         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE         FILED
                           NOVEMBER 1998 SESSION
                                                    December 30, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9710-CC-00450
      Appellee,                      )
                                     )    WILLIAMSON COUNTY
VS.                                  )
                                     )    HON. HENRY DENMARK BELL,
JOHNNIE M. TALLEY III,               )    JUDGE
                                     )
      Appellant.                     )    (Filing False Report - 5 Counts;
                                     )    Probation Revocation)


FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHN H. HENDERSON                         JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter
407 C Main Street
P.O. Box 68                               DARYL J. BRAND
Franklin, TN 37065-0068                   Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          JOSEPH D. BAUGH, JR.
                                          District Attorney General

                                          DEREK K. SMITH
                                          Assistant District Attorney General
                                          G-6 Courthouse
                                          P.O. Box 937
                                          Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



L.T. LAFFERTY,
SENIOR JUDGE
                                      OPINION



       Defendant was found guilty of five counts of filing a false report in violation

of Tenn. Code Ann. § 39-16-502(a)(2)(A), all Class E felonies. The trial court

sentenced defendant as a Range II, multiple offender, to four years in counts one

and three, and three years in counts four, six, and eight. Counts one and three ran

consecutively and the other counts ran concurrently for an effective eight-year

sentence. The court also revoked defendant’s probation on a three-year sentence,

but ordered that time served concurrently with the new sentence. Defendant

essentially raises three issues on appeal:

              (1) whether the evidence was sufficient to support the
              five guilty verdicts;

              (2) whether the trial court erred in sentencing
              defendant; and

              (3) whether the trial court erred in revoking defendant’s
              probation and ordering him to serve the three-year
              effective sentence.

After a thorough review of the record, we AFFIRM the judgments of conviction and

sentences imposed by the trial court.



                                       FACTS



       Defendant is a life-long Williamson County resident with a history of making

9-1-1 emergency calls and requesting assistance.           In December of 1996, a

Williamson Grand Jury indicted him on nine counts of filing a false report for a

series of these incidents. After a bench trial, the court found defendant guilty on five

counts of filing a false report, Class E felonies.

       On January 14, June 13, July 1, August 2, and September 8, 1996,

defendant placed the 9-1-1 calls giving rise to his convictions. In each case, he

claimed injury or a need for assistance. Some of the ailments claimed by defendant

included: bleeding from the head; spider bite; heatstroke; back, neck, and chest

pains. In each instance, the emergency medical personnel found defendant in no



                                           2
distress and in no need of emergency medical treatment. Per agency policy,

however, they transported defendant to the Williamson Medical Center emergency

room at his request.

       In the majority of these visits, emergency room medical records indicate a

final diagnosis of toluene inhalation, substance abuse and/or a history of

schizophrenia. On July 1, the diagnosis was insomnia.

       The defense presented expert testimony by Robert N. North, D.Ed., who

testified that defendant suffers from Obsessive Compulsive Disorder (OCD). His

evaluation of defendant indicated that defendant may have known “down deep” that

there was nothing wrong, but that he was driven by a compulsion to call 9-1-1 and

could not help himself. This proof was deemed inadmissible at the guilt phase of

the hearing, but was considered for sentencing purposes. 1




                            SUFFICIENCY OF THE EVIDENCE



       The defendant asserts that “the evidence in the case, taken in the light most

favorable to the State, did not establish [defendant’s guilt] beyond a reasonable

doubt.”

       When reviewing the trial court's judgment, this Court will not disturb a verdict

of guilt unless the facts of the record and inferences which may be drawn from it are

insufficient as a matter of law for a rational trier of fact to find the defendant guilty

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573 (1979); Tenn. R. App. P. 13(e); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this

Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn.1978). Nor may this Court substitute its inferences for those drawn

by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford


       1
           The correctness of this ruling is not raised as an issue in this appeal.

                                                 3
the state the strongest legitimate view of the evidence contained in the record as

well as all reasonable and legitimate inferences which may be drawn from the

evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). Since a

verdict of guilt removes the presumption of a defendant's innocence and replaces

it with a presumption of guilt, the defendant has the burden of proof on the

sufficiency of the evidence at the appellate level. State v. Tuggle, 639 S.W.2d at

914; State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

              The trial judge heard the evidence, evaluated the witnesses, and

made its factual determinations based on that evidence.           This Court cannot

substitute its judgment for that of the trial judge in determining sufficiency of the

evidence. Viewing the evidence in a light most favorable to the state, there is

sufficient evidence to sustain all five findings of guilt.

       This issue is without merit.




                                    SENTENCING



       Defendant makes no specific assignments of error by the trial judge in his

sentencing decisions. He simply asserts that the effective eight-year sentence is

excessive and asks this court to amend the sentences to two years each and place

defendant on probation for that period.

       Our review of the sentence imposed by the trial court is de novo, with a

presumption that the determinations of the trial court are correct. Tenn. Code Ann.

§ 40-35-401(d); State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The

presumption of correctness which attaches to the trial court's action is conditioned

upon an 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).

       A review of the videotaped bench trial and sentencing hearing convinces us

that the trial court did consider the sentencing principles and all relevant facts and



                                            4
circumstances surrounding this case. Thus, our review is de novo with the attached

presumption of correctness.



                               A. Length of Sentences

       The trial court sentenced defendant as a Range II, multiple offender to four

years each in counts one and three, and three years each in counts four, six and

eight. Defendant does not claim any error with regard to the sentencing range, but

merely asserts that the sentence in each count should be no more than the

minimum for a Range II offender, two years.

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d

803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.

1991). However, if such factors do exist, a trial court should start at the minimum

sentence, use the enhancement factors to increase the sentence within the range

and then apply the mitigating factors to reduce the sentence within the range.

Tenn. Code Ann. § 40-35-210(e). There is no particular weight prescribed by

statute for each factor, as this determination is left to the discretion of the trial court

as long as the trial court complies with the purposes and principles of the

sentencing act and its findings are supported by the record. State v. Moss, 727

S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.

App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see

State v. Lavender, 967 S.W.2d at 806.

       At sentencing, defendant asked for the application of five mitigating factors:

(1) defendant’s criminal conduct neither caused nor threatened serious bodily injury;

(2) substantial grounds exist tending to excuse or justify the defendant’s criminal

conduct, though failing to establish a defense; (3) defendant was suffering from a

mental . . . condition that significantly reduced [his] culpability for the offense; (4)

with treatment and medication, defendant has a good potential for rehabilitation;

and (5) defendant is currently receiving treatment and taking medication for mental



                                            5
health problems. See Tenn. Code Ann. § 40-35-113(1), (3), (8), (13).

      The state asked for the application of three enhancing factors: (1) defendant

has a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the appropriate range; (2) defendant has a previous

history of unwillingness to comply with the conditions of a sentence involving

release in the community; and (3) these felonies were committed while defendant

was on probation. See Tenn. Code Ann. § 40-35-114(1), (8), (13)(C). The

prosecutor recommended an effective eleven-year sentence and emphasized the

length and nature of defendant’s criminal history. The record reflects defendant’s

conduct included thirty-three prior convictions, five felonies and twenty-eight

misdemeanors; and at least one prior probation revocation which resulted in

defendant being forced to serve the remainder of a suspended sentence.

       The trial court noted that both sides presented valid arguments for the

application of the requested mitigation and enhancement factors. It also considered

the sentencing recommendations of both defense counsel and the state. The trial

court made a specific finding that the enhancement factors “greatly outweigh” the

mitigating factors and then sentenced defendant to two maximum sentences of four

years and three mid-range sentences of three years.

       In reviewing the record de novo with the attached presumption of

correctness, this Court finds that the trial court properly applied both enhancement

and mitigating factors.     It also properly evaluated the relevant facts and

circumstances of the case in conjunction with the sentencing principles.

Accordingly, this Court will not disturb the length of the sentences.




                          B. Consecutive Sentencing

       Defendant next avers that the trial court erred in ordering the four-year

sentences in counts one and three to run consecutively to one another.

       A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that the defendant is an offender whose record of



                                         6
criminal activity is extensive, or the defendant is sentenced for an offense

committed while on probation. Tenn. Code Ann. § 40-35-115(b)(2),(6); see also

State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the

court is required to determine whether the consecutive sentences (1) are

reasonably related to the severity of the offenses committed; (2) serve to protect the

public from further criminal conduct by the offender; and (3) are congruent with the

general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.

1995).

         Here, the trial court noted that defendant qualified for consecutive sentencing

under the statute given his extensive criminal history spanning almost ten years and

that he was on probation when he committed the current felonies. As such, it found

consecutive four-year sentences warranted in counts one and three.

         The court addressed the Wilkerson considerations noting the danger posed

to the community by defendant’s chronic engagement of the county’s emergency

services and personnel for non-emergency purposes. It found the eight-year

sentence sufficient and ordered all other sentences, including three years for the

new probation violation, to run concurrently. This finding clearly indicates the trial

court’s belief that an eight-year sentence is reasonably related to the severity of the

offenses at issue.

         Again, our review of the record with the attached presumption of correctness

reveals that the trial judge based consecutive sentencing upon proper

considerations. Thus, we will not disturb his decision.




                              C. Alternative Sentencing

         Defendant claims that the trial court erred in denying him “intensive”

probation. Defense counsel argued at sentencing that defendant was an ideal

candidate for probation; that neither the Department of Correction nor the county

jail is an appropriate facility to handle defendant’s special needs; and the trial court

should place him on “intensive” probation.



                                            7
      In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant’s criminal record, the

defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d at 917. The burden is upon the appealing party to show that

the sentence is improper.      Tenn. Code Ann. § 40-35-401(d).            Sentencing

Commission Comments.

             Under the 1989 Sentencing Act, sentences which involve confinement

are to be based on the following considerations contained in Tenn. Code Ann. § 40-

35-103(1):

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

      (B) [c]onfinement is necessary to avoid depreciating the seriousness
      of the offense or confinement is particularly suited to provide an effect
      deterrence to others likely to commit similar offenses; or

      (C) [m]easures less restrictive than confinement have frequently or
      recently been applied unsuccessfully to the defendant.

See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.

Millsaps, 920 S.W.2d 267, 271 (Tenn. Crim. App. 1995).

      We first note that defendant, due to his uncontroverted Range II status, is not

presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann.

§ 40-35-102(6). Our review further reveals that the trial court addressed the proper

confinement considerations. The defendant clearly qualifies for a sentence of

confinement. Thus, there is no basis for us to disturb the trial court’s denial of

alternative sentencing.




                          PROBATION REVOCATION



       Revocation of probation is subject to an abuse of discretion standard of

review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.



                                         8
1991). Discretion is abused only if the record contains no substantial evidence to

support the conclusion of the trial court that a violation of probation has occurred.

Id.

       In this case, there was clear evidence that defendant violated his probation.

There was no abuse of discretion by the trial court in revoking the defendant’s

suspended sentence. We would note that the sentence in that case, an effective

three years, was run concurrently with his new convictions.

       This issue is without merit.




                                  CONCLUSION



       Based upon the foregoing, we AFFIRM the judgments of the trial court.




                                               ____________________________
                                                L.T. LAFFERTY, SENIOR JUDGE




CONCUR:




                                         9
___________________________
PAUL G. SUMMERS, JUDGE




____________________________
JOE G. RILEY, JUDGE




                               10
