        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 23, 2010

          STATE OF TENNESSEE v. ANTHONY W. HUTCHINSON

                  Appeal from the Circuit Court for Blount County
                 No. C-17338    Jon Kerry Blackwood, Senior Judge


                 No. E2010-01053-CCA-R3-CD - Filed April 25, 2011




The Defendant, Anthony W. Hutchinson, was convicted of one count of theft of property
valued at $1,000 or more, a Class D felony. See Tenn. Code Ann. §§ 39-14-103, 105. In this
appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain
his conviction and (2) the trial court erred by denying alternative sentencing. Following our
review, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

D. K ELLY T HOMAS, J R. J., delivered the opinion of the court, in which D AVID H. W ELLES and
N ORMA M CG EE O GLE, JJ., joined.

Raymond Mack Garner, District Public Defender (at trial); and J. Liddell Kirk, Knoxville,
Tennessee (on appeal), for the appellant, Anthony W. Hutchinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Clinton E. Frazier, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The victim, Dennis R. Webb, testified that in August 2007, he was looking for a
contractor to put a metal roof on his garage. Mr. Webb’s son-in-law, Aaron Bruno,
suggested that Mr. Webb contact the Defendant about the job. Mr. Webb already had an
estimate for $6,500, but Mr. Bruno told Mr. Webb that the Defendant would “do it cheaper.”
After speaking with Mr. Bruno, Mr. Webb agreed to let the Defendant give him an estimate
on the job. The next day, the Defendant and Mr. Bruno went to Mr. Webb’s house and took
some measurements. The Defendant told Mr. Webb that he could do the job for $5,300 with
$3,000 paid up front and the remainder to be paid after completion of the job. The Defendant
said that he would order the metal and start the job on August 13th and have the job finished
on August 15th. Mr. Webb asked the Defendant if he was sure he could complete the job so
quickly. The Defendant responded that he did not have any other jobs and that he needed the
money.

       The next day, August 9, 2007, the Defendant brought a contract to Mr. Webb’s house
for him to sign. The contract listed the estimated start date as August 13th and the estimated
completion date as August 15th. The contract also provided that a deposit of $3,000 would
be paid with $2,300 to be paid upon completion. Mr. Webb testified that after signing the
contract he gave the Defendant $3,000 in a First National Bank envelope. After August 9th,
the Defendant never returned to Mr. Webb’s home to perform the job. Mr. Webb testified
that he tried “10 or 12 times” to contact the Defendant by phone, but the Defendant would
not answer. After about a month, Mr. Webb contacted the Blount County Sheriff’s Office
(BCSO).

        Shortly after contacting the BCSO, Mr. Webb received a phone call from the
Defendant. Mr. Webb testified that the Defendant told him, “I ain’t got the money” and that
“[i]f you take me to court, the [j]udge will just make me pay $15 a month.” According to Mr.
Webb, the Defendant told him there was nothing the police could do because “it was a civil
case” and that the Defendant had “been doing this stuff before.” Mr. Webb also testified that
the Defendant “wanted [Mr. Webb] to meet him out on the road somewhere to fight to get
over it.” Mr. Webb denied being angry at the Defendant or threatening to hurt the Defendant.
However, Mr. Webb admitted he was upset and aggravated about the situation. Mr. Webb
also testified that he would have dropped his complaint with the police if the Defendant had
agreed to come and do the job. However, Mr. Webb testified that during the phone
conversation, the Defendant never offered to actually perform the work or return the money.

        Mr. Bruno testified that he was “old friends” with the Defendant and that in August
2007, the Defendant asked Mr. Bruno to refer him to Mr. Webb. Mr. Bruno testified that the
Defendant had no other jobs he was working on at that time. Mr. Bruno also testified that
he went with the Defendant to measure the roof and that he was present when the contract
was signed. According to Mr. Bruno, the Defendant later told him that he had a year to do
the job and that his failure to do the job was a civil matter. On cross-examination, Mr. Bruno
again testified that he was present when the contract was signed but that after the contract
was signed, the Defendant left and came back later to pick up the money “in an envelope.”

       Lisa Regan testified that she is Mr. Webb’s niece and that in August 2007, she was
dating the Defendant. According to Ms. Regan, on August 9, 2007, the Defendant called her
and asked her to go with him to Harrah’s Casino. Shortly after they arrived, the Defendant

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began gambling and “pulled out a few hundred dollar bills out of his wallet.” Ms. Regan
testified that “[a]fter [the Defendant] lost all the money that was in his wallet, he pulled out
a bank envelope” and took money from that. According to Ms. Regan, the Defendant
gambled all night long. Ms. Regan eventually went up to her room and fell asleep, when she
woke up the next morning the Defendant “was still at a table gambling.” The Defendant
“had lost everything that he had brought there.”

        Ms. Regan testified that the Defendant eventually told her “he messed up.” Ms.
Regan asked the Defendant if he had gambled away Mr. Webb’s money, and he responded
that he would never “admit to them that [he] lost the money.” Ms. Regan offered to loan him
the money if he would let her go with him and pay for the materials. The Defendant “would
[not] agree to that” and “said he would look stupid if [Ms. Regan] went with him to pay for
the material, that if [she] couldn’t just give him the money and him go pay for it [himself],
to forget it.” Shortly after this conversation, Ms. Regan ended her relationship with the
Defendant. Ms. Regan also testified that in August 2007, the Defendant did not have any
other contracts. In fact, Ms. Regan recalled that during this time the Defendant was looking
for work in the “want ads.”

        Deputy James Wilson of the BCSO testified that Mr. Webb contacted his office on
September 10, 2007. After taking a statement from Mr. Webb, Deputy Wilson contacted the
Defendant. The Defendant told Deputy Wilson that this was a civil matter and that he had
two years to perform the work. The Defendant admitted that he had not done any work and
had not bought any supplies. However, the Defendant told Deputy Wilson that the money
was not for supplies. Instead, the Defendant claimed that the money “was to secure [the
Defendant’s] . . . position to do the work, so another contractor could [not] come in and do
the work.” Deputy Wilson tried to resolve the situation by convincing the Defendant “to go
ahead and perform the contract.” However, the Defendant told Deputy Wilson that “he was
extremely busy . . . [and] had three contracts that he was under at the time.” Deputy Wilson
testified that the Defendant gave him “the impression [that the Defendant] was so busy that
he did [not] have time to get to Mr. Webb’s work at the time.” The Defendant told Deputy
Wilson that he was “in Georgia at the time working on another job and was just very busy.”
Deputy Wilson testified that to his knowledge, the Defendant never performed the contract
or repaid Mr. Webb.

        After speaking with the Defendant, Deputy Wilson subpoenaed the Defendant’s
gambling records from Harrah’s Casino. The records show that on August 9, 2007, the
Defendant gambled for 541 minutes and lost $1,200. The records for August 10, 2007 reflect
that the Defendant lost $1,750 during 77 minutes of gambling. Deputy Wilson testified that
the records for August 8, 2007 reflect that the Defendant lost $1,200 the day before he and
Mr. Webb signed the contract. On cross-examination, Deputy Wilson admitted that the

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Defendant had gambled at Harrah’s Casino on numerous occasions prior to and after August
9, 2007. Based on the foregoing evidence the jury convicted the Defendant of theft of
property valued at $1,000 or more, a Class D felony. See Tenn. Code Ann. §§ 39-14-103,
105.

        At the sentencing hearing, the State introduced copies of the Defendant’s prior
convictions in state and federal court as well as the Defendant’s presentence report. In 1999,
the Defendant pled guilty in federal court to four counts of entering a motor vehicle in a
National Park with the intent to commit a theft, using stolen credit and check cards with the
intent to defraud, and scheming to defraud a bank by using stolen blank checks and forging
the signature of the endorser. In October 2003, a federal probation violation warrant was
issued against the Defendant. The Defendant also had state convictions for theft over $1,000,
conspiracy to pass worthless checks over $1,000, and two convictions for forgery. The
Defendant was placed on community corrections for these charges and was on community
corrections at the time of this offense. The State also introduced evidence that the Defendant
had violated his community corrections sentence and had additional prior convictions for
disorderly conduct and possession of drug paraphernalia.

       The Defendant testified at the sentencing hearing that he was 30 years old and had two
children, one of whom he had custody of. The Defendant claimed that he had ordered the
metal needed to perform the job on Mr. Webb’s roof but that it had come in “like a baby
poop green” so he had to reorder the metal. The Defendant testified that he called Mr. Webb
to inform him of this, but Mr. Webb said, “when I see you I’m going to punch you in the
mouth” and yelled at him. According to the Defendant, he never performed the job becauce
he could not risk having “an angry homeowner come kick a ladder out from one of [his]
employees or [himself.]” The Defendant denied taking Mr. Webb’s money to the casino and
stated that he did not perform the job because Mr. Webb “did [not] act in a business
disposition.” The Defendant denied that at the time he signed the contract it was his intent
to take Mr. Webb’s money without performing the job.

        The Defendant blamed his conviction for conspiracy to pass worthless checks on his
girlfriend at the time. He testified that she had written the checks and that he had “got in the
mix because [he] was dating her.” The Defendant also blamed his federal convictions on
someone else, claiming that he “was [not] the one doing the breaking into cars” but was “just
doing the checks.” Despite having failed to comply with the conditions of his federal
probation and state community corrections sentences, the Defendant testified that if placed
on alternative sentencing in this case he would comply with the conditions of his sentence.
The Defendant continued to maintain his innocence, testifying that “[his] deposit is [his]
deposit” and that the contract did not specify what the money was to be used for. However,
when asked whether he had been honest with Deputy Wilson, the Defendant said “I don’t

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know. I sell metal roofing, brother; I’m not always honest.” After cross-examination, the
Defendant was asked by the trial court why, given the Defendant’s indigency, he was able
to pay $5,000 to make bond but not repay his $3,000 debt. The Defendant responded that a
friend paid his bond.

        The trial court concluded that the Defendant was a Range II, multiple offender. The
trial court also concluded that the following enhancement factors applied to this case: (1) in
addition to the prior convictions necessary to establish the appropriate range, the Defendant
had a previous history of criminal convictions; (8) the Defendant failed to comply with the
conditions of a sentence involving release into the community; and (13) at the time of the
offense the Defendant was on community corrections. Tenn. Code Ann. § 40-35-114. The
trial court concluded that these enhancement factors outweighed the sole mitigating factor
that the Defendant’s conduct neither caused nor threatened serious bodily injury. The trial
court also concluded that the Defendant should be denied alternative sentencing based upon
his prior criminal record, his failure to comply with the terms of alternative sentencing in the
past, and the fact that less restrictive measures have been unsuccessfully applied to the
Defendant. Accordingly, the trial court sentenced the Defendant to eight years to be served
in the Tennessee Department of Correction.

                                         ANALYSIS

                                I. Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient to sustain his conviction for
theft of property valued at $1,000 or more. The Defendant argues that his “subsequently
behaving irresponsibly with the money does [not] itself amount to an intent to deceive the
victim at the time the money was obtained.” The State responds that intent to deprive an
owner of property may be established by circumstantial evidence. The State argues that the
evidence that the Defendant immediately took Mr. Webb’s money to a casino where he
gambled it away, his refusal to accept Ms. Regan’s offer to buy materials for the job, his
avoidance of Mr. Webb, and his claims to Deputy Wilson that he was busy was sufficient
evidence for a reasonable jury to conclude the Defendant intended to deprive Mr. Webb of
his money.

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

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the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999).

        In Tennessee, “[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. In order to obtain
a theft conviction, the State must establish that “(1) the defendant knowingly obtained or
exercised control over property; (2) the defendant did not have the owner’s effective consent;
and (3) the defendant intended to deprive the owner of the property.” State v. Amanns, 2
S.W.3d 241, 244-45 (Tenn. Crim. App. 1999). Consent induced by deception is not
effective. Tenn. Code Ann. § 39-11-106(a)(6)(A). Intent to deprive an owner of property
may be established by circumstantial evidence. See State v. Scales, 524 S.W.2d 929, 931
(Tenn. 1975). Stated another way, a “jury may infer a criminal defendant’s intent from the
surrounding facts and circumstances.” State v. Roberts, 943 S.W.2d 403, 410 (Tenn Crim.
App. 1996), overruled on other grounds by State v. Ralph, 6 S.W.3d 251 (Tenn. 1999).

        Situations involving alleged fraud in connection with home repairs or installations
present a unique challenge under the theft statute. In Amanns, a panel of this court
concluded that a contractor’s failure to repay a $6,000 deposit did not constitute the crime
of theft. 2 S.W.3d at 242. The defendant in Amanns entered into a contract to remodel the
alleged victim’s basement. Id. The terms of the contract provided that the alleged victim
would pay a $6,000 deposit. Id. The defendant cashed the check the next day and used a
portion of the money to establish an account with a material supplier. Id. at 242-43. The
defendant began work at the agreed upon time and continued to work until a dispute arose
over the quality of the defendant’s work. Id. at 243. This court concluded that “[w]hile these
facts establish a breach of contract, they fall far short of establishing . . . any intent to
defraud.” Id. at 245.

        The facts in the present case differ greatly from those in Amanns. There was nothing
in Amanns to suggest that the defendant never intended to complete the work when he took
the alleged victim’s deposit. However, in this case the Defendant never bought supplies or
began work on Mr. Webb’s roof. Instead, the evidence at trial established that on August 9,

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2007, the Defendant was given $3,000 by Mr. Webb in a bank envelope. The Defendant then
took Ms. Regan to Harrah’s Casino, where he gambled using money from a bank envelope
and lost approximately $3,000. Ms. Regan testified that the Defendant later admitted that the
money was Mr. Webb’s. The Defendant rejected Ms. Regan’s offer to buy the supplies
needed to complete the job. The Defendant avoided Mr. Webb and only spoke to him after
the police had been contacted. When the Defendant spoke to Mr. Webb, he told him that he
did not have his money and, essentially, that he would never get it back. Additionally, the
Defendant lied to Deputy Wilson about what the money was for and why he had not begun
work on Mr. Webb’s roof. Accordingly, we conclude that the State produced sufficient
evidence that the Defendant intended to deprive Mr. Webb of $3,000 when he took the
money from Mr. Webb.

                                         II. Sentencing

        The Defendant contends that the trial court erred by denying him alternative
sentencing. The Defendant argues that the trial court failed to “articulate due consideration
for whether a sentence of confinement was deserved under the circumstances.” Additionally
the Defendant contends that there is nothing in the record to suggest “that he is such a danger
or a threat that full confinement is necessary. The State responds that the trial court was
correct in ordering the Defendant’s sentence served in confinement. The State argues that
the trial court’s decision is justified based on the Defendant’s significant criminal history and
the fact that the Defendant’s alternative sentences have been revoked on two occasions.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the
Sentencing Commission Comments to this section note, on appeal the burden is on the
defendant to show that the sentence is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration to the factors and principles that are relevant to
sentencing under the 1989 Sentencing Act, the court may not disturb the sentence even if a
different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). However, “the presumption of correctness which accompanies the trial court’s action
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). In this respect, for the purpose of meaningful appellate review:

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found,
       state the specific facts supporting each enhancement factor found, and
       articulate how the mitigating and enhancement factors have been evaluated

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       and balanced in determining the sentence. Tenn. Code Ann. § 40-35-210(f)
       (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, (7) the potential for
rehabilitation or treatment, and (8) any statistical information provided by the Administrative
Office of the Courts as to sentencing practices for similar offenses in Tennessee. Tenn. Code
Ann. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d
229, 236-37 (Tenn.1986).

       The Defendant was eligible for probation because the “sentence actually imposed
upon [him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(b). The Defendant
was convicted of a Class D felony but was not presumed to be a favorable candidate for
alternative sentencing because he was classified as a Range II, multiple offender. Tenn.
Code Ann. § 40-35-102(6). No criminal defendant is automatically entitled to probation as
a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant must
establish his suitability for alternative sentencing. Tenn. Code Ann. § 40-35-303(b). In
determining a defendant’s suitability for alternative sentencing, the trial court should
consider whether (1) confinement is needed to protect society by restraining a defendant who
has a long history of criminal conduct, (2) confinement is needed to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective
deterrence to people likely to commit similar offenses, or (3) less restrictive measures than
confinement have frequently or recently been applied unsuccessfully to the defendant.
Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann. § 40-35-103(1)(A)-(C)). A trial court
should also consider a defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. Tenn. Code. Ann. § 40-35-
103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

       The Defendant is mistaken in his assertion that the trial court failed to “articulate due
consideration for whether a sentence of confinement was deserved under the circumstances.”
The trial court denied alternative sentencing on the basis of the Defendant’s significant
criminal history, the fact that the Defendant had failed to comply with the conditions of
alternative sentencing in the past, and the fact that less restrictive measures have been
unsuccessfully applied to the Defendant. The evidence at trial showed that the Defendant
committed this offense with the belief that he could get away with it. Additionally, in

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determining the length of the Defendant’s sentence, the trial court gave little weight to the
mitigating factor that no one was harmed by the Defendant’s actions. While the Defendant
testified at the sentencing hearing that he would comply with the conditions of an alternative
sentence, he already had two alternative sentences revoked and testified that he is “not
always honest.” Accordingly, we conclude that the trial court did not err in denying the
Defendant alternative sentencing.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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