         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 4, 2003

                 STATE OF TENNESSEE v. CLINT RAY MCCOY

                   Direct Appeal from the Circuit Court for Henry County
                            No. 13231    Julian P. Guinn, Judge



                     No. W2002-01017-CCA-R3-CD - Filed May 23, 2003


The Defendant, Clint Ray McCoy, pled guilty to twelve counts of theft: one Class C felony, nine
Class D felonies, one Class E felony, and one Class A misdemeanor. Sentencing was left to the
discretion of the trial court. The trial court ordered the Defendant to serve an effective sentence of
eight years, with one year to be served in confinement and the balance to be served in the
Community Corrections program. In this direct appeal, the Defendant argues that the trial court
erred by enhancing his sentences and by ordering him to serve one year in confinement. We affirm
the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Clint Ray Moody.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION


      On January 16, 2002, the Defendant pled guilty to twelve counts of theft. The thefts occurred
between March 1999 and March 2001, while the Defendant was employed as the general manger of
a Hampton Inn in Paris. During that time, the Defendant stole $110,004.42 from Hampton Inn. The
Defendant described his modus operandi in the presentence report:

       While employed at the Hampton Inn in Paris, I used the company credit card for my
       personal use and took cash. . . . . During my employment on different accounts…I
       received “payments” to clear the accounts to a zero balance. I know this is not a
       correct accounting procedure but I had no accounting training and did not know how
       else to clear up these accounts. I do admit my guilt and do not deny doing wrong.

In making its sentencing determination, the trial court applied as an enhancement factor that the
Defendant abused a position of public or private trust. See Tenn. Code Ann. § 40-35-114(16) (Supp.
2002). The court found no mitigating factors.

        The Defendant was convicted of one Class C felony, nine Class D felonies, one Class E
felony, and one Class A misdemeanor. He was sentenced as a standard, Range I offender. The
sentencing range for a standard offender convicted of a Class C felony is from three to six years. See
Tenn. Code Ann. § 40-35-112(a)(3). In sentencing the Defendant, the trial court began with the
minimum sentence, three years, which it enhanced by one year based upon the abuse of public or
private trust, resulting in a sentence of four years for the Class C felony conviction. A Range I
sentence for a Class D felony is from two to four years. See id. § 40-35-112(a)(4). Again, the trial
court began with the minimum sentence, two years, which it enhanced by two years, resulting in a
sentence of four years for each of the Defendant’s nine Class D felony convictions. The sentencing
range for a standard offender convicted of a Class E felony is from one to two years. See id. § 40-
35-112(a)(5). The court began at the minimum sentence, one year, which it enhanced by one year,
resulting in a sentence of two years for the Defendant’s Class E felony conviction. The sentence for
a Class A misdemeanor is not to exceed eleven months and twenty-nine days, see id. § 40-35-
111(e)(1), and this is the sentence the trial court ordered the Defendant to serve.

        The trial court ordered partial consecutive sentences, resulting in an effective sentence of
eight years. The trial court ordered the sentence to be split with the Defendant serving the first year
in confinement, with the balance of the sentence to be served in the Community Corrections
program. The Defendant argues that the trial court erred in its application of the enhancement factor
and by ordering him to serve the first year of his sentence in confinement.

        When an accused challenges the length, range, or 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 determinations
made by the trial court are correct. See 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 facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).


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        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court 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 not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        First, the Defendant challenges the enhancement of his sentences based on his abuse of a
position of public or private trust. Tennessee Code Annotated section 40-35-114(16) states,

         If appropriate for the offense, enhancement factors, if not themselves essential
         elements of the offense as charged in the indictment, may include:
         …
         [t]he defendant abused a position of public or private trust, or used a special skill in
         a manner that significantly facilitated the commission or the fulfillment of the
         offense.

See Tenn. Code Ann. § 40-35-114(16) (Supp. 2002).

        The Defendant does not argue that the application of the public/private trust enhancement
factor was improper under our sentencing laws. Rather, he points to the case of Sonya D. Herndon,1
an allegedly similar case in which the public or private trust enhancement factor was not applied.
First of all, we note that the Defendant failed to provide a citation to this case in his brief, and we
were unable to locate it. Although the Defendant attached several documents apparently pertaining
to Ms. Herndon’s case, including the indictment charging her with forgery, her guilty plea, and the
order of the trial court placing her on probation, there is no record of the facts in her case, the trial
court’s rationale for fully probating her sentence, or any discussion of the application of the
public/private trust enhancement factor.

         While our sentencing act encourages the elimination of disparate sentences when appropriate
to ensure “fair and consistent treatment of all defendants by eliminating unjustified disparity in
sentencing,” Tenn. Code Ann. § 40-35-102(2), differences in sentences are appropriate where they
relate to differences in the offender or in culpability. See State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). Each case must be considered on its own merits and depends on its own unique set of facts.
See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). In this case, the Defendant
abused his position as a general manger of a hotel by stealing over $100,000 from his employer. The
Defendant has failed to show that the application of the public/private trust enhancement factor to
his sentences was improper, and this issue is, therefore, without merit.




         1
           The documents attached to the D efendant’s brief pertaining to the case against M s. Herndon state her name
as So nia D. Hen don.

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        Next, the Defendant argues that the trial court erred by ordering him to serve the first year
of his sentence in confinement. A defendant who “is an especially mitigated or standard offender
convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6);
State v. Lane, 3 S.W.3d 456, 462 (Tenn. 1999). Guidance regarding what constitutes “evidence to
the contrary” which would rebut the presumption of alternative sentencing can be found in
Tennessee Code Annotated section 40-35-103(1), which sets forth 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[.]

See State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823 S.W.2d 166, 170 (Tenn.
1991).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

       Again, the basis of the Defendant’s challenge to the trial court’s sentencing decision is that
Sonya Herndon received a fully probated sentence. For the reasons stated above, this argument must
fail.

        In ordering the Defendant to serve the first year of his sentence in confinement, the trial court
stated, “I am of the opinion that confinement is necessary to protect the public, that it’s necessary
to avoid depreciating the seriousness of this offense.” The court also stated, “I’ve considered the
deterrent effect, although it’s not weighed heavily.” Either of these considerations may be sufficient
to warrant a period of confinement. The record reveals that the Defendant stole $110,004.42 from
his employer while he was serving as the general manager. The thefts occurred over a rather
substantial length of time demonstrating that this was not an isolated event, but rather one that
involved a sustained intent to commit the criminal acts. In our opinion, the trial judge acted within
his discretionary authority when he ordered one year to be served in confinement. This issue is
without merit.

        The judgment of the trial court is affirmed.




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      ___________________________________
      DAVID H. WELLES, JUDGE




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