            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                               MARCH 1999 SESSION
                                                            FILED
STATE OF TENNESSEE,              *      C.C.A. # 02C01-9809-CC-00273

             Appellee,           *      DYER COUNTY
                                                               June 18, 1999
VS.                              *      Hon. R. Lee Moore, Jr., Judge

MILDRED MICHELLE MAUPIN, *              (Aggravated Criminal Trespass)
                                                           Cecil Crowson, Jr.
             Appellant.          *
                                                          Appellate Court Clerk




For Appellant:                          For Appellee:

C. Michael Robbins, Attorney            John Knox Walkup
46 North Third Street                   Attorney General and Reporter
Suite 719
Memphis, TN 38103                       Patricia C. Kussmann
(on appeal)                             Assistant Attorney General
                                        Criminal Justice Division
G. Steven Davis                         425 Fifth Avenue North
District Public Defender                Nashville, TN 37243
208 North Mill Avenue
P.O. Box 742                            C. Phillip Bivens
Dyersburg, TN 38025-0742                District Attorney General
(at trial)                              115 East Market Street, P.O. Box 2005
                                        Dyersburg, TN 38025-2005




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                      OPINION

             The defendant, Mildred Michelle Maupin, entered a plea of guilt to

aggravated criminal trespass. Tenn. Code Ann. § 39-14-406. The trial court

imposed a sentence of eleven months and twenty-nine days and suspended all but

one hundred twenty days. In this appeal of right, the defendant complains that the

sentence was excessive.



             We find no error and affirm the judgment of the trial court.



             In 1997, Earl Gatlin and wife, Ruby Gatlin, resided at 1501

Countryman Street in Dyersburg. At that time, Ms. Gatlin was an invalid, confined to

a wheelchair, and required constant care. She had been prescribed medication for

her pain and kept her prescription bottle at the residence. The defendant, who was

not acquainted with the Gatlins, had nonetheless stopped at their residence on at

least one occasion and asked to use their restroom. Before her departure, the

defendant talked briefly with Mr. Gatlin in the kitchen, where the prescribed

medication was stored. Afterwards, the Gatlins discovered that the bottle containing

pain medication for Ms. Gatlin was empty and all of the pills were missing. Because

the defendant had been their only visitor during the course of the day, the Gatlins

suspected that she had stolen the pills.



             On November 6, 1997, Lee Crytes, a drug dealer from whom the

defendant had obtained drugs on prior occasions, drove her to the Gatlins'

residence. When she arrived, she met the Gatlins' daughter, Beverly Fowlkes, who

apparently recognized her because of the earlier incident. Ms. Fowlkes ordered her

to leave and threatened to swear a warrant for her arrest. Later, after her arrest and

indictment, the defendant entered a plea to aggravated criminal trespassing for


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entering the habitation of the Gatlins on November 6, 1997, without their consent,

and recklessly causing them to fear for their safety.



              At the sentencing hearing, the defendant maintained that she had

returned to the residence only because she had heard that the Gatlins had a car for

sale. Mr. Gatlin, who owned a van and pickup truck, did not own a car at that time.

The defendant admitted that she had been convicted in March of 1988 for

attempting to obtain a controlled substance by fraud and grand theft. She also

acknowledged that she had resumed the use of drugs for some four years prior to

her arrest in November of 1997.



              The record establishes that the defendant has a history of drug abuse

and had participated in a drug rehabilitation program several years ago. In

November 1997, shortly after this offense, the defendant entered another treatment

program for an addiction to drugs.



              The trial court found as a single mitigating circumstance that the

defendant did not cause or threaten bodily harm. See Tenn. Code Ann. § 40-35-

113(1). The trial court also found three enhancement factors: prior history of

criminal conduct on the part of the defendant, particularly vulnerable victims due to

their age and disability, and the defendant's desire for gratification by her abuse of

drugs. See Tenn. Code Ann. § 40-35-114(1), (4), and (7). Because the trial court

concluded that the two suspended three-year sentences in 1988 had not been

successful, it ordered service of one hundred twenty days of the eleven month,

twenty-nine day sentence.



              When a challenge is made to the length, range, or manner of service


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of a sentence, it is the duty of this court to conduct a "de novo review ... with a

presumption that the determinations made by the court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d).



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his or her own behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,

-103, and -210. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In misdemeanor sentencing, a separate sentencing hearing is not

mandatory but the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. Tenn. Code

Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance

with the principles, purposes, and goals of the Criminal Sentencing Reform Act of

1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902

S.W.2d 391, 393 (Tenn. 1995). See State v. Troutman, 979 S.W.2d 271, 274

(Tenn. 1998). The misdemeanor offender must be sentenced to an authorized

determinant sentence with a percentage of that sentence designated for eligibility for

rehabilitative programs. Generally, a percentage of not greater than 75% of the

sentence should be fixed for a misdemeanor offender; however, a DUI offender may

be required to serve the full 100% of his sentence. Palmer, 902 S.W.2d at 393-94.

In determining the percentage of the sentence, the court must consider

enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Id.


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              Upon service of that percentage, the administrative agency governing

the rehabilitative programs determines which among the lawful programs available is

appropriate. The trial court retains the authority to place the defendant on probation

either immediately or after a term of periodic or continuous confinement. Tenn.

Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider

public or private agencies for probation supervision prior to directing supervision by

the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing

statute is designed to provide the trial court with continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the

felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,

885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).



              The defendant argues that because there was no proof that she had

actually stolen the prescription in the first instance, the trial court should not have

concluded that the offense was committed to gratify the defendant's desire for

pleasure or excitement. Tenn. Code Ann. § 40-35-114(7). The defendant

complains that the state has failed to meet its burden of proof under State v. Adams,

864 S.W.2d 31 (Tenn. 1993).



              Even if the application of that single enhancement factor constituted

error, however, it is our view that the prior criminal conduct of the defendant would,

standing alone, warrant the imposition of the maximum term. Moreover, there was

ample proof that the Gatlins were particularly vulnerable due to their age and

physical condition. Because of the defendant's history of drug abuse and the failure

of less restrictive measures to achieve rehabilitation, the sentence of incarceration is

not, in our view, excessive.




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          Accordingly, the judgment is affirmed.



                                     ________________________________
                                     Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Joseph M. Tipton, Judge



_____________________________
Thomas T. Woodall, Judge




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