State v. Sara Wisdom ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
October 2, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9708-CC-00296
Appellee, )
) HENRY COUNTY
VS. )
) HON. JULIAN P. GUINN,
SARA LEIGHANE WISDOM, ) JUDGE
)
Appellant. ) (Aggravated Burglary and Theft
) (over $1,000))
FOR THE APPELLANT: FOR THE APPELLEE:
VICKI H. HOOVER JOHN KNOX WALKUP
123 N. Poplar St., Suite A Attorney General & Reporter
Paris, TN 39242
MARVIN E. CLEMENTS
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
ROBERT “GUS” RADFORD
District Attorney General
TODD A. ROSE
Asst. District Attorney General
P.O. Box 686
Huntingdon, TN 38344
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
Following a jury trial in March 1997, the defendant was convicted of one
count of aggravated burglary, which is a Class C felony, and one count of theft of property
over one thousand dollars ($1,000), which is a Class D felony. The jury assessed a fine
of five thousand dollars ($5,000) for the burglary conviction and a fine of three thousand
dollars ($3,000) for the theft conviction. The trial court sentenced the defendant to three
years for the aggravated burglary conviction, one year in confinement and the balance
on Community Corrections. For the theft conviction, the defendant was sentenced to two
years, one year in continuous confinement and the balance on Community Corrections.
The sentences were ordered to run concurrently with one another.
On appeal, the defendant argues that the trial court erred in ordering her
to serve an excessive sentence; that the trial court erred in denying a sentence alternative
to confinement; that the trial court erred in allowing the district attorney to question her
about a past misdemeanor record she claims has been expunged; and that the trial court
erred in failing to grant her a judgment of acquittal. After a careful review of the record,
we affirm the defendant’s convictions and sentences.
Roy Futrell returned home from work on June 21, 1996, to discover that
someone had broken into his residence and stolen many of his personal belongings,
primarily his guns. Mr. Futrell called the Henry County Sheriff’s Department and William
Vandiver, an investigator with that department, came to his home where he gave
Vandiver an inventory of the items taken.
Steven Wisdom, the defendant’s husband at the time, and Glen Axley,
Steven Wisdom’s friend, discussed before the burglary how they needed extra money,
so they decided to break into the Futrell home. Steven Wisdom had dated Mr. Futrell’s
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stepdaughter and had previously been inside the home. The defendant had worked with
Mr. Futrell and had known his stepdaughter as well. Consequently, they knew that there
were guns inside the home and what hours Mr. Futrell worked.
As her husband and Axley went inside the home to get the belongings, the
defendant drove the car and parked it out of the sight of passersby. When the two had
gotten the property, the defendant pulled up to the residence to pick them up and then
drove to outside Paris, Tennessee. Mr. Wisdom then drove the car to their home in
Henry County.
The two men decided to pawn the guns. According to the testimony of one
of the pawn shop owners, the defendant and her husband came to his pawn shop in
Martin, Tennessee, and pawned two guns. The three split the money, but Mr. Wisdom
testified that he kept the defendant’s share of the money. They then went to Dover,
Tennessee, where Axley pawned another gun and split the proceeds with the defendant
and her husband. They then traveled to Clarksville, Tennessee, where they went out to
eat with the money, and the defendant and her husband each used some of the money
to get tattoos. The guns that were pawned in Martin and Dover were later recovered.
The defendant voluntarily spoke with the Benton County Sheriff’s
Department, confessed her role in the crimes, and implicated her codefendants in the
crimes. At trial, the defendant testified that she was forced by her husband to participate
in the crimes. She also testified that she was afraid of her husband and that he had been
violent with her in the past.
Before addressing the issues before us, we are compelled to address what
we consider an inadequate brief from defense counsel. The defendant’s one- and one-
half-page brief is almost identical to another brief filed in this Court by defense counsel.
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This probably explains why defense counsel was incorrect in her assertion in the case
sub judice that the sentencing of the defendant occurred immediately after the trial: that
was correct in the other case in which counsel filed a brief with this Court. In the instant
case, the record reflects the trial was held on March 24, 1997, and the sentencing hearing
on April 9, 1997, sixteen days later. Moreover, the defendant’s brief states that there are
four issues on appeal, but then lumps these four issues into two scant sections, without
any reference to the record, hardly any citations to authority, and an incorrect statement
regarding sentencing. Although we have held that a defendant’s failure to adequately
brief issues resulted in waiver of those issues, we will, in this case, address the issues
before us. However, we admonish defense counsel for the inadequate brief filed in this
Court.
Because the defendant’s first two issues relate to sentencing, we will
address those together. The defendant contends that her sentence is excessive and that
the trial court erred by not considering an alternative sentence such as probation. She
also claims that the trial court “refused to allow counsel to prepare for a sentencing
hearing, which the Trial Judge conducted immediately after the conclusion of the trial.”
When a defendant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. T.C.A. § 40-35-401(d). However, this
presumption is conditioned on an affirmative indication in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The defendant bears the burden of showing that the sentence was
improper. Id. In determining whether the defendant has met this burden, this Court must
consider (a) the evidence adduced at trial and the sentencing hearing; (b) the
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presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the
nature and characteristics of the offense; and (f) the defendant’s potential or lack of
potential for rehabilitation or treatment. T.C.A. §§ 40-35-103(5), 40-35-210(b).
The defendant insists that she should have received probation. However,
we note that although the trial court found the defendant to be entitled to the presumption
of alternative sentencing, she, not the State, has the burden of establishing suitability for
full probation. T.C.A. § 40-35-303(b). To meet this burden, the defendant must illustrate
how probation will “subserve the ends of justice and the best interest of both the public
and the defendant.” State v. Bingham, 910 S.W.2d 448, 456 (quoting State v. Dykes, 803
S.W.2d 250, 259 (Tenn. Crim. App. 1990)).
The trial court sentenced the defendant to the minimum sentence for both
the aggravated burglary conviction and the theft conviction. Although the trial court
recognized that the defendant was presumed to be a favorable candidate for alternative
sentencing, it concluded that split confinement would be in the best interest of not only
the public but also the defendant. The trial court based its decision to impose split
confinement on several factors, including the circumstances of the offense, the
defendant’s willingness to lie, and her failure to accept responsibility for her actions. The
trial court’s decision to impose split confinement was also based on its desire to provide
a deterrence and to avoid depreciating the seriousness of the crimes committed.
For a trial court to deny an alternative sentence based on the seriousness
of the offense, the circumstances of the offense “‘must be especially violent, horrifying,
shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’
and the nature of the offense must outweigh all factors favoring a sentence other than
confinement.” Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370,
374-75 (Tenn. Crim. App. 1991)). The trial court’s denial of an alternative sentence
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based on the seriousness of the offense under T.C.A. § 40-35-103(1)(B), can only be
upheld if the Hartley conditions are in the record. Here, the trial court reasoned that the
offense in this case was serious because guns were stolen. Although we agree that the
theft of guns is serious, the record does not indicate that the Hartley conditions are met
in this case.
The other factors relied upon by the trial court, however, fully support the
sentences imposed in this case. The trial court observed that the defendant “exhibit[ed]
an arrogant willingness to tell anything any way which seem[ed] to best benefit her at the
moment,” referring to the confusion regarding the defendant’s theft conviction in Benton
County, which the defendant contends had been expunged. As the district attorney and
the trial court noted, however, nothing in the record indicated that the conviction had
actually been expunged. The trial court relied even more heavily on the fact that the
defendant remained unable to take responsibility for her actions in committing the instant
crimes. This finding, which is supported by the record, has bearing on the rehabilitative
potential of the defendant. Moreover, under the circumstances of this case, we agree
with the trial court that the theft of guns is a serious offense, that confinement would
provide a deterrence, and that some period of confinement is necessary to avoid
depreciating the seriousness of the offenses committed by the defendant. Accordingly,
the defendant’s sentences are affirmed.
Next, the defendant argues that the trial court erred in allowing the district
attorney to question her about her prior criminal history. She argues that her past
misdemeanor record had been expunged so the district attorney should not have
questioned her during trial about that prior conviction. She further insists that the trial
court’s manner toward her was prejudicial and harsh.
The record indicates that approximately a month before the trial, the district
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attorney filed notice of his intent to use the Benton County theft conviction to impeach the
defendant should she testify. The record also indicates that defense counsel referred to
the Benton County theft conviction herself during her opening statement to the jury:
“[W]hile she [the defendant] was in jail, awaiting a hearing in Benton County, which you’ll
also hear testimony of that, she was later--her charge was dismissed and her record was
expunged in Benton County.” Furthermore, counsel refers to the defendant’s prior charge
in Benton County at several other times during her examination of witnesses. The
defendant “opened the door” regarding the theft conviction in Benton County, so she
cannot now complain that the State questioned her about that conviction. Moreover, the
record is devoid of evidence that the trial court treated her in a harsh or prejudicial
manner. The defendant’s arguments on this point lack merit.
Our last issue for review is whether the trial court erred by denying her
motion for a judgment of acquittal. A person commits aggravated burglary by entering
a habitation without the consent of the property owner, but with the intent of committing
a felony, theft, or assault. T.C.A. §§ 39-14-402(a)(1), 39-14-403(a). A person commits
theft of property if he or she knowingly obtains or exercises control over the property
without the owner’s effective consent, but with the intent to deprive the owner of property.
T.C.A. § 39-14-103.
The defendant argued at trial that she waited in the car and never entered
Mr. Futrell’s home. In the indictment, the defendant was charged as a codefendant.
Later, the district attorney filed notice for a jury instruction to be given for criminal
responsibility for conduct of another. Sufficient notice of criminal liability based upon the
conduct of another was satisfied. See State v. Barnes, 954 S.W.2d 760 (Tenn. Crim.
App. 1997).
Moreover, the evidence adduced at trial indicates that the defendant drove
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her codefendants to Mr. Futrell’s home and waited, out of sight, while they removed Mr.
Futrell’s possessions from his home without his permission. The defendant then drove
them from the scene, accompanied her two codefendants to at least one pawn shop, and
obtained a one-third share of the money received for the stolen goods, which she used
to treat herself to a dinner and a tattoo. This evidence, when viewed in the light most
favorable to the State, is sufficient to affirm the defendant’s convictions. See, e.g., State
v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874 S.W.2d 73, 78
(Tenn. Crim. App. 1993).
Accordingly, the defendant’s convictions and sentences are affirmed.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
THOMAS T. W OODALL, Judge
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