### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 3, 200 6



### STA TE OF TENNESS EE v. MY RNA J ILL J OHNS ON HALLE

Appeal f romthe Circ uit Court for Tip ton County No. 4828 Joseph H. Walk er, III, Judge

No. W2006-00195-C CA-M R3-CD - F iled Dece m ber 15, 2006

The De fenda nt, Myrna Jill J ohnson Halle, was convicted of rec kless ag g ravated assault and re ceive d an ef fect i v e s entenc e of twe lve y ear s in prison to be serve d at six ty perc ent. On appe al, the Def endant c ontends that: (1) the e vidence was insuffic ient to support her c onviction and established that the Def

endant a cted in self- defe nse; and (2) the trial court erre d when it sentenc ed her . Finding

no reve rsible er

ror, we aff

irm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J
., d el ivere d the opinion of the court, in which D AVI D G. H AYES , and T H O M A S T. W O O D A LL , J J ., joined.

J ulie K. Pillow and Periann Houg hton, (on appe al), Somerville, Te nnessee, and Richar d D. Cartwrig ht, (at trial), Coving ton, Tennesse e, for the Appellant, My

rna Jill J ohnson Halle.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Sop hia S. L ee, As sista nt A tto rn e y Ge ne ra l; Eliz abeth T. Rice , District Attorney Gene ral; James W alter Fr eela nd J r., Assistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION

I. F acts

This case arises f

rom the De fenda nt’s conviction for r eckle ss ag g ravat ed as s ault. The fo llo wi ng e vid e nc e wa s p re se nte d a t tria l:

Christin e L o we testified that, on J uly 4, 2003, she we nt to the Defe ndant’s house w here individuals had g ather ed to set off firew orks. She rec alled that the Def endant a nd the victim beg an to fig ht in the y ard, someone separ ated the vic tim and the Def endant, an d t he victim and the-2-

Def endant we nt inside the Defe ndant’s home. She hear d people fig hting inside the house and sa w a boy run into the Def

endant’ s home. L owe then sa w the victim run in t o the y ard w ith a rag over h i s h e a d
, s a yi n g , “ S h e s h o t m e

. ” S h e a l s o s a w t h e b o y e x i tt h e D e f e n d a n t ’ s h o u s e a n d h e ar d h i ms a y, “She’s c razy . She shot him.” Eventually the Def endant came outside and said “Don’ t le t him g et to a phone,” and then the Def endant left in he r truck. O n cross-e x amination, L owe testified that she saw the vic tim and the Def endant “tussling” with eac h other but could not rec all if the victim kicked the Def endant.

Evere tt Cl ay

Caudle testified that he and his brother J oey visited the Defenda nt’s house on the 4th of Jul y . He sa id that the Def endant a nd the victim dated ea ch other , and t h ey l i ved in the Def endant’ s house with the Def endant’ s mother. They

g ot into a fig ht, and the victim pushed the Def endant onto the gr ound. Then, the victim left the De fenda nt alone and w ent inside. Caudle hea rd the De fe nd a nt s a y

that s he wa s g oin g to g e t he r g un a ndsh oo t th e vic tim in the he a d, a ndCaud le stay ed outs ide. The D efe ndant went inside he r home. He hear d the victim and the De fenda nt arg uing, a nd then he he ard a boom. Then, the victim ca me running o ut of the house a nd said that the Def endant shot him. L ater , the Def endant exit ed her home and said that she shot the victim, and she nee ded to find him. Caudle hear d the Def endant make a telephone call to B oy d to find out if the victim was at Boy d’s house. The Def endant discovere d that the victim was at B oy d’s house, a nd she left and dr ove toward Boy d’s hous e. On cross-examination, Caudle acknowledg ed that his brother tried to pull the victim off of the De fenda nt when they wer e fig hting outside.

Boy d testified that, on the nig ht of the crime, the victim knocked on her door. She noticed that the victim looked scar ed and ha d a ra g on top of hi s head. The victim said, “She shot me. She shot me.” He asked B oy d to call 911, B oy d handed h i m h er phone, and he called 911. T he De fe nd a nt a

rrive d a t B oy d’ s ho me a nda sk e d th e vic tim to l e t he r t ake him

to a do c tor , b ut the vic tim ref used to leave with the Def endant. The Def

endant lef

t Boy d’s home. B oy d testified that law enfor ceme nt personnel a

rrived at Boy d’s home, and the victim left in an ambulanc e.

Dennis Va nce G ulley
, the vi ctim, testified t hat i n 2003 he lived with the De fenda nt and her
mothe r. He te sti fi e d th a t on July 4, 20 03 he arg ue d w ith the De fe nd a nt a ndg ot h it o n th e he a d w ith a plastic buc ket. He went inside the Def endant’ s home, and she followed him. He rec alled hea ring a pop noise, fee ling something warm r unning down the bac k of his neck, a nd then see ing blood. The De fe nd a nt w a s st a nd ing be hin d h im w he n th is o c c ur re d. Af te r the vic tim re a lize d he ha d b e e n s ho t, he ra n to Boy d’s house. The Def endant came to B oy d’s house, a pologized to him, and told him that the incident wa s an ac cident. An a mbulance pic ked him up from B o y d ’s home and took him to a hospital. He denie d threa tening , hitting, or kick i n g the Def endant a nd hitting or a ttacking the Def endant’ s mother. The victim testified that he wa s former ly eng ag ed to the De fenda nt and that he did not wan t h e r to g o to ja il

. O n c r o s s

- e xa mi n a ti o n , th e v ic ti m a c k n o w le d g e d th a t, w h e n the crime occur

red, he was taking Pax il f or depre ssion. He did not reca ll if he took his medication on the day of the c rime.

Kenne th Mc Nally
, a deputy sheriff with the Tipton CountySheriff’ s Offic e, desc ribed how he apprehe nded the Def

endant after responding to the call about t he shoot ing. H e testified that the-3-

Def endant did not appe ar to ha ve any injuries. He t estified that he w ent to the crime scene and

re tr ie ve d a

ha nd g un fr om the De fe nd a nt’ s r e sid e nc e . O n c ro ss- ex ami nation , O ff ic e r M c Na lly testified that he sa w a bullet hole in the c eiling at the crime sc ene.

B ill Daug he rt y , a

c ri min a l in ve sti g a tor

w i th th e Ti pto n Co un ty

She ri ff ’s Of

fi c e , te sti fi e d th a t, on the nig ht of the crime
, h e i n vestig ated the c rime sce ne and spoke with the Def endant. She
eventua lly confe ssed that she shot the victim but init ially told I nvestig ator Daug herty that her mother shot the victim. I nvestig ator Daug herty also spoke with the De fenda nt’s mother. He testified that neither the Def

endant nor

her mother

reported re ceiving any

injuries. He sa w a bullet hole in the ceiling but did not recove r a pr ojectile or slug

. I nvestig ator Daug herty went to the hospital and spoke wi th the vic tim . T he vic tim ha d tw o h ole s in the ba c k o f h is h e a d th a t w e re tw o to thr e e inc he s a pa rt

. On cr oss-examination, Daug herty testified that he did not attempt to retrie ve any fing erprints from the g un. He acknow ledg ed that the Def endant told him that she foug ht w ith the vi ct i m , an d t he victim had thrown her

to the g round on the nig ht of the crime.

Hazel Kelly , the Def

endant’ s mother, t estified that, on the ni g ht of t he crime, the De fenda nt

came inside and t urned on the s tere o, and then the vi ctim came into the hous e and y elled, “T urn that G- D, M- Fste re o o ff .” Th e n K e lly he arda lou d n ois e that sh oo k th e e nti re ho us e , a ndsh e we nt i nto t h e d i n i n g r o o m a n d s a w t h e v i c t i mk i c k i n g a n d c h o k i n g t h e D e f e n d a n t

. S h e h e ar d t h e v i c t i ms a y,

“ I ’m g oin g to kill y ou , b -t c h. ” Ke lly tr ie d to g e t th e vic tim

of f o f the Defen dan t, bu t th e vic tim knocked he r over

a couc h. The Def

endant g ot a way from the victim a nd went to he lp K elley

. The victim kept y elling that he was g oing to kill them. Kelly described the conf

usion that ensued. She tho ug ht tha t th e vic tim

wa s g oin g to s ho ot a

g un up tow ard the c e ili ng to s c are the De fe nd a nt. Ke lly said that she may

have bumpe d the victim’s arm c ausing it to move downwa rds. The vic tim said he had bee n shot and went out the door.

On cr oss-examination, Kelly acknow ledg ed that the Defe ndant weig hed two hundre d and thi rt y -f ive po un ds in 20 03 wh ic h wa s mor e tha n the vic tim we ig he d. She a c kn ow le dg e d th a t sh e did not tell law enfor ceme nt of fice rs that the victim knoc ked her over a couch or that she bumped the Def endant’ s arm. She said that she told officer s that the victim threatene d to kill t he De fenda nt but

a c kn ow le dg e d th a t th is a lle g a tio n w a s n ot i n a writt e n s ta te me nt s he ma de to the po lice . K e lly acknow ledg ed that af

ter the D efe ndant shot the victim she did not call the police to inf orm them that her daug hter ha d been attacked a nd had shot the victim in self defe nse.
Joey Caud le te sti fi e d th a t on the 4th of July he sa w the De fe nd a nt a ndthe vic tim fi g ht w ith

eac h other at the Def

endant’ s house. The victim pushe d the Def endant and threw her onto the g round. He said that the Def endant called for help, he hit the victim on the head with a hubc ap, and the victim then let the Def endant g o. The victim went ins ide t he home and the Def endant f ollowed him. He hear d them arg uing inside. Next, he hear d a g unshot and saw the vic tim come running out of the house. T he victim said that he ha d been shot a nd ran to B oy d’s house. He r eca lled that the De fe nd a nt t olde ve ry on e to g o aft er th e vi cti m andto k e e p h im f ro m us ing the ph on e . O n c ro ssexamination, he acknowle dg ed that he hit the vi ctim with a plasti c hubcap. He also testified that the Def endant a nd her mother

did not appear

to have a ny

injuries afte r the a ltercation.-4-

Th e D e f e n d a n t te s ti f

ie d th a t, o n th e n ig h t o f th e c r im e , s h e f o u g h t w ith th e victim, he kn oc ke d h e r o nto the g ro un d, a ndthe Caudle bo y s tr ied to he lp h e r. She sa id tha t th e vic tim is a strong man and that she is in terrible phy sical condition beca use she is over weig ht. The De fenda nt

rec alled that she w ent inside her home and told her mom that the victim was try ing to kill her. She said that the victim knocked he r and he r mother down. She a sked t he victim to stop hurting her a nd

we nt t o g e t he r g un . Sh e te sti fi e d th a t sh e int end ed to sho ot i t in the a ir in the ho pe that it

wo uld

scar e the victim so that he would leave her a nd her mother alone. She r eca lled a pre vious incident when the victim had not taken his medication and beca me vi olent and spastic. She testified that she had ca lled the pol ice to her home on acc ount of such behavior

. The Defenda nt acknowle dg ed that she is a drug addict and that she has bee n convicted of forg ing chec ks. On cr oss-examination, the De fe nd a nt d id n ot r e c a ll t e lli ng I nv e sti g a tor Daug he rt y , “ My

mothe r s ho t [th e vic tim ],” wh e n he fi rs t started que stioning her . She also denied sa y ing that she was g oing to shoot the Def endant a nd asking the Caudle boy s to ge t the victim before he conta cted authorities.

II. Ana lys is

A. Suf fi ciency of the Evidence

When an ac cused c halleng es the suff iciency of the e vidence , this Court’s standard of revie w is w hether
, afte r considering the evidenc e in the light most fa vorable to the State, any rational trier of fa c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a re a so na ble do ub t. Te nn . R. App. P. 13(e); State v. Goodw in, 143 S.W .3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W .3d 247, 276 (Tenn. 2002) ). This rule a pplies to findings of g uilt based u p o n d i re ct evidenc e, circ umstantial evid en ce , o r a c ombination of both direct and c ircumstantial evidenc e. State v. Penderg rass,13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

I n d e te rm ini ng the su ff

ic ie nc y of the e vid e nc e , th is Cou rt sh ou ld n ot r e -w e ig h o r r e -e va luate the e vid e nc e . St a te v. Ma tth e ws , 8 05 S.W. 2d77 6, 77 9 ( Te nn . Crim. Ap p. 19 90 ). No r m a y thi s Cou rt su bs titute its inf

e re nc e s f or tho se dr a wn by the tr ie r o f f a c t f ro m th e e vid e nc e . St a te v. B ug g s, 995 S.W .2d 102, 105 (Tenn. 1999) ; L iakas v. State, 286 S .W.2d 856, 859 (Tenn. 1956) . Questions

conce rning the cr edibilityof the wi t n es s es , the weig ht and value of the evidenc e, and a ll factua l iss ue s r a ise d b y

the e vid e nc e are re so lve d b y the tr ie r o f f

a c t. L iaka s, 28 6 S.W. 2d a t 85 9. “ A g uil ty

ve rd ic t by the jury , a

pp ro ve d by the tr ia l jud g e , a c c re dit s the te sti mon y of the wi tne sse s f or the Sta te and re solves all conflicts in favor of the theory

of the State.” State v. Gra ce, 493 S.W.2d 474, 476 (Tenn. 1973) . Our Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses fa ce to f

ace , hear their testimony

and observe their de meanor on the
sta nd . T hu s th e tr ial ju dg e a ndjury are the pr ima

ry ins trume nta lit y

of jus tic e to determine the weig ht a nd cre dibilit y to be g iven to the testimonyof witnesses. In the trial forum a lone is there huma n atmosphere and the totality of the evidenc e ca nnot be re produce d with a written re cord in this Court.-5-

Boli n v

. State, 405 S.W .2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523, 527 (Tenn. 1963) ). This Court must afford the State of Tenne ssee the strong est leg itimate view of the evidenc e contained in the rec ord, as we ll as all rea sonable infe renc es which ma y be dra wn from the evidenc e. Goodwin, 143 S.W .3d at 775 (citing State v. Smith, 24 S .W.3d 274, 279 (Tenn. 2000)). B e c a us e a ve rd ic t of

g uil t a g a ins t a

de fe nd a nt r e mov e s th e presu mp ti on of inn oc e nc e a ndra ise s a presumption of g uilt, the convicted criminal defe ndant bear s the burden of showing that the evidenc e was leg ally

insufficient to sus tain a guilty verdic t. I d.; see St ate v. Carruthers, 35 S.W.3d 516, 557- 58 (Tenn. 2000)

. A p e rs on c omm its re c kle ss a g g ra va te d a ssa ult wh e n he or sh e “ [r]e c kle ssl y c a us e s a n a ssa

ult as def ined in § 39-13-101 ( a)( 1), and: (A ) Cau ses serious bodily injury to another; or ( B) Uses or display s a dea dly

wea pon.” Te nn. Code Ann. § 3 9 -1 3 -1 0 2 (a) (2) ( 2003); see § 39- 13-101(a )(1) (2003) ( defining assault as “intentionally
, knowing ly or recklessly cause s bodilyinjury to another.” ). I n this contex t, the term “r eckle ss”:

ref ers to a person who acts rec klessly with r espec t to circ umstances surr ounding the

c on du c t or

the re su lt o f the c on du c t w he n th e pe rs on is a wa re of bu t c on sc iou sly disreg ards a

substantial and unjustifiable risk that the cir cumstanc es ex i st or the result will occur . The risk must be of suc h a natur e and de g ree t h at its disreg ard

c on sti tut e s a gr os s d e viatio n f ro m th e sta nd ardof

c are that a n o rd ina

ry pe rs on wo uld

e xer c ise un de r al l th e c ir c ums ta nc e s a s v ie we d f ro m th e a c c us e d p e rs on ’s sta nd po int

.
Tenn. Code Ann. § 39- 11-302(c ) (2003)

.

Tenne ssee’ s self-de fense statute, Tenne ssee Code Annotated se ction 39-11-611( a) ( 2003), pr ov ide s a s f

oll ow s:
(a) A per son is just ified in threatening or using forc e ag ainst another pe rson when and to the deg ree the per son rea sonably believes the forc e is immediately nece ssary to protect a g ainst the other’ s use or a ttempted use o f u n l aw fu l forc e. The person must h av e a re as o nable be lief that there is an imminent dang er of death or serious bo dil y inj ury . T he da ng e r c re a tin g the be lie f o f i mmi ne nt d e a th o r s e ri ou s b od ily injury must be rea l, or honestly believed to be rea l at the time, and must be founde d upon rea sonable g rounds. Ther e i s n o d uty to retre at bef

ore a person thre atens or uses forc e.

I n the ca se under

submissi on, the evidenc e wa s sufficient to convic t t h e Defendant of

rec kless ag g ra v at ed assault. The D efe ndant admitted to knowing ly retrie ving the revolve r and shooting the vic tim. Everett Clay Caudle testified that he hear d the Defenda nt say that she wa s g oing to shoot the vi ct i m

. The jury appea rs to have r ejec ted the notion that the Def endant a cted in selfde fe ns e a nd that the De fe nd a nt onl y me a nt to sc are the vic tim by sh oo tin g a t th e c e ili ng . We no te that this court will not re-we igh the evidenc e, ree valuate the evidenc e, or substitut e its evidentiary-6-

infere nces f

or those re ache d by the jury

. Acc ording ly
, the evidenc e pre sented a t trial was suff icient for a rational trier

of fa ct to conclude that the Def endant c ommitt ed re ckless ag g ravated assault, and the Def endant is not entitled to relief on this iss ue.

B. Se nt e nc ing

At sentenc ing, the Def

endant testified that she had a drug problem and move d to a ca lm and peac eful a

rea in Arkansa s in order to stay awa y from her old f riends and to obtain a

peac e of mind. S h e s a i d t h a t s h e h a s c e r v i c a l c a n c e r , a n d s h e h a s n o t m e t w i t h d o c t o r s w h i l e i n p ri so n. She a lso testified that she would take car e of her mother full-time if sentenc ed to communitycorr ections, and she is the only

person who c an consistently car e for her disabled mother. On cr oss-examination, the Def endant a ck n o wledg ed that she ha s a pending methamphetamine c harg e in Mississi ppi. The Def endant a rg ued that she should not be sentenced as a care er of fende r bec ause he r prior c onvictions mainly consisted of nonviolent off enses c oncerning forg ed checks. The Def endant a lso arg ued that she did not e x hibit a sustained intent to violate the law, and the victim did not s uffe r fr om a major inj ury . T he tr ia l c ou rt

he ld tha t:

The State filed notice that it would seek to ha ve the de fenda nt tried as a c are er offe nder. N otice wa s filed long befor e trial, ba ck in Marc h of 2004.

The Court has re viewed the prese ntence report, the judgme nts that have be en made Exhibit 1, and find[ s] t hat the def endant ha s for e nhance ment purposes seve n prior fe lony

convictions . . . .

Un de r T .C. A. 40 -3 5- 10 8 a ny on e c on vic te d of a c la ss D , h a vin g a t le a st s ix prior felony convictions of any classification, is to be consider ed as a car eer offe nder.

So the Court se ntence s the def endant a s a ca

ree r off ender to 12 y ear s for the conviction .

The de fenda nt is not eligible under T.C.A. 40-35-303 f

or probation.

The leng th of the sentenc e would not prevent the def endant f rom being qualified for

alternate sentenc ing unde r T.C.A. 40-36- 106. Howeve r, the statutory provisions require that the sentenc e - - convicting sentenc es be f or prope rty

rela ted, drug /alcohol re lated off

enses. People who are convicted of violent felony offe nses

a nd sp eci fi c a lly

of fe ns e s w he re a

we apo n w a s u se d a

re no t e lig ibl e fo r a lte rn a te sentenc ing.

Un de r the fa c ts o f this c a se , the jury he ardte sti mon y fr om m ult ipl e wi tne sse s, i n cl u d i n g t h e def

endant. The defe ndant testified that the victim was a cting in an ir ratio na l ma nn e r, a ndsh e g ot h e r g un . He r te sti mon y I be lie ve wa s sh e int e nd e d to shoot in the air to war d off the victim, but she ended up shooting him

. That’s not the-7-

same testimony

as the other witnesses and victim. But in any event, e ven under

her testimony , a g un was invol ved. So the jury made a fac tual determination, finding the defe ndant g uiltyof a le sser-inc luded offe nse of r eckle ss ag g ravated assault.

But still, under the fac ts of the case , since a wea pon was involved and injury dide ns ue , th e Co urt fi nd s sh e ’s no t a qu a lif ie d o ff e nd e r f or the Com mun ity Correc tions Act sentencing

.

I n addition to the judg ment sentenc ing the Def endant to twe lve y ear s in prison, the trial court i s s u ed an o rd er , s t at i n g:

The c ourt finds that due to the seriousness o f t h e offe nse, the de fenda nt’s

rec ord, and the fac t she continues to persist in criminal beha vior, the court finds that confine ment is nece ssary to avoid deprecia ting the seriousness of the offe nse, and f or de te rr e nc e , a ndthat pr ob a tio n h a s b e e n trie d w ith ou t su c c e ss i n th e pa st.

M e a s u r e s l e s s r e s t r i c t i v e t h a n c o n f i n e m e n th a v e b e e n ap p l i e d u n s u c c e s s f u l l y. def e n d a n t p o s s e s s e s a c r im in a l h is to r y e v in c in g a c le ar d is r e g ar d f o r th e laws and morals of socie ty , and evinc ing f ailure of past eff orts at re habilitation.

The c ourt finds that probation is not appropriate since the defe ndant re ceive d

a ca ree r sentenc e of 12 y ear s, it is t here fore ORDERED that the def endant’ s petition for pr obation is denied.

The De fenda nt appea ls contending that the trial court erre d when it did not cons i d er her elig ible for a

community

corr ections sentenc e base d on specia l needs. Spec ifically , the Def endant

c on te nd s th a t he r h e a lth pr ob le ms, he r mothe r’ s hea lth pr ob le ms, a ndhe r d ru g a dd ic tio n c on sti tut e “spec ial needs” that rende r her suitable for a

community

corr ections sentenc e. The state conte nds that the trial court properly sentenc ed the De fenda nt.

When a def

endant c halleng es the leng th or manner of service of a se ntence , it is t he duty of this Court t o conduct a

de novo re view of the rec ord with a pre sumption t hat “the de terminations made by th e c o u r t f

r o m w h ic h th e ap p e a l i s ta k e n a r e c o rr e c t. ” T e n n

. Co d e A n n

. § 4 0

- 3 5

- 401(d) (2003). This pre sumption is “‘c onditioned upon the affirmative showing in the record that the trial

c ou rt c on sid e re d the se nte nc ing pr inc ipl e s a nda ll r e le va nt f a c ts a ndc ir c ums ta nc e s. ’” Sta te v. Ros s, 49 S.W .3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W .2d 540, 543 (Tenn. 1999). The p re s u mption does not a

pply to the leg al conclusions rea ched by the trial court in se ntencing a defe ndant or to the de terminations made by the trial court which are predic ated upon unc ontroverte d fac ts. St ate v. De an, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler , 900 S.W .2d 305, 3 1 1 ( T e n n

. C r i m

. A p p

. 1 9 9 4 ) ; S t a t e v

. S m i t h 8 9 1 S

. W

. 2 d 9 2 2
, 9 2 9 ( T e n n

. C r i m

. A p p

. 1 9 9 4 )

. In conducting a de novo r eview of a sente nce, w e mus t consider: (a) any evidenc e re ceive d at the trial

a n d/o r s e n te n c in g h e ar in g ; ( b ) th e p r e s e n te n c e r e p o r t; ( c ) th e p r in c ip le s o f s e n te n c ing; ( d) the arg uments of co u nsel relative to sentencing alternatives; (e) the nature and cha rac teristics of the-8-

offe nse; (f) any

mitigating or statutory

enhanc ement fa ctors; (g ) any statements made by

the defe n d an t o n h is or her ow n behalf ; and (h) the defe ndant’s potential or la ck of pote ntial for reha bilitation or treatment. Tenn. Code A nn. § 40-35-210 ( 2003); State v. Tay lor, 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001) . The pa rty challeng ing a

sentenc e im posed by the t rial court has the burden of establishing that the sentenc e is e rrone ous. Tenn. Code Ann. § 40- 35-401(d) , Sentencing Com m’ n Cm ts.

I n the ca se under

submissi on , we conclude that there is ample evidenc e that the tria l court considere d the s entenc ing principles and a ll releva nt fac ts and circ umstances. The ref ore, w e re view its decision de novo with a pre sumption of corre ctness

. Ac co rd i n gl y , so long a s the trial court complied with the purposes a nd proce dures of the 1989 Sentencing Act and i t s fi n d i ng s are supported by

the fa ctual re co rd, this Court may not disturb this sentenc e eve n if we w ould have pref err ed a dif

fer ent re sult. S ee T enn. Code Ann. § 40- 35-210, Sentenc ing Comm’n Cmts; S tate v. Fletc her, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The trial c ourt conc luded that “due to the s eriousness of the offense, the defendant’s rec ord,

a ndthe fa c t sh e c on tin ue s to pe rs ist in c ri min al beh a vio r, the c ou rt fi nd s th a t c on fi ne me nt i s

nece ssary to a void de prec iating the seriousness of the offe nse, and for de terre nce.” Ba sed upon our revie w, we c onclude that the trial court did not err by ordering the Def

endant to ser ve her entire

se nte nc e in pr iso n. Th e De fe nd a nt a sse rt s that the tr ia l c ou rt e rr e d “ in no t c on sid e ri ng he r e lig ibl e for c ommunitycorr ections base d on specia l needs .

. .” She appea rs t o arg ue entitl ement under the “spec ial needs” provision of the community corr ections s t at u t e. See Te nn. Code Ann. § 40-36- 106(c) (2003). How ever , in order to be elig ible u n d er this section, the Def endant must also be elig ible for pr obation. State v. Staten, 787 S.W .2d 934, 936 (Tenn. Crim. App. 1989). B eca use the Def endant r ece ived a twe lve-y ear sentenc e, she is not elig ible for probation. Tenn. Code Ann. § 40- 35-303(a ) (2003) . She is theref o re n o t eli g ible for c ommunitycorr ections under section (c ). The Def endant is not entitled to relief on this iss ue.

III. Conclusi on

I n acc ordanc e with the fore g oing rea soning and authorities, we aff irm the judgme nt of the
tr ia l c ou rt

.

________________________________ ROBERT W. WEDEMEYER, J UDGE