           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

                          APRIL 1998 SESSION
                                                    FILED
                                                       July 30, 1998

                                                    Cecil W. Crowson
                           §                       Appellate Court Clerk
STATE OF TENNESSEE ,
          APPELLEE
                           §
VS.                             C.C.A. No. 01C01-9706-CC-00234
                           §    MARSHALL COUNTY
                                HONORABLE CHARLES LEE
LESA MAE MALONE            §
         APPELLANT                       (SENTENCING)




FOR THE APPELLANT               FOR THE APPELLEE

Robert H. Plum mer, Jr.         John Knox Walkup
415 Bridge Street               Attorney General and Reporter
P. O. Box 1361                  425 Fifth A venue, N orth
Franklin, TN 37065-1361         Nashville, TN 37243

                                Karen M. Yacuzzo
                                Assistant Attorney General
                                425 Fifth A venue, N orth
                                Nashville, TN 37243

                                W. Michael McCown
                                District Attorney General
                                Marshall County Courthouse
                                Lewisburg, TN 37091

                                Weakley E . Barnard
                                Assistant District Attorney General
                                Marshall County Courthouse
                                Lewisburg, TN 37091



OPINION FILED: _______________________


AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
                             OPINION
       The defendant, Lesa Mae Malone, appeals as of right from the length and

manner of service of a sentence imposed by the Marshall County Circuit Court for

theft of over $ 60,000, a C lass B felon y. She rece ived a sente nce of ten (1 0) years in

the Department of Correction. The defendant complains the trial court: (1)

improperly denied the alternative sentencing of community corrections, (2)

improperly used the defendant’s pretrial diversion from 1984 as a conviction and also

an element of the crime to enhance the punishment, and (3) improperly used the

concept of deterrence w hen there was no evidence to that effect in the record . After a

review of the evidence in this record, the briefs of the parties, and the applicable law,

we affirm the trial court’s ju dgmen t.

                                          FACTS

       The M arshall Cou nty grand jury indicted the defend ant in indictm ent

# 12990, involving 356 counts of forgery and in count 357, theft of property over

$60,000. The offenses occurred between October, 1993 through January, 1996. On

December 11, 1996, the defendant entered a plea of guilty to count 357, theft of

proper ty over the valu e of $60 ,000. T he othe r 356 co unts of f orgery were d ismisse d.

The trial court set a hearing for February 5, 1997, to determine the length of the

sentence and the manner of service. The State alleges in alternative counts (356) of

forgery an d uttering tha t the defend ant intende d to defraud or harm th e Marsh all

Medical Center of Lewisburg, Tennessee and Nationsbank of Tennessee. In count

357, the State alleges that the defendant, between October 15, 1993, and January 19,

1996, com mitted the o ffense of the ft of property from the L ewisburg Comm unity

Hospital DBA Marshall Medical Center in the amount of One Hundred Twenty-Five

Thou sand N ine Hu ndred N ine Do llars and eighty c ents, ($1 25,909 .80).




                                          2
       At the entry of the open plea of guilty, the State submitted a stipulated

statement of facts as to how the defendant committed these various offenses. The

State believe d it could pro ve the defe ndant, wh ile an emp loyee in the payroll

department of the Lewisburg Community Hospital, forged certain employees’ cards

and time sheets by cutting checks for certain amounts and forging the employees’

names and cashing the same at a bank. A copy of the presentence report, introduced

in the sentencing hearing (and in the record) describes the defendant’s criminal

activities as being achieved by the defendant submitting false time sheets for alleged

overtime hours on various employees in the nursing department to payroll and having

additional ch ecks issued . The defe ndant w ould then fo rge the em ployees’ n ames on to

the checks, co-sign the checks, and cash them at a local bank. Twenty-nine (29)

employees were the victims of this scheme. Upon being confronted by the hospital

administrators, the defendant admitted to committing these offenses. Also, the

defend ant con fessed to the Lew isburg P olice as t o how she com mitted these o ffenses .

       In the presentence report, the defendant offered her version of the events:

               “I began approximately in 1994 falsifying time sheets and having
       make-up checks written on other employees, then I would cash them for
       myself. I was having problems getting my child support and I used the
       money for myself and to take care of my children. It became regular to do
       until I w as term inated. I r ealize w hat I did was v ery wr ong an d disho nest. I
       was try ing to tak e care o f my c hildren , but I did live bey ond m y mea ns. I
       would like the c hance to pay b ack the mone y if it take s the rest of my life. I
       am ve ry sorry for wh at I did.”

                               SENTENCING HEARING

       In her request for a minimum sentence and alternative sentencing, the

defendant offered the testimony of six witnesses, including herself. At the

commencement of the hearing a disagreement arose between the State and the

defendant about an arrest for embezzlement in 1984. The record establishes that the

defendant had been arrested in 1984 for forgery in six (6) counts in which she




                                          3
forged checks of her employer, Dr. Beech, in the amount of $1,900. Apparently, the

defendant was placed on pretrial diversion, restitution made and the charges dismissed

and expunged. The trial court believed there was a question of this arrest being

relevant in the absence of a conviction, but may have become relevant on the question

of deter rence a s to the d efenda nt.

        Mrs. Cathy Darnell, older sister of the defendant, advised the trial court that the

defendant has a very good relationship with her two daughters, ages eleven (11) and

thirteen (13). Mrs. Darnell described her sister as trying too hard to provide for her

children and wanting to give them the best of everything. Mrs. Darnell believed her

sister had suff ered so m uch and h ad learned her lesson. M rs. Darnell ad mitted she did

not ask the defendant what she had did with the $125,909.00, nor had the defendant

volunteered any information. The witness saw no evidence of extravagant living on

her sister’s part. However, the witness was aware that her sister lived on a farm in a

medium price hom e, drove an Explorer, a nd had b ought tw o horses fo r family

recreation and showing. Mrs. Darnell agreed the purchases and upkeep of these

horses were expensive. Mrs. Darnell was aware of her sister’s arrest in 1984 and

talked to her about the event at the time. The witness informed the trial court that the

defendant’s first husband more or less abandoned the defendant by entering the

military service and leaving the defendant with two babies. An interesting aspect of

Mrs. Darnell’s testimony revealed that she and the defendant had agreed to offer

approximately $40,000 for a Merle Norman cosmetic franchise, in Pulaski, Tennessee

in October, 1996. The defendant was to pay $20,000 for her share of the franchise or

be at lea st respo nsible fo r her sha re.

        Ms. Virg inia Stuart an d Ms. Jam ie Ellis, co-em ployees o f the defend ant while

at the Lewisburg Community Hospital, advised the trial court that they had the

occasion to observe the defendant advance from a switchboard operator to




                                             4
secretary of th e Director o f Nursing . They bo th left the hosp ital in 1993 a nd wou ld

see the defe ndant on a social basis, eith er in her hom e or at horse shows. B oth

witnes ses cha racterize d the de fendan t’s relatio nship w ith her ch ildren as very lo ving.

Both w itnesses did n ot observe any extrav agant living on the defe ndant’s pa rt. Both

witnesses expressed surprise at the hearing in learning the defendant had been arrested

in 1984 for a similar offense, but, being friends with the defendant, concluded that the

episod e in 198 4 wou ld not ch ange th eir min ds con cerning the defe ndant.

       Mr. Roger Malone, the defendant’s husband, testified he and the defendant

married a couple of years before the hearing. His wife was employed at the hospital

as a secretary and he d id not know he r salary. Mr. Malon e was aware of his wife’s

problems with her ex-husband and his refusal to pay child support. Also, Mr. Malone

was aw are of th e defen dant’s p ast arres t and un derstoo d restituti on had been m ade.

Mr. Malon e is a vinyl siding installer, who ow ns and paid for his sixty-on e (61) acre

farm, wh ich contain ed a me dium thre e bedroo m hom e. Mr. M alone estim ated his

income at about $50,000 to $60,000 in a good year. Mr. Malone advised the trial

court that the defendant’s tw o children attended pu blic schools. As to the offense , Mr.

Malone learned about the charges two months after the defendant had been released

from the hospital. The d efendant had hidd en this matter from he r husband. M r.

Malone stated his reaction as follows:

             “I was very upset, very hurt. I worked hard all of my life and tried
       to make every dollar that I could to pay m y own bills, and it really hurt
       me”.

The defendant never satisfactorily explained to her husband why she did it. When

asked where the $125,909.80 went, the witness responded:

               “I can’t tell you . I have aske d her a hu ndred tim es, and she can’t tell
       me. If she had gone out and bought a $50,000 vehicle or a $50,000 horse or
       $25,000 diamon d ring, I could understan d where part of it wen t. I lived with
       her during this time. I couldn’t explain to you where that kind of money
       went” .




                                            5
Mr. Malone confirmed that the defendant purchased two spotted geldings for about

$3,300, leased an Explorer in her own name, and paid for some lawn shrubbery for the

home. Althou gh the defendant w orks, Mr. Malo ne, as to restitution, stated: “I don’t

see any way s he can make full restitu tion.”

       Mr. Joe “Buck” Beard, a very close friend of the defendant’s husband, advised

the trial court of his observations of the defendant over several years. Mr. Beard was

a former deputy with the Lewis County Sheriff’s Department and a former member of

the Lewisburg Police Department. Since 1993, Mr. Beard had seen the defendant at

horse shows, mainly on weekends. He asked the defendant what she did with the

money, to which she replied she didn’t know. Mr. Beard testified that the defendant

did not live an extravagant lifestyle and that possibly some of the money went for

horses and training. Mr. Beard became aware of the defendant’s past offense two

weeks prior to the hearing.

       The defendan t was married at age seventeen (17) and two children we re

quickly born. The defendant and her husband separated in 1985. He joined the

military service leaving her wit h a thirte en (13) mont h old an d a five ( 5) mo nth old .

She received some child support while her husband was in the service, but this ended

when he returned. Since the defendant’s divorce, she has worked at various jobs. At

the sentencing hearing the defendant was working two jobs, one at Brindley

Construction Company and one at a convenience store on the weekends. She

estima tes her in come at $300 every tw o wee ks.

       At the first of February, 1996, the defendant was confronted by an

administrator of the hospital concerning the payroll checks. The defendant admitted

what she had done and took sole blame for these offenses, including a statement of

admission. The defendant described how she comm itted these offenses:

       “Q. --how did you decide to start doing this?




                                           6
       A. I remem ber someone needing a ma keup check d one--

       Q. What is a makeup check?

       A. A makeup check is a --was a check that was written that was produced that

wasn’t actually pulled off of the payroll sheet. If an error had been made, if they

didn’t clock in or clock out or if someone failed to pay them educational pay or

whatever the pay was, a makeup check w as issued.--I never planned on doing it. It just

happened.

                                      *******

       Q. So within three to four months of being placed in this new position, you

started stealing ; is that correct?

       A. Ye s, sir.

       Q. That ste aling contin ued until yo u got caug ht?

       A. Ye s, sir.”

       The defendant submitted to the trial court a summary of where she believes the

money went and for what. T he defend ant accou nted for app roximate ly $71,000 in this

twenty-seven (27) month period of theft, ranging from the purchase of a horse

($3,500), an Explorer ($10,000), Wal-Mart ($9,000), utilities, and a cellular phone

($2,500). The total did not count child care, clothes or cash spent. The defendant

admitted she had the love of her husband, a home, food, clothing and the care of her

children. W hy then did the defend ant com mit this theft?

       “Q. W hat you are saying is: Y ou spent m oney on your fam ily, but that w as to

bring them up to the lifestyle that you wanted?

       A. Right.

       Q. It wasn’t necessities; it was lifestyle?

       A. Yes sir, you are right.”




                                         7
       The defendant further admitted that in 1984 she had stolen $1,900.00 from her

employer, Dr. James Beech. The defendant was granted pretrial diversion. The

defend ant adm itted adv ising the court sh e wou ld neve r do any thing lik e this ag ain.

       After an eloquent and passionate plea for an eight (8) year sentence and

probation based on the requirement of restitution in behalf of the defendant, the trial

court sentenced the defendant to a mid-range sentence of ten (10) years in the

Department of Correction.

                       MANNER OF SERVICE OF SENTENCE

       We w ill first review the defendan t’s compla int that the trial cou rt imprope rly

denied an alternative sentence, to-wit; community corrections. Our review of the

manner of service of a sentence is de novo upon the record with the presumption that

the trial court’s determination is correct. Tenn. Code Ann. § 40-35-401 (d). Such a

review requires us to consider the evidence presented at the guilty plea and sentencing

hearing, the pre-sentence report, the principles and purposes of sentencing, the

argument of counsel, the nature and characteristics of the offense, the existing

mitigating and enhancing factors, the statement of the defendant, and the potential for

rehabilitation. T enn. Cod e Ann. § 40-35-10 2, -103, -21 0; State v. M oss, 727 S.W.2d

229 (Ten n. 1986); State v. T aylor, 744 S .W.2d 919 (T enn. C rim. A pp. 198 7).

       The defendant argues that to place her in the community corrections program,

in lieu of incar ceration, is bes t for her rehab ilitation. Since the defendan t is not a

violent nor an habitual criminal, she can be rehabilitated in such program and

counseling . Further, the d efendant c ontends sh e should n ot be denie d comm unity

corrections placement due to her prior bad act at the age of nineteen (19), as that

offense occurred nine (9) years prior to the current offense. Since her arrest, the

defendant has sought counseling, which has had a positive effect on her life and

outlook. Her m otive in comm itting the present offense was to b e sure her




                                           8
family stayed with her. She acknowledges her actions were wrong and she recognizes

they w ere wr ong.

       In response, the State contends the trial court was correct in ordering the

defendant to serve a mid-range sentence and in ordering the defendant to serve her

sentence in confinem ent.

       Further, the S tate contend s that the trial cou rt was corre ct in applyin g certain

enhancing factors to raise the defendant’s sentence from the minimum of eight (8)

years to ten (10) years, six (6) months and by applying one mitigating factor to reduce

the sentence to ten (10) years. Also, the trial court was correct in denying an

alternative sentence to the defendant in the form of commu nity corrections.

       At the conclusion of the hearing, the trial court set out its rulings as to the

proper sentence and denial of an alternative sentence . The trial court found four

factors applicable to the sentencing procedure. In mitigation the trial court found the

defend ant’s crim inal con duct ne ither cau sed no r threate ned ser ious bo dily inju ry.

Tenn. Code Ann. § 40-35-113 (1). In enhancement the trial court found three (3)

factors: the defendant has a previous history of criminal behavior in addition to those

necess ary to es tablish th e appro priate ra nge, T enn. C ode A nn.

§ 40-35-114(1); the offense involve more than one victim, Tenn. Code Ann. § 40-35-

114(3); and, the defendant abused a position of private trust, or used a special skill in a

manner that significantly facilitated the commission or the fulfillment of the offense,

Tenn . Code Ann. § 40-35 -114 (1 5).

       The trial court in applying enhancement factor (1)--history of criminal

behavior--was im pressed the defenda nt began com mitting these offenses six yea rs

after completing diversion in 1987. Also, the trial court stated,

       “The Court does find that enhancing factor (1) and does place significance
       on the fact that we are dealing with virtually the same type of offense, even
       though comm itted in d ifferent w ays. By that, I m ean diff erent sc heme s.”




                                            9
       As to enh ancem ent factor (3)-- more tha n one victim --the trial court fo und this

factor applicable because of the unique facts in the case and the unique methodology

employed b y the defendant to acc omplish the crime . The presentence rep ort

contained a victim impact statement from the Marshall Medical Center outlining the

effect of these forged checks on various employees in dealing with the IRS. The trial

court gave this factor less weight than the others.

       The trial court placed great weight on enhancement factor (15)--a violation of

private trust and special skill in assessing the proper sentence,

       “The court notes with interest that on the expenditures which were had
       during this time, the defendant spent some money to go to some accounting
       school an d take som e accoun ting course s while she was using those skills
       to, apparently, purloin funds from her employer. So that would be a special
       skill in ad dition to the viola tion of tru st.”

       The defendant must establish the burden of showing that the length or manner

of servic e of the s entenc e impo sed is im proper . Tenn . Code Ann. § 40-35 -401(d ).

Sentencing Commission Com ments. However, the presumption of correctness

attached to the trial court’s determination is conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts an d circum stances . State v A shby, 823 S.W.2d 166 (Tenn. 1991). Persons who

are especially mitigated or standard offenders convicted of Class C, D or E felonies

are presumed to be favorable candidates for alternative sentencing options in the

absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102 (5). Since the

defend ant has plead g uilty to th eft over the valu e of $60 ,000, as a stand ard offe nder, a

Class B fe lony, the de fendant is n ot entitled to the presum ption of a fav orable

candid ate for a n alterna tive sen tence.

       We believe there is ample evidence in the record to support the trial court’s

determination that the defendant’s ten (10) year sentence is proper. The defendant

complains that the offense of 1984 should have little weight in determining an




                                             10
enhancement of the sentence and it was error to consider this offense in enhancing the

defendant’s sentence. W e agree with the trial court’s assessm ent that the defendant’s

actions in 1984 and the present offense are very significant. In 1984, the defendant

stole $1,900 from her employer and, due to the benevolence of our criminal justice

system, had the benefit of pretrial diversion and no criminal record. The nature of

these offenses are too similar for a trial court to overlook. Enhancement factor (1)

was p roperly consid ered by the trial co urt. State v. W illiam Je ffrey Ca rico,

S.W.2d       (Tenn. 19 98). There is no merit to this comp laint.

       Second, the defendant complains the trial court improperly found enhancement

factor (3)--m ore than on e victim--ap plicable. Th e defenda nt argues th is assessm ent is

akin to stating an assault or robbery has more than one (1) victim because the families

of the victims suffer as a direct result of the actions. A review of the presentence

report establishes the defendant defrauded twenty-nine (29) separate co-employees, as

well as the hospital, in forging these “make up” checks. When these various

employ ees attemp ted to correc t their respectiv e financial co nditions, esp ecially with

the IRS, that would be one mean task. Although the trial court did not give this factor

great weight, the overall effect on these various employees of these forgeries was

substantial. T he trial court p roperly con cluded tha t there was m ore than on e victim in

this case, thereby justifying the use of en hancemen t factor (3). The defendan t’s

second c omplain t is without m erit.

       Third, the d efendant c omplain s the trial impr operly fou nd enhan cemen t

factor (15)--trust or use of special skill--applicable. The defendant points out trust

was ce rtainly in volved , but ther e was n o proo f of a spe cial skill b eing inv olved.

However, the trial court, in assessing the facts as to exactly how the defendant

accomplished the se thefts, believed she utilized her acco unting classes to further




                                            11
her schem e. We find ample ev idence in th is record that th e trial court did p roperly

find this enh ancem ent applicab le to this defen dant. Ther e is no me rit to this

comp laint.

       Although, the defendant contends the trial court should have given greater

weight to the mitigating factor (1) to impose a sentence of eight (8) years, we find the

trial court correctly balanced the weight for each factor in arriving at a ten (10) year

sentence. The trial court’s judgment is affirmed.

                                     Denial of
                           Community Corrections Program

       The defe ndant stron gly conten ds she m eets the requ irements fo r sentencing into

the com muni ty corre ctions p rogram in orde r to reha bilitate he r. Tenn . Code Ann. §

40-36-106--Eligible Offenders, sets out minimum criteria for persons applying for

alternative sentences. The de fendant subm its she falls within the criteria of:

       (2) Persons who are convicted of property-related, or drug/alcohol-related
       felony offenses or other felony offenses not involving crimes against the
       person as provided in title 39, chapter 13, parts 1-5;

       (3) Persons who are convicted of nonviolent offenses;

       (4) Persons who are convicted of felony offenses in the which the use or
       possession of a weapon was not involved;

       (5) Person s who d o not dem onstrate a pa ttern of com mitting viole nt offenses;

               More particularly;

       (C) Felony offenders not otherwise eligible under subsection (a), and who
       would b e usually co nsidered u nfit for proba tion due to h istories of chro nic
       alcohol, drug abuse, or mental health problems, but whose special needs
       are treatable and could be served best in the community rather than in a
       correctional institution, may be considered eligible for punishment in the
       commu nity under the provisions o f this chapter.


       The defendant argues that if these offenses had been committed because of an

alcohol or drug problem, it would be reasonable to assume she would receive

community corrections, because her problem would be treatable. The defendant




                                          12
concedes her actions do not rise to the level of mental health problems, but through

her testimony and her counselor her problems are treatable. Through her testimony,

the defendant verbalized her fears concerning her past marriage, her loss of her

children, and her ultimate realization th at her fears were m isplaced. Her counse lor,

Susan M iller, a licensed c ounselor a nd therapis t, believes the d efendant c an refrain

from th is type o f activity and tha t superv ised pro bation a nd ther apy w ould be nefit her .

Thus, the defendant, through her misguided mental perceptions, is treatable in a

comm unity co rrection s system .

       The trial court, upon finding the defendant ineligible for probation, began an

analysis of the defendant’s request for community corrections placement. The trial

court found no limitations on the sentence for community corrections under Tenn.

Code A nn. § 40-3 6-106(a). In denying th e defenda nt’s request fo r comm unity

corrections, the trial court was most concerned that the defendant utilized her position

of trust to defraud her co-employees and the hospital, and with the large amount of

money taken, $125,909.80. In referring to the sentencing principles of Tenn. Code

Ann. § 40-35-102 (2) and (3), the trial court stated:

                      “Mr. Plummer has done a very good job in arguing what the
       effect of the impact of confinement to this lady would be upon her and her
       family. But the Court has to sit in a position where it views not only the
       defendant and what would be best for the defendant, but it has to view the
       Court’s decision on society as a whole.

                     What message would we be sending to our society, the other
       people out there who are working in employment situations, young people,
       if we told them that you can steal from your employer, not once, and the
       second time you steal from your employer, you can steal $125,000 and you
       won’t go to jail? I’m afraid that message has too often been sent to the
       young people of our society and our society in general. That is that which
       the Court has to consider is not only the impact upon this defendant but
       upon society as a whole.

                     The Court do es feel that the crime of this nature that the C ourt
       has no other alternative than to incarcerate the defendant for the crimes that
       she has comm itted.”




                                           13
       A trial court is entitled to a presumption of correctness in determining a proper

sentence if it correctly applied the principles o f sentencing and its findings are

suppo rted by the evid ence. State v. B oggs, 932 S .W.2d 467, (T enn. C rim. A pp..

1996). Although, the trial court did not comment on the sentencing principles of

Tenn. Code Ann. § 40-35-103 (1), (B) the trial court did consider this subsection.

       Tenn. Code Ann. § 40-35-103:

              (1) Sentences involving confinement should be based on the
       following circumstances:

                                                 ***

              (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 comm it similar offen ses;

       The sentence imposed should be no greater than that deserved for the offenses

committed, and any inequities in sentencing should be avoided. The sentence

imposed should be the least severe measure necessary to achieve the purposes of the

Sentencing Act of 1989. A defendant’s potential or lack of potential for rehabilitation

or treatmen t should be considered in determ ining the sen tencing altern ative or leng th

of term. Trial judges are encouraged to use alternatives to incarceration that include

victim compensation, reparation, or community service. Tenn. Code Ann. § 40-35-

103 (2), (3), (4 ), (5) and (6). W ithin this conte mplation is the placem ent of an elig ible

candid ate for c omm unity co rrection s.

       In State v. C umm ings, 868 S.W.2d 661, (Tenn. Crim. App. 1992), Judge

Summers speaking for this court said about the role of the community corrections

program:

              “The Tennessee Com munity Corrections Act of 1985 was
       passed by the 1 st Extra ordina ry Sess ion of th e 1985 Gene ral Ass embly .
       The purposes of community corrections was to establish a policy to
       punish selected, non-violent felony offenders in front end community




                                            14
       based a lternativ es to inc arceratio n. Bec ause of prison o vercro wding ,
       comm unity correc tions was a way to re serve secu re confinem ent
       facilities for violent felony offenders. As part of the goals of the
       Comm unity Cor rection Ac t, the Gene ral Assem bly establishe d efficient
       community corrections programs; promoted accountability of offenders
       to their local community; filled gaps in the local correctional system
       through the development of a range of sanctions and services; reduced
       the number of non-violent felony offenders in correctional institutions
       and jail; and provided ‘opportunities for offenders demonstrating
       special needs to receive services which enhance their ability to provide
       for their families and becom e contributing mem bers of their
       comm unity’. T enn. C ode A nn. § 40 -36-10 4.”

       We agree that the defendant may be entitled to consideration of the benefits of

a community corrections program, but was the defendant eligible pursuant to Tenn.

Code A nn. § 40-3 6-106 (c)? The defe ndant m ust establish u nder subs ection (C) s he is

suitable for placement in the community corrections program. The defendant must

establish a history of chronic alcohol, drug abuse, or mental health problems; these

factors we re reasona bly related to a nd contribu ted to the offe nder’s crim inal condu ct;

the identifiable special need (or needs) are treatable, and the treatment of the special

need c ould be best serv ed in the comm unity ra ther than in a corr ectiona l institutio n.

We believe the defendant’s misguided mental perceptions do not meet these

require ments .

       Ordinarily , deterrence a lone is not gr ounds for denial of co mmu nity

correct ions. State v. A shby, 823 S.W .2d 166, 17 0 (Tenn. 1 991). De terrence is

certainly a principle to consider in sentencing, but both case law and statutes

contem plate tha t consid eration s hould b e qualifi ed. State v. Ashby, su pra; State

v. Fletch er, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). However, general

deterrence, as well as specific de terrence, may be su fficient based on the facts of a

particular case. In State v. M illsaps, 920 S.W.2d 267, 271 (Tenn . Crim. App. 199 5),

Millsaps, a bookkeeper and employee for a furniture company, between 1988 and

1991 stole $80,220.19. The trial court denied probation on the ground of deterrence

stating:

       “I think confinement is necessary to avoid depreciating the seriousness of
       this offense because it involves an incredibly large amount of money.”




                                          15
       In affirming the trial court’s d ecision, Judg e Hayes , speaking fo r this

Court, stated:

                      “However, in a case involving facts almost identical to those
       in the instant case, we observed:

                                         “That the record sup ports the trial court’s
                 reasoning that if people with similar abilities and in similar
                 positions to the defendant believed that they could commit offenses
                 of a similar magnitude without having to be confined and without
                 making real restitution, there would be a significant number of
                 them who would yield to criminal temptation with impunity and
                 little concern for the harm caused others---unquestionably, (the
                 sentencing court) rightfully considered ---the need for effective
                 deterre nce to o thers like ly to com mit sim ilar, seriou s offens es.”
                 State v. F ranks, No. 03C01-9209-CR-00303 (Tenn. Crim. App.. at
                 Knox ville, De cemb er 22, 19 93).

       From o ur analysis o f the record, th e defenda nt has not ca rried her bu rden in

establishing that she should receive placement in the community corrections program

in lieu of confinement. The trial court was correct in being concerned regarding the

seriousness of these m ultiple offenses. The defend ant’s conduct continue d over a

twenty-se ven (27) m onth period . She issued , forged, and cashed ap proxima tely six

(6) checks a month. The amount of loss to the defendant’s co-employees and her

employer was an incredibly large amount of money. Was the defendant really serious

about restitution? The defendant offered $10,000 front end restitution, but the

evidence suggested she and h er sister offered $40,000 for a cosm etic franchise in

Pulaski, Te nnessee. T here is also ev idence in th is record the d efendant a ttempted to

dissuade a co-emp loyee, Bec ky Clark, fro m disclos ing the defe ndant’s actio ns in

regard s to Cla rk’s che cks.

       Another major hurdle the defendant attempted to overcome was the employer

thefts of 1984. As to the defendant’s motive in 1984, the defendant stole from her

employer because she needed the money to support herself and her very young

children. A s previously stated, the defe ndant w as granted p retrial diversion . In this

offense the defendant was motivated to steal, also for her children, but not for

necess ities. The defend ant wa nted the good th ings of li fe, such as trainin g horse s, a




                                           16
satellite dish, cable television, a cellular phone, nice clothes, a computer and a new

Explo rer.

       We believe the trial court properly considered deterrence in assessing the

sentence.

       We ho ld that the facto rs in favor of in carceration o utweigh th e factors aga inst,

and the defendant has failed to establish that the trial court erred in denying any

alternative sentence. The trial court’s judgment is affirmed.



                                               _____________________________

                                               L. T. Lafferty, Special Judge

CONCUR:

__________________________
Gary R. Wade, Presiding Judge

__________________________
Thomas T. Woodall, Judge




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