        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 13, 2014

          STATE OF TENNESSEE v. WENDELL TODD DUBERRY

                   Appeal from the Circuit Court for Maury County
                        No. 21117     Stella Hargrove, Judge


                  No. M2013-02121-CCA-R3-CD - Filed June 9, 2014


Appellant, Wendell Todd Duberry, was convicted of theft of property valued at $1,000 or
more but less than $10,000 and criminal trespassing. The trial court sentenced him as a
multiple offender to eight years for the theft conviction and to thirty days for the criminal
trespassing conviction. On appeal, appellant contends that (1) the trial court erred by
allowing the State to present evidence of victims not named in the indictment; (2) the
evidence was insufficient to support his convictions; (3) his sentence was excessive; and (4)
the trial court erred in its instructions to the jury. Following our review, we affirm the
judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and J OHN E VERETT W ILLIAMS, JJ., joined.

Claudia S. Jack, District Public Defender; and Robert C. Richardson, Jr., Assistant District
Public Defender, Columbia, Tennessee, for the appellant, Wendell Todd Duberry.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; T.
Michel Bottoms, District Attorney General; and Brent Cooper, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                               OPINION

                                                 I. Facts

                                                 A. Trial

       This case concerns the theft of five loads of timber cut from Dr. Steven Bass’s
property in Maury County. The State indicted appellant for theft of property valued at $1,000
or more but less than $10,000 and criminal trespassing. The case proceeded to trial on April
15, 2013.

        The victim, Dr. Bass, testified that he and his family (his wife and two sons) owned
403 acres in Maury County. Dr. Bass bought the land for “[r]ecreation and preservation” and
placed it in a land trust. He described the acreage as “woodland,” and he said that his family
had improved the trails and constructed a corral but had not made any other improvements
to the land. He had the land surveyed when he purchased it, and the State introduced the
original survey into evidence. Dr. Bass used the survey to show the jury the boundaries of
his land and the ridge road. He also showed the jury where the “areas of deforestation
occurred.” Dr. Bass testified that to secure his property, a metal cable was placed across the
ridge road and that a locked metal gate was placed farther down the road. There were also
“no trespassing” and land conservation signs in the area. Dr. Bass said that he never gave
consent for appellant to be on his property and that appellant never asked permission to go
on his property. He further testified that he never gave Eugene Carroll,1 the logger,
permission to be on his land. Dr. Bass stated that a friend visiting his land told him that trees
had been cut down. When he went to the property to investigate, he discovered that the cable
crossing the road “had been sawed through” and that the lock was missing from the gate. He
also noticed that new “no trespassing” signs had been placed in the area where the timber had
been cut. Dr. Bass identified photographs of the areas where the timber had been clear-cut.
He testified that he managed the property but that his sons and wife also had an ownership
interest in the property.

      On cross-examination, Dr. Bass said that three to four acres of his property were
damaged. He estimated that the distance from the first damaged area to his boundary line
was 150 yards and that the distance from the second damaged area to his boundary line was
250 yards.




       1
           We note that the transcript incorrectly spells Mr. Carroll’s name as “Carol.”

                                                    -2-
       Andy Bass and Brian Bass, Dr. Bass’s sons, testified that they owned a percentage of
the property in question but were unsure of the exact amount. They further testified that they
never gave appellant permission to cut timber on the property.

        Franklin “Eugene” Carroll testified that appellant asked him to cut timber on his land.
He showed Mr. Carroll where to cut, and they signed a contract. The contract was admitted
into evidence. When Mr. Carroll took a load of timber to a sawmill, he gave half of the
dollar amount he received to appellant in cash. Receipts from two sawmills, annotated by
Mr. Carroll, were submitted into evidence. Mr. Carroll testified that he gave appellant
$490.80; $660.32; “$647 and something”; and $376.40. Mr. Carroll said that when appellant
showed him where to cut, the cable across the road was open and so was the gate. Appellant
told him that “ribbons down . . . at the end of the road [were] not legit[imate].” Mr. Carroll
testified that appellant was at the site every day and rode along on a skidder. On cross-
examination, Mr. Carroll agreed that appellant told him the ridge road was the Old
Waynesboro Highway.

        Tommy Shaffer testified that he knew both appellant and Dr. Bass and that his
property adjoined Dr. Bass’s. He said that appellant’s mother asked him to cut timber on her
property approximately four years before the trial. When Mr. Shaffer explored the
possibility, he realized that he would only be able to remove the timber from her property by
using the ridge road on Dr. Bass’s property. He talked to Dr. Bass about that possibility, and
Dr. Bass gave him a survey of his land. Using the survey, Mr. Shaffer marked the boundary
between Dr. Bass’s property and the Duberry property. According to Mr. Shaffer, Dr. Bass
decided that he did not want Mr. Shaffer to “pull all this wood across” his property. After
appellant’s mother passed away, appellant talked to Mr. Shaffer about logging the property.
Mr. Shaffer told appellant what he had previously told appellant’s mother: that it was not
possible to remove timber from appellant’s property without crossing Dr. Bass’s property.
Mr. Shaffer testified that he told appellant that appellant’s property did not reach the ridge
road and that “if [he] cut anywhere on that road or close to the road, [he would have] cut
across the line.” He said that he told appellant this information prior to the timber cutting at
issue in this case.

       On cross-examination, Mr. Shaffer said that he “just went in there and brightened the
line” between the Duberry property and the Bass property, explaining that the survey pins
were still in place.

       Douglas Ronman, a staff forester for the Land Trust for Tennessee testified that 2.8
acres of Dr. Bass’s property had been clear-cut. He estimated that “the larger trees on the
property [were] probably [seventy-five] years of age.” Mr. Ronman opined that it would take



                                              -3-
ninety to one hundred years “to reestablish the forest that was there.” Following Mr.
Ronman’s testimony, the State rested its case.

        On behalf of appellant, Maury County Sheriff’s Department Detective Sergeant Jerry
Williams testified that through his investigation, he determined that appellant was
responsible for taking the timber from Dr. Bass’s property. He agreed that he did not know
the specific date that the timber was cut nor could he show the “actual timber that was taken
off that area.” Detective Williams further agreed that he did not have any “forensic proof”
that appellant had been at the cutting site or was responsible for cutting the cable or lock.
He did not find evidence that appellant had deposited “a significant amount of money” into
his accounts. He said that the “actual sale of the timber” was done by Mr. Carroll, not
appellant.

       On cross-examination, Detective Williams testified that a fifth load of timber was also
taken but that there was not a receipt for that load. He learned that the fifth load was worth
approximately $2,000.

        Appellant testified that he inherited seventy-five acres from his parents. His mother’s
estate had not yet been probated, however. Appellant said that he had a seventh-grade
education but could not read or write other than to sign his name. He testified that he knew
the boundary lines of his property because his father had shown him. He and his father cut
firewood on their property, and they would use the Old Waynesboro Highway to access the
area where they cut wood. He said that there were no markings to distinguish his property
from Dr. Bass’s land. Appellant testified that he asked Mr. Carroll to cut the timber on his
entire seventy-five acres. He further testified that he was not able to read the contract that
he signed. He showed Mr. Carroll where to cut, saying that he told Mr. Carroll both “[ten]
feet off of that highway” and “[fifty], [seventy-five], [one hundred] yards off of it.” He said
that he did not want to cut timber on someone else’s property. Appellant testified that he
checked on Mr. Carroll at the cutting site two or three times but that he did not actually cut,
haul, or sell any timber himself.

       On cross-examination, appellant testified that Mr. Shaffer was wrong about the
property lines but that he told Mr. Carroll to cut 150 to 200 yards away from the road so that
they would not be on someone else’s property. He agreed that Mr. Shaffer told him, while
his mother was still alive, that he could not cut timber on the Duberry property “without
going over on [Dr. Bass’s] property.” He said that the land survey of Dr. Bass’s property was
incorrect. He also said that he asked Mr. Shaffer to go back to the logging site to see whether
appellant had been mistaken but that Mr. Shaffer refused to go. Appellant said that he told
Mr. Shaffer that if he had been wrong, it was “‘an honest mistake.’” He agreed that the
timber on his own land had been estimated to be worth $250,000. When asked whether he

                                              -4-
was trespassing on Dr. Bass’s land when he went through the cable and gate across the road,
he said, “Well, I may be trespassing.” Appellant testified that he did not intentionally cut
someone else’s timber and that he did not believe he actually cut timber on Dr. Bass’s
property. Appellant denied cutting the cable across the road or the chain on the gate.
Appellant said that his father told him that their property line was ten feet away from the
road.

       Following closing argument and deliberations, the jury found appellant guilty of theft
of property valued at more than $1,000 but less than $10,000 and criminal trespassing.

                                    B. Sentencing Hearing

       The trial court held a sentencing hearing on July 1, 2013. Christie Dickey with the
Board of Probation and Parole testified that she prepared appellant’s presentence report. In
preparing the report, she met with appellant. She gave appellant an opportunity to make a
statement, and he said, “‘I feel like I have been railroaded. There was no proof that I was on
him [sic]. And if I was, I would give him the stuff back.’” Ms. Dickey wrote the statement
for appellant, and he signed his name to it. Ms. Dickey testified that appellant had four prior
felony convictions and numerous misdemeanor convictions. Appellant had been placed on
probation in the past and had his probation revoked once. He was on probation when he
committed the instant offense. Ms. Dickey said that appellant drew disability benefits but
was unable to tell her whether his disability was physical or mental. He told her that he had
abused alcohol in the past but had not consumed alcohol “in over [fourteen] years.” He had
used marijuana but did not feel like he had a drug problem. However, he had convictions for
simple possession of a Schedule II substance, simple possession of marijuana, and possession
of drug paraphernalia.

       Dr. Bass testified that he was “outrage[d]” by the timber theft because “[y]ou can’t
restore these trees.” He further testified that he was concerned that appellant “still thinks that
property is his property.”

        Appellant testified that he was trying to “mak[e] it right” with Dr. Bass, and to that
end, he said that he was getting the Duberry property probated so that he could sell it to Dr.
Bass. He further testified that Mr. Carroll should have had the property surveyed; however,
appellant also said that he was taking responsibility for the offense. Appellant stated that he
would be successful on probation and would make restitution. He agreed that he would stay
away from the Bass property. Regarding his actions in accessing Dr. Bass’s land, appellant
maintained that he did not cut the cable across the road, but he admitted that he cut the lock
off the gate. He further maintained that the road was a public road and should not have had



                                               -5-
a gate on it. Appellant said that he did not sell the trees but that he received $2,500 for them.
He also said that “[i]f some of [Dr. Bass’s] logs got cut, it was an honest accident.”

       The trial court found that the following enhancement factors applied: (1) appellant had
a previous history of criminal convictions or behavior in addition to those necessary to
establish the range; (3) the offense involved more than one victim; (8) appellant had failed
to comply with a sentence involving release into the community; (13)(C) appellant was on
probation when the instant offense was committed; and (24) the theft of property caused
significant damage to other property belonging to the victim. See Tenn. Code Ann. §§ 40-35-
114(1), (3), (8), (13)(C), (24). The trial court further found one mitigating factor to apply:
appellant’s conduct did not cause or threaten serious bodily injury. See id. § 40-35-113(1).
The trial court explicitly determined that other mitigating factors set forth by appellant were
not applicable. The trial court further noted that appellant’s actions caused long-term
damage to the property and that appellant continued to take no responsibility for his actions.

       Regarding probation, the trial court considered the numerous times that appellant had
previously been on probation, that he had been revoked once, and that he was on probation
when he committed the instant offense. Based on these facts, the trial court determined that
measures less restrictive than confinement had been applied unsuccessfully to appellant. The
trial court determined that a sentence of full probation would unduly depreciate the
seriousness of the offense and that a sentence involving confinement would act as an
effective deterrent. Finally, the trial court found that appellant was not credible, stating that
appellant “in fact, has lied at this sentencing hearing.” The trial court imposed a sentence of
eight years for appellant’s theft conviction and thirty days for his criminal trespassing
conviction.

       The trial court denied appellant’s motion for new trial, and this appeal follows.

                                          II. Analysis

                                        A. Indictment

       Appellant contends that the indictment did not provide proper notice because the State
introduced evidence at trial of victims not named in the indictment, namely Dr. Bass’s sons
and wife. The State reframes appellant’s challenge as an argument that there was a fatal
variance between the indictment and the proof at trial. In response, the State argues that
there was no variance because the identity of theft victims is not an essential element of theft.
The State argues in the alternative that any variance was not material.




                                               -6-
         Both the federal and state constitutions “guarantee to the accused the right to be
informed of the nature and cause of the accusation.” State v. Hill, 954 S.W.2d 725, 727
(Tenn. 1997). A valid indictment “provides sufficient information (1) to enable the accused
to know the accusation to which answer is required, (2) to furnish the court adequate basis
for the entry of a proper judgment, and (3) to protect the accused from double jeopardy.” Id.
(citations omitted). “When the evidence adduced at a trial does not correspond to the
elements of the offense alleged in the charging instrument, there is a variance.” State v. Keel,
882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). However, such a variance “is not fatal unless
it is both material and prejudicial.” State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App.
2000) (citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984)). Our supreme court has
explained that a variance is not fatal when “(1) the defendant is sufficiently informed of the
charges levied against him so that he can adequately prepare for trial and, (2) the defendant
is protected against a subsequent prosecution for the same offense based on double jeopardy
grounds.” State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993) (citing Berger v. United States,
295 U.S. 78, 79-82 (1935)). “[W]hen the indictment and proof substantially correspond,”
the variance is not material. Id.

        In this case, there was no variance between the proof adduced at trial and the essential
elements of the offense charged in the indictment. The indictment alleged that appellant took
five loads of timber from Dr. Bass’s property. The proof at trial was that appellant took five
loads of timber from Dr. Bass’s property, which he co-owned with his wife and sons.
Tennessee Code Annotated section 40-13-209 states, “When any property, upon or in relation
to which the offense was committed . . . [b]elongs to several partners or owners, it is
sufficient to allege the ownership to be in any one (1) or more of those partners or owners.”
Thus, the indictment alleging ownership to be in Dr. Bass was statutorily sufficient.
Moreover, any variance cannot be considered fatal because appellant’s preparation for trial
— based on his claim of right defense — would not have been affected by knowledge that
other people held an ownership interest in the property and because “[t]he indictment,
together with the record, would prohibit another prosecution” for the same offense. State v.
Charlie M. Gardner, No. M1999-02214-CCA-R3-CD, 2001 WL 306227, at *7 (Tenn. Crim.
App. Mar. 30, 2001) (noting that a defendant can rely on the entire record when pleading
double jeopardy as a bar to a subsequent prosecution). Therefore, appellant is without relief
as to this issue.

                               B. Sufficiency of the Evidence

       Appellant asserts that the evidence presented at trial was not sufficient to support his
conviction for theft. He does not contest his criminal trespassing conviction. In particular,
he argues that the State could not establish appellant’s criminal responsibility for the actions
of Eugene Carroll when Mr. Carroll was not charged with a crime and that the State could

                                              -7-
not show that appellant was in actual possession of the stolen timber. The State responds that
“the proof permitted the jury to find that [appellant] effectively exercised control over the
victim’s timber without his consent.”

        Appellant approaches his sufficiency of the evidence argument through the trial
court’s denial of his motion for judgment of acquittal. A motion for judgment of acquittal
raises a question of law, i.e., the legal sufficiency of the evidence, for determination by the
trial court. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995) (citing State v.
Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983)). Thus, on appeal, this court applies the
same standard of review both to the trial court’s denial of a motion for a judgment of
acquittal and to the sufficiency of the convicting evidence underlying the jury’s verdict.
State v. Carroll, 36 S.W.3d 854, 869 (Tenn. Crim. App. 1999) (citing State v. Ball, 973
S.W.2d 288, 292 (Tenn. Crim. App. 1998)). Therefore, we must consider “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citing Johnson v. Louisiana,
406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729
(Tenn. 2011). To obtain relief on this claim of error, appellant must demonstrate that no
reasonable trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson, 443 U.S. at 319. This standard of review is identical whether
the conviction is predicated on direct or circumstantial evidence, or a combination of both.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); see State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual disputes
raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court
presumes that the jury has afforded the State all reasonable inferences from the evidence and
resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our
own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh
or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes
the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt
at the appellate level, the burden of proof shifts from the State to the convicted appellant,
who must demonstrate to this court that the evidence is insufficient to support the jury’s

                                               -8-
findings. Davis, 354 S.W.3d at 729; State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       To support a conviction for theft of property, the State must prove that appellant,
“with intent to deprive the owner of property, . . . knowingly obtain[ed] or exercise[d] control
over the property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a).
Theft of property valued at $1,000 or more but less than $10,000 is a Class D felony. Tenn.
Code Ann. § 39-14-105(a)(3).

        Appellant’s argument is based on the State’s allegedly setting forth a theory of
criminal responsibility. While not a separate crime, criminal responsibility is a theory by
which the State may alternatively establish guilt based on the conduct of another. Dorantes,
331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)). However,
the trial court did not instruct the jury on this theory, and without the opening statements and
closing arguments, which are absent from the record, this court cannot determine whether
the State actually pursued this theory. On appeal, the State argues that the proof supported
appellant’s conviction based on his own conduct. We agree with the State.

        Viewed in the light most favorable to the State, the evidence adduced at trial revealed
that appellant contracted with Eugene Carroll to clear-cut several acres of land. He showed
Mr. Carroll where to cut and told Mr. Carroll to ignore flags marking the property line. A
cable crossing the ridge road had been cut, and a lock had been removed from a gate barring
access to Dr. Bass’s property. Appellant was at the site during the logging, and he received
a portion of the proceeds from the sale of the timber. The State presented evidence that the
acreage cut by Mr. Carroll actually belonged to Dr. Bass. Moreover, Tommy Shaffer
testified that appellant would have known that he did not own the logged acreage because
Mr. Shaffer had told him in the past that if he cut timber near the ridge road, he would not
be on his own land. Appellant claimed that the land survey admitted into evidence by the
State was incorrect and that his property extended to ten feet away from the ridge road.

       The Tennessee Pattern Jury Instructions’ definition of “exercise control over
property,” as charged to the jury, is helpful to our analysis of the sufficiency of the evidence:

       “Exercise control over property” is defined as the right to direct how property
       shall be used or disposed. Generally, one must possess the right of possession
       in property in order to exercise control over it. Such possession may be actual
       or constructive, sole or joint. Also, one may have the right to control property
       without having a possessory interest. In such instances, if the defendant takes
       some action with the intent to deprive the owner of the property, and the
       defendant did so knowingly and without the owner’s effective consent, the jury

                                               -9-
       would be justified in returning a verdict of guilty. Anyone who is in a position
       to take some action that deprives the owner of property is in a position to
       exercise control.

T.P.I.-Crim. 11.01. Under the facts presented at trial, appellant exercised control over Dr.
Bass’s property by contracting with Mr. Carroll to log the acreage — despite not actually
cutting the timber, hauling it, and selling it himself. Furthermore, he knew that the land was
Dr. Bass’s, and he received compensation for the sale of the timber. Thus, it was reasonable
for a jury to find appellant guilty of theft of property. Moreover, the State presented evidence
of the value of the stolen timber, such that the jury appropriately determined that the value
of the property stolen was between $1,000 and $10,000. Therefore, the evidence was
sufficient to support appellant’s conviction, and he is without relief as to this issue.

                                        C. Sentencing

       Appellant argues that his sentence was excessive under the circumstances of this case.
The State responds that the trial court did not abuse its discretion in determining appellant’s
sentence. We agree with the State.

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(4).

       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors
is advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair

                                              -10-
and consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State
v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.
Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

      A trial court should base its decision regarding alternative sentencing on the following
considerations:

       (A)    Confinement is necessary to protect society by restraining a defendant
              who has a long history of criminal conduct;

       (B)    Confinement is necessary to avoid depreciating the seriousness of the
              offense or confinement is particularly suited to provide an effective
              deterrence to others likely to commit similar offenses; or

       (C)    Measures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

       When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This standard of review also applies to “the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). If a trial
court misapplies an enhancing or mitigating factor in passing sentence, said error will not
remove the presumption of reasonableness from its sentencing determination. Bise, 380
S.W.3d at 709. This court will uphold the trial court’s sentencing decision “so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).



                                              -11-
        In this case, appellant was convicted of a Class D felony, and as a multiple offender,
he was subject to a sentence of four to eight years. Tenn. Code Ann. § 40-35-112(b)(4). The
trial court found that five enhancement factors and one mitigating factor applied — none of
which appellant contests. Moreover, the trial court considered alternative sentencing but
determined that a sentence involving confinement was appropriate to avoid depreciating the
seriousness of the offense and because sentences involving release to the community had
recently been applied unsuccessfully to appellant, as shown by the fact that he was on
probation when he committed the instant offense. On appeal, appellant attempts to minimize
the seriousness of his offense by downplaying it as “essentially a boundary dispute” and
noting that only one percent of Dr. Bass’s property was harmed. However, the trial court
noted that appellant never took full responsibility for his actions, that he was less than
credible at the sentencing hearing, and that Dr. Bass’s property would not recover for up to
one hundred years. Based on our review of the record, we conclude that the trial court’s
sentencing decision was “within the appropriate range” and was “in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. Appellant is without
relief as to this issue.

                                    D. Jury Instructions

      Appellant argues that the trial court erred by not instructing the jury with regard to a
mistake of fact defense. However, this issue was not included in the motion for new trial.
Therefore, appellant’s claim regarding the jury instructions is waived under Tennessee Rule
of Appellate Procedure 3(e).

                                      CONCLUSION

      Based on the record, the applicable law, and the briefs of the parties, we affirm the
judgments of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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