State v. Bryan Bastel ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION
FILED
STATE OF TENNESSEE, ) July 21, 1998
) C.C.A. No. 02C01-9708-CR-00312
Appellee, ) Cecil Crowson, Jr.
) Shelby County Appellate C ourt Clerk
V. )
) Honorable Arthur T. Bennett, Judge
)
BRYAN E. BASTEL, ) (Assault - Denial of Probation)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Edward Witt Chandler John Knox Walkup
Attorney at Law Attorney General & Reporter
2502 Mt. Moriah Rd., Suite A100
Memphis, TN 38115 Marvin E. Clements, Jr.
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243
William L. Gibbons
District Attorney General
Lee Coffee
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Originally charged with aggravated assault, the appellant, Bryan Bastel,
pled guilty to assault in the Shelby County Criminal Court. The court denied the
appellant’s petition for a suspended sentence and sentenced him to serve thirty
days in the Shelby County Correctional Center. He appeals. The sole issue for
our review is whether the trial court erred in denying an alternative sentence.
We affirm the judgment of the trial court.
The appellant is a twenty-two-year old electrical engineering student at the
University of Memphis. In May of 1995, the appellant and several friends went to
a festival known as “Memphis in May.” As they were leaving the festival, the
appellant’s friend, Chris Belue, stopped to use the restroom. The appellant and
his other friends walked on toward their car. They then heard Belue “hollering”
for them to come back. The victim, Timothy Evans, had Belue by the wrist.
Evans saw that Belue had entered a vehicle without the owner’s consent.
Apparently Evans was a volunteer at the festival and intended to take Belue to
the police for questioning. Belue told Evans and the appellant that a girl had
given him permission to get cigarettes out of a white car. The appellant told
Evans to let go of Belue. Evans refused, saying that he was taking Belue to the
police. The appellant broke Evan’s grip on Belue’s wrist. The appellant claims
that Evans pulled “something” out of his pocket. The appellant claims that his
friends who were several feet behind him stated “Watch out. He’s got
something.” The appellant later learned that Evans pulled out scissors. The
appellant kicked at Evan’s hand twice and swung at him twice. He actually hit
Evans in the hip as he swung at Evan’s hand. Evans left and notified the police.
The appellant testified that he and his friends walked toward their car to leave.
Several minutes later, the police arrested the appellant. The appellant testified
that he did not go to the police to resolve the issue because he was tired and
had to get up early the next morning to go to work. The appellant testified that he
thought that Evans was picking on Belue. The appellant did not believe that
Belue had done anything wrong.
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The court also considered the presentencing report. Evans and the police
gave a slightly different account of the events than the appellant. Evans stated
to the police that the appellant made two aggressive attempts to cut him with a
six-inch hunting knife. Evans stated that if the appellant’s friends had not
intervened, he, Evans would have been murdered. Evans stated that the
appellant “reeked” of alcohol. From the record it appears that the police report
indicates that the appellant pulled a knife on Evans and threatened him. The
report also indicates that the police had to chase the appellant and Belue.
The appellant denied that he had a six-inch hunting knife, but admitted
that he did have a small pocket knife. He denied pulling any kind of knife on
Evans. He denied that he made the threatening statements to Evans. He
denied that the police chased him.
Assault is a class A misdemeanor punishable by up to eleven months,
twenty-nine days in jail. Tenn. Code Ann. §§ 39-13-101(b) (1990), 40-35-
111(e)(1) (1989). The court denied the appellant’s application for a suspended
sentence. He sentenced the appellant to serve thirty days. The court allowed
the appellant to serve the time on weekends or nonconsecutive days when the
appellant was not in school. The court found that the appellant lacked credibility.
The court did not believe that the appellant was telling the whole story about the
offense in question. The court found that the appellant had a history of criminal
convictions involving assault and a history of criminal behavior. The appellant
was convicted of assault in 1993. He was arrested for or convicted of battery or
assault and battery in Arkansas. He was arrested for public intoxication and
disorderly conduct in 1993. At the time of the offense, the appellant was out on
bond for possession of a controlled substance. The trial court also found that
suspending the appellant’s sentence would depreciate the seriousness of the
offense. From the record, it appears that the court was concerned about the
appellant’s cocky attitude and inability to appreciate the seriousness of the
offense. Past attempts at rehabilitating the appellant with measures less
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restrictive than incarceration have failed. The court took into consideration that
the appellant was in school and was gainfully employed.
When an appellant challenges the manner of service of a sentence, this
Court reviews the evidence de novo with a presumption that the determinations
of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The
presumption of correctness is conditioned upon an affirmative showing that the
trial court considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Misdemeanor sentences must be specific and in accordance with the
principles, purposes and goals of the Criminal Sentencing Reform Act of 1989.
State v. Palmer, 902 S.W .2d 391, 394 (Tenn. 1995). The trial judge shall fix a
percentage of the sentence that the defendant shall serve; after service, the
defendant is eligible for rehabilitative programs. Tenn. Code Ann. §§
40-35-302(b) & (d) (Supp. 1994); Palmer, 902 S.W.2d at 394. Alternatively, the
court can grant probation immediately, or after a period of split or continuous
confinement. Tenn. Code Ann. § 40-35-302(e)(1) & (2).
We affirm the judgment of the trial court. The evidence amply supports
the court’s denial of the appellant’s petition. The appellant’s lack of credibility,
his prior history of criminal behavior, and the failure of past rehabilitation are
supported by the evidence. They are appropriate factors upon which to deny
probation.
The judgment of the trial court is affirmed.
_____________________________
PAUL G. SUMMERS, Judge
CONCUR:
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_________________________
DAVID H. WELLES, Judge
__________________________
JOE G. RILEY, Judge
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