IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
November 12, 1999
OCTOBER SESSION, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, *
* No. 03C01-9901-CC-00011
Appellee, *
* ANDERSON COUNTY
vs. *
* Hon. JAMES B. SCOTT, JR., Judge
DAVID LEE HURST, *
* (Sentencing)
Appellant. *
For the Appellant: For the Appellee:
Leslie Hunt Paul G. Summers
139 North Main Street Attorney General and Reporter
Clinton, TN 37716
Clinton J. Morgan
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
James N. Ramsey
District Attorney General
Jan Hicks
Asst. District Attorney General
127 Anderson County Courthouse
100 North Main Street
Clinton, TN 37716
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, David Lee Hurst, appeals the sentencing decision of the
Anderson County Criminal Court following his guilty plea to Class D felony child
abuse. In accordance with the plea agreement, the appellant received a two year
sentence with the determination of probation to be submitted to the trial court.1 At
the sentencing hearing, the trial court denied probation and ordered confinement in
the Department of Correction. The sole issue on appeal is whether the trial court
erred by denying the appellant total probation.
Following review, we affirm.
SENTENCING HEARING
The conviction stems from the physical abuse of the appellant’s five year old
stepson in January of 1998. At the sentencing hearing in November of 1998,
Detective Penny Baker of the Anderson County Sheriff’s Department testified that
the child exhibited injuries to both ears, bruising on the inside and outside of his
ears, “faint” bruises to the side of the face, numerous bruises to one arm, “faint”
bruising on his back, an abrasion to his neck, a severe bruise to the top of his foot, a
bruise to the back of the head, and a severe bruise to his penis. The presentence
report characterized the victim’s injuries as being “bruised from his ears to his toes
in various stages of healing.” The appellant explained to Baker that the bruising to
the penis was the result of his kicking the child and the rest were the result of
“playing rough” with the child. Detective Baker testified that the appellant initially
was untruthful and later changing his story, attempted “to make light” of the severity
of his actions. The presentence report indicates that the appellant “beat (the victim)
with a board, stomped his foot,” and “beat him about the head and face.” The
appellant is six feet and six inches tall and weighs two hundred pounds; the victim
weighs forty-six pounds.
The appellant has two prior felony convictions from 1983 when he was
1
The transcript of the guilty plea hearing is not included in the record. Thus, the specific terms
of the plea agreement are unknown. At the sentencing hearing and on appeal the appellant
argues only his entitlement to total probation. For these reasons, appellate review is limited to the
senten cing altern ative of pro bation.
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nineteen years old for third degree burglary and grand larceny, both arising from the
same incident. He received a three year sentence for each offense and was placed
on unsupervised probation. The appellant admits to recent marijuana use. The
probation officer testified that in preparing the presentence report, he believed the
appellant purposefully misadvised him that the prior theft conviction was committed
as a juvenile when in actuality it was an offense committed when the appellant was
nineteen years old.
The thirty-four year old appellant testified that he was currently employed by
ABC Transport where his duties involve moving and setting up mobile homes. He
explained that he experiences disabilities from bone deterioration in his spine and
from other medical problems. He currently resides with his mother while he and his
wife are in the process of getting a divorce. Although he admitted to problems
controlling his anger, he denied that any of the child’s injuries were a result of his
anger. He advised that he “had no desire for any mental health treatment.” He
explained that he told the probation officer that his crime was committed as a
juvenile because he could not remember the dates and times as a result of a head
injury from which he had to learn to write and read again. On cross-examination,
the appellant denied the accusation by the child that he hit him with a board.
At the conclusion of the hearing, the trial court denied the appellant’s request
for probation.
PROBATION
The sole issue on appeal is whether the trial court properly denied probation.
Although the appellant requests that we conduct a de novo review of his
sentence, which requires an examination of the “nature and characteristics of the
criminal conduct involved,” Tenn. Code Ann. § 40-35-210(b)(4) (1997), we are
precluded from doing so because the record is void of the guilty plea transcript. We
have repeatedly held that failure to include the transcript of the guilty plea hearings
in the record prohibits this court from conducting a meaningful de novo review.
If the appellate record is inadequate, the reviewing court must presume that
the trial judge ruled correctly. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim.
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App. 1993). The obligation of preparing a complete and adequate record for the
issues presented on appeal rests upon the appealing party. See Tenn. R. App. P.
24(b). For this reason, this issue is waived. However, we are able to glean from the
record the nature and circumstances of the offense through the testimony of
Detective Baker and the presentence report. See Tenn. Code Ann. § 40-35-
210(b)(1) and (2). Within this limitation, we elect to address the issue.
In this case, the trial court denied probation based upon the circumstances of
the offense and the appellant’s prior criminal history:
He [appellant] was in unsupervised probation disposition if I remember
correctly before. He has admitted to smoking marijuana. This was a
five-year old child. Here we have a person that looks to be about six
foot, five, or somewhere around there that comes to this courtroom . . .
fully accountable for his conduct. This is not just one blow. . . two
blows. . . [or] three blows. And I . . . feel like that even though the
defendant comes here and says it wasn’t out of temper, there appears
to be that if it wasn’t out of temper, such poor judgment I am not sure
we could trust you out here with other young individuals. This child
has been not only bruised and abused, but it will follow that child
through life. . . .
I don’t think you are a proper subject for probation based on the
type of crime committed here and the past. I find that you are not
suitable for probation. . . . Had you not had all of these problems
before, you come here the first time. Had this condition of this child
reflected something other, you say you have maybe some lapse of
memory. Well, it may become very convenient when it comes to this
type of conduct. I just find that this kind of conduct is reprehensible. It
should be discouraged and not only that, but you have a past history in
coming here - both as a juvenile and as an adult - and you admitted
that you had been smoking marijuana. So for those reasons, the court
denied you probation.
First, the appellant argues that the presumption of correctness does not apply
to the trial court’s decision because it did not consider the appropriate factors for
denying probation. Second, he contends that the trial court erred by placing the
burden of probation on the appellant because he was entitled to the presumption of
an alternative sentence.
This court’s review of the length, range, or manner of service of a sentence is
de novo with a presumption that the determination made by the trial court is correct.
Tenn. Code Ann. § 40-35-401(d) (1997). See also State v. Bingham, 910 S.W.2d
448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is
only applicable if the record demonstrates that the trial court properly considered
relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
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The record reflects that the trial court considered the relevant principles of
sentencing; accordingly, the presumption is afforded.
The appellant’s argument that “the trial court erred when it held that Hurst
[appellant] had the burden of demonstrating that probation was appropriate” is
misplaced. It is settled law that whereas the State has the burden of overcoming
the defendant’s entitlement to the statutory presumption of an alternative sentence,
“[c]onversely, the defendant has the burden of establishing suitability for full
probation, even if the defendant is entitled to the statutory presumption of alternative
sentencing.” Bingham, 910 S.W.2d at 455-456 (emphasis added). When deciding
suitability for probation, although not controlling, the sentencing court should use the
following criteria:
(1) “the nature and [circumstances] of the criminal conduct involved,”
Tenn. Code Ann. § 40-35-210(b)(4);
(2) the defendant’s potential or lack of potential for rehabilitation, Tenn.
Code Ann. § 40-35-103(5);
(3) whether a sentence of full probation would unduly depreciate the
seriousness of the offense, Tenn. Code Ann. § 40-35-103(1)(B); and
(4) whether a sentence other than full probation would provide an
effective deterrent to others likely to commit similar crimes, Tenn.
Code Ann. § 40-35-103(1)(B).
See Bingham, 910 S.W.2d at 456. Denial of probation may be based solely upon
the circumstances of the offense when they are of such a nature as to outweigh all
other factors favoring probation. State v. Fletcher, 805 S.W.2d 785, 788-89 (Tenn.
Crim. App. 1991).
The facts and circumstances of this case are clearly aggravated. The record
reveals a callous indifference by the appellant for the gravity of this criminal offense
in which the child experienced countless bruises to his entire body and even severe
bruising to his genitalia. The appellant repeatedly stated that the abuse to the child
was only the result of “play fighting too rough” and “hit[ting] too hard or something”
indicating further a lack of repentance and remorse. See State v. Pierson, 678
S.W.2d 905 (Tenn. 1984) (finding lack of remorse sufficient basis to deny
probation). Moreover, the trial court noted and the record supports the appellant’s
lack of candor which reflects negatively upon the appellant’s potential for
rehabilitation and is a sufficient basis for denying total probation. See State v.
Dowdy, 894 S.W.2d 301, 305-306 (Tenn. Crim. App. 1994); Tenn. Code Ann. § 40-
35-103(5).
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Upon de novo review and in accord with the presumption of correctness, we
are unable to conclude that the trial court erred in determining that the appellant had
not met his burden of establishing suitability for full probation.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_________________________________________
GARY R. WADE, Judge
_________________________________________
DAVID H. WELLES, Judge
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