             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                          APRIL 1999 SESSION
                                                         May 14, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 01C01-9807-CC-00300
             Appellee,           )
                                 )    MARSHALL COUNTY
VS.                              )
                                 )    HON. CHARLES LEE,
ANGELA SUE TITUS,                )    JUDGE
                                 )
             Appellant.          )    (Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:


N. ANDY MYRICK                        JOHN KNOX WALKUP
116 West Market St.                   Attorney General & Reporter
Fayetteville, TN 37334
                                      CLINTON J. MORGAN
                                      Asst. Attorney General
                                      John Sevier Bldg.
                                      425 Fifth Ave., North
                                      Nashville, TN 37243-0493

                                      MIKE McCOWN
                                      District Attorney General

                                      WEAKLEY E. BARNARD
                                      Asst. District Attorney General
                                      Marshall County Courthouse
                                      Suite 407
                                      Lewisburg, TN 37901




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was charged with aggravated burglary, two counts of theft

of more than one thousand dollars ($1000) but less than ten thousand dollars ($10,000),

and two counts of criminal responsibility. When she entered an open plea of guilty to

aggravated burglary and one count of theft, the remaining counts were dismissed.

Following a sentencing hearing, the trial court sentenced her to five years imprisonment

for aggravated burglary and three years imprisonment for theft, to run concurrently. The

defendant now appeals, arguing that her sentence is excessive and that she is entitled

to alternative sentencing. Finding no merit to her arguments, we affirm her sentences.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness.             T.C.A. § 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). The burden of showing that the

sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing

Commission Comments.



              A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-

210, establishes a number of specific procedures to be followed in sentencing. This

section mandates the court’s consideration of the following in determining the specific

sentence and the possible combination of sentencing alternatives:

              (1) The 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 §§

                                              2
               40-35-113 and 40-35-114; and (6) [a]ny statement the
               defendant wishes to make in his own behalf about sentencing.

T.C.A. § 40-35-210(b)(1)-(6).



              In addition, this section provides that the presumptive sentence for Class B,

C, D & E felonies is the minimum sentence within the range. If there are enhancing and

mitigating factors, the court must start at the minimum sentence in the range and enhance

the sentence as appropriate for the enhancement factors and then reduce the sentence

within the range as appropriate for the mitigating factors. If there are no mitigating factors,

the court may set the sentence above the minimum in that range but still within the range.

The weight to be given each factor is left to the discretion of the trial judge. State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).



              As a Range I standard offender, the defendant faced a possible sentence

of three to six years for aggravated burglary, a Class C felony, and two to four years for

theft of property more than one thousand dollars ($1000) but less than ten thousand

dollars ($10,000), a Class D felony. See T.C.A. §§ 40-35-112(a)(3)-(4), 39-14-105(3), 39-

14-403(b). In sentencing the defendant, the trial court applied enhancement factors (1),

that the defendant has a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range, and (15), that the

defendant abused a position of trust. See T.C.A. § 40-35-114(1), (15). The trial court

judge also applied mitigating factor (1), that the defendant’s criminal conduct neither

caused nor threatened serious bodily injury, but he gave this factor “very little weight.”

See T.C.A. § 40-35-113(1).        Weighing these factors, the trial court sentenced the

defendant to five years on the aggravated burglary count and three years on the theft

count, to be served concurrently.




                                              3
              In considering the defense’s argument for probation, the trial court found that

confinement in this case was “necessary to provide an effective deterrence to others likely

to commit similar offenses.” The trial court also found that the defendant had lied in court

and implicated “an innocent person” in the commission of these crimes, which the judge

deemed to “be particularly reprehensible and shocking.” Based on this, the trial court

denied alternative sentencing and ordered the defendant to serve her sentence in prison.



              The defendant argues that the imposed sentence is excessive. Specifically,

she argues that because she has no prior criminal record, the trial court erred in applying

enhancement factor (1), that the “defendant has a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range.”

T.C.A. § 40-35-114(1).



              In applying enhancement factor (1), the trial court relied upon bad check

charges pending against the defendant that the defendant admitted were committed to

support her drug habit, the defendant’s admitted illegal drug use for several years, and the

trial court’s conclusion that she committed perjury when testifying on behalf of her

codefendant in his trial. The defendant contends that the trial court erred in relying upon

pending charges to enhance her sentence. When there is no evidence in the record that

pending charges are anything more than mere charges, a court may not rely upon the

charges as evidence of criminal behavior in order to apply enhancement factor (1). State

v. Buckmeir, 902 S.W.2d 418, 424 (Tenn. Crim. App. 1995). Here, however, the record

reflects that the defendant admitted writing the bad checks that were the subject of her

pending charges in order to support her drug habit. The trial court properly relied upon

the defendant’s admissions as evidence of criminal behavior under enhancement factor

(1).



                                             4
              The defendant also argues that if the trial court cannot rely upon pending

charges in order to apply enhancement factor (1), then her drug activities, which are not

even the subject of charges against her, cannot be used either. The defendant testified

she used marijuana, cocaine, and cocaine derivatives from the age of fourteen until she

was arrested and that her drug habit cost two to three hundred dollars ($200-300) per day

for a period of approximately two years. The presentence report states that the defendant

admitted she began to drink alcohol at the age of thirteen and continued drinking a fifth

of vodka “and about a six pack every day up until [she] was arrested.” These admissions

provide evidence of criminal behavior under enhancement factor (1).



              The defendant also argues that the trial court erred in concluding she

committed perjury during her codefendant’s trial when there are no pending perjury

charges against her. As factfinder, the trial court judge is in the best position to evaluate

the defendant’s credibility and truthfulness. On appeal, we must assume that the record

supports the trial court’s conclusion that the defendant was untruthful because the record

does not contain a copy of the exhibited transcript from the codefendant’s trial, which

precludes our review of this argument. See, e.g., State v. Locust, 914 S.W.2d 554, 557

(Tenn. Crim. App. 1995). Thus, we presume that the trial court properly concluded the

defendant lied under oath during her codefendant’s trial and that this evidence constitutes

criminal behavior, which also supports the application of enhancement factor (1).



              The defendant also argues that her sentence was excessive because the

trial court improperly applied enhancement factor (15), that the “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.” T.C.A. § 40-35-114(15). The

defendant claims there is no evidence in the record to support application of this



                                             5
enhancement factor. In applying enhancement factor (15), the trial court apparently relied

upon testimony from the codefendant’s trial. Again, because the record does not contain

a copy of the transcript from the codefendant’s trial, we must presume that the judgment

of the trial court is correct. Locust, 914 S.W.2d at 557.



              In arguing her sentence is excessive, the defendant also challenges the trial

court’s failure to apply statutory mitigating factor (6), that the defendant “because of youth

or old age, lacked substantial judgment in committing the offense.” T.C.A. § 40-35-113(6).

The defendant argues that the proof established she lacked judgment because she was

nineteen years old when she committed the offenses and quit school when she became

pregnant with the first of her two children. In determining whether mitigating factor (6)

applies, “courts should consider the concept of youth in context, i.e., the defendant’s age,

education, maturity, experience, mental capacity or development, and any other pertinent

circumstance tending to demonstrate the defendant’s ability or inability to appreciate the

nature of his conduct.” State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). While the

defendant’s early pregnancies and decision to quit high school might reflect poor choices,

the record does not establish that the defendant lacked substantial judgment in

committing the offenses or that the defendant was unable to appreciate the nature of her

criminal conduct. Thus, we do not find error in the trial court’s refusal to apply this

mitigating factor.



              The defendant also complains that the trial court should have given more

weight to mitigating factor (1), that her conduct neither threatened nor caused serious

bodily injury. The weight afforded to a particular enhancement or mitigating factor is left

to the trial court’s discretion. Shelton, 854 S.W.2d at 123. Here, because the record does

not contain a transcript of the guilty plea hearing or any other recitation of the facts



                                              6
underlying these offenses, the defendant has not shown that the trial court abused its

discretion in affording mitigating factor (1) “very little weight.” See Locust, 914 S.W.2d at

557.



              Finally, the defendant argues that the trial court improperly denied

alternative sentencing. She points out that she has no prior criminal record, has never

been placed on alternative sentencing, and is not one of the “most serious criminals” for

whom confinement is reserved. She complains that the trial court erroneously relied upon

deterrence as a reason for denying alternative sentencing because the record fails to

contain any evidence of deterrence. She also contends that the trial court improperly

relied upon its conclusion she committed perjury as a basis for denying alternative

sentencing.



              The defendant correctly contends that the trial court erred in relying upon

deterrence as a basis for denying alternative sentencing because the record does not

contain any evidence of deterrence. See State v. Bingham, 910 S.W.2d 448, 455 (Tenn.

Crim. App. 1995). Potential for rehabilitation, however, is an important consideration in

determining whether a defendant should be granted alternative sentencing, and

truthfulness relates to a defendant’s potential for rehabilitation. See State v. Chrisman,

885 S.W.2d 834, 840 (Tenn. Crim. App. 1994). Here, the trial court concluded that the

defendant should not be granted alternative sentencing because she lied during her

testimony at her codefendant’s trial and accused “an innocent person” of committing the

crimes in an attempt to exonerate her codefendant of guilt. To the extent the record is

incomplete, we must presume the trial court’s judgment was correct. Locust, 914 S.W.2d

at 557. Even so, the defendant admitted she was untruthful when she gave several

different versions of the facts underlying the offenses at different stages of this case. The



                                             7
evidence also shows that the defendant moved in with a convicted criminal while still

married to another man and has a poor employment record and a longterm, costly drug

habit for which she has never sought treatment and has been unable to break, even

during her two pregnancies, all of which reflects poorly on the defendant’s potential for

rehabilitation. Given these circumstances, we find no error in the trial court’s denial of

alternative sentencing.



             In sum, the defendant has failed to prove that her sentence is excessive and

that she should have been granted alternative sentencing. Accordingly, we affirm her

sentences.



                                                _______________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
J. CURWOOD WITT, JR., Judge




                                            8
