### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs May 21, 2003 STATE OF TENNESSEE v. PHYLLIS HINES Direct Appeal from the Circuit Court for Sevier County No. 8900 Richard R. Vance, Judge

No. E2002-02518-CCA-R3-CD July 23, 2003
The defenda

nt, Phy llis Hines, pled guilty

to two cou

nts of simpl e assaul

t, a Class A misdemeanor. The Sevier County trial court imposed conse cutive sentences of eleven months and twenty- nine da ys for each count of

assault. It then ordered the de fendant to serve thefi rs t e le ve n- mo nt h a nd tw en tynine-day sentence at 75% in confinement followed by probation. On appeal, the defendant contends the trial court er red in impo sing con

finemen t. We affi

rm the judg

ments of th

e trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which T HOM AS T. W O ODALL and J AMES C URWOOD W ITT , J R ., JJ., joined. Edward Cantrell Miller, D istrict Pub lic Defe nder; and Micael a Burnh am, Assistant DistrictPublic Defend er, for the appe llant, Phy llis Hines. Paul G. Summers, Attorney General and Reporter; Brade n H. Boucek , Assistan

t Attorne y General ; Al C. Schmutzer , Jr., Distr ict Attorn ey Genera l; and Steve

n R. Hawkins, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION The defendant pled guilty to two counts of simple ass ault by bodily injury , a Class A misdemeanor. See Tenn. Code Ann. § 39-13-101(a)(1), (b). The stipulated f acts during the guilty plea hearing reveal that on Marc h 1, 2001, the defe

ndant phy sically

assaulte d and ca

used bodil

y injury to Margaret Yett, an elde rl y lady, while the def

endant was employed as her caregiver, thus form ing the basis for the first count of assault. Furthermore, on January 28, 2002, the defendan t assaultedand injur

ed I ris Newma

n, an elde rly lady , while

employed as her

caregiver, thus forming the basis for the second count of assault.
As part of her plea

agree ment, the defendant consented to an eleven-month, twenty- nine-day sentence for eac

h count with the manner of service to be determined by the trial court. Upon conducting a sentencing hearing, the trial court

ordered the two sentenc es to run c onsecuti vely with-2-

the defendant serving eleven months and twenty-nine

days at 75% in conf

inement and the remainder of the sentence on probation. I. SENTENCING HEARING
Terri Newman t

estified that I ris Newma

n was her

husband’ s seventy

-six-year-ol d grandmother, who had since died . Ms. Newman suffe red fro m vascula

r deme ntia, th e beginning stages of Alzheimer’s disease, and depre ssion, and she was unable to speak clearly as a result of a series of strokes. Terri Newman testifie d her fa

mily employ ed the de fendant as a caregiver for the victim in April 20 01. The vi ctim was u nable to c ommu nicate

clearly and bec ame incr

easing ly agitated toward the defendant. Terri Newman t

estified she first noticed b ruising on the vic tim while she was giving her a bath, a task which was generally performed by

the defendant. Terri Newman stated she observed bruises in the middle o f the victim’s back, “pinching marks” undernea th her arms, and bruises on her feet which looked “as if they were stomped,” and that

the victim’s head was sore. When Terri Newman q uestione d the def endant a bout the in

juries, th e defendant expla

ined that the victim

h a d fallen. Terri Newman testified the victim also suffered from osteoporosis, and if she had fallen, she would have broken a bone. Terri Newman testified she and her husband placed video a nd audio e quipm ent in the victim’s home; however, the video equipment was never fully installed. Terri Newman stated that an audio tape, which was recorded while the de fendant was giving the victim a b ath, r evealed the defendant’s yelling a

tthe victim as if she were “mocking and mimicking he r.” The defendant

told the victim that she hated her, her house, and the job. When the victim yelled for help, the defendant threatened

to call Terri Newman. Terri Newman te stified she then heard “ smack ing” an d “hit ting” followed by the victim’s “wailing .” Terri Newman confronted the defendant with the audiotape the next day. Katherine May testified she is a general manag er at a hotel at which the defendant was then employed. She desc

ribed the defenda nt as depe

ndable a nd a goo d worker . She furt her sta ted she did not know the defendant when the offenses occur red. Henriet ta Sharp testified she has been friends with the defendant f or many y ears. She stated she worked with the defendant from 1976 until 1979 in a nursing home ca ri ng for el derly people, and she never observed the defenda nt strike a patient. The defendant testified she attended ange r management classes and lear ned from them. She expressed her willingness to attend a more intense form

of counseling. The defendant testified she has a son who is mentally challeng ed. He is able to live alone but suffers from severe panic at tacks. He is also unable to work and receives social security . The defe ndan t was also supporting her daughter and two grandc

hildren, which increased her stress level.
T he defendant expressed remorse reg arding her actions. She stated Ms. Newman wa s aggressive

towardher, but she should have reacted in a different manne r. The defendant further stated that altho

ugh she should not have hit Ms. Newman, she was defending her self. The defendant-3-

testified she told the police that she “slapp ed” Ms. Newman in the back of her head. She denied discussing with the Newmans how Ms. Newman’s bruising occ urred. The defendant testified she was also a caregiver to Mar garet Yett, who was in her eig hties and suffered from either

dementia or

Alzheimer ’s disea se. Althou gh the d efenda nt admitte d she told the police she had a phy sical altercation with Ms. Yett, she testified she did not recall ev er experiencing any

problems with Ms. Ye

tt. She fur

th er testif

ied she sp oke loudly

to Ms. Yett because the victim could not hear well. The defendant did not recall informing the police tha tshe “might have” hit Ms. Yett. The defendant stated she did not y ell at the two victims “that much.” During closing arguments at the sentencing hearing, defense counsel

requested the trial court impose consecutive sentences to be served on probation. II. TRIAL COURT’S FINDI NGS The trial court stated that in sentencing the defendant, it consider ed the present

ence re port, victim impact statements, testimony and other evidence presented during the sentencing hearing and plea hearing, and

the arguments of counsel. The trial court further stated that although it had wide discretion in imposing

sentenc es for mis demeano rs, it would use the sentencing principles employ ed in felony case s as a guide. The trial co ur t f ou nd th at ea ch of fe ns e w ar ra nt ed an el ev en -m on th , t we nt y- nine-day sentence

. It basedits ruling upon the defendant’s plea and the circumstances of the offenses. The trial court noted the defendant had no previous history of criminal conduct. The trial court stated the defendant abused a position of

private trust, an d the vict

ims were particularly

vulnera ble due to the

ir ages or physical or menta l disabiliti es. I

t furth er st ated the defendant expressed remorse while def ending her actions, which were “indefensible.” The trial co urt then found that confinement was necessary to avoid depreciating the seriousness of the offenses and denied total probation. I t stat ed the circumstances of the offenses were so “shock

ing” asto requir

e confinement. I

n making this finding, the trial court considered the severity of the offe nses, the vulnera bility of the victims, and the fact that they were abused on more than one occasion. The trialcourt stated that although the defendant may have been experiencing difficulties in her life, she vented her frustrations on two “helpless” victims. The trial court further stated the defendant was attending ang er management courses and w as gainfully employed. The trial court ordered 75% of the first eleven- month, twenty-nine-da y sentence

to be served in confine

ment follo wed by

probatio n. As cond

itions of pr

obation, t he defe ndant wa s requir

ed to attend counseling and was prohibited from serving as a caregiver. III. STANDA RD OF RE VIEW
A defendant who challenges his or her sentence has the burden o f provi ng the sentence imposed by t he trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission-4-

Comments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1 991). I t is this cou

rt’s duty to conduc t a de novo review o f the re cord with a presum ption th e t rial court’s determinations are correct when a defendant appeals the length, rang e, or manner of service of his or her se ntence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is conditioned upon the affirmative showing in the record that the trial co urt consi dered the sentencing principles and a ll relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).
In sentencing the defendant, the trial cour t stated it consi dered th

e prese ntence r eport, testimonyand other evidence pres ented at both the plea hearing and sente ncing hearing, and argume nts by counsel. T

he tr ial cour

t also ref erred t o the sent

encing principle s throug

hout its finding s. Theref

ore, our review in this cas e is de novo with a pre sumption tha t the tria l co urt’s determin ations ar

e correct. IV. MISDEMEANOR SENTENCING
Misdemeanor

sentencing is cont

ro lled by Tennessee

Code Annotated section 40-35-302, which provides that the trial court shall impose a specific sentence consistent with the purpose s and principles of the 198 9 Crimi nal Sentencing Reform Act. State v. Palmer , 902 S.W.2d 391, 394 (Tenn. 1995). Th

e misdeme anor off

ender mu st be sent

enced to an authorized determinate sentence witha percentage of that sente nce designated

for eligibility for

rehabilitative programs. Tenn. Code Ann. § 40-35-302(d). In deter mining the percentage of

the sentence, the trial court must consider enhancement

and mitig ating f

actors a s well as t

he legi slativ e purpos es and pr inciples r elated to sentencing. Id. Misdemeanor sentencing is designed to provide the trial court

with continuing jurisdiction and a great deal of flexibility

. Statev. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). One convictedof a misd emeanor, unlike one convicted of a felony , is not entitled to a presumption of a minimum sentence. St at e v . H um ph re ys , 70 S.W.3d 752, 768 (Tenn. Crim. App. 2001). Under the 1989 Sentencing Act, sentences which involve conf inement are tobe based on the following considerations contained in Tennessee Code Annota ted section 40-35-103(1): (A) [c]onfinement is necessary to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) [c]onfinem

ent is necessa

ry to avoid deprec iating th

e seriou sness of t

he offe nse or confine

ment is par

ticularl y su ited to pro vide an effectiv e deter rence t o other s likely to commit similar offenses; or (C) [m]easure s less res tric tive than confinement have frequently or recently

been applied u nsucces sfully

to the def

endant.
Statev. Grigsby , 957 S.W.2d 5 41, 545 (T enn. Crim. App. 1997 ); Statev. Millsaps , 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).-5- V. ANALY SIS
We first note that the defendant originally filed a statement of the evidence rather than the written transcripts of the hearings. However , when the statement of t he evidence was filed, there was no proof of service on the District Attorney Ge

neral. Furthermore, upon reviewing the record on app eal, we o pined that the statement of the evidence failed to set forth the sente ncing hearing procee dings with such s pecific ity a s to permit us to condu ct a

proper review o f the issue

on appea l. We then remanded the case to the trial court in o

rder to s ecure w

ritten tr anscripts of the p

roceed ings. The r eco rd in this case is now sufficient to permit us to conduct a thorough review of the issue present ed on app eal. The defendant first contends the trial court erred in a pplying asan enhancement factor that the offenses were committed under circumstances in which the potential for injury wa s great. See Tenn. Code Ann. § 40-35-114(7) (2002). In its finding s, the trial court mentionedthis enhancement factor. However, it further recognized that this factor was embodied in the assault offenses and declined to give the factor weig ht. The defenda

nt furthe r conten ds the tria

l court fa iled to co nsid e r as mitigating factors her participation in anger

management courses and counseling prior to the sente ncing h earing, her age and phy sical co ndition, a

nd her me ntal hea lth at the time the offenses occurred. Howeve r, the record reveal s that the trial court considered her presentenc e report, w hich noted that the defendant was sixty-one years old a

nd suffered from high blood pressure. The trial court furthe r n oted that the defendant was at te nd in g a ng er ma na ge me nt cl as se s a nd wa s g ai nf ul ly e mp lo yed . F in al ly, the trial court stated that

althoug h the def endant w as under

a grea t deal of stress when the offenses occurred, she chose to vent her frustrations on two “helpless” victims. The record reflects that the trial cour t fully considered the se circumstances in sentencing the def endant. The trial court

also found that confinement was necessary in order to avoid depreciating the seriousness of the offenses. See Tenn. Code Ann. § 40-35-103(1)(B). Probation may be denied basedsolely upon the circumstanc es surrounding the offenses. State v. Bingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1 995); State v. Hartley , 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). However, the c ircum stanc es of t he offe nses a s comm itte d mus t be es pecial ly viole nt, h orrif ying, sh ockin g, reprehensible, offensive or otherwise of an excessive or exaggerated de gree ; and th e nature of the offenses must outweigh all factors favoring probation. Hartley , 818 S.W.2d at 374-75. The trial court found that the ci rcumstan ces w ere s o “sh ocki ng” as to r equi re co nfine

ment. We agree. The defenda

nt was entrusted by

the victim s’ familie s to care for the victims; the defendant abusedthe victims on more than one occasion; and the victims were unable t o def end themselves du e to the ir age s and var ious medic al proble

ms. We conc lude the t

rial cou rt did not a

buse its discreti on in imposing conf inement. Accord

ingly , we aff

irm the jud

gments o f the tria

l court.

JOE G. RILEY, JUDGE