State v. Kavious Newsom/Shandra Washington ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY SESSION, 1999
FILED
August 6, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9806-CR-00166
Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellee, )
) SHELBY COUNTY
V. )
)
KAVIOUS L. NEWSOM and ) HON. CHRIS CRAFT, JUDGE
SHANDRA WASHINGTON, )
)
Appellants. ) (THEFT OVER $1,000.00)
FOR THE APPELLANTS: FOR THE APPELLEE:
CHRISTINE D. WORLEY PAUL G. SUMMERS
Attorney for Defendant Newsom Attorney General & Reporter
200 Jefferson Avenue, Suite 1313
Memphis, TN 38103 PATRICIA C. KUSSMANN
Assistant Attorney General
BILL AN DER SON , JR. 2nd Floor, Cordell Hull Building
Attorney for Defendant Washington 425 Fifth Avenue North
142 North Third Street, Third Floor Nashville, TN 37243
Memphis, TN 38103
JOH N W. P IERO TTI
District Attorn ey Ge neral
DAN BYER
Assistant District Attorney General
Criminal Justice Center, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendants, Kavious L. Newsom and Shandra Washington, appeal as of
right from their se ntence s impo sed by th e Shelb y Coun ty Crimina l Court. Bo th
Defen dants pled g uilty to the charge of theft over $1,000.00. Defendant Newsom
petitioned the cour t for suspe nsion of h is sentence or place ment in comm unity
corrections. Defendant Washington requested judicial diversion. At the sentencing
hearing, the trial court denied any form of alternative sentencing for Defendant
Newsom, instead s entenc ing him to serve two (2) years of incarceration. Defendant
Washington was sentenced to serve three (3) years. Of this sentence, Washington
was ordered to serve sixty (60) days incarceration on the weekends and was placed
on probation by the trial court for two (2) ye ars. Both Defendants appeal the manner
of service of their sentences. We affirm as to both Defendants.
When an accused challenges the length, range or the manner of service o f a
sentence, this court has a duty to conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-40 1(d). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a sentence, this court must consider: (a) the
evidence, if any received at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives;
(d) the nature and characteristics of the criminal condu ct involved; (e) any statutory
mitigating or enhancement factors; (f) any statem ent tha t the de fenda nt ma de on his
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own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.
Tenn. Code Ann. § § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d
859, 863 (T enn. Crim. A pp. 1987).
If our rev iew refle cts tha t the trial court followed the statutory sentencing
procedure, impo sed a lawful s enten ce afte r havin g given due consideration and
proper weight to the factors and principles set out u nder the sentencing law, and
made finding s of fac t adeq uately supported by the record, then we may not mo dify
the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,
805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the guilty plea hearing, the Assistant District Attorney announced the proof
it would have presen ted had there be en a trial. The owners of the organization Pop
Tunes became aware of substantial losses they had sustained. The owners hired
private investigators to use surveillance cameras and to perform physical
surveillance of the store to determine the source of the losses in the amount of
$180,000.00. While conducting the surveillance, the investigators observed these
Defendants involved in a joint effort to steal many compact discs from Pop Tunes.
The Defen dants requested a lternative sentencing. Minnie Patricia Newsom,
Defendant New som ’s mo ther, tes tified on his behalf. Mrs. Newsom stated that she
did not agree with the Defendant’s actions. The Defendant was em ployed w ith
General Construction Company at the time of the hearing, attended Sunday School
and helped to coach a baske tball progra m at a local high school. Because she has
diabetes, Defendant Newsom assisted in caring for her. Mrs. Newsom was not
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aware of the amount or value of stolen compact discs the Defendant had stolen from
Pop T unes.
Defendant Newsom testified that he was married and had two (2) children,
one from a previous marriage. Newsom had been employed as a field supervisor
for General Construction Contractors since August of 1996 at the time of the
hearing. He was also enrolled at the Shelby State Community College in pursuit of
his respiratory therapy license. Defendant Newsom denied using drugs. He
admitted to consuming alcohol, but only on special occasions. Newsom
acknowledged his prio r felony drug c onvictio n in 19 91. He served a sen tence of split
confinement involving four (4) months of incarceration, followed by probation. He
also admitted having pending charges for driving on a revoked license, but stated
that he no w had a valid driver’s lice nse.
Defendant News om de scribed h is actions in this theft as “just bad ju dgme nt.”
Defendant was not an employee of Pop Tunes, but his girlfriend, Defendant
Washington, was the store manager. Newsom estimated that he had stolen
compact discs from the store on approximately three (3) or four (4) occasions, taking
an average of three (3 ) to five (5) discs each tim e. Howeve r, Newsom admitted that
on the last occasion during which he was caught by the investigators, he had taken
many more th an three (3) to five (5) dis cs. Newsom explained that he took so many
more on tha t occa sion b ecau se it wa s Defe ndan t W ashin gton’s last nig ht work ing
at Pop Tunes. He described that on the evening he was caught by the investigators,
he walked throughout the store, picked up discs off the racks, and then took them
to the counter. Defendant Washington then removed the security wrapping and put
them in a box. After the box was full, Newsom exited the store with th e box. He
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would not state how many discs were stolen that night. Newsom stated that he was
willing to do whatever it took to conform to any terms of probation imposed.
Defendant Washington did not present any evidence at the sentencing
hearing.
The trial court stated that D efend ant “jus t shou ld have know n bette r. He’s
already had an alternative sentence.” In reviewing the factors of probation, the trial
court found that Defendant basically went through the store choosing which compact
discs he wanted to steal and then took them. In reviewing De fenda nt Ne wsom ’s
prior criminal history, he found that Defendant had either sold or possessed drugs
with the intent to sell before and was given the oppo rtunity for an alternative
sentence on that c harge. In addition, Defendant Newsom had been arrested for
driving on a revoked licens e and onc e for failure to pay patern ity support. The court
stated it could not find that Defendant might “reasonably expect to be s ucce ssfully
rehab ilitated a lready beca use a ppare ntly jail did n’t mean that mu ch to him the first
time. He just didn’t get the point. He didn’t, quote, learn his lesson, unquote.” In
addition, the trial court found that the society had an interest in being protected from
future crim inal cond uct by De fendan t News om.
It is correct that the trial court stated during its ruling that an important factor
in denyin g an alternative sentence was that measures less restrictive than
confinement had recen tly and frequently been applied unsuccessfully to the
Defen dant. Since the previous conviction of Defendant N ewsom was in 1991, we
are unable to agree that a sentence less restrictive th an co nfirme nt had “recen tly
and frequently” been applied unsuccessfully to the Defendant. However, the trial
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court also noted that the Defenda nt was previous ly allowed to serve only a portion
of his previou s senten ce by inca rceration , and that h e, neverth eless, contin ued to
com mit crimes, i.e . theft of the m usical co mpac t discs. The trial court w as ob viously
conce rned with the “callou s and o pen” na ture of the th eft in the pre sent cha rges.
The trial court went on to ob serve that while he could not completely put the
loss upon the shoulders of Defendant Newsom as he was not an employee of the
store, Defendant, “without any regards for it at all . . . stole thousands of dollars from
this comp any. Th at’s the pro blem. I do n’t -- I just don’t se e that he’s repe nted.”
Finally, the trial court found as relevant the fact that Defendant Newsom had two (2)
homes, one (1) of which he had $40,000.00 equity, and was driving two (2) nice
automobiles (a 1993 Le xus and a 1 996 Che vrolet Tahoe ). The court noted that
Defendant and his w ife were employed and were able to provide for themselves, and
that therefore, this was “an absolutely useless, needless crime, and the only thing
I know to do it just to m ake h im serve it.” The trial court found that the presumption
of alternative sentencing was overcome because the Defendant Newsom had an
alternative senten ce previo usly and it did not wo rk. See Tenn. Code Ann. § 40-35-
102(5).
Defendant Newsom argues that this co urt shou ld review his sentence de novo
without a presumption of correctness. W hile he correctly notes that the trial court
made several misstatements regarding the facts of the case and his prior criminal
record, the trial court la ter corr ected hims elf on th ese m isstate men ts and did no t rely
on any incorrect facts in determining Defenda nt’s sentence. R ather, the trial court
determined the presumption in favor of alternative sentencing was overcome
prima rily beca use m easu res les s restric tive than confin ement had recently been
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applied unsu cces sfully to Defendant Newsom. Defendant Newsom ’s presentence
report reflects that he was convic ted of a drug o ffense , but tha t convic tion wa s six
(6) years prior to this offense. He served four (4) months in prison, with the
remainder of his three (3) year se ntence for the dru g convictio n on pro bation. As
stated above , we fail to find tha t this previous instance of alternative sentencing was
either frequently or recently applied as related to his current conviction. In addition,
there was no specific proof of deterrence within the jurisdiction which the trial court
could have relied upon as a factor overshadowing Defendant Newsom’s presu mptio n
for an alterna tive senten ce. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim.
App. 1995 ) (citation s om itted). T herefo re, our review of Def enda nt Ne wsom ’s
sentence is de novo without a presumption of correctness.
A defendant who “is an especially mitigated or standard offender convicted of
a Class C, D or E felony is presumed to be a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Our sentencing law also provides that “convicted felons committing
the most severe offenses, possessing criminal histories evincing a clear disregard
for the laws and morals of society, and evincing failure of past efforts at
rehabilitation, shall be given first priority regarding sentences involving
incarcer ation.” Tenn. Code Ann. § 4 0-35-10 2(5). Th us, a defe ndant s entenc ed to
eight (8) years or less who is not an offender for who m inc arcera tion is a priority is
presumed eligible for alternative sentencing unless sufficient evidence rebuts the
presumption. However, the act does not provide that all offenders who meet the
criteria are en titled to such relief; rather, it requires that sentencing issues be
determined by the facts and circu mstan ces pre sented in each c ase. See State v.
Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).
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Defendant argues the trial court erred in refusing to sentence him to an
alternative senten ce und er the Co mm unity Cor rections A ct. The C omm unity
Corrections Act allows certain eligib le offende rs to participate in community-based
alternatives to incarceration. Tenn. Code Ann. § 40-36-103. A defendant must first
be a suitab le can didate for altern ative se ntenc ing. If so , a defe ndan t is then eligible
for participation in a community corrections program if he also satisfies several
minimum eligibility criteria set forth at Tennessee Code Annotated section 40-36-
106(a). The statute provides that the criteria shall be interpreted as minimum
standards to guide a trial court’s determination of whether that offe nder is eligible for
comm unity corre ctions. Te nn. Co de Ann . § 40-36 -106(d).
Under the statutory guidelines, Defe ndant is an eligible candidate for
comm unity corrections. He was convicted of a property-related felony offense which
was ne ither violent n or involved a crime against a person . Tenn. Code Ann. § 40-
36-106(a)(2) and (3). In addition, Defendant did not possess a weapon, and he has
not demonstrated a present or past pattern of committing violent offenses. Tenn.
Code Ann. § 40-36-106(a)(4), (5) and (6). Defendant’s presentence report indicated
he was a favorable candidate for the community corrections program. In addition,
Defendant’s emplo ymen t history dem onstrate d his willingn ess to wo rk and to
contribute to society. He has continued his education an d supports h is family.
Howeve r, after our review of the entire recor d in this cas e, we are constrain ed to
agree with the trial court that D efenda nt New som h as sho wn a failure of past effo rts
at rehabilitation, and should be given a first priority regarding a sentence involving
incarceration. This being the case, Defendant is no longer presumed to be a
favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-
102(5) and (6).
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In regards to sentencing Defendant Washington, the trial court found that two
(2) enhancement factors applied. First, the Defendant Washington was a lead er in
the comm ission of an offens e involving two (2) or m ore criminal actors, to which he
gave great we ight. See Tenn. Code Ann. § 40 -35-114(2). In ad dition, the court
noted that Defendant Washington abused a positio n of pu blic or private trust in that
she was the store’s manager and was allowing p eople to s teal from the store. See
Tenn. Code Ann. § 40-35-114(15). As the trial court aptly noted, Defendant
Washington was being paid by the company not to allow this s ort of even t to occur,
but was instead doing it herself by allowing her boyfriend and others to take
thousands of dolla rs wort h of m ercha ndise . The tr ial cou rt noted that this criminal
activity occurred over a period of months, and was not a one-time occurrence. The
continuing nature of the offen se was pa rticularly disturbing to the trial cou rt. In
addition, the amount of property dam age to the victim w as particularly great. Fina lly,
the deterrence value was considered as “enorm ous” to the trial c ourt in th at if peo ple
knew that a manager of a store allowed systematic theft from the store and was then
allowed to have her offense erased from her record, that it would be devastating to
comp anies in th e com munity.
The trial court gave great weight to the first two (2) enhancement factors and
sentenced her to three (3) years. However, looking at the presumption for an
alternative sentence, the trial court placed Defendant Washington on two (2) years
of proba tion afte r she c omp leted service of sixty (60) days of her sentence on the
weekends. Because there was not an exact amount proven for restitution to the
victim, the trial court did not require restitution as a condition of her sentence.
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Defendant Washington argues the trial cou rt erred in refusing to grant judicial
diversion. The question of wheth er or no t to gran t judicia l diversio n is with in the trial
court’s discretion; this court will not interfere with the trial court’s den ial if there is
“any substantial evidence to sup port the refusal con tained in the reco rd.” State v.
Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ) (citation omitted). The
guidelines applicable in probation cases are applicable in diversion cases. They are,
however, more stringently applied in diversion cases. State v. Holland, 661 S.W.2d
91, 93 (T enn. C rim. App . 1983).
Based upon the findings of the trial court and the record, we find that the trial
court did not abuse its discretion in denying Defendant W ashington judicial diversion.
The record supports the trial court’s findings that allowing judicial diversion would not
properly re flect the se riousne ss of this offe nse. Defen dant, entrusted as manager
of Pop T unes , system atically allowed others to steal from the store resulting in a loss
of great value to that store. While Defendant Washington may not have a prior
criminal record, there is som e proof in the reco rd that she led others to commit these
offenses. Both th e circu msta nces of this o ffense and th e bes t interes t of the p ublic
do not favor judicial diversion for Defendant Newsom. Defendant’s sentence of
three (3) years, with o nly sixty (60) days of incarceration to be served on weekends,
is an appropriate alternative sentence in the case sub judice, and the trial cou rt did
not abu se its discre tion in den ying judicia l diversion.
C ONCLUSION
Based upon our rev iew of th e reco rd, brief s of the parties , and th e app licable
law, we affirm the judgments of the trial court as to both Defendants.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOHN H. PEAY, Judge
___________________________________
JOE G. RILEY, Judge
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