        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs July 27, 2010 at Knoxville

         STATE OF TENNESSEE v. JAMIE LYNN MIDDLEBROOK

                 Appeal from the Criminal Court for Davidson County
                     No. 2008-A-790 Cheryl Blackburn, Judge




               No. M2009-02276-CCA-R3-CD - Filed January 11, 2011


The Defendant, Jamie Lynn Middlebrook, was indicted by the Davidson County Grand Jury
for aggravated assault, a Class C felony, and theft of property valued $1,000 or more, a Class
D felony. Following a jury trial, the Defendant was convicted of aggravated assault. The
jury was unable to fix the property value for the theft charge; therefore, the trial court
declared a mistrial as to that count. At the sentencing hearing, the Defendant pled guilty to
theft of property valued $500 or more, a Class E felony. The trial court imposed concurrent
sentences of 6 years as a career offender for the theft conviction and 13 years as a persistent
offender for the aggravated assault conviction. The trial court ordered the sentences to be
served consecutively to a sentence imposed in another case. In this appeal as of right, the
Defendant contends (1) that the evidence is insufficient to sustain her conviction of
aggravated assault; (2) that the trial court erred in granting the State’s motion to admit
evidence of prior bad acts; and (3) that the trial court erred in sentencing the Defendant.
Following our review, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

David M. Hopkins (on appeal) and Ben Russ (at trial), Nashville, Tennessee, for the
appellant, Jamie Lynn Middlebrook.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

       At trial, Brandon D. Brown, a loss prevention associate at Sears, testified that on
November 6, 2007, he and Paul Pinkerton, another loss prevention employee, were utilizing
cameras to observe customers shopping in the department store. Mr. Brown observed three
people, Kathryn Holt, the Defendant, and a young black male, moving merchandise to a
centralized location while “ducking down” and “concealing the merchandise” in a shelving
area. When the three left the area, the young black male was holding a shopping bag. The
three were moving quickly to the exit and left without paying for the merchandise.

       Mr. Brown left the store through the lower exit and went to the parking lot, where he
observed that all three were walking quickly to a vehicle. He saw the young man toss the bag
of merchandise into the back of the vehicle before getting into the passenger seat of the
vehicle. The Defendant got into the driver’s seat of the vehicle. However, Ms. Holt, who
was “lagging behind,” was eventually detained by Mr. Pinkerton. Mr. Brown said that he
approached the vehicle and identified himself as a loss prevention officer. At that time, the
Defendant had not shut her door or started the vehicle.

       Mr. Brown said that the window was open and that he was holding the door with his
left hand while attempting to pull at the door when the Defendant started the vehicle and
reached for the gear shift. The Defendant then put the vehicle in reverse and “recklessly”
backed out of the space while turning toward Mr. Brown. As she turned, she struck Mr.
Brown in his right knee with the front bumper of the vehicle. After striking Mr. Brown, the
Defendant continued to back out of the space and drove, while in reverse, out of the parking
lot. Mr. Brown stated that he made eye contact with the Defendant when he was at her door;
that the tires of her car squealed as she pulled out of the parking place; and that the
Defendant drove approximately 30 miles per hour as she was backing out of the parking lot.
Relative to his injury, Mr. Brown stated that his knee hurt “substantially” but that he did not
have to seek any medical treatment.

       On cross-examination, Mr. Brown admitted that the exterior cameras did not capture
the events in the parking lot because he did not move the cameras before pursuing the
Defendant. He stated that he identified himself while pursing the Defendant but that the
Defendant “sped up” when she knew that he was following her. He admitted that the
Defendant was “trying to avoid any contact” with him. He said that when he had his hand
on the Defendant’s door, the Defendant was “trying to hold the door” while “starting the
vehicle at the same time.” He said that there was another vehicle on the passenger side of
the Defendant’s vehicle and that as the Defendant pulled out of her space, she avoided
contact with the vehicle on the passenger’s side. He admitted that the Defendant did not put
the vehicle in drive and speed toward him or put the vehicle in reverse and speed toward him

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but stated that the Defendant hit him “hard enough to spin” him. He further stated that the
Defendant “cut the vehicle towards [him]” and that he was “obviously afraid.”

        Mr. Pinkerton’s sworn testimony from a deposition that took place on February 4,
2009, was read into evidence and admitted as an exhibit. The Assistant District Attorney and
defense counsel were present for the deposition and asked the witness questions. At the
deposition, Mr. Pinkerton testified that he was working as a loss prevention detective at Sears
on November 6, 2007. His testimony regarding the activities of the Defendant, Ms. Holt, and
the unidentified young black male inside the store was consistent with Mr. Brown’s
testimony. Relative to the Defendant’s alleged aggravated assault of Mr. Brown, Mr.
Pinkerton stated that when he arrived in the parking lot, the Defendant was sitting in the
driver’s seat of a “white [Ford] Expedition.” He testified that Mr. Brown was “at the front
of the vehicle on the driver’s side” and that Mr. Brown was “trying to move out of the way.”
He said that as the Defendant was backing out of the parking space, she “clipped” Mr. Brown
and then took off. He admitted that the Defendant was not driving in a “cautious” manner
and stated that the Defendant was “trying to get out, out of the area.” He said that after the
Defendant left, Mr. Brown complained that he had been hit and that he was hurt. Mr.
Pinkerton testified that the incident occurred in the daytime and that his view of the incident
was not obstructed in any manner.

       On cross-examination, Mr. Pinkerton stated that he did not see Mr. Brown put his
hands on the vehicle’s door when Mr. Brown was beside the vehicle. He stated that Mr.
Brown took a step back before the Defendant struck him in the left knee with the vehicle
while she was attempting to back out of the parking space. He admitted that Mr. Brown did
not go to the hospital for his injury or miss any work due to his injury.

                                         ANALYSIS

                                        I. Sufficiency

       The Defendant contends that the evidence was insufficient to sustain her conviction
of aggravated assault when the Defendant only “clipped” the victim as she was backing out
of a parking space. The Defendant further contends she did not use or intend to use her
vehicle to cause death or serious bodily injury to the victim because the Defendant was
attempting to leave the parking lot when the victim approached the vehicle and grabbed the
vehicle. The State responds that the evidence was sufficient to sustain the Defendant’s
conviction because the Defendant struck the victim with her vehicle when she put her vehicle
in reverse and backed out of the parking space.




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        An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence 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 (1979). The
appellate court does not re-weigh the evidence; rather, it presumes 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). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the presumption
of innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has
the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.;
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999).

        As relevant to this case, “A person commits aggravated assault who . . . [i]ntentionally
or knowingly commits an assault as defined in [Tennessee Code Annotated section] 39-13-
101 and . . . [u]ses or displays a deadly weapon[.]” Tenn. Code Ann. § 39-13-102(a)(1)(B).
“A person commits assault who . . . [i]ntentionally [or] knowingly . . . causes bodily injury
to another[.]” Tenn. Code Ann. § 39-13-101(a). A person knowingly commits an assault
“when the person is aware that the[ir] conduct is reasonably certain to cause the result.”
Tenn. Code Ann. § 39-11-106(a)(20). “‘Bodily injury’ includes a cut, abrasion, bruise, burn
or disfigurement, and physical pain or temporary illness or impairment of the function of a
bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2). “[A] motor
vehicle can constitute a deadly weapon within the meaning of the [statute].” State v. Tate,
912 S.W.2d 785, 787 (Tenn. Crim. App. 1995).

        Here, the Defendant, in an attempt to escape apprehension from a loss prevention
employee, closed her vehicle’s door while the employee was trying to stop her. She then
backed out of her parking space fast enough to cause the tires of her vehicle to squeal. While
backing up, the Defendant turned her tires toward the victim and hit the victim’s knee with
the front bumper of her vehicle, causing him to spin around. The victim complained that his
knee hurt as a result of the Defendant’s actions. The evidence at trial reflected that the
Defendant knew that the victim was standing near her vehicle when she quickly backed out
of her parking space and that the victim was attempting to stop her from leaving the parking
lot. Accordingly, we conclude that the evidence submitted at trial was sufficient to establish
that the Defendant knew that quickly backing out of her parking place while turning her tires
in the victim’s direction was reasonably certain to cause bodily injury to the victim.

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                                       II. Prior Bad Acts

        The Defendant contends that the trial court erred in granting the State’s motion to
introduce the Defendant’s prior convictions because the State could not establish a non-
propensity purpose for admitting the evidence. The Defendant asserts that identity was not
at issue in the trial when two witnesses, Mr. Pinkerton and Mr. Brown, were able to
positively identify the Defendant. The State responds that these prior convictions were never
introduced into evidence during trial; therefore, this issue is moot. The State alternatively
contends that this issue should be waived because defense counsel failed to introduce a copy
of the transcripts from the hearing on the motion to admit the evidence and the motion for
new trial hearing.

         At trial, during opening statements, defense counsel conceded that the Defendant
participated in the theft. Following the direct examination of Mr. Brown and outside of the
jury’s presence, the trial court asked the Assistant District Attorney if he was going to
introduce the prior conviction when identity was no longer an issue given defense counsel’s
concession during the opening statements. The Assistant District Attorney responded that
he was not going to introduce the conviction and further stated, “I think I said that during the
little hearing that we had that if he did that that I would not try to introduce that any longer.”
The prior conviction was not introduced at trial or discussed further until the Defendant filed
her motion for new trial. Therefore, the evidence complained of was never introduced into
evidence or discussed in front of the jury. Accordingly, we conclude that the Defendant has
failed to establish that she is entitled to relief on this issue.

                                        III. Sentencing

       The Defendant contends that the trial court erred in sentencing her as a persistent
offender for her aggravated assault conviction and as a career offender for her theft
conviction. The Defendant further contends that the trial court erred in enhancing her
sentence for her aggravated assault conviction and in denying all forms of alternative
sentencing. The State responds that the record supports the trial court’s sentencing decision.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2005).
The appealing party has the burden of showing that the imposed sentence is improper. Id.
If review of the record reflects that the trial court properly considered all relevant factors,
gave due consideration and proper weight to each factor, and its findings of fact are
adequately supported by the record, this court must affirm the sentence. State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Should the record fail to demonstrate the
required considerations by the trial court, then appellate review of the sentence is purely de

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novo. Ashby, 823 S.W.2d at 169. In this respect, for the purpose of meaningful appellate
review,

              [T]he trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. Tenn. Code Ann. § 40-
              35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

       The Defendant committed this offense on November 6, 2007; thus, she was sentenced
under the revised sentencing act as enacted by the Tennessee General Assembly in 2005.
The act provides that:

              (c) The court shall impose a sentence within the range of
              punishment, determined by whether the defendant is a mitigated,
              standard, persistent, career, or repeat violent offender. In
              imposing a specific sentence within the range of punishment, the
              court shall consider, but is not bound by, the following advisory
              sentencing guidelines:

                     (1) The minimum sentence within the range of
                     punishment is the sentence that should be
                     imposed, because the general assembly set the
                     minimum length of sentence for each felony class
                     to reflect the relative seriousness of each criminal
                     offense in the felony classifications; and

                     (2) The sentence length within the range should
                     be adjusted, as appropriate, by the presence or
                     absence of mitigating and enhancement factors set
                     out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

       The weight to be afforded an enhancement or mitigating factor is left to the trial
court’s discretion so long as its use complies with the purposes and principles of the 1989

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Sentencing Act and the court’s findings are adequately supported by the record. Tenn. Code
Ann. § 40-35-210(d)-(f); Carter, 254 S.W.3d at 342-43. “An appellate court is therefore
bound by a trial court’s decision as to the length of the sentence imposed so long as it is
imposed in a manner consistent with the purposes and principles set out in . . . the Sentencing
Act.” Carter, 254 S.W.3d at 346. As explained by our supreme court in Carter, the 2005
amendments to the Sentencing Act now afford the trial court such greater discretion that:

              the trial court is free to select any sentence within the applicable
              range so long as the length of the sentence is ‘consistent with the
              purposes and principles of the [Sentencing Act].’”

Carter, 254 S.W.3d at 343 (citing Tenn. Code Ann. § 40-35-210(d)). Accordingly, on appeal
we may only review whether the enhancement and mitigating factors were supported by the
record and their application was not otherwise barred by statute. See id.

       In conducting its de novo review, the appellate court 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, (7) the potential for
rehabilitation or treatment, and (8) any statistical information provided by the Administrative
Office of the Courts as to sentencing practices for similar offenses in Tennessee. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; State v. Moss, 727
S.W.2d 229, 236-37 (Tenn. 1986).

                                     A. Sentencing ranges

       The Defendant contends that the trial court erred in sentencing the Defendant as a
persistent offender for the aggravated assault conviction and as a career offender for the theft
conviction because, pursuant to the 24-hour merger rule, five of the Defendant’s seven prior
convictions should have been counted as a single offense. The State concedes that the crimes
occurred on the same date but asserts that the 24-hour merger rule did not apply because
these crimes resulted in five convictions of robbery, a crime of violence.

       At the sentencing hearing, the State submitted certified copies of the judgments of
conviction for five Class C felonies and one Class E felony. The State also submitted that
the Defendant was convicted of shoplifting on August 1, 1986. In support of this conviction,
the State presented a certified copy of the trial court’s record as relevant to that offense. The
State conceded that the five Class C felonies were robbery convictions that occurred within
the same 24-hour period but argued that the 24-hour merger rule did not apply because the

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statutory elements of robbery included serious bodily injury, bodily injury, threatened serious
bodily injury, or threatened bodily injury to the victim or victims. The Defendant responded
that the statutory elements did not include those elements and that the statute was vague.

       In determining that the five robbery convictions should be counted as five separate
convictions, the trial court stated that the very definition of robbery included a threat of
bodily injury because a conviction for robbery requires the State to prove that the Defendant
committed the act by placing the victim in fear or by violence. The trial court also noted that
the Sentencing Commission Comments to this section state that if a defendant were convicted
of robbing several people in the same store, those convictions would be counted as separate
convictions for enhancement purposes.

      In order for the Defendant in this case to be sentenced as a persistent offender for her
aggravated assault conviction, a Class C felony, the State would have to prove that she had

              [a]ny combination of five (5) or more prior felony convictions
              within the conviction class or higher, or within the next two (2)
              lower felony classes, where applicable[.]

Tenn. Code Ann. § 40-35-107(a)(1). Similarly, in order for the Defendant in this case to be
sentenced as a career offender for her theft conviction, a Class E felony, the State would have
to prove that she had

              [a]t least six (6) prior felony convictions of any classification if
              the defendant’s conviction offense is a Class D or E felony.

Tenn. Code Ann. § 40-35-108(a)(3). In determining a defendant’s offender status, the trial
court is instructed to count convictions committed within the same 24-hour period as “one
(1) conviction for the purpose of determining prior convictions” unless “the statutory
elements include serious bodily injury, bodily injury, threatened serious bodily injury, or
threatened bodily injury to the victim or victims.” Tenn. Code Ann. §§ 40-35-107(b)(4), -
108(b)(4). This rule is commonly referred to as the 24-hour merger rule.

       In determining whether the crime of robbery includes a threat of bodily injury, we
must examine the statutory elements of a robbery conviction. Tenn. Code Ann. § 40-35-
106(b)(4). Robbery is defined as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401.
Following our review, we conclude that the statutory elements of robbery include a threat of
bodily injury when the State is required to prove that the defendant committed the act through
violence or by putting the person in fear. See State v. Iwanda Anita Buchanan, No. M2007-

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02870-CCA-R3-CD, 2008 WL 4467185 (Tenn. Crim. App. Oct. 6, 2008). Therefore, we
conclude that the trial court did not err in sentencing the Defendant as a persistent offender
for the aggravated assault conviction and as a career offender for the theft conviction.

                                    B. Enhancement factors

        The Defendant contends that the trial court erred in enhancing the Defendant’s
sentence for her conviction of aggravated assault. The Defendant, still contending that the
trial court erred in classifying the Defendant as a career offender for the theft conviction, also
appears to contend that the trial court erroneously sentenced the Defendant to six years for
the theft conviction. The Defendant further contends that the trial court erred in declining
to consider the Defendant’s proposed mitigating factors. The State responds that the trial
court properly sentenced the Defendant after considering the submitted enhancement factors.

        In determining the Defendant’s sentence for the aggravated assault conviction, the
trial court applied the following enhancement factors:

               (1) The defendant has a previous history of criminal convictions
               or criminal behavior, in addition to those necessary to establish
               the appropriate range;

               (2) The defendant was a leader in the commission of an offense
               involving two (2) or more criminal actors;

               (8) The defendant, before trial or sentencing, failed to comply
               with the conditions of a sentence involving release into the
               community;

               (13) At the time the felony was committed, one (1) of the
               following classifications was applicable to the defendant:
                      (B) Released on parole[.]

Tenn. Code Ann. § 40-35-114. The trial court stated that it gave great weight to factors 8 and
13 in arriving at its sentencing decision. Relative to mitigating factors, the trial court found
that the theft did not cause bodily injury but that her escape from the theft ultimately led to
bodily injury. The trial judge found that the Defendant did not play a minor role and that
although the Defendant did have mental issues, she was not sure how they related to this
case. In finding that there were no applicable mitigating factors, the trial court stated, “I
really don’t see any mitigating factors that could be something that I need to apply in this
case.”

                                               -9-
        The Defendant pled guilty to theft, a Class E felony, and, as noted above, was properly
classified as a career offender. Thus, the Defendant’s six-year sentence was mandated by
statute. See Tenn. Code Ann. § 40-35-108(c). The Defendant was convicted of aggravated
assault, a Class C felony, and, as noted above, was properly classified as a persistent
offender. Thus, the Defendant’s 13-year sentence was within the range of the 10 to 15 years
that the Defendant could have received upon being convicted of a Class C felony as a Range
III, persistent offender. See Tenn. Code Ann. § 40-35-112(c)(3).

        The Defendant specifically disagreed with the application of enhancement factor
number two; however, the Defendant was driving the vehicle when she committed the
aggravated assault. As previously explained, as long as the record reflects that the trial court
considered the principles of sentencing and facts and circumstances of the offense in arriving
at its determination, this court is bound by the weight afforded any sentencing factors
applicable to the offense. Following our review, we conclude that the record supports the
application of the enhancement factors found by the trial court and that the sentence lengths
imposed in this case comply with the purposes and principles of sentencing that were
properly considered by the trial court. Accordingly, we also conclude that the record
supports the trial court’s ultimate sentencing decision.

                                  C. Alternative sentencing

       The Defendant contends that the trial court erred in concluding that the Defendant was
ineligible for a community corrections sentence when the Defendant’s special needs would
best be served in the community. The Defendant further contends that her mental health
needs were reasonably related to her criminal activity. The Defendant asserts that, according
to Tennessee Code Annotated section 40-36-106(c), “a defendant is eligible for community
[c]ommunity [c]orrections, regardless of the length of the defendant’s sentence.” The State
responds that the Defendant was ineligible for alternative sentencing because her “13-year
sentence rendered her ineligible for probation.”

       Following testimony relative to the Defendant’s mental health issues, the trial court
found that the Defendant had a history of committing crimes of violence and that the
Defendant was “not otherwise eligible for probation, because her sentence is over ten years[;
therefore,] she’s not eligible for any alternative sentence according to the statute.”

       A defendant is eligible for probation “if the sentence actually imposed upon the
defendant is ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a). As the Defendant in
this case received a sentence of 13 years for her aggravated assault conviction, she was
ineligible for probation. While her ineligibility for probation would not preclude
consideration of alternative sentencing under Tennessee Code Annotated section 40-36-

                                              -10-
106(a), she did not qualify under that section because she was convicted of aggravated
assault, an offense involving a crime against the person. Tenn. Code Ann. § 40-36-
106(a)(1)(B)-(C); see State v. Vincent Johnson, No. W2008-02156-CCA-R9-CD, 2009 WL
3349291, at *3 (Tenn. Crim. App. Oct. 19, 2009). Having established that she was ineligible
for alternative sentencing under Tennessee Code Annotated section 40-36-106(a), we must
now determine whether she was eligible for alternative sentencing under Tennessee Code
Annotated section 40-36-106(c), which provides, in pertinent part:

              Felony offenders not otherwise eligible under subsection (a),
              and who would be usually considered unfit for probation due to
              histories of chronic alcohol or drug abuse, or mental health
              problems, but whose special needs are treatable and could be
              served best in the community rather than in a correctional
              institution, may be considered eligible for punishment in the
              community under this chapter.

Tenn. Code Ann. § 40-36-106(c). This provision is commonly referred to as the “special
needs” provision. As the trial court found and the State contends, the Defendant was also
ineligible for alternative sentencing under the special needs provision because she was
ineligible for probation. See Johnson, 2009 WL 3349291, at *2. A close reading of the
statutes and this court’s opinion in the Johnson case, reveals that an offender must be eligible
for probation in order to be eligible for an alternative sentence under the special needs
provision. Id. (“[B]efore being placed in community corrections based upon Tennessee
Code Annotated section 40-36-106(c), an offender must first be eligible for regular
probation.”). Accordingly, we conclude that the record supports the trial court’s denial of
alternative sentencing.

                                       CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.


                                                     ___________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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