        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                        NOVEMB ER SESSION, 1997      February 24, 1998

                                                   Cecil W. Crowson
STATE OF TENNESSEE,          )                   Appellate Court Clerk
                                  C.C.A. NO. 01C01-9611-CC-00465
                             )
      Appellee,              )
                             )
                             )    WARREN COUNTY
VS.                          )
                             )    HON. CHARLES D. HASTON
LEON WOODLEE,                )    JUDGE
                             )
      Appe llant.            )    (Theft)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF WARREN COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

BERNARD K. SMITH                  JOHN KNOX WALKUP
P.O. Box 490                      Attorney General and Reporter
McMinnville, TN 37110
                                  LISA A. NAYLOR
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  WILLIAM M. LOCKE
                                  District Attorney General
                                  P.O. Box 410
                                  McMinnville, TN 37110



OPINION FILED ________________________

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

DAVID H. WELLES, JUDGE
                                          OPINION

        The Defendant, Leon Woodlee, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure. He was convicted by a W arren

Coun ty jury of one co unt of theft o f property valued between $1000 and $10,000,

two counts of theft of property valued between $500 and $1000, one count of

theft of property valued at $500 or less, one count of failing to keep required

records, and three counts of possessing an engine or transmission from which

the identification number had been removed or defaced.1                                 The trial court

sentenced him as a Rang e I standa rd offend er to three years imprisonment for

theft between $1000 and $10,000, two years for one count of theft between $500

and $1000, four years for the other count of theft between $500 and $1000, two

years for theft less than $500, a nd thirty day s each for one co unt of failure to

keep required records and three co unts of possessing an engine or transmission

from which the identification number had been removed or defaced. At the

sentencing hearing, the trial court ordered the the ft sentences to ru n consecu tive

to each o ther, with all rem aining co unts to run concurrent with each other and

concurrent with the theft sentences.2 In addition , the sente nces w ere orde red to

run consecutive to a six-year sentence for which the Defendant was on probation

at the time of the pres ent offens es.



        In this appeal, the Defendant argues that the eviden ce is leg ally insufficient

to support the theft convictions, that the jury instruction regarding the inference

        1
            Tenn. Code Ann. §§ 39-14-103, 39-14-105(1) - (3), 55-5-108(a)(2), 55-5-111.

        2
           The judgments contained in the record are inconsistent with the transcripts from both the
trial and the s entenc ing hearin g in term s of the c onvicted offens es and the sente nces im posed . W e
will add ress thes e inco nsis tenc ies w hen we c ons ider th e De fend ant’s third is sue on ap pea l.

                                                     -2-
from possession of recently stolen prop erty is unconstitutional, and that the

sentence imposed by the trial court constituted an abuse of discretion in several

respects. After reviewing the record, we conclude that the Defendant’s issues

provid e no b asis fo r the rev ersal o f his conviction s. We do, however, conclude

that the Defendant was erroneously sentenced.           Accordingly, we affirm the

Defe ndan t’s convictions but remand this case to the trial court for resentencing.



        W e begin with a sum mary of the pertinent facts, which are not in serious

dispute. The Defendant is an automobile mechanic and ope rates a garag e in

Warren Coun ty, Tenn essee . Officer Ba rry Powe rs of the McMinnville Police

Department was on a routine patrol during the early morning ho urs of Sund ay,

November 14, 1993, when he noticed a black C hevrolet M onte Carlo parked on

the premises of the Defendant’s garage. Powers became suspicious because

the car did not have a visible license plate and a car fitting that description had

recen tly been re ported s tolen. Po wers ap proach ed the vehicle on foot, shined

his flashlight through the windows, and noticed that the steering column of the car

had been tampered with in such a way as to raise his suspicions further. As a

result, Powe rs che cked the veh icle identification numb er (“VIN”) with the National

Crime Inform ation C enter ( “NCI C”) an d disco vered that Mic hael Viola had

reported the Mo nte C arlo stolen from Murfreesboro, Tennessee on October 27,

1993.



        Other officers soon arrived on the scene, and the Defendant was called to

come to his garage. Once there, the Defendant was asked about the Mon te

Carlo. The Defendant stated that the car appeared on his lot on Saturday

morning, the previous day. He assumed someone had dropped it off and opened

                                         -3-
the car doors and trunk to see if the owner had left a note detailing what needed

to be done to the car. When he could not find a note, he closed and locked the

doors and trunk. No one came to the garage on Saturday to inform him about

what neede d to be do ne to the c ar. At the co nclusion of the work day, the

Defendant left the car as it was. He was not suspicious of these circumstances

because it was fa irly com mon for individ uals to leave their ve hicles for repa ir

while he was not at his garage and come back later to tell him what needed to be

done.



        Given that the Monte Carlo was listed as a stolen vehicle, officers asked

the Defenda nt if there was anything else on the premises which had appeared

under mysterious circumstances.       The Defendant pointed out a late-model

Chevrolet engine which was on the ground next to the garage. He state d that a

man had come by his garage a few days earlier in a truck that was smoking very

badly. He asked the Defendant to put in a new engine which he would supp ly.

The Defendant assumed that the engine sitting on the ground next to the garage

was an engine which the man in the smoking truck had dropped off. The

Defendant did not know the man in the tru ck no r could he remember his name.



        On the ground near the engine was a transmission. According to Officer

John Morgan, the Defendant initially gave conflicting statements regarding the

origin of the transmission.    The Defendant later stated that the man in the

smoking truck had express ed a de sire to pay for the installation of the engine by

giving the Defe ndant a transm ission.        T he Defend ant as sum ed tha t this

transmission had been dropped off by the man in the truck. Officers were able

to determine from the engine and transmission serial numbers that the parts had

                                        -4-
come from a 1989 Chevrolet Blazer which Charles Park reported stolen on

November 6, 1993.



      Officers also discovered that the serial number from an engine in a truck

on the premises had been ground off. The Defendant identified the truck as

belonging to his son and stated that he had recently installed the engine. When

asked about the origin of the engine, the Defendant replied that he could not

remember because he had had the engine for more than a ye ar. Officers asked

him if he had a receipt or o ther reco rd with inform ation abo ut the eng ine. The

Defendant replied that he did not have a receipt because he had had the engine

for so long and that he did not keep records of engine serial numbers or

information of that type.



      Officers confiscated the stolen Monte Carlo, the stolen engine and

transmission, and the truck with the engine lacking a serial number.          Law

enforcement officials later de cided to run a dvertis eme nts in the newspaper and

on radio stations asking anyone who had recently purchased an engine or

transmission from the Defen dant to ha ve the pa rts check ed by po lice.        In

response to these advertisements, numerous individuals brought vehicles to be

checked. Of those individuals, police found four whose vehicles c ontaine d parts

identified as having been stolen or whose serial numbers had been ground.

Those individuals, Jeremy Winfre y, Ronald Wilmore, Jeremy Campbell, and

Randy W a namaker, had each purchased the parts in question from the

Defen dant.




                                        -5-
        On January 14, 1994, the Warren County grand jury returned a four-count

indictment against the Defendant based on the November 14, 1993, search of the

Defendant’s garage and discover y of stolen o r deface d parts. That ind ictmen t,

number 6736, is summarized in the following table:

 COUNT         OFFENSE              CODE             PROPERTY AT           ORIGINAL         DATE AND
                                   SECTION              ISSUE               OWNER           PLACE OF
                                                                                             THEFT

    1      theft >$1000          39-14-103;        1986 Chevy Monte       Michael Viola   10/27/93;
                                 39-14-105(3)      Carlo                                  Murfreesboro,
                                                                                          Tennessee

    2      theft >$1000          39-14-103;        1989 Chevy engine      Charles Park    11/6/93;
                                 39-14-105(3)      and transmission                       Chattanooga,
                                                                                          Tennessee

    3      failure to keep       55-5-108(a)(2)    350 cubic inch         unknown         not applicable
           records                                 Chevy engine from
                                                   son’s truck

    4      possession of         55-5-111          350 cubic inch         unknown         not applicable
           engine with serial                      Chevy engine from
           number removed                          son’s truck



On May 13, 1994, the Warren County grand jury returned a five-count indictment

against the Defendant based on the vehicles inspected as a result of the

newspaper and ra dio advertisem ents.                       T hat ind ictme nt, num ber 67 75, is

summarized in the following table:

 COUNT      OFFENSE              CODE           PROPERTY      PURCHASER        ORIGINAL       DATE AND
                                SECTION          AT ISSUE                       OWNER         PLACE OF
                                                                                               THEFT

   1      theft >1000        39-14-103;     1991 Chevy        Jeremy           William      7/25/93
                             39-14-105(3)   engine            Winfrey          Gaskin       Norcross,
                                                                                            Georgia

   2      theft >500         39-14-103;     1988 Ford         Ronald           Clarence     2/11/93;
                             39-14-105(2)   engine and        Wilmore          Masters      Duluth,
                                            transmission                                    Georgia

   3      theft >500         39-14-103;     1991 Chevy        Jeremy           Steve        10/27/92;
                             39-14-105(2)   transmission      Campbell         Bennett      Chattanooga,
                                                                                            Tennessee

   4      possession of      55-5-111       350 cubic         Jeremy           unknown      not applicable
          engine with                       inch Chevy        Campbell
          serial number                     engine
          removed

   5      possession of      55-5-111       350 cubic         Randy            unknown      not applicable
          engine with                       inch Chevy        Wanamaker
          serial number                     engine
          removed




                                                    -6-
Upon the State’s motion, the two indictments were consolidated for trial. The

Defendant was tried from March 28 to March 30, 1995.



      At trial, the Defe ndant d id not dispute that the property alleged to have

been stolen wa s in fact stole n. In add ition, he did n ot dispute that the pa rts

alleged to lack serial numbers did not in fact have serial numbers. In short, the

Defendant freely admitted that the stolen or defaced property was discovered on

his business prem ises an d that h e had installe d stole n or de faced prope rty in

some of his clients’ vehicles. His defense focused instead upon his mental state.

His chief contention at trial was that he did not knowing ly possess stolen or

defaced pro perty.



      In support of that defense, the Defendant testified that although the black

Monte Carlo (indictment #6736, count 1) appeared at his garage without an

explanation, lacked a license plate, and contained a steering column which had

been tampered with, he did not know that it was stolen. He stated that it was

fairly comm on for individuals to leave vehicles for repair without his knowledge

and return later to explain wh at needed to be done to the vehicles. W ith regard

to the 1989 C hevy engine a nd transm ission stolen from Charles Pa rk (indictment

#6736, count 2) , the Defe ndant te stified that he believed th at the parts were

dropped off at his garage by the man in the smoking truck, as he had told Officer

Morgan on November 14, 1993. The Defendant was unaware that they were

stolen. Moreover, the Defendant offered the testimony of Shirley Jones, who

stated that he had overheard part of a conversation between the Defendant and

a man in a smoking truck a few days before November 14, 1993. Jones testified




                                        -7-
that the conversation concerned a transaction in which the Defendant was going

to install an engine in the smoking truck in exchange for a transmission.



         With regard to the stolen engines and transmissions which the Defendant

installed in customers’ vehicles (indictment #6775, counts 1-3), he again claimed

that he was not aware that the parts were stolen. He testified that he purchased

engines and tra nsm issions from individu als as well as from dealers and salvage

yards.     The Defendant produced several receipts indicating that he had

purchased engin es or transmissions from individuals, paying in cash.            He

admitted, however, that he could not link those specific receipts to the stolen

parts installed in c ustom ers’ vehicle s, appare ntly because he failed to note the

serial numbe rs of the parts involved o n the rec eipts. Furthermore, the Defendant

stated that althou gh he a ttempte d to locate the individuals named on the receipts,

he was un succes sful. The Defendant testified that he had never bought an

engine or transmission that he knew was stolen and that he had paid the

individu als named on the receipts a fair market value for the parts. In addition,

the Defendant pointed out that he had reimbursed or purchased new parts for the

custome rs in whose vehicles he had installed stolen or defaced engines or

transmissions.



         With regard to the charges concerning engines or transmissions with

defaced serial numb ers (indictme nt #673 6, coun ts 3-4; indictm ent #67 75, cou nts

4-5), the Defendant testified that he simply did not look at serial n umb ers in the

course of his business and that he was unaware that he was supposed to record

these numbers as part of his record-keeping. In addition, the Defendant stated

that other similar busin esses in his are a did not record serial numb ers either.

                                         -8-
Given that he did not loo k for se rial num bers, th e Def enda nt testifie d that h e did

not knowingly possess engines or transmissions whose serial numbers had been

defaced or removed.



       The Defendant also offered proof that he frequently worked on vehicles for

police officers. In so doing, he never attempted to prevent them from looking

around his garage while they waited for their vehicles to be serviced. It is

undisputed that the stolen or defaced property which is the subject of indictment

number 6736 was in plain view on the Defendant’s business premises.



       After cons idering the pro of pres ented at trial, the jury found the Defendant

not guilty on co unt one of indictm ent num ber 673 6 (theft of the Monte Carlo). On

counts two, three and four of indictment number 6736, however, the jury found

him guilty as ch arged. W ith regard to indictment nu mber 67 75, the jury found him

guilty as charged on counts two, four and five. On count one, however, charging

the Defen dant with th eft of prope rty valued betwe en $1000 and $10,0 00, the jury

found him guilty of the lesser grade of theft of property valued between $500 and

$1000. Likewise, in count three, charging theft of prop erty valued between $500

and $1000, the jury found him guilty of the lesser grade of theft of property valued

at $500 or less. The Defendant now appea ls to this Co urt, challe nging both h is

convictions and his sentences.



       In his first issue on appeal, the Defendant argues that the evidence was

legally insufficient to suppo rt his theft con victions. W e note that the Defendant

does not challenge the sufficiency of the evide nce for h is conviction s dealing with

engines or transm issions lac king seria l numb ers. The Defen dant’s ap pellate

                                           -9-
challenge to his theft convictions, like his proof at trial, focuses on his m ental

state. He contends that he received the stolen property at issue under bona fide

circumstances, had no reason to believe that the property had been stolen, and

was in fact unaware that the property had been stolen. As a result, he argues

that he did not know ingly obtain or exercise control over the stolen property.



       When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and va lue to b e given the evid ence , as we ll as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 62 3 (Ten n. Crim. App. 1987).           Nor may this court reweigh or

reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).




       A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the stron gest legitim ate

view of the evidenc e and a ll inference s therefro m. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.

                                          -10-
      A crime ma y be established by circumstantial evid ence a lone. State v.

Tharpe, 726 S.W .2d 896 , 899-90 0 (Ten n. 1987 ). However, before an accused

may be convicted of a criminal offense based only upon circumstantial evidence,

the facts and circumstances “must be so strong and coge nt as to exclude e very

other reaso nable hypothesis sa ve the guilt of the defen dant.” State v. Crawfo rd,

225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt

must be woven around the defendant from which he cannot escape and from

which facts a nd circ ums tance s the ju ry could draw n o othe r reaso nable inference

save the guilt of the defendant beyond a reaso nable d oubt.” Id. at 484, 613. The

weight of the circumstantial evidence and whether every other hypothesis except

that of the guilt of the defendant has been excluded by the evidence presented

are matters for the jury to determ ine. State v. Tharpe, 726 S.W.2d 896 (Tenn.

1987); William s v. State, 520 S.W .2d 371 (Te nn. Crim. Ap p. 1974).



      The offens e of the ft of prop erty is de fined a s follows: “A person comm its

theft of property if, with intent to deprive the owner of property, the person

know ingly obtains or exercise s con trol ove r the pro perty w ithout th e own er’s

effective consent.” Tenn. Code Ann. § 39 -14-1 03. It is w ell-esta blishe d in

Tennessee that the possession of recently stolen property gives rise to an

inference that the posse ssor has stolen it or had knowled ge the prope rty was

stolen and may, in light of surrounding circumstances, support a conviction for

theft. See State v. Land, 681 S.W.2d 589, 591 (Tenn. Crim. App. 1984) (citation

omitted); State v. Ham ilton, 628 S.W.2d 742, 746 (Tenn. Crim. App. 1981)

(citations omitted). Moreover, “the inference arising from the proven fact of

possession of recently stolen property is not destroyed by contradictory evidence,

even the positive testimon y of witnesses . . . .” Bush v. S tate, 541 S.W.2d 391,

                                         -11-
395 (Tenn . 1976). The force of the inference does not vanish upon the offering

of an explanation by the defendant, but rather “remains to be weighed by the jury

against the evid ence offered by defe ndan t in expla nation of his possession of the

recen tly stolen property.” Id.; see also, Land, 681 S.W.2d at 591. The jury was

instructed on elements of the offense of theft as well as the permissible inference

arising from the p ossession of recently stolen prop erty.



       In the case sub judice, the Defendant does not dispute that the items of

property which are the subject of the theft convictions were, in fact, recently

stolen and were in the posses sion of the Defendant. At trial, the Defendant

offered an explanation for his possession of the rec ently stolen prope rty, nam ely

that he was unaware that the property had been stolen. Applying the reasoning

of Bush, Hamilton and Land to the p resen t case , we be lieve it was the province

of the jury to weigh the evidence presented by the State, including the inference

arising from the De fenda nt’s possession of recently stolen property, against the

explanation offered by the Defendant. The jury did so in this case, rejected the

explana tion offered by the Defen dant, an d found him gu ilty on four of five th eft

charges.    From our review of the record, we conclude that the evidence

presented, along with the inference which may properly be drawn from the

possession of the re cently stolen property, is sufficie nt to su pport th e Def enda nt’s

theft convictions beyond a reaso nable doub t. The Defe ndan t’s first issu e is

therefore without m erit.



       In his second issue on appeal, the Defendant argues that the jury

instruction on the infe rence a rising from posse ssion of re cently stole n prope rty

is unconstitutional. He contends that the inference instruction, in effect, requires

                                           -12-
him to explain his poss ession of rece ntly stolen property, thereb y shifting the

burden of proof from the State to him. Thus, he argues that the inference

instruction violates the principles set forth in Sandstrom v. Montana, 442 U.S.

510, 99 S.C t. 2450, 61 L.Ed .2d 39 (1979 ).



      In the case at bar, the trial court instructed the jury on the inference arising

from possession of recently stolen property. The instruction reads as follows:

      Now, if you find beyond a reasonable doubt from the evidence that
      the property in question has been recently stolen and that soon
      thereafter the same property was discovered in the exclusive
      possession of the defendant, his possession, unless satisfactorily
      explained, is ordinarily a circumstance from which you may
      reaso nably draw an inference that the defendant had knowledge
      that the property had been stolen. However, you are not required
      to make this inference. It is for you, The Jury, to determine whether
      the facts and circumstances shown by the evidence in this case
      warrant any inference which the law permits you to draw from the
      possession of recently stolen property. When evidence is offered
      that the defendant was in possession of recently stolen property, the
      defendant has the right to introduce evidence that he came into
      possession of that property lawfully, or possession may be
      satisfa ctorily explained throu gh other circum stances or other
      evidence independent of any evidence or testimony offered by the
      defend ant. In considering whether possession of recently stolen
      property has been s atisfactorily ex plained, yo u are rem inded tha t,
      in the exe rcise o f cons titutiona l rights, the accused need not take
      the witness s tand an d testify. The term “rec ently,” of cou rse, is a
      relative term, an d it has no fixed meaning. Whether property may
      be considered as recently stolen depends upon the nature of the
      property and all the facts and circumstances shown by the evidence
      in the case. The longer the period of time since the the ft, the more
      doubtful becomes the inference that may be drawn from an
      unexplained posse ssion. The correctness of the inference and the
      weight to be given any explanatio n that may be drawn by the
      evidence are matters that must be determined by you, The Jury, and
      you are not bound to accep t either. You must weigh all of the
      evidence presented as to the defendant’s alleged possession of the
      property in question and decide, in light of all the facts and
      circumstances present, whether any inference is warranted. You
      are reminded that the burden of proving the defendant’s guilt of the
      offense beyond a reasonable doubt remains on the State.




                                        -13-
This instruction conform s substa ntially to the one set forth in the Tennessee

Pattern Jury Instruction s.    See T.P.I. -- Crim. 42.20.        Furthermore, after

instructing the jury on the differences between direct and circumstantial evidence,

the trial court charged the jury as follows:

      I have charged you, ladies and g entlem en, co ncern ing ce rtain
      inferences that you, The Jury, may make regarding certain evidence
      in the case. Ho wever, The Jury is not required to make these
      inferences. It is the exclusive province of The Jury to determine
      whether the facts and circumstances shown by all the proof in the
      case warrant the inference which the law perm its you, The Jury, to
      draw. The inference may be rebutted by direct or by circumstantial
      evidence or both , wheth er it exists in the evid ence of the S tate or is
      offered by the defen dant. A lthoug h the d efend ant is not required by
      law to do so, when the defendant offers an explanation to rebut the
      inference raised, you should consider such explana tion, along with
      all the evidence, to determ ine not only the correctness of the
      inference but also the reasonableness of the defendant’s
      explanation. You are not bound to accept either the inference or the
      defen dant’s explana tion.      The State must prove, beyond a
      reaso nable doubt, every element of the offense before the
      defendan t can be found guilty.

These remark s are the extent of the trial court’s instructions regarding the

permissible infere nce arising from possession of recently stolen prop erty.



      The Defendant argues that the instructions regard ing the inference are

unconstitutional in that they impermissibly shift the burden of proof from the State

to him. T his arg ume nt has been repea tedly re jected by Te nnes see c ourts in

cases involving instructions similar to the on es given in the pres ent case . See

Turner v. State, 541 S.W .2d 398 , 401-02 (Tenn . 1976); State v. Craig , 655

S.W.2d 186, 191 (T enn. C rim. App . 1983); Phipps v. State, 3 Tenn. Crim. App.

574, 581, 464 S.W.2d 341, 344-45 , (1970); State v. Jess ie F. H arris, C.C.A. No.

01C01-9509-CR-00303, Davidson County (Tenn. Crim. App., Nashville, July 26,

1996). We declin e to depart from the sound reasoning announced in these

cases. T he De fendan t’s secon d issue is w ithout me rit.

                                        -14-
      In his third issue, the De fenda nt argu es tha t the trial c ourt er red in

sentencing him in se veral resp ects. In particular, he contends that the trial court

erred by sen tencin g him outsid e the a pplica ble sta tutory ra nge fo r two of h is

convictions, by enh ancin g his se ntenc es with in their ranges, by ordering several

of his sentences to run conse cutively, and by failing to impo se an alternative

sentence. For the reasons set forth below, we conclude that the trial court erred

in senten cing the D efenda nt.



      When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determ inations m ade by th e trial court a re correc t.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant fa cts and c ircums tances ." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



      In conducting a de novo review of a sentence, this court must consider: (a)

the evidenc e, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sente ncing an d argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

that the defen dant m ade on his own b ehalf; and (g) the po tential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).




                                         -15-
       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may no t modify th e sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       The trial court conducted a sentencing hearing on April 28, 1995. The

proof relied upon for senten cing wa s essen tially that set forth during the trial. The

record does indicate that in September of 1986 , the Defe ndant w as cha rged with

altering the vehicle identification num ber (“V IN”) of a pickup truck a nd se lling it

to another individual. The Defendant was granted pretrial diversion on those

charges and successfully completed his period of diversion. In addition, the

Defendant pleaded guilty in January of 1989 to two counts of concealing stolen

property over the va lue of $20 0. The D efenda nt was sentenc ed as a Rang e I,

standard offender to concurrent terms of six years imprisonment. After serving

three months incarceration, the Defendant was placed on probation for the

remainder of his six-year sentence. He was on probation at the time of the

present offenses. According to his probation officer, the Defendant fully complied

with the terms of his probation until the commission of the present offenses.



       At the conclusion of the hearing, the trial court found four enhancement

factors applicable: 1) That the Defendant had a previous history of criminal

convictions or beh avior in a ddition to that n eces sary to estab lish the range; 2)

that the offenses involved more than one victim; 3) that the Defendant had a

previous history of unwillingness to comply with the conditions of a sentence

                                          -16-
involving release in the community; and, 4) that the Defendant was on probation

from a prior felony conviction at the time of the commission of the offenses.

Tenn. C ode Ann . § 40-35-114 (1), (3), (8), (13)(C).



       The Defendant suggested as mitigating factors that he suffered from a

heart condition, that he had served in the military, that he had shown remorse

over the inc idents, that he had made restitution to his customers, and that

because of his debts and sole o wners hip of th e gara ge, inc arcera tion wo uld

cause financial ruin. The trial court found one mitigating factor applicable, that

the Defen dant’s co nduct n either caused nor threatene d serious bod ily injury.

Tenn. Code Ann. § 4 0-35-11 3(1). The trial court found no substantial merit to the

remain ing mitiga ting factors sugge sted by th e Defe ndant.



       The trial court sentenced the Defendant as a Ran ge I, standard o ffender.

Based on the applicable enhancing and mitigating factors, the trial judge set the

sentences as follows:

 INDICTMENT,        CONVICTED           OFFENSE            APPLICABLE     SENTENCE   CONCURRENT/
    COUNT            OFFENSE             CLASS               RANGE         IMPOSED   CONSECUTIVE

 #6736, count 2   theft >$1000           D felony      2-4 years          3 years    consecutive

 #6736, count 3   failure to keep           C          up to 30 days      30 days    concurrent
                  required records     misdemeanor

 #6736, count 4   possession of             C          up to 30 days      30 days    concurrent
                  engine with serial   misdemeanor
                  number removed

 #6775, count 1   theft >$500            E felony      1-2 years          4 years    consecutive

 #6775, count 2   theft >$500            E felony      1-2 years          2 years    consecutive

 #6775, count 3   theft <$500               A          up to 11 months,   2 years    consecutive
                                       misdemeanor     29 days

 #6775, count 4   possession of             C          up to 30 days      30 days    concurrent
                  engine with serial   misdemeanor
                  number removed

 #6775, count 5   possession of             C          up to 30 days      30 days    concurrent
                  engine with serial   misdemeanor
                  number removed




                                                    -17-
In ordering the four theft sentences to run consecutively, the trial judge made

references to his findings that the Defendant’s service as a “fence” for stolen

autom obile parts allowed oth ers to remain in and profit from the business of

stealing vehicles and that the Defen dant had failed to re spond to less severe

sentences. The trial judg e did not, however, mention a particular statutory factor

in support of consecutive sentences. Given the consec utive nature of the theft

sentences, the effective sentence imposed for these offenses was eleven years.



        The Defendant requested that the trial court impose some form of

alternative sentence. T he trial court declined to do so, instead ordering straight

confinem ent. In so doing, the trial court made reference to the Defendant’s prior

convictions involving circ umsta nces similar to tho se in th e cas e at ba r and h is

failure at past rehabilitation efforts, namely his prior service of pretrial diversion

and probation.



        The trial court also revoked the Defendant’s probation for his 1989

convictions for concealing stolen property and ordered him to serve the

remainder of his six-year term for those o ffenses. Furtherm ore, the trial court

ordered the sentences for the present offenses to run consecutive to the six-year

sentence becau se the pr esent o ffenses w ere com mitted w hile the D efenda nt was

on probation . Tenn. Co de Ann. § 4 0-35-115(b )(6).3



        On appeal, the D efendant first conte nds that the trial court improperly

sentenced him outside the applicable statutory range for two of his convictions,



        3
           In this appeal, the Defendant does not challenge the revocation of his probation or the order
that the six-year term run consecutive to the sentences for his present offenses.

                                                  -18-
theft of property valued between $500 and $1000 (indictment number 6775,

count one) an d theft of pro perty valued at $500 or less (indictment number 6775,

count three). We agree. It appears that the trial court inadvertently sentenced

the Defendant according to the offenses for which he was indicted rather than the

offenses for which he was convicted.



      In indictment number 6775, the Defendant was charge d in coun t one with

theft of prope rty valued b etween $1000 and $1 0,000. Tenn. Code Ann. § 39-14-

105(3). In count three of that same indictment, he was charged with theft of

property valued b etween $500 a nd $10 00. Tenn. Code A nn. § 39-14-1 05(2).

The trial transcript clearly indicates, however, that the jury found the Defendant

guilty of lesser grades of theft for those offenses. More specifically, the jury

returned a verdict of guilty of theft of property valued between $500 and $1000

for count one an d guilty of the ft of property valued at $500 or less for count three.

Tenn. Code A nn. § 39-14-1 05(1), (2). Thus, the Defendant was charged in count

one with a class D felony but was convicted of a class E felony. Tenn. Code Ann.

§ 39-14-105(2), (3). Similarly, the Defendant was charged in count three with a

class E felony but was convicted of a class A misdemeanor. Tenn. Code Ann.

§ 39-14-105(1), (2). The applicable sentencing ranges for a class E felony and

a class A misdemeanor are one to two years and up to eleven months and

twenty-nine days, respectively. Tenn. Code Ann. §§ 40-35-112(a)(5), 40-35-

111(e)(1).



      The trial court, how ever, sen tenced the Defe ndant to four years on count

one and two years on count three. The judgments for counts one and three

indicate that the trial court found the Defendant guilty of and sentenced according

                                         -19-
to the indicted offenses rather than the convicted offenses. Furthermore, the

orders entering the guilty verdicts into the minutes of the trial court also reflect

that the Defendant was found guilty as charged on counts one and three of

indictment number 6775. W hat caused thes e errors is unclea r. It is clear,

however, that these sentences are outside the applicable statutory sentencing

range.



        W e also note that the judgment for count three of indictment number 6736

is inconsistent with the transcript of the sentencing hearing. The judgment for

that count (failure to keep required records) indicates that the thirty-day sentence

is to be served consecutively. The transcript of the sentencing h earing, howe ver,

clearly indicates that the trial court stated that “Counts 4 and 5 of Case N o. F-

6775, and Counts No. 3 and 4 of F-67 36 run con current with one another and

concurrent with any sentence impo sed b y This Cour t.”                         The caus e of this

inconsistency is u nclear.



        Given the errors and inconsistencies outlined above, we conclude that we

must reverse and set aside the Defendant’s sentences and remand this case for

resentencing. We will briefly address the Defendant’s remaining allegations of

sentencing errors to provide g uidanc e to the trial co urt upon reman d and to

facilitate possible further appellate review.



        The Defendant contends that the trial court improperly applied the

enhancement factor applicable to offenses involving more than one victim.4


        4
           The Defendant also contends that the trial court erred in applying the enhancement factor
for offen ses wh ere the a mou nt of dam age to pr operty tak en from the victim was pa rticularly great.
Tenn. Code A nn. § 40-35-114(6). From our review of the record, we do not believe that the trial court

                                                  -20-
Tenn. Code A nn. § 40-35-1 14(3). He argues that this enhancement factor is not

applic able because he was convicted of multiple offenses involvin g sepa rate

victims for each offense. We agree that the record before u s does no t support

the application of tha t enhancem ent factor.



        The trial court made reference to the Defendant’s customers in whose

vehicles he had insta lled stolen p arts as victim s of the the fts in addition to the

original owners of the stolen parts. We do not believe that the custo mers q ualify

as theft victim s for the purpo se of th is enh ance men t factor. S imply p ut, there is

no proof that the Defendant knowingly obtained or exercised control over any

property of the customers with the intent to deprive them of that property. Thus,

because the Defendant was separately convicted for offenses against each

victim, the enhancement factor for offenses involving more than one victim is not

applicable. See State v. Williamson, 919 S.W .2d 69, 82 (T enn. Crim. A pp. 1995);

State v. Clabo, 905 S.W .2d 197, 206 (Tenn. Crim . App. 1995 ).



        The Defendant also challenges the trial court’s imposition of con secutive

sentences for each of his theft conviction s. In reviewing this challen ge, we are

hampered by the fact that the trial judge did not specify which statutory provision

supported his imposition of consecutive sentences. Upon remand, if the trial

judge again orders consecutive sentences, he should make specific findings of

the statutory provision and facts supporting conse cutive sen tences . See Tenn.

R. Crim. P. 32 (c)(1).




applied this factor. As we detailed above, the trial court specifically mentioned four factors. Section
40-35-114(6) was not among those four factors.

                                                  -21-
      W e do note that in imposing consecutive sentences for the theft offenses,

the trial judge made reference to his finding that the Defendant’s service as a

“fence” for stolen automob ile parts allowed othe rs to remain in and profit from the

business of stealing vehicles. Presum ably the trial co urt was re ferring to fac ts

supporting conse cutive sen tencing p ursuan t to Tennessee Code Annotated

section 40-35-115(b)(1).      That section provides that a court may order

consecu tive sentences upon a finding that the “defendant is a professional

criminal who has knowingly devoted such defendant’s life to criminal acts as a

major source of livelihood.” From our review, however, we do not believe that the

record before us supports consecutive sentencing pursuant to section 40-35-

115(b)(1).   The State offered no proof at trial or at sentencing that the

Defe ndan t’s criminal acts we re a “major so urce of livelihood.”      The record

indica tes tha t the D efend ant wa s a po pular m echa nic and worked on hundreds

of vehicles from the time he opened his garage in January of 1992 to the time of

the offenses. As the Defendant points out, howe ver, mass media advertise ments

to locate stolen parts installed by the Defendant yielded on ly four custo mers w ith

stolen or defaced parts ou t of num erous ind ividuals ch ecked by the po lice. In

addition, the record reveals that the D efendant is fifty-seven ye ars old and was

gainfully employed prior to th e ope ning o f his garage. We do not believe these

facts demonstrate that the Defendant’s criminal acts were a major source of

livelihood. As a result, we conclude that the record before us do es not supp ort

consecutive sentencing for the Defendant as a “professional criminal” pursuant

to section 40-35-1 15(b)(1) . See State v. Linda Culver, C.C.A. No. 01C01-9503-

CC-000 57, Stewart C ounty (Ten n. Crim. App ., Nashville, Nov. 30, 19 95).




                                        -22-
      Finally, the Defendant challenges the trial court’s imposition of a sentence

of straight confinement rather than some type of alternative sentence. The

record indicates that the trial court ordered straig ht confinem ent without extens ive

comment on the Defendant’s request for an alternative sentence. The trial judge

did make reference to the Defendant’s prior convictions involving circumstances

similar to those in the case at bar and his failure at past rehabilitative efforts,

namely his prior service of pretrial diversion and probation.



      Of course, a defendant who “is an especially mitigated or standard offender

convicted of a Clas s C, D, o r E felony is p resum ed to be a favorab le candid ate

for alternative sentencing option s in the ab sence of eviden ce to the c ontrary.”

Tenn. Code A nn. § 40-35-1 02(6).         Our sentencing law also provides that

“convicted felons committing the most severe offenses, possessing criminal

histories evincing a clear disregard for the laws and morals of society, and

evincing failure of pa st efforts at re habilitation, s hall be give n first priority

regarding sentences involving incarceration.” Tenn. Code A nn. § 40-35-1 02(5).

Thus, a defenda nt sentenced to eight years or less who is not an offender for

whom incarc eration is a priority is presumed eligible for alternative sentencing

unless sufficient evidence rebuts the presumption. However, the act does not

provide that all offend ers who meet th e criteria are entitled to such relief; rather,

it requires that sente ncing iss ues be determ ined by th e facts and circumstances

presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 19 87).



      Additionally, the principles of sentencing reflect that the sentence shou ld

be no greater than that deserved for the offense committed and should be the

                                         -23-
least severe measure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should also

consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in

determining the sentence alternative. Tenn. C ode Ann . § 40-35-103 (5).



       When imposing a sentence of total con fineme nt, our Criminal Sentencing

Reform Act ma ndates the trial cour t to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations

which militate against alternative sentencing include: the need to protect so ciety

by restrain ing a d efend ant ha ving a lo ng his tory of criminal conduct, whether

confinement is particu larly app ropria te to effe ctively deter o thers lik ely to co mm it

a similar offense, the need to avoid depreciating the seriousness of the offense,

and the need to order confinement in cases in which less restrictive measures

have often or recen tly been unsuccessfully applied to the defendant. Tenn. Code

Ann. § 40-35-103 (1).



       In the case sub judice, as the trial court noted, the Defendant was charged

in 1986 w ith altering the VIN of a pickup truck a nd se lling it to ano ther ind ividual.

The Defendant was granted pretrial diversion for those o ffenses. In January of

1989, he pleaded guilty to two counts of concealing stolen property value d in

excess of $200 and was sentenced to concurrent terms of six years. After

serving three months, he was placed on probation for the remainder of his term.

He was indicted on the present charg es in Janu ary an d May of 199 4. Give n this

history of criminal cond uct and the failure o f less restrictive measures, we cannot

conclude that the trial judge abused his discretion by ordering straight

confinem ent. See Tenn. C ode Ann . § 40-35-103 (1)(A), -103(1)(C ).

                                           -24-
       W e do po int out, h owev er, that u pon re man d the tria l judge should consider

the Defendant’s eligibility for an alternative sentence and the princip les set forth

in Tenn essee Code Annota ted section 40-35-103. In setting the manner of

service of the sentences, the trial judge should make reference to the relevant

statutory p rovisions a nd the sp ecific facts s upportin g his dec ision.



       For the reas ons se t forth in the d iscussio n above , we con clude tha t the

Defe ndan t’s issues on appeal provide no basis for the reversal of his convictions.

W e do, however, believe that the trial court erred in sentencing the Defendant.

Acco rdingly, we affirm the Defendant’s convictions but remand this case for

resentencing consistent with the principles set forth in this opinion.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
JOSEPH M. TIPTON, JUDGE




                                          -25-
