# FILED
July 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9708- CR-00312 Appellee, ) ) Shelby County V. ) ) Honorable Arth ur T. Bennett , Judge ) BRYAN E. BASTEL, ) (Assault - Denial of Probation) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Edward Witt Chandler John Knox Walkup Attorney at Law Attorney General & Reporter 2502 Mt. Moriah Rd., Suite A100 Memphis, TN 38115 Marvin E. Clements, Jr. Assistant Attorney Gener al Criminal Justice Div

ision Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243 William L. Gibbons District Attorney General Lee Coffee Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge

O P I N I O N-2- Originally charged with aggravated assault, the appellant, Bryan Bastel, pled guilty to assaul

t in the Shelby County Criminal Court. The cour t denied the appellant’s petition for a sus pended sentence and sentenced him to ser ve thirty days in the Shelby County Correctional Cent er. He appeals. The sole is sue for our review is w

hether the trial court er red in denying an alter

native sentence. We affirm the judgment of the trial court.
The appellant is a twenty -two-year old el ectrical engineering student at the University of Memphi s. In May of 1995, the appellant and several friends w

ent to a festival known as “ Memphis in May.” As they were leavi ng the festival, the appellant’s friend, Chris Belue, stopped to use the restr oom. The appellant and his other frien ds walked on toward t heir car. They the n heard Belue “h ollering” for them to come back. The victi m, Timothy Evans, had Belue by the wrist. Evans saw that Belue had entered a vehicle wi thout the owner’s consent. Apparently Evans w

as a volunteer at the festiv al and intended to take Belue to the police for questioning . Belue told Evans and the appe llant that a girl had given him permission to get cigarettes out of a white car. The appellant told Evans to let go of Belue. Ev ans refused, saying that he was taking Belue to the police. The appellant br oke Evan’s

grip on Bel ue’s wri st. The appel lant claims that Evans pulled “something” out of his pocket. The appellan t claims that his friends who were sev

eral feet behind him stated “Watch out. He’s g ot something.” The appellant late r learned that Evans pull ed out scissors. The appellant kicked at Evan’s hand twice and swung at him twice. He actually hit Evans in the hip as he sw ung at Evan’s hand. Ev ans left and notified the police. The appellant testified that he and his friends walked towar

d their car to leave. Several minutes later, the police arrested the appell ant. The appellant testified that he did not go to the polic e to resolve the issue because he was tired and had to get up early the nex t morning to go to wor

k. The appellant testified that he thought that Evans was picking on Belue. The appell ant did not believe that Belue had don e anything wrong.-3- The court also considered the presentencing report. Evans and the po lice gave a slightly

different account of the events than the appellant. Evans stated to the police that the appellant made two aggressiv e attempts to cut him with a six-inch hunting k

nife. Evans stated that if the appel lant’s friends had not intervened, he, Evans w ould have been murdered. Ev ans stated that the appellant “reeked” of alcohol. From the record it appears that the police report indicates that the appellant pul led a knife on Evans and threatene d him. The report also indicates that the police had to chase the appel lant and Belue.
The appellant denied that he had a si x-inch hunting knife, but admitted that he did have a small pock et knife. He denied pulling any kind of knife on Evans. He denied that he made the threatening statemen ts to Evans. He denied that the police chased hi m.
Assault is a class A misdemeanor punishable by up to eleven months, twenty-nine days in jail. Tenn. Code Ann. §§ 39-13 -101(b) (1990), 40-35- 111(e)(1) (1989). The cour t denied the appellant’s appli cation for a suspended sentence. He sentenced the appell ant to serve thirty days. The court allow ed the appellant to serve the t ime on weekends or nonconsecutive days when the appellant was not in schoo l. The court found that the appellant l acked credibility. The court did not believe that the appellant was telli ng the whole story about the offense in question. The court found that the appellant had a history of criminal convictions invol

ving assault and a his

tory of criminal behavi or. The appellant was convicted of assault in 1993. He was arr ested for or convicted of batter y or assault and battery in Ar kansas. He was arres

ted for public intoxicati on and disorderly conduct i n 1993. At the time of the offense, the appellant was out on bond for possession of a controlled substance. The trial court a lso found that suspending the appellant’s s entence would depreciate the seriousness of the offense. From the record, it appear s that the court was conc erned about the appellant’s cocky attitude and inability to appr eciate the seriousness of the offense. Past attempts at rehabilitatin g the appellant with measures less-4- restrictive than inc

arceration have failed. The c ourt took into considerati on that the appellant was in schoo l and was gainfully employed.
When an appellant cha llenges the manner of service of a sentence, this Court reviews th e evidence de novo with a presumption that the determinations of the trial court are corr ect. Tenn. Code Ann. § 40-35-401(d) (1990). The presumption of correctness is conditioned upon an affirmative sho wing that the trial court considered the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991).
Misdemeanor sentences must be spec ific and in accordance wi th the principles, purposes and goals of the Criminal Sentencing Reform Act of 1989. State v. Palmer , 902 S.W .2d 391, 394 (Ten n. 1995) . The tria l judge sha ll fix a percentage of the sentence that the defendant shall serve; after ser

vice, the defendant is eligible for rehabi litative programs. Tenn. Code Ann. §§ 40-35-302(b) & (d) (Supp. 1994); Palmer , 902 S.W.2d at 394. Alternatively, the court can grant probation immediately, or after a peri od of split or continuous confinement. Tenn. Code Ann. § 40 -35-302(e)(1) & (2).
We affirm the judgment of the trial court. The evi dence amply supports the court ’s denial of the ap pellant ’s petitio n. The ap pellant ’s lack of credibili ty, his prior history of criminal behavior, and the failure of past rehabilitation are supported by the evidence . They are appropriate factor s upon which to deny probation.
The judgment of the trial court i s affirmed.

_____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-5- _________________________ DAVID H. W ELLES, Judge

__________________________ JOE G. RILEY, Judge