the length and manner
of service of his sentence. After a hearing, the trial court ordered a three-year sentence of
confinement. Defendant has appealed, asserting that he should receive a totally suspended
sentence to be served on probation. He does not challenge the length of the sentence.
Having fully reviewed the record and the briefs of the parties, we affirm the judgment of the
trial court by memorandum opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Bedford County Circuit Court
Affirmed Pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

James O. Martin, III, Nashville, Tennessee (on appeal); and Andrew Jackson Dearing,
District Public Defender; and Michael Collins, Assistant District Public Defender, (at trial)
for appellant, Justin Alexander Deweese.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                               MEMORANDUM OPINION

        Defendant tied the hands of a three-year old child behind the child’s back, using a dog
leash to tightly bind the child’s hands, and forced the child to stand with his nose in a corner
of a room in Defendant’s residence for an unknown amount of time. When discovered by
law enforcement officers, they untied the tightly bound knots and noticed marks on the
child’s hands caused by the leash.

       At the sentencing hearing, the State offered the pre-sentence report as an exhibit, and
the report was admitted without objection from Defendant. Defendant’s mother testified on
Defendant’s behalf. She stated that Defendant resided with her at the time of the sentencing
hearing, and that if Defendant was given some form of probation, she would help make sure
he complied with all requirements of any sentence involving release in the community. No
other proof was presented.

        The pre-sentence report shows that Defendant pled guilty on December 17, 2010.
Subsequent to the guilty plea, but prior to the sentencing hearing, Defendant met with the
probation officer who prepared the presentence report. Defendant admitted to this officer
that he had smoked marijuana the day before the pre-sentence interview meeting. The officer
then told Defendant that marijuana would show “positive” on a drug test for thirty to forty-
five days after use. Defendant stated “that would depend on how much water he consumed,”
indicating his faith in a system to defeat a possible positive drug test result. Defendant was
on bond after the guilty plea and before the sentencing hearing.

       Defendant was on probation for a misdemeanor marijuana conviction and a
misdemeanor drug paraphernalia offense when he committed child abuse. Pursuant to
Tennessee Code Annotated section 40-35-102(6)(A), as a standard Range I offender
conviction of a Class D felony, Defendant could be considered a favorable candidate for
alternative sentencing, including full probation, absent statutorily defined “evidence to the
contrary.” See Tenn. Code Ann. § 40-35-103(1). One factor which negates a defendant from
being a “favorable candidate” is found in Tennessee Code Annotated section 40-35-
103(1)(C): “Measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the defendant.”

        Defendant was on probation when he committed the offense of child abuse. While
released on bond pending a sentencing hearing, he specifically admitted to smoking
marijuana the day before meeting with the probation officer, and generally acknowledged
that he used one gram of marijuana per day. Whether correct or not, his mindset was to beat
the criminal justice system by drinking enough water to prevent a positive result from a drug
test. Defendant is not an appropriate candidate for probation or any other form of alternative
sentence.

                                      CONCLUSION



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       The judgment of the trial court was in a proceeding without a jury, it was not a
determination of guilt, the evidence does not preponderate against the finding of the trial
court, and no error of law requiring a reversal of the judgment is apparent on the record.
Accordingly, the judgment of the trial court is affirmed by memorandum opinion pursuant
to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.


                                          _________________________________________
                                          THOMAS T. WOODALL, JUDGE




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