         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON
                                                  FILED
                         MARCH 1998 SESSION
                                                    June 11, 1998

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                Appellate C ourt Clerk
                                 )    NO. 02C01-9704-CR-00133
      Appellee,                  )
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. CAROLYN WADE
CYNTHIA G. STARKS,               )    BLACKETT, JUDGE
                                 )
      Appellant.                 )    (Theft over $10,000)



FOR THE APPELLANT:                    FOR THE APPELLEE:

BILL ANDERSON, JR.                    JOHN KNOX WALKUP
138 North Third Street                Attorney General and Reporter
Memphis, TN 38103-2007
                                      JANIS L. TURNER
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      JOHN W. PIEROTTI
                                      District Attorney General

                                      JAMES J. CHALLEN, III
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Suite 301
                                      Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       The defendant, Cynthia G. Starks, pled guilty to the offense of theft over

$10,000, a Class C felony. The defendant agreed to a sentence of three (3) years

as a Range I offender and a fine of $500. The trial court denied the defendant’s

petition for total probation and refused to grant her judicial diversion. The trial court

ordered an alternative sentence of split confinement requiring the defendant to

serve weekends at the Shelby County Correctional Center for six (6) months

followed by three (3) years probation. In this Court, the defendant presents the

following issue for our review: “[w]hether the trial Court erred in ordering a split

confinement type of sentence in this matter, and, in light of the Court’s

determination, whether the type sentence imposed on the Defendant was too

severe as a matter of law.” After a thorough review of the record, the briefs

submitted by the parties, and the law governing the issues presented for review, it

is the opinion of this Court that the judgment of the trial court should be affirmed.



                                            I



       In 1989, the defendant began working as the administrative assistant to the

vice-chairman of the National Bank of Commerce (NBC). In this position she was

responsible for making payments on the vice-chairman’s expense accounts.

Beginning in 1992, the defendant placed phone orders for large quantities of

cosmetics using her employer’s Gold MasterCard. In 1992, defendant charged

$566 to the account. In 1993, she charged $9,754 on the card. In 1994, the

unauthorized charges totaled $44,811. In January and February of 1995, she

charged an additional $3,711 to the account. Taking into account an additional

$617 cash from general ledger expense tickets, the defendant admitted to stealing

a total of $59,514 from NBC.

       Defendant paid on the expense account as the charges accumulated by

submitting general ledger expense tickets to the vice-chairman for approval. She



                                           2
also prepared expense tickets with fictitious descriptions and forged the vice-

chairman’s signature. The defendant submitted the tickets to the bank’s teller, who

applied them as payment on the account. The vice-chairman was assigned a new

administrative assistant in 1995 who noticed the discrepancies in the bank records.

The defendant’s thefts were then discovered.

       The defendant testified that she used the account to purchase cosmetics

because she suffered from depression stemming from her marital difficulties. The

defendant also claimed she was under the influence of several prescription

medications for depression and anxiety during this period of time. She stated she

did not have a clear recollection of using the charge account and that the

medications made her feel “like [she] was floating through life.” Defendant also

testified that she no longer possessed any of the $59,000 worth of cosmetics she

purchased. She claimed that she did not sell or store the products, but gave them

away to friends and relatives.

       Defendant was examined by a psychiatrist, Dr. Thomas Bannister, who

submitted a letter to the trial court stating that defendant had developed the

symptoms of major depression in 1992. He concluded that the combination of

major depression, psychotropic medications and the regular use of alcohol may

have “diminished [her] ability to control [her] . . . impulses” and contributed to her

behavior. A vice-president from NBC also testified that the bank was not opposed

to a sentence of full probation for the defendant as long as she met her obligation

to pay $100 per month in restitution to the bank in accordance with a civil judgment.

       In sentencing the defendant to split confinement, the trial court stated:

               I still think she needs to do some time. That was a very large
       amount of money. Even though there’s -- by that letter there’s
       evidence of some type of mental problem with her. She still did what
       she did, and she continued to do what she did. You know, if there
       was -- if she was completely incapacitated that would be a completely
       different situation, but being depressed -- a lot of people get
       depressed . . . but they don’t go out and steal that kind of money.

       . . . [I]f she had done it one time just as a last resort, gave up on life
       or something I could understand it. But she did it over a period of
       time, so she had the intent to do that and not only do it but just
       continue to do it. The only reason why she quit was she got caught.
       And if they hadn’t caught her, she’d still be doing it now.



                                           3
The trial court also noted that the defendant did not appear to show remorse for her

actions.



                                          II



       The defendant contends the trial court erred by ordering a sentence of split

confinement rather than judicial diversion or full probation. The defendant argues

the sentence imposed by the trial court, requiring her to serve a one hundred eighty

(180) day sentence on weekends, was too severe based upon the evidence and

was, therefore, erroneous as a matter of law.

                                          A.

       When an accused challenges the length and manner of service of a

sentence, it is the duty of this Court to conduct a de novo review on the record with

a presumption that “the determinations made by the court from which the appeal is

taken are correct.”    Tenn. Code Ann. § 40-35-401(d).          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). The presumption does not

apply to the legal conclusions reached by the trial court in sentencing the accused

or to the determinations made by the trial court which are predicated upon

uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.

1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). However, this

Court is required to give great weight to the trial court’s determination of

controverted facts as the trial court’s determination of these facts is predicated upon

the witnesses’ demeanor and appearance when testifying.

       When a defendant contends that the trial court committed error in refusing

to impose a sentence pursuant to Tenn. Code Ann. § 40-35-313, commonly referred

to as “judicial diversion,” a different standard of appellate review applies. In

reviewing these issues this Court must determine whether the trial court abused its

discretion in failing to sentence pursuant to the statute. State v. Bonestel, 871



                                          4
S.W.2d 163, 167 (Tenn. Crim. App. 1993); State v. Anderson, 857 S.W.2d 571, 572

(Tenn. Crim. App. 1992); State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App.

1992). As this Court said in State v. Anderson:

               The standard by which we must review a judicial diversion
       decision is not specifically provided in the 1989 Act. In T.C.A. §§
       40-35-401 and -402, appellate review of the range, length or manner
       of service of a sentence is de novo upon the record with the trial
       court's determinations being presumed correct. However, judicial
       diversion entails more than these sentencing characteristics--it affects
       the underlying conviction as well. Also, the sentencing alternatives
       provided by the legislature in T.C.A. § 40-35-104 do not include
       judicial diversion.

               We conclude that judicial diversion is similar in purpose to
       pretrial diversion and is to be imposed within the discretion of the trial
       court subject only to the same constraints applicable to prosecutors
       in applying pretrial diversion under T.C.A. § 40-15-105. Therefore,
       upon review, if “any substantial evidence to support the refusal” exists
       in the record, we will give the trial court the benefit of its discretion.
       State v. Hammersley, 650 S.W.2d 352, 356 (Tenn. 1983). Only an
       abuse of that discretion will allow us to overturn the trial court.

857 S.W.2d at 572.

       When the accused raises sentencing issues in this Court, the accused has

the burden of establishing that the sentence imposed by the trial court was

erroneous. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments;

State v. Ashby, 823 S.W.2d at 169; State v. Fletcher, 805 S.W.2d 785, 786 (Tenn.

Crim. App. 1991).

                                           B.

       Defendant contends the trial court abused its discretion in refusing to grant

her judicial diversion. However, defendant never formally requested that the trial

court grant judicial diversion. Although defense counsel briefly mentioned judicial

diversion in his closing statement during the sentencing hearing, we do not find this

to be sufficient to properly bring the issue of judicial diversion before the trial court.

Nevertheless, we will address the issue on its merits.



       The criteria that must be considered in determining whether an eligible

accused should be granted judicial diversion include: (a) the defendant’s

amenability to correction; (b) the circumstances of the offense; (c) the defendant’s

criminal record; (d) the defendant’s social history; (e) the defendant’s physical and

                                            5
mental health; and (f) the deterrence value to the defendant as well as to others.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). An additional

consideration is whether judicial diversion will serve the ends of justice, i.e., the

interests of the public as well as the defendant. Id.

       In this case, although the trial court did not address the propriety of judicial

diversion, by ordering a period of confinement the court implicitly denied judicial

diversion. We find that there is sufficient evidence to support a denial of judicial

diversion. While the defendant had no prior criminal record and there was evidence

she suffered from mental health problems, the trial court noted that a period of

incarceration was necessary to avoid depreciating the seriousness of the offense

as it involved the theft of over $59,000 over a period of years. Furthermore,

defendant’s actions exhibited a violation of private trust and a sustained intent to

violate the law. Moreover, our review of defendant’s testimony indicates that she

was not completely candid with the trial court. Therefore, we conclude that the trial

court did not abuse its discretion in refusing to grant the defendant judicial diversion.

       This issue is without merit.

                                           C.

       The defendant further contends the trial court erred in failing to grant total

probation. An especially mitigated or standard offender convicted of a Class C, D

or E felony is presumed to be a favorable candidate for alternative sentencing in the

absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). However,

although a defendant may be presumed to be a favorable candidate for alternative

sentencing, the defendant has the burden of establishing suitability for total

probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see

Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically

considered, “the defendant is not automatically entitled to probation as a matter of

law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State

v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).

       In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the



                                           6
defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The defendant's lack of

credibility is also an appropriate consideration and reflects on a defendant's

potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.

1994).

         In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn.

Crim. App. 1997).

         Although the trial court granted the defendant an alternative sentence of split

confinement, the court refused to suspend her entire sentence. The trial court

stated some confinement was necessary to avoid depreciating the seriousness of

the offense. Tenn. Code Ann. § 40-35-103(1)(B). Based upon the need to avoid

depreciating the seriousness of the offense and the long period of time over which

the crimes occurred, the defendant was not entitled to total probation. However,

based upon the fact that she had no prior record and had mental health problems,

some form of alternative sentencing was appropriate. The trial court reached an

appropriate compromise in sentencing the defendant.



         For the foregoing reasons, the judgment of the trial court is affirmed.




                                                    JOE G. RILEY, JUDGE




                                            7
CONCUR:




GARY R. WADE, PRESIDING JUDGE




JERRY L. SMITH, JUDGE




                                8
