IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

 Assigned on Briefs at Knoxville August 24, 2010

STATE OF TENNESSEE v. JAMES RAY BULLARD

Appeal from the Criminal Court for Davidson County

No. 2009-C-2242 Steve R. Dozier, Judge

No. M2009-02134-CCA-R3-CD - Filed March 4, 2011

The Defendant, James Ray Bullard, pled guilty to evading arrest, a Class E felony, and four

counts of theft of $500 or less, a Class A misdemeanor. See T.C.A. §§ 39-16-603, 39-14-

103, 39-14-105(1) (2010). He was sentenced as a Range II, multiple offender to three years,

six months’ incarceration for the evading arrest conviction and to eleven months, twenty-nine

days’ incarceration for each of the theft convictions, with all sentences to be served

consecutively. On appeal, the Defendant contends that the trial court erred by imposing a

sentence of confinement. We affirm the judgments of the trial court.

Tenn. R. App. 3 as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON, P.J., delivered the opinion of the Court, in which THOMAS T. WOODALL

and ALAN E. GLENN, JJ., joined.

Jeffrey A. DeVasher, Nashville, Tennessee (on appeal), and Chase T. Smith, Nashville,

Tennessee (at trial), for the appellant, James Ray Bullard.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Victor S. (Torry) Johnson III, District Attorney General; and Jennifer McMillen,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant’s guilty pleas and sentences were pursuant to a plea agreement with

the manner of service of the sentences to be decided by the trial court. The State’s recitation

of facts at the guilty plea hearing reflected that the victim, Ronald Hollingsworth,

experienced a rash of thefts from his Mr. Air tire inflation machines beginning in late

October of 2008. The Defendant had broken into the machines in 2006, and the police

immediately suspected him of the 2008 offenses.
The victim contacted a private investigator, Major George Currey, who installed video

cameras in eight air machines owned by the victim. Six of the cameras caught the Defendant

breaking into the air machines. The victim had stopped filing police reports because so many

of the machines had been vandalized and ruined. Over $50,000 of damage was done to the

machines. The victim lost his largest account with Daily Shell Service Stations because

many of his machines were out of order. After the Defendant’s arrest, only one theft of an

air machine occurred in Clarksville.

The Defendant incurred the evading arrest charge when Officer Joshua C. Baker was

fueling his police cruiser at a gas station on February 19, 2009, and he noticed that the

Defendant was tampering with one of the air machines. The officer asked the Defendant

what he was doing, and the Defendant sped off in his vehicle. The officer tried to chase him,

but the Defendant was too far ahead for the officer to catch him. The Defendant agreed that

it was satisfactory for the State to give the factual bases for his guilty pleas.

At the sentencing hearing, Major George H. Currey testified that he owned a private

investigation and security company and that he had been a private investigator for about

twenty-five years. He said the victim contacted him in late 2008 to investigate a series of

thefts from the victim’s coin-operated air machines. He said that he investigated similar

thefts for David Smith in 2004 and that the Defendant was found guilty of those thefts. He

said that the Defendant was caught on tape breaking into one of Mr. Smith’s air machines

and that one of Mr. Smith’s employees caught the Defendant breaking into another machine.

He said the Defendant threatened Mr. Smith’s employee with a tire tool.

Major Currey testified that when the victim contacted him in 2008, the victim had

filed numerous police reports and believed the Defendant was responsible for the thefts. He

said the victim’s company experienced about thirty-five break-ins to machines in the Middle

Tennessee area within six weeks. He said that in each case, the thief either pried open the

machine’s door with a tire tool or knocked a hole in the front door and unlocked the machine

with pliers or a vice grip. He agreed the lower right fronts of many of the machines were

“ripped back or torn back.”

Major Currey testified that he conducted limited surveillance of the Defendant but that

surveillance was difficult due to the Defendant’s erratic movements. He identified a

photograph of the Defendant’s house and a white Ford truck with a camper parked in the

driveway. He said that the police took the photograph before he began working on the case

and that by the time he conducted surveillance, the truck had been wrecked. He said that he

never saw the Defendant drive the Ford truck but that he saw the Defendant drive a blue Jeep

wagon and later a Plymouth van.

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On cross-examination, Major Currey testified that the victim hired him in December

of 2008. He said he researched the victim’s work reports on the damaged machines and the

Defendant’s Tennessee Bureau of Investigation (TBI) report dating back to 1985. He

identified a photograph taken of an air machine on Robertson Road and agreed that the

machine did not have a hole cut in the bottom of the door. He said that he looked at a

machine on Robertson Road that was broken into but that he did not know if the photograph

showed the same one. He identified a photograph of an air machine at Elm Hill Pike and

agreed that it had not been cut open. He said he did not know if it was the same machine as

the one in which he placed a camera at that location. He said that the photograph showed one

of the victim’s newer machines and that he could tell that the machine had not been broken

into previously.

Major Currey testified that he set up cameras on eight air machines and that the

cameras showed only the Defendant breaking into the machines. He said that the cameras

showed what was happening from the inside and that they showed the Defendant working

on the machines “rather feverishly.” He agreed that the cameras did not show the Defendant

prying open the bottom of the machines and acknowledged that it was possible someone else

had done that. He said he concluded hisinvestigation when the police arrested the Defendant

on February 20, 2009. He said he knew of no additional break-ins to the air machines since

the Defendant’s arrest.

Major Currey testified that he reviewed work orders by Bill Williams on the air

machines. He said that whenever a break-in occurred during the investigation, Mr. Williams

contacted him and filed a police report. He said Mr. Williams guided him regarding camera

placement based on the amount of theft in particular areas. He said the Defendant broke into

a machine located at Rivergate Parkway twice. He identified a work order report about a

machine at Rivergate and read a note saying, “Large hole in bottom of the door, rod

exposed.” He agreed that the date on the report was April 4, 2009, and that the report said

the door was fixed. He agreed it was possible that the door was compromised on the

machine listed in the report.

Major Currey testified that the Defendant had been charged in Williamson and

Rutherford Counties in addition to Davidson County. He said he defined the Middle

Tennessee area as including Williamson, Wilson, and Rutherford Counties. He said that he

did not have police reports on break-ins in Montgomery County but that the victim told him

break-ins occurred there as well.

The victim testified that he was the owner of Hollingsworth Collections and of the air

machines that were the subject of the Defendant’s charges. He said that the thefts occurred

sporadically for six to seven years and that this was the third time the Defendant broke into

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the machines. He said that his total financial loss, including money stolen, repair costs, time

invested, and investigative costs equaled $35,000 to $50,000. He denied knowing of

machines that were broken into by someone other than the Defendant. He agreed that his

employees would know whether they filed police reports on some machines without knowing

who broke into them. He said that he received no restitution from the Defendant for the

previous thefts and that the Defendant was not ordered to pay him.

On cross-examination, the victim testified that his company was based in Robertson

County. He said that he had no direct knowledge of the damage done to individual machines

but that his employees would know. He said the cost of hiring Major Currey and installing

cameras in the machines was between $16,000 and $18,000. He said that he owned about

250 air machines and that they were not insured. He said he had not prosecuted anyone other

than the Defendant for thefts from the machines.

On redirect examination, the victim testified that a number of his air machines had

been located at Daily Stores and that his company lost that contract. He said that he was not

sure if the contract loss was directly related to the thefts but that the time frame indicated it

was.

Scotty Yates testified that he worked for Judge Casey Moreland and helped with the

Drug Court program. He said the Defendant participated in the program about three years

earlier. He said that a participant typically stayed in the program from twelve to eighteen

months and that the program was divided into three phases. He said that the first phase was

intensive and lasted about six months and that the second and third phases each lasted three

to four months. He said that during the intensive phase, participants were required to live in

a halfway house or submit to electronic monitoring, attend treatment four days a week, and

check in with Judge Moreland weekly. He said that during the intensive phase of the

Defendant’s program, he was screened for drugs every day. He said that when participants

were in phase two of the program, they faced the same requirements except that they went

to treatment twice a week and checked in with Judge Moreland every other week. He said

that during the last phase, participants moved into their own housing without electronic

monitoring and attended treatment once a week. He said participants were still randomly

screened for drugs during the last phase.

On cross-examination, Mr. Yatestestified that the Defendant graduated from the Drug

Court program. He said that the Defendant was electronically monitored some of the time

and lived at halfway houses at other times. He said the program did not have Global

Positioning System (GPS) devices when the Defendant was in the program. He said that the

Defendant was placed in the program after Judge Moreland sentenced him to thirty days’

incarceration for prior thefts and that the Defendant asked to be placed in the program

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instead. He said he thought that the Defendant was falsely accused of breaking into some

machines.

Mr. Yates testified that after Drug Court program participants graduated, they entered

a transitional program called Back to Basics. He said that he occasionally contacted people

in the Back to Basics program but that it was difficult to keep track of all the graduates. He

said he remembered the Defendant because it was unusual for someone to choose such an

intensive program over thirty days in jail and because the Defendant seemed humble and

sincere about rehabilitating himself. He said the Defendant did not use drugs, except for one

relapse, and graduated from the program. He agreed the Defendant’s arrest placed him

among the program’s recidivism statistics.

The Defendant’s wife, Stephene Bullard, testified that her relationship with the

Defendant began eighteen years earlier, that they separated for four years, and that they

reconciled in 2006. She admitted that she had problems with drugs in the past but said that

she had not used drugs since 2006. She said her worst problems with drugs took place during

the four years that she and the Defendant were not together. She admitted that she had a

lengthy criminal record but said that the last time she faced a criminal charge was with the

Defendant in Judge Moreland’s court in 2006. She said that after her release from jail in

2006, she went to a halfway house and then into an outpatient program. She said that she

graduated from the outpatient program and that she moved into the home she and the

Defendant shared.

Ms. Bullard testified that since 2006, the Defendant’s only arrest was for driving on

a suspended license. She said that the Defendant worked but that he was not always able to

make a living due to conflicts on the job and one employer who wrote bad checks. She said

she had been collecting disability payments since 2007 for post-traumatic stress disorder and

bipolar disorder. She said she and the Defendant had three biological children together and

six children between them. She said that the Defendant was a great father and that their sons

played football with him and talked to him about issues they did not feel comfortable

discussing with her. She said that the Defendant had been the authority figure in the house

and that since the Defendant’s arrest, their sons did not listen to her. She said the

Defendant’s absence was hard on her and the children. She said two of the children, aged

fourteen and sixteen, were in the courtroom for the hearing.

Ms. Bullard testified that she and the Defendant rented their home for $600 a month

from the Defendant’s aunt and uncle. She said her disability payments of $674 a month were

their sole source of income. She said that their other bills included water, sewer, and trash

and that although the utilities were in the homeowners’ names, she and the Defendant were

responsible for paying them. She said she gave $300 a month to the Defendant’s aunt and

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uncle for the electric bill. She said that before the Defendant’s arrest, he was working for

his brother-in-law, Wayne Mitchell, and that they were able to buy a 1996 Plymouth

Voyager. She said that she paid for the Voyager but that without the Defendant there to keep

it in good repair, she had to sell it. She said that Mr. Mitchell owned a tire shop and a couple

of houses and that the Defendant was going to work on the houses. She said that Mr.

Mitchell gave her a letter stating he would hire the Defendant again but that Mr. Mitchell was

unable to appear in court for the hearing because of a restraining order in another case.

On cross-examination, Ms. Bullard testified that she had helped the Defendant steal

money from coin machines in the past by driving him from one location to another. She

acknowledged that their drug use affected their children. She admitted that when the

Defendant was arrested in 1999, two of the children, who were one and three years old at the

time, were with him. She said she did not think the Defendant was under the influence of

drugs when he drove with the children in the car. She said that one of her sons was facing

a charge in juvenile court and that she caught him under the influence of drugs. She said that

she spoke to the children about not using drugs but that without the Defendant there, she had

little authority. She said two of her children needed surgery.

Ms. Bullard testified that she collected disability payments because she had good and

bad days with her disorders and that the Defendant supported her through the bad days when

he was there. She said that she drank only once or twice a year but admitted that she was

upset and drank after the Defendant’s last court date. She said that she raised rabbits and that

she earned an extra twenty or thirty dollars at a time selling them. She acknowledged that

she spent $600 making phone calls to the Defendant since his arrest but said that Mr.

Mitchell and others gave her the money for that purpose. She admitted the Defendant had

access to a Jeep Cherokee, a white Plymouth van, and a white truck before his arrest, but she

said she did not have access to all those vehicles. She admitted that the Defendant had an

affair and that the other woman helped him get the vehicles.

Willis Dale Armstrong testified that he became friends with the Defendant when they

were in Judge Moreland’s Drug Court program. He said that he was a recovering drug addict

and that he had not used drugs or alcohol for ten years. He said that he was not using drugs

or alcohol when he entered the Drug Court program, that his ex-wife convinced Judge

Moreland he needed treatment, and that he benefitted from the program. He said that he was

in a halfway house for two years and that he managed the house after being there six months.

He said Judge Moreland assigned the Defendant to the house with him. He said that the

Defendant worked harder than anyone else in the house and that he and the Defendant

worked together daily. He said that the Defendant relapsed a couple of times and that he

helped the Defendant stop using drugs again.

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Mr. Armstrong testified that he still occasionally attended meetings, talked to his

sponsor, and stayed in touch with about forty friends who were in recovery. He said that he

helped about one hundred people in recovery but that he had turned his attention to taking

care of himself and his family. He said that he had sponsored the Defendant in the past and

that he would be willing to sponsor him again and help him in any way he could. On crossexamination, Mr. Armstrong agreed that he had testified at court hearings for several

individuals, including his son’s hearing on a murder charge.

The Defendant testified that he became addicted to crack cocaine when he was

twenty-seven years old, that he caused his wife to become addicted to cocaine, that he tried

repeatedly to quit using cocaine, that he finished a couple of jail substance abuse programs,

and that he was never able to stop using drugs. He agreed that he had a lengthy criminal

history and said that it was all related to drugs. He said this arrest was the first time he had

been clear-headed enough to look at his record and realize what he had done. He said that

in the past, he accepted plea bargains on charges only because he was desperate to get out

of jail and use drugs.

The Defendant testified thatsince his arrest on these charges, he had been incarcerated

for seven months. He said that after his graduation from the Drug Court program, he

relapsed when his business started to fail in January 2009. He said that he missed recovery

meetings and that he was working eighteen-hour days in the neighborhoods where he knew

people who used drugs.

The Defendant identified a photograph and testified that it showed an air machine

located at Elm Hill Pike. He said he broke into the machine by loosening the bolts on the

door with pliers. He said that once he opened the door, he could see that the drawer was

locked. He said that he did not have a tool capable of cutting a lock and that he closed the

machine and drove away.

The Defendant identified two photographs and testified that they showed an air

machine located on Rivergate Parkway. He denied cutting a hole in the bottom right corner

of the machine. He said that to get into the machine, he unscrewed the threaded lock

housing, which caused a rod to fall out and allowed the door to open. He agreed that he

returned to this machine more than once but denied opening any other machine more than

once.

The Defendant identified a photograph and testified that it showed the location of an

air machine from which he had stolen money but that the machine in the photograph was a

replacement. He said the machine from which he stole had a hole in the bottom corner and

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a missing lock housing. He said that he unscrewed the rod with pliers and that the door

opened.

The Defendant identified a photograph of an air machine at Daily’s on Charlotte Pike.

He said that the machine in the photograph was a replacement and that it had been opened

before. He said that he saw the employee’s statement on the police report for that theft and

that she said he backed into the parking lot, got out of his van, opened the machine, and then

drove away when she came outside.

The Defendant identified a photograph and testified that it showed an air machine

located on Lebanon Road and that the machine had duct tape on it. He said that the duct tape

was on the machine when he arrived, and he denied cutting the hole in the machine. He said

the metal rod was taped in place. He said he removed ten to fifteen dollars from the Lebanon

Road machine. He said he typically removed between thirty and fifty dollars from each

machine.

The Defendant identified a photograph and testified that it showed an air machine

located on Robertson Road. He said he opened the machine by unscrewing the lock housing

in order for the rod to fall out. He said that he learned to break into machines from other

addicts and that when he was using drugs heavily, he drove some of those people around.

He said that his usual method was to break into machines that others had already entered but

that he had broken locks off some machines.

The Defendant testified that while incarcerated, he learned that he should have

continued attending recovery meetings and should have asked for help when his financial

problems grew worse. He said that after he graduated from Drug Court and before this

arrest, he had been arrested twice for offenses related to his driver’s license. He said that the

first time, he forgot to pay a speeding ticket. He said that the second arrest happened when

he fell asleep at the wheel and wrecked his truck while his children were riding in the back.

He said he was arrested for driving without a license and having children in the back of a

truck. He said the last charge was dropped because the children were over twelve years old.

He said he paid his ticket and regained his driver’s license. He said his license was

suspended again for not paying child support. He said the hold on his license was released

after he was able to show that he had paid child support.

The Defendant testified that if released on a restrictive program, he would continue

his recovery and find friends like Mr. Armstrong. He said the Drug Court program worked

for three years and then did not work. He said he “made a very bad decision.”

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On cross-examination, the Defendant denied that he told a friend over the telephone

that he was going to call many people as witnesses in order to “smokescreen” the judge. The

prosecutor played a tape of a telephone conversation. The Defendant said that on the tape,

he was repeating something someone told him. The tape is not included in the appellate

record.

When asked about drug relapses, the Defendant testified, “For ten years–there was no

relapsing the ten years. I never quit.” He said he had written things saying he was sorry to

“the people” and sorry to his family. He admitted he opened two or three air machines that

he was not caught opening. When asked about his responsibility for the crimes charged in

his indictment, the Defendant said he was not responsible for the crime of felony vandalism

because he did not destroy the machines.

The prosecutor read the Defendant’s statement regarding the evading arrest charge

from his presentence report:

One morning I was leaving an Exxon and a police officer told

me to stop. I did. But when he asked for my license, I knew

that they had been suspended . . . and he was far away, so I

drove off.

The Defendant admitted that his description omitted that he was at the location to tamper

with a machine. He said that he was checking the machine to see if it was unlocked and that

he often drove past locked machines to find ones that were unlocked.

The Defendant testified that he was seeking release on a community corrections

program. He said he did not want his family to suffer any more for his mistakes. He

admitted that when he relapsed, he had an affair. He said that he was sorry and that he never

intended to hurt anyone. The Defendant explained that a previous aggravated assault

conviction was part of a plea bargain to let his wife go home and that he had not hurt anyone

and had only run away.

The trial court denied the Defendant’s request for split confinement. The courtstated:

He does have . . . a previous history of criminal convictions.

Those have been introduced. They are set out in the presentence

report. The presentence report, as I count it, has twenty-two

misdemeanor convictions, non-traffic related misdemeanor

convictions, four felony convictions and five probation

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violations in the past. The aggravated assault conviction is one

of those felonies . . . which is, obviously, a violent offense.

. . .

So we get down to sentencing considerations. One of

those is whether confinement is necessary to protect society by

restraining a defendant who has a long history of criminal

conduct. Nobody can argue that. That’s a given. That would

apply to Mr. Bullard.

Another is confinement being necessary to avoid

depreciating the seriousness of the offense and whether it is

particularly suited to provide an effective deterrence. That

would apply, not necessarily to others. I don’t know that there’s

anybody sitting out here in the Courtroom that now knows how

to break into air machines would go do that if I don’t impose a

sentence. But it’s more, in the Court’s opinion, to deter Mr.

Bullard, because in the past, according to these documents here

in the presentence report, he’s served weekends in jail, he’s

served sentences in jail and gotten work release, he’s had

intensive probation, he’s been through misdemeanor Drug

Court, he’s gone to the Day [R]eporting Center, which is a

group that tries to help people with job and addiction issues.

And it just hasn’t worked.

One of those other sentencing considerations is the

potential or lack of potential for rehabilitation or treatment. So

I give him Community Corrections and he makes it ninety days,

six months. But his past indicates he’ll be back. And I don’t

know how in the world I would fashion any kind of explanation

to somebody else if, while on CommunityCorrections, he breaks

into more machines. That would be my fault. And that’s one of

the legal issues that I have to be concerned with, protecting not

only Mr. Hollingsworth, but other people that have been

victimized by Mr. Bullard in the past and potentially in the

future. He would say, and has said, I’ll never do it again. Well,

he’s said that before. He has–one of those enhancing factors

deals with previous history or unwillingness to comply with

release conditions. That goes into the sentencing considerations

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about potential for rehabilitation. I mean, he’s had a lot of

attempted help through various courts. It just hasn’t worked.

So I do think confinement is necessary to protect society

from Mr. Bullard, who has a really, really long history of

criminal conduct and criminal convictions.

. . .

The other thing in terms of his family choices, Mr.

Bullard’s choices, is that–and I try to understand and deal with

drug addiction issues and that’s–Courts have already done that

for Mr. Bullard in trying to get a handle on his drug

addiction–but he’s out taking his money. When he gets his

money, illegally, he goes and buys drugs. He doesn’t take it

home to pay his bills.

The Defendant contends on appeal that the trial court erred by imposing sentences of

continuous confinement because it should have placed him on probation following a period

of confinement or sentenced him under the Community Corrections Act of 1985. See T.C.A.

§ 40-36-101 to -306 (2010). The State responds that the Defendant did not meet his burden

of showing suitability for probation and a special need that would be better served in

community corrections. We agree with the State.

Appellate review of sentencing is de novo on the record with a presumption that the

trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the

Sentencing Commission Comments to these sections note, the burden is now on the

appealing party to show that the sentencing is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors and

principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).

When determining if confinement is appropriate, the trial court should consider

whether (1) confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct, (2) confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited to provide an effective

deterrence to people likely to commit similar offenses, or (3) measures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the defendant.

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T.C.A. § 40-35-103(1)(A)-(C) (2010). The trial court may also consider a defendant’s

potential or lack of potential for rehabilitation and the mitigating and enhancement factors

set forth in Tennessee Code Annotated sections 40-35-113 (2010) and -114 (2010). T.C.A.

§§ 40-35-103(5), -210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

The sentence imposed should be the least severe measure necessary to achieve the purpose

for which the sentence is imposed. T.C.A. § 40-35-103(4).

The Defendant is eligible for probation because his sentences are under ten years and

because his offenses are not among those excluded from consideration for probation. See

T.C.A. § 40-35-303(a) (Supp. 2009) (amended 2010). However, because he was sentenced

as a multiple offender for the felony evading arrest conviction, the Defendant is not

considered a favorable candidate for alternative sentencing. See T.C.A. § 40-35-102(6)

(stating that an eligible defendant who is “an especially mitigated or standard offender

convicted of a Class C, D or E felony should be considered as a favorable candidate for

alternative sentencing options in the absence of evidence to the contrary”); see also State v.

Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

The Defendant concedes that the trial court correctly found a history of criminal

conduct, but he argues that the other criteria for incarceration do not support continuous

confinement because the State presented no evidence of the need for deterrence and because

he had not failed any rehabilitative measures. The State argues that the trial court did not rely

on the need for deterrence in denying probation and that the Defendant’s multiple probation

violations showed that measures less restrictive than confinement had been applied

unsuccessfully. We agree with the State.

At the sentencing hearing, the trial court found that confinement was necessary to

deter the Defendant from continuing to break into and steal money from air machines. The

court explicitly stated that it was not ruling on the necessity of confinement to deter others

from committing similar crimes. When other criteria support a denial of alternative

sentencing, the trial court need not address the need for deterrence. See State v. Trotter, 201

S.W.3d 651, 656 (Tenn. 2006). In considering the need to keep the Defendant from

offending again, the trial court referred to the Defendant’s twenty-two non-traffic

misdemeanor violations, four felony convictions, and five probation violations to find that

the Defendant’s criminal history indicated that if he were released, he would break into

vending machines and victimize their owners again. The Defendant cites his graduation from

the Drug Court program in February 2008 as proof that a measure less restrictive than

confinement was recently applied to him successfully. The trial court noted the Defendant’s

participation in the Drug Court program and in other rehabilitative programs, but the court

found that none of these measures had kept the Defendant from offending again. We

conclude that the trial court properly considered the Defendant’s criminal history and

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performance under measures less restrictive than confinement. See T.C.A. § 40-35-

103(1)(A)-(C).

The Defendant argues that because of the relationship between his drug abuse and

criminal activity, the trial court should have found the special needs category of the

Community Corrections Act applicable to his sentence. The State argues that the Defendant

did not carry his burden of showing a special need that would be better served in the

community. We agree with the State.

Under the Tennessee Community Corrections Act, trial courts may sentence certain

non-violent felony offenders to community-based alternatives to incarceration. See T.C.A.

§ 40-36-103(1); State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997) (stating that

“trial courts are in the best position to ascertain an offender’s amenability to a community

corrections program”). The Defendant does not argue that he is eligible under the criteria set

out in subsection (a) of the Community Corrections Act. See T.C.A. § 40-36-106(a). We

note that the trial court found that the Defendant’s prior aggravated assault conviction was

for a violent offense and that a criterion for eligibility under subsection (a) is that the

Defendant’s crimes not involve violence. See id. The Defendant argues instead that he is

eligible under subsection (c), which provides that defendants “who would be usually

considered unfit for probation due to histories of chronic alcohol or drug abuse or mental

health problems, but whose special needs are treatable and could be served best in the

community” may be eligible for community corrections. See id. at -106(c).

For a defendant to be found eligible for the special needs provision of community

corrections, the trial court must determine that (1) the defendant is eligible for probation, (2)

the defendant has a history of substance abuse or mental health problems, (3) these factors

reasonably related to and contributed to the criminal conduct, (4) the special need istreatable,

and (5) the treatment could be best served in the community. See Grigsby, 957 S.W.2d at

546-47 (citing Boston, 938 S.W.2d at 439). The defendant carries the burden of showing

eligibility for the special needs provision. See Grigsby, 957 S.W.2d at 547 n.11. The

Defendant relies on State v. Robin A. Conner, in which this court held that the defendant met

the Grigsby criteria and “was a proper candidate for community corrections pursuant to the

special needs provision.” No. E2002-01075-CCA-R3-CD, Blount County, slip op. at 5

(Tenn. Crim. App. May 21, 2003). The defendant in Robin A. Conner was convicted of

robbery and had a prior history of two misdemeanors committed fourteen years before the

robbery. Id. The defendant presented medical evidence that she suffered from

schizophrenia, depression, and psychosis, and she presented evidence that she had stopped

taking her medication for these disorders at the time of the robbery. Id.

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In contrast, in the present case, the Defendant’s criminal history includes multiple

convictions for vandalism and theft spanning sixteen years from 1993 to 2009, and by his

own admission, he has repeatedly relapsed after court-ordered drug treatment. The

Defendant has shown that he has a history of substance abuse that is related to and has

contributed to his criminal conduct, but he has not carried his burden of showing that his

special needs would be best served in the community. See Grigsby, 957 S.W.2d at 546-47.

We conclude that the trial court did not abuse its discretion by denying alternative sentencing.

In consideration of the foregoing and the record as a whole, the judgments of the trial

court are affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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