        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   March 1, 2005 Session

                  STATE OF TENNESSEE v. BEVERLY DIXON

                     Appeal from the Criminal Court for Shelby County
                         No. 03-00289    Arthur T. Bennett, Judge



                    No. W2004-00194-CCA-R3-CD - Filed June 30, 2005


The defendant, Beverly Dixon, pleaded guilty to one count of felony Class B theft of property over
$60,000. The trial court imposed an incarcerative eight-year sentence and denied any form of
alternative sentencing. On appeal, the defendant argues that the sentencing process was flawed by
the introduction of prejudicial hearsay and that the trial court should have granted probation or
placement into a community corrections program. We affirm the judgment of the trial court.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ., joined.

Larry M. Sargent, Memphis, Tennessee, for the Appellant, Beverly Dixon.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                           OPINION

                Beginning in 1997 and continuing until August 1999, the defendant systematically
embezzled at least $133,000 from her employer, Ligon-Hughes Real Estate Company. The
defendant was initially hired in as a receptionist and later worked as a bookkeeper for the Shelby
County-based company. The defendant’s larcenous conduct netted her an indictment charging two
counts of theft of property over $60,000. See Tenn. Code Ann. §§ 39-14-103, -14-105(5) (2003).
By agreement with the state, the defendant pleaded guilty to one charge of Class B felony theft of
property over $60,000 with a corresponding sentence of eight years as a Range I standard offender.
The manner of service of the sentence was reserved for the trial court’s consideration and
determination.
               The record before us contains a transcript of the defendant’s plea submission,
containing the following factual basis for the plea:

                     . . . Ms. Nancy Ligon-Hughes owned a real estate company
              here in Shelby County[,] Tennessee. Ligon-Hughes’ Real Estate
              Company located at 1716 Locket Place.

                    This defendant, Ms. Beverly Dixon, was employed as the
              bookkeeper for her company. In the course of running this business,
              Ms. Hughes started to suspect that Ms. Dixon had been embezzling
              money from her company, because the amount of receipts that the
              company was taking in had gotten low – had become extremely low.
              Ms. Hughes reported this possible theft to the Memphis Police
              Department on or about August 31, 1999.

                      Ms. Hughes had hired a private investigator to assist her in
              trying to document what had happened to the proceeds of this
              business and why the business was taking in a small amount of
              money relative to what the business had been doing.

                      The investigation indicated that during the first part of 1997,
              this defendant, while employed as a bookkeeper, was not an
              authorized signer of any company checks that had been printed on the
              computer. The investigation revealed that Ms. Dixon had used a
              company issued AT&T credit card, and she had made numerous
              personal purchases during the period of time as alleged in this
              indictment – during the period of time in which this offense was
              committed rather, and this period of time is August 1, 1998 and
              September 1, 1997 [sic]. But the thefts actually go back to the first
              part of 1997.

                     Ms. Dixon would use company issued credit cards, and make
              personal purchases on that company card. Then she would pay for
              those purchases by using company checks that were printed by Ms.
              Dixon on her computer, and she forged Ms. Hughes’ signature on
              those checks.

                     A further investigation revealed that Ms. Dixon had also
              created unauthorized company checks from different accounts and
              made those checks payable directly to herself. This defendant used
              her own personal Union Planters bank account number and signed her
              own signature on those checks that she had printed and had forged
              without permission, over [sic] consent or knowledge of Ms. Hughes.


                                               -2-
                        She would record those checks in the computer system and
               she would void those checks. When those checks came in for
               processing, she would intercept the checks and the bank statement,
               and would hide this elaborate theft scheme that she had used, in order
               to steal this money from the victim.

                       The victim was able to document, in the course of this
               investigation, at least $133,000 that was stolen by this defendant.
               That’s probably a conservative figure, because it was hard to
               document some additional thefts that Ms. Hughes believes that the
               defendant was responsible for but was not able to provide
               documentation.

               Also in the record is a presentence investigation report, which contains the thoughtful
and poignant victim-impact statement of Ms. Ligon-Hughes. In her statement, Ms. Ligon-Hughes
explains how the defendant’s criminal conduct caused the loss of her business, the depletion of her
retirement assets, and time lost from her family:

                       All together I would say that my monetary loss from costs
               related to the theft was approximately $240,000.

                       After so much loss, I didn’t have enough money to run my
               company. I had to sell several rental properties that I had acquired
               over many years. The equity that had been built up was for my
               retirement. Instead I had to use it to keep my company afloat.
               Eventually after 15 years of being in business, I had to shut the doors
               and go to work for someone else. Now that retirement money is gone
               also and I don’t have the health or the years to do it again . . . .

                      It was my goal to at least partially retire by 65 and spend more
               time with my family. I will be 65 in just over a year and I have no
               hope of retiring soon because of the debts that I owe because of the
               embezzlement. I work seven days a week from early in the morning
               to evening.

                       The tragedy of all this is the time I have lost with my loved
               ones. I have always been close to my parents. They are both 88 years
               old and both have terminal illnesses. Yet I am lucky if I can spend a
               few hours a week with them and I am not going to have them much
               longer.

                       My husband who is older than I am is now retired. His health
               has not been good and I have very little time to spend with him.


                                                 -3-
                          I have eight grandchildren who are growing up very fast and
                  I have almost no time to see them. My daughter in Dallas has two
                  small children. The little boy is extremely handicapped. In
                  November, he had to be rushed to the hospital where he stopped
                  breathing. Fortunately the doctors brought him back. Because of
                  work and finances, I am not in a position to go to Dallas very often to
                  help my daughter. She needs me and I have not been able to be there
                  for her as much as I should.

                         When people have died or children are grown up, there is no
                  way to get the time with them back.

                        Recently, I have had some health problems that cause me to
                  wonder if I will be able to continue working as before.


                In connection with the sentencing hearing,1 the defendant testified that she was 32
years old, married, and had three preschool-age children. The defendant was not currently employed,
although she explained that she had arranged to have a job depending on the court’s determination
regarding manner of service of her sentence. The defendant’s husband was employed, and she said
that he was willing to help make restitution. As part of her restitution plan, the defendant had taken
out a loan for $15,000, the proceeds of which she had brought to court, and she claimed that from
her husband’s earnings, she could pay $1,200 per month.

                The defendant said that her initial motivation in stealing the money was for her
“family to put food on the table” and to pay delinquent bills. Later on, she “did buy some frivolous
items with the credit card that [she] had misused.” The defendant stated that during the relevant
times, she suffered from severe depression. The defendant admitted her wrongdoing and insisted
that she would do anything to pay back Ms. Ligon-Hughes.

                The state elicited on cross-examination that since the defendant was fired
approximately four and one-half years earlier, she had made no restitution whatsoever. Regarding
the “frivolous items” purchased, the defendant conceded that she had bought Christmas presents,

         1
            The record reveals that the presentence investigation was ordered on December 11, 2003, prior to the
defendant’s guilty-plea submission. In addition, we note that the plea submission and the sentencing hearing to determine
the manner of service of the sentence occurred the same day, on January 13, 2004. Code section 40-35-208 provides,
“The presentence report shall be filed with the clerk of the court, and complete copies shall be made available to the
parties within ten (10) days prior to the sentencing hearing which may be waived by the consent of all parties and the
court.” Tenn. Code Ann. § 40-35-208 (2003). That section “mandates the availability of the pre-sentence report to the
defendant and the trial judge has inherent power to address any complaint regarding noncompliance.” State v. Vernon
Lamar Bryant, No. E2002-01234-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, Aug. 26, 2003). From the
lack of objection or comments in the record, we surmise that neither the parties nor the court objected to the timing and
scheduling of the proceedings.



                                                          -4-
jewelry and diamonds for herself, her mother, and mother-in-law, hunting equipment for her
husband, an expensive camcorder, and even a birthday present for Ms. Ligon-Hughes from whom
the defendant was embezzling. Additionally, the defendant made numerous purchases from the
Home Shopping Network, some of which she said was returned and credited “because it did not fit.”
The defendant insisted, however, that she had stopped writing herself checks and using the credit
card months before she was “caught.”

               The trial court questioned the defendant about her former employers. The trial court
noted that Ms. Ligon-Hughes’s victim-impact statement referenced talking with the owners of other
real estate companies who described the defendant as dishonest. The defendant’s response was that
she was a receptionist for those companies and “was not in any way involved in any money.”

               The defendant’s husband testified briefly in her behalf. He voiced his support of the
defendant, including helping her to make restitution.

               Ms. Ligon-Hughes testified. She was asked about her victim-impact statement
regarding the defendant’s previous employers. Over defense objection, she explained that after firing
the defendant she had spoken personally with Joyce Andrews, the owner of one of the real estate
companies. In checking the defendant’s references, Ms. Ligon-Hughes had questioned Ms.
Andrews’ office manager. The office manager had been concerned about being sued and did not
disclose the problems with the defendant. When, however, Ms. Ligon-Hughes talked with Ms.
Andrews, Ms. Andrews related that the defendant had been fired after using a company credit card
to order personal merchandise, such as dolls. The other real estate company owner would not
provide specifics but simply told Ms. Ligon-Hughes that the defendant “doesn’t know what honesty
is.”

               Ms. Ligon-Hughes disputed the defendant’s testimony about when the embezzlement
stopped. Ms. Ligon-Hughes testified that the defendant was writing checks up until the time she was
fired in August 1999 and that, in all, the defendant had written at least 250 unauthorized checks. In
addition to the purchases already mentioned, Ms. Ligon-Hughes testified that the defendant had
acquired a new pickup truck for her family and was making payments on the vehicle from stolen
proceeds.

               Ms. Ligon-Hughes testified that she was certain that the defendant embezzled more
than $133,000, but that amount was all that could be readily documented. As she did in her victim-
impact statement, Ms. Ligon-Hughes explained how the defendant’s theft led to the collapse of the
real estate company and all of the other attendant problems.

               At the conclusion of Ms. Ligon-Hughes’s testimony, the court solicited statements
from counsel. The defendant’s counsel implored the court to consider a sentence less than full
incarceration on the basis of providing restitution to Ms. Ligon-Hughes. The state sought
incarceration and pointed out: (1) the theft was not an isolated event but a continuing course of
conduct; (2) providing necessities for her family was a minor aspect of the defendant’s theft; (3)


                                                -5-
“with the stroke of a pen and a punch of a few buttons,” the defendant destroyed Ms. Ligon-
Hughes’s life, her family’s life, her business, and the lives of people who had worked for the real
estate company; (4) the defendant’s sincerity about making restitution was highly doubtful inasmuch
as she had remained unemployed since being fired and had shown absolutely no interest in making
any restitution in the five years following her termination; and (5) alternative sentencing “would
absolutely depreciate” the damage that the defendant had inflicted.

                The trial court began its ruling by noting the “terrible damage” that the defendant had
“reeked” and the lives that had been destroyed. Next, the trial court found the defendant’s
explanation why she had embezzled the money to be untruthful, although the court granted the
defendant the benefit that she may have started embezzling funds to pay for family necessities. After
a short while, however, the defendant “went wild buying things” and dipping into “a free well of
money,” according to the trial court. The court was very troubled by the defendant’s failure to make
any restitution over the preceding five years and not obtaining employment, and the court believed
that probation or other alternative sentencing would depreciate the seriousness of the offense.
Finally the court referenced the need for deterrence. Accordingly, the court ordered an incarcerative
sentence of eight years as a Range I standard offender.

                On appeal, the defendant registers three sentencing complaints. First, she insists that
the trial court erred in allowing Ms. Ligon-Hughes to testify about what the defendant’s former
employers had said. Second, the defendant argues that she should have been granted probation.
Last, she maintains that the trial court acted in contravention of public policy by failing to impose
a community corrections sentence. We will consider each contention in turn.

                                      I. Hearsay Statements

                As previously noted, after terminating the defendant’s employment, Ms. Ligon-
Hughes sought out two of the defendant’s previous employers. Over defense objection, the trial
court permitted Ms. Ligon-Hughes to relate her conversations with those employers during which
one employer advised that the defendant was fired for making personal purchases with a company
credit card and during which the other employer characterized the defendant as not “know[ing] what
honesty is.” The defendant argues that the trial court should never have permitted such inadmissible
and prejudicial hearsay. From the defendant’s brief, we are uncertain what relief or remedy she
seeks from the alleged erroneous admission; she simply claims that her sentencing hearing was
flawed. For its part, the state contends that any error was clearly harmless.

                Tennessee’s sentencing scheme allows for the admission and consideration of
trustworthy and probative evidence. See Tenn. Code Ann. § 40-35-209(b) (2003). “Reliable hearsay
is admissible in a sentencing hearing so long as the opposing party has a fair opportunity to rebut the
evidence.” State v. Moss, 13 S.W.3d 374, 385 (Tenn. Crim. App. 1999). We are not persuaded that
the hearsay statements at issue in this case were necessarily untrustworthy or unreliable.
Furthermore, we do not believe that the defendant was deprived of a fair opportunity to rebut the
evidence or confront the prior employers. The defendant admitted in her sentencing testimony that


                                                 -6-
she had read and was aware of the hearsay statements from the victim-impact report; she countered
the hearsay by denying involvement with any dishonesty in her former employment. Moreover, the
defendant did not call her former employers to testify, nor did she request a continuance to subpoena
the employers once the trial court overruled her hearsay objection.

                Regardless whether it was error to admit the hearsay statements, we agree with the
state that admission of the evidence was harmless. The trial court did not rely upon or allude to the
statements attributed to the defendant’s former employers in sentencing the defendant. In addition,
the defendant’s dishonesty/untruthfulness was independently established. The trial court specifically
found that the defendant had been untruthful in claiming that she used the embezzled money to
resolve family financial problems, in light of the many extravagant and frivolous purchases made.
The defendant’s testimony that she had ceased her larcenous behavior months before her thefts were
discovered was flatly contradicted by Ms. Ligon-Hughes’s sworn insistence that the defendant was
writing checks up until the time she was fired in August 1999. The trial court had abundant grounds
to assess the defendant’s credibility, which were unrelated to any comments by the defendant’s
former employers.

               Accordingly, we reject the defendant’s argument.

                                    II. Alternative Sentencing

                 Regarding the defendant’s remaining two sentencing issues, we begin with our
familiar standard of review. When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review of the record with a presumption
that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). “The burden of
showing that the sentence is improper is upon the appellant.” Ashby, 823 S.W.2d at 169. In the
event the record fails to demonstrate the required consideration by the trial court, review of the
sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
court must affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court
determines the specific sentence and the propriety of sentencing alternatives by considering (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 enhancement and mitigating factors, (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing, and (7) the potential for rehabilitation or treatment. Tenn. Code


                                                 -7-
Ann. §§ 40-35-210(a), (b), -35-103(5) (2003); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim.
App. 1993).

                                            A. Probation

                The defendant argues strenuously that she should have received a probationary
sentence. In support, she advances a “presumption of rehabilitation” and lack of significant criminal
history, and she attacks the trial court’s reliance on deterrence and seriousness of the offense. To
be sure, the defendant was eligible for probation, having received an eight-year sentence. See Tenn.
Code Ann. § 40-35-303(a) (2003). However, the determination of entitlement to full probation
necessarily requires a separate inquiry from that of determining whether a defendant is entitled to
a less beneficent alternative sentence. See State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim.
App. 1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). A defendant
is required to establish her “suitability for full probation as distinguished from [her] favorable
candidacy for alternative sentencing in general.” State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim.
App. 1999); see Bingham, 910 S.W.2d at 455-56. A defendant seeking full probation bears the
burden of showing that probation will “subserve the ends of justice and the best interest of both the
public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                 As contrasted with the defendant’s eligibility for probation in this case, she was not,
as a matter of law, entitled to the presumption of favorable candidacy for alternative sentencing that
is extended to an offender who is “an especially mitigated or standard offender convicted of a Class
C, D or E felony.” See Tenn. Code Ann. § 40-35-102(6) (2003). The defendant stands convicted
of a Class B felony. “As such, the state had no burden of justifying confinement through
demonstrating the presence of any of the considerations upon which confinement may be based [per
Tennessee Code Annotation section 40-35-103(1)].” State v. Joshua L. Webster, No. E1999-02203-
CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Dec. 4, 2000); see State v. Zeolia, 928
S.W.2d 457, 461 (Tenn. Crim. App. 1996) (when presumption of favorable candidacy for alternative
sentencing options applies, state must justify confinement by showing “evidence to the contrary” of
the presumption).

               The defendant’s reference to a presumption of rehabilitation confuses the proverbial
apples and oranges. The presumption-of-rehabilitation concept was given voice in State v. Ashby,
823 S.W.2d 166 (Tenn. 1991), in connection with discussing section 40-35-102(5). Therein the
supreme court wrote, “Also, subsection (5) establishes a rebuttable presumption in favor of
rehabilitation upon early convictions. See also T.C.A. § 40-35-303(b) (probation is to be
automatically considered as a sentencing alternative for eligible defendants). . . .” By that language,
we do not believe that the supreme court intended to relieve a defendant of his or her burden to
demonstrate suitability for full probation by invoking a rehabilitation presumption that the state
would then be required to rebut. Instead, we read the court’s language as referring to the statutory
requirement that “probation shall be automatically considered by the court” for eligible defendants.
See Tenn. Code Ann. § 40-35-303(b) (2003) (emphasis added). This interpretation is reinforced by


                                                  -8-
Code section 40-35-303(b), which also expressly provides “that nothing in this chapter shall be
construed as altering any provision of present statutory or case law requiring that the burden of
establishing suitability for probation rests with the defendant.” Id. § 40-35-303(b).

               Regarding considerations relevant to probation, the trial court is directed to consider
the nature and circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, his or her present condition, including physical and mental condition,
and the deterrent effect on the defendant. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim.
App. 1999). The court should also consider the potential for rehabilitation or treatment of the
defendant in determining the appropriate sentence. See Tenn. Code Ann. § 40-35-103(5) (2003).

               We discern no reason to disturb the trial court’s determination that the defendant
failed to show entitlement to probation. Although the defendant admittedly lacked a significant
criminal history, her amenability to rehabilitation was not demonstrated.

               Furthermore, it is settled that a trial court may consider a defendant’s untruthfulness
and lack of candor as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d
282, 289 (Tenn. Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983);
Zeolia, 928 S.W.2d at 463. The trial court was obviously not impressed with the defendant’s candor
regarding the extent of and motivation for the theft, and that credibility determination is entitled to
great deference.

                 As for the trial court’s conclusion that confinement was appropriate, we emphasize
that the state was not burdened with the task of establishing the propriety of confinement. See
Joshua Webster, slip op. at 3. At any rate, the defendant blatantly abused a position of trust by
engaging in an ongoing scheme of embezzlement; the defendant’s conduct was not an isolated event
but, instead, a continuing course of misconduct. See State v. Tony Harp, No. W2003-01655-CCA-
R3-CD, slip op. at 5 (Tenn. Crim. App., Jackson, Sept. 21, 2004) (full probation inappropriate based
on abuse of position of trust and ongoing scheme to defraud business). The enormity of the
defendant’s theft led to the financial ruin of Ms. Ligon-Hughes’s real estate company, thereby
affecting the lives of several people. The defendant destroyed Ms. Ligon-Hughes’s ability to retire
and robbed her of precious time and resources to devote to family members.

               Regarding deterrence, we note that the trial court did not rely solely on that ground
as a basis for denying probation in this case. Consequently, it is unnecessary to engage in any
protracted analysis whether sufficient evidence exists in the record relating to the need for
deterrence. See generally State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

               In summary, we discern no error in the trial court’s refusal to probate the defendant’s
eight-year sentence in this case.




                                                 -9-
                                      B. Community Corrections

                 As for the final issue that the defendant raises, we find no basis to credit her argument
that the trial court “acted in contravention of the public policy” of Tennessee by failing to impose
a community corrections sentence.

                A community corrections sentence is a form of alternative sentencing. See Tenn.
Code Ann. § 40-35-104(c)(9) (2003). As noted previously, the defendant is not entitled to a
presumption of entitlement to alternative sentencing because she was convicted of a Class B felony.
Although the defendant does meet the minimum eligibility criteria listed in Code section 40-36-106,
mere eligibility does not automatically entitle her to be sentenced under the community corrections
program. See State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998).

                “The Community Corrections Act was never intended as a vehicle through which
offenders could escape incarceration.” State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App.
1997). In that respect, a trial court may consider, inter alia, a defendant’s candor or untruthfulness
in denying a community corrections sentence. See Zeolia, 928 S.W.2d at 463. In our opinion, the
trial court’s negative assessment of the defendant’s candor provides ample support for an
incarcerative sentence in lieu of community corrections.

              In summary, the defendant has failed to carry her burden of demonstrating that the
sentence imposed by the trial court was improper, and the judgment of the trial court is, accordingly,
affirmed.



                                                _______________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




                                                  -10-
