State v. Lesa Malone ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
APRIL 1998 SESSION
FILED
July 30, 1998
Cecil W. Crowson
§ Appellate Court Clerk
STATE OF TENNESSEE ,
APPELLEE
§
VS. C.C.A. No. 01C01-9706-CC-00234
§ MARSHALL COUNTY
HONORABLE CHARLES LEE
LESA MAE MALONE §
APPELLANT (SENTENCING)
FOR THE APPELLANT FOR THE APPELLEE
Robert H. Plum mer, Jr. John Knox Walkup
415 Bridge Street Attorney General and Reporter
P. O. Box 1361 425 Fifth A venue, N orth
Franklin, TN 37065-1361 Nashville, TN 37243
Karen M. Yacuzzo
Assistant Attorney General
425 Fifth A venue, N orth
Nashville, TN 37243
W. Michael McCown
District Attorney General
Marshall County Courthouse
Lewisburg, TN 37091
Weakley E . Barnard
Assistant District Attorney General
Marshall County Courthouse
Lewisburg, TN 37091
OPINION FILED: _______________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendant, Lesa Mae Malone, appeals as of right from the length and
manner of service of a sentence imposed by the Marshall County Circuit Court for
theft of over $ 60,000, a C lass B felon y. She rece ived a sente nce of ten (1 0) years in
the Department of Correction. The defendant complains the trial court: (1)
improperly denied the alternative sentencing of community corrections, (2)
improperly used the defendant’s pretrial diversion from 1984 as a conviction and also
an element of the crime to enhance the punishment, and (3) improperly used the
concept of deterrence w hen there was no evidence to that effect in the record . After a
review of the evidence in this record, the briefs of the parties, and the applicable law,
we affirm the trial court’s ju dgmen t.
FACTS
The M arshall Cou nty grand jury indicted the defend ant in indictm ent
# 12990, involving 356 counts of forgery and in count 357, theft of property over
$60,000. The offenses occurred between October, 1993 through January, 1996. On
December 11, 1996, the defendant entered a plea of guilty to count 357, theft of
proper ty over the valu e of $60 ,000. T he othe r 356 co unts of f orgery were d ismisse d.
The trial court set a hearing for February 5, 1997, to determine the length of the
sentence and the manner of service. The State alleges in alternative counts (356) of
forgery an d uttering tha t the defend ant intende d to defraud or harm th e Marsh all
Medical Center of Lewisburg, Tennessee and Nationsbank of Tennessee. In count
357, the State alleges that the defendant, between October 15, 1993, and January 19,
1996, com mitted the o ffense of the ft of property from the L ewisburg Comm unity
Hospital DBA Marshall Medical Center in the amount of One Hundred Twenty-Five
Thou sand N ine Hu ndred N ine Do llars and eighty c ents, ($1 25,909 .80).
2
At the entry of the open plea of guilty, the State submitted a stipulated
statement of facts as to how the defendant committed these various offenses. The
State believe d it could pro ve the defe ndant, wh ile an emp loyee in the payroll
department of the Lewisburg Community Hospital, forged certain employees’ cards
and time sheets by cutting checks for certain amounts and forging the employees’
names and cashing the same at a bank. A copy of the presentence report, introduced
in the sentencing hearing (and in the record) describes the defendant’s criminal
activities as being achieved by the defendant submitting false time sheets for alleged
overtime hours on various employees in the nursing department to payroll and having
additional ch ecks issued . The defe ndant w ould then fo rge the em ployees’ n ames on to
the checks, co-sign the checks, and cash them at a local bank. Twenty-nine (29)
employees were the victims of this scheme. Upon being confronted by the hospital
administrators, the defendant admitted to committing these offenses. Also, the
defend ant con fessed to the Lew isburg P olice as t o how she com mitted these o ffenses .
In the presentence report, the defendant offered her version of the events:
“I began approximately in 1994 falsifying time sheets and having
make-up checks written on other employees, then I would cash them for
myself. I was having problems getting my child support and I used the
money for myself and to take care of my children. It became regular to do
until I w as term inated. I r ealize w hat I did was v ery wr ong an d disho nest. I
was try ing to tak e care o f my c hildren , but I did live bey ond m y mea ns. I
would like the c hance to pay b ack the mone y if it take s the rest of my life. I
am ve ry sorry for wh at I did.”
SENTENCING HEARING
In her request for a minimum sentence and alternative sentencing, the
defendant offered the testimony of six witnesses, including herself. At the
commencement of the hearing a disagreement arose between the State and the
defendant about an arrest for embezzlement in 1984. The record establishes that the
defendant had been arrested in 1984 for forgery in six (6) counts in which she
3
forged checks of her employer, Dr. Beech, in the amount of $1,900. Apparently, the
defendant was placed on pretrial diversion, restitution made and the charges dismissed
and expunged. The trial court believed there was a question of this arrest being
relevant in the absence of a conviction, but may have become relevant on the question
of deter rence a s to the d efenda nt.
Mrs. Cathy Darnell, older sister of the defendant, advised the trial court that the
defendant has a very good relationship with her two daughters, ages eleven (11) and
thirteen (13). Mrs. Darnell described her sister as trying too hard to provide for her
children and wanting to give them the best of everything. Mrs. Darnell believed her
sister had suff ered so m uch and h ad learned her lesson. M rs. Darnell ad mitted she did
not ask the defendant what she had did with the $125,909.00, nor had the defendant
volunteered any information. The witness saw no evidence of extravagant living on
her sister’s part. However, the witness was aware that her sister lived on a farm in a
medium price hom e, drove an Explorer, a nd had b ought tw o horses fo r family
recreation and showing. Mrs. Darnell agreed the purchases and upkeep of these
horses were expensive. Mrs. Darnell was aware of her sister’s arrest in 1984 and
talked to her about the event at the time. The witness informed the trial court that the
defendant’s first husband more or less abandoned the defendant by entering the
military service and leaving the defendant with two babies. An interesting aspect of
Mrs. Darnell’s testimony revealed that she and the defendant had agreed to offer
approximately $40,000 for a Merle Norman cosmetic franchise, in Pulaski, Tennessee
in October, 1996. The defendant was to pay $20,000 for her share of the franchise or
be at lea st respo nsible fo r her sha re.
Ms. Virg inia Stuart an d Ms. Jam ie Ellis, co-em ployees o f the defend ant while
at the Lewisburg Community Hospital, advised the trial court that they had the
occasion to observe the defendant advance from a switchboard operator to
4
secretary of th e Director o f Nursing . They bo th left the hosp ital in 1993 a nd wou ld
see the defe ndant on a social basis, eith er in her hom e or at horse shows. B oth
witnes ses cha racterize d the de fendan t’s relatio nship w ith her ch ildren as very lo ving.
Both w itnesses did n ot observe any extrav agant living on the defe ndant’s pa rt. Both
witnesses expressed surprise at the hearing in learning the defendant had been arrested
in 1984 for a similar offense, but, being friends with the defendant, concluded that the
episod e in 198 4 wou ld not ch ange th eir min ds con cerning the defe ndant.
Mr. Roger Malone, the defendant’s husband, testified he and the defendant
married a couple of years before the hearing. His wife was employed at the hospital
as a secretary and he d id not know he r salary. Mr. Malon e was aware of his wife’s
problems with her ex-husband and his refusal to pay child support. Also, Mr. Malone
was aw are of th e defen dant’s p ast arres t and un derstoo d restituti on had been m ade.
Mr. Malon e is a vinyl siding installer, who ow ns and paid for his sixty-on e (61) acre
farm, wh ich contain ed a me dium thre e bedroo m hom e. Mr. M alone estim ated his
income at about $50,000 to $60,000 in a good year. Mr. Malone advised the trial
court that the defendant’s tw o children attended pu blic schools. As to the offense , Mr.
Malone learned about the charges two months after the defendant had been released
from the hospital. The d efendant had hidd en this matter from he r husband. M r.
Malone stated his reaction as follows:
“I was very upset, very hurt. I worked hard all of my life and tried
to make every dollar that I could to pay m y own bills, and it really hurt
me”.
The defendant never satisfactorily explained to her husband why she did it. When
asked where the $125,909.80 went, the witness responded:
“I can’t tell you . I have aske d her a hu ndred tim es, and she can’t tell
me. If she had gone out and bought a $50,000 vehicle or a $50,000 horse or
$25,000 diamon d ring, I could understan d where part of it wen t. I lived with
her during this time. I couldn’t explain to you where that kind of money
went” .
5
Mr. Malone confirmed that the defendant purchased two spotted geldings for about
$3,300, leased an Explorer in her own name, and paid for some lawn shrubbery for the
home. Althou gh the defendant w orks, Mr. Malo ne, as to restitution, stated: “I don’t
see any way s he can make full restitu tion.”
Mr. Joe “Buck” Beard, a very close friend of the defendant’s husband, advised
the trial court of his observations of the defendant over several years. Mr. Beard was
a former deputy with the Lewis County Sheriff’s Department and a former member of
the Lewisburg Police Department. Since 1993, Mr. Beard had seen the defendant at
horse shows, mainly on weekends. He asked the defendant what she did with the
money, to which she replied she didn’t know. Mr. Beard testified that the defendant
did not live an extravagant lifestyle and that possibly some of the money went for
horses and training. Mr. Beard became aware of the defendant’s past offense two
weeks prior to the hearing.
The defendan t was married at age seventeen (17) and two children we re
quickly born. The defendant and her husband separated in 1985. He joined the
military service leaving her wit h a thirte en (13) mont h old an d a five ( 5) mo nth old .
She received some child support while her husband was in the service, but this ended
when he returned. Since the defendant’s divorce, she has worked at various jobs. At
the sentencing hearing the defendant was working two jobs, one at Brindley
Construction Company and one at a convenience store on the weekends. She
estima tes her in come at $300 every tw o wee ks.
At the first of February, 1996, the defendant was confronted by an
administrator of the hospital concerning the payroll checks. The defendant admitted
what she had done and took sole blame for these offenses, including a statement of
admission. The defendant described how she comm itted these offenses:
“Q. --how did you decide to start doing this?
6
A. I remem ber someone needing a ma keup check d one--
Q. What is a makeup check?
A. A makeup check is a --was a check that was written that was produced that
wasn’t actually pulled off of the payroll sheet. If an error had been made, if they
didn’t clock in or clock out or if someone failed to pay them educational pay or
whatever the pay was, a makeup check w as issued.--I never planned on doing it. It just
happened.
*******
Q. So within three to four months of being placed in this new position, you
started stealing ; is that correct?
A. Ye s, sir.
Q. That ste aling contin ued until yo u got caug ht?
A. Ye s, sir.”
The defendant submitted to the trial court a summary of where she believes the
money went and for what. T he defend ant accou nted for app roximate ly $71,000 in this
twenty-seven (27) month period of theft, ranging from the purchase of a horse
($3,500), an Explorer ($10,000), Wal-Mart ($9,000), utilities, and a cellular phone
($2,500). The total did not count child care, clothes or cash spent. The defendant
admitted she had the love of her husband, a home, food, clothing and the care of her
children. W hy then did the defend ant com mit this theft?
“Q. W hat you are saying is: Y ou spent m oney on your fam ily, but that w as to
bring them up to the lifestyle that you wanted?
A. Right.
Q. It wasn’t necessities; it was lifestyle?
A. Yes sir, you are right.”
7
The defendant further admitted that in 1984 she had stolen $1,900.00 from her
employer, Dr. James Beech. The defendant was granted pretrial diversion. The
defend ant adm itted adv ising the court sh e wou ld neve r do any thing lik e this ag ain.
After an eloquent and passionate plea for an eight (8) year sentence and
probation based on the requirement of restitution in behalf of the defendant, the trial
court sentenced the defendant to a mid-range sentence of ten (10) years in the
Department of Correction.
MANNER OF SERVICE OF SENTENCE
We w ill first review the defendan t’s compla int that the trial cou rt imprope rly
denied an alternative sentence, to-wit; community corrections. Our review of the
manner of service of a sentence is de novo upon the record with the presumption that
the trial court’s determination is correct. Tenn. Code Ann. § 40-35-401 (d). Such a
review requires us to consider the evidence presented at the guilty plea and sentencing
hearing, the pre-sentence report, the principles and purposes of sentencing, the
argument of counsel, the nature and characteristics of the offense, the existing
mitigating and enhancing factors, the statement of the defendant, and the potential for
rehabilitation. T enn. Cod e Ann. § 40-35-10 2, -103, -21 0; State v. M oss, 727 S.W.2d
229 (Ten n. 1986); State v. T aylor, 744 S .W.2d 919 (T enn. C rim. A pp. 198 7).
The defendant argues that to place her in the community corrections program,
in lieu of incar ceration, is bes t for her rehab ilitation. Since the defendan t is not a
violent nor an habitual criminal, she can be rehabilitated in such program and
counseling . Further, the d efendant c ontends sh e should n ot be denie d comm unity
corrections placement due to her prior bad act at the age of nineteen (19), as that
offense occurred nine (9) years prior to the current offense. Since her arrest, the
defendant has sought counseling, which has had a positive effect on her life and
outlook. Her m otive in comm itting the present offense was to b e sure her
8
family stayed with her. She acknowledges her actions were wrong and she recognizes
they w ere wr ong.
In response, the State contends the trial court was correct in ordering the
defendant to serve a mid-range sentence and in ordering the defendant to serve her
sentence in confinem ent.
Further, the S tate contend s that the trial cou rt was corre ct in applyin g certain
enhancing factors to raise the defendant’s sentence from the minimum of eight (8)
years to ten (10) years, six (6) months and by applying one mitigating factor to reduce
the sentence to ten (10) years. Also, the trial court was correct in denying an
alternative sentence to the defendant in the form of commu nity corrections.
At the conclusion of the hearing, the trial court set out its rulings as to the
proper sentence and denial of an alternative sentence . The trial court found four
factors applicable to the sentencing procedure. In mitigation the trial court found the
defend ant’s crim inal con duct ne ither cau sed no r threate ned ser ious bo dily inju ry.
Tenn. Code Ann. § 40-35-113 (1). In enhancement the trial court found three (3)
factors: the defendant has a previous history of criminal behavior in addition to those
necess ary to es tablish th e appro priate ra nge, T enn. C ode A nn.
§ 40-35-114(1); the offense involve more than one victim, Tenn. Code Ann. § 40-35-
114(3); and, the defendant abused a position of private trust, or used a special skill in a
manner that significantly facilitated the commission or the fulfillment of the offense,
Tenn . Code Ann. § 40-35 -114 (1 5).
The trial court in applying enhancement factor (1)--history of criminal
behavior--was im pressed the defenda nt began com mitting these offenses six yea rs
after completing diversion in 1987. Also, the trial court stated,
“The Court does find that enhancing factor (1) and does place significance
on the fact that we are dealing with virtually the same type of offense, even
though comm itted in d ifferent w ays. By that, I m ean diff erent sc heme s.”
9
As to enh ancem ent factor (3)-- more tha n one victim --the trial court fo und this
factor applicable because of the unique facts in the case and the unique methodology
employed b y the defendant to acc omplish the crime . The presentence rep ort
contained a victim impact statement from the Marshall Medical Center outlining the
effect of these forged checks on various employees in dealing with the IRS. The trial
court gave this factor less weight than the others.
The trial court placed great weight on enhancement factor (15)--a violation of
private trust and special skill in assessing the proper sentence,
“The court notes with interest that on the expenditures which were had
during this time, the defendant spent some money to go to some accounting
school an d take som e accoun ting course s while she was using those skills
to, apparently, purloin funds from her employer. So that would be a special
skill in ad dition to the viola tion of tru st.”
The defendant must establish the burden of showing that the length or manner
of servic e of the s entenc e impo sed is im proper . Tenn . Code Ann. § 40-35 -401(d ).
Sentencing Commission Com ments. However, the presumption of correctness
attached to the trial court’s determination is conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts an d circum stances . State v A shby, 823 S.W.2d 166 (Tenn. 1991). Persons who
are especially mitigated or standard offenders convicted of Class C, D or E felonies
are presumed to be favorable candidates for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102 (5). Since the
defend ant has plead g uilty to th eft over the valu e of $60 ,000, as a stand ard offe nder, a
Class B fe lony, the de fendant is n ot entitled to the presum ption of a fav orable
candid ate for a n alterna tive sen tence.
We believe there is ample evidence in the record to support the trial court’s
determination that the defendant’s ten (10) year sentence is proper. The defendant
complains that the offense of 1984 should have little weight in determining an
10
enhancement of the sentence and it was error to consider this offense in enhancing the
defendant’s sentence. W e agree with the trial court’s assessm ent that the defendant’s
actions in 1984 and the present offense are very significant. In 1984, the defendant
stole $1,900 from her employer and, due to the benevolence of our criminal justice
system, had the benefit of pretrial diversion and no criminal record. The nature of
these offenses are too similar for a trial court to overlook. Enhancement factor (1)
was p roperly consid ered by the trial co urt. State v. W illiam Je ffrey Ca rico,
S.W.2d (Tenn. 19 98). There is no merit to this comp laint.
Second, the defendant complains the trial court improperly found enhancement
factor (3)--m ore than on e victim--ap plicable. Th e defenda nt argues th is assessm ent is
akin to stating an assault or robbery has more than one (1) victim because the families
of the victims suffer as a direct result of the actions. A review of the presentence
report establishes the defendant defrauded twenty-nine (29) separate co-employees, as
well as the hospital, in forging these “make up” checks. When these various
employ ees attemp ted to correc t their respectiv e financial co nditions, esp ecially with
the IRS, that would be one mean task. Although the trial court did not give this factor
great weight, the overall effect on these various employees of these forgeries was
substantial. T he trial court p roperly con cluded tha t there was m ore than on e victim in
this case, thereby justifying the use of en hancemen t factor (3). The defendan t’s
second c omplain t is without m erit.
Third, the d efendant c omplain s the trial impr operly fou nd enhan cemen t
factor (15)--trust or use of special skill--applicable. The defendant points out trust
was ce rtainly in volved , but ther e was n o proo f of a spe cial skill b eing inv olved.
However, the trial court, in assessing the facts as to exactly how the defendant
accomplished the se thefts, believed she utilized her acco unting classes to further
11
her schem e. We find ample ev idence in th is record that th e trial court did p roperly
find this enh ancem ent applicab le to this defen dant. Ther e is no me rit to this
comp laint.
Although, the defendant contends the trial court should have given greater
weight to the mitigating factor (1) to impose a sentence of eight (8) years, we find the
trial court correctly balanced the weight for each factor in arriving at a ten (10) year
sentence. The trial court’s judgment is affirmed.
Denial of
Community Corrections Program
The defe ndant stron gly conten ds she m eets the requ irements fo r sentencing into
the com muni ty corre ctions p rogram in orde r to reha bilitate he r. Tenn . Code Ann. §
40-36-106--Eligible Offenders, sets out minimum criteria for persons applying for
alternative sentences. The de fendant subm its she falls within the criteria of:
(2) Persons who are convicted of property-related, or drug/alcohol-related
felony offenses or other felony offenses not involving crimes against the
person as provided in title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent offenses;
(4) Persons who are convicted of felony offenses in the which the use or
possession of a weapon was not involved;
(5) Person s who d o not dem onstrate a pa ttern of com mitting viole nt offenses;
More particularly;
(C) Felony offenders not otherwise eligible under subsection (a), and who
would b e usually co nsidered u nfit for proba tion due to h istories of chro nic
alcohol, drug abuse, or mental health problems, but whose special needs
are treatable and could be served best in the community rather than in a
correctional institution, may be considered eligible for punishment in the
commu nity under the provisions o f this chapter.
The defendant argues that if these offenses had been committed because of an
alcohol or drug problem, it would be reasonable to assume she would receive
community corrections, because her problem would be treatable. The defendant
12
concedes her actions do not rise to the level of mental health problems, but through
her testimony and her counselor her problems are treatable. Through her testimony,
the defendant verbalized her fears concerning her past marriage, her loss of her
children, and her ultimate realization th at her fears were m isplaced. Her counse lor,
Susan M iller, a licensed c ounselor a nd therapis t, believes the d efendant c an refrain
from th is type o f activity and tha t superv ised pro bation a nd ther apy w ould be nefit her .
Thus, the defendant, through her misguided mental perceptions, is treatable in a
comm unity co rrection s system .
The trial court, upon finding the defendant ineligible for probation, began an
analysis of the defendant’s request for community corrections placement. The trial
court found no limitations on the sentence for community corrections under Tenn.
Code A nn. § 40-3 6-106(a). In denying th e defenda nt’s request fo r comm unity
corrections, the trial court was most concerned that the defendant utilized her position
of trust to defraud her co-employees and the hospital, and with the large amount of
money taken, $125,909.80. In referring to the sentencing principles of Tenn. Code
Ann. § 40-35-102 (2) and (3), the trial court stated:
“Mr. Plummer has done a very good job in arguing what the
effect of the impact of confinement to this lady would be upon her and her
family. But the Court has to sit in a position where it views not only the
defendant and what would be best for the defendant, but it has to view the
Court’s decision on society as a whole.
What message would we be sending to our society, the other
people out there who are working in employment situations, young people,
if we told them that you can steal from your employer, not once, and the
second time you steal from your employer, you can steal $125,000 and you
won’t go to jail? I’m afraid that message has too often been sent to the
young people of our society and our society in general. That is that which
the Court has to consider is not only the impact upon this defendant but
upon society as a whole.
The Court do es feel that the crime of this nature that the C ourt
has no other alternative than to incarcerate the defendant for the crimes that
she has comm itted.”
13
A trial court is entitled to a presumption of correctness in determining a proper
sentence if it correctly applied the principles o f sentencing and its findings are
suppo rted by the evid ence. State v. B oggs, 932 S .W.2d 467, (T enn. C rim. A pp..
1996). Although, the trial court did not comment on the sentencing principles of
Tenn. Code Ann. § 40-35-103 (1), (B) the trial court did consider this subsection.
Tenn. Code Ann. § 40-35-103:
(1) Sentences involving confinement should be based on the
following circumstances:
***
(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 comm it similar offen ses;
The sentence imposed should be no greater than that deserved for the offenses
committed, and any inequities in sentencing should be avoided. The sentence
imposed should be the least severe measure necessary to achieve the purposes of the
Sentencing Act of 1989. A defendant’s potential or lack of potential for rehabilitation
or treatmen t should be considered in determ ining the sen tencing altern ative or leng th
of term. Trial judges are encouraged to use alternatives to incarceration that include
victim compensation, reparation, or community service. Tenn. Code Ann. § 40-35-
103 (2), (3), (4 ), (5) and (6). W ithin this conte mplation is the placem ent of an elig ible
candid ate for c omm unity co rrection s.
In State v. C umm ings, 868 S.W.2d 661, (Tenn. Crim. App. 1992), Judge
Summers speaking for this court said about the role of the community corrections
program:
“The Tennessee Com munity Corrections Act of 1985 was
passed by the 1 st Extra ordina ry Sess ion of th e 1985 Gene ral Ass embly .
The purposes of community corrections was to establish a policy to
punish selected, non-violent felony offenders in front end community
14
based a lternativ es to inc arceratio n. Bec ause of prison o vercro wding ,
comm unity correc tions was a way to re serve secu re confinem ent
facilities for violent felony offenders. As part of the goals of the
Comm unity Cor rection Ac t, the Gene ral Assem bly establishe d efficient
community corrections programs; promoted accountability of offenders
to their local community; filled gaps in the local correctional system
through the development of a range of sanctions and services; reduced
the number of non-violent felony offenders in correctional institutions
and jail; and provided ‘opportunities for offenders demonstrating
special needs to receive services which enhance their ability to provide
for their families and becom e contributing mem bers of their
comm unity’. T enn. C ode A nn. § 40 -36-10 4.”
We agree that the defendant may be entitled to consideration of the benefits of
a community corrections program, but was the defendant eligible pursuant to Tenn.
Code A nn. § 40-3 6-106 (c)? The defe ndant m ust establish u nder subs ection (C) s he is
suitable for placement in the community corrections program. The defendant must
establish a history of chronic alcohol, drug abuse, or mental health problems; these
factors we re reasona bly related to a nd contribu ted to the offe nder’s crim inal condu ct;
the identifiable special need (or needs) are treatable, and the treatment of the special
need c ould be best serv ed in the comm unity ra ther than in a corr ectiona l institutio n.
We believe the defendant’s misguided mental perceptions do not meet these
require ments .
Ordinarily , deterrence a lone is not gr ounds for denial of co mmu nity
correct ions. State v. A shby, 823 S.W .2d 166, 17 0 (Tenn. 1 991). De terrence is
certainly a principle to consider in sentencing, but both case law and statutes
contem plate tha t consid eration s hould b e qualifi ed. State v. Ashby, su pra; State
v. Fletch er, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). However, general
deterrence, as well as specific de terrence, may be su fficient based on the facts of a
particular case. In State v. M illsaps, 920 S.W.2d 267, 271 (Tenn . Crim. App. 199 5),
Millsaps, a bookkeeper and employee for a furniture company, between 1988 and
1991 stole $80,220.19. The trial court denied probation on the ground of deterrence
stating:
“I think confinement is necessary to avoid depreciating the seriousness of
this offense because it involves an incredibly large amount of money.”
15
In affirming the trial court’s d ecision, Judg e Hayes , speaking fo r this
Court, stated:
“However, in a case involving facts almost identical to those
in the instant case, we observed:
“That the record sup ports the trial court’s
reasoning that if people with similar abilities and in similar
positions to the defendant believed that they could commit offenses
of a similar magnitude without having to be confined and without
making real restitution, there would be a significant number of
them who would yield to criminal temptation with impunity and
little concern for the harm caused others---unquestionably, (the
sentencing court) rightfully considered ---the need for effective
deterre nce to o thers like ly to com mit sim ilar, seriou s offens es.”
State v. F ranks, No. 03C01-9209-CR-00303 (Tenn. Crim. App.. at
Knox ville, De cemb er 22, 19 93).
From o ur analysis o f the record, th e defenda nt has not ca rried her bu rden in
establishing that she should receive placement in the community corrections program
in lieu of confinement. The trial court was correct in being concerned regarding the
seriousness of these m ultiple offenses. The defend ant’s conduct continue d over a
twenty-se ven (27) m onth period . She issued , forged, and cashed ap proxima tely six
(6) checks a month. The amount of loss to the defendant’s co-employees and her
employer was an incredibly large amount of money. Was the defendant really serious
about restitution? The defendant offered $10,000 front end restitution, but the
evidence suggested she and h er sister offered $40,000 for a cosm etic franchise in
Pulaski, Te nnessee. T here is also ev idence in th is record the d efendant a ttempted to
dissuade a co-emp loyee, Bec ky Clark, fro m disclos ing the defe ndant’s actio ns in
regard s to Cla rk’s che cks.
Another major hurdle the defendant attempted to overcome was the employer
thefts of 1984. As to the defendant’s motive in 1984, the defendant stole from her
employer because she needed the money to support herself and her very young
children. A s previously stated, the defe ndant w as granted p retrial diversion . In this
offense the defendant was motivated to steal, also for her children, but not for
necess ities. The defend ant wa nted the good th ings of li fe, such as trainin g horse s, a
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satellite dish, cable television, a cellular phone, nice clothes, a computer and a new
Explo rer.
We believe the trial court properly considered deterrence in assessing the
sentence.
We ho ld that the facto rs in favor of in carceration o utweigh th e factors aga inst,
and the defendant has failed to establish that the trial court erred in denying any
alternative sentence. The trial court’s judgment is affirmed.
_____________________________
L. T. Lafferty, Special Judge
CONCUR:
__________________________
Gary R. Wade, Presiding Judge
__________________________
Thomas T. Woodall, Judge
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