         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs January 18, 2001

            STATE OF TENNESSEE v. CYNTHIA TAYLOR MANN

               Direct Appeal from the Circuit Court for Montgomery County
                        No. 40324     John H. Gasaway, III, Judge



                      No. M1999-01390-CCA-R3-CD - Filed May 8, 2001


The Defendant pleaded guilty to theft of property valued over sixty-thousand dollars, a Class B
felony. The trial court sentenced the Defendant as a Range I, standard offender to the minimum
eight-year sentence, to be served in the Tennessee Department of Correction. The Defendant now
appeals, arguing that the trial court erred in denying her alternative sentencing. We affirm the
judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL , JJ., joined.

Collier W. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Cynthia
Taylor Mann.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; John W. Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        The Defendant pleaded guilty to theft of property valued over sixty-thousand dollars, a Class
B felony, with the manner of service to be determined at a sentencing hearing. The trial court
sentenced the Defendant as a Range I, standard offender to the minimum eight-year sentence, to be
served in the Tennessee Department of Correction. The Defendant now appeals, arguing that the
trial court erred in denying her alternative sentencing. Specifically, the Defendant challenges the
trial court’s application of certain enhancement factors in determining her sentence. We affirm the
judgment of the trial court.
                                               FACTS

        In April 1998, the law firm of Marks, Maness and Shell became concerned that its trust
account was being mishandled. The firm contacted Bob Yates, a partner in the accounting firm of
Thurman, Campbell, and Company to examine the records. Yates testified that he made a list of the
items that he would need to examine the account and gave that list to the Defendant, who was the
loan-closing agent for the firm. These items included bank statements, cancelled checks, any other
documents of original entry and supporting ledgers. Yates received an incomplete bank statement
from the Defendant for May 1998, and he informed Carmack Shell, a partner in the law firm. When
Yates was finally able to attain the necessary documents, he identified disbursements in excess of
proceeds on the Defendant’s employee construction mortgage loan in the amount of $357,000.

         Carmack Shell, a partner at Marks, Maness and Shell, testified regarding the Defendant’s role
in real estate closings handled by his firm. Shell testified that the Defendant “ultimately did the loan
closings herself.” Shell testified that he did not believe he would ever be able to collect on the loss
to his firm because the Defendant has never offered to pay anything. Shell testified that because of
the Defendant’s actions, his firm was unable to pay its employees their entire annual end-of-the-year
bonuses.

        Laura Mann, Carmack Shell’s secretary, testified that because of the Defendant’s actions she
was not able to receive her full end-of-the-year bonus or receive a contribution from the firm for her
retirement. Carol Canady, secretary to Albert Marks, who is a partner at the law firm, testified that
she did not receive her retirement contribution from the firm and that she received only a portion of
her bonus because of the Defendant’s actions. Although there was no guarantee that any of the
employees would receive a bonus each year, Mann had received one for the last twelve or thirteen
years.

       Dana Robertson, an employee at Marks, Maness and Shell, testified that during the period
of time in question, she was working on various types of cases at the firm including wills and
divorces. Robertson testified that the Defendant asked her to forge client signatures on certain
mortgage documents. Robertson testified that she saw the Defendant forge signatures on the
documents. Robertson also testified that she did not receive her bonus or retirement because of the
Defendant’s actions.

       Lori Nelson, the Defendant’s assistant, testified that she worked in the real estate section with
the Defendant. Nelson testified that the Defendant never prepared any balance sheets on the trust
account. Nelson also testified that she was a friend of the Defendant and that they would sometimes
go shopping together. Nelson testified regarding the Defendant’s extravagant spending habits.

                                             ANALYSIS

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must conduct a de novo review of the sentence with a presumption that the


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determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption, however, “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). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then 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 Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

       When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The purpose of recording the court’s
reasoning is to guarantee the preparation of a proper record for appellate review. State v. Ervin, 939
S.W.2d 581, 584 (Tenn. Crim. App. 1996).

        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 proper weight to the
factors 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 result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

        Because the Defendant agreed to the minimum eight-year sentence as part of her guilty plea,
the only issue for the trial court to determine was the manner of service of the eight years. The
Defendant argues on appeal that the trial court erred in denying probation or some type of alternative
sentence. With certain exceptions, a defendant is eligible for probation if the sentence actually
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a). “Although probation ‘must be
automatically considered as a sentencing option for eligible defendants, the defendant is not
automatically entitled to probation as a matter of law.’” State v. Davis, 940 S.W.2d 558, 559 (Tenn.
1997) (citing Tenn. Code Ann. § 40-35-303(b) sentencing comm’n cmts). In determining whether
to grant or deny probation, the trial court may consider the circumstances of the offense; the
defendant’s criminal record, background and social history; the defendant’s physical and mental
health; the deterrent effect on other criminal activity; and the likelihood that probation is in the best
interests of both the public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996). The trial court may also consider evidence offered by the parties on the statutory


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enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(b)(5); State v. Grissom, 956
S.W.2d 514, 519 (Tenn Crim. App. 1997). The defendant has the burden of establishing suitability
for probation. Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169. Additionally, a
defendant seeking full probation bears the burden on appeal of showing that the sentence imposed
is improper and that full probation will be in the best interest of the defendant and the public. State
v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        However, we further note that even if a defendant is presumed to be a favorable candidate
for alternative sentencing under Tennessee Code Annotated § 40-35-102(6), the statutory
presumption of an alternative sentence may be overcome if
                (A) [c]onfinement is necessary to protect society by restraining a defendant
        who has a long history of criminal conduct;
                (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
        offense or confinement is particularly suited to provide an effective deterrent to
        others likely to commit similar offenses; or
                (C) [m]easures less restrictive than confinement have frequently or recently
        been applied unsuccessfully to the defendant . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C).

        In sentencing the Defendant, the trial court applied the following enhancement factors: (1)
[t]he offense involved more than one (1) victim; (2) [t]he personal injuries inflicted upon or the
amount of damage to property sustained by or taken from the victim was particularly great; (3) [t]he
offense involved a victim and was committed to gratify the defendant’s desire for pleasure or
excitement; and (4) [t]he defendant abused a position of public or private trust, or used a special skill
in a manner that significantly facilitated the commission or the fulfillment of the offense. Id. § 40-
35-114(3), (6), (7), (15). The only mitigating factor applied was that the Defendant’s actions did not
cause or threaten to cause serious bodily injury. Id. § 40-35-113(1).

        The Defendant argues that the trial court erred by finding that the crime involved more than
one victim. This Court has previously held, in a case quite similar to this one, that the employees
where the defendant worked constituted multiple victims. See State v. Lesa Mae Malone, No.
01C01-9706-CC-00234, 1998 WL 427387, at *5 (Tenn. Crim. App., Nashville, July 30, 1998). In
this case, there was testimony that the partners at Marks, Maness and Shell were personally liable
for the loss to their firm. Shell testified that because of the Defendant’s actions, the partners all
signed a note for $400,000 to cover the loss. In addition, evidence was presented at the sentencing
hearing that the employees of the firm did not receive their full year-end bonuses or a contribution
to their retirement funds as they had in years prior. As such, we agree with the trial court that the
Defendant’s offense involved more than one victim.

        The Defendant argues that the application of factor number six constitutes a double
enhancement. Factor six states, in pertinent part, that “the amount of damage to property sustained
by or taken from the victim was particularly great.” Tenn. Code Ann. § 40-35-114(6). Specifically,
the Defendant argues that this enhancement factor is inherent in the crime charged. This Court has


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previously held that “since the punishment for theft is enhanced based upon the amount taken by the
accused, use of this enhancement factor constitutes double enhancement in violation of the statute.”
State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997). However, in this case evidence
was presented that the Defendant took $357,000.00, which is almost six times the $60,000.00
required to constitute a Class B felony theft of property. “This Court has held this enhancement
factor applicable in a case where the theft offense involved $52,000–an amount of money
approaching the $60,000 amount necessary to put the offense into the next grade of theft and where
the ‘losses suffered by the [victim business] owners from the defendant’s criminal conduct were
particularly damaging.’” Id. at 518 n.4 (citing State v. Frank, No. 03C01-9209-CR-00303, 1993 WL
539401, at *4 (Tenn. Crim. App., Knoxville, Dec. 22, 1993)). Additionally, evidence was presented
that employees of Marks, Maness & Shell did not receive their full year-end bonuses or contributions
to their retirement funds, and the partners were required to sign a note for $400,000.00 to cover the
loss caused by the Defendant’s criminal conduct. Under those circumstances, we conclude that the
application of this enhancement factor by the trial court was appropriate.

         The Defendant argues that the trial court erred in finding that the Defendant committed the
offense to gratify her desire for pleasure or excitement. Evidence was presented at the sentencing
hearing regarding the Defendant’s extravagant spending habits. Lori Nelson testified that on one
occasion, the Defendant spent $600 at a department store while they were on their lunch break.
Nelson testified that such a spending spree was “normal” for the Defendant. Nelson also testified
that the Defendant purchased a Jeep Grand Cherokee and a new Harley Davidson motorcycle. Laura
Mann testified that the Defendant bought her daughter a car when she was only fourteen years old.
Carol Canady testified that the Defendant “seemed to probably eat at the best places and like to go,
you know, take trips and things, buying jewelry.” It is clear that the Defendant used a large portion
of the money she took from the firm to satisfy her own extravagant tastes. In addition, the Defendant
went to great lengths to take the money. These included bypassing the computer system and creating
her own computer fields to hide the money.

        The Defendant argues that the trial court erred in finding that the Defendant breached a
position of private trust. We disagree. The Defendant was the loan-closing agent for the firm and
handled most if not all of the closings herself. The firm placed a great deal of trust in the Defendant.
The Defendant was the only person who really understood the computer program used for the
transactions. When the Defendant misappropriated the funds that she was handling for the firm, she
breached the trust that had been given to her by the firm.

        We conclude that the trial court properly considered each of the foregoing enhancement
factors in determining that the Defendant was ineligible for alternative sentencing. Regarding the
circumstances of the offense, the trial court considered “the course of conduct of this Defendant,
which involved many intentional transactions on her part, the sophistication at which the thievery
was committed, the lack of taking full responsibility, lack of cooperation, the considerations
regarding confinement, [and] the deterrence in the message to others.”




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        Finally, the Defendant argues that the trial court’s reliance on the need for deterrence in this
case is misplaced. In sentencing the Defendant, the trial court found that in addition to the applicable
enhancement factors, confinement was necessary to avoid depreciating the seriousness of the offense
and to serve as a deterrent to others likely to commit similar crimes. A trial court’s decision to
incarcerate a defendant based on a need for deterrence will be presumed correct “so long as any
reasonable person looking at the entire record could conclude that (1) a need to deter similar crimes
is present in the particular community, jurisdiction, or in the state as a whole, and (2) incarceration
of the defendant may rationally serve as a deterrent to others similarly situated and likely to commit
similar crimes.” State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). Although the record in this case
lacks the deterrence evidence contemplated by Hooper, the denial of an alternative sentence by the
trial court was based on other appropriate factors. Moreover, the Defendant failed to present any
evidence showing that the sentence imposed was improper. Noting that the Defendant has the
burden of establishing suitability for probation, we conclude that the Defendant failed to carry that
burden.

       Accordingly, the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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