### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jun e 5, 200 7

STA TE OF TE N N ES SE E v

. JAME S TAYLOR, J R.

Direc t Appeal from the Circ uit Court for Laud erdale County

No. 7964 Joseph H. Walk er, III, Judge

No. W2006-02085-C CA-R 3-CD - F iled Novem ber 14, 2007

Th e de fe nd ant, Jame s T ay lor , Jr. , w a s f ound g uil ty by a L a ud e rd a le County

jur y of a g g ra vate d a ssa ult (C la ss C fe lony

) a nd a ssa ult (C las s A mis de me ano r) . H e wa s se nte nc e d to six y e ars fo r h is ag g ravated assault convic tion and to eleven months a nd twenty -nine da

y s for his assault convic tion. On a pp e a l, h e c on te nd s tha t: ( 1) the e vid e nc e wa s in su ff ic ie nt t o s up po rt

e ith e r o f h is c on vic tio ns ; (2) the tr ial court e rre d in fai l i n g t o d ismiss the ag g ravated assault indictment bec ause it did not al l ege t h e ty

pe of de adly

wea pon used by

the def endant; (3) the trial cour

t should have excluded testimony that the def

endant wa s the subject of a re straining order ; and (4) his sente nce w as improper. Af

ter re view, we conclude that no reve rsible error ex ists and affirm t he judgments from the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opi nion of t he court, in which A L AN E. G L EN N and J.C. M C L IN , J J ., joined.

Gar y F. Antr ican, District Public Def ender , and Ka

ri I . Weber, Assistant Pub l i c De fe n d er, f or the appellant, James Taylor, J r.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Pr e sto n Ship p, As sis tant A tto rn e y Ge ne ra l; Mik e Dunava

nt, Di str ic t A tto rn e y

Ge ne ra l; a

nd Tr a c e y B re we r, As sis tant Dis tr ic t A tto rn e y Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

This case involves the defe ndant’s attac k on a father and his daug hter on De cembe r 30, 2005. At tr ia l, t he fathe r t e sti fi e d th a t, w he n th e de fe nd ant arr ive d a t his ho me , he a sk e d the de fe nd a nt t o leave befor e the d ef

en d an t exit ed the ve hicle he w as driving . The father said that the de fenda nt pushed past him an d entered his house. The de fenda nt went to the room whe re the daug hter wa s located a nd beg an to ar g ue with her . The defenda nt then came out of t hat room, ag ain pushed the fathe r aside, r etrieve d a steak knife, and went outside wher e he attempted to sta rt the daug hter’s Jeep-2-

with the knife. The fathe r said that the defe ndant started cutting him with the knife when he tried to take it awa

y from him. The de fenda

nt also hit the father

in the fac e with a lugwre nch.

Th e fathe r te sti fi e d the da ug hte r wa s injure d tha t nig ht by the de fe nd ant. As a re su lt, bo th t h e fa ther a

nd daug hter we re hospitalized, and the f ather had no doubt that the def endant wa s
re sp on sib le fo r c a

us inghis inj ur ie s. Th e State int ro du c e d s ix pho tog ra

ph s in to e vid e nc e thr ou g h th is witness. Three photogr aphs depic ted the injur ie s inflicted upon the father by the def endant, a nd three photogr aphs depic ted t h e injuries inflicted upon his daug hter a s a re sult of the defe ndant’s attac k. Duri ngc ro ss- e xami na

tio n, the fathe r sa id the da ug hte r as ke d him to ca ll 9- 1- 1, bu t he wa s una ble to make the phone call bec ause the defe ndant was holding the telephone. He said that his daug hter

came out of the house c arr y ing a lug wre nch while the def endant wa s attempting to star t the J eep. The father said that the defendant cut him with the knife e ach time he rea ched f or the de fenda

nt. He

sa id t he de fe nd ant g ra

bb e d th e wr e nc h f

ro m hi s d a

ug hte r a nd hit him in t he fa c e wi th i t.

Next, the father’ s sister testified that, when she arr ived at the f ather ’s re sidence , she found the victims c overe d in blood and the police prese nt. Both fathe r and daug hter told he r t h at the de fe nd ant h a d ca

us e d th e ir inj ur ie s. She sa id t

he fathe r h a d to sp e nd

a pp ro xima te ly

thi rt y da y s in the hospital and the da

ug hter ha d to have a

plate put in her he ad.

The ne x t witness, the daug hter, testified that she was hit in the hea d and that s u rgery was
re qu ir e d to re pa ir

he r w ound s. She c ou ld n ot r e c a ll w ho str uc k h e r. She on ly

kn e w t hat sh e wa s h it in the head a

nd woke up on the c ouch. She thoug ht she was injured immediately upon exit ing he r
car as she a rrived at her father’s r esidenc e. She t es t i fi ed that she had be en involved with the defe ndant for a l ong time and acknowledg ed her love for the defendant. She believed that she and the def endant ha d been “ hang ing out” ear lier on the day of the incide nt, but she could not rec all any arguments betwee n them

. S h e t est ified that she lef t the defe ndant at his mother’s r esidenc e and drove he r Jeep to her fa

ther’s r esidenc e, which w as appr ox imately ten to fiftee n minutes away

.

Next , th e 9

- 1

- 1 o p e r a to r

te s ti f ie d th a t h e r e c e iv e d

a c a ll f r o m t h e f a th e r ’ s r e s id e n c e a t or about 8:17 p. m

. on the date of the incident and, in turn, a dvised law e nforc ement off icer s that an assault had oc curr ed at the r esidenc e. He said the ca ll was place d by a hy sterica l female . The phone call wa s disconnecte d, and he c alled the phone number back. At that time, the daug hter a nswere d the telephone and indicate d that she had been a ssaulted by the def endant. She sa id she was blee ding heavily from the f

ace and head area and was in nee d of an a mbulance. L ater

in the call, the da

ug hter indicated that he r father ha d also bee n assaulted a nd was in nee d of an a

mbulance.

On cross-e x amination, the operator testified that he stay ed on the phone with the daug hter until law enforc ement ar

rived. He said he ha d as much of a n ong oing c onversation with her a s possible and indicated that the daug hter said s h e h ad b ee n drinking that evening . He sa id the daug hter a lso voluntee red that she had taken three Hy drocodone . At the conc lusion of the operator’s testimony , the State re sted its proof.-3-

The de fe n s e ca lled Offic er Ree d, a six -y ear veter an of the L auder dale County Sheriff’ s Depa rtment and the first office r to a rrive on the sce ne. Of

fice r Reed te stified that, on the nig ht of the incident
, h e s p o k e with the father who indicated that the def endant ha d assaulted him. The office r said that wa s basically all the information he c ould ge t f rom the fathe r. The office r also spoke with the daug hter. Of

fice r Reed sa id he was responsible for writing out the aff idavit of complaint ag ainst the defe ndant and r eca lled that the father said the de fenda nt took a knife from the house and

u s e d it to p ic k a lo c k o n a v e h ic le

. T h e f a th e r a ls o s a id th a t th e d e f e n d an t h it b oth victims wit h a four- way lug w renc h. The off

icer said that his aff

idavit of complaint contained no mention of the defe ndant using the knife to cut t he father. He said there was no mention of the knif e in any of the fathe r’s prior

statements. The knife, which was found on the porc h at the re sidence , showed no tra ce of bl ood or other r emar

kable f eatur e. The office r also said that no blood wa s found on the lug

wr e nc h b ut t

hat it wa s n ot t e ste d f

or blo od or fi ng e rp ri nts

.
On cr oss-examination, Office r Reed sa id he was a war e of pr ior alterc ations bet we en the defe ndant and the da

ug hter. He said there wa s a “no c ontact” or der f or the de fenda

nt to be off of

the pr op e rt y . O ff ic e r R e e d s a id both v ic tim s id e nti fi e d th e de fe nd ant a s th e c a us e of the ir inj ur ie s. Following the offic er’ s testimony , the def ense c oncluded its proof.

Th e jur y fo un d th e de fe nd ant guil ty a s c ha rg e d. L a te r, the tr ia l c ourt c on du c te d a se pa rate

se nte nc inghe ari ngfo r t

he de fe nd ant.
During the sentenc ing he aring , the fat her te stified that his recommendation for the defe ndant’s sente nce w as t o “let him rot in hell, if y ou want to” a nd that the def

endant should “be sto mpe d th e wa

y he st om pe d [hi m].” He fu rt he r r e qu e ste d th a t th e de fe nd ant b e he ld r e sp on sib le fo r p ay me nt o f m e dic a l bi lls ste mmi ngfr om t he a ssa ult . Dur ingc ro ss- e xami natio n, the fathe r s a id he wa s on medication prior to the a ssault and that he was on additional medication due to the injurie s he sustained in the a ssault.

Next, the officer responsible for compiling the pre sentenc e re port testified that the de fenda nt ha d p ri or fe lo ny con vi c tio ns in A rk ans a s, bu t th e of fi c e r d id n ot h a ve c e rt if

ie d c op ie s o f t

ho se judgme nts. Additionally
, the defendant had misdemeanor c onvictions in Tennessee , including te n convictions in L auder dale C o u n t y

. He sa id the defe ndant tested positive for both c ocaine and marijuana when he was take n into custody but has h ad cl ea n drug scre ens since that time. The de f e n d an ta d v i s e d

th e o f f i c e r t h a t , i f h e w a s r e l e a s e d
, h e w o u l d h a v e n o c o n t a c tw i t h t h e v i c tim s. Th e de fe nd ant ha d pr e vio us ly be e n ho sp ita lize d fo r me nta l he a lth iss ue s and re c e ived d is abi lity pay ments.

Th e fi na l w itn e ss t o te sti fy duri ng the se nte nc inghe ari ngwa s th e mot he r o f t he de fe nd a nt. She said that the def

endant ha s to stay

on his medicine or “ he just g oes off .” He has a history

of drinking and taking his me dicine at the same time. She said that, if he was a llowed to come ba ck

an d l i v e w i t h h e r , s h e w o u l d

s e e t h a th e t o o k

h i s m e d i c i n e p r o p e r l y an d g o t o c o u n s e l i n g i f

n e c e s s a r y.-4-

F oll ow ingargume nt, the c ourt fo un d th e de fe nd ant to b e a Rang e I , s tand ard

of fe nd e r w ith multipl e convic tions in addition to w hat was nece ssary to establish the appropr iate ra ng e. The court found no mitigating f

actor s, and the de fenda

nt i n fl i cted se rious bodily injury to his victim s. The

co u rt sentenc ed the de fenda nt to six y ear s for his conviction of a g g ravated assault and to e leven months and twenty -nine day s at s eventy -five perc ent for his conviction of assault. The c ourt found that this was not a proper case to g rant relief fr om incarc eration, either throug h alternative sentenc ing or probation.

An a ly sis

First, the defe ndant contends that the evidenc e wa s insufficient to sustain the convictions of ag g rav a te d a s s a

u lt an d a s s a

u lt

. T h e c r

u x o f h is ar g u me n t is th a t th e te s ti mo n y o f th e f a th e r is not

cre dible. To support his positi on, he contends that the fathe r g ave c onflicting statements and wa s taking “var ious medications” at the time of t h e i ncidents. He argues that the victims’ proof of identification wa s questionable and w as not established be y ond a re asonable doubt.

W h en an accuse d challeng es the suff iciency of the e vidence , this court must review the

rec ord to deter

mine if the evide nce adduce d during the trial wa s sufficient “ to support the finding by the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” Ten n. R. A

pp . P. 13 (e ). Th is r

ule is applicable to findings of g uilt predicate d upon direc t evid en ce , ci rcumstantial evidence, or a
c omb inatio n o f d ir e c t and c ir c ums tanti a l e vid e nc e

. State v. B re we r, 93 2 S. W.2 d 1 , 1 8 ( Te nn . Cr im. App. 1996).

I n deter mining the sufficie ncy of the evidenc e, this court does not rew eig h or ree valuate the

e vid e nc e . St a te v. Ca

bb a g e , 5 71 S.W. 2d

83 2, 83 5 ( Te nn . 1 97 8) . N or may thi s c ourt su bs tit ute its inf e r e n c e s f o r th o s e dr aw n f

r o m c ir c u ms ta

n ti a l e v id e n c e b y th e tr ie r o f f a c t. L ia k a s v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the co n t rar y , this court is require d to affor d the State the str on g e st l e g iti ma te vie w o f t he e vid e nc e c on ta ine d in

the re c or d, a s w e ll a s a ll r e a so na ble and leg itimate infere nces w hich may be dra wn from the evidenc e. State v. Elkins, 102 S.W .3d 578, 581 (Tenn. 2003)

.
Th e tr ie r o f f

a c t, n ot t his c ourt , re so lve s que sti on s con c e rn ing the c re dib ili ty of the wi tne sse s, the weig ht and value to be g iven the evide nce, a s well as all fa ctual is sues ra ised by the evidenc e. Id

. I n S t a t e v

. G r a c e , t h e T e n n e s s e e S u p r e m e C o u rts t a t e d

t h a t“ [ a ] g u i l t y v e r d i c tb y t h e j u r y,
a pp ro ved by the tr ia l ju dg e , a c c re dit s th e te sti mony of the wi tne sse s f

or the State and

re so lve s a ll conflicts in favor of the the ory of the State.” 493 S.W .2d 474, 476 (Tenn. 1973)

.

Be cause a ver dict of g uilt removes the pre sumption of innocence and re p l ac es i t wi th a pr e s u mp t i o n o f g u i l t , t h e a c c u s e d h a s t h e b u r d e n i n t h i s c o u rt o f i l l u s t r a t i n g w h y t h e e v i d e n c e is insufficient to support the ve rdict re turned by the trier of

fac t. State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982) ; Grac e, 493 S.W.2d at 476.

Te nn e sse e Cod e Anno ta te d s e c tio n 3 9- 13 -1 02 (a ) s ta te s:-5-

A per son commits agg ravated assault who: (1) I ntentionally

or knowing ly commits an assa ult as defined in § 39- 13-101 and: (A) Causes ser ious bodily injury to another; or (B ) Uses or display s a dea dly wea pon[.]

Te nn e sse e Cod e Anno ta te d s e c tio n 3 9- 13 -1 01 (a ) p ro vid e s: A per son commits assault who: (1) I ntentionally , knowing ly or re cklessly

cause s bodily

in ju r y to another ; (2) I ntentionally

or k n o wi ng ly

cause s another to r easona bly fea r imminent bodil y

injury ; or (3) I ntentionally or knowingly cause s phy sical conta ct with another and

a re asonable person would reg ard the contac t a s extremely offe nsive or provoc ative.

He re , th e e vid e nc e e sta

bli sh e d th a t th e de fe nd ant c ut the fathe r wi th the kn if e , in jur inghis hand. The evide n ce further established that the de fenda nt struck the father in the fa ce w ith a lug

wre nch, ca

using se rious injury

that require d a hospital stay of appr ox i m at el y thirty

day s. The testimony also established that, at the hands of the de fenda nt, the daug hter suff

ere d injuries so sever e that surg ery

was ne cess ar y

. T he evide nce is suff icient to support the jury ’s finding s that the defe ndant committed an ag g ravated assault on the f ather and an a ssault on the daug hter.

Next, the defe ndant contends that the i ndictment ag ainst him was flawed because it did not specific ally

state the de adly

wea pon he used in c ommitt ing the ag g ravated assault ag ainst the fathe r. He argue s th a t th e a

bs e nc e of the sp e c if

ic we a po n r e nd e rs the ind ic tme nt de fe c tiv e , an d he a sk s th is court to dismiss the indictment wi t h p re j u d ice. An indictment is valid if it “provide s sufficient inf or ma tio n ( 1) to e na

ble the a c c us e d to know the a c c us a tio n to wh ic h a ns we r i s r e qu ir e d; ( 2) to furnish the c ourt with an a d eq u at e b asi s for the e ntry of a pr oper judg ment, and (3) to protect the

acc used fr om double jeopar dy .” State v. Hill, 954 S.W .2d 725, 727 (Tenn. 1997)

. Th e ind ic tme nt mus t st a te the fa c ts c on sti tut ingthe of fe ns e in o rd ina

ry and c on c ise lang uag e, w i t h out prolix ity or re petition, in a manner so a s to enable a person of

com mon un de rs tand ingto k

no w w hat is int e nd e d a

nd wi th t hat de g re e of

c e rt a int y which will enable the court, on conviction, to pr onounce the proper judgme nt. I n no
case are the words “ forc e and a rms” or “ contra

ry to the for m o f t he statute”

n e c e s s ar y. Tenn. Code Ann. § 40- 13-202.

Our supre me cour

t has previ o u s l y stated that “indictments which a chieve the over riding purpose of notice to the accused will be considered sufficient t o satisfy both the consti tutional and statutory require ments.” State v. Hammonds, 30 S

. W

. 3 d 2 9 4 , 3 0 0 (Tenn. 2000) . An indictment satisfied the c onstitut ional and statutory require ments and suffic ientl y ch ar g ed the of fense of ag g ravated assault whe re a ll of the eleme nts of the offense – intentional and knowing mens re a, the commission of an assault, and the us e or display of a deadly wea pon – wer e alleg ed. I d. at 302. The-6-

court he ld that the State is not required “ to specify in the indictment the prec ise means or theory by wh ic h th e State int e nd s to e sta bli she a c h e le me nt of the of fe ns e .” I d. B y

a lle g inga ll o f t

he e le me nts of a g g ra vate d a ssa

ult , th e ind ic tme nt in Ha

mmo nd s g a ve the de fe nd ant no tic e of the c ha rg e s a g a ins t him. Here , the indictment contained the following lang uag e: “. . . that J ames Ta y lor, J r. on or a

bout De c e mbe r 3 0, 20 05 , in L a ud e rd a le County , Te nn e sse e , and be fo re the fi nd ing of thi s in dic tme nt, did

un lawf ull y , f e lon iou sly , a

nd kn ow ing ly c a

us e bo dil y inj ur

y to B ob by Ha sli p b y

the us e of

a de a dly

wea pon, in violation of [ Tenne ssee Code A nnotated sec tion] 39-13-102 . . . .”
Following Hammonds, we conclude that the indictment in the instant case wa s not defe ctive. Th e ind ic tme nt a lle g e d th e e le me nts of a g g ra vate d a ssa ult , p ro vid e d th e ba sis fo r a pr op e r j ud g me nt, listed a specif

ic date a nd names of the victims, utiliz ed langua g e fr om the proper statute, and re fer

red to t he statut e . We c on c lud e that th e tr ia l c ourt did no t e rr in r e fu sin g to d ism iss the ind ic tme nt.

Next, the petitioner contends that the trial court e rre d in allowing te stimony to be introduce d

a t t ri al re g ard ingthe e xiste nc e of a re str a ini ngor de r a g a ins t hi m, p ro te c tin g the vic tim s. Specifica lly , he conte nds that the testimony constituted evidenc e o f a prior bad a ct in violation of Tenne ssee Rule of E vidence 404(b). To suppor t his conclusion, the defe ndant not es that the trial court instructe d the def

endant, pr ior to trial, that it would rule on the re straining order issue when it was prese nted during the trial. When the testimony was e licited from the f

ather , th e def

endant objected a

nd was subseque ntly overr uled wit hout conducting a hearing outside the jury ’s pre sence

. The de fenda

nt argues that this constituted rever sible err or and de serve s a re mand.

The languag e the de fenda nt contests occur

red dur ing the direc t examination of the father

. When counsel for the S tate asked the father how he knew the defendant, he replied, “ He lives – he was living with my daug hter until we ha d to ge t a re straining order .” At which time, c ounsel for the defe ndant objecte d and aske d the cour t for per mission t o approa ch the be nch. The court ove rruled the objection without proce eding further

.
The State a

rg ues that t he mer e fa ct that the victims had a r estrainingorder ag ainst the defe ndant did not constitute evidence of a prior bad act on the defendant’s pa rt, as conte mplated by Tenne ssee Rule of Evidence 404(b), beca use there was no mention of a ny bad ac t on the defe ndant’s part. Rule 404(b) provides that evidenc e of other c rimes, wrong s, or ac ts is not admis sible to prove the cha rac ter of a person in order to show action in confor mity with the char acte r trait. Our revie w of the re cord does not show that the State was try ing to introduc e evide nce of the exist ence of the restra ining or der. The ref

ore, a ny mention of t he restraining order should be dee med har mless. The

rec ord re flec ts that the State did not seek to introduce any circ umstances relating to the r estraining order into evidence . I n fac t, the State did not ask the vi ctim any questions about t he re straining order but, instead, focuse d o n l y o n the eve nts that ga ve rise to the unde rlying c harg es. We find no evidenc e in the re cord tha t the jury convicted the defe n d an t o f these c rimes base d on the passing ref ere nce to a

restra ining or der. A ny er ro r t h at may have r esulted fr om the admission of the witness’s brief

statement about t h e exis tence of a r estrainingorder has not bee n shown to have aff ecte d the outcome of the case. There fore
, the defendant is not entitled to any relief on this iss ue.-7-

Next, the defenda

nt argues that the trial court improperly sentenc ed him to the maxim um of six y ear s after

deter mining that he had a pr evious history of cr iminal convictions. A defe ndant who

c ha lle ng e s his or he r se nte nc e ha s th e burd e n o f p ro vin g the se nte nc e imp os e d b y the tr ia l c ourt

is improper. Te nn. Code Ann. § 40-35- 401, SentencingCommi ssion Com ments; St ate v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). When a def endant a ppeals the le ng th, rang e, or ma nner of service of his or her

sentenc e, it is this court’s duty to conduct a d e n o v o re v i ew o f t he re cord w ith a presumption that the trial court’s deter minations are corr ect. Te nn. Code Ann. § 40-35- 401(d). The presumption of cor

rec tness is conditioned upon the af firmative showingin the rec ord that the trial

c ourt c on sid e re d th e se nte nc ing pr inc ipl e s and a ll re le va nt fa c ts an d cir c ums tanc e s. State v. Pe ttu s, 986 S.W .2d 540, 543-44 (Te nn. 1999).

The we ight g iven to eac h enhanc ement or mitigat i n g fa ctor is i n the discre tion of the trial court, a ssuming that the tria l court has c omplied with the purposes and principles of the sentenc ing act a nd that its finding s are supported by the rec ord. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Cr i m

. App. 2002). The statutes presc ribe no pa rticular w eig ht for an e nhance ment or mitigating fac tor. State v. Gosnell, 62 S.W.3d 740, 750 (Te nn. Crim. App. 2001). “[A] defenda nt’s ‘sentenc e is not determined by the mathematica l proce ss of adding the sum total of enhanc ing f actor s prese nt then subtrac ting f

rom this figur e the mitigating fac tors prese nt for a ne t number of y ear s.’” State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) ( quoting State v. Bog g s, 932 S.W .2d 467, 475 (Tenn. Crim. App. 1996) ).

The de fenda

nt had prior c onvictions, inc luding four convictions for f elony theft in Arka

nsas from 1985 to 1987. He had prior assault convictions in L auder dale County in 1999 and 2002. He

a lso ha d te n a dd iti on a l c onvic tio ns fr om 1 98 9 to 20 05, eight of whic h o c c ur re d in L a ud e rd a le County

.

I n g ener al, the enhance ment fac tor for a prior cr iminal recor d has bee n previously aff orded g re a t w e ig ht b y

thi s c ourt

. He re , the de fe nd ant’ s pr ior c ri min a l r e c or d s ho uld be we ig he d h e a vil y beca use of both the nature a

nd the number of his convictions. On two pre vious occa sions, he had be e n c on vic te d o f a ssa

ult in t he tr ia l c ourt fr om wh ic h the pr e se nt c on vic tio ns ari se . T his fa c tor is sufficie nt to elevate his se ntence to the maxi mum c eiling and to f irmly embed his s en t en ce i n t he ceiling . See State v. B rade n, No. 01C0 1 -9610-CC -00457, 1998 Tenn. Crim. App. L EXI S 213, at *24 (Tenn. Crim. App. at Nashville, Fe b. 18, 1998). Our r eview of the rec ord ref lects that the trial court a cted within its discretion in imposing t he si x -y ear sentenc e. There fore
, the defendant is not entitled to relief on this issue.

I n the def endant’ s final i ssue, he argues t hat t he trial court im proper ly denied him probation. Tenne ssee Code A nnotated sec tion 40-35-303(a ) provides that a defendant is elig ible for pr obation if the a c tua l se nte nc e imp os e d is te n y e ars or less and the of fe ns e fo r w hic h th e de fe nd a nt i s sentenc ed is not specific ally excluded by s t at ute. The tria l court is to automatically consider probation as a

sentenc ing a lternative f

or an e ligible de fenda

nt, but the defe ndant bea

rs the burde n of provinghis suitabili ty

for pr obation. Tenn. Code Ann. § 40- 35-303(b) . No cr iminal defenda nt-8-

is e nti tle d to pr ob a tio n a s a matt e r of law. I d. , Sen te nc ing Com mis sio n Comme nts ; Stat e v. Da vis
, 940 S.W .2d 558, 559 (Tenn. 1997)

.

I n consideringwhether

to gr an t p ro b ation, the cour t must consider the nature and circ umstances of

the offe nse; the d e f

e n d a nt’ s c r im in a l r e c o r d
, b a c kg round, social history , and pre sent condition; the deterr ent ef fec t on the defe ndant; and the de fenda nt’s potential for reha

bilitation or treatment. State v. Souder, 105 S.W .3d 602, 607 (Tenn. Crim. App. 2002)

.

Her e, the tria l court imposed a se ntence of six y ear s, making the def endant e ligible f

or pr ob a tio n. Th e tr ia l c ourt did no t st a te on

the re c or d its r e a so ns fo r d e nyingpr ob a tio n b ut m e re ly

c o n cl u d edt h at i twa s “n o ta p ro p er ca s e t o gra n tre l i ef

fr o m s en t en ce at t h i s t i m e, ei t h er t h ro u gh alternative sentenc ing or probation.” The State a rg ues that the re cord de monstrates the de fenda nt’s failure to meet his burd en o f establishing suitability for pr obation. We ag ree . The sente ncing hear ing r evea led the defenda nt’s numerous prior convictions. The de fenda nt was on medication and continued to drink alc ohol. The inj u ri es s u ffe red by both victims were se vere enoug h to warr ant le ng thy ho sp ita l st ay s and surg e ri e s. Th e re c or d fa ils to d e mon str a te the de fe nd ant t o b e a su ita ble candidate for pr obation.

Conclusion

Ba sed on the for eg oing a nd the re cord a s a whole
, we affirm the judg ments from the trial court.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE