State of Tennessee v. Deann Anelia Walls

07/31/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 15, 2017
STATE OF TENNESSEE v. DEANN ANELIA WALLS
Appeal from the Circuit Court for Rutherford County
No. F-74032 Royce Taylor, Judge
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No. M2016-01121-CCA-R3-CD
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Defendant, Deann Anelia Walls, appeals the trial court’s order requiring her to serve in
confinement her effective ten-year sentence resulting from her guilty plea to nineteen
counts of prescription medication fraud and thirty-six counts of identity theft. Upon
reviewing the record and the applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.
Jeffrey O. Powell, Madison, Tennessee, for the appellant, Deann Anelia Walls.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Jennings H. Jones, District Attorney General; and John Zimmerman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Background
Defendant was indicted on and pled guilty to nineteen counts of prescription
medication fraud and thirty-six counts of identity theft, Class D felonies. See Tenn. Code
Ann. §§ 39-14-150(b)(1)(B)(iii), (i)(1) (Supp. 2013); 53-11-402(a)(3), (b)(1) (Supp.
2012). Pursuant to the plea agreement, Defendant received a four-year sentence for one
count of identity theft, a four-year sentence for one count of prescription fraud, and two-
year sentences for each of the remaining convictions. The parties agreed that the four-
year sentences and one of the two-year sentences for prescription fraud would run
consecutively to each other but concurrently to the sentences for the remaining
convictions for an effective sentence of ten years, with the manner of service to be
determined by the trial court.
A transcript of the guilty plea hearing is not included in the appellate record.
However, during the sentencing hearing, the State presented evidence of the
circumstances that led to Defendant’s convictions.
During the sentencing hearing, Alicia Joy McDaniels testified that Defendant was
a nurse who cared for Ms. McDaniels’s mother, Martha Hill, for a period of time. Ms.
Hill had multiple sclerosis, was in a wheelchair, and was unable to care for herself. As a
result, Ms. Hill’s family hired a healthcare company, and Defendant was sent to care for
Ms. Hill.
Ms. McDaniels testified that Ms. Hill was supposed to be taking one to two
oxycodone pills every two hours and had a pain pump with a morphine drip. Ms.
McDaniels explained that Ms. Hill’s doctor wanted to slowly wean Ms. Hill off of the
oxycodone so that she would rely solely on the pain pump. However, Ms. Hill was not
able to be weaned off of the oxycodone due to her condition and continued to take the
pills as prescribed. Ms. Hill was lethargic and required constant care. Ms. McDaniels
said Ms. Hill’s condition worsened as she continued to take the pills.
In October 2013, Ms. McDaniels began to care for Ms. Hill more often because
Ms. Hill’s health was such that she could not do anything for herself. Ms. McDaniels
described the pills administered to Ms. Hill that Ms. McDaniels believed to be oxycodone
as small white pills with obvious markings. One day, Ms. McDaniels noticed a small
yellow pill in Ms. Hill’s medicine bottle with the small white pills. Ms. McDaniels took
the bottle of pills to the pharmacy in an effort to identify the yellow pill. The pharmacist
was unable to identify the yellow pill and informed Ms. McDaniels that none of the white
pills were oxycodone. Rather, he stated that the white pills were lorazepam, which is
used to treat seizures and depression. Ms. McDaniels stated that Ms. Hill had been taking
one to two of the white pills every two hours, and Ms. McDaniels learned that the normal
dosage of lorazepam was one-half of a pill twice a day.
Ms. McDaniels testified that the pain clinic that maintained Ms. Hill’s pain pump
discovered that Ms. Hill’s prescription for oxycodone continued to be frequently refilled.
The personnel at the pain clinic turned off Ms. Hill’s pain pump because they believed
that Ms. Hill was either abusing or hoarding the medication. They also placed a “red
flag” on Ms. Hill in their system so that she could not have any narcotics.
Ms. McDaniels stated that following the discovery of the pills, doctors
discontinued all pain medication for Ms. Hill so that an investigation could be conducted.
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Ms. McDaniels and other family members were suspects and were interviewed by police
officers during the course of the investigation. Ms. Hill was without pain medication for
approximately one month. Ms. McDaniels said that during this time, Ms. Hill was in
constant pain. Ms. McDaniels took Ms. Hill to a hospital on multiple occasions, but
because Ms. Hill was “red flagged,” medical personnel could not provide her any
medication for the pain and sent her home. After the investigation was completed, an
officer informed Ms. McDaniels that Defendant admitted taking the medication from Ms.
Hill.
Ms. McDaniels testified that Ms. Hill’s condition has since improved. Ms.
McDaniels stated that Ms. Hill experienced bad days during the entire time that
Defendant was caring for her and that she now has some good days. Ms. Hill can walk a
few feet and prepare her own food in a microwave. However, on occasion, Ms. Hill
believes she sees people who are deceased. Ms. McDaniels stated that Ms. Hill did not
have these symptoms before taking lorazepam, which can cause paranoia. Other than
multiple sclerosis, Ms. Hill, who was sixty-two years old at the time of the sentencing
hearing, did not have any other physical disabilities or illnesses. Ms. McDaniels stated
that her father died from cancer during the same year.
In response to questioning about Defendant’s possible sentence, Ms. McDaniels
replied, “I don’t know how to sentence her. I don’t want to have to make that decision,
but I don’t want this to ever happen to anyone else again.”
Detective Kevin Krieb with the Smyrna Police Department testified that when he
investigated Defendant at the end of 2013 and the beginning of 2014, he was a member
of a pharmaceutical diversion task force with the Drug Enforcement Administration. His
investigation began when Comprehensive Pain Medication in Murfreesboro called a
police officer about Ms. Hill, a hospice patient who was seeking a refill of her pain pump.
Personnel at the facility reviewed Ms. Hill’s prescription information through the State of
Tennessee’s prescription monitor program and discovered that approximately 6,000
oxycodone pills had been dispensed to Ms. Hill within the last ten months. The
personnel at the pain clinic believed that either Ms. Hill or a member of her family was
diverting the medication.
Detective Krieb described 6,000 pills as an “outrageously high” amount and said
he had never seen an individual prescribed such a high number of pills in such a short
period of time. He described opiates as a large problem in Tennessee and stated that they
are “highly addictive and highly abused.” Detective Krieb and another officer
interviewed Ms. Hill and her family members and determined that the “missing part of
the puzzle” was Defendant, Ms. Hill’s hospice nurse.
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Detective Krieb visited Caris Hospice in Murfreesboro, where Defendant was
employed during the time period that she cared for Ms. Hill. Defendant was no longer
employed by Caris Hospice at the time of Detective Krieb’s visit. Detective Krieb later
determined that fraudulent prescriptions for Lortab and Soma had been filled in the
names of several hospice patients under Caris Hospice’s care, and he began investigating
the forging of prescriptions as a result. During the course of the investigation, Detective
Krieb learned that Defendant had worked for a hospital in Tullahoma, Tennessee, where
prescription medication was discovered missing and that personnel believed that
Defendant was responsible for the missing medication.
On February 21, 2014, Detective Krieb learned that Defendant was at a pharmacy
in Woodbury, Tennessee, attempting to obtain a fraudulent prescription in a hospice
patient’s name. He and two other officers went to the pharmacy and interviewed
Defendant in the parking lot. Defendant gave a written statement, which was entered
into evidence during the sentencing hearing.
In her statement, Defendant acknowledged that she took oxycodone from Ms. Hill
and switched Ms. Hill’s medication with folic acid on one or two occasions and with
dexamethasone on one occasion. Defendant said that on other occasions, she “just took
from the bottle.” She acknowledged that on several occasions, she retrieved Ms. Hill’s
prescriptions from the pharmacy and never delivered them to her. Defendant could not
recall the amount of medication that she took from Ms. Hill but estimated that it
amounted to “1/2-3/4 of [the] total.” Defendant also admitted taking prescription
medication from other patients.
Defendant stated that she was fired from her job on January 22, 2014. She said
she was blamed for taking medication from patients and that her employer believed that
her job performance was unsatisfactory. She acknowledged that she wanted to “get back
at them.” As a result, she continued calling in prescription refills for Lortab and Soma
for patients at multiple pharmacies and keeping them for herself. She denied selling the
medication or giving it away.
Defendant stated that she had been an addict in the past and had recently relapsed.
She maintained that she did not intend for anyone to get hurt and that she was sorry for
hurting anyone, including her patients and coworkers.
Detective Krieb testified that at the time of the interview, Defendant was no longer
employed with Caris Hospice, and he did not believe that Defendant was employed at
any other medical facility. However, Defendant was in medical scrubs during the
interview. Detective Krieb said Defendant told him either that her nursing license was in
the process of being revoked or that she was going to surrender it. At the time of the
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interview, Detective Krieb was unaware that the Board of Nursing had brought a
disciplinary action against Defendant or that an order was entered on February 13, 2014,
stating that Defendant had voluntarily surrendered her nursing license.
Detective Krieb spoke to Defendant over the telephone on a few occasions
following the interview to verify information in her statement. Defendant admitted to
Detective Krieb that she took pain medication, including oxycodone, Lortab, and Soma,
from other hospice patients. Defendant estimated that she took sixty to seventy-five pills
a few times from “one or two patients here and there.” She also told the detective that
she had taken medication from deceased patients rather than properly disposing of it.
Detective Krieb testified that Defendant told him that she began working for Caris
Hospice in February 2013 and that she began diverting medication from patients in April
2013. Detective Krieb said Defendant was calling in fraudulent prescriptions of other
hospice patients sometime prior to her termination and up to the time of the interview in
the parking lot of the pharmacy. The prescriptions were shown to have been approved by
Dr. Michael Herlevic, the doctor who oversaw Caris Hospice. However, Dr. Herlevic
denied approving the prescriptions. Detective Krieb learned that Dr. Herlevic’s
prescriptions had been used in Rutherford County, Cannon County, and Coffee County.
Detective Krieb was unable to determine the total number of pills that Defendant
fraudulently obtained. He estimated that the total included several thousand oxycodone
pills and over 1,000 Lortab and Soma pills. He explained that Defendant was a primary
caregiver nurse to several hospice patients who were prescribed a large amount of
medication and that he could not interview those patients to determine what amount of
medication was diverted. Defendant told Detective Krieb that she gave Ms. Hill 1,000 of
the 6,000 oxycodone pills prescribed to her during that time period. Detective Krieb said
that if Defendant was telling the truth, she diverted 4,500 to 5,000 of Ms. Hill’s pills.
Detective Krieb presented testimony that the number of pills that Defendant
obtained in an eight- to ten-month period was more than one person could consume on a
daily basis without overdosing. He researched Defendant’s prescription history through
the prescription monitoring program and learned that Defendant was prescribed Lortab, a
lesser-strength hydrocodone pill, on a few occasions during the last few years prior to her
interview in February 2014. Detective Krieb stated that Defendant was able to
communicate coherently with him during the interview. Detective Krieb called
Defendant on two separate occasions after the interview and asked about her condition.
He explained that based on his experience, opiate addicts who stop taking the pills
experience withdrawal. Defendant told him that she was sleeping and feeling healthy,
which surprised Detective Krieb. He offered her help to enroll in a rehabilitation
program, and she declined. Detective Krieb testified that based on this information, he
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concluded that “[e]ither [Defendant] has a shoe box in her house of 6,000 pills, or those
pills were diverted to other people, either sold or given away to other people.”
Detective Krieb testified that while interviewing Defendant, she consented to a
search of her cellular phone. He stated that while he did not find any text messages
indicating drug sales, he noticed that Defendant had an “app” that drug dealers use to
communicate without leaving a paper trail or a text messaging field that can be
intercepted.
Detective Krieb believed Defendant’s actions amounted to a “horrible misuse of
the medical profession.” He stated that families rely on hospice nurses to ease the pain of
loved ones so they can pass away peacefully. He believed that a hospice nurse “is held
more accountable than any other nurse that comes into your home.” He also believed that
a message should be sent to nurses and other medical professionals that if they take
medication from a patient who needs it, they will be severely punished.
On cross-examination, Detective Krieb testified that while Defendant was
cooperative, he did not believe that she was entirely truthful. Detective Krieb
acknowledged that Defendant provided some information that he would not have been
able to discover on his own. He denied that he would not have discovered the names of
the patients and pharmacies involved had Defendant not provided him with the
information. He said he could have found the information by searching Dr. Herlevic’s
name in the prescription monitoring program and visiting the pharmacies listed in the
program.
In response to questioning by the trial court, Detective Krieb testified that
according to the latest statistics that he reviewed, Tennessee is ranked second in the
listing of the states where opiate abuse occurs most often. He stated that Tennessee “has
a huge opiate problem, which is turning into a heroin problem, which is also an opiate.”
He explained that Lortab, oxycodone, and other classification of opiates are gateway
drugs to heroin. He said that the problem of prescription drug abuse has turned into a
heroin problem and that he receives reports of overdoses “all the time.” Detective Krieb
stated that the issue affects the younger generation and will result in a health issue,
explaining that many people from age sixteen to twenty-five are sharing needles to inject
the drug, which can transmit hepatitis and HIV. He clarified that his investigation did not
establish that Defendant was taking heroin.
During the hearing, the State entered as exhibits Defendant’s presentence report
and various documents from the Board of Nursing, including the agreed order whereby
Defendant voluntarily surrendered her nursing license. The order stated that in 2011,
while Defendant was employed as a home health nurse, two of her patients reported
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discovering that their prescription medication was missing after Defendant left their
homes. In 2012, while employed as a nurse in the intensive care unit of a hospital,
Defendant was under investigation for narcotic diversion in that she dispensed narcotics
three times more frequently than any other nurse. In October 2012, Defendant was asked
to take a urine drug screen after a discrepancy in the number of pills was discovered, but
she refused and then resigned. The order provided that Defendant admitted the
allegations in the order.
Defendant made a statement at the sentencing hearing in which she maintained
that Ms. Hill was hoarding pills and that Defendant switched Ms. Hill’s medication in an
attempt to wean Ms. Hill off of the medication and to fulfill Defendant’s own “selfish
needs.” She said that she began caring for Ms. Hill in April 2013 and that Ms. Hill’s
family did not assist in caring for her until October 2013. Ms. Hill’s health continued to
decline during the time period in which Defendant was caring for her. Defendant stated
that while she was out of town, another nurse found several hundred Lortab pills at Ms.
Hill’s home. Defendant did not know where Ms. Hill obtained the pills, and Defendant
did not believe that Ms. Hill was prescribed Lortab during the first few months that
Defendant was caring for her. Defendant stated that her cellular phone included text
messages about Ms. Hill’s medication but that Defendant erased all of her information
pertaining to employment with Caris Hospice upon meeting Detective Krieb.
Defendant recalled that Ms. Hill’s oxycodone prescription was delivered to Ms.
Hill’s home during the first few months while Defendant was caring for her. Defendant
said she began “stepping in” and substituting Ms. Hill’s oxycodone pills for folic acid,
which was the yellow pill that was discovered in the pill bottle. Defendant acknowledged
that substituting medication with a placebo was not a common practice for nurses and
that she should not have done it. She said she last saw Ms. Hill toward the end of
October 2013 when other nurses took over Ms. Hill’s care “because of conflict.” She
also said that “one of the reasons I ordered medications to be taken more frequently was
so I could just keep most of them for myself.”
Defendant maintained that Ms. Hill would call the after-hours service or
Defendant’s cellular phone five to seven times each night with issues of paranoia.
Defendant said, “That’s why they fit me in there to begin with.” Ms. Hill was living
alone at the time, and Defendant believed that Ms. Hill’s husband passed away a few
weeks after Defendant began caring for Ms. Hill. Defendant stated that once Ms. Hill
had surgery to insert the pain pump, her health declined significantly.
Defendant stated that she first became addicted to pain medication following a
back injury when working at a hospital in 2004 or 2005. She said that her tolerance to
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the medication was so high that she could take ten or more oxycodone pills five or six
times a day.
Defendant stated that she told Detective Krieb that she had recently given up her
nursing license voluntarily and that she knew she did not need to be a nurse. She
maintained that she was “under the influence” when she wrote out her statement. She
said that she offered to submit a urine or blood sample so the officers could determine the
amount of medication in her system. She also said that during the interview, she was
placed into a car with two men and was nervous and upset.
Defendant stated that when Detective Krieb called her following the interview, she
did not feel “normal” even though she had been sleeping and that she had restless leg
syndrome, which she said was an issue in cases of withdrawal.
Defense counsel informed the trial court that in August 2014, Defendant was
placed on probation in Franklin County as a result of a similar conviction and had been
on probation for almost two years at the time of the sentencing hearing. Defendant’s
probation officer, Joshua Rogers, was not available to testify at the sentencing hearing.
However, the parties stipulated that Mr. Rogers would have testified that Defendant was
placed on probation for three years and was required to complete an assessment and
follow the recommendations. It was recommended that Defendant complete an intensive
outpatient treatment program. Defendant was enrolled in the program in October 2014
and completed the program in June 2015. Defendant had complied with the terms of her
probation and passed all random drug tests.
At the conclusion of the hearing, the trial court denied Defendant’s request for
alternative sentencing. In reaching its decision, the trial court considered the evidence
presented during the plea hearing and the sentencing hearing, the circumstances of the
offenses, the arguments of both parties, Defendant’s statement, her potential for
rehabilitation, statistical information provided by the Tennessee Administration Office of
the Courts for similar offenses in Tennessee, the presentence report, Defendant’s physical
and mental condition, and her social history.
The trial court considered the applicable enhancement factors, finding that (1) the
offenses involved more than one victim; (2) the victims were particularly vulnerable due
to age or physical or mental disability; (3) Defendant had “no hesitation about
committing a crime when the risk to human life was high”; and (4) Defendant “abused a
position of public or private trust, or used a professional license in a manner that
significantly facilitated the commission or the fulfillment of the offense.” Tenn. Code
Ann. § 40-35-114(3), (4), (10), (14). The trial court found that no mitigating factors
applied.
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The trial court noted that based on Defendant’s history with her current probation,
it appeared that she would abide by the terms of probation and that her risk of engaging
in future criminal conduct was not great. The trial court found that although Defendant
“might be rehabilitated with regard to her addiction,” she had a history of prior criminal
behavior based upon the allegations admitted by Defendant in the order from the Board
of Nursing. The trial court stated that as a result, Defendant’s criminal conduct spanned
over several years. The trial court found that based on the “overwhelming” number of
offenses to which Defendant pled guilty and her other criminal conduct, confinement was
necessary to avoid depreciating the seriousness of the offenses. See id. § 40-35-
103(1)(B). Noting that Tennessee ranked as one of the worst states for such offenses, the
trial court found that confinement was necessary to provide an effective deterrence to
others likely to commit similar offenses. See id. Accordingly, the trial court ordered
Defendant to serve her ten-year sentence in confinement.
Analysis
Defendant contends that the trial court erred in ordering her to serve her sentence
in confinement. The State responds that the trial court did not abuse its discretion in
ordering Defendant to serve her sentence in confinement. We agree with the State.
The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
Supreme Court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).
Under the 2005 amendments to the Sentencing Act, trial courts are to consider the
following factors when determining a defendant’s sentence and the appropriate
combination of sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
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(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.
Tenn. Code Ann. § 40-35-210(b).
The trial court must state on the record the factors it considered and the reasons for
the ordered sentence. Id. § 40-35-210(e); Bise, 380 S.W.3d at 706. “Mere inadequacy in
the articulation of the reasons for imposing a particular sentence ... should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.
Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “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.” Tenn. Code Ann. § 40-35-102(6)(A). However, no criminal defendant is
automatically entitled to probation as a matter of law. State v. Davis, 940 S.W.2d 558,
559 (Tenn. 1997). Instead, the defendant bears the burden of proving his or her
suitability for alternative sentencing options. Carter, 254 S.W.3d at 347 (citing Tenn.
Code Ann. § 40-35-303(b)).
When imposing a sentence of full confinement, the trial court should consider
whether:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
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(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[.]
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In addition, the sentence imposed should be (1)
“no greater than that deserved for the offense committed,” and (2) “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-
35-103(2), (4).
As a Range I, standard offender convicted of Class D felonies, Defendant was an
appropriate candidate for alternative sentencing. See id. § 40-35-102(6). The trial court
denied Defendant’s request for an alternative sentence based upon Defendant’s long
history of criminal conduct. See id. § 40-35-103(1)(A). According to the agreed order
before the Board of Nursing, Defendant was taking prescription medication from patients
as early as February 2011, more than two years before the instant offenses occurred. Her
behavior continued in 2012 while employed at a medical center. While Defendant argues
that such conduct did not result in criminal convictions, the plain language of the statute
applies to “criminal conduct” and is not limited to criminal convictions. See id.
Moreover, according to the order, Defendant admitted to the allegations. Accordingly,
the trial court did not abuse its discretion in denying Defendant’s request for an
alternative sentence based on Tennessee Code Annotated section 40-35-103(1)(A).
The trial court also denied Defendant’s request for an alternative sentence based
upon the need to avoid depreciating the seriousness of the offense and the need for
deterrence. See id. § 40-35-103(1)(B). The record establishes that Defendant, a nurse,
took prescription pain medication from hospice patients who were entrusted in her care.
She substituted Ms. Hill’s pain medication with lorazepam, which is used to treat seizures
and depression. As a result, Ms. Hill was taking up to twice the normal daily dosage of
lorazepam every two hours. Ms. Hill was deprived of pain medication for one month and
was in extreme pain during that month. Defendant also used a doctor’s identification to
obtain false prescriptions under the names of her patients. Even after Defendant was
fired from Caris Hospice, she continued to obtain false prescriptions under the patients’
names. In her written statement, Defendant acknowledged she was blamed for taking
medication from patients, that her employer believed that her job performance was
unsatisfactory, and that she said that she wanted to “get back at them.” Detective Krieb
was unable to determine the exact amount of medication that Defendant obtained but
estimated that the number of pills was in the thousands. Detective Krieb expressed
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doubts as to a person’s ability to take such a number of pills in an eight to ten-month
period without overdosing and concluded that “[e]ither [Defendant] has a shoe box in her
house of 6,000 pills, or those pills were diverted to other people, either sold or given
away to other people.”
Detective Krieb, a two-year member of the DEA pharmaceutical task force,
described opiates as a large problem in Tennessee and stated that they are “highly
addictive and highly abused.” He testified that according to the latest statistics that he
reviewed, Tennessee is ranked second in the listing of the states where opiate abuse
occurs most often. Accordingly, the record supports the trial court’s findings.
Defendant contends that the trial court erred in finding that confinement was
necessary to avoid depreciating the seriousness of the offenses because the circumstances
of the offenses were not “especially violent, horrifying, shocking, reprehensible,
offensive or otherwise of an excessive or exaggerated degree” and the nature of the
offenses did not outweigh all factors favoring a sentence other than confinement. See
State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006). Defendant also contends that the
trial court erred in denying an alternative sentence based on the need for deterrence
because the trial court failed to consider the factors listed in State v. Hooper. See State v.
Hooper, 29 S.W.3d 1, 13 (Tenn. 2000) (“[W]e hold that a trial judge may sentence a
defendant to a term of incarceration based solely on a need for deterrence when the
record contains evidence which would enable a reasonable person to conclude that (1)
deterrence is needed in the community, jurisdiction, or state; and (2) the defendant's
incarceration may rationally serve as a deterrent to others similarly situated and likely to
commit similar crimes.”). However, because the trial court’s decision was not based
solely on the need to avoid depreciating the seriousness of the offenses or solely on the
need for deterrence, “the heightened standard of review that applies to cases in which the
trial court denies probation based on only one of these factors is inapplicable in this
case.” State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (citing Trotter, 201 S.W.3d
at 654; Hooper, 29 S.W.3d at 13). Accordingly, the trial court did not abuse its discretion
in ordering Defendant to serve her sentence in confinement.
Conclusion
For the foregoing reasons, we affirm the judgments of the trial court.
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THOMAS T. WOODALL, PRESIDING JUDGE
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