         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 25, 2003

            STATE OF TENNESSEE v. KRISTINA DAWN CATRON

                 Direct Appeal from the Criminal Court for Sullivan County
                            No. S45,731    R. Jerry Beck, Judge



                                 No. E2002-01390-CCA-R3-CD
                                        April 11, 2003

The defendant, Kristina Dawn Catron, pleaded guilty to one count of fabricating evidence, one count
of making a false report, and one count of misdemeanor theft under $500. The negotiated plea
agreement produced an effective sentence of three years. The manner of service of the sentence was
to be determined by the trial court. Following a presentence investigation and a sentence hearing,
the trial court ordered the defendant to serve the sentence in confinement. It is from this sentencing
determination that the defendant appeals. We affirm the judgment of the trial court based on the
need to avoid depreciating the seriousness of the offense.

              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 JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER , JJ., joined.

Stephen M. Wallace, District Public Defender; and Joseph H. Harrison, Assistant District Public
Defender, for the Appellant, Kristina Dawn Catron.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and B. Todd Martin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

              In this appeal, we visit a corner of the law that assigns priority to an incarcerative
sentence based on the “nature and circumstances” of the offense and the need for “deterrence.”

                At the time of sentencing, the defendant in this case was a single, 25-year-old female
living with her parents. On April 28, 2001, the defendant was working at Subway in the Fort Henry
Mall in Kingsport. She concocted a ruse and called the 911 emergency service to report an armed
robbery at her workplace. When the police investigated the report, the defendant provided a
description of the phantom assailant and advised that the armed assailant had absconded with less
than $500.

               When the defendant was re-interviewed two days later, she identified Scott Miller as
the robber and picked him out of a photo lineup. The defendant claimed that she had not provided
Miller's name earlier because Miller and her former boyfriend, Terrell Johnson, were friends and
because she feared reprisal from Johnson. The police arrested Miller, and although the Subway
robbery charges against him were dismissed, he was transported to another state because of other
pending charges.

                During a third interview with the police, the defendant then confessed that she had
fabricated the robbery incident and Miller's involvement. At sentencing, the defendant maintained
that at the time she confessed, she was unaware that someone had been arrested on the basis of the
information that she had provided. The defendant admitted that money had been taken from
Subway, but she insisted that her involvement was occasioned by threats of physical harm from
Johnson, who showed up at Subway demanding money to leave the area. The defendant testified
that because she was afraid of Johnson, she gave him the money and made up a story to cover for
him.

                The defendant's actions resulted in her prosecution for fabricating evidence, see Tenn.
Code Ann. § 39-16-503 (1997) (Class C felony), making a false report, see id. § 39-16-502 (Supp.
2002) (amended in 2002 to raise felony classification from Class E to Class C), and theft under $500,
see id. §§ 39-14-103, -105 (1997) (Class A misdemeanor). By agreement with the state, the
defendant entered guilty pleas to the charged offenses in exchange for an effective sentence of three
years, which represented concurrent service of three years, one year, and 11 months twenty-nine days
for the respective offenses. The manner of service of the effective sentence was reserved for the trial
court's determination.

               The facts, as recited above, have been taken from the transcripts of the defendant's
plea submission and sentencing hearings and from the presentence investigation report that are
included in the appellate record. As for prior criminal history, according to the presentence report,
the defendant was fined $10 for failing to have her driver’s license in her possession in 2001, and
when she was nineteen years old, she was arrested for misdemeanor theft from Wal-Mart, was
granted some form of diversion, and had the records expunged. The defendant is a high school
graduate and does not use non-prescription drugs or alcohol. She has never been married and has
no children. She has a steady employment history, and the presentence report quotes the defendant’s
then-current employer as stating that she is a “very good worker . . . she shows up on time and gets
her job done.”

               The trial court acknowledged that the defendant had “no serious record.” The trial
court, nevertheless, denied any form of alternative sentencing based on the nature and circumstances
of the offense and on the need for deterrence. The court appeared especially perturbed that the
defendant had caused another person to be falsely arrested and detained.


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               Imagine someone being placed in prison on that type of proof. And
               also, . . . she claimed this person [who] robbed her had a weapon.
               And it could have resulted in a confrontation between the police
               where an innocent man may have been killed or, if the police had
               overreacted, or perhaps reacted to the circumstances they were
               confronted with.

                Regarding the need for deterrence, the trial court commented that the “greatest
nightmare” of any judge, defense attorney, or prosecuting attorney should be the potential “of
convicting an innocent man of a crime.” The court then extrapolated from its experience in divorce
cases and seeing “the sexual offender card being played a little bit too much.” Finally, the court
disclaimed making a per se rule that a false accusation would result in rejection of alternative
sentencing. “[T]his is not an unusual crime,” the court stated. “[W]e’ve seen several of them, but
we haven’t had any in my memory where they go to the extent of actually picking a person out and
subject that particular person to arrest by identifying them out of a lineup. That’s cruel.”

               Our review of the record convinces us that the trial court properly denied alternative
sentencing to avoid depreciating the seriousness of the offense. As we shall explain, on that basis,
we affirm the trial court’s sentencing determination.

                The inner workings of Tennessee’s sentencing scheme are not mysterious. At the
conclusion of the sentencing hearing, the trial court 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) (1997 & Supp. 2002); State v. Holland, 860 S.W.2d 53, 60 (Tenn.
Crim. App. 1993).

                A defendant who is 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 options in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (1977). Nevertheless, a
defendant who commits “the most severe offenses, possesses a criminal history evincing a clear
disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation” does not
enjoy the presumption. See id. § 40-35-102(5), (6) (1997); see State v. Fields, 40 S.W.3d 435, 440
(Tenn. 2001). A sentence involving confinement is appropriate when

               (A)     Confinement is necessary to protect society by restraining a
                       defendant who has a long history of criminal conduct;




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               (B)     Confinement is necessary to avoid depreciating the
                       seriousness of the offense or confinement is particularly
                       suited to provide 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)(A)-(C) (1997). Moreover, the defendant’s potential for
rehabilitation or lack thereof should be examined when determining whether an alternative sentence
is appropriate. Id. § 40-35-103(5) (1997). Sentencing issues are to be determined by the facts and
circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987).

                When, as in this case, the length, range, or manner of service of a sentence is
disputed, this court undertakes a de novo examination of the record with a presumption that the
determinations reached by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). The
presumption, however, is predicated “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 burden of showing that the sentence is improper is upon the
appellant.” Id. Should the record fail to reflect the required consideration by the trial court, review
of the sentence is purely de novo. Id. On the other hand, should the record show that the trial court
properly took into account all pertinent factors and that 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).

                 From the record in this case and the trial court’s comments, it is obvious that this
defendant does not have a “long history of criminal conduct” such that confinement is necessary to
protect society. See Tenn. Code Ann. § 40-35-103(1)(A) (1997). It logically follows that “measures
less restrictive than confinement” have not “frequently or recently been applied unsuccessfully” to
this defendant. See id. § 40-35-103(1)(C) (1997). The sentencing battlefield in this case is the
territory occupied by deterrence and offense seriousness. See id. § 40-35-103(1)(B) (1997)
(confinement necessary to avoid depreciating seriousness of offense or especially suited to provide
effective deterrence to others).

               Turning first to the expressed deterrence rationale for an incarcerative sentence, we
note that the trial court is afforded “considerable latitude in determining whether a need for
deterrence exists and whether incarceration appropriately addresses that need.” State v. Hooper, 29
S.W.3d 1, 10 (Tenn. 2000). In fact,

               [W]e will presume that a trial court's decision to incarcerate a
               defendant based on a need for deterrence is correct so long as any
               reasonable person looking at the entire record could conclude that (1)


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               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.

Id.

               In Hooper, our supreme court said that, in determining a need for deterrence and
whether incarceration is particularly suited to deterrence, a trial court should consider factors such
as whether (1) other incidents of the crime are increasing in the community, jurisdiction or state; (2)
the defendant's crime was intentional, knowing or reckless; (3) the defendant's crime and conviction
received unusual publicity; (4) the defendant acted as a member of a criminal enterprise; and (5) the
defendant has previously engaged in similar criminal conduct. Id. at 10-12.

               In our opinion, the trial court’s reliance on deterrence to impose a sentence of
confinement is not supported by the record. Admittedly, factors (1) and (2) weigh in favor of
deterrence-based incarceration. The defendant’s crime was clearly intentional, and taking the trial
court’s comments at face value, false accusations of sexual abuse in the domestic context are on the
rise. The remaining three factors, however, weigh against incarceration predicated on deterrence.
There is no evidence in the record that unusual publicity attended the defendant’s arrest and
conviction. Membership in a criminal enterprise is not an issue, and the defendant’s meager history
of lawlessness does not encompass or suggest criminal conduct similar to the instant offenses. See
State v. Bottoms, 87 S.W.3d 95, 104 (Tenn. Crim. App. 2001) (only Hooper factor satisfied was that
defendant intentionally set the fire; confinement based on deterrence inappropriate).

                  We now examine the seriousness of the offense as a rationale for denying alternative
sentencing. When, as in this case, the presumption of favorably candidacy for alternative sentencing
applies and Code section 40-35-103(1)(B) is invoked as the sole basis for rebutting the presumption,
a trial court decision to impose total confinement must be predicated upon a finding that the nature
and circumstances of the offense are “especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree,” and the nature of the offense must
outweigh all favorable factors. Fields, 40 S.W.3d at 441; State v. Housewright, 982 S.W.2d 354,
357 (Tenn. Crim. App. 1997); State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App.1991). The
trial court, in our opinion, carefully identified the requisite aggravating facts and circumstances, and
we will not disturb that determination on appeal.

                 The trial court emphasized that the defendant did not simply make a false report. She
“positively identified” an alleged perpetrator, thereby causing that person to be arrested. She also
claimed that the person who robbed her had a weapon. She reported a Class B felony offense of
aggravated robbery. See Tenn. Code Ann. § 39-13-402(a)(1) (1997). The sentencing range for a
standard offender on this offense is eight to twelve years. See id. § 40-35-112(a)(2) (1997). An
offender is statutorily ineligible for probation. See id. § 40-35-303(a) (Supp. 2002). “Imagine,” the
trial court stated, “someone being placed in prison on that type of proof.”


                                                  -5-
                Moreover, it was unnecessary for the defendant to identify anyone to cover up for her
former boyfriend. As the trial court pointed out, the defendant easily could have provided some
vague description of “a mysterious stranger.” Furthermore, the identification was not some
spontaneous remark made at the time of the initial police investigation. Even if her initial report was
prompted by fear of a former boyfriend, the defendant waited approximately two days before she
provided Miller’s name; in other words, she certainly had time to reconsider or contemplate the
implications of branding an innocent citizen as an armed robber. She acted anyway, and she even
went so far as to pick out Miller in a photographic lineup assembled by the police. The trial court
cannot be faulted for judging her conduct to be “shocking,” “reprehensible,” or “offensive.” Her
knowingly false accusation is a burden to the limited resources of law enforcement. It is offensive
to the entire system of justice, and it is an affront to the responsible men and women who strive to
maintain the integrity of the system.

                Code section 40-35-103(B) speaks of the seriousness of the offense and of an
effective deterrence in the disjunctive. See Tenn. Code Ann. § 40-35-103(B) (1997). We, therefore,
affirm the trial court’s imposition of an incarcerative sentence based solely on the need to avoid
depreciating the seriousness of the offense.

               The judgment below is affirmed.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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