          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             MAY SESSION, 1999
                                                         FILED
                                                           August 6, 1999
STATE OF TENNESSEE,                   )   C.C.A. NO. 02C01-9806-CR-00166
                                                       Cecil Crowson, Jr.
                                      )
                                                      Appellate Court Clerk
            Appellee,                 )
                                      )   SHELBY COUNTY
V.                                    )
                                      )
KAVIOUS L. NEWSOM and                 )   HON. CHRIS CRAFT, JUDGE
SHANDRA WASHINGTON,                   )
                                      )
            Appellants.               )   (THEFT OVER $1,000.00)



FOR THE APPELLANTS:                       FOR THE APPELLEE:

CHRISTINE D. WORLEY                       PAUL G. SUMMERS
Attorney for Defendant Newsom             Attorney General & Reporter
200 Jefferson Avenue, Suite 1313
Memphis, TN 38103                         PATRICIA C. KUSSMANN
                                          Assistant Attorney General
BILL AN DER SON , JR.                     2nd Floor, Cordell Hull Building
Attorney for Defendant Washington         425 Fifth Avenue North
142 North Third Street, Third Floor       Nashville, TN 37243
Memphis, TN 38103
                                          JOH N W. P IERO TTI
                                          District Attorn ey Ge neral

                                          DAN BYER
                                          Assistant District Attorney General
                                          Criminal Justice Center, Suite 301
                                          201 Poplar Avenue
                                          Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION
      The Defendants, Kavious L. Newsom and Shandra Washington, appeal as of

right from their se ntence s impo sed by th e Shelb y Coun ty Crimina l Court. Bo th

Defen dants pled g uilty to the charge of theft over $1,000.00. Defendant Newsom

petitioned the cour t for suspe nsion of h is sentence or place ment in comm unity

corrections. Defendant Washington requested judicial diversion. At the sentencing

hearing, the trial court denied any form of alternative sentencing for Defendant

Newsom, instead s entenc ing him to serve two (2) years of incarceration. Defendant

Washington was sentenced to serve three (3) years. Of this sentence, Washington

was ordered to serve sixty (60) days incarceration on the weekends and was placed

on probation by the trial court for two (2) ye ars. Both Defendants appeal the manner

of service of their sentences. We affirm as to both Defendants.



      When an accused challenges the length, range or the manner of service o f 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. Tenn. Code

Ann. § 40-35-40 1(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 circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



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

evidence, if any received at the trial and the 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 condu ct involved; (e) any statutory

mitigating or enhancement factors; (f) any statem ent tha t the de fenda nt ma de on his

                                          -2-
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. § § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d

859, 863 (T enn. Crim. A pp. 1987).



       If our rev iew refle cts tha t the trial court followed the statutory sentencing

procedure, impo sed a lawful s enten ce afte r havin g given due consideration and

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

made finding s of fac t adeq uately supported by the record, then we may not mo dify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       At the guilty plea hearing, the Assistant District Attorney announced the proof

it would have presen ted had there be en a trial. The owners of the organization Pop

Tunes became aware of substantial losses they had sustained. The owners hired

private investigators to use surveillance cameras and to perform physical

surveillance of the store to determine the source of the losses in the amount of

$180,000.00. While conducting the surveillance, the investigators observed these

Defendants involved in a joint effort to steal many compact discs from Pop Tunes.




       The Defen dants requested a lternative sentencing. Minnie Patricia Newsom,

Defendant New som ’s mo ther, tes tified on his behalf. Mrs. Newsom stated that she

did not agree with the Defendant’s actions. The Defendant was em ployed w ith

General Construction Company at the time of the hearing, attended Sunday School

and helped to coach a baske tball progra m at a local high school. Because she has

diabetes, Defendant Newsom assisted in caring for her. Mrs. Newsom was not

                                             -3-
aware of the amount or value of stolen compact discs the Defendant had stolen from

Pop T unes.



      Defendant Newsom testified that he was married and had two (2) children,

one from a previous marriage. Newsom had been employed as a field supervisor

for General Construction Contractors since August of 1996 at the time of the

hearing. He was also enrolled at the Shelby State Community College in pursuit of

his respiratory therapy license.     Defendant Newsom denied using drugs.             He

admitted to consuming alcohol, but only on special occasions.                  Newsom

acknowledged his prio r felony drug c onvictio n in 19 91. He served a sen tence of split

confinement involving four (4) months of incarceration, followed by probation. He

also admitted having pending charges for driving on a revoked license, but stated

that he no w had a valid driver’s lice nse.



      Defendant News om de scribed h is actions in this theft as “just bad ju dgme nt.”

Defendant was not an employee of Pop Tunes, but his girlfriend, Defendant

Washington, was the store manager.              Newsom estimated that he had stolen

compact discs from the store on approximately three (3) or four (4) occasions, taking

an average of three (3 ) to five (5) discs each tim e. Howeve r, Newsom admitted that

on the last occasion during which he was caught by the investigators, he had taken

many more th an three (3) to five (5) dis cs. Newsom explained that he took so many

more on tha t occa sion b ecau se it wa s Defe ndan t W ashin gton’s last nig ht work ing

at Pop Tunes. He described that on the evening he was caught by the investigators,

he walked throughout the store, picked up discs off the racks, and then took them

to the counter. Defendant Washington then removed the security wrapping and put

them in a box. After the box was full, Newsom exited the store with th e box. He

                                              -4-
would not state how many discs were stolen that night. Newsom stated that he was

willing to do whatever it took to conform to any terms of probation imposed.



      Defendant Washington did not present any evidence at the sentencing

hearing.



      The trial court stated that D efend ant “jus t shou ld have know n bette r. He’s

already had an alternative sentence.” In reviewing the factors of probation, the trial

court found that Defendant basically went through the store choosing which compact

discs he wanted to steal and then took them. In reviewing De fenda nt Ne wsom ’s

prior criminal history, he found that Defendant had either sold or possessed drugs

with the intent to sell before and was given the oppo rtunity for an alternative

sentence on that c harge. In addition, Defendant Newsom had been arrested for

driving on a revoked licens e and onc e for failure to pay patern ity support. The court

stated it could not find that Defendant might “reasonably expect to be s ucce ssfully

rehab ilitated a lready beca use a ppare ntly jail did n’t mean that mu ch to him the first

time. He just didn’t get the point. He didn’t, quote, learn his lesson, unquote.” In

addition, the trial court found that the society had an interest in being protected from

future crim inal cond uct by De fendan t News om.



      It is correct that the trial court stated during its ruling that an important factor

in denyin g an alternative sentence was that measures less restrictive than

confinement had recen tly and frequently been applied unsuccessfully to the

Defen dant. Since the previous conviction of Defendant N ewsom was in 1991, we

are unable to agree that a sentence less restrictive th an co nfirme nt had “recen tly

and frequently” been applied unsuccessfully to the Defendant. However, the trial

                                            -5-
court also noted that the Defenda nt was previous ly allowed to serve only a portion

of his previou s senten ce by inca rceration , and that h e, neverth eless, contin ued to

com mit crimes, i.e . theft of the m usical co mpac t discs. The trial court w as ob viously

conce rned with the “callou s and o pen” na ture of the th eft in the pre sent cha rges.



       The trial court went on to ob serve that while he could not completely put the

loss upon the shoulders of Defendant Newsom as he was not an employee of the

store, Defendant, “without any regards for it at all . . . stole thousands of dollars from

this comp any. Th at’s the pro blem. I do n’t -- I just don’t se e that he’s repe nted.”

Finally, the trial court found as relevant the fact that Defendant Newsom had two (2)

homes, one (1) of which he had $40,000.00 equity, and was driving two (2) nice

automobiles (a 1993 Le xus and a 1 996 Che vrolet Tahoe ). The court noted that

Defendant and his w ife were employed and were able to provide for themselves, and

that therefore, this was “an absolutely useless, needless crime, and the only thing

I know to do it just to m ake h im serve it.” The trial court found that the presumption

of alternative sentencing was overcome because the Defendant Newsom had an

alternative senten ce previo usly and it did not wo rk. See Tenn. Code Ann. § 40-35-

102(5).



       Defendant Newsom argues that this co urt shou ld review his sentence de novo

without a presumption of correctness. W hile he correctly notes that the trial court

made several misstatements regarding the facts of the case and his prior criminal

record, the trial court la ter corr ected hims elf on th ese m isstate men ts and did no t rely

on any incorrect facts in determining Defenda nt’s sentence. R ather, the trial court

determined the presumption in favor of alternative sentencing was overcome

prima rily beca use m easu res les s restric tive than confin ement had recently been

                                              -6-
applied unsu cces sfully to Defendant Newsom. Defendant Newsom ’s presentence

report reflects that he was convic ted of a drug o ffense , but tha t convic tion wa s six

(6) years prior to this offense. He served four (4) months in prison, with the

remainder of his three (3) year se ntence for the dru g convictio n on pro bation. As

stated above , we fail to find tha t this previous instance of alternative sentencing was

either frequently or recently applied as related to his current conviction. In addition,

there was no specific proof of deterrence within the jurisdiction which the trial court

could have relied upon as a factor overshadowing Defendant Newsom’s presu mptio n

for an alterna tive senten ce. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim.

App. 1995 ) (citation s om itted).   T herefo re, our review of Def enda nt Ne wsom ’s

sentence is de novo without a presumption of correctness.



      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). 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 past efforts at

rehabilitation, shall   be   given   first   priority   regarding   sentences   involving

incarcer ation.” Tenn. Code Ann. § 4 0-35-10 2(5). Th us, a defe ndant s entenc ed to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the

criteria are en titled to such relief; rather, it requires that sentencing issues be

determined by the facts and circu mstan ces pre sented in each c ase. See State v.

Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

                                             -7-
       Defendant argues the trial court erred in refusing to sentence him to an

alternative senten ce und er the Co mm unity Cor rections A ct.            The C omm unity

Corrections Act allows certain eligib le offende rs to participate in community-based

alternatives to incarceration. Tenn. Code Ann. § 40-36-103. A defendant must first

be a suitab le can didate for altern ative se ntenc ing. If so , a defe ndan t is then eligible

for participation in a community corrections program if he also satisfies several

minimum eligibility criteria set forth at Tennessee Code Annotated section 40-36-

106(a).   The statute provides that the criteria shall be interpreted as minimum

standards to guide a trial court’s determination of whether that offe nder is eligible for

comm unity corre ctions. Te nn. Co de Ann . § 40-36 -106(d).



       Under the statutory guidelines, Defe ndant is an eligible candidate for

comm unity corrections. He was convicted of a property-related felony offense which

was ne ither violent n or involved a crime against a person . Tenn. Code Ann. § 40-

36-106(a)(2) and (3). In addition, Defendant did not possess a weapon, and he has

not demonstrated a present or past pattern of committing violent offenses. Tenn.

Code Ann. § 40-36-106(a)(4), (5) and (6). Defendant’s presentence report indicated

he was a favorable candidate for the community corrections program. In addition,

Defendant’s emplo ymen t history dem onstrate d his willingn ess to wo rk and to

contribute to society. He has continued his education an d supports h is family.

Howeve r, after our review of the entire recor d in this cas e, we are constrain ed to

agree with the trial court that D efenda nt New som h as sho wn a failure of past effo rts

at rehabilitation, and should be given a first priority regarding a sentence involving

incarceration. This being the case, Defendant is no longer presumed to be a

favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35-

102(5) and (6).

                                              -8-
      In regards to sentencing Defendant Washington, the trial court found that two

(2) enhancement factors applied. First, the Defendant Washington was a lead er in

the comm ission of an offens e involving two (2) or m ore criminal actors, to which he

gave great we ight. See Tenn. Code Ann. § 40 -35-114(2). In ad dition, the court

noted that Defendant Washington abused a positio n of pu blic or private trust in that

she was the store’s manager and was allowing p eople to s teal from the store. See

Tenn. Code Ann. § 40-35-114(15).           As the trial court aptly noted, Defendant

Washington was being paid by the company not to allow this s ort of even t to occur,

but was instead doing it herself by allowing her boyfriend and others to take

thousands of dolla rs wort h of m ercha ndise . The tr ial cou rt noted that this criminal

activity occurred over a period of months, and was not a one-time occurrence. The

continuing nature of the offen se was pa rticularly disturbing to the trial cou rt. In

addition, the amount of property dam age to the victim w as particularly great. Fina lly,

the deterrence value was considered as “enorm ous” to the trial c ourt in th at if peo ple

knew that a manager of a store allowed systematic theft from the store and was then

allowed to have her offense erased from her record, that it would be devastating to

comp anies in th e com munity.



      The trial court gave great weight to the first two (2) enhancement factors and

sentenced her to three (3) years. However, looking at the presumption for an

alternative sentence, the trial court placed Defendant Washington on two (2) years

of proba tion afte r she c omp leted service of sixty (60) days of her sentence on the

weekends. Because there was not an exact amount proven for restitution to the

victim, the trial court did not require restitution as a condition of her sentence.




                                           -9-
       Defendant Washington argues the trial cou rt erred in refusing to grant judicial

diversion. The question of wheth er or no t to gran t judicia l diversio n is with in the trial

court’s discretion; this court will not interfere with the trial court’s den ial if there is

“any substantial evidence to sup port the refusal con tained in the reco rd.” State v.

Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ) (citation omitted). The

guidelines applicable in probation cases are applicable in diversion cases. They are,

however, more stringently applied in diversion cases. State v. Holland, 661 S.W.2d

91, 93 (T enn. C rim. App . 1983).



       Based upon the findings of the trial court and the record, we find that the trial

court did not abuse its discretion in denying Defendant W ashington judicial diversion.

The record supports the trial court’s findings that allowing judicial diversion would not

properly re flect the se riousne ss of this offe nse. Defen dant, entrusted as manager

of Pop T unes , system atically allowed others to steal from the store resulting in a loss

of great value to that store. While Defendant Washington may not have a prior

criminal record, there is som e proof in the reco rd that she led others to commit these

offenses. Both th e circu msta nces of this o ffense and th e bes t interes t of the p ublic

do not favor judicial diversion for Defendant Newsom. Defendant’s sentence of

three (3) years, with o nly sixty (60) days of incarceration to be served on weekends,

is an appropriate alternative sentence in the case sub judice, and the trial cou rt did

not abu se its discre tion in den ying judicia l diversion.



                                        C ONCLUSION



       Based upon our rev iew of th e reco rd, brief s of the parties , and th e app licable

law, we affirm the judgments of the trial court as to both Defendants.

                                             -10-
                         ____________________________________
                         THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
JOE G. RILEY, Judge




                               -11-
