State of Tennessee v. David Stewart Cowles, Jr.

06/09/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 27, 2022 Session
STATE OF TENNESSEE v. DAVID STEWART COWLES, JR.
Appeal from the Circuit Court for Greene County
No. 21CR041 John F. Dugger, Jr., Judge
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No. E2021-00603-CCA-R3-CD
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Defendant, David Stewart Cowles, Jr., entered an open guilty plea to theft of property
valued at $10,000 but less than $60,000 with the manner and length of the sentence to be
determined by the trial court. Following a sentencing hearing, the trial court imposed a
sentence of split confinement, with seven months to be served in the county jail and the
remainder of the sentence on supervised probation. On appeal, Defendant argues that the
trial court abused its discretion in imposing a sentence of split confinement and in
denying a community corrections sentence. After review, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.
Francis X. Santore, Jr., Greeneville, Tennessee, for the appellant, David Stewart Cowles,
Jr.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Ritchie Collins,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Greene County District Attorney General filed a criminal information
charging Defendant with theft of property valued at $10,000 but less than $60,000 on
May 14, 2021. Defendant waived an indictment and agreed to proceed by criminal
information. The charge arose from Defendant’s meticulous theft of funds from the
Greeneville Police Department (“GPD”) and the Greene County Sheriff’s Office
(“GCSO”) between 2015 and 2018.
Defendant entered an open guilty plea to theft of property valued at $10,000 but
less than $60,000, a Class C felony, with the trial court to determine the manner and
length of the sentence. The guilty plea hearing and sentencing hearing also took place on
May 14, 2021.
During the plea colloquy, the trial court explained to Defendant his rights and
reviewed the plea agreement. Defendant confirmed that he understood the rights he was
waiving and the terms of his plea agreement. The parties stipulated to the following facts
as provided by the State:
The GPD hired Defendant as a computer specialist in 2011. In 2014, Defendant
also began working for the GCSO. Between January 2017 and August 2018, Defendant
purchased approximately 34 items from Amazon with a Greene County credit card. Both
agencies terminated Defendant’s employment in 2018. A new GCSO sheriff and GPD
police chief searched for Defendant’s Amazon purchases and could not locate the items.
The agencies also became concerned Defendant was “double-dipping in his
employment,” and asked the Tennessee Comptroller of the Treasury (“Comptroller’s
Office”) to perform an official investigation.
The investigation revealed that Defendant submitted receipts to the Greene County
accounting office that contradicted information received from Amazon. Amazon’s
records revealed Defendant purchased all of the items on his personal account with the
county credit card. Defendant modified the Amazon invoices to reflect that the items
shipped to the agencies when they actually shipped to his home. The purchases included
a hot tub, Xbox-related equipment, and other items all together totaling $29,554.14. The
investigation also revealed that Defendant billed the GPD and the GCSO for the same
work hours between January 2015 and July 2018, for approximately $19,490.46. The
trial court asked Defendant if he agreed with these facts and Defendant answered,
“Yes[.]”
At sentencing, Defendant again affirmed the State’s factual summary and disputed
nothing. Defendant testified that he had already begun gathering restitution and wanted
to answer for his actions. Defendant said he currently worked at a golf course he co-
owned. He confirmed that the golf course was a good source of revenue for his family.
In regard to his prior criminal record, Defendant testified that he wrote a bad check when
he was 18 years old. Defendant testified that he had a good relationship with his wife.
He affirmed that he had never used illegal drugs and rarely drank alcohol. Defendant
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testified that he had autism, diabetes, high blood pressure, and diagnosed stress and
depression. Defendant also said that he had asthma and suffered from sleep apnea.
Defendant testified that he volunteered at the GPD until he was officially hired in
2011. He worked to update the technological capabilities of the GPD. Defendant
claimed he was not appreciated at work and “at some point . . . it was just enough and
[he] started doing what [he] was doing.” Defendant testified that he was sorry for his
actions and that he was not making an excuse.
On cross-examination, Defendant admitted that he “misplaced” the agencies’ trust.
Defendant acknowledged that the Greene County citizens paid for his salary. Defendant
said that he held himself out to the public as law enforcement. Defendant first testified
that he gave away the Amazon purchases to “people,” but later admitted that he sold
some of the items back on Amazon. Defendant acknowledged that the citizens of Greene
County paid for his purchases. On redirect examination, Defendant stated that he was
paying restitution because “it [was] the right thing to do.”
Jimmy Hodges of the Comptroller’s Office testified regarding his investigation of
Defendant. Mr. Hodges testified that his office subpoenaed Amazon with Defendant’s
credit cards and received Defendant’s transaction history. After comparing the Amazon
transaction history to the Greene County accounting office’s records, Mr. Hodges noticed
discrepancies between the records. Mr. Hodges believed Defendant altered the invoices.
Mr. Hodges said his office found that Defendant purchased a drone, a train set, and
Dyson hand dryers. He tracked the items purchased to Defendant’s personal address, the
golf course, and a relative. Mr. Hodges also examined Defendant’s time sheets and noted
that he “double-dipped” 1592 hours.
GPD Police Chief Tim Ward testified that his department searched for the
Amazon purchases, could not find them, and contacted the Comptroller’s Office. He
testified that “[i]t was very demoralizing” when the department found out about
Defendant’s actions. He and the other officers felt that Defendant violated their trust.
Chief Ward testified that Defendant prioritized his own personal gain over the well-being
of the police department. On cross-examination, Chief Ward said he was unaware of any
leaks of confidential information.
GCSO Sheriff Wesley Holt testified that he fired Defendant because they no
longer needed his services. After he dismissed Defendant, Sheriff Holt reviewed the
department’s inventory and noticed discrepancies between the department’s inventory
and the purchase slips. Sheriff Holt called the Comptroller’s Office. Sheriff Holt
testified that Defendant set their office “back at least two years, three years.” On cross-
examination, Sheriff Holt testified that he was unaware of any compromised information.
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After hearing the witnesses’ testimonies and arguments of counsel, the trial court
applied enhancement factors (3) and (14) because Defendant embezzled funds from two
different agencies and abused a position of public trust. See T.C.A. § 40-35-114(3), (14).
The trial court applied great weight to Defendant’s breach of trust. The trial court applied
mitigating factor (1) finding Defendant’s actions did not cause or threaten to cause
serious bodily injury. See T.C.A. § 40-35-113(1).
The trial court considered judicial diversion. After weighing all of the diversion
factors, the court found that the circumstances of the offense and the deterrence value to
the accused weighed heavily against judicial diversion. The court said, “you were in a
special highly trained position of doing computers. Everybody trusted you. . . . then you
responded every way in the world to come up with ways to benefit and that’s what you
did[.]”
In denying full probation, the trial court placed “much weight” on whether a
sentence of full probation would unduly depreciate the seriousness of the offense and
whether confinement would serve as an effective deterrent to others likely to commit
similar offenses. The trial court denied a sentence of community corrections based on the
the seriousness of the offense and the overall effect of Defendant’s actions on the
criminal justice system. The trial court imposed a four-year sentence of split confinement
with Defendant to serve seven months in the county jail and the remainder of the
sentence suspended to supervised probation. Defendant timely appeals.
Analysis
Defendant argues on appeal that the trial court abused its discretion in imposing a
sentence of split confinement and in denying his request for a community corrections
sentence. The State responds that the trial court did not abuse its discretion. We agree
with the State.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse
of discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). The same standard of review applies to a trial court’s decision
regarding “probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); see also State v. King, 432 S.W.3d 316, 325 (Tenn. 2014)
(applying the same standard to judicial diversion). This Court will uphold the trial
court’s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
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principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different
result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the
sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Tennessee Code Annotated section 40-35-102(3)(C) provides that “[p]unishment
shall be imposed to prevent crime and promote respect for the law by . . . [e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the
use of alternative sentencing and correctional programs that elicit voluntary cooperation
of defendants[.]” Tennessee Code Annotated section 40-35-104(c)(9) authorizes a
“sentence to a community based alternative to incarceration . . . .” Additionally, “[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[.]” T.C.A. §
40-35-103(5).
On the other hand, sentences involving confinement should be based on the
following considerations:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
T.C.A. § 40-35-103(1). Moreover, the sentence imposed “should be no greater than that
deserved for the offense committed” and also “should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-
103(2), (4).
A defendant is eligible for probation if the sentence imposed is 10 years or less.
T.C.A. § 40-35-303(a). Although “probation shall be automatically considered by the
court as a sentencing alternative for eligible defendants,” the defendant bears the burden
of “establishing suitability” for probation. T.C.A. § 40-35-303(b). “This burden includes
demonstrating that probation will ‘subserve the ends of justice and the best interest of
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both the public and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State v.
Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A defendant who is
sentenced as an especially mitigated or standard offender and who has committed a Class
C, D, or E felony should be “considered as a favorable candidate for alternative
sentencing options” if certain conditions are met. T.C.A. § 40-35-102(5), (6)(A). The
guidelines regarding favorable candidates are advisory. T.C.A. § 40-35-102(6)(D).
Generally, to deny alternative sentencing solely on the basis of the seriousness of
the offense, “‘the circumstances of the offense as committed 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.” State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006)
(quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997)). Additionally,
in State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), our supreme court noted five factors to
consider when denying probation on the basis of deterrence and held that a trial court
may impose a sentence 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.” Id. at 10-13.
However, in State v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014), the Tennessee
Supreme Court determined that “the heightened standard of review [from Trotter and
Hooper] that applies to cases in which the trial court denies probation based on only one
of these factors is inapplicable” when the trial court “combined the need to avoid
depreciating the seriousness of the offense with the need for deterrence and the nature
and circumstances of the offense.”
Here, the trial court considered the principles of sentencing, the presentence
report, the parties’ arguments, the nature of the offense, and the testimony from the
hearing. In considering whether to grant a sentence of full probation, the trial court
incorporated by reference its judicial diversion analysis. The court determined that the
seriousness of the offense and the need to deter other computer specialists from
committing similar offenses merited a sentence of split confinement. We conclude that
the trial court did not abuse its discretion in sentencing Defendant to split confinement.
Defendant is not entitled to relief.
The trial court also recognized Defendant’s eligibility for a community corrections
sentence but denied it based on the seriousness of the offense. The trial court noted
Defendant’s abuse of public trust and the effect of his actions on the public perception of
the criminal justice system and police departments.
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Under Tennessee Code Annotated section 40-36-106(a)(1), Defendant would be
eligible for punishment in the community. See T.C.A. § 40-36-106(a)(1); State v. Scottie
R. Buckles, No. E2016-01645-CCA-R3-CD, 2017 WL 2334232 (Tenn. Crim. App. May
30, 2017) (“In the present case, [d]efendant would be eligible for traditional community
corrections because he otherwise would be incarcerated in a correctional institution;
stands convicted of property related, nonviolent felony offenses; did not possess or use a
weapon; and does not have a past pattern or behavior of violence.”), no perm. app. filed.
However, “[o]nce determining that an offender is eligible for a community
corrections sentence, the court, applying the sentencing considerations set forth in
[Tennessee Code Annotated section] 40-35-103 and general sentencing guidelines,
determines whether the offender is entitled to a sentence under the Community
Corrections Act.” State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997)
(emphasis added). It is clear that the trial court considered the purposes and principles of
sentencing, the seriousness of the offense, and the overall effect of Defendant’s actions
on the public before denying a sentence on community corrections. We cannot say that
the trial court abused its discretion in denying Defendant a sentence of community
corrections. Defendant is not entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgment of the trial court.
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TIMOTHY L. EASTER, JUDGE
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