        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 26, 2009

             STATE OF TENNESSEE v. TAMMY L. MCDONALD

                   Appeal from the Circuit Court for Blount County
                      No. C-16718     David R. Duggan, Judge




                No. E2008-02747-CCA-R3-CD - Filed January 15, 2010


The Defendant, Tammy L. McDonald, appeals her conviction upon a guilty plea in the
Blount County Circuit Court for theft of property over $60,000, a Class B felony. Pursuant
to a plea agreement, the Defendant received a Range I, ten-year sentence with the manner of
service to be determined by the trial court. At the sentencing hearing, the trial court ordered
the Defendant to serve the sentence in confinement. The Defendant appeals, contending that
the trial court erred in denying alternative sentencing. We affirm the judgment of the trial
court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public
Defender, and Stacey D. Nordquist, Assistant Public Defender, (at trial), for the appellant,
Tammy L. McDonald.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Tammy M. Harrington,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case arises from the Defendant’s theft of over $60,000 from Cherokee Millwright
Corporation (Cherokee). At the sentencing hearing, Mark Grayson, the Chief Executive
Officer of Massey Group, which owns Cherokee, testified that the Defendant was employed
as the office manager and was responsible for some of the bookkeeping duties and for
supervising two other bookkeepers. He said that she was considered to be a good employee
and that she held a position of trust in the company. He said that in January or February
2007, there were some outstanding bank statement reconciliations and that when the
company questioned the Defendant, she replied that she had taken the bank statement
reconciliations home. He said this was against company policy. He said that when the
Defendant returned the bank statements, pages were missing. He said that after an
investigation, the company determined that electronic payments of between $10,000 and
$13,000 were made each month to a VISA card payment center. He said that he had directed
the Defendant to close all Cherokee’s VISA accounts in 2005 and that the electronic
payments to VISA began in September 2005. He said that he asked the Defendant to
produce the VISA account statements because the storage of those documents was her
responsibility. He said the records were missing for the VISA account to which the monthly
payments were made. He said the Defendant denied knowledge of the VISA account or the
whereabouts of the statements. He said the Defendant produced a copy of a check in the
amount of $13,533.61 made payable to a supplier, Kenny Pipe, to explain one payment on
the bank statements. He said that when he contacted Kenny Pipe, he learned that the actual
invoice was for a few hundred dollars and that the copy of the check the Defendant had
produced was fraudulent.

        Mr. Grayson testified that the Defendant kept the company’s documentation in order
and that it was unusual for documents to be missing. He said he and the Defendant ended
their conversation and agreed to resume it the next morning. He said the Defendant left a
voicemail message that night saying she would not return to work and asking an employee
to box her personal belongings and leave them outside. He said he was able to obtain copies
of the missing VISA account statements later, which reflected charges for airplane tickets,
hotels, rental cars, purchases at department stores, flowers, and sporting event tickets. He
said that he learned that all Cherokee’s VISA accounts had been cancelled except the one
that the Defendant retained. He said that the charging limit had been increased and that the
total amount of charges ranged from $10,000 to $15,000 per month. He said that he
determined the Defendant caused the company to issue checks to pay the VISA card balance
and that the total amount issued was $190,480.52. He said that insurance reimbursed the
company for $108,459.73, leaving an outstanding balance of $82,020.79. The VISA card
statements from August 2005 to April 2007 were received into evidence.

       Mr. Grayson testified that after the Defendant left her employment, he learned that she
attempted to purchase tickets to a college basketball tournament. He said the company
learned through a ticket broker that the Defendant had made many purchases and had
directed them to be mailed to her home address in Louisville, Tennessee, but to be billed to
the Cherokee address. He asked the court to require the Defendant to serve some or all of
her sentence in confinement because anything less would diminish the magnitude of the

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crime. He said the impact on Cherokee had been severe because the company had to institute
a number of measures to prevent further fraud and because the Defendant’s crimes created
a crisis of confidence within the company.

       On cross-examination, Mr. Grayson testified that he interacted with the Defendant at
Cherokee fairly frequently. He said that she performed well on job evaluations and that she
was promoted a couple of times. He said that the Defendant was not shy about working
overtime, that she had oversight over other personnel, that she worked on various accounting
tasks and projects, and that she was a troubleshooter.

        Michael Holloway, the vice-president of Broadway Electric Service Corporation
(BESCO), testified that he employed the Defendant at his company as an accounts payable
clerk from August 2007 to February 4, 2008. He said that the Defendant was responsible for
credit card reconciliation and processing. He said she was terminated from her position for
making fraudulent credit card charges to U-Store-It, Allegiant Air, Royal Caribbean Cruise
Lines, and Cingular. He said that the Defendant lied when she was confronted and first
stated that the credit card charges were made in error. He said that she later admitted she
made the credit card charges and that she agreed to repay the company. He said that the
company had not been repaid and that it had filed criminal charges against the Defendant in
Knox County, which were still pending. A summary of the credit card charges and the
warrant were received into evidence. On cross-examination, Mr. Holloway testified that the
Defendant charged over $1,000 to the company credit card.

       David Carter, a probation officer with the Board of Probation and Parole, testified that
he conducted the presentence investigation report concerning the Defendant. He said that
the Defendant did not reveal her previous employment with Safety and Ecology Corporation
(SEC) on the presentence investigation questionnaire. He said that when he reviewed the
Defendant’s affidavit of indigency, he discovered that she had been employed with SEC
before her employment with BESCO. He said that when he questioned the Defendant about
the discrepancy, she responded that the employment with SEC had been brief and that she
had forgotten about it. He said that she later admitted she had fraudulently “cut” herself
checks totaling $6,000 but that she had made restitution to the company and was not
criminally charged. He said that pursuant to the Defendant’s executed Release of
Information form, he received documents from SEC related to the Defendant’s employment.
He said the documents revealed that the Defendant used the $6,000 to pay for a trip to Israel.

       Mr. Carter testified that he reviewed the State’s case file and determined that the
Defendant was interviewed by detectives about the case on May 12, 2007, and that the
Defendant continued to write fraudulent checks after that date. He said the Defendant
admitted a 1988 arrest and conviction in Ouachita Parish, Louisiana, for passing worthless

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checks and for which she received three years’ probation. He said that he was contacted by
a Louisiana Department of Corrections officer who informed him that the Defendant had
absconded from probation and that she had been arrested in Kentucky on August 28, 1991.
He said that the Kentucky court had declined to return the Defendant to Louisiana for a
revocation hearing because her probation sentence had expired. He said the Louisiana officer
informed him that the Defendant owed $2,271.99 on an outstanding balance in Ouachita
Parish. He said that the Defendant was also arrested in Kentucky on August 26, 1991, for
theft and that the Defendant was arrested in Blount County on November 8, 1996, for theft
of property between $500 and $1,000, for which she received an eleven-month and twenty-
nine-day suspended sentence.

       On cross-examination, Mr. Carter testified that the Defendant informed him that the
Blount County arrest had been for passing worthless checks. He said that he was not able
to obtain information about whether the Defendant had violated her probation in the 1991
and 1996 cases because the records had been “purged.” He said that he did not find any
arrests of the Defendant between 1996 and 2008. The victim impact statement and
presentence report were received into evidence.

        Maryville Police Detective Sergeant Carlos Hess testified that he was assigned to the
Cherokee case and that he began his investigation in March 2007. He said that he asked the
Defendant to come to the Maryville Police Department for an interview and that he
interviewed her on May 10, 2007. He said that he did not give Miranda warnings because
the Defendant was not under arrest. He said that the Defendant gave a statement which was
audio- and video-recorded and that she issued a written statement in which she admitted
responsibility for her actions at Cherokee and expressed her desire to make amends. He said
that he was not aware that the Defendant was working for SEC at the time. He said that after
the Defendant was indicted, he learned that she traveled to Israel. He said her bond did not
restrict foreign travel.

       On cross-examination, Detective Hess testified that he could not recall the
Defendant’s telling him she was employed and that he thought she was trying to find a job.
He said that they had conflicts arranging a time to meet but that the Defendant was willing
to come to the station and speak to him.

       The defense called Patricia Lonesberry, the Defendant’s mother, who testified that the
Defendant lived with her and had two children, ages sixteen and twenty-five. She said that
the Defendant’s older child was mentally handicapped, that they lived with her because they
needed the extra help, and that the Defendant paid her $250 per week in rent. She said she
believed the Defendant needed very disciplined mental evaluations and that incarceration
would not provide the help the Defendant needed. She said the Defendant received mental

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health treatment in Louisiana and was diagnosed with a chemical imbalance. She said the
Defendant did well as long as she stayed on medication and received counseling. She said
that she was unaware of the Defendant’s offenses until the Defendant was arrested. She said
she would care for the children if the Defendant were sentenced to jail. She said that she did
not know how the Defendant spent the money, except that the Defendant took her younger
son on trips. She agreed that the Defendant was not violent. She said that she worked part
time and that no one else lived at her home other than herself, the Defendant, and the
Defendant’s sons.

        On cross-examination, Ms. Lonesberry testified that she traveled with her daughter
on one trip to Florida. She recalled that the Defendant sometimes rented cars to go on trips.
She said that the Defendant sent her flowers and cookie baskets and that the Defendant took
the children to sporting events. She said that she was aware the Defendant had stolen nearly
$200,000 from Cherokee. When asked if she knew that the Defendant had stolen over
$6,000 from SEC, she replied that she did not. She said she knew about the theft from
BESCO. She said that there was some discussion about the Defendant’s returning to
counseling after the thefts came to light but that “it didn’t go anywhere.”

        The Defendant testified that the other witnesses’ testimony was correct. She clarified
that when she was on probation in Louisiana, her employer transferred her to Kentucky and
that the probation officer allowed her to leave the state as long as she continued to make
restitution. She said she believed that she had made full restitution for the Louisiana
conviction. She said the charges in Louisiana and Kentucky were for passing bad checks.
She said that she moved to Tennessee in 1991.

        The Defendant testified that her job at Cherokee was very demanding and stressful
and that she worked long hours and weekends. She said that she spent money to get relief
from the stress but that afterwards, she would experience additional stress because she knew
that using the company’s credit card was wrong. She said that the majority of the purchases
were for her younger son. She said that she increased the credit limit to have access to more
money and that she received a “high” from spending and “getting away with it.” She said
that she had no animosity toward any of the people for whom she had worked and that she
did not admit her wrongdoing when confronted because she was scared. She said that she
had made several appointments for counseling but that she had not followed through because
she was ashamed of admitting and talking about what she had done. She admitted that she
received counseling for a month in Louisiana, at the suggestion of her mother, after she was
caught passing a worthless check and that she was diagnosed with depression and a chemical
imbalance. She admitted that she was prescribed medication, which she later stopped taking.
She said that she did not drink alcohol or use illegal drugs and that the only prescription
medication she took was for her sinuses.

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        The Defendant testified that she was due to appear in a Knox County court on charges
of theft from BESCO on the morning after the hearing and that her sentence there was likely
to be two years’ probation. She said that she admitted everything to Detective Hess because
he had all the evidence and she knew that she would not be able to hide what she had done.
She said that she was not presently working and that she did not know how she would make
restitution of more than $82,000 because she did not know who would hire her after her
conviction. She said that she believed she deserved jail time but that she also needed to raise
her sons and receive counseling. She admitted that her older son had a low IQ and was not
able to maintain a regular job. She said that her mother was scheduled to have knee
replacement surgery and that she would be her mother’s primary care giver.

        On cross-examination, the Defendant admitted that she was asking the trial court to
give her both jail time and leniency in order that she could take care of her mother and sons.
She admitted that she had not told her mother or her sons the whole truth about her charges
because she was embarrassed and ashamed. She said her behavior was wrong, but she would
not agree that it was selfish because she was trying to spare her family. She acknowledged
that although she loved her family, she had done nothing to prepare her children for the fact
that she might go to jail. She admitted that she said she wanted counseling but had not
sought treatment in the year and a half since her indictment. She acknowledged that she had
held three good jobs and that she did not have to steal money from the companies. She
admitted that she had continued to embezzle funds from SEC after she had admitted to and
had been indicted for her thefts at Cherokee. She agreed that she was a highly valued
employee in a position of trust and that she received a benefit from her embezzlement in that
it afforded her a higher standard of living. She agreed that she sought jobs where she had
access to financial records and money.

       The trial court noted that the Defendant was charged with a Class B felony and that
the presumption regarding alternative sentencing did not apply. The court found that
probation or split confinement was not appropriate and sentenced the Defendant to ten years
in confinement in the Department of Correction as a Range I, standard offender.

        On appeal, the Defendant contends that the trial court improperly sentenced her to
serve her full sentence in confinement because it did not specify what evidence in the record
supported findings that incarceration would deter others from committing theft offenses, that
this theft was worse than any other theft, and that incarceration was necessary to protect the
public. The State contends that the trial court properly sentenced the Defendant to ten years
in confinement and that it considered the circumstances of the offense, the Defendant’s
criminal history, and her admitted criminal behavior before and after the offense.




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        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. § 40-35-401(d) (2006). This presumption of
correctness is conditioned upon the affirmative showing that the trial court considered the
relevant facts, circumstances, and sentencing principles. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). As the Sentencing Commission Comments to section 40-35-401(d) note,
the burden is now on the appealing party to show that the sentence is improper.

       When determining if confinement is appropriate, the trial court should consider
whether (1) confinement is necessary to protect society by restraining a defendant who has
a long history of criminal conduct, (2) confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective
deterrence to people likely to commit similar offenses, or (3) measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103(1)(A)-(C). The trial court may also consider a defendant’s potential or
lack of potential for rehabilitation and the mitigating and enhancement factors set forth in
Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. §§ 40-35-103(5),
-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The sentence
imposed should be the least severe measure necessary to achieve the purpose for which the
sentence is imposed. T.C.A. § 40-35-103(4). If a defendant is an especially mitigated or
standard offender convicted of a Class C, D, or E felony, he or she should be considered as
a favorable candidate for alternative sentencing in the absence of evidence to the contrary.
T.C.A. § 40-35-102(6).

       Regarding the denial of probation, the trial court noted the Defendant’s long history
of committing theft offenses and stated that it payed particular attention to the fact that the
Defendant acquired a new criminal charge while on bond for the present offense. The court
found a “very high risk” that the Defendant would commit another crime in light of the
offenses that she committed after she was indicted. The court found that it did not reasonably
appear that the Defendant would abide by the terms of probation. The court also found that
the interests of society in being protected from possible future criminal conduct by the
Defendant were great and that several measures less restrictive than confinement had been
applied unsuccessfully to the Defendant. The court found that granting probation would
depreciate the seriousness of the offense and that confinement would be particularly suited
to provide an effective deterrent to others likely to commit similar offenses.

        The record reflects that the trial court considered the statutory enhancement and
mitigating factors in Code sections 40-35-113 and -114. It found that enhancement factor
(1) applied, that the Defendant had a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range. The court stated
that this factor should weigh heavily in sentencing the Defendant because the Defendant

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committed two similar offenses after she committed the present offense. The court applied
enhancement factor (8), that the Defendant before trial or sentence failed to comply with the
conditions of a sentence involving release in the community, because the Defendant
committed criminal activity while on bond. The court also found that factor (14) applied,
that the Defendant abused a position of private trust in a manner that significantly facilitated
the commission of offense, because of the abuse and breach of trust of the company by the
Defendant. The court found one mitigating factor, that the Defendant’s criminal conduct
neither caused nor threatened serious bodily injury. Thus, the Defendant’s argument that the
trial court must state its findings before denying probation fails because the trial court stated
its findings in detail. The trial court’s denial of probation is amply supported by the record
on appeal. The Defendant has not demonstrated that total confinement was improper.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                                     ___________________________________
                                                     JOSEPH M. TIPTON, PRESIDING JUDGE




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