### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J uly 21, 2004

STATE OF TENN ESSEE v. STEFAN IE M. HENSON
Appeal from the Criminal Court for Davidson County No. 2003-B-1228 Cheryl Blackburn, Judge

No. M2003-02413-CCA-R3-CD - F iled August 10, 2004

The defenda

nt, Stefanie

M. Henson , pled g

uilty in th e D av id so n C ou nt y Cr im in al Co ur t t o r ob be ry, a Class C felony. Pursuant to the plea agr eement, the defendant received a sentence of four y

ears for the offense, with the manner of service to be de termined by the trial c ourt. After a sent e ncing hearin g, the trial court denied the defe ndant’s r equest for an alternative sentence and orde red that she
serve her sentence in the Department of Correc tion. The defendant appeals, claiming that the trial court erred by ordering

that she s erve he

r sentence in con finemen

t. We affirm the judgment of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER , J. and J OE G. R ILEY , S P

. J., joined.

Ross E. Alder

man, Distr

ict Public D efende

r; Jeffre y A . DeVasher, Assis tant Publi c Defende r (on appeal); and Amy Daw

n Harwell, Assistant

Public Defend

er (at tr ial), for the appe llant, Stef

anie M. Henson.

Paul G. Summers, Attorney Gene ral and Reporter; Kathy

D. Aslinger, Assistant

Attorney Genera l; Victor S. Johnson, I

II , Distric t Attorne

y G eneral ; and Br

et Thomas

Gunn, Ass istant D istrict Attorney General, for the appellee, State of Te nnessee.
OPINION

This case re lates to th e defen dant’s c onviction

for robb ing her

seventy -one-y ear-ol d grandmother, Marie Stewart, on Feb ru ar y 4 , 2003. At the guilty plea hearing, the state gave

the following factual accou

nt of the crime: On February 4, the defendant went to her grandmother ’s house in order to a sk for money. He r grandmother, the victim, already had an order of protection agains tthe defendant and told her that she would not give her money. The

defendant then

asked to
use the victim’s phone and when the victim let her inside, she went to the bedroom and grabbed the victim’s purse . Whe n the v icti m att empte d to ge t her purse back, the defendant punched, kicke d,-2-

and knocked the victim to the floor. The defendant took cash, credit cards, a nd other persona l items from the victim.

At the se ntenc ing hea ring, the defendant testified that on February 4, 2003, ar

ound 3:00 a .m, she went to the victim’s house to ask for money because she did not have any where to stay

that night. She said sh e also wanted money in orde r to purchase crack coca

ine. She said that the victim had already given her money ear

lier in the evening and that she wanted additional money to buy

more drugs. She said th at when s he arri ved at the victim’s h ome, she a sked the v ictim i f she co uld go inside and retrieve clothes that she had left in the house. She said tha t after she had packed her clothes, she begged and ar gued with t he victim f

or more money . She said t hat when the victim refused, she grabbed the victim’s purse and that the victim tripped over a garbag e bagthe defendant had used to pack he

r clothe s. She ac knowledg ed scra tching t he victim’ s arms during the altercation. She said she had not

used drugs since being incarc erated. She said that if she were given probation, she would work at her father’s painting business and live with her aunt until she had enough money for a place of her own. She said that her mother had contacted two dr ug treatment facilities and that she would love to go to an inpatient program.

Oncross-examination, the defendant testified that she was convi cted of assaulting her mother inMarch 2002 when she threw a cig arette case at her mother, hitting her in the head. She said the victim had an order of protection aga inst her because she had

continuously asked her f

or money. She denied that the victim was afraid of her. She acknowledg ed violating the order of protection twice befo re this offense occurred. She said that on both occasions, she did not leave when the victi m asked and the police arrested her. She acknowledg ed telling the victim that she needed money for
a motel room or for a bill but that she was actually using the money f

or drugs. She sai d that sh e entered the Chance progra

m while in ja

il but that she had to quit due to her epilepsy. She sa id she had previously attended pr

ograms, in part, for drug abuse at Van derbi lt and Cumbe rland He ights.

Debbie Henson, the defendant’s mother, testified that she had confirmed that the defendant could receive drug treatment at Te nnessee Christian, where she could work during the day

and attend treatment classes at night. She said that The Samaritan Center, an inpatient rehabilitationprogra

m, was another

possibility

for treatment. She said she would make sure the defendant attended a drug treatment class the following week if the def endant was given probation.

Acc ording t o the defendant’s presentence re port, the then nineteen-y ear-old defendant dropped outof school but obtained her GED on March 29, 2001. She reported that she had ne ck and back problems but was a ble to wal k. She said

she began

using marijuana at the age of thirte en and cocaine at the age of fifteen. She said she used one eight ball of cocaine a da y until she was incarcerated. The defe

ndant has previously been c onvicted of assault and battery and of violating an order of protection.

The trial cou

rt deter mined tha t the def endant sh ould notbe given probation, stating that the defendant had been convicted of

a very serious offense involving her gra ndmother. It found that the defendant was untruthful when she testified that she was unable to complete the Chance s drug-3-

treatment progra m in jail be cause sh e was ep ileptic. T he court stated tha t the def endant ha d simply qui t C han ces . In addition, the trial court be lieved th at the de fendant should not receive probation because she had anger

issues and had violated an order of protection.

The defendant contends that the trialcourt er red by deny ing her request for probation. She argues that the c ourt made no finding s that woul d rebut th e presum ption that sh e is a favor able candida te for prob atio n and that a r eview of the record revea ls that factors warranting a denial of probatio n are not pre sent in this case. The state claims that the defendant was properly denied probationbecause

confine ment was necessa

ry to avoid depreciating the seriousness of the offense. We hold that the defendant should serve her four-y ear sentence in incarcer

ation.

When a defendant appeals the manner of se rvice of a sentence imposed by the trial cou

rt, this court conducts a de novo review of the record with a presumption that the trial cour t’s determinations are cor

rect. T. C.A. § 40- 35-401(d ). Howev er, the presump ti on of cor rectne ss is “conditioned

upon the a

ffirmat ive showin

g in the r ecord th at the tri al court

consider ed th e sentencing principle s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden i s on the appeal ing 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 ade quately supported in the re cord, and gave due consideration and proper weight to the fa ctors and principles that

are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different res ult 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 neede d to prote ct s oci ety 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 effe ctive de terrence to peo

ple likely to commit similar offenses, or (3) less restrictive measures than confinement have frequently

or recently

been applied unsuccessfully to the de f enda nt. Ashby , 823 S.W.2d at 169 (citing T.C.A. § 40-35-103(1)(A)-(C)). The trial court may also consider the miti gating 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. Cr

im. App. 1996). In addition, a trial court should consider a defendant’s potential or lack of potential for rehabilitation when determining if an alter native sentence would be appropriate. T.C.A. § 40-35-1 03(5); Boston , 938 S.W.2d at 438. In cond ucting a de novo review, we must consid er (1 ) the evidence, if any , received at the trial and sentencing hearing, (2) the presentenc e report, (3) the p rinciple s of sente ncing a nd arg uments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitig ating or statutory enhancement factors, (6) any
s tatement that the d

efenda nt made on

her own b ehalf, a

nd (7) the

potentia l for rehabilitation o r treatme nt. T.C.A. §§ 40-35- 102, -103 , -210; see Ashby , 823 S.W.2d at 168.

Inthe present case, the defendant ar gues that the trial court

d id no t make speci fic fi ndin gs as required under T.C.A. § 40-35-103 and, therefore, that our review of the trial court’s ruling s hould be de novo with no presumption of correctness. I n denying probation, however, the trial court stated-4-

that the defendant “has been convicted of a very se rious offense involving her grandmother which involves the violation also of an order of protection.”Implicit in this statement is that the trial court den ied the defendant’s probation, in part, to avoid depreciating the seriousness of the of fense

. Further, the trial court stated the following rega rding the defendant’s amenability to rehabilitation:
[O]rdinari ly

I wou ldn’t eve n conside r such a r

equest to have her sentence suspended w ithout her completing some [rehabilitation] progra ms, most spe cifical ly Ch ances.

Her te st imony

the other day was that she didn’t

complete it because of her me dical co ndition, a nd I a ctually wanted to

find out if that was accurate. That doesn’t see[m] quite fair for someone who has a sei zure disor

der not to be able t o have some

early releas e, just for the simple reason because she neede d her medication.
Well, the story is a little bit di f ferent today , so as a result of that, Ms. Henson, I’m n

ot going to release y

ou. I mean, if y

ou want to fi nish Chances and demonstrate to me that there has been, that you’ve complete d that. Yo

u do have some ang er issue s. Clearly, y ou do, but given that this involves a violation of the order of protection, I want y ou to finish the Chances program, so motion denied.

We believe that this statement shows that the tr ial cour t also denied the defendant probation based
on her lack of potential for rehabilitation while releas ed. The tri al court’s ruling is entitled to the presumpt ion of cor rectne ss.
Withregard to T.C.A. § 40-35-103(1)(B ), that confinement i s necessary to avoid depreciating the seriousness of

the offens e, our supreme court, in State v. Tr avis , 622 S.W.2d 529, 534 (Tenn. 1981), st at ed th at a t ri al co ur t m ay d en y an alternative sentence based upon this factor if the circumstances of the offense are “e special ly v

iolent, horrifying , shocking, reprehensible, offensive,
or otherwis e of an excessive o r exagg erated degre e.” Her

e, the stip ulated f acts a t the guilty plea hearing include the defendant grabbing , punching, and knocking her seve nty-one-y ear-o ld grandmother

to the floor. The defendant claimed at the sentencing hearing that the victim mer ely tripped over a garbag e bag and, in addition, we note that in the stipulation of facts at the g uilty plea hearing and at the sentencing hearing , the prosecution presented no facts that the victim was injured. However, given that the defendant agr eed at the guilty

plea hearing that the s tate’s version of the facts was correct, that she presented no medical records or proof at the sentencing hearing to show that her grandmother was uninjured , and th at sh e h as no t s ho wn he r g ui lt y pl ea to be in vo lu nt ar y, we take as true that the defendant “punched, kick ed, a nd kno cked

down her g rand mothe r.” We conclude that t he pun ching, kicki ng, and throw ing to the fl oor an elderl y gr an dmother in order to steal her purs e would be “excessive” or to an “exagge rated degree.” Id. Under this circumstance, the defenda

nt has fa iled to rebut the presumption that the trial court was correct in concluding tha t confinement was necessary in order to avoid depreciating the seriousness of the offense.-5-

Withregard to the trial cou rt’ s determi

nation tha

t the def endant w as not ame

nable to probation, the cour

t stated th at beca

use the de fendant

quit the Chances rehabilitation progra m while injail, she should not be given probation. See T.C.A. § 40-35-103(5) (stating that the potential or lack of potent

ial for th e rehab ilitation o r treatm ent of a defendant should be considered when determining if an alternative sentenc e is proper). In addition, we note that the defe ndant acknowledged

attending several other

rehabil itation pr

ograms in the pas t, which obviously proved
unsucce ssful, as evide

nced by the offe nse in the

present case. We

conclude that t h e trial court
correctly denied pro bati on both on the basis of the defendant’s lack of potential for re habilitation because her past treatment pro grams h ad prove n inadequ ate to ch ange h er beha

vior and b ecause confinement was necessary to avoid depreciating the seriousness of the offe nse.
Based upon the foregoing and the re cord as a whole, we

affirm t he judg ment of the

trial cou rt.

___________________________________ JOSEPH M. TIPTON, JUDGE