        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE             FILED
                        OCTOBER SESSION, 1998        February 10, 1999

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,         )    C.C.A. NO. 03C01-9709-CC-00413
                            )
      Appellee,             )
                            )
                            )    SEVIER COUNTY
VS.                         )
                            )    HON. REX HENRY OGLE
BRENDA KAY KEEFER,          )    JUDGE
                            )
      Appe llant.           )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF SEVIER COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

DENNIS C. CAMPBELL               JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
140A Court Avenue
Sevierville, TN 37862            ELLEN H. POLLACK
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 AL SCHMUTZER, JR.
                                 District Attorney General

                                 STEVE HAWKINS
                                 Assistant District Attorney General
                                 Sevierville, TN 37682



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Proced ure. The D efenda nt, Brend a Kay K eefer, plea ded gu ilty to one

count of Class B felon y theft. Sentencing was left to the discretion of the trial

judge. After conducting a sentencing hearing, the trial judge sentenced the

Defendant to ten yea rs in the D epartm ent of Correction.          On appeal, the

Defendant argue s that s he sh ould have received the minimum sentence of eight

years and sho uld have been a llowed to s erve the s entenc e on pro bation. W e

affirm the ju dgme nt of the trial co urt.



       When an accused challenges the length, range, or manner of service o f a

sentence, this Cou rt has a du ty to cond uct a de novo review of th e sente nce with

a presumption that the determinations made by the trial co urt are co rrect. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



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

the evidence, if any, receive d at the trial and sen tencing hea ring; (b) the

presentence report ; (c) the p rinciples of senten cing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of



                                             -2-
potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W .2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and pro per weig ht to the fac tors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



      The Defen dant wa s emp loyed as the boo kkeep er for a bu siness e ntity

known as Delozier Management, which essentially operated and maintained the

payro ll for several re tail establish ments , both in the Sevier C ounty area and out

of state. Apparently, the Defendant’s primary responsibility was writing the

checks and m aintaining the payroll accounts. Between 1993 and 1995, the

Defendant develop ed and utilized a fraudulent check-writing scheme through

which she stole almost a quarter of a million d ollars from her em ployer. Because

she kept the company’s books, she was able to conceal her theft during the two

and one-half year period in which the thievery occurred. The theft e ventu ally

forced her employer into bankruptcy and obviously caused the owners of the

business financial ha rdship.    O ne of the b usiness owners testified that the

amou nt of mo ney em bezzled by the De fendan t totaled $2 48,441 .37.



      At the time of sentencing, the Defendant was forty years old, married, and

had two adult children. She graduated from high s choo l and h ad be en ste adily

                                         -3-
employed all of he r adult life. She was des cribed as very smart, capable, and a

good employee. She testified that once she started taking the money, she

thought she would pay it back later, “and then it just got easier and easier from

that, and I just got in way o ver my hea d.” She said she did not spend all of the

money on hers elf, but let some o ther employe es share in her schem e and gave

some of the money to members of her family. Although she did not keep up with

how much she took, at the time the theft was detected she told the police that she

thought she took ab out $120,00 0.00. She sa id that she had always had trouble

dealing with finances. During this time the Defendant and he r husba nd built a

house for about ninety-eight thousand dollars, but she testified that there was a

ninety-two thousand dollar mo rtgage o n it. Other than saying that she spent the

money on bills, clothing, furniture, and general expenses, the Defendant never

explaine d where all the stolen mone y went.



      The Defendant had no history of prior criminal convictions. On direct

examination she stated that she left her prior job with the Sevierville Housing

Author ity to work for Delozier Management because she “wanted a change of

job.” On cross-examination, however, she admitted that she was forced to quit

the previous job be cause she had been caught stealing from petty cash. She

also admitted that earlier in her employment with Delozier Management, she had

used checks from her employer to pay personal expenses amounting to about

fifteen hundred dollars. When confron ted with this, the Defendant admitted her

mistake and eventually paid the money back. Her employer allowed her to keep

her job because she was a good, smart employee.




                                       -4-
      W hile the Defendant was out on bond on these charges, and obvio usly

after having been terminated from her employment, the Defendant utilized the

services of United Parcel Service (UPS) to deliver personal items for her but

charged the service s to her form er emp loyer’s UP S acco unt. She also wrote

some bad checks during the time she was out on bond awaiting disposition of

and sentencing for these charges.



      In senten cing the D efenda nt, the court found and applied three

enhancement factors: (1) that the Defendant ?has a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

approp riate range”; (2) that the am ount of prope rty taken from the victim was

particu larly great; and (3) that the D efenda nt ?abuse d a pos ition of . . . private

trust, or used a specia l skill in a manner that significantly facilitated the

commission . . . of the offense.” See Tenn. Code Ann. § 40-3 5-114(1), (6), (15).



      Because the punishment for theft is enhanced based upon the amount

taken, the Defendant argues that the trial judge erred by applying as an

enhancement factor that the amount of property taken from the victim was

particu larly great. See State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App.

1997). In Grissom, the Defendant pleaded guilty to one count of Class C felony

theft, which is the theft of property valu ed at ten thousand dollars or more, but

less than sixty tho usand dollars. Id. at 516. The Defendant had embezzled

appro ximate ly twenty-nine thousand dollars. The Grissom court pointed out that

enhancement had b een a llowed in othe r case s whe n the a mou nt stole n had

approached the amount necessary to put the offense into the next higher grade

of theft. Id. at 518 n.4. Here, even though the Defendant pleaded guilty to the

                                          -5-
highest grade of theft, same being a Class B felony when the value of the

property stolen is sixty thousand dollars or more, the proof at the sentencing

hearing showed that the Defend ant stole over four tim es the am ount neces sary

to qualify as a Class B felony. Under the c ircumstanc es of this case, we believe

the trial court correctly applied th is enhance ment factor.



      Concerning mitiga ting fac tors, the trial cou rt found that the Defe ndan t’s

conduct neither caused nor threatened serious bodily injury and that the

Defendant had assisted in recovering some of the property involved in the crime.

Tenn. Code Ann. § 40-35-113(1), (10). At the time the Defendant was confronted

with her crime, she voluntarily turned over three thousand nine-hundred eleven

dollars in cash which she had on her person at the time.



      The sentencing range for a standard offender convicted of a Class B felony

is from eight to twelve years. The trial judge set the Defendant’s sentence at ten

years — the midpoint in her range — and ordered that the sentence be served

in the Department of Correction.



      Because stealing over sixty thousand dollars is a Cla ss B fe lony, the re is

no presumption that the Defendant is a suitable candidate for alternative

sentencing options as afforded those convicted of a Class C, D , or E felony. See

Tenn. Code Ann. § 4 0-35-10 2(6). Gu idance in determ ining wha t factors are to

be conside red for altern ative sentences may be found in Tennessee Code

Annotated § 40-35-103(1), which states:

      Sente nces involving confinement should be based on the following
      considerations:



                                          -6-
      (A) Confinement is necessary to protect society by restraining a
      defend ant who has a lon g history of c riminal co nduct;
      (B) Confine ment is n ecessa ry to avoid depreciating the seriousness of
      the offense or confinement is particularly suited to provide a n effective
      deterrence to others likely to commit similar offenses; or
      (C) Measures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t . . . .

Tenn. Code Ann. § 4 0-35-10 3(1); see Ashby, 823 S.W.2d at 169. A court may

also apply the mitigating and enhancing factors set forth in Tennessee Code

Annotated §§ 40-35-113 and -114, as they are relevant to the § 40-35-103

considerations. Tenn . Code Ann. § 40-35-2 10(b)(5) ; State v. Zeolia , 928 S.W.2d

457, 461 (T enn. C rim. App . 1996). F inally, ?the potential or lack of potential for

rehabilitation of a defendant should be considered in determining whether [she]

shou ld be granted a n alternative senten ce.” State v. Boston, 938 S.W.2d 435,

438 (Ten n. Crim. App . 1996) (citing Ten n. Code A nn. § 40-35-1 03(5)).



      For a denial to occur ba sed on the circum stance s of the offe nse, ?the

criminal act, as committed, must be <espec ially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’

and the nature of the offense m ust outweigh a ll factors favoring probation .”

State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985) (quoting State v. Trav is, 622

S.W.2d 529, 534 (Tenn. 1981)). This principle has been codified in § 40-35-

103(1)(B), which provides for confinement to avoid depreciating the seriousness

of the offens e. State v. Hartley, 818 S.W .2d 370, 375 (Tenn. Crim . App. 1991 );

see also State v. Fletcher, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991).

Sentencing decisions should n ot, however, turn on a generalization of the crime

committed, such as the fact that a d eath oc curred.        State v. Bingham, 910

S.W .2d 448, 456 (Tenn. Crim . App. 1995 ).




                                         -7-
       When a defen dant is no t afforded the pres umptio n of suitability for

alternative sente ncing , the de fenda nt bea rs the b urden solely to establish that a

sentence alterna tive wou ld “<subserve the ends of justice and the best intere sts

of both the public and the defendant.’” Bingham, 910 S.W.2d at 456 (quoting

Hooper v. State, 297 S.W.2d 78, 81 (Tenn.1956)).                After sentencing the

Defen dant, the tria l judge sta ted,

       [j]ust let the Co urt say that if this person does n ot dese rve to go to
       the penitentiary for stealing $248,000.00 over several years’ period,
       to continue to commit crimes, to continue to steal from the same
       victims after you’ve been charged on the se offe nses , if she d oesn ’t
       deserve to go to the penitentiary, there’s not a person who has ever
       lived who deserve s to go to th e peniten tiary.

       W e interpret this stateme nt to reflect the trial judge’s rather stron g concern

with Defendant’s history of theft, the seriousness of the offense, the need for

deterrence, and the Defendant’s questionable potential for rehabilitation.



       Based upon our rev iew of th is record, we simply cannot conclude that the

trial judge erred or abused his discretion by sen tencing the D efendant to se rve

ten years in the Department of Correction as a Range I standard offender. The

judgment of the trial court is accordingly affirmed.



                                   ____________________________________
                                   DAVID H. WELLES, JUDGE


CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE

                                          -8-
