        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 11, 2014

         STATE OF TENNESSEE V. WAYNE CHARLES GREEN

                  Appeal from the Circuit Court of Grundy County
                      No. 4942 Thomas W. Graham, Judge


                No. M2013-01082-CCA-R3-CD - Filed March 28, 2014


Wayne Charles Green (“the Defendant”) pleaded guilty to theft of property of $60,000 or
more. Pursuant to the plea agreement, the trial court sentenced the Defendant to a sentence
of ten years. Following a sentencing hearing, the trial court ordered this sentence to be
served in incarceration and ordered the Defendant to pay restitution of $123,901.22. On
appeal, the Defendant argues that the trial court erred in denying probation or other
alternative sentencing. After a thorough review of the record and the applicable law, we
affirm the judgment of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Robert G. Morgan, Jasper, Tennessee, for the appellant, Wayne Charles Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
J. Michael Taylor, District Attorney General; and David Shinn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                         Factual and Procedural Background

       The Defendant was indicted on July 9, 2012, on one count of theft of property of
$60,000 or more. He subsequently pleaded guilty to the indicted charge. At the Defendant’s
plea submission hearing, the State recited this factual basis for the plea:
              Your Honor, the primary witness the state would have if we went to
       trial would be Glenn Basham. He’s the owner of Basham Industries. Also a
       Steve Boyd, who is a CPA that was retained by Mr. Basham. Other employees
       of Basham Industry. Mark Wilson with the Tennessee Bureau of Investigation.

               The testimony would be from Mr. Basham that [the Defendant] was an
       employee of his, at least, from March, 2008, until his termination in May of
       2012. His testimony would be that the defendant’s position there, he handled,
       basically, he was sort of like the accountant. In the business he handled all the
       money and the payroll checks, handled the purchases and receiving –
       receivables. After a four-year period Mr. Basham retained a CPA firm, they
       did an audit and they found where the defendant was writing himself extra
       payroll checks from different accounts that belonged to Glenn Basham. He
       was actually just writing himself, just straight checks to himself, and then he
       was using the in-house accounting procedures to try to cover up those checks.
       It took – well, it occurred over about a four-year period. The amount is close
       to somewhere around $150,000, which Mr. Basham would testify, and the
       paperwork would show that the Defendant embezzled or stole from Mr.
       Basham. . . . There would also be banking records from the defendant’s own
       accounts be presented from his banks.

As part of the plea agreement, the Defendant agreed to a sentence of ten years, with the
manner of service and restitution to be determined by the trial court following a sentencing
hearing.

        At the sentencing hearing, Glenn Basham testified that he had operated Basham
Industries and Basham Farms in Grundy County for approximately thirty-five years. In
March 2008, Basham hired the Defendant as Basham’s assistant for the purpose of the
Defendant’s running the business one day for Basham. At some point, Basham gave the
Defendant access to and control over the financial accounts for the business. Basham fired
the Defendant after four years because, over time, Basham felt that he could not trust the
Defendant. Basham insisted, however, that his decision to fire the Defendant had nothing
to do with money. After the Defendant was terminated, Basham’s CPA and his office staff
began to uncover some issues in the company’s financial statements. This suspicion led to
a full-scale audit by his CPA, which revealed that the Defendant had written himself 239
checks totaling approximately $149,000 without Basham’s knowledge. The Defendant began
issuing these checks in 2008 and continued until his termination in 2012. After time, Basham
learned that the Defendant also had paid himself approximately $2,000 electronically.
Basham estimated that the investigation cost him at least $4,000 but could not give an exact
amount.


                                              -2-
       Basham did not recall the Defendant’s having significant financial problems while
working for him, although he did remember the Defendant’s mentioning that he was trying
to consolidate some debts.

        On cross-examination, Basham stated that the Defendant was approximately twenty-
three or twenty-four years old when he came to work at Basham Industries. The Defendant’s
mother had worked for Basham prior to Basham’s hiring of the Defendant. Basham
acknowledged that the Defendant advanced quickly within the business because of his good
job performance. Over time, however, Basham noticed a change in the Defendant. Basham
stated, “I started seeing [the Defendant] as a threat to my way of doing business.” At the
time the Defendant was terminated, he was earning $17 per hour. Basham agreed that this
breach of trust disturbed him greatly.

        Helen Mathis testified that she had worked for Basham Industries in 2008 and
returned to work there after the Defendant was terminated. Her job description included
“[j]ust general office duties,” but she assisted Basham’s CPA in the compilation of some
financial records which detailed the unauthorized checks written by the Defendant. This list
included checks in which the Defendant paid himself based on an improper accounting of
hours and checks “that have no basis at all.” Some checks were duplicate payroll checks to
the Defendant, while others were listed in the company’s financials as payment to a vendor.
Mathis estimated that the Defendant wrote himself approximately 239 unauthorized checks
from December 2008 until May 2012. These checks ranged in amounts from $300 to $1,250.

       On cross-examination, Mathis estimated that she worked on these financial records
from June 2012 until October 2012. She agreed that she spent several hundred hours in
preparation and that she made approximately $14 per hour.

        The Defendant testified that his wife had several medical issues, including problems
with her kidneys, gallbladder, and mouth. His wife currently worked at Wal-Mart, although
she had to take unpaid sick leave when her medical issues arose. Through his wife’s
employment, she received medical benefits and $450 every two weeks. The Defendant stated
that he currently worked for Harmony Industries, a federal construction contractor. In this
job, the Defendant’s job responsibilities included “office work to getting out doing manual
labor.” The Defendant confirmed that the owner was aware of these charges. He stated that
the only financial aspect of the company that he handled at Harmony Industries was payroll
checks but that the owner personally signed each check. The Defendant explained that his
job required that he travel to other states, including Mississippi and Louisiana. He estimated
that his monthly income was approximately $3,500 to $4,000. His highest level of education
was high school.



                                             -3-
        The Defendant estimated that his liabilities from a house mortgage and two car loans
totaled approximately $65,000. He currently had $25 in his savings account and $400 in his
checking account. The trial court asked the Defendant how the Defendant could account for
all that he had embezzled, given that his testimony was that he had no money. Through a
series of questions, the Defendant explained that the money went toward paying his mortgage
and various other bills for household items.

        The Defendant first worked for Piggly Wiggly after completing high school and then
worked for a business two years later where he operated machinery. At some point during
this time, the Defendant also worked for the Grundy County Board of Education as a
technician. In these jobs, the Defendant occasionally ordered or purchased equipment on
behalf of his employer. He acknowledged that he was accused of stealing a laptop from a
Grundy County school, but he denied that he ever was reprimanded or questioned by law
enforcement. The Defendant also denied stealing the laptop. He continued working for
Grundy County schools for some period of time once he began to work for Basham
Industries. When asked on cross-examination why he did not mention his employment with
Grundy County in his written employment history, the Defendant stated that it was “an
oversight.”

       The Defendant testified that he currently had a personal, computer repair business.
On one occasion, he went to the business of his customer, Anita Meeks, for his computer
repair business. With her permission, he set up a “remote access” in order to download
software onto her computer remotely. The Defendant insisted that this computer was Meeks’
personal computer and that he had no access to patient information related to her business.
He could not explain why Meeks accused him of accessing the company computer.

       When the Defendant began working for Basham Industries, he initially earned $12 per
hour and at some point worked his way up to $17 per hour. The Defendant approached
Basham to ask Basham for financial assistance at a time when the Defendant was having
financial difficulty. Basham, however, told the Defendant that he did not loan out money.

        The Defendant expressed that he was sorry for his actions, stating that he had caused
pain not only for Basham but also for the Defendant’s family. He stated that his going to
prison likely would mean that his family would lose the house in which they were living.
The Defendant estimated that, based on his current salary, he could pay restitution to Basham
in the amount of $400 per month.

     On cross-examination, the Defendant did not dispute Basham’s assertion of the
number of unauthorized checks written by the Defendant or the total amount taken from
Basham Industries. He agreed that, including the unauthorized checks, the Defendant was


                                             -4-
making approximately $75,000 per year, although his salary would have earned him only
$30,000 to $40,000 per year. The Defendant acknowledged that, although he stole almost
$150,000 from Basham Industries, he still was a payment behind on his $35,000 mortgage
when he left his employment there. He further explained that the loans for two vehicles
totaling approximately $35,000 were consolidated at one point with his mortgage.

        Terri Shield, the Defendant’s sister, testified that she currently worked as a registered
nurse in Sewanee. She stated that, from her observations, the Defendant was a good father
in that he “takes [his children] out and plays with them at the park. He takes them to school
every morning.” Shield did not recall “anything extravagant” from her many visits in the
Defendant’s home. She did not see the Defendant and his family taking trips often. From
what she heard in the community about the Defendant’s computer repair business, his
customers seemed satisfied with his work. Shield stated that she and her husband were
willing to borrow money from a bank, using her home as collateral, to pay the Defendant’s
restitution. She believed that the Defendant was capable of paying her back.

        On cross-examination, Shield stated that she did not know the exact amount that the
Defendant owed Basham Industries. When asked how much she was willing to borrow for
restitution, she said approximately $20,000. She was not sure that she and her husband could
provide for the Defendant’s family if he went to prison, given that they must provide for their
own family as well.

       At the conclusion of the proof at the sentencing hearing, the trial court noted that
almost 150 of the unauthorized checks deposited by the Defendant could have been
individual felonies. Therefore, the trial court stated that the State was “doing the Defendant
a favor” by charging the Defendant the way it did. The trial court found that the stealing of
this money was, in fact, independent acts taking place over a long period of time.

        From the trial court’s observations of the record, the Defendant began stealing an
average of $870 a week starting in February 2012. The facts were not in dispute as to the
amount stolen by the Defendant. The trial court noted that the Defendant was in a position
of trust and that the Defendant did not handle his responsibility appropriately. The trial court
also found that the Defendant had not been honest with respect to his employment with
Grundy County schools.

       The trial court found that the Defendant’s household income, combined with his
wife’s income, was approximately $100,000 per year but that the Defendant provided no
accounting as to where all of that money went. Accordingly, the trial court found the
Defendant lacking in credibility.



                                               -5-
        Given the long-term nature of this period of stealing, the trial court, in considering
appropriateness for confinement, found that the Defendant had a long history of criminal
conduct. The trial court also found that anything other than incarceration would depreciate
the seriousness of the offense, given the amount of money taken from one family’s business.
The trial court did not consider as a factor that measures less restrictive than confinement had
been applied to the Defendant unsuccessfully.

        In considering the nature of the criminal conduct, the trial court found that the
Defendant had “sufficient income for him to live on without stealing from somebody.” The
trial court was concerned, given the Defendant’s lack of forthrightness at the sentencing
hearing, that the Defendant did not have great potential for rehabilitation. Finally, the trial
court stated that the Defendant’s serving his sentence in incarceration was not severe, given
the nature of the offense.

        Accordingly, the trial court sentenced the Defendant as a Range I offender to ten
years’ incarceration. The trial court ordered that the Defendant pay restitution in the amount
of $123,901.22.1 The Defendant timely appealed his sentence, arguing that the length of his
sentence is improper.2

                                                 Analysis

        Prior to imposing sentence, a trial court is required to consider the following:

        (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 the mitigating and
        enhancement factors set out in [Tennessee Code Annotated sections ] 40-35-
        113 and 40-35-114;




        1
         The record indicated that the amount stolen was $148,901.22. Basham, however, had received
$25,000 from an insurance policy, so the trial court ordered restitution for the amount of the difference.
        2
            The Defendant did not appeal the amount of restitution.

                                                     -6-
       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006).

       The referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C) (Supp. 2008). “The sentence imposed should be the least severe measure necessary
to achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4),
(5) (2006).

       Our Sentencing Act also mandates as follows:

       In imposing a specific sentence within the range of punishment, the court shall
       consider, but is not bound by, the following advisory sentencing guidelines:

              (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and

               (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement factors
       set out in [Tennessee Code Annotated sections] 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

      Additionally, a sentence including confinement should be based on the following
considerations:

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



                                             -7-
              (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 the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “[A] trial court’s misapplication of an enhancement or mitigating factor
does not remove the presumption of reasonableness from its sentencing decision.” Id. 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 those
circumstances, we may not disturb the sentence even if we had preferred a different result.
See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has
the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n
Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        The Defendant contends that the trial court should have considered an alternative
sentence to incarceration. Our supreme court recently held that the Bise standard of review
also is applicable to “questions related to probation or any other alternative sentence.” State
v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Thus, in reviewing a trial court’s denial
of full probation, the applicable standard of review is abuse of discretion with a presumption
of reasonableness so long as the sentence “reflect[s] a decision based upon the purposes and
principles of sentencing.” Id.

        A defendant bears the burden of establishing his or her suitability for probation. See
Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-303(b) (2006)); State v.
Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999). “This burden includes demonstrating
that probation will subserve the ends of justice and the best interest of both the public and
the defendant.” Carter, 254 S.W.3d at 347 (internal quotation marks omitted). In
determining whether to deny probation and impose a sentence involving confinement, the
trial court should consider the criteria set forth in Tennessee Code Annotated section 40-35-
103(1), supra.



                                              -8-
       Initially, we note that the trial court, in denying an alternative sentence, should not
have placed weight on the factor considering the defendant’s long history of criminal
conduct. See Tenn. Code Ann. § 40-35-103(1)(A). The record does not indicate that the
Defendant had any prior convictions. In fact, the trial court stated that it was relying on the
repeated nature of the Defendant’s behavior that led to his current offense.

        Nevertheless, we discern no abuse of discretion by the trial judge in denying an
alternative sentence in this case. The record reveals that the trial court conducted a
painstaking review of the purposes and principles of sentencing and thoroughly considered
all of the evidence before it prior to ordering incarceration. The record supports the trial
court’s consideration of the factor examining whether incarceration would avoid depreciating
the seriousness of the offense. The facts are undisputed that the Defendant wrote a total of
239 unauthorized checks from December 2008 until May 2012. The Defendant embezzled
approximately $149,000 over that period of time, and all of the money came from one
family’s business. The record clearly supports the trial court’s consideration of this factor.

       Moreover, the Defendant could give no accounting as to how this approximately
$149,000 was used over that period of time. He testified that he used the money toward his
mortgage payments and debts totaling approximately $65,000 but that, when he left his
employment at Basham Industries in 2012, he still was a payment behind on his mortgage.
Thus, the trial court properly considered the Defendant’s lack of candor with the court in this
respect. See State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994) (recognizing
that “untruthfulness of a defendant can be the basis for a denial of probation”) (citation
omitted).

       As set forth above, it is a defendant’s burden to establish his suitability for probation.
See Carter, 254 S.W.3d at 347. We agree with the trial court that the Defendant failed to
meet this burden. Moreover, unless a defendant establishes that a trial court abused its
discretion in imposing sentence, this Court may not overturn the trial court’s judgment even
if we preferred a different result. See id. at 346. In this case, the Defendant has failed to
rebut the presumption of reasonableness we must afford the trial court’s decision.
Accordingly, we affirm the judgment of the trial court.

        In summary, we hold that the trial court imposed this sentence in a manner consistent
with the purposes, principles, and goals of the Sentencing Act. Accordingly, the Defendant
is entitled to no relief.




                                               -9-
                              CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court.




                                   _________________________________
                                   JEFFREY S. BIVINS, JUDGE




                                     -10-
