State of Tennessee v. Robin Elizabeth Willis ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 28, 2012
STATE OF TENNESSEE v. ROBIN ELIZABETH WILLIS
Appeal from the Criminal Court for Hawkins County
No. 10-CR-445 John F. Dugger, Jr., Judge
No. E2011-01323-CCA-R3-CD - Filed September 26, 2012
The Defendant-Appellant, Robin Elizabeth Willis, was convicted by a Hawkins County jury
of theft of property valued at $1000 or more but less than $10,000, a Class D felony. The
trial court sentenced her as a Range I, standard offender and ordered her to serve three years
in the Tennessee Department of Correction. On appeal, Willis argues: (1) the evidence was
insufficient to support her conviction; and (2) her sentence was excessive. Upon review, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which, T HOMAS T.
W OODALL, J., joined. J OSEPH M. T IPTON, P.J., concurring in part and dissenting in part.
Douglas T. Jenkins, Rogersville, Tennessee, for the Defendant-Appellant, Robin Elizabeth
Willis.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; and Kevin D. Keeton, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Trial. Cliff Evans, a detective with the Hawkins County Sheriff’s Office, testified
that in May 2010, he investigated a possible theft from Amanda Duncan, the seventy-six-
year-old victim in this case. He said Edith Williams, the victim’s daughter, initially
contacted the sheriff’s department because she was concerned that her mother was “being
conned out of some money.” Detective Evans spoke with the victim, confirmed the theft, and
filed an offense report. He also investigated the victim’s bank records, including nine checks
totaling $1620 that the victim wrote to her niece, Robin Willis. The victim wrote these
checks between the dates of May 14, 2010, and May 21, 2010.
Detective Evans was able to contact Willis on July 13, 2010, and he asked her to talk
to him at the sheriff’s department. He said that after she waived her Miranda rights, Willis
provided a written statement to him in which she confessed to lying to her aunt, the victim,
about being diagnosed with Leukemia and needing $180 per day to cover the costs of her
cancer treatments. Willis further confessed in the written statement that she used the money
she obtained from the victim to pay for her treatments at a pain clinic and for her Oxycodone
prescriptions. After obtaining this confession, Detective Evans placed Willis under arrest.
Detective Evans said Willis admitted using some of the money she obtained from the
victim to buy a new set of tires and to repair her car. He also said that although Willis told
him she would repay the victim, this debt was never repaid.
Edith Williams, the victim’s daughter, testified that the victim’s bank informed her
that several checks had been written by the victim to Willis because Williams’s name was
on the account. She explained that she was listed on the account in case her mother became
ill again and was unable to pay her bills for herself. She also said she helped take her mother
to appointments with the doctor and to get groceries. Williams asked that the bank not cash
any of the checks written by her mother to Willis because she did not think that her mother
had been writing that many checks. Williams then spoke to her mother, the victim, who
confirmed that she had written several checks to Willis, her niece. When Williams
approached Willis about the checks, Willis told her that she had been diagnosed with cancer
and that the victim had helped her pay for her cancer treatments. Willis promised to repay
the money from $2500 that she was to receive from a cousin in Pennsylvania. Willis also
promised to pick up the victim at 10:00 a.m. the next day and to take her to get the money
to repay her. At the time, Williams said she did not believe that Willis was telling the truth
about her cancer diagnosis and treatments because she knew that Willis had health insurance
coverage. Williams said that Willis was able to convince the victim that she had cancer
because three of Willis’s sisters had been diagnosed with cancer, two of them had recently
died from cancer, and the third sister was dying of cancer at the time that Willis lied to the
victim about her own cancer diagnosis. When Willis failed to appear and failed to repay the
money, the victim and Williams tried unsuccessfully to contact Willis. Willis eventually
contacted Williams and confessed that she did not have the money to repay the victim and
that she did not have cancer but did have a drug problem. Williams then contacted the
sheriff’s department.
On cross-examination, Williams acknowledged that Willis had borrowed small
amounts of money from the victim in the past and had either repaid this money or had done
work for the victim in exchange for the money. She also acknowledged that the victim had
loaned money to other family members, although these family members usually repaid the
victim within a week or two.
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The victim testified that in May 2010, Willis told her that she had breast cancer and
that her insurance company would not pay for her cancer treatments. When Willis talked to
the victim about her cancer diagnosis, she cried and told her that she did not want to die. As
a result of this conversation, the victim wrote Willis a check on May 14, 2010, for $180.
When she received this first check, Willis told the victim that she was going to repay her out
of $2500 that she was to receive from a cousin in Pennsylvania. The victim said she wrote
nine checks, totaling $1620, to Willis. She also said she never would have written Willis the
checks if she had known that Willis did not have cancer. The victim stated that Willis never
repaid her for these nine checks.
On cross-examination, the victim acknowledged that Willis had borrowed money from
her on prior occasions but asserted that Willis had always repaid her or worked for her in
exchange for the money. The victim also said that Willis had offered to make payments on
the amount owed in this case and that Williams had agreed to help Willis get treatment for
her drug problem. However, the victim said that after this offer to settle the debt was made,
Willis asked her for an additional $160, ostensibly for her nephew because his mother had
just passed away. The victim admitted that she had allowed other family members to borrow
money but that they had always repaid her.
On re-direct examination, the victim reiterated that she would not have loaned Willis
the money if she had known Willis had not been diagnosed with cancer. She also said she
felt as if Willis had tricked her into giving Willis the money.
Willis, the Defendant-Appellant, testified and admitted she lied to the victim about
having cancer. Willis said she had borrowed money from the victim in the past and had
always repaid her. She also stated that at the time the victim gave her the checks involved
in this case, she told the victim that she would repay her when she had the money.
On cross-examination, Willis admitted that she lied to the victim about having cancer
and about needing money for her cancer treatments. She also admitted that she told the
victim she did not want to die and asked for money for her fabricated cancer treatments as
often as twice in the same day. Willis acknowledged that at the time she lied to the victim
about her cancer diagnosis, two of her sisters had died from cancer and a third sister had been
diagnosed with cancer. Willis further admitted that she lied to the victim about repaying her
from money she claimed she was to receive from a cousin in Pennsylvania. Moreover, Willis
acknowledged that she used the money the victim gave her to pay for her treatments at a pain
clinic and to pay for some of her Oxycodone prescriptions. She further acknowledged that
she asked the victim for $180 nine different times in a single week. Although Willis
admitted that she had taken advantage of the victim, she adamantly denied stealing the
$1620, claiming that the victim had loaned her money in the past. After deliberating, the jury
found Willis guilty of theft of property valued at $1000 or more but less than $10,000.
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Sentencing Hearing. No witnesses testified at the April 1, 2011 sentencing hearing,
although a letter from Willis’s mother was entered as an exhibit. In it, Willis’s eighty-three-
year-old mother stated she was completely dependent on Willis, who did all of her cooking,
cleaning, and laundry and drove her to her weekly doctor appointments and to the hospital.
In addition, a letter from Bill Rymer, a psychological examiner and school psychologist, was
admitted as an exhibit. In this letter, Rymer said he reviewed Willis’s academic records from
1971 to 1979, noted that Willis stopped attending school after her second year in the seventh
grade, and estimated Willis’s “intellectual functioning to range between 75 (Borderline
Intelligence) and 85 (Low Average).”
The State argued for several enhancement factors and asserted that alternative
sentencing was inappropriate in this case. The defense contended that if Willis had been able
to obtain the money to repay this debt, she would not have been charged with this offense.
Defense counsel asserted that Willis’s conviction for writing a bad check occurred in April
2010 and the offense in this case occurred approximately one month later, which showed that
Willis needed money badly during this period. He also argued that Willis was the sole
caregiver for her elderly mother and that Willis’s sister had been helping them financially
before she passed away shortly before Willis committed the offense in this case. In addition,
defense counsel noted that Rymer, a psychologist, opined that Willis had a low intelligence
quotient. Moreover, defense counsel said he doubted that Willis “saw the true wrongfulness
of her conduct” at the time she committed this offense. He also said he had to give Willis
a ride to court because she could not find someone to drive her. Defense counsel argued that
Willis committed the offense “for money” and for “tires for her car[,]” which was the only
car that she and her mother possessed, and that there was “no real [sic] good reason to send
her to prison.” He also argued for the application of the following mitigating factors:
Willis’s criminal conduct neither caused nor threatened serious bodily injury; substantial
grounds existed tending to excuse or justify Willis’s criminal conduct, though failing to
establish a defense; Willis was motivated by a desire to provide necessities for her family;
and Willis was suffering from a mental or physical condition that significantly reduced her
culpability for the offense. See T.C.A. § 40-35-113(1), (3), (7), (8) (2006). Defense counsel
emphasized that Willis’s record included only one prior misdemeanor conviction for writing
a bad check.
Willis then made the following statement to the trial court:
I know it was wrong and stupid what I done [sic]. . . . I lost two sisters in
June, a week apart. [One of these sisters] helped us financially. I know there
was no excuse for the lie I told my aunt.
Aunt Mandy, I do love you and I’m sorry.
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And I’m going to try to pay this money back. I just needed to keep my
car going so I could take care of my mom, take her back and forth to the
doctor. She’s had two strokes.
Following this statement, the trial court and Willis had the following interaction:
Trial Court: You don’t think anybody would’ve helped you to get
your mom around to the doctor [or] to get the car and
keep it running if you’d been truthful about it? You
thought it was better to come up with this lie about you[r]
having cancer and dying and [having] to have treatments
and all this business that you came up with, this pretty
intense and in[-]depth lie that carried on for a period of
time. You had time to reflect and think about your
conduct but you kept doing it. It wasn’t just a one-time
deal; you had a pretty good thing going there. You kept
it rolling; didn’t you?
Willis: Yes, sir.
Willis testified that although she tested positive for Oxycodone, she had a prescription for
this medication. No other proof of this prescription was admitted at the sentencing hearing.
The trial court determined that only one mitigating factor applied, namely that Willis’s
conduct neither caused nor threatened serious bodily injury. Id. § 40-35-113(1). It also
applied the enhancement factor that Willis had “a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range[.]” Id.
§ 40-35-114(1) (2006). The court acknowledged that Willis’s criminal history was “not a
severe history” and said it did not give it “great weight . . . because [she] just had the one
[conviction] in [her] lifetime for a worthless check.” The court also applied the enhancement
factor that the “victim of the offense was particularly vulnerable because of age or physical
or mental disability[.]” Id. § 40-35-114(4) (2006). The court told Willis that she had “preyed
on [the victim’s] age and [the fact] that she trusted [her][.]” In addition, the court noted that
Willis was on probation for her conviction for writing a bad check at the time she committed
the offense in this case. See id. § 40-35-114(13) (2006). Finally, the court found that Willis
had “abused a position of . . . private trust[.]” Id. § 40-35-114(14) (2006).
The trial court determined that confinement was “particularly suited to provide an
effective deterrence to others likely to commit similar offenses[.]” Id. § 40-35-103(1)(B)
(2006). At the conclusion of the hearing, the trial court sentenced Willis as a Range I,
standard offender, ordered her to serve three years in the Tennessee Department of
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Correction, and imposed restitution in the amount of $1620 and a fine in the amount of
$2000 plus court costs. Willis filed a timely motion for new trial, which was denied. She
then filed a timely notice of appeal.
ANALYSIS
I. Sufficiency of the Evidence. Willis argues that the evidence was insufficient to
support her conviction. In response, the State contends that the evidence presented at trial
was sufficient to affirm the conviction because it established that Willis lied to the victim
about needing money for her cancer treatments and that Willis took $1620 from the victim
during a single week. We agree with the State.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is
direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,
and must reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). When reviewing issues regarding the sufficiency of the evidence, this court shall not
“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997). This court has often stated that “[a] guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also “removes the
presumption of innocence and replaces it with a presumption of guilt, and the defendant has
the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.
(citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
Tennessee Code Annotated section 39-14-103 (2006) states that “[a] person commits
theft of property if, with intent to deprive the owner of property, the person knowingly
obtains or exercises control over the property without the owner’s effective consent.” Theft
of property valued at $1000 or more but less than $10,000 is a Class D felony. T.C.A. §
39-14-105(3) (2006).
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In order to obtain a conviction in this case, the jury was required to find beyond a
reasonable doubt that Willis, with the intent to deprive the owner of the property, knowingly
obtained or exercised control over the $1620 without the owner’s effective consent. See id.
§ 39-14-103. Viewed in the light most favorable to the State, the evidence at trial showed
that Willis admitted that she lied to her aunt, the victim, about having cancer and about
needing money for her cancer treatments in order to obtain the $1620. Specifically, the proof
showed that Willis told the victim that she needed nine different payments of $180 over the
course of a single week to cover the costs of her cancer treatments because her health
insurance would not pay for them. To make this lie convincing, Willis shed tears in front of
the victim and told her that she did not want to die. At the time of the offense, the victim was
particularly vulnerable to this hoax because of her advanced age and because Willis had two
sisters who had recently died from cancer and a third sister who was dying of cancer at the
time Willis lied to her about her own cancer diagnosis. At trial, Willis admitted that she used
the money she obtained from the victim to pay for her treatments at a pain clinic and for her
Oxycodone prescriptions. Willis also admitted that she lied to the victim about repaying her
from the $2500 she claimed she was to receive from a cousin. The victim testified that if she
had known that Willis did not have cancer, she never would have written her the checks. The
victim further testified that she believed that Willis would repay her at the time she wrote the
checks, despite Willis’s failure to do so. Although Willis claimed that the $1620 was a loan
she would repay, it was the jury’s prerogative to reject this defense. We agree with the State
that the jury could have reasonably inferred from the evidence presented at trial that Willis
never intended to repay the victim. Accordingly, we conclude that the evidence was
sufficient to support Willis’s conviction.
II. Sentencing. Willis argues that the trial court erred in enhancing her sentence from
two years, the minimum in the sentencing range, to three years. She also argues that the trial
court erred in denying her an alternative sentence. In response, the State contends that the
record fully supports Willis’s sentence.
This case is governed by the 2005 amended sentencing act. See id. § 40-35-210
(2006), Compiler’s Notes. Under the amended sentencing act, “the trial court ‘shall consider,
but is not bound by’ an ‘advisory sentencing guideline’ that suggests an adjustment to the
defendant’s sentence upon the presence or absence of mitigating and enhancement factors.”
State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008) (quoting T.C.A. § 40-35-210(c) (2006)).
Moreover, under the new law “[a]n appellate court is . . . bound by a trial court’s decision as
to the length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.
On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
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§ 40-35-401(d) (2006). This means that if the trial court followed the statutory sentencing
procedure, made adequate findings of fact that are supported by the record, and gave due
consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, this court “may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). However, in a case where “the trial court applies inappropriate mitigating and/or
enhancement factors or otherwise fails to follow the Sentencing Act, the presumption of
correctness fails.” Carter, 254 S.W.3d at 345 (citing State v. Shelton, 854 S.W.2d 116, 123
(Tenn. Crim. App. 1992)). Because the trial court properly considered the purposes and
principles of the sentencing act and properly applied mitigating and enhancement factors in
this case, our review is de novo with a presumption of correctness. See id. at 345-46; State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A trial court, when sentencing a defendant, must consider the following:
(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 §§ 40-35-113 and 40-35-114;
(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 wishes to make in the defendant’s own behalf
about sentencing.
T.C.A. § 40-35-210(b); see Carter, 254 S.W.3d at 343; State v. Hayes, 337 S.W.3d 235, 264
(Tenn. Crim. App. 2010). In addition, “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5) (2006). On appeal,
the defendant has the burden of showing the impropriety of the sentence. Id. § 40-35-401(d),
Sentencing Comm’n Comments.
Sentence Length. Willis initially argues that her sentence should be reduced from
three years to two years. Specifically, she contends that the trial court erred in applying the
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enhancement factors that the victim was particularly vulnerable because of age or physical
or mental disability and that she abused a position of private trust. Id. § 40-35-114(4), (14).
She further contends that the trial court erred in using the need to deter individuals from
taking advantage of the elderly as an enhancement factor. In addition, Willis argues that the
trial court erred in failing to apply all of the mitigating factors requested by the defense.
In response, the State concedes that the trial court improperly applied the enhancement
factor regarding the vulnerability of the victim but contends that the trial court arrived at the
proper sentence given the other enhancement factors applicable in this case. The State
further argues that under the amended sentencing act, this court does not have the authority
to alter a sentence based on the trial court’s failure to adjust a sentence in light of applicable,
but merely advisory, enhancement or mitigating factors. See Carter, 254 S.W.3d at 346. We
conclude that Willis’s three-year sentence is proper.
First, Willis asserts that the trial court erred in applying enhancement factor (4), that
the victim was particularly vulnerable because of age or physical or mental disability,
because she claims that the victim “was an old pro [sic] at loaning people money” and
because the victim “was in good shape[,]” “participated in the trial without faltering[,]” and
“could move, hear[,] and speak without assistance.” The State concedes that the trial court
improperly applied this factor. However, regardless of this concession, we conclude that this
enhancement factor was properly applied by the trial court.
Regarding this factor, the Tennessee Supreme Court stated, “[T]he vulnerability
enhancement relates more to the natural physical and mental limitations of the victim than
merely to the victim’s age.” State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993), superseded
on other grounds by statute as stated in State v. Jackson, 60 S.W.3d 738, 741-42 (Tenn.
2001). Moreover, this court held:
[A] victim is particularly vulnerable within the meaning of this enhancement
factor when the victim lacks the ability to resist the commission of the crime
due to age, a physical condition, or a mental condition. A victim is also
particularly vulnerable when his or her ability to summon[] assistance is
impaired; or the victim does not have the capacity to testify against the
perpetrator of the crime. However, a finding that one of these conditions
exists does not, as a matter of law, mean that this factor is automatically
considered. The appellant must have taken advantage of one or more of these
conditions during the commission of the crime.
State v. Butler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994) (internal footnotes omitted).
The State bears the burden of establishing the victim’s vulnerability; however, evidence of
this factor “need not be extensive.” State v. Poole, 945 S.W.2d 93, 97 (Tenn. 1997). This
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enhancement factor should be applied by the trial court if the evidence demonstrates that the
victim’s vulnerability had some bearing on the victim’s inability to resist the crime, to
summon help, or to testify against the defendant. State v. Lewis, 44 S.W.3d 501, 505 (Tenn.
2001) (citing Poole, 945 S.W.2d at 96; State v. Kissinger, 922 S.W.2d 482, 487 (Tenn.
1996); Adams, 864 S.W.2d at 35).
At the sentencing hearing, the trial court made the following findings regarding this
factor:
[The victim] grew up in a different time when people told the truth; people
back in that day, your word was your bond. She grew up in that time. She had
a relative . . . coming to her in need [and claiming that she was] supposedly
dying of cancer and need[ing] these treatments, and she believed you. She
believed you because – now, in this day and time, people a lot younger, they
are not going to believe – maybe believe that. They’re going to check it out,
but I think you preyed on that, her age and that she trusted you, and you played
on that and you used that.
In this case, evidence was presented that the victim’s daughter, Williams, was listed
on the victim’s bank account so that Williams could help with her elderly mother’s affairs.
Williams testified that she stopped payment on the nine checks the victim had written to
Willis because she did not believe that the victim had written the checks. Although Williams
immediately questioned Willis’s explanation that she had cancer and that her insurance did
not pay for her cancer treatments, the victim believed Willis without reservation. Although
the victim did, in fact, testify, the evidence presented at trial indicated that she had some
mental limitations related to her age that prevented her from realizing the hoax and resisting
Willis’s theft. Accordingly, we conclude that the trial court properly applied enhancement
factor (4).
Willis also argues that the proof did not support the application of enhancement factor
(14), that she abused a position of private or public trust in committing the offense against
the victim in this case. The Tennessee Supreme Court provided the following guidance
regarding this factor:
[A]pplication of [this] factor requires a finding, first, that defendant occupied
a position of trust, either public or private. The position of parent, step-parent,
babysitter, teacher, coach are but a few obvious examples. The determination
of the existence of a position of trust does not depend on the length or
formality of the relationship, but upon the nature of the relationship. Thus, the
court should look to see whether the offender formally or informally stood in
a relationship to the victim that promoted confidence, reliability, or faith.
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State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999) (quoting Kissinger, 922 S.W.2d at 488).
Here, the trial court made the following findings regarding its application of
enhancement factor (14):
I give great weight to this enhancement factor, that you abused a position of
private trust. She’s your relative, and you took advantage of that by coming
up with this elaborate lie that you carried on for a period of time from May 14 th
[sic] to May 21st [sic], . . . several occasions that you went back to get money
and come up with this, I need treatments, I need treatments, I need treatments.
And you used and violated and abused your position of private trust that you
had with her. She trusted you. I give great weight to that factor.
The evidence presented at trial showed that Willis was the victim’s niece, lived a short
distance away from the victim, and frequently interacted with the victim. The proof also
showed that Willis lied to the victim about her cancer diagnosis and her cancer treatments
in order to obtain nine different checks totaling $1620 from the victim within a single week.
The trial court concluded that Willis was in a position of private trust and that she abused this
trust. We conclude that the record supports the trial court’s application of this factor.
Willis further argues that the trial court erred in using the need to deter others from
taking advantage of the elderly as an enhancement factor. However, the record shows that
the trial court did not treat the need for deterrence in this case as an enhancement factor.
Instead, the court merely applied the sentencing principle that “[p]unishment shall be
imposed to prevent crime and promote respect for the law by . . . [p]roviding an effective
general deterrent to those likely to violate the criminal laws of this state[.]” T.C.A. § 40-35-
102(3)(A). Accordingly, Willis is not entitled to relief on this issue.
Finally, Willis argues that the trial court erred in failing to apply certain mitigating
factors. First, Willis argues that substantial grounds excused or justified her criminal conduct
and that these grounds were that she believed the money the victim gave her was a loan that
she would repay. See T.C.A. § 40-35-113(3). Next, Willis argues that she “was motivated,
at least in part, by [her] desire to have necessities to provide for her elderly and ailing
mother.” See id. § 40-35-113(7). Finally, citing Rymer’s letter in which he opined that she
had borderline intelligence, Willis argues that she was unable to fully appreciate the
wrongfulness of her actions because of her mental infirmity. See id. § 40-35-113(8). We
note that the defendant, in showing the impropriety of her sentence, has the burden of
proving applicable mitigating factors on appeal. See id. § 40-35-401(d), Sentencing Comm’n
Comments.
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Upon review, we conclude that the trial court did not err in declining to apply
mitigating factor (3), that “[s]ubstantial grounds exist[ed] tending to excuse or justify
[Willis’s] criminal conduct, though failing to establish a defense.” Id. § 40-35-113(3).
Willis argues on appeal that her criminal conduct should be mitigated by the fact that she
believed the money the victim gave her was a loan that she would repay. At trial, Willis
admitted that she used the money she obtained from the victim to pay for her treatments at
a pain clinic and for her Oxycodone prescriptions. She also admitted that she lied about her
cancer diagnosis and cancer treatments. Although Willis initially promised Williams, the
victim’s daughter, that she would repay the victim from $2500 that she was to receive from
a cousin in Pennsylvania, Willis lied to the victim about the existence of the $2500. After
Williams contacted Willis several times about her promise to repay the victim, Willis told
Williams that she did not have the money to repay the victim and that she did not have cancer
but did have a drug problem. At that point, Willis offered to make payments on the money
she had obtained from the victim, and Williams agreed to help Willis get treatment for her
drug addiction. However, a short time after Willis made this offer of repayment, Willis asked
the victim for an additional $160, ostensibly for her nephew because his mother had just
passed away. The victim acknowledged that she had loaned money to Willis in the past but
asserted that Willis had always repaid her or worked for her in exchange for the money. As
of the date of the sentencing hearing, Willis had not repaid any of the money she obtained
from the victim. Given Willis’s repeated dishonesty, her admissions that she used the money
for Oxycodone and pain treatments, and her failure to repay the money, we conclude the trial
court properly determined that mitigating factor (3) was not applicable.
We also conclude that the trial court did not err in declining to apply mitigating factor
(7), that “[t]he defendant was motivated by a desire to provide necessities for the defendant’s
family or the defendant’s self.” Id. § 40-35-113(7). Although Willis told Detective Evans
that she used some of the money she obtained from the victim to buy a new set of tires and
to repair her car, she admitted at trial that she used this money to pay for her treatments at a
pain clinic and for her Oxycodone prescriptions. We note that Willis’s eighty-three-year-old
mother submitted a letter, admitted as an exhibit at sentencing, wherein she stated that she
was completely dependent on Willis, who did all of her cooking, cleaning, and laundry and
drove her to her weekly doctor appointments and to the hospital. Significantly, this letter did
not mention whether Willis used the money from the victim to repair her car for the family’s
benefit or to provide for the family’s necessities. Willis claimed during her statement of
allocution that she needed the money from the victim to keep her car running in order to care
for her mother and that she had recently lost a sister who had helped her and her mother
financially. Other than Willis’s claims to this effect, there was no other proof indicating that
Willis committed the theft against the victim because she was “motivated by a desire to
provide necessities” for her elderly and ailing mother. Instead, the bulk of the evidence,
which included Willis’s admissions as well as testimony from the victim and Williams,
established that Willis was motivated by a desire to obtain Oxycodone and pain treatments
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because of her drug addiction. Consequently, we conclude that the trial court did not err in
declining to apply mitigating factor (7).
Finally, we conclude that the trial court did not err in failing to apply mitigating factor
(8), that “[t]he defendant was suffering from a mental or physical condition that significantly
reduced the defendant’s culpability for the offense[.]” Id. § 40-35-113(8). Citing Rymer’s
letter in which he opined that Willis had borderline intelligence, Willis argues that she was
unable to fully appreciate the wrongfulness of her actions because of her mental infirmity.
This court has stated that “while Tennessee Code Annotated section 40-35-113(8) allows a
court to consider any mental condition that significantly reduced the Appellant’s culpability,
the Appellant must sufficiently establish not only the presence of a defect, but also a causal
link between his ailment and the offense charged.” State v. Robert James Yoreck, III, No.
M2004-01289-CCA-RM-CD, 2003 WL 23613823, at *4 (Tenn. Crim. App. June 29, 2004)).
Although Willis argues in favor of this mitigating factor, she failed to offer any proof at
sentencing that created a causal connection between her mental condition and the theft
offense. In fact, Willis failed to present any expert medical testimony regarding her mental
condition at the sentencing hearing, choosing instead to rely on the letter from Rymer, a
school psychologist, who reviewed her school records and opined that her “intellectual
functioning to range between 75 (Borderline Intelligence) and 85 (Low Average)” and on
general statements by defense counsel that he doubted Willis “saw the true wrongfulness of
her conduct” during the commission of the offense. Given that Willis presented no evidence
showing how her mental condition was causally linked to the offense of theft, we conclude
that the trial court properly determined that mitigating factor (8) did not apply. Accordingly,
the trial court did not err in failing to apply the aforementioned mitigating factors. Moreover,
we conclude that Willis failed to provide sufficient evidence supporting the application of
the “catch-all” mitigating factor in Tennessee Code Annotated section 40-35-113(13).
As a Range I, standard offender, Willis was subject to a sentencing range of two to
four years for the Class D felony. See id. § 40-35-112(a)(4) (2006). After applying four
enhancement factors and one mitigating factor, the trial court sentenced her to three years in
the Tennessee Department of Correction. Upon review, we conclude that the trial court’s
imposition of a three-year sentence in this case was proper.
Alternative Sentence. Willis also argues that the trial court erred in denying her an
alternative sentence. Specifically, she argues that she should have been given a sentence of
full probation or a community corrections sentence. In response, the State argues that Willis
failed to show the impropriety of her sentence and failed to request a community corrections
sentence at the sentencing hearing. We agree that the denial of alternative sentencing was
proper.
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Initially, we note that Willis’s appellate brief contains no authority to support her
claim that she is entitled to an alternative sentence. Consequently, we conclude that Willis
has waived this issue for failing to make an argument with supporting authority. “Issues
which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b). Moreover,
a brief shall contain “[a]n argument . . . setting forth the contentions of the appellant with
respect to the issues presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relied on.”). Tenn. R. App. P. 27(a)(7). Failure to comply with
this basic rule will ordinarily constitute a waiver of the issue. State v. Hammons, 737 S.W.2d
549, 552 (Tenn. Crim. App. 1987). Waiver notwithstanding, we conclude that Willis is not
entitled to an alternative sentence in this case.
Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated
section 40-35-102(6)(A) (2006) states that a defendant who does not require confinement
under subsection (5) 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[.]” However, a trial court
“shall consider, but is not bound by, the advisory sentencing guideline” in section 40-35-
102(6)(A). T.C.A. § 40-35-102(6)(D) (2006). A trial court should consider the following
when determining whether there is “evidence to the contrary” indicating that an individual
should not receive alternative sentencing:
(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[.]
Id. § 40-35-103(1)(A)-(C); see Ashby, 823 S.W.2d at 169.
We note that the trial court’s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation are
different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996). Where a defendant is considered a favorable candidate for
alternative sentencing, the State has the burden of presenting evidence to the contrary. State
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v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, the defendant has the burden of
establishing suitability for full probation, even if the defendant is considered a favorable
candidate for alternative sentencing. Id. (citing T.C.A. § 40-35-303(b)).
A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. T.C.A. § 40-35-303(a) (2006). The trial court shall
automatically consider probation as a sentencing alternative for eligible defendants. Id. § 40-
35-303(b) (2006). However, “the defendant is not automatically entitled to probation as a
matter of law.” Id. § 40-35-303(b), Sentencing Comm’n Comments. Rather, the defendant
must demonstrate that probation would serve the ends of justice and the best interests of both
the public and the defendant. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002)
(citations omitted).
When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant’s criminal record, the defendant’s background
and social history, the defendant’s present condition, including physical and mental
condition, the deterrent effect on the defendant, and the best interests of the defendant and
the public. State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) (citing State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). In addition, the principles of sentencing require
the sentence to be “no greater than that deserved for the offense committed” and “the least
severe measure necessary to achieve the purposes for which the sentence is imposed.”
T.C.A. § 40-35-103(2), (4) (2006). In addition, “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the sentence
alternative or length of a term to be imposed[,]” and “[t]he length of a term of probation may
reflect the length of a treatment or rehabilitation program in which participation is a
condition of the sentence[.]” Id. § 40-35-103(5). Moreover, our supreme court has held that
truthfulness is a factor which the court may consider in deciding whether to grant or deny
probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983) (citing State v. Poe, 614
S.W.2d 403, 404 (Tenn. Crim. App. 1981)).
Willis argues that the trial court erred in declining to grant her a community
corrections sentence. The intent of the Community Corrections Act was to “[e]stablish a
policy within the state to punish selected, nonviolent felony offenders in front-end
community based alternatives to incarceration, thereby reserving secure confinement
facilities for violent felony offenders.” Id. § 40-36-103(1) (2006). Eligible offenders under
the Community Corrections Act include:
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(A) Persons who, without this option, would be incarcerated in a correctional
institution;
(B) Persons who are convicted of property-related, or drug-or alcohol-related
felony offenses or other felony offenses not involving crimes against the
person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
(E) Persons who do not demonstrate a present or past pattern of behavior
indicating violence;
(F) Persons who do not demonstrate a pattern of committing violent offenses;
and
(2) Persons who are sentenced to incarceration or are on escape at the time of
consideration will not be eligible for punishment in the community.
Id. § 40-36-106(a)(1)(A)-(F), (2) (2006). Simply because an offender meets the minimum
requirements under the Community Corrections Act “does not mean that he is entitled to be
sentenced under the Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294
(Tenn. Crim. App. 1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987)). Instead, the Act’s criteria “shall be interpreted as minimum state standards, guiding
the determination of eligibility of offenders under this chapter.” T.C.A. § 40-36-106(d)
(2006).
Here, the record indicates that the trial court denied Willis alternative sentencing
based on its finding that confinement was “particularly suited to provide an effective
deterrence to others likely to commit similar offenses[.]” T.C.A. § 40-35-103(1)(B).
However, the record shows that no proof was presented at the sentencing hearing regarding
the need to deter others from committing similar offenses pursuant to section 40-35-
103(1)(B). See State v. Nunley, 22 S.W.3d 282, 286 (Tenn. Crim. App. 1999) (holding that
in order to use deterrence as a justification for confinement, evidence must be presented
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indicating some special need for deterrence in that jurisdiction). Moreover, we conclude that
the circumstances of the offense were not so “violent, horrifying, shocking, reprehensible,
[or] offensive” as to require a denial of alternative sentencing based on the seriousness of the
offense pursuant to section 40-35-103(1)(B). State v. Bottoms, 87 S.W.3d 95, 103 (Tenn.
Crim. App. 2001) (internal quotations and citations omitted); State v. Hartley, 818 S.W.2d
370, 374-75 (Tenn. Crim. App. 1991); State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981).
Furthermore, we acknowledge that Willis did not have “a long history of criminal conduct”
pursuant to section 40-35-103(1)(A). Therefore, these factors do not support a denial of
alternative sentencing in this case.
However, we conclude that “[m]easures less restrictive than confinement [had]
frequently or recently been applied unsuccessfully” to Willis pursuant to code section 40-35-
103(1)(C). The undisputed evidence at the sentencing hearing was that Willis was on
probation for a conviction for writing a bad check at the time she committed the offense in
this case. We conclude that the applicability of code section 40-35-103(1)(C), along with
Willis’s calculated dishonesty to her elderly aunt regarding this hoax, provided a sufficient
basis on which to deny all forms of alternative sentencing.
CONCLUSION
Willis has failed to establish the insufficiency of the evidence and the impropriety of
her sentence. We affirm the trial court’s judgment.
______________________________
CAMILLE R. McMULLEN, JUDGE
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