### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 21, 200 5

STA TE OF TEN NES SEE v. MIC HAE L E. RA INES

Appeal f romthe Cr im inal Cou rt for Davidson Coun ty No. 2003-C- 2300 Steve D ozier , Judge

No. M2004- 01996-CCA -R3-C D - F iled Augu st 9, 2005

Th e de fe nd a nt, Mic ha e l E . Ra ine s, ple d g uil ty in t he Da vid so n Co un ty

Cr imi na l Co urt to a tte mpt to commit second deg ree murder, a Class B fe l o n y

. P u rs u ant t o the plea a g ree ment, the trial court

se ntenced th e defe nd a nt a s a Ra ng e I , s ta nd ardof

fe nd e r t o e ig ht y e ars wi th the tr ia l c ou rt to deter mine the manner

of ser vice of the sentenc e. After a sente ncing hearing, the trial court or dere d that th e de fe nd a nt s e rv e his se nte nc e in c on fi ne me nt. Th e de fe nd a nt app e a ls, c la imi ng that he sh ou ld have r ece ived alter native sente ncing . We affir m the judgme nt of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , J ., delivere d the o p i nion of the court, in which G AR Y R. W ADE , P.J., a nd J.C. M C L IN , J ., joined.

Jame s P. Mc Na mara , N a sh vil le , T e nn e sse e , f or the app e lla nt, Mic ha e l E . Ra ine s.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B e nja min A. B a ll, As sis ta nt A tto rn e y Ge ne ra l; Victor S. (Torry ) Johns on, I I I , District Attorney Gene ral; and Amy H. Eisenbec k, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th is c a se re la te s to the de fe nd a nt’ s a ssa ult ing Te rry

Ha mpt on a t a

ba r c a lle d th e Cr a sh Site L oung e. When the fig ht e nded, the victim was taken to Va nderbilt Hospital for e merg ency surg ery

conce rning wounds to his neck.

At the sentenc ing h ea ri n g, the state submitted the def endant’ s prese ntence report. Wendy J ohnson testified that she wa s at the Crash Site L oung e on the nig ht the fig ht occur red a nd that she witnessed what happene d betwee n the defendant and the victim. She said that an ea rlier a lterca tion betwee n the vict i m an d another man, Danie l Holmes, had just concluded a nd the two men had walked a way

from ea ch other

when the defe n d an t jumped up, broke a beer bottle, and jabbed the broken bottle into the victim’s ne ck. She said the defe ndant broke the bottle on a fire e x tinguisher-2-

and pushed he r out of the way to ge t to the vi ctim, who i mmediately started to sink to his knees af ter the def endant a ttacked him. She said she he lped him down to the g round and plac ed her fing ers ove r his jug ular vein. She explained she was a retire d emer g ency medical tec hnician. She said that Mr. Holmes retur ned and tha t he and the defendant started kicking the vi ctim in the head, the arms, and the side of his body

. She said that the t wo m en tried to pull the victim outside the lounge but that she lay on top of hi m and clamped t he si de of his neck to try to stop the bl eeding

. She said that the

wo un d w a s a s wid e a s a

be e r b ott le a ndthat hi s ju g ula r w a s v isi ble bu t th a t sh e wa s a ble to c la mp it with her fing ers. She sa id she drag g ed the victim’s body underne ath a table to pre vent him from being kicked a ny

further . She said that the defe ndant did not do any thing to assist the victim after the a tta c k a ndthat sh e ha d n ot s e e n th e de fe nd a nt, the vic tim , o r M r. Ho lme s b e fo re that ni g ht.

On cr oss-examination, Ms. Johns on testified that she did not know what started the fig ht and d id n o t h e ar a n y c o n v e r s a ti o n b e tw e e n th e d e f e n d a n t a n d th e v ic ti m. Sh e s a id she wa s an ar m’s leng th distance f

ro m the victim when the de fenda nt cut him with the beer bottle. The trial court asked Ms. Johnson i f she sa w the victim hit the defe ndant, and she replied no. She e x plained that both she and the vic tim we re fac ing awa y from the defe ndant and that they turned a round whe n they hear d the bee r bottle brea k.

Terry Hampton t estified that he did not rec all being stabbed in t he nec k with the beer bottle,

on ly so me on e te lli ng hi m to s ta y on the g ro un d. Hesa id h e ha d n e ve r m e t Ms . Joh ns on . H e sa id that he under went major sur g ery on his ne ck and that he we nt into a coma af terwa rd. He said that the doctors told him he lost seven pints of blood and that they had not expected him to survive. He said the injury

cause d various proble ms: a permane nt infection in his left ea r, a lack of

fee ling f rom his c hin a ndsh ou lde r t o his ba c k, a pa in in his he art re g ion du ri ng ph y sic a l exertio n, a nd a pa in i n his le g

. He sa id t h a th e w o rk e d w i t h c o n c r e t e a n d t h a ta s a r e s u l to f h i s i n j u r i e s , w o rk

b e c a me dif fi c ult . A s f

or ps y c ho log ic a l e ff

e c ts, he sa id he wa s me nta lly “ de str oy e d” in that he ha d d if fi c ult y sle e pin g a ndwa s c on sta ntl y pa ra no id. He sa id the e xpe ri e nc e ha d a ff e c te d h is re la tio ns hip s w ith his family and his g irlfriend be cause he wa s ang ry all of the time. He said he wa s underg oing

co u n s el i n g.

On cr oss-examination, he admitted that he wa s “pre tty well drunk” and had be en taking Valium and coc aine on the day of the incide nt. He ac knowledg ed th at h e had seen the de fenda nt may be four or five times during the past eig ht y ear s but that they had nev er s p o k en t o eac h other. He did not re call talking to the defendant while at t he lounge but did rec all talking to Mr. H olmes beca use they had “a thing g oing on” for a

few months before hand. He s ai d he did not hit the de fe nd a nt.

Mic ha el Upc hurc h te sti fi e d th a t he a ndthe de fe nd a nt h a d b e e n f ri e nd s f or app ro xima te ly twenty -five y ear s and that he ac companied the defe ndant to the Crash Site L oung e on the nig ht the incident occ urre d. He said he was sitt ing at the bar a nd fac ing the other dire ction when he hear d the fig ht erupt betwe en the victim and Mr. H olmes. He said that he t u rned around to see what wa s happening but that the fig ht had broke n up by the time he looked. Hesaid he turne d b ack around

a ndthe n h e arda

g la ss b re a k. He sa id h e turne d a ro un d a g a in a ndwe nt to the e ndof the ba r. He sa id-3-

the vic tim wa s o n th e fl oo r, ble e din g , a ndthe de fe nd a nt w a s le a vin g thr ou g h the ba c k doo r. He sa id the de fe nd a nt d ro ve a wa y in h is c ar a nddidno t r e turn. He sa id that he dr a nk te n to fi ft e e n a lc oh oli c drinks over the course of that day but that he reca lled the eve nts of that evening clea rly . He sa id that he visited the def

endant a t his ho u s e t h e nex t day and that the de fenda nt’s tooth was loose and

“ ha ng ing do wn low e r” tha n the too th be sid e it. He sa id tha t he ha d n e ve r kno wn the de fe nd a nt t o be a violent pe rson or a

bully and that he had never seen him participa te in a bar fig ht. He said that he and the defe ndant dra nk oft en b u t t h at t he def endant did not have a drinking problem or a ny psy chiatric problems as far as he knew. He said the defe ndant told him t hat the victim hit him i n the

mou th f or no re a so n. On c ro ss- e xami na tio n, he a dmi tte d tha t he did no t see the de fe nd a nt’ s mo uth
g et injured while he was a t the bar.

Re be c c a Ho lt, the ow ne r o f the Cr a sh Site L ou nge, test if ie d th a t sh e wa s w or

kin g a s a barte nder on the night of the fight and that she wit nessed the incident but did not see how it started. She said she wa s approa ching the men to tell them to stop fig hting when s he was hit by g lass shards and splash fr om the beer

bottle as th e d ef

en d an t b ro ke it on the victim’s head. She sa id she was fairly certain the bee r bottle was full based on the amount of bee r re lease d when it hit the victim’s head. She sa id that every one in the bar told the defe ndant to g o and that he le ft the sce ne in his car

. On cr oss-examination, she te stified she did not see the defe ndant stab the victim, only hit him on t he he a d w ith the be e r b ott le . Wh e n q ue sti on e d b y the tr ia l c ou rt , she a dmi tte d she did no t see the vic tim hit the de fe nd a nt.

The de fenda nt testified that he was a thirty -nine-y ear -old construction worke r. He sa id that he wa s diag nosed with bipolar disorder a fter be ing a dmitted to jail and that he was c urre ntly taking Thorazine, De pakote, a nd Prozac. He sa id he was taking his medic ations faithfully and fe lt a lot calmer since they

wer e pre scribed. He said that he had a drinking problem and tha t before he wa s

arr ested, he drank a

p p ro x i m at ely

one twelve -pac k of bee r, five day s a we ek. Reg arding the nig ht of the incide nt at the Crash Site L oung e, he said the victim a pproac hed him while he was sitting a t the ba r a nd wa nte d to fi g ht him

. He sa id tha t he e xpla ine d to the vic tim that he wa nte d n o tr ou ble bu t th a t th e vic tim

sa id h e didno t c are . H e sa id the vic tim de ma nd e d the de fe nd a nt g e t ou t of his chair and stated r ep ea t ed l y , “I ’m whipping y our ass.” He sa id that he continued to re fuse a nd ins ist e d h e wa nte d n o tr ou ble bu t th a t the vic tim wo uld no t tak e no fo r an a ns we r. He sa id tha t hi s friend, D aniel Holmes, fina lly approa ched the two men to see w hat was ha ppening and that Holmes and the victim started f

ighting . He sa id the fig ht lasted only three or four minutes and af ter it ende d, the vic tim pu nc he d th e de fe nd a nt in the mou th, kn oc kin g his too th loo se

. He sa id he hit the vic tim with a beer bottle a nd walked out the door . He sa id that he “f elt terrible” about what ha ppened at the ba r a nddidno t in te ndfo r a ny on e to g e t hu rt bu t th a t th e vic tim

ha d a tta c ke d h im.

Th e trial cou rt aske d th e de fe nd a nt h ow ma ny tim e s h e hit

the vic tim

a ndwh y the vic tim require d surg ery

on his ne ck if he hit the victim in the head as he claimed. The de fenda nt responded that he hit the victim only one time on the side of the fa ce an d t h at h e did not see the c ut on the victim’s neck. He denied jabbing anything into the vi ctim’s neck and was unable to explain why no one witnessed the victim’s hitti ng him in the mouth.-4-

On cr oss-examination, the defenda nt admitted having seven or eig ht beer s and two or thre e

a lc oh oli c dr ink s o n th e nig ht the fi g ht oc c ur re d. He a lso a dmi tte d us ing mari jua na app ro xima te ly

once a wee k since the a g e of f

ifteen, but he denied smoking any on the eve ning of

the fig ht

. He

conce ded that he ha d been on pr obation befor e and th at h e was charg ed for driving on a re voked license w hile on probation.

At the conclusion of the sentenc ing hearing, the trial court deter mined t h at s ev era l enhanc ement fa ctors applied in the de fenda nt’s case . I t f ound that the def

endant ha d a prior history of criminal convictions or criminal beha vior, noting tha t he had be en convic ted of numer ous misdemeanor of

fense s including se vera l DUI s, vandalism, simple posse ssion, disturbing the pea ce, and other crimes pr obably

rela ted to his admitted “many -many y ear alcohol problem.” See T.C.A. § 40-35-114( 2). The trial court a lso found that the per sonal injuries inflicted upon the victim wer e particula rly g reat, observing that the victim underwe nt eig hteen hour s of surg ery , spent two and oneh al f d ay s in the hospital, and, one y ear later, still suffer ed phy sical impairment as a result of the injuries inflicted upon him by the defe ndant. See T.C.A. § 40-35-114( 7). I t noted that the def endant

e mpl oy e d th e us e of

a de adl y weap on du ri ng the c omm iss ion of the of fe ns e a ndthat a

be e r b ott le used in the manne r utiliz ed by the def endant c ou l d have killed the vic tim. S ee T .C.A. § 40-35- 114(10). The trial court f ound that t h e d efendant stabbed the victim in the neck for no rea son,

acc rediting Ms. J ohnson’s testimony over the defe ndant’s cla iming other wise and note d that the victim would have died but for the quick ac tion of Ms. J ohnson and the surg ical ab i l i t i es of the do c tor s a t Va nd e rb ilt Ho sp ita l. Th e tr ia l c ou rt de te rm ine d that c on fi ne me nt w a s n e c e ssa ry to a vo id depre ciating the seriousne ss of the off ense a nd that this was further supported by consideration of the circ umstances a nd nature of t he offense, the defe ndant’s problems with drug s, and his extensive

us e of a lc oh ol.

On appe al, the defe ndant arg ues that alternative sentenc ing is wa rra nted in his case, r ather than conf inement. He c oncede s that he is not presumed to be a fa vorable candida te for a lternative
sentenc ing beca

use he was convicted of a Class B felony and admits that his criminal rec ord conta ins nine misdemeanor

convictions. Howe ver, he contends that he is stil l eligible f or proba tion under T.C.A. § 40-35-303( a) be cause his se ntence is e ight y ear s or less. He a lso contends that he is a g ood candida te for pr obation beca use he ha s no history

of violent beha vior or fe lony con v i ct i o n s

. The
state ar g ues that the trial c ourt proper ly denied a lternative se ntencing . We ag ree with the state.

Whe n a de fe nd a nt ap pe a ls the ma nn e r o f s e rv ic e of a se nte nc e imp os e d b y

the tr ia l c ou rt , th is
court c onducts a de novo revie w of the r ecor d with a pre sumption t hat the trial c ourt’s de te rm inati on s a

re c or re c t. T .C. A. § 4 0- 35 -4 01 (d ). Ho we ve r, the pr e su mpt ion of c or re c tne ss i s “conditioned upon the a ffirma tive s howing in the rec ord that the trial c ourt consider ed the se ntencing principles and a ll releva nt fac ts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). The bu rd en i s o n t h e appe aling party to show that the sentenc e is improper. T.C.A. § 40-35-401( d), Sentenc ing Commission Co mments. This means that if the trial cour t followed the statutory sentenc ing pr ocedur e, made finding s of fa ct t hat are ade quately supported in the re cord, a nd
g ave due consideration and proper weight to the factors and principles that are rele vant to sentenc ing-5-

under the 1989 Sentencing Act, we may not disturb the sentence even if a d i fferent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. When determining if incar cer ation is appropria te, a tria l court should consider w hether (1) confine ment is nece ssary to protect soci et y by

restra ining a

defe ndant who has a

long history

of

c ri min a l c on du c t, ( 2) c on fi ne me nt i s n e c e ssa ry to av oid de pr e c ia tin g the se ri ou sn e ss of the of fe ns e

or c on fi ne me nt is part ic ula rl y su ite d to pro vid e a n ef fe c tiv e de te rr e nc e to pe op le lik e ly to c omm it simil ar of fense s, or (3) measure s less restric tive than confine ment have f reque ntly or re cently

been

app lie d u ns uc c e ssf

ull y to the de fe nd a nt. T. C.A . § 40 -3 5- 10 3( 1) (A )- (C ). Th e tr ia l c ou rt ma y a lso consider a

defe ndant’s potential or la ck of pote ntial for re habilitation and t h e m itigating and enhanc ing f

actor s set forth in T.C.A. §§ 40-35-113 a nd -114. T.C.A. §§ 40-35-103( 5), -210( b)(5) ; State v. Boston, 938 S.W .2d 435, 438 (Tenn. Crim. App. 1996) . The sente nce imposed should be the least seve re me asure nece ssary to achie ve the pur pose for which the se ntence is imposed. T.C.A. § 40-35-103( 4).

I nitially , we note tha t any

evidenc e pre sented a t the g uiltyplea he aring should be consider ed in determining the appr opriate se ntence . See T.C

. A. § 4 0 -35-210(b)(1). H oweve r, the de fenda nt ha s f a ile d to inc lud e in the re c or d o n a pp e a l a tr a ns c ri pt o f the g uil ty pl ea hearin g re la tin g to h is conviction. I t is the dutyof the defenda nt to prepa re a fair, acc urate , and complete rec ord on appe al to enable me aning ful appe llate re view. T.R.A.P. 24. Ordinarily
, failure to include the tra nscript of the g uiltyplea he aring in the rec ord prohibits the court’ s conducting a full de novo r eview of the
sentenc e under

T.C.A. § 40-35-210( b). Howe ver, a full rec ord of the w itnesses and their te stimony was de veloped in the se ntencing hearing a nd suffice s for re view purpose s.

We note that t h e d efe ndant uses the phr ases “ alternative sentenc ing” and “pr obation” intercha ng ably , as if they

mean the same t hing. Howeve r, a trial court’s determination of whether a def endant is entitled to alterna tive sentenc ing require s a diffe rent inquiry than that when pr obation is considere d. State v. Bog g s, 932 S.W .2d 467, 477 (Tenn. Crim. App. 1996) . When a def endant is entitled to the statutory presumption in favor of alternative sentenc ing, the state has the bur den of

overc oming the pr esumption. See T.C.A. § 40-35-102( 6); Ashby , 823 S.W .2d at 169. On the other hand, a de fenda nt ha s the burden of establishing suitability

for total probation. See T.C.A. § 40-35- 303(b); State v. B ingha m, 910 S.W .2d 448, 455 (Tenn. Crim. App. 1995)

.

I n any event, be cause he was convicted of a B felony
, the def endant wa s not entitled to the presumption that he is a favora ble candidate for alternative sentenc ing. T.C.A. § 40-35-102( 6). The trial court found that consideration of the defe ndant’s criminal hist ory , along with the circ umstances

a ndna tur e of

the de fe nd a nt’ s o ff

e ns e a ndhis dr

ug a nd alc oh ol p ro ble ms, jus tif ie d h is s e rv ing his
sentenc e in conf

inement. The tria l court also found c onfinement wa s nece ssary to avoid depre ciating the seriousne ss of the off

ense. It noted that the def

endant’ s offe nse would have been one for mur der, i f n o tf o r t h e a c t i o n s o f

M s

. J o h n s o n a n d t h e s u r g i c a l s k i l l s o f t h e d o c t o r s i n v o l v e d i n h i s s u r g e r y. We ag ree

.-6-

We also believe the rec ord shows that mea sures less restric tive than confinement have not been suc cessf

ul w ith the defe ndant in the past. The defe ndant asserts tha t he has bee n on probation four times and c ontends this demonstrates that he r esponds well to supervision. We be lieve that four
sentenc es of pr obation also demonstrate the failure of l ess restrictive measure s to dissuade him from fu rthe r c ri min a l be ha vio r. We c on c lud e that the de fe nd a nt h a s f a ile d to de mon str a te his su ita bil ity for pr obation or that his sentenc e of c onfinement is improper.

Ba sed on the for eg oing a nd the re cord a s a whole, w e af firm the trial c ourt’s denia l of the defe ndant’s re quest for a lternative s en t en ci n g.

___________________________________ J OSEPH M. TI PTON, J UDGE