State of Tennessee v. Brian Mark Driggers ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 22, 2010
STATE OF TENNESSEE v. BRIAN MARK DRIGGERS
Direct Appeal from the Circuit Court for Marshall County
No. 08-CR-163 Robert Crigler, Judge
No. M2009-02124-CCA-R3-CD - Filed February 1, 2011
A Marshall County jury convicted the Defendant, Brian Mark Driggers, of forgery and
misdemeanor theft, and the trial court sentenced him to one year and three months to be
served in the Tennessee Department of Correction. On appeal, the Defendant contends that
the evidence is insufficient to support his convictions, that the State failed to prove venue,
and that the trial court erred when it denied the Defendant an alternative sentence. After a
thorough review of the record and the applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.
John D. Schwalb (on appeal), Franklin, Tennessee, and Roger Clay Parker (at trial),
Shelbyville, Tennessee, for the Appellant, Brian Mark Driggers.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Charles F. Crawford, Jr., District Attorney General; Weakley R. Barnard, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
A Marshall County grand jury indicted the Defendant for six counts of forgery under
$500 and six counts of theft of property under $500. The following evidence was presented
at the Defendant’s trial: Veeda Kielbasa testified that she and her husband, Robert Kielbasa,
owned a horse ranch, Free Spirit Farm, located in Lewisburg, Marshall County, Tennessee.
The Kielbasas’s farm provided horse training and boarding services for horse owners.
Mrs. Kielbasa testified that she employed the Defendant at Free Spirit Farm during
June, July, and part of August 2008. Specifically, the Defendant was hired to bring in more
boarders for the business because the Kielbasas’ barn was only half-full. The Kielbasas were
hoping this extra revenue would cover their overhead expenses. Mrs. Kielbasa said that, at
the time the Defendant was hired, they employed four other individuals whom the Defendant
was expected to manage while Mrs. Kielbasa performed the management of the farm itself.
Mrs. Kielbasa testified that she paid all of the bills, including payroll, from a designated
checking account with First Commerce Bank for Free Spirit Farm. Although “there were
times” where payroll would be paid from the Kielbasa’s personal checking account, the
“majority” of the time employees were paid from the business bank account. Mrs. Kielbasa
testified that she primarily wrote the payroll checks but that, on occasion, when she was out
of town, her husband wrote the payroll checks. Mrs. Kielbasa estimated that she would go
out of town on business approximately six times a year.
Mrs. Kielbasa testified that there was an office in the barn where she kept all the
business paperwork. When Mrs. Kielbasa was not there, the office was locked. Mrs.
Kielbasa said that she usually kept the business checkbook in her home but that she
occasionally kept the checkbook at the barn office in a locked filing cabinet. Mrs. Kielbasa
said she and her husband were the only two authorized signatories on this business account.
Mrs. Kielbasa identified a bank signature card authorizing only her and her husband’s
signatures for the bank account and testified that no else had ever been authorized to sign for
this business account.
Mrs. Kielbasa testified that occasionally an employee would use a farm vehicle and she
would reimburse the employee for any diesel they purchased while using the vehicle. When
she reimbursed employees, her practice was to write the purpose of the reimbursement on the
memo line of the check.
Mrs. Kielbasa testified that prior to hiring the Defendant, the business sometimes made
a profit but only“br[oke] even” at other times. The Kielbasas decided to hire Dale Rudin to
hold instructive clinics to teach clients how to work with difficult horses rather than employ
horse trainers. She explained that they were making this change to “simplify things.” Mrs.
Kielbasa recalled that Rudin knew the Defendant and told Mrs. Kielbasa that, if the Defendant
was hired, Rudin and the Defendant could secure enough clients to fill the unused stalls in the
barn within thirty days.
Mrs. Kielbasa testified that Rudin brought the Defendant to the Kielbasa’s home and
that they discussed a potential position for the Defendant at Free Spirit Farm. Approximately
a week later, Mrs. Kielbasa met with the Defendant to discuss the position once again,
confirming that the Defendant would be able to secure additional boarders for the barn. Mrs.
Kielbasa hired the Defendant during this meeting, and the two agreed upon a salary of $750
to be paid at the end of every work week.
The Defendant began work on June 16, 2008. Thereafter, he approached Mrs. Kielbasa
about hiring additional employees, and Mrs. Kielbasa agreed. The Defendant hired Lori
Fontez, Joey Gilly, and Kyle Graves, all acquaintances of the Defendant.
As the summer progressed, it became apparent to Mrs. Kielbasa that the Defendant was
not able to secure additional boarders to fill the empty barn stalls as they had discussed. Mrs.
Kielbasa testified that, in the middle of July, she called the Defendant into the barn office and
told him that she would need to let both the Defendant and Rudin go because they were not
bringing in the clients as agreed upon. About a week after that meeting, a client asked Mrs.
Kielbasa to assist him in delivering eight horses to Las Vegas. The Defendant was part of the
discussion and arranged to drive to Las Vegas with Joey Gilly to deliver the eight horses and
then pick up four horses, delivering two of those horses to Mexico and the other two horses
to Texas on their return trip. The Defendant told Mrs. Kielbasa that the business would make
a $1200 profit from these deliveries.
Mrs. Kielbasa recalled going to the barn on July 26, the morning the Defendant was
scheduled to leave for the horse delivery. The Defendant informed Mrs. Kielbasa that “some
stuff ha[d] come up” and Gilley could no longer go and the Defendant needed to remain at
the farm to meet with someone interested in purchasing horses. The Defendant asked Mrs.
Kielbasa to deliver the horses. Mrs. Kielbasa agreed to make the delivery but refused to travel
into Mexico. She instructed the Defendant to ask the Mexico buyer to meet her in Arizona
to pick up the horses. The Defendant told Mrs. Kielbasa that he “had it all worked out.” Mrs.
Kielbasa said that, the day she left to drive to Las Vegas, the business checkbook was in the
filing cabinet in the barn office because she had been paying suppliers. Mrs. Kielbasa gave
the Defendant her keys to the barn office to give him access to the office for phone calls or
to meet with clients. In her rush to leave, Mrs. Kielbasa did not think about the fact that the
key to the locked filing cabinet was also on the key ring.
Upon arriving in Las Vegas, Mrs. Kielbasa learned that the Defendant did not actually
arrange for the Mexico horse buyer to pick up the horses in Arizona, that the delivery of the
horses to Texas was not part of the agreement, and that the agreed upon price for the delivery
was much less than the Defendant had told Mrs. Kielbasa. Without the four horses the
Defendant had told Mrs. Kielbasa he had arranged for delivery on the return trip to Tennessee,
Mrs. Kielbasa drove back to Lewisburg, arriving between 9:30 p.m. and 10:30 p.m. the night
of July 31. The next morning, Mrs. Kielbasa learned that her husband had closed the barn,
so she paid the employees their final wages. Mrs. Kielbasa testified that she was current on
the Defendant’s wages and that she paid him his final check for the previous week’s work of
$750.
Sometime shortly after the barn closed, Mrs. Kielbasa reviewed copies of returned
checks for the business account and noticed that some of the checks bore a signature of her
name that was in neither her nor her husband’s writing. Mrs. Kielbasa, based on working with
the Defendant, identified the handwriting on the checks as the Defendant’s handwriting. Mrs.
Kielbasa testified that her husband told her he had not given the Defendant permission to
write the checks.
The first check that had Mrs. Kielbasa’s unauthorized signature was written to Burke
Building Supplies for twelve dollars on July 30, 2008, during which time Mrs. Kielbasa was
returning from her delivery of the horses to Las Vegas. The second check was written on the
same day and made out to the Defendant for $500. The third and final1 check was dated July
31, 2008, and was written to Kyle Graves for $500. On the memo line of this check was
written “Pay for labor.” Mrs. Kielbasa testified that she did not give the Defendant
permission to write the checks to Burke Supplies, Kyle Graves, or himself. Mrs. Kielbasa
recalled that on August 1, when she wrote the Defendant his final paycheck for the previous
week’s work, he never mentioned writing any checks for the business.
Robert Kielbasa testified that his wife was the primary operator of Free Spirit Farm,
while he worked full-time in Nashville. Mr. Kielbasa was not involved in hiring the
Defendant and was unaware of the Defendant’s salary. Mr. Kielbasa testified that he was
concerned about the expense of the farm, which he said was a “very, very sore point” between
himself and his wife. Mr. Kielbasa testified that he never authorized anyone to sign checks
for the business account and that he never gave the Defendant permission to sign Mrs.
Kielbasa’s name to a check.
On cross-examination, Mr. Kielbasa testified that Kyle Graves was repairing a utility
trailer and needed lumber for the repair. Mr. Kielbasa denied giving the Defendant
permission to use the business account checkbook to buy the lumber from Burke Building
Supply store. He explained that he himself he went to Lowe’s and purchased the needed
lumber for the trailer repair. Mr. Kielbasa said he did not recall talking with the Defendant
about a $500 fuel reimbursement, but he acknowledged that the Defendant occasionally used
his personal vehicle for farm work.
Rick McKenzie, a manager at Burke Building Supply store, in Lewisburg, Tennessee,
testified and identified a July 30, 2008, invoice for a twelve-dollar purchase. The invoice
indicated that the items purchased were two one-by-six twelve-foot treated planks that were
picked up by the customer the day of purchase. McKenzie identified the Free Spirit Farm
1
During the trial, there was testimony of another check written by the Defendant on the business
account without the Kielbasa’s permission. This check, however, was passed in another county
and, thus, is not at issue in this case.
business check received for the invoice.
Pavlova Greggs, vice-president of teller operations at First Commerce Bank, testified
that, whenever a check is cashed at First Commerce Bank, it is stamped with the date, the
name of the teller receiving the check, the amount of the check, and the time. Viewing the
$500 check written to the Defendant and cashed at First Commerce Bank in Marshall County,
Tennessee, she stated that the check was cashed on July 30 at 3:12 p.m. by teller number six.
Greggs said that, based upon a videotape of the transaction, she determined that the
Defendant’s wife, Penny Driggers, cashed the check. The videotape, which was played for
the jury, showed Driggers giving the bank teller a check from the Free Spirit Farm business
account and receiving $500 in cash. Greggs explained that the bank required the signature
of both the person to whom the check was written and the person cashing the endorsed check.
The check in this case was signed by both the Defendant and his wife.
Greggs then viewed the check made out to Kyle Graves and stated that it was cashed
in Marshall County, Tennessee, on August 1 at 9:10 a.m. by teller number six, in the amount
of $500. Based upon this information, Greggs located the videotape of this transaction, which
showed Kyle Graves receiving $500 from the Free Spirit Farm business account.
Greggs verified that the $12 check written to Burke Building Supply store, dated July
30, was cashed on July 31. This transaction also occurred in Marshall County, Tennessee.
Greggs identified the signature card for the Free Spirit Farm’s business checking
account and confirmed that the only signatories were Veeda and Robert Kielbasa.
Kyle Graves testified that the Defendant hired him to work at Free Spirit Farm in 2008.
Graves said that he worked for about a week and was paid at the end of the week. Graves
recalled that he and Defendant were in the Free Spirit Farm barn when the Defendant said,
“Let’s get you paid” and walked over to the Defendant’s truck. Graves said the Defendant
retrieved a big “company checkbook” from the truck and wrote a check for Graves’s wages.
Graves said that, because this occurred at the end of the day, he waited until the next morning
to cash the check at First Commerce Bank in Lewisburg. Graves agreed that the bank
videotape showed him cashing the Free Spirit Farm check. Graves denied noticing that the
signature on the check was Veeda Kielbasa explaining that he “didn’t pay attention.” Graves
identified his signature on the back of the check and denied knowledge that the check was a
forgery.
Norman Dalton, a Marshall County Sheriff’s Office Captain, testified that Robert
Kielbasa reported a check forgery on August 13, 2008. Captain Dalton spoke with the
Defendant regarding the checks a couple days later. Captain Dalton recalled that the
Defendant admitted he wrote and signed the checks but explained that Robert Kielbasa had
given him permission to write the $500 check for the Defendant’s fuel and expenses and the
twelve dollar check for two pieces of lumber purchased from Burke Building Supply store.
Captain Dalton then spoke with Robert Kielbasa who maintained that he had not given anyone
permission to sign the business checks.
Dale Rudin, a horse trainer, testified she met the Defendant at a horse training facility.
Rudin said that she currently worked at Maverick Horse and Cattle Company, which is owned
by the Defendant. Rudin recalled that she introduced the Defendant to the Kielbasas. The
Kielbasas hired the Defendant to take care of the barn, but, after a week or two, Mrs. Kielbasa
called a meeting and told the employees that the Defendant was going to manage the barn and
use the barn office. Rudin recalled that the Defendant had keys to the barn office and that
whenever she needed anything, she reported to the Defendant rather than the Kielbasas.
Rudin said that, after the Defendant was hired, she did not see the Kielbasas on the farm very
often. Rudin said that the Defendant worked very long hours at Free Spirit Farm and would
drive his personal vehicle for farm work.
Based upon this evidence, the jury convicted the Defendant of two counts of forgery,
a Class E felony, and one count of theft of property under $500, a Class A misdemeanor.
B. Sentencing Hearing
At the sentencing hearing, the following evidence was introduced: Terese Frazier, a
Department of Probation and Parole employee, prepared the presentence report in this case
and testified that the Defendant had a 2003 federal conviction for fraud. The conviction was
based on fraud perpetrated by the Defendant on a lender. Frazer said that the Defendant
reported to her that he received a loan on the basis he would plant a certain type of crop and
then he planted a different type of crop. The restitution owed on this bank fraud conviction
was $219,713.13. Frazier learned that the Defendant paid the restitution at $150 a month until
he was discharged from federal probation. Having failed to make any further payment since
being discharged from federal probation, the current restitution debt was $203,839.92.
Frazier also investigated the Defendant’s employment history. Frazier testified that she
learned that the Defendant was employed at Tennessee Equestrian Hospital for eight months
initially in maintenance but, due to an injury, he was moved to an office job. Frazier said that
the owner of the facility indicated he was unaware of any thefts during the Defendant’s
employment but that the Defendant was not welcome on the property because the Defendant
created “dissension in the office” during his employment. Frazier testified that she collected
victim impact statements from both of the victims in this case, Robert and Veeda Kielbasa.
Veeda Kielbasa testified that she had not yet received any restitution from the
Defendant. Mrs. Kielbasa further stated to the trial court, “I really feel like [the Defendant]
will do this to somebody else. If you let him walk, he is going to do it again.”
Following the hearing, the trial court merged the two counts of forgery. The trial court
applied several enhancement factors to the Defendant’s sentence and sentenced him to one
year and three months for the forgery conviction, a Class E felony, and to eleven months and
twenty-nine days for the theft conviction, a Class A misdemeanor. The trial court ordered all
sentences to run concurrently for an effective sentence of one year and three months, to be
served in the Tennessee Department of Correction.
II. Analysis
The Defendant asserts that the evidence is insufficient to sustain his convictions, that
the State failed to prove venue, and that the trial court erred when it denied the Defendant an
alternative sentence. We will address each of the Defendant’s issues in turn.
A. Sufficiency of the Evidence
The Defendent asserts the evidence is insufficient to sustain his convictions because
the jury acquitted him of the forgery count for the check on which the Defendant admitted
signing Mrs. Kielbasa’s name. Further, the Defendant contends that the evidence clearly
showed that the Defendant’s wife, and not the Defendant, passed the check which was the
basis for one of the two forgery convictions. As to the theft conviction, the Defendant asserts
that the State failed to prove that the Defendant actually received the proceeds of the check
his wife cashed. The State counters that the evidence was sufficient to sustain the
convictions, and that inconsistency between verdicts does not nullify the convictions.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State, “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e), State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be based entirely on
circumstantial evidence where the facts are “so clearly interwoven and connected that the
finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State v.
Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to be given to
circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the extent
to which the circumstances are consistent with guilt and inconsistent with innocence, are
questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations
omitted). In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and
value of the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859.
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee 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 face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274,
279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption
of innocence and raises a presumption of guilt, the convicted criminal defendant bears the
burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
The Defendant’s primary contention as to sufficiency is that the verdicts are facially
inconsistent because the jury convicted the Defendant for forging the check he admitted
writing to himself but acquitted him on the charges of forgery and theft for the check the
Defendant admitted writing to Kyle Graves. Our Supreme Court has held “[c]onsistency in
verdicts for multiple count indictments is unnecessary as each count is a separate indictment.”
Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973). A conviction will be upheld if “the
evidence establishes guilt of the offense upon which the conviction was returned.” Id.
Therefore, the Defendant’s acquittals did not render his remaining convictions void. We will
now consider whether the evidence establishes his guilt for the offenses of forgery and theft
under $500.
In this case, the Defendant was convicted of forgery under two separate theories of
forgery: (1) that the Defendant made the check; and (2) that the Defendant “otherwise
utter[ed]” the check. Forgery, as charged in this case, is defined as follows:
(a) A person commits an offense who forges a writing with intent to defraud
or harm another.
(b) As used in this part, unless the context otherwise requires:
(1) “Forge” means to:
(A) Alter, make, complete, execute or authenticate any writing so that
it purports to:
(i) Be the act of another who did not authorize the act;
....
(c) Issue, transfer, register the transfer of, pass, publish, or otherwise
utter a writing that is forged within the meaning of subdivision
(b)(1)(A)[.]
See T.C.A. § 39-14-114(a), (b)(1)(A)(i), and (b)(1)(c) (2009).
The Defendant was also convicted of theft of the proceeds of the $500 check he wrote,
and his wife cashed. A conviction for theft in this case required the State to show that the
Defendant “with intent to deprive the owner of property . . . knowingly obtain[ed] or
exercise[d] control over the property without the owner’s effective consent.” T.C.A. § 39-14-
103 (2009). The jury in this case was given an instruction as to criminal responsibility.
Criminal responsibility is not a separate crime but instead a theory by which the State may
prove the defendant’s guilt based upon another person’s conduct. State v. Osborne, 251
S.W.3d 1, 16 (Tenn. Crim. App. 2007). Tennessee Code Annotated section 39-11-402(2)
provides that a defendant is criminally responsible for the conduct of another when, “[a]cting
with intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense, the defendant solicits, directs, aids, or attempts to aid another person
to commit the offense.” A person is criminally responsible as a party to an offense if the
offense is committed by the person’s own conduct, by the conduct of another for which the
person is criminally responsible, or by both. T.C.A. § 39-11-401(a). “Each party to an offense
may be charged with commission of the offense.” T.C.A. § 39-11-401(b).
The evidence, considered in the light most favorable to the State, proves that, while
working for the Kielbasas at Free Spirit Farm, the Defendant had access to the office where
the business checkbook for the farm was sometimes kept. While Mrs. Kielbasa was out of
town, the Defendant wrote a $500 check payable to himself and signed Mrs. Kielbasa’s name
as the payor. The Defendant endorsed the check, as did his wife, and the Defendant’s wife
cashed the check at the bank. The Defendant admitted writing one check to himself and one
to Kyle Graves and explained that he wrote the check to himself as a reimbursement for work-
related expenses. Neither Mr. Kielbasa nor Mrs. Kielbasa ever authorized the Defendant to
sign a check in Mrs. Kielbasa’s name. The jury, by its verdict, accredited the Kielbasas’
testimony. Credibility determinations of trial testimony are left to the jury. See Bland, 958
S.W.2d at 659. Based upon this evidence, we conclude that a jury could find beyond
reasonable doubt that the Defendant is guilty of forgery and theft under $500.
The Defendant also challenges the jury’s conviction of forgery under the theory that
the Defendant passed or “otherwise utter[ed]” the forged check. At trial, the State proceeded
under two theories of forgery: (1) that the Defendant made the check, and (2) that he “uttered”
the check. The jury found the Defendant guilty under both theories of forgery, and the trial
court merged the forgery count based upon the Defendant having “uttered” the check into the
forgery count based upon the Defendant making the check. The Defendant complains that
the proof established that his wife rather than he himself passed the check. The jury was
charged, however, with criminal responsibility. Under the theory of criminal responsibility
for the acts of another, it is not necessary for the offense to be committed by one’s own
conduct. State v. Ball, 973 S.W.2d 288, 293 (Crim. Ct. App. 1998). Whereas the Defendant
did not personally take the check to the bank, he wrote the check to himself and signed Mrs.
Kielbasa’s name to the check. He then endorsed the check, and his wife took it to the bank
to be cashed. The Defendant told the sheriff’s deputy that he wrote the check to reimburse
himself for expenses. Based upon this evidence, the jury could conclude that the Defendant
was guilty of forgery under either theory of forgery. The Defendant is not entitled to relief
as to this issue.
Finally, the Defendant asserts that, because the State failed to prove that the Defendant
received proceeds from the check cashed by his wife, the evidence was insufficient to support
his theft conviction. The Defendant wrote a check for $500 on the farm business checking
account. The Defendant endorsed the check, and his wife cashed the check and left the bank
with the proceeds. The Defendant explained to the sheriff’s deputy during the investigation,
after the check had been cashed, that he wrote the check to reimburse himself for work-related
expenses. The Kielbasas denied giving the Defendant permission to sign a check in Mrs.
Kielbasa’s name for reimbursement of work-related expenses in the sum of $500. From these
facts, a jury could infer that the Defendant, with the intent to deprive the Kielbasa’s of the
$500, obtained control over the proceeds of the check without the owner’s effective consent
as required for a theft conviction. See T.C.A. § 39-14-103. The evidence is, therefore,
sufficient to support his conviction for theft, and he is not entitled to relief as to this issue.
B. Venue
Proof of venue is necessary to establish the trial court’s jurisdiction. See Harvey v.
State, 376 S.W.2d 497, 498 (Tenn. 1964); Hopson v. State, 299 S.W.2d 11, 14 (Tenn. 1957).
“Venue is a question for the jury, and can be established by circumstantial evidence.” State
v. Young, 196 S.W.3d 85, 101-02 (Tenn. 2006) (citing State v. Hamsley, 672 S.W.2d 437, 439
(Tenn. Crim. App. 1984); State v. Bennett, 549 S.W.2d 949, 950 (Tenn. 1977)). To determine
venue, the jury is permitted to draw reasonable inferences based on the evidence presented.
Id. at 102 (citing State v. Johnson, 673 S.W.2d 877, 882 (Tenn. Crim. App. 1984)). The State
only needs to prove by a preponderance of the evidence that the charged offense was
committed in the county in which the defendant is being tried. See T.C.A. § 39-11-201(e);
Bennett, 549 S.W.2d at 949-50; State v. Anderson, 985 S.W.2d 9, 15 (Tenn. Crim. App.
1997). Slight evidence will be sufficient to carry the State’s burden if the evidence is
uncontradicted. State v. Bloodsaw, 746 S.W.2d 722, 726 (Tenn. Crim. App. 1987).
The Defendant contends that the State failed to prove venue in this case. We disagree.
The evidence showed that the Defendant was employed at Free Spirit Farm located in
Marshall County. The checkbook was in the barn office and Graves testified to seeing the
Defendant in possession of the business checkbook at the barn during which time the
Defendant wrote a check to Kyle Graves and signed Mrs. Kielbasa’s name. The check the
Defendant made out to himself was cashed at a bank in Marshall County. Further, there was
no evidence indicating these crimes occurred any place other than Marshall County. Based
upon this evidence, the jury could reasonably infer that the Defendant’s offenses occurred in
Marshall County. The Defendant is not entitled to relief as to this issue.
C. Sentencing
The trial court sentenced the Defendant as a Range I, standard offender to one year and
three months at 30% for his forgery conviction, a Class E felony, and to a concurrent eleven
months, twenty-nine days for his theft conviction, a Class A misdemeanor, for an effective
sentence of one year and three months. The Defendant appeals this decision, arguing that the
trial court erred when it denied him an alternative sentence. The State responds that, because
the trial court’s findings are supported by the record, no sentencing error occurred.
When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2006). As the Sentencing Commission Comments to this section note, the burden
is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,
Sentencing Comm’n Cmts (2006). This means that if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
Sentencing Act, Tennessee Code Annotated section 40-35-103 (2006), the appellate court may
not disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833,
847 (Tenn. 2001). The presumption does not apply to the legal conclusions reached by the
trial court in sentencing a defendant or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App.
2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891
S.W.2d 922, 929 (Tenn. Crim. App. 1994).
In conducting a de novo review of a sentence, we must consider: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 4-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A. §
40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). We must
also consider the potential or lack of potential for rehabilitation or treatment of the defendant
in determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-103
(2006).
Due to the 2005 amendments to the Sentencing Reform Act, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d
335, 347 (Tenn. 2008) (citing T.C.A. § 40-35-102(6) (2006)). Instead, a defendant not within
“the parameters of subdivision (5) [of T.C.A. § 40-35-102], and 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.” Id. (footnote omitted). T.C.A. § 40-35-102(6); 2007 Tenn. Pub. Acts 512.
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider ” them. T.C.A. § 40-35-102(6).
A defendant seeking probation bears the burden of “establishing [his] suitability.”
T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even though
probation must be automatically considered as a sentencing option for eligible defendants, the
defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303
(2009), Sentencing Comm’n Cmts.
When sentencing the defendant to confinement, a trial court should consider whether:
(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103(A)-©) (2009). In choosing among possible sentencing alternatives, the
trial court should also consider “[t]he potential or lack of potential for the rehabilitation or
treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they
relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.
App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia,
928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn.
Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.
At the conclusion of the sentencing hearing in this case, the trial court sentenced the
Defendant to an effective sentence of fifteen months incarceration as a Range I, standard
offender. The trial court then set out to determine the manner of service. The trial court first
stated that, in determining the Defendant’s sentence, it was considering the evidence adduced
at the trial and the sentencing hearing in this case, the presentence report, the principles of
sentencing and arguments as to sentencing alternatives, the nature and characteristics of the
Defendant’s criminal conduct, the evidence of applicable statutory mitigating and enhancing
factors, and the defendant’s potential for rehabilitation. After considering enhancement and
mitigating factors, the trial court set the length of the Defendant’s sentence at one year and
three months.
The trial court then considered the statutory factors for determining whether to order
a sentence of confinement. The trial court found that the Defendant did not have a long history
of criminal conduct based upon his one prior Federal conviction. In considering whether
confinement was necessary to avoid depreciating the seriousness of the offense, the trial court
stated that this factor “is true in all criminal cases” and that “like all criminal cases it is true to
some extent in this case.” The trial court noted that the Defendant’s conviction was a class E
felony, which is the least serious felony under Tennessee law. The trial court also found that
measures less restrictive than confinement had recently been applied unsuccessfully to the
Defendant based upon the fact that the Defendant had been discharged from his Federal
probation on July 30, 2008, and within six months of this discharge had committed another
offense. The trial court placed “great weight” on the large amount of restitution involved in
the Defendant’s Federal conviction. Based upon these findings, the trial court denied the
Defendant an alternative sentence.
The Defendant is responsible for showing that the trial court improperly sentenced him,
and we conclude that he did not meet this burden. The Defendant had just finished a sentence
of supervised release for a bank fraud conviction, a crime, like the present case, which involves
dishonesty. The Federal indictment for that conviction indicates the offense involved multiple
acts and an extended series of misrepresentations by the Defendant. Upon discharge from his
Federal probation, the Defendant discontinued making the remaining payments on the
$219,713.13 restitution owed for his criminal conduct. Additionally, shortly after his discharge
from Federal probation for the bank fraud conviction, the Defendant secured employment with
the Kielbasas. The Defendant then used this position to obtain business checks and write
unauthorized checks using Mrs. Kielbasas name. This supports the trial court’s denial of an
alternative sentence based upon the fact that measures less restrictive than confinement have
recently been unsuccessfully applied to the Defendant. Even if we ignore the Defendant’s
failure to complete restitution and deem the Defendant to have “successfully completed” his
Federal probation, it is difficult to say that the Defendant was successfully rehabilitated by his
years on Federal probation because he began committing crimes again shortly after the
expiration of the Federal sentence.
Based upon the foregoing, we conclude that the trial court appropriately followed
sentencing guidelines, made findings of fact adequately supported by the record, and gave due
consideration to Sentencing Act principles and factors. We, therefore, affirm the judgments
of the trial court.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.
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ROBERT W. WEDEMEYER, JUDGE