# FILED
November 12, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE OCTOBER SESSION, 1999

STATE OF TENN ESSEE, * * No. 03C01-9901-CC-00011 Appellee, * * ANDERSON COUNTY vs. * * Hon. JAMES B. SCOTT, JR., Judge DAVID LEE HURST, * * (Sentencing) Appellant. *
For the Appellant : For the Appellee : Leslie Hunt Paul G. Summers 139 North Main Street Attorney General and Repor ter Clinton, TN 37716 Clinton J. Morgan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 James N. Ramsey District Attorney General Jan Hicks Asst. District Attor

ney General 127 Anderson County Courthouse 100 North Main Street Clinton, TN 37716

OPINION FILED: AFFIRMED
David G. Hay

es, Judge1 The transcript of the guilty plea hearing is not included in the record. Thus, the specific terms of the pl ea agreement are unknown. At the sentenci ng hearing and on appeal the appe llant argues only

his enti tlement to t

otal proba

tion. For these reasons, appellat e review i s limitedto the senten cing altern ative of pro bation. 2 OPINION
The appellant, David Lee Hur st, appeals the sentencing dec ision of the Anderson County Criminal Court following his guilty plea to Class D felony child abuse. In accordance wit h the plea agreement, the appellant received a two y ear sentence with the determinat ion of probation to be submitted to the trial court. 1 At the sentencing hearing, the trial court denied probation and ordered confinement in the Department of Correction. The sole issue on app eal is whether the trial court erred by denying t he appellant total probation.

Followin g review , we affirm.

SENTENCING HEARING The conviction stems from the physical abuse of the ap pellant’s five year old stepson in January of 1998. At the sentencing hearing i n November of 1998, Detective Penny Baker of the Anderson County Sheriff’s Department testified that the child exhibited injuries to both ears, bruising on the inside and outside of his ears, “faint” bruises to the side of the face, numerous bruises t o one arm, “faint” bruising on his back, a n abrasion to his neck, a sev ere bruise to the top of his foot, a bruise to the back of the head, and a severe bruise to his penis. Th e presentence report characterized the victim’s injuri es as being “bruised from hi s ears to his toes in various stages of heal ing.” The appellant expl ained to Baker that the bruisi ng to the penis was the result of his kicking the chil d and the rest were the r esult of “playing rough” with the child. Detective Baker testified that the appellant initially was untruthful and later cha nging his story, attempted “to make light” of the severity of his action s. The presentence report indicates that the appell ant “beat (t he victim) with a board, stomped his foot,” and “beat him about the head and face.” The appellant is six feet and six inches tall and weighs two hundred pounds; the victim weighs forty-si

x pounds.
The appellant has two prior felony convictions from 198 3 when he was3

nineteen years old for thir d degree burglary and grand larceny, both arising from the same incident. He receiv ed a three year sentence for eac h offense and was placed on unsupervised probation. The appellant admits to recent mar ijuana use. The probation officer testified that in preparing the presentence r eport, he believed the appellant purposefully misadv ised him that the prior theft con viction was committe

d as a juvenile when i n actuality it was an offense committed when the appellant w as nineteen years old.
The thirty-four year ol d appellant testified that he w as currently employ

ed by ABC Transport where his duties involve moving and setting up mobile homes. He explained that he experi ences disabilities from bone det erioration in his spine and from other medical problems. He currently resides with his mother while he and his wife are in

the process

of getting a divorce. Although he admitted to p roblems controlling his anger, he denied that any of the child’s injuries were a result of his anger. He advised that he “had no desire for any mental health treatmen t.” He explained that he told the probation officer tha t his crime was committed as a juvenile because he could not remember the dates and times as a result of a head injury from which he had to learn to write and read again. On cross-e xamination, the appellant denied the accusati on by the child that he hit him with a board.
At the conclusion of the hearing, the trial court denied the app ellant’s request for probation.

PROBATION The sole issue on appeal is w hether the trial court pr operly denied probation. Although the appellant r equests that we conduct a de novo review of his sentence, which requi res an examination of the “natur e and characteristics of the criminal conduct involved,” Tenn. Code Ann. § 40-35-210(b)(4) (1997), we are pr ec lu de d f ro m d oi ngso

be ca us e t he

re co rd is

vo id of th e g ui lt y p le a t ra ns cr ipt. We have repeatedl y held that failu re to include the transcript of th e guilty plea hearin gs in the record prohibits this court from conducting a meaningful de novo review.
If the appellate record is ina dequate, the reviewi ng court must presume that the trial judge ruled c

orrectly. See State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim.4

App. 1993). The obligation of prepa ring a complete and adequate r ecord for the issues presented on appeal res ts upon the appealing party

. See Tenn. R. App. P. 24(b). For this reason, this issue is wai ved. However, w

e are able to glean from the record the nature and circumstances of the offense through the testimony of Detective Baker and the pr esentence report. See Tenn. Code Ann. § 40-35- 210(b)(1) and (2). Within this li mitation, we elect to addr ess the issue.

In this case, the trial c

ourt denied probation based upon the circumstances of the offense and the appellant’s prior criminal history: He [appellant] was in uns upervised probation disp osition if I remember correctly before. He has admitted to smoking marijuana. This was a five-year old child. Here we have a person that looks to be about six foot, five, or somewhere aro und there that comes to this cour troom . . . fully acco untable for his co nduct. T his is not just one b low. . . two blows. . . [or] three blows. And I . . . feel li ke that even though the defendant comes here and says it wasn’t out of temp er, there appears to be that if it wasn’t out of temper, such poor judgment I am not sure we could trust you out here with other young individuals. This child has been not only bruised and abused, but it will follow that child through life. . . . I don’t think you are a pr oper subject for probation based on the type of crime committed here and t he past. I find that you are not suitable for

probation. .. . Had you not had all o

f these proble ms before, you come here the first time. Had this condition of this child reflected something other, y ou say you have may

be some lapse of memory. Well, it may become very convenient when it comes to this type of conduct. I just find that this kind of conduct is repr ehensible. It should be discouraged and not only that, but you have a past history in coming here - both as a juv enile and as an adult - and y ou admitted that you had been smoking marijuana. So for those reason s, the court denied you probation.
First, the appellant argues that the presumption of correctne ss does not apply to the trial court’s decision because it did not cons ider the appropriate factors for denying probation. Second , he contends that the trial c ourt erred by placing

the burden of probation on the appellant bec ause he was entitled to the presumption of an alternative sentence.
This court’s review of the length, range, or manner of service of a sentence is de novo with a presumption that the determination made by the tri al court is correct. Tenn. Code Ann. § 40-35-401(d) (1 997). See also State v. Bingham , 910 S.W.2d 448 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). This presumption is only applicable if the rec ord demonstrates that the trial court properly consi dered relevant sentencing pr

inciples. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).5

The record reflects that the tr ial court considered the r elevant principles of sentencing; accordingl

y, the presumption is afforded.
The appellant’s argument that “the trial court erred when it held that Hurst [appellant] had the burden of demo nstrating that probation was appropriate” is misplaced. It is settled l aw that whereas the Stat e has the burden of overcoming the defendant’s entitlement to the statut ory presumption of an alternat ive sentence, “[ c]onversely , the defendant has the burden of establishing suitability for full probatio n, even if the def endant i s entitle d to the st atutory p resumpt ion of al ternative sentencing.” Bingham , 910 S.W.2d at 455-456 (emphasis added) . When deciding suitability for probati on, although not controlli ng, the sentencing court should use the following criteri a: (1) “the nature and [circ umstances] of the criminal conduct involved,” Tenn. Code Ann. § 40-35-210(b)(4); (2) the defendant’s potential or lack of potential for rehabilitation, Tenn. Code Ann. § 40-35-103(5); (3) whether a sentence of full probation would unduly depreciate the seriousness of the offense, Tenn. Code Ann. § 40- 35-103(1)(B); and (4) whether a sentence ot her than full probation woul d provide an effective deterrent to others l ikely to commit simil ar crimes, Tenn. Code Ann. § 40-35-103(1)(B)

. See Bingham , 910 S.W.2d at 456. Denial of probation may be base d solely upon the circumstances of the offense when they are of such a nature as to outweigh all other factors favoring pr obation. State v. Fletcher , 805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991).
The facts and circumstances of this case are clearly aggravated. The record reveals a callous indifference by the appellant for the gravity of this criminal off ense in which the child experienced countless bruises to his entire body and even severe bruising to his genitalia. The appellant repeatedly stated that the abuse to the child was only the result of “play fighting too ro ugh” and “hit[tin g] too hard or som ething” indicating further a lack of repentance and remorse. See State v. Pierson , 678 S.W.2d 905 (Tenn. 1984) (finding lack of remorse s ufficient basis to deny probation). Moreover, the trial court noted and the record supports the appe llant’s lack of candor which reflec ts negatively upon the appellant’s potential for rehabilitation and is a suffici ent basis for denying total probation. See State v. Dowdy , 894 S.W.2d 301, 305-306 (Tenn. Crim. App. 1994); Tenn. C ode Ann. § 40- 35-103(5).6 Upon de novo

review and in accord with the presu mption o f correct ness, we are unable to conclude that the tr ial court erred in deter

mining that the appellant had not met his burden of establishing suitability for full pr

obation.
Accordingly, the j udgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

_________________________________________ GARY R. WADE , Judge

_________________________________________ DAVID H. W ELLES, Judge