# FILED
September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL, 1998 SESSION

STATE OF TENN ESSEE, ) No. 03C01-9704-CR-00154 ) Appellee, ) ) Washington County vs. ) ) Honorable Arde n L. Hill, Judge D’SHANNON H . GOINS, ) ) (Sentencing) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: DEBORAH HUSKINS JOHN KNOX WALKUP Assistant Public Defender Attorney General & Repor ter First Judicial District P.O. Box 996 ELIZABETH B. MARNEY Johnson City, TN 37605 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Ave. North Second Floor, Cordell H ull Building Nashville, TN 37243-0493 DAVID E. CR

OCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601 KENT GARLAND Assistant District A

ttorney General P.O. Box 38 Jonesborough, TN 37659

OPINION FILED: ____________________ AFFIRMED IN PART, REVERSED IN PART AND REMA

NDED
CURWOOD WITT JUDGE2 OPINION The defendant, D’Sha nnon H. Go ins, was convicted in a jury trial in the Washington County Criminal Court of simple assault, a Class A misdemeanor. The trial court sentenced him to serve eleven months and twenty-nine days with all but the first sixty day

s of the sentence to be served o n proba tion. The jury assessed a fine of $

2,500, a nd the tr

ial cou rt orde red the d efe ndant to pay one hundred dollars per month toward th e court cost s and as restitution to the victim. In addition, the defendant must spend ten days performing community service. In this direct appeal, the defendant does not challenge the validity of his convictions. He contends that thetrial court should have suspended his entire sentence and that two of the probationary conditi ons imposed by the trial court are unreasonable and unrelated to th e purposes of sentencing.

We affirm the defendant’s sentence as imposed by the trial court. However, we find that the two conditions of probation are not authorized by statute
nor reaso nably r elated to the purpose of the sentence; th erefore, we remand this
case so that the trial judge may reconsider the conditions of probation as a whole. In addition , we f ind that the judgment form does not accurately reflect th e entire sentence imp osed by the t rial court. The trial c ourt’s order of restituti on is not clearlystated in the transcript,and the judgment order makes no mention of restitution. Upon remand the trial cour t shall enter a c

orrected judgment that is consistent

with the sentence impose d at the sentencing hearing as corrected in accordance with this op inion.

The charges in this case a rose out of an incide nt that occurred in a Johnson City establishment known as Gatsby’s. According to the testi mony attrial, the victim and several other coll ege students were sitting at two tables. The defendant, the victim and most of the others involved in this incident were students at Ea st Tennesse e State University in Johnson City. A co uple of weeks earlier
some of these young m en had had a disagreement with Keith Duncan over the3

shuffle board game. Du ncan felt that they had continued t o harass him. On the nightin question, the defendant, w ho had just been introduce d to Dunca n by a mutual friend, approached one table and told the young men at that table to leave Duncan alone. When they denied knowing Duncan, the defendant brought Duncan to the table. When they contin u ed to deny any knowl edge of Duncan or any haras sment, t he defendant became abusive and threa tening. He struck Ashly Dewberry

at least twice in the jaw. Dewberry suffered a broken jaw and a sev ered nerve. The injury required surgery, and the victim has tw o plates in his jaw and a
scar on the side of his neck. In addition, one of the victim’s front t eeth struck
s omething when he fell and requir ed a root canal. The grand jur y indicted th e defendant for aggravated assault. After a two-day jury trial, the jury acquitted him of that charge and found him guilty of misdemeanor assault.

In this appe al, the de fendan t raises two sentencing issues. When an accused challenges the length, range, or manner of servi ce of a sentence, it is the duty of thi s c ourt to conduct a de novo review with a presumption that the determinationsmade by the trial court are corr ect. Tenn. Code Ann. § 40-35-401(d)(1997). This pres umption is "condi tioned u pon the a ffirma tive showing in the record that the

trial court considered

the sentencing principl es and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, w e must consider all the

evidence, the presentence r eport, the sentencing principles , the enhancing and mitigati ng fac t ors, counsels’ arguments, the appellant’s statements, the nature and charact er of the offense, and the appe llant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5),
- 210(b) (1997); State v. Ashby , 823 S.W.2d at 169. The defendant has the burden of demonstrating that the sentence is improper. Te nn. Code Ann. § 40-35-210 Sentencing Comm’n Comments. If therecord fails to demonstrate the appropriate consideration by the trial court, appellate review of the sentence is purely de novo . State v. Ashby , 823 S.W.2d at 169. However, if our re view reflects that th e tr ia l court properly considered al l relevant factors and the r ecord adequately support s4

its findings of fa ct, this co urt must a ffirm t he sente nce even if we would have preferred a differe nt result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A misdemeanant, unlike the felon, is not

entitled to the presumption of a minimum sentence. State v. Randall C. Con ner , No. 03C01-9401-CR-00024, slip op. at 6 (Tenn. Crim. App., Knox ville, Aug. 1 2, 1994); St ate v. Bernell B. Lawson , No. 63, slip op. at 7 (Tenn. C rim. App., Knox ville, May

23, 1991). Misdemeanor

sentencing is controll ed by Tennessee Code Annotated section 40- 35-302. The statue requires the court to impose a “specific number of months, days or hours . . . consistent with the purposes and principles o f the [Criminal Sentencing Reform Act of 1989],” Tenn. Code Ann. § 40-35-302(b) (1997), and t o determine a percentage of the sen tence which the m isdemea nant mus t serve before becoming eligible for w ork release, furlough, tr usty status, or other

“related rehabilitation programs.” Tenn. Code Ann. § 40-35-302(d) (1997). In de termining the percentage, the court must c onsider enhancement and mitigating factors as well as the legislative purposes and principles related to s entencing. Tenn. Code Ann. § 40-35-302(d); State v. Palmer , 902 S. W. 2d 391, 393-94 (Tenn.1995); State v. Gilboy , 857 S.W.2d 884, 888-889 (Tenn. Crim. App. 1993).

The misdemeanor sentencing statute authorizes the court to place a defendant on probation i mmediatel y or after service of a portion of the sentence. Tenn. Code Ann. § 40-35-402(e) (1997). The trial court maintains j urisdiction over
a defendant placed in jail and may reduce or modify the sent ence or place the defendant on probationary sup ervisio n. Tenn. Code Ann. § 40-35-314(c) (1997). The statute is designed to provide a trial court with continuin g jurisd iction in misdemeanor

cases and a wide latit ude of f lexibility. State v. Dwight J ohnson , No. 03C01-9209-CR-00320, slip op. at 7 (Tenn. Crim. App., Knoxville, May, 18, 1993), perm. to app. denied (Tenn. 1994).5 In this case, the trial cou rt sentenced the defendant to eleven months and twenty-nine days

and set the required

perc entage of service at six ty percent. The defendant contends that the trial court erred in ordering him to ser ve sixty days of his sentence in jail. We disagree.

In this case, the trial court considered all of the r elevant facts and circumstances

and the applicable sentencing considerations. A presentence report
was prepared, and the court held a separate sentencin g hearing a t which the defendant was the only wi tness. The trial judge found that the defendant had a historyof previous criminal beh avior, that the victim’s personal injuries were particularlygreat, and that the crime was committed under circumstance s un der which the potential for bodily injury to a victim was g reat. Tenn. Code Ann. § 40-35- 114 (1), (6), (16) (1997).

The re cord supports the trial c ourt’s use of factors 1 and 6. Th e defendant’s record includes a juvenile assault conviction and an aggravated assault charge that, according to the defendant, was dropped when the v ictim realized that the defendant was only sixteen years old. As an adult, he has been convict ed of disorderlyconduct and failure to appea r. Th e evidence in the record does not preponderate against the trial cour t’s conclusion that the defendant has a historyof previouscriminal behavior. The reco rd also ind icates that the victim s uffered a broken jaw, a nerve injury, and damage to a tooth. His medical expenses exceeded eleven thousand d ollars. He has two plates in his j aw and a scar on his neck

. Unlike aggravated assault, simple assault does not require that the jury find“serious bodilyinjury.” See Te nn. Code Ann. §§ 39-13-101(a)(1), -102(a)(1)(A) (1997). Therefore, enhancement factor 6 may be applied in casesof misdemeanor assault where a preponderance of the evidence indicates that the injuries were particularly great. See State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994) (serious bodily injury is synonymous with par ticularly great injury). The trial court did not err in finding that the victim’s injuri es resulting from this as sault were particula rly great.1 The three mitigating factors to which the trial c

ourt referred are: (1) the defendant’s criminal conduct neither cause d nor threatened serious bodily injury; (2) the defendant ac ted under strong provoc ation; (3) substantial g rounds exist tending to ex

cuse or justify the defendant’s criminal conduct, though failing to establish a defense. Tenn. Code Ann. § 40-35-113 (1), (2), (3 ) (1997). 6 The trial court did, however, err in considering enhancement factor 16

. Bodilyinjury is an element of the offe nse for which the defendant was convicted. Tenn. Code Ann. § 39-13-101(a)(1) (1997). An enhancement factor may not be an essential element o f the offense. Jones , 883 S.W.2d at 603; Tenn. Code Ann. § 40-35-114 (1997). Ever y a ssault as defined in section 39-13-101(a)(1) occurs in circumstances

where the potential for bodily injury to a victim is g reat. Stat e v, Glenn David Jones , No. 03C01-9302-CR-00057, s lip op. at 17 (Tenn. Crim. App., Knoxville, Nov . 22, 1994), perm. app. denied (Tenn. 1995).

The trial court found th at mitig ating factors (1), (2) , and (3) exist but held that the e nhance ment factors outweighed the mitigating factors. 1 We agree that factors (2) and (3) appl y and that these enhancement factors outweighed the mitigating factors. Ev

en though we have elimi nated one enhancement factor, the two applicable factors have sufficient wei ght to justify a maxi mum sentence with a service percentage of at least 60% and the im position of 10 days of community service.

Next we consider whether the trial co ur t erred in sentencing the defendant to a sentence involving split confinement rather than full probati on. Trial courts may, at their discreti on, require a defendan t receiv ing probation to serv e a portion of the sentence in continu ous confinement coupled with probation for a period of time up to and including the statutory maximum time for the class of the conviction offense. Tenn. Co de Ann. § 40-35-30 6(a) (199 7). On the se facts , we cannot say that

the trial court abused it s discretion. The

defendant has previously been convicted of

ass ault, and although he has several times expressed his
remorse forthe victim’s injur ies, he apparently does not recognize that his a

ctions
were irrespons ible and imma ture as well as illegal. He must learn that he is a7

young man and a father and not a school boy at recess. His prev

ious brushes with the law, for which he r eceived probation, have n ot conveyed the mes sage effect ively. The trial court did not er r in orderinga l engthy period of “shock incarceration” in this

case.

In this last issue, we must determine whether the trial court erred in imposing conditions of probation that require the defendant to stay out of places that sell alc ohol, including groc ery stores, and that proh ibit him from living with any
woman to whom he i s not marrie d. Th e resolution of this issue is controll ed by State v. Burdin , 924 S.W.2d 82 (Tenn. 1996) . Based on our supreme court’s decision in Burdin , we find that the special conditions imposed by the trial court are improper as they are not authoriz ed either expressly or implicitly by

the Criminal Sentencing Reform Act of 1989. See 1989 Tenn. Pub. Acts, ch. 591 § 6.

Under the Act, a trial court has wide latitude in for

mulating s pecific sentences, including the impositi on of conditionsof probation. Burdin , 924 S.W.2d at 85. Although the Act encourages t r ial judges to be innov ative in devising appropriate sentences, the resulting sentence must c onform to the principles of
s entencing and be responsive to both the interests of society and th e inter ests o f the defendant. Id . Tennessee Code Annotated sect io n 40-35-303(d) authoriz es the trial court to impose con ditions of pr obation that our supreme court has described
as “closely related to conv entiona l societa l duties - f amily supp ort, prod uctive employment, community service, personal health, vocational training, avoidance of dan gerous instruments, cooperation with supervising agencies, and restitution.” Bur din , 924 S.W.2d at 85. Subsection (d)(9) allow s the imposition of “an y othe r conditions[that are] reasonably related to the purpose of the of fender’s sentence and not unduly restricti ve of the offender’s liberty, or incompatible with the offender’s freedom of conscience, or otherwise prohibited by this chapter.” Tenn. Code Ann. § 40-35-303(d)(9) (1997). Although stated i n general terms, subsection 9 offers no dramatic departure from traditional principles of rehabilitation. Burdin ,2 The trial court made an exception for the defendant’s place of

employment, the Steak & Ale, w here alcoholic beverag es are served.
3 Apparen tly the tria l judge be lieved tha t the def endant d id not live with the mother of his chil d but lived instead with another woman. Althoug h the record is not entirely

clear, the defendant’s testimony indicates that he and the 8 924 S.W.2d at 85. The primary goal of probati on, both under our sentencing statutes and the appellatedecisions of the courts of this state, is rehabilitation. Id

. at 86 (citations to other ca ses omitte d). Altho ugh the Ac t encoura ges innova tive techniquesof probation topromote rehabilitation and to prevent recidivi sm, section 40-35-303(d)(9) should not be read as “granting unfettered authority” to impose conditions and punishments which extend beyond the scope of tra ditional notions of rehabilitation. Burdin , 924 S.W.2d at 86.

In this case , the trial judge order ed the defendant to stay out of any establishment

that sold alcoholic beverages including grocery stores 2 and forbade him to live with any

woman to whom he was no t married. Although a proh i bition against entering establishments s uch as bars and nig ht clubs that sell alcoholic beverages

may be within the bounds of traditio nal notion s of probation in
a pprop riate cases, forbidding one to enter a grocery store that sells alcoholic beverages

is needlessly broad. Tennessee law permits the sale of beer in grocery stores. Many grocery

stores sell beer. Grocery stores als o sell the necessities of life. The defendant is a father, and forbidding him to enter a grocery sto re will have
an adverse affect on his ability to provide for his child as well as himself. Such a condition is counterproductive to the p urposes of probation which s tress the importance of conventional societal duties such asfam ily support. See Burdin , 924 S.W.2d at 85. In an appropriate case, a tr ial court may well

order an offender to abstain from the use of alcohol and to refrain from enteri ng certain kinds of establishments, but a condition of probation shoul d not prevent theoffender from purchasing for himself and his family the necessities of li fe.

The second specia l condi tion, that the defendant not reside w ith a
woman to whom he is not married, is also drawn too broadly. 3 Moreover, it is n otmother of his child were l iving together but that another woman also liv ed in the house. He referred to this w oman as a “roommate” who had not fulfilled her obligation to pay her s hare of the rent and the utiliti es.

4 We note that the cond itions as written in the probation order are even more broad than the trial court’s pronouncements at the s entencing hearing. According t

o the order, the defendant “wil l not live with an yone to whom you are not married,” and “will not use intoxicants of any kind,” nor “use or be in possession of narcotic drugs, including marijuana,” or “visit places where intoxicants or drugs are sold, dispensed, or us ed.” If this order wer

e taken literally, the defendant would be precluded from entering grocery stores, pharmacies, doctors’ offices, and hospitals and would be forced to reside by himself. 9 reasonably related to the purposes of the sent ence. In es sence, the trial court ordered the defendant not to live in the house with his own chi ld unless he married the child ’s mother. Although it may be appropriate under some circumstances t o refuse to allow a defendant to liv e with his family, see e.g. , State v . McSweeney , 123 Ore. App. 460, 860P.2d 305 (Ore. App. 1993) (pr ohibiting drug

offender from living with family is r eason able), no such circumstance s exist in this case . In addition, the broad language used by the trial court forbids the defendant to live in the same house with a female relati ve such asa sister, a grandmother, or even his mother. We fail to see any relationship betwee n the condition and the defendant’s need to exercise more contr ol over his aggr

essive tendencies.

Since neither of the two special conditions is authoriz

ed by statute , we must remand this case to the trial court for the imposition of conditions of probation that are consistent with the Criminal Sentencing Reform Act of 1989. 4 See Burdin , 924 S.W.2d at 87.

Finally, we must address a matter unr elated to those raised by the defendant. In our de novo review of the record , we noted that the judgment entered in this case is deficient. The j udgment indicates that the defendant w as convicted of assault as defined in Tennessee Code Annotated section 39-13-101 an d sentenced to serve 60% of his eleven month and twenty -nine day sentence in the county jail before being elig ible for any release prog rams. The form also notes that the jury imposed a fine of $2,500. The j udgment does not indi cate that the5 The probation order states that the defendant must pay restitution

through the court but does not mention any amount.

6 An offender may be required to serve a portion of his sentence in continuous confinement with pr obation for a period of time up to and in cluding the statutory maximum for the class of conviction offense. Tenn. C ode Ann. § 40-35-306(a) (1997). The defendant in th is case was convicted of a Class A misdemeanor for which the statutory maximum sentence is eleven months and twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1). 10 defendant is to serve 60 days in jail and the balance on probation. It is also silent
on the subject of restitution, c osts, and community serv ice. At the se ntencing hearing, the trial judge ordered the defendant to pay both his court costs as well as restitution to the victim at the rate of $100. 00 per month. 5 However, it is not clear from the transcript how the funds are t o be allocated between the cos ts and restitution. Facts in the record indicate that the victim’s medical costs amounted to $11,967.04. The trial court made no findings as to the a mount of res titution the defendant was required to pay and the time of payment.
According to Te nness ee Code Annotated section 40-35-304 , a trial court must specify at the sentencing he arin g the amount of restitution to be pa id. Tenn. Code A nn. § 40-35-304(c) (1997). The court may permit payment in installmentsbut may not establish a pay ment schedule that extends bey ond the statutor y maximum term of probation superv ision that may be imposed for the offense. Id

. 6 In determining the amount of restitution and the method of payment, the t rial court shall consi der the financial resources and the future ability of the defendant to pay. Tenn. Code Ann. § 40-35- 304(d) (1997).

The present judgment

form does not contain many of the trial court’s orders relevant to sente ncing, and the transcript itself does not clarify the questions relevant to restitution. Upon remand,the trial court shall enter a judgment that accurately reflects the se ntence imposed at the sentencing hearing as well as a pr obation order containing any conditions the trial judge determine s to b e rea so nably related to the purposes of sentenci ng as defined in Burdin and in the bes t inter ests of the public and the defendant. The tr ial court shall make the11

required findings concerning the tota l amount of restitution and the manner of payment after taking into c onsideration the defendant’s financial resources and future a bility to p ay.

__________________________ CURWOOD W ITT, Judge CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ JERRY L. SMITH, Jud ge