         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     June 17, 2003 Session

                   STATE OF TENNESSEE v. TRACI L. CREWS

                Direct Appeal from the Circuit Court for Williamson County
                        No. I-502-189-A    Donald P. Harris, Judge



                  No. M2002-02908-CCA-R3-CD - Filed November 20, 2003


The defendant entered a best interest plea to theft over $10,000, as a Range I, standard offender. She
was sentenced to six years, with eight months of confinement and the remainder suspended with ten
years of intensive probation. Restitution was included. On appeal of her sentence, the sentence was
modified to three years and the remaining terms of the sentence affirmed in all respects.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Edward J. Gross, Nashville, Tennessee, for the appellant, Traci L. Crews.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Sharon E. Guffee, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

       The defendant, Traci L. Crews, entered a best interest plea to theft over $10,000, a violation
of Tennessee Code Annotated section 39-14-103, a Class C felony, as a Range I, standard offender.
After a sentencing hearing, the trial court imposed a sentence of six years, with eight months
incarceration followed by the balance of ten years on intensive probation. The defendant appeals
from the sentence she received.

                                                Facts

        The defendant was involved with codefendants Michelle Vance and Patti Wade in an
enterprise intended to obtain money by theft from the victim, E. J. Footwear. Vance was accounts
payable and payroll manager at Durango, a subsidiary of E. J. Footwear. Vance issued checks to the
defendant, which she cashed at a check cashing business. The defendant claimed she received
nothing from the proceeds, but said Vance bought her child items with a combined estimated value
of approximately three to four thousand dollars. Wade, the defendant’s sister, was later involved and
her name used on three checks issued by Vance. According to Wade and the defendant, Wade was
paid $600 for the fee normally paid at check cashing businesses.

       Michelle Vance testified that the defendant received one-half of all proceeds from the checks
made to her, and the checks made to Wade were divided equally between the three participants.

       The presentence report revealed that the defendant was forty-one years old and separated
from her current husband. She had custody of her two children, ages twelve and one, as well as a
minor cousin. The defendant had no prior criminal history. Although unemployed at the time of the
offenses, the defendant had a significant employment history. She had recently relocated to
Huntsville, Alabama, and had an offer of employment at a medical clinic there.

      The defendant, in her direct appeal, contends the trial court erred in application of the
enhancement factor, the sentence requiring confinement, and the amount of restitution.

                                             Analysis

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be
the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors


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do exist, a trial court should enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.
§ 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each
factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the
trial court as long as the trial court complies with the purposes and principles of the sentencing act
and its findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim.
App. 2002); see Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments. Nevertheless,
should there be no mitigating factors, but enhancement factors are present, a trial court may set the
sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); State v. Imfeld,
70 S.W.3d 698, 704 (Tenn. 2002).

        The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the limited capacity of
state prisons and mandates that convicted felons committing the most severe offenses, possessing
criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure
of past efforts of rehabilitation shall be given first priority regarding sentencing involving
incarceration. Tenn. Code Ann. § 40-35-102(5). A defendant who does not qualify as such and who
is an especially mitigated or standard offender of a Class C, D, or E felony, is presumed to be a
favorable candidate for sentencing options in the absence of evidence to the contrary. Tenn. Code
Ann. § 40-35-102(6). This simply means that the trial judge must presume such a defendant to be
a favorable candidate for sentencing which does not involve incarceration.

        The presumption that a defendant is a favorable candidate for sentencing which does not
involve incarceration is rebuttable, and incarceration may be ordered if the court is presented with
evidence of the following: (A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct; (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) (1990). In determining the appropriate sentencing alternative, a court may also
look to evidence or information offered by the parties on the statutory enhancement and mitigating
factors. Tenn. Code Ann. § 40-35-210(b)(5) (Supp. 1995); Tenn. Code Ann. §§ 40-35-113, -114
(Supp. 1995). Lastly, a court should take into account the potential, or lack of potential, for a
defendant’s rehabilitation or treatment when considering the appropriate sentencing alternative.
Tenn. Code Ann. § 40-35-103(5) (1990).

        If our review reflects that the trial court followed the statutory sentencing procedure and
imposed a lawful sentence after giving due consideration and proper weight to the factors and
principles set out under 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 result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

       The trial judge applied enhancement factor (7); that the amount of damage to property
sustained or taken from the victim was particularly great. See Tenn. Code Ann. § 40-35-114.


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Mitigating factor (1) was also found applicable; that the conduct neither caused nor threatened
serious bodily injury. See Tenn. Code Ann. § 40-35-113.

        The defendant was sentenced to six years in the Department of Correction , with the sentence
suspended after serving eight months at 100%. Probation was set at ten years and specified as
intensive. The defendant was ordered to pay restitution of $14,490.00 and the court costs.

       The trial judge made the following observation prior to announcing the defendant’s sentence:
       This is one of those cases that I see periodically in that both of these women [the
       defendant and her sister, Wade] would have been granted full probation had they
       merely come in here and told the truth, but I don’t know why that for some reason
       they have elected not to do so. And that reflects, of course, on their amenability to
       rehabilitation.

       The trial judge in this case properly considered the relevant sentencing principles together
with the relevant facts and circumstances. Therefore, our review is de novo with a presumption of
correctness.

       Initially, we examine the trial court’s application of the enhancement factor that the amount
of property taken from the defendant was particularly great. The defendant was found guilty of theft
of property in excess of $10,000, a Class C felony.
       Grading of theft. -- Theft of property or services is:
       (1) A Class A misdemeanor if the theft of the property or services obtained is five
            hundred dollars ($500) or less;
       (2) A Class E felony if the value of the property or services obtained is more than
            five hundred dollars ($500) but less than one thousand dollars ($1,000);
       (3) A Class D felony if the value of the property or services obtained is one thousand
            dollars ($1,000) or more but less than ten thousand dollars ($10,000);
       (4) A Class C felony if the value of the property or services obtained is ten thousand
            dollars ($10,000) or more but less than sixty thousand dollars ($60,000); and
       (5) A Class B felony if the value of the property or services obtained is sixty
            thousand dollars ($60,000) or more.
Tenn. Code Ann. § 39-14-105(4) (1991).

       We reject the use of this enhancement factor under the circumstances of this case. The
general rule is that since the punishment for theft is enhanced based upon the amount taken by the
accused, the use of this factor constitutes double enhancement in violation of the statute. State v.
Grissom, 956 S.W.2d 514, 517 (Tenn. Crim. App. 1997); State v. Tate, 1997 Tenn. Crim. App.
LEXIS 793, No. 03C01-9110-CR-00327 (Tenn. Crim. App. Oct. 15, 1992), perm. to appeal denied
(Tenn. Mar. 8, 1993).

        We are aware that there have been several exceptions to the general rule that allows use of
this enhancement under certain circumstances:


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       (a) State v. Barbara D. Frank, No. 03C01-9209-CR-00303, 1993 Tenn. Crim. App.
           LEXIS 860 (Tenn. Crim. App., at Knoxville, Dec. 22, 1993), when the amount
           taken approached the next classification of theft, and the victim, a closely held
           corporation of three individuals, was particularly damaged;
       (b) State v. Barbara Kay Keefer, No. 03C01-9709-CC-00413 1999 Tenn. Crim. App.
           LEXIS 124 (Tenn. Crim. App. at Knoxville, Feb. 10, 1999), when the amount
           actually taken was over four times the $60,000 necessary to constitute a Class B
           felony theft and forced the victim into bankruptcy;
       (c) State v. Cynthia Taylor Mann, No. M1999-01390-CCA-R3-CD, 2001 Tenn.
           Crim. App. LEXIS 337 (Tenn. Crim. App., at Nashville, May 8, 2001), the
           amount stolen was about six times the $60,000 threshold for Class B felony theft
           and deprived employees of the partnership of year-end bonuses and retirement
           contributions, and the partners of the victim were forced to sign a $400,000
           promissory note to cover losses; and
       (d) State v. Jacob Dyck, No. E2001-00476-CCA-R3-CD, 2002 Tenn. Crim. App.
           LEXIS 355 (Tenn. Crim. App. at Knoxville, April 22, 2002), the amount actually
           stolen qualified for the next highest level of felony theft, and the victim was an
           elderly individual.

       In the instant case, the highest total figure proposed by the State as stolen from the victim was
$38,000, mid-range of Class C felony theft. There was no evidence adduced showing particular great
damage to the large corporate victim. Accordingly, we conclude that this enhancement factor was
misapplied.

        The Range I sentence for a Class C felony is three to six years. See Tenn. Code Ann. § 40-
35-112(a)(3). The presumptive sentence for a Class C felony is the minimum sentence in the range,
increased as appropriate for enhancement factors and decreased as appropriate for mitigating factors.
See id., 40-35-210(c)(e). Absent any enhancement factor, we conclude that the sentence should be
modified to three years.

        The defendant also complains of the length of mandatory incarceration of eight months and
the amount of restitution. The sentencing judge clearly accredited the testimony of the accomplice
Michelle Vance as to the sharing of the check proceeds, which directly contradicted the defendant’s
contentions. The record also reveals that the defendant accepted responsibility only with strong
qualification. Falsification and responsibility-shifting are ill omens for a defendant seeking the
largesse of total probation.

        We have repeatedly held that truthfulness and willingness to accept responsibility for the
offenses are probative of the prospects for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306
(Tenn. Crim. App. 1994); State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim. App. 1992). By
evaluating the defendant in this manner, the trial court, pursuant to Tennessee Code Annotated
section 40-35-103(5), determined the defendant’s alternative sentence. Having concluded that the



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term of incarceration prior to probation status and the restitution were appropriate, we affirm the
eight-month term of incarceration and restitution as ordered and modify the sentence to three years.




                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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