         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 19, 2005

           STATE OF TENNESSEE v. STEVEN ANDREW TIDWELL

                      Appeal from the Circuit Court for Madison County
                          No. 03-441    Roy B. Morgan, Jr., Judge



                     No. W2004-01820-CCA-R3-CD - Filed July 21, 2005


The defendant, Steven Andrew Tidwell, tried for aggravated burglary and theft of property between
$500 and $1,000, was convicted of theft. The trial court imposed a two-year sentence to be served
in the Department of Correction. In this appeal of right, the defendant argues that the evidence was
insufficient, that the trial court erred by ruling that the state could cross-examine him with a prior
burglary offense for which he had received judicial diversion, and that the sentence is excessive. The
judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN , JJ., joined.

Ramsdale O'DeNeal, Jr., Jackson, Tennessee, for the appellant, Steven Andrew Tidwell.

Paul G. Summers, Attorney General & Reporter; Preston Shipp, Assistant Attorney General; and
Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

       At approximately 7:30 p.m. on March 25, 2003, Dr. James E. Selby, the Vice President for
Student Services at Jackson State Community College, encountered the defendant in a second-floor
computer lab located in the Nelms Building on campus. As he walked past the lab, he saw the
defendant through a window in the door "walking in a crouched position" and carrying a computer
CPU (central processing unit). When Dr. Selby opened the door, the defendant hurriedly placed the
component behind the cabinet of a television stand. Another computer had also been unplugged and
removed from its mounting. When asked what he was doing, the defendant hesitated, then explained
that someone who had identified himself as Ryan Sparks with the school's Office of Information
Technology had asked him to get "some computers ready to be taken out of [there]" because they
needed to be picked up for repair. The defendant, who was a student at the college at the time of the
offense, provided his identification card for Dr. Selby and then left at his request. After calling
security to assure that the lab was locked, Dr. Shelby learned that the defendant, who resided fifty
miles away, did not have a class on campus that evening and did not have any of his scheduled
courses in the Nelms Building.

         At trial, Diane Harris, Jackson's State's Director of Human Resources and Affirmative
Action, testified that computerized records dating back to 1985 indicated that the college had never
employed anyone named Ryan Sparks. Frances Edmondson, the Registrar of the school, testified
that the College had enrolled three students with similar names in the past: Robert G. Sparks in the
fall of 1989; Robert Ryan Sparks in the fall of 1998 and spring of 1999; and Ryan Lee Sparks in the
fall of 2003. She determined that no one named Ryan Sparks was enrolled in the school in the spring
of 2003.

        Ryan Lee Sparks testified that he was not a student in the spring of 2003 and that he had
never been employed by the Office of Information Technology. Robert Ryan Sparks provided
similar testimony. Ryan Keith Sparks, who had never been a student at Jackson State, testified that
he had gone to high school with the defendant but had not seen him since graduating in 2001.

       Robert Grissom, the Director of the Office of Information Technology, testified that the
computer CPUs in question would have been valued at approximately $760 at the time of the
offense. Linda Sego, a technical services manager who supervises all of the school's computer
technicians, including repair work orders, testified that there was no employee named Ryan Sparks
and there was nothing wrong with the two computers that had been moved by the defendant.

        The defendant testified that at the time of the offense, he was a student at Jackson State,
where he had been enrolled for approximately a year and a half. He stated that during that time, he
was also employed at a Hardee's restaurant in Selmer, where he lived, and at an IHOP restaurant in
Jackson. He claimed that on the day of the offense, he had gone to Jackson to do some shopping at
the mall and decided to stop by the computer lab to type an article he needed to summarize for class.
It was his testimony that just as he was finishing his paper, a man with a walkie-talkie and a gold
name tag that read "Jackson State OIT" and "Ryan Sparks" came into the lab and asked whether the
defendant "minded helping him out, he had a lot of work to get done." The defendant testified as
follows:

       I thought I'd be a good Samaritan and help him out a little bit. I asked what he
       needed. He said he had to take two computers out of that lab. They needed to have
       the hard drive images re-ghosted on them, and he had to take them from there over
       to the main office at the OIT building, and he had to go get the dolly to put them on
       and he would be right back, and I said okay. I unhooked one of the two computers
       and went and set it over in the corner where he had pointed and told me to, "Set them
       over there. I'll be right back," and at that time was when Dr. Selby came in.

The defendant testified that he had selected the Nelms Building computer lab to work in that evening
because he had had a class in that building the previous semester and was familiar with it. The


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defendant admitted a prior burglary offense in McNairy County in February 2003. He also
acknowledged that he had a computer at his residence at the time of the offense.



                                                    I

         Initially, the defendant challenges the sufficiency of the evidence. In a related issue, he also
claims that the trial court erred by denying his motion for judgment of acquittal at the close of the
state's proof.

        Rule 29 of the Tennessee Rules of Criminal Procedure empowers the trial judge to direct a
judgment of acquittal when the evidence is insufficient to warrant a conviction either at the time the
state rests or at the conclusion of all the evidence. Overturf v. State, 571 S.W.2d 837 (Tenn. 1978).
At the point the motion is made, the trial court must favor the opponent of the motion with the
strongest legitimate view of the evidence, including all reasonable inferences, and discard any
countervailing evidence. Hill v. State, 470 S.W.2d 853 (Tenn. Crim. App. 1971). The standard by
which the trial court determines a motion for judgment of acquittal at that time is, in essence, the
same standard which applies on appeal in determining the sufficiency of the evidence after a
conviction. State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998); State v. Anderson, 880
S.W.2d 720, 726 (Tenn. Crim. App. 1994).

        Where a defendant challenges the sufficiency of the evidence, the state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which might be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses,
the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters
entrusted to the jury as the trier of fact. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956);
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). On appeal, the relevant question is
whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P.
13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Because a verdict of guilt removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

        "A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner's effective
consent." Tenn. Code Ann. § 39-14-103. "'Knowing' refers to a person who acts knowingly with
respect to the conduct or to circumstances surrounding the conduct when the person is aware of the
nature of the conduct or that the circumstances exist." Tenn. Code Ann. § 39-11-302(b).

         The defendant admits that he "exercised control" over the school's computers but contends
that he did not have the requisite intent to deprive the school of its property. He argues that he was


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"assisting, in his mind, an employee of the school who said the computer was in need of repair." In
our view, this was a classic credibility question, falling well within the purview of the jury. Dr.
James Selby testified that he discovered the defendant moving computers during evening hours at
a computer lab on the Jackson State campus. When questioned, the defendant hesitated before
providing information that proved to be false. Through the testimony of numerous witnesses, the
state introduced evidence that no person named Ryan Sparks, whom the defendant had claimed to
be assisting, had ever been employed by the college or was enrolled as a student that semester.
Although the defendant denied having been engaged in the theft of the computers, the jury, who
observed his demeanor first-hand, accredited the testimony of the state's witnesses, as was its
prerogative, and chose not to accredit that of the defendant. See State v. Summerall, 926 S.W.2d
272, 275 (Tenn. Crim. App. 1995). The evidence was sufficient for a rational trier of fact to have
found beyond a reasonable doubt that the defendant committed the crime of theft.

                                                    II

        Next, claiming that "[p]rior bad acts are not admissible in criminal cases," the defendant
contends that the trial court erred by permitting the state to cross-examine him regarding a prior
burglary offense for which he had received judicial diversion. The state argues that the defendant
has waived consideration of the issue by failing to raise it in his motion for new trial and that, in any
case, the evidence was properly admitted.

        Generally, the failure to present an issue in a motion for new trial results in waiver. Rule 3(e)
of the Tennessee Rules of Appellate Procedure provides that for appeals "in all cases tried by a jury,
no issue presented for review shall be predicated upon error in the admission or exclusion of
evidence, jury instructions granted or refused, . . . or other ground upon which a new trial is sought,
unless the same was specifically stated in a motion for a new trial; otherwise such issues will be
treated as waived." Tenn. R. App. P. 3(e); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997) (holding that a defendant relinquishes the right to argue on appeal any issues that should have
been presented in a motion for new trial). Whether properly assigned or not, however, this court may
consider plain error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure.
State v. Ogle, 666 S.W.2d 58 (Tenn. 1984).

        Before an error may be so recognized, it must be "plain" and must affect a "substantial right"
of the accused. The word "plain" is synonymous with "clear" or equivalently "obvious." United
States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but
especially egregious error that strikes at the fairness, integrity, or public reputation of judicial
proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v.
Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined "substantial right" as
a right of "fundamental proportions in the indictment process, a right to the proof of every element
of the offense and . . . constitutional in nature." In that case, this court established five factors to be
applied in determining whether an error is plain:

        (a) The record must clearly establish what occurred in the trial court;


                                                   -4-
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused [must not have waived] the issue for tactical reasons; and
       (e) consideration of the error must be "necessary to do substantial justice."

Id. at 641-42. Our supreme court characterized the Adkisson test as a "clear and meaningful
standard" and emphasized that each of the five factors must be present before an error qualifies as
plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

        The record reflects that on February 14, 2003, the defendant entered pleas of guilt in the
McNairy County Circuit Court to theft between $500 and $1,000; burglary; and theft between $1,000
and $10,000. In that case, the trial court imposed ordered a two-year period of probation pursuant
to our judicial diversion statute. See Tenn. Code Ann. § 40-35-313. Prior to trial, the state provided
notice of its intent to impeach the defendant with the burglary offense. Because the defendant had
received judicial diversion, the trial court considered the issue under Tennessee Rule of Evidence
608, which governs the admissibility of prior bad acts, rather than Tennessee Rule of Evidence 609,
dealing with the admissibility of prior convictions. See State v. Walter Dale Dishman, No. 03C01-
9409-CR-00318 (Tenn. Crim. App., at Knoxville, Sept. 26, 1995) (holding that charges dismissed
after successful completion of pretrial diversion could be used to impeach witness under Rule 608).
The trial court determined that the burglary offense was admissible for impeachment purposes,
stating, "We're dealing with the issue of truthfulness today," and finding that its probative value
outweighed the danger of unfair prejudice.

       Tennessee Rule of Evidence 608 provides in pertinent part as follows:

               (b) Specific Instances of Conduct. Specific instances of conduct of a witness
       for the purpose of attacking or supporting the witness’s credibility, other than
       convictions of crimes as provided in Rule 609, may not be proved by extrinsic
       evidence. They may, however, if probative of truthfulness or untruthfulness and
       under the following conditions, be inquired into on cross-examination of the witness
       concerning the witness’s character for truthfulness or untruthfulness or concerning
       the character for truthfulness or untruthfulness of another witness as to which the
       character witness being cross-examined has testified. The conditions which must be
       satisfied before allowing inquiry on cross-examination about such conduct probative
       solely of truthfulness or untruthfulness are:
               (1) The court upon request must hold a hearing outside the jury's presence and
       must determine that the alleged conduct has probative value and that a reasonable
       factual basis exists for the inquiry;
               (2) The conduct must have occurred no more than ten years before
       commencement of the action or prosecution, . . .; and
               (3) If the witness to be impeached is the accused in a criminal prosecution,
       the State must give the accused reasonable written notice of the impeaching conduct
       before trial, and the court upon request must determine that the conduct's probative


                                                 -5-
        value on credibility outweighs its unfair prejudicial effect on the substantive issues.
        The court may rule on the admissibility of such proof prior to the trial but in any
        event shall rule prior to the testimony of the accused. If the court makes a final
        determination that such proof is admissible for impeachment purposes, the accused
        need not actually testify at the trial to later challenge the propriety of the
        determination. . . .

Tenn. R. Evid. 608(b).

         The only argument made by the defendant is that "[p]rior bad acts are not admissible in
criminal cases." That is an erroneous assertion. See, e.g., State v. Patton, 593 S.W.2d 913, 919
(Tenn. 1979) (stating that the "extension of [evidentiary rules 608 and 609] so as to provide coverage
to criminal defendants is in keeping with the time-honored holding of our courts that, as a general
rule, when a criminal defendant 'elects to place himself upon the stand as a witness, he can be treated
in all respects as any other witness'"). In this case, the trial court complied with Rule of Evidence
608, holding a jury-out hearing on the matter and making the appropriate findings. The record
contains a certified judgment demonstrating that the defendant did indeed plead guilty to burglary,
for which he received judicial diversion just prior to committing the offense in this case. The trial
court properly determined that the burglary plea was relevant to the defendant's credibility and that
its probative value outweighed its unfair prejudicial effect. The trial court excluded the defendant's
two theft pleas on the ground that they were too similar to the offense on trial. Further, the trial court
limited the state to the following question: "You are the same Steven Tidwell who admitted on
February the 14th of 2003 to committing a burglary on April the 20th, 2002?" The defendant replied
affirmatively and no extraneous proof was offered. Under these circumstances, there was no error
and, therefore, no plain error. The defendant is not entitled to relief.

                                                   III

       Finally, the defendant claims that the "sentence imposed by the court was extreme and
unreasonable." He argues that the trial court should have imposed some form of alternative
sentencing, specifically community corrections, and that the $2,500 fine was excessive.

         When there is a challenge to the length, range, or manner of service 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 trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption 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); see State v.
Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments
provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments.



                                                   -6-
        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 own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        Especially mitigated or standard offenders convicted of Class C, D, or E felonies are, of
course, presumed to be favorable candidates "for alternative sentencing options in the absence of
evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none
of which apply here, probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b) (Supp. 2000).

        Among the factors applicable to probation consideration are the circumstances of the offense,
the defendant's criminal record, social history and present condition, and the deterrent effect upon
and best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
The nature and circumstances of the offenses may often be so egregious as to preclude the grant of
probation. See State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981). A lack of candor may
also militate against a grant of probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).

        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, nonviolent felony offenders in front-end community based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides
a desired degree of flexibility that may be both beneficial to the defendant yet serve legitimate
societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn.1990). Even in cases where the
defendant meets the minimum requirements of the Community Corrections Act of 1985, the
defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right. State
v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offenders are eligible for
Community Corrections:

                 (1) Persons who, without this option, would be incarcerated in a correctional
        institution;
                 (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 felony offenses;
                 (4) Persons who are convicted of felony offenses in which the use or
        possession of a weapon was not involved;
                 (5) Persons who do not demonstrate a present or past pattern of behavior
        indicating violence;
                 (6) Persons who do not demonstrate a pattern of committing violent offenses;
        and



                                                   -7-
               Persons who are sentenced to incarceration or on escape at the time of
        consideration will not be eligible.

See Tenn. Code Ann. § 40-36-106(a).

       At the sentencing hearing, the state introduced sworn copies of the McNairy County
judgments demonstrating that the petitioner had been granted judicial diversion for the three prior
felony offenses in 2003 and the presentence report prepared by the Board of Probation. The
defendant did not introduce any proof.

        In mitigation, the trial court applied factor number (1), that the defendant's conduct neither
caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). The trial court
applied three enhancement factors: (2) that the defendant has a previous history of criminal
convictions or criminal behavior in addition to that necessary to establish the appropriate range; (9)
that the defendant has a previous history of unwillingness to comply with the conditions of a
sentence involving release in the community; and (18) that the defendant committed the offense
while on school property. See Tenn. Code Ann. § 40-35-114(2), (9), (18). The trial court sentenced
the defendant as a Range I offender to two years, the maximum in the range, see Tenn. Code Ann.
§ 40-35-112(a)(5), to be served in the Department of Correction. The trial court ordered service of
the sentence primarily because the defendant failed to successfully complete his judicial diversion
program.

        In our view, the trial court did not abuse its discretion by ordering service of the two-year
sentence. A little over a month before committing this offense, the defendant, after admitting three
felonies, had been given the opportunity to clear his criminal record. All he had to do was refrain
from criminal conduct. That he did not suggests a resistance to rehabilitation. Under these
circumstances, the denial of alternative sentencing was appropriate.

         The defendant also contends that the $2,500 fine assessed by the jury and approved by the
trial court is excessive. Our constitution prohibits fines over $50 unless approved by the jury. Tenn.
Const. art. VI, § 14. A fine imposed by the trial court may not exceed that fixed by the jury. State
v. Mahoney, 874 S.W.2d 627, 630 (Tenn. Crim. App. 1993). There are no exceptions to these
guidelines unless the defendant waives the constitutional protections or his right to a trial by jury.
State v. Martin, 940 S.W.2d 567 (Tenn. 1997); State v. Durso, 645 S.W.2d 753, 754 (Tenn. 1983).
This court has jurisdiction to review a fine because it is part of the sentence. See State v. Bryant, 805
S.W.2d 762, 763 (Tenn. 1991). Our review is de novo with a presumption that the determinations
made by the trial court are correct. State v. Byrd, 861 S.W.2d 377 (Tenn. Crim. App. 1993).

        Here, the jury imposed a $2,500 fine, which was within the permissible range for a Class E
felony conviction. See Tenn. Code Ann. § 40-35-111(b)(5) (providing that jury may assess a fine
not exceeding $3,000 for Class E felony conviction). It is, of course, well settled that the power to
declare the appropriate punishment for a crime falls within the authority of the legislature. Woods
v. State, 130 Tenn. 100, 169 S.W. 558 (1914). The imposition of a fine, within the limits set by the


                                                  -8-
jury, is to be based on the factors provided by the 1989 Sentencing Act; the trial court must consider
the defendant’s ability to pay the fine, the evidence from the trial, the sentencing hearing proof in
regard to the defendant’s ability to pay, and other factors of judgment involved in the setting of the
total sentence. Bryant, 805 S.W.2d at 766; see Tenn. Code Ann. § 40-35-207(7); see also State v.
Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993) (stating that a defendant’s ability to pay
“is not necessarily a controlling [factor]”); State v. Michael Westley Portzer, No. 01C01-9208-CC-
00252 (Tenn. Crim. App., at Nashville, Aug. 12, 1993).

        Tennessee Code Annotated § 40-35-301(b) provides that “when imposing sentence . . . the
court shall impose a fine, if any, not to exceed the fine imposed by the jury.” The trial court is
“obligated to evaluate the fine . . . [and] may not simply impose the fine as fixed by the jury.” State
v. Michael Wilson, No. 01C01-9602-CC-00073 (Tenn. Crim. App., at Nashville, July 31, 1997).
In this case, the trial court did not establish a record to indicate that it considered the applicable
factors in approving the fine. Thus, this court is not bound by the presumption of correctness on
appeal. State v. Donald Eric Williams, No. 01C01-9405-CR-00165 (Tenn. Crim. App., at Nashville,
Dec. 22, 1994).

        Nevertheless, the record does not establish why the fine is excessive. The $2,500 fine as
recommended by the jury and accepted by the trial judge is not patently excessive. See State v.
Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Because Dr. Selby interrupted the theft,
there was no need for restitution. The defendant does not claim that the fine is outside of his ability
to pay. The amount, on its face, is neither unfair nor inappropriate.

       Accordingly, the judgment of the trial court is affirmed.




                                                       ___________________________________

                                                       GARY R. WADE, PRESIDING JUDGE




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