            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1998        FILED
                                                     February 11, 1999

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9803-CC-00090
      Appellee              )
                            )    JEFFERSON COUNTY
vs.                         )
                            )    Hon. Richard R. Vance, Judge
JOHNNA GRAVES,              )
                            )    (Misdemeanor Vandalism, two counts;
      Appellant             )    Felony Vandalism, one count)



For the Appellant:               For the Appellee:

Robert W. Scott                  John Knox Walkup
Asst. Public Defender            Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725              Elizabeth B. Marney
                                 Assistant Attorney General
                                 Criminal Justice Division
Edward Cantrell Miller           425 Fifth Avenue North
District Public Defender         2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 Alfred C. Schmutzer, Jr.
                                 District Attorney General

                                 James L. Gass
                                 Asst. District Attorney General
                                 Sevier County Courthouse
                                 Suite 301
                                 Sevierville, TN 37862



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Johnna Graves, pled guilty in the Jefferson County Criminal

Court to two counts of class A misdemeanor vandalism and one count of class E

felony vandalism.1 The trial court granted judicial diversion, Tenn Code Ann. 40-35-

313, as to the felony charge 2 and, with respect to the two misdemeanor convictions,

imposed a sentence of eleven months and twenty nine days, suspended to thirty

days with the balance to be served on supervised probation.3 These sentences are

to be served concurrently. The appellant now appeals the sentencing decision of

the trial court in imposing incarceration.



        After review of the record, we affirm.




                                            Background



        On June 15, 1997, the appellant, twenty years old, and two male friends, one

nineteen and the other seventeen, attended a party in Jefferson County. At some

point during the evening, the two males asked the appellant to drive them to W al-

Mart to purchase paint.4 She proceeded to drive the two young men to Wal-Mart.



        1
          On September 15, 1997, a Jefferson County Grand Jury returned a three count
indictm ent cha rging the a ppellant w ith the m isdem eanor v andalism of prope rty belonging to
James Town Managem ent, felony vandalism of a trailer belonging to McSpadden Construction,
and misdemeanor vandalism of Oak Hills Baptist Church. An issue arose as to whether the dollar
amount of the damage inflicted upon property owned by McSpadden Construction exceeded
$500; the factor determining whether the offense would be classified a class E felony or a class A
misd eme anor. See Tenn. Code Ann. § 39-14-408(c)(1) (1997); Tenn. Code Ann. § 39-14-105(1)
and (2) (1997). After an evidentiary hearing on this issue, the trial court found that count two of
the indictment, the vandalism to the property of McSpadden Construction, exceeded $500 and
was , thus , a felo ny.

        2
         Specifically, the trial court sentenced the appellant to eighteen months, deferred for a
period of two years.

        3
        As a condition of her probated sentenc e, the trial court ordered that the appellant perform
one hundred and fifty hours of community service.

        4
        Apparently, the two co-defendants were too intoxicated to drive and asked the sober
appellant to be chauffeur to their planned escapades.

                                                 2
She then drove the two males around Jefferson City while they literally proceeded to

“paint the town” with spray paint and graffiti.5 Specifically, the two men spray

painted the wall of a pizza restaurant, a trailer belonging to a construction site, and

the floor of a church picnic area with obscenities and satanic and gang related

epithets. The appellant did not get out of the vehicle and did not personally spray

paint anything.



        Soon after their arrest on the vandalism charges, the threesome offered to

repair the properties that were vandalized. Two of the properties were cleaned by

the appellant and her co-defendants and the three defendants made a public

apology in the local newspaper.



        At the subsequent sentencing hearing, the proof indicated that the appellant

is a twenty year old high school graduate with a cosmetology license and plans to

attend college to study to become an elementary school teacher. Proof was also

introduced which revealed that, while on bond on the present charges, the appellant

received as disposition ninety days pretrial diversion on prior bad check charges.

The appellant also admitted to four previous speeding tickets and one prior violation

for driving without a driver’s license. The presentence report, attached to the record,

indicates a rather poor employment history and the fact that the appellant admits to

smoking marijuana at least once a week.



        In imposing sentence, the trial court found:

        I would find that because of the multiple offenses that occurred on this
        evening, it wasn’t just one place, it was several; you have three
        charges that you’ve been found guilty of, three separate locations
        where damage was done, I’ve seen evidence of other criminal conduct
        that happened that night for which you weren’t charged, other places
        were painted; and to avoid depreciating the seriousness of those
        offenses, and you have had some involvements with the law, I would
        find that it would be appropriate to deny deferring the Judgment in


        5
        Photographs introduced at both the guilty plea hearing and the sentencing hearing
revealed that the graffiti consisted of “CBC”, “666,” “Vice Lords,” and various obscenities.

                                                3
      each of these three cases, and would make that finding under the law
      that the Court would deny deferral.

      Having made that finding though, I’m going to contradict myself. I am
      going to defer the Felony count. I’m making that finding because in
      not deferring the two Misdemeanors, the same principles of law apply
      to the Misdemeanors as to the Felony, as to whether you would be
      entitled to judicial deferral. And having found that you’re not entitled to
      it I’m making that finding stand with respect to the two Misdemeanors.
      Those are going on your record. These are going to count, so that
      some other Judge in the future doesn’t have the same thing I’m faced
      with, that my gosh, you’ve committed an awful lot of criminal offenses
      but none of them count. Well, now, you’re going to have two that
      count. Okay. So no one misunderstands why I’m doing it.

      But I am finding that under the law I could make the Felony count, too,
      but out of consideration for your age and all the things you’ve told me,
      I’m going to allow that one to be deferred for a period of two years to
      give you an opportunity to do what you told me you want to do and
      what you’re certainly capable of doing; that is, to further your
      education, get this court thing behind you. But it’ll be hanging over
      your head for that period of two years.

       There are aggravating circumstances that do apply in your case.
       There was evidence of other criminal conduct. There’s a multiplicity of
       these offenses which were not charged which would justify rasing the
       penalty above the minimum.

       In mitigation you neither caused nor threatened bodily injury and you
       did make a public apology and assisted in some clean up efforts. And
       I find the Enhancing factors outweigh the mitigating . . . .
       ...

       I’m sorry you’re here and I know you’re sorry you’re here and your
       family’s sorry you’re here. But what you all did while it seemed maybe
       at the time and to some to be funny and to be piddly and just a little
       spray painting, you caused a lot of damage, you’ve committed
       numerous criminal offenses. . . .

       But the reason you’re going to jail is because of your own personal
       conduct. Not anything that I’ve done or these officers, Chief Clark or
       the prosecutor. It’s your own personal conduct and it’s time today to
       face the responsibility for that conduct.




                                       Analysis



       Again, the appellant alleges that the trial court improperly imposed

sentences involving incarceration for a period of thirty days. Specifically, the

appellant uses the trial court’s grant of leniency regarding the felony conviction, as a


                                         4
means to attack the court’s imposition of thirty day sentences for the misdemeanor

convictions. In addressing the appellant’s challenge, we are mindful that our de

novo review is conditioned with the presumption that the sentencing determination

of the trial court is correct. See Tenn. Code Ann. § 40-35-401(d) (1997).

Moreover, the appellant bears the burden of establishing the sentence imposed by

the trial court is improper. Sentencing Commission Comments, Tenn. Code Ann. §

40-35-401(d).



      In the present case, the appellant was convicted of two class A

misdemeanors. The penalty for a Class A misdemeanor is a term of imprisonment

“not greater than eleven months, twenty nine days.” See Tenn. Code Ann. § 40-35-

111(e)(1). In sentencing the appellant, the trial court relied heavily upon the

appellant’s involvement in both uncharged incidents of vandalism and incidents of

recent criminal conduct for which the appellant had been granted judicial diversion.

Although the court appropriately considered mitigating factors such that the

appellant made a public apology and did not cause or threaten any bodily injury, the

court, in its discretion, concluded that these factors did not outweigh the aggravating

factors. We find these facts supported by the record and agree that a period of

incarceration was appropriate to avoid depreciating the seriousness of the offense.

See Tenn. Code Ann. § 40-35-103(1)(B). The trial court is granted great flexibility

in arriving at the appropriate misdemeanor sentence. See Troutman, No. 03S01-

9705-CC-00049. The appellant’s challenge is without merit.



      The judgment of the trial court is affirmed.




                                  ____________________________________
                                  DAVID G. HAYES, Judge




                                         5
CONCUR:


_______________________________
JERRY L. SMITH, Judge



_______________________________
JAMES CURWOOD WITT, JR., Judge




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