         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 18, 2002

              STATE OF TENNESSEE v. STACEY RENEE MOORE

               Direct Appeal from the Criminal Court for Washington County
                 Nos. 25859, 26128, 26129, 26595  Robert E. Cupp, Judge



                                 No. E2001-01905-CCA-R3-CD
                                      September 18, 2002

The appellant, Stacey Renee Moore, entered guilty pleas to two counts of theft over five hundred
dollars ($500), Class E felonies; one count of theft under five hundred dollars ($500), a Class A
misdemeanor; and one count of failure to appear, a Class E felony. For each felony conviction, the
appellant received a one-year sentence, with the sentences to be served consecutively. Additionally,
the appellant received an eleven month and twenty-nine day sentence for the misdemeanor
conviction to be served concurrent to the felony convictions. The trial court denied the appellant’s
request for alternative sentencing and sentenced the appellant to an effective sentence of three years
in the Tennessee Department of Correction. On appeal, the appellant contends that the trial court
erred by denying alternative sentencing. Upon review of the record and the parties’ briefs, we affirm
the judgment of the trial court.

             Tenn. Rule App. P. 3 Appeal as of Right; Judgment of the affirmed.

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); David F. Bautista and Deborah Black
Huskins, Johnson City, Tennessee (at trial), for the appellant, Stacey Renee Moore.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Joe Crumley, District Attorney General; and Steve Finney, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

                                              I. Facts
                        The record before this court does not include a transcript of the guilty plea
hearing, nor a copy of the presentence report. The only facts contained in the record are those stated
below, which were recited by the trial court at the sentencing hearing.
                On April 24, 2001, the appellant entered guilty pleas in the Washington County
Criminal Court to two counts of theft over five hundred dollars ($500); one count of theft under five
hundred dollars ($500); and one count of failure to appear. The appellant’s guilty pleas arose from
the following incidents. On December 27, 1999, the appellant took a 1989 Mazda MX6 for an
apparent test drive from Downtown Auto Sales and never returned. Police officers discovered the
vehicle abandoned in Charleston, South Carolina, with a failed engine. On February 5, 2000, the
appellant took a 1984 Pontiac Sunbird belonging to eighty-year-old James B. Shell, Jr. The appellant
also abandoned this vehicle, which was later found in North Carolina. On March 5, 2000, the
appellant entered a 1984 Nissan pick-up truck belonging to Veronica Jenny and took twenty-seven
dollars ($27) from a day-planner in the console of the truck. Finally, on November 9, 2000, the
appellant failed to appear before the trial court to answer to the above charges.

               The sentencing hearing was held on August 1, 2001. The appellant testified that she
was a thirty-two-year-old, unmarried mother of four. At the time of the sentencing hearing, the
appellant had been incarcerated for more than five months. While incarcerated, her three daughters
were being cared for by their maternal grandmother and her son was being cared for by a family
friend.

                At the sentencing hearing, the appellant conceded that she has an extensive prior
record, consisting of numerous misdemeanor convictions and one prior felony conviction for theft.
The appellant testified that the most time she had served in confinement for any of these offenses
was nine months. When asked by the trial court if the confinement had helped her, the appellant
replied, “No, sir. . . . It really didn’t at the time.” The appellant admitted that in the past, upon
release from confinement, she would just “[g]et drunk and get high” and sometimes immediately
commit another crime. The appellant testified that her past criminal activities were motivated by her
addiction to alcohol and crack cocaine.

                  After admitting her extensive criminal history and addictions, the appellant asked the
trial court to give her “another chance on probation.” The appellant testified that she had been “clean
and sober for seven months” despite “opportunities to get high even in jail.” To assist in her
rehabilitation, the appellant testified that she had attended A.A. (Alcoholics Anonymous) meetings
while in jail and had obtained an outside sponsor for support after her release. Furthermore, the
appellant testified that prior to her confinement she was employed full-time by Curran Management
and that Curran was prepared to rehire her upon release. The appellant testified that, if released, she
and her children could live with her mother. Also, the appellant’s A.A. sponsor had arranged for her
and her children to live in a more structured environment at the Salvation Army Shelter. The shelter
would conduct nightly breathalyser tests and help the appellant obtain public housing.

                In her final plea to the court for alternative sentencing, the appellant stated:
                I haven’t lived my life like a very responsible citizen, . . . or a good
                momma, or a daughter to my mother. Since I was about fourteen, or
                fifteen years old I’ve been getting high and drinking. I’ve been in and
                out of jail all my life. I just don’t want to live that way no more. All


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               I can say is I’ll do my very best. I’m really tired of living that way.
               And I’m real sorry for all the problems that I’ve caused. And with the
               mistakes I’ve made I probably don’t really deserve this chance. All
               I can say is I’ll do my very best if I get a chance. That’s all I’ve got
               to say.

                 After considering the sentencing principles and the mitigating and enhancement
factors, the trial court denied the appellant’s request for alternative sentencing. Although the trial
court found that the appellant was entitled to the presumption of alternative sentencing, the court
nevertheless determined that the presumption had been overcome in the appellant’s case and that
confinement was a more appropriate sentence. The trial court based its decision on the appellant’s
extensive criminal history, the need to avoid depreciating the seriousness of the offense, and the fact
that the appellant had been on probation numerous times without successful rehabilitation.
Moreover, after reading the presentence report, the trial court noted that many of the appellant’s
convicted offenses were committed while she was on probation. On appeal, the appellant challenges
the trial court’s denial of alternative sentencing.

                                             II. Analysis
                The appellant contends that the trial court erred by denying alternative sentencing in
the form of either probation or community corrections. When an appellant challenges the length,
range, or manner of service of a sentence, this court conducts a de novo review with a presumption
that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997).
However, 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). In conducting our review, this court must consider (1) the
evidence, if any, received at trial and at the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and the arguments of counsel relative to the sentencing alternatives; (4) the
nature and characteristics of the offenses; (5) any mitigating or enhancement factors; (6) any
statements made by the appellant on his own behalf; and (7) the appellant’s potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (1997), -210 (Supp. 2001). See
also Ashby, 823 S.W.2d at 168. The burden of showing that a sentence was improper is on the
appellant. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

                Tennessee Code Annotated section 40-35-102(5) provides that only “convicted felons
committing the most severe offenses, possessing criminal histories evincing a clear disregard for the
laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first
priority regarding sentencing involving incarceration.” A defendant who does not fall within this
class of offenders and who is “an especially mitigated or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options.” Tenn.
Code Ann. § 40-35-102(6) (1997). Furthermore, “[t]he trial court must presume that a defendant
sentenced to eight years or less and not an offender for whom incarceration is a priority is subject
to alternative sentencing and that a sentence other than incarceration would result in successful
rehabilitation.” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993) (citation omitted);


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see also Tenn. Code Ann. § 40-35-303(a) (Supp. 2001). However, the presumption of alternative
sentencing may be rebutted by “evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); see also
State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). Guidance as to what constitutes “evidence to the
contrary” is found in Tennessee Code Annotated section 40-35-103(1) (1997), which provides for
confinement when:
                (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
                effective deterrence to others likely to commit similar offenses; or
                (C) [m]easures less restrictive that confinement have frequently or
                recently been applied unsuccessfully to the defendant.

               Because the appellant was convicted of Class E felonies and sentenced as a standard
Range I offender to less than eight years, the trial court properly acknowledged that the appellant was
presumed to be a favorable candidate for alternative sentencing. Nevertheless, the trial court
concluded that, in the appellant’s case, the presumption had been successfully rebutted.

                First, the trial court found confinement to be necessary to protect society by
restraining a defendant who has a long history of criminal conduct. As the trial court noted, “that’s
an understatement.” Again, this court is without the benefit of the appellant’s presentence report
and, therefore, must rely on the trial court’s findings at the sentencing hearing. After reviewing the
presentence report, the trial court exclaimed that the report was “unbelievable.” The trial court
counted twenty-three prior convictions, one of which was a felony and most of which were theft
related. The trial court stated that if the appellant were released on probation “[s]he would rip
somebody off before she made it back to Johnson City.”

                 The trial court also found confinement to be necessary because measures less
restrictive than confinement had frequently and recently been applied without success. Based on the
presentence report, the trial court concluded that the appellant had little potential for rehabilitation.
According to the trial court, “[s]he has been on probation, and on probation, and on probation, and
nothing has done anything for her - absolutely nothing.” Furthermore, the appellant apparently
committed numerous offenses while on probation for other crimes. The trial court commented, “it’s
a question of whether or not I look at rehabilitation, or whether I put her back out to prey on some
other member of this community, and that’s what she’s going to do. . . . Any form of alternative
sentencing in this case this [trial] court would be, excuse the term, an idiot.” We agree with the trial
court. The appellant has an extensive criminal history and past attempts at alternative sentencing
have had little, if any, rehabilitative effect. See State v. Richard E. McCullough, No. M2000-01154-
CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 152 (Nashville, March 2, 2001).

               The trial court further found that confinement was necessary to avoid depreciating
the seriousness of the offense. In so finding, the trial court commented, “. . . that’s true. She’s
continually committed offenses and just has done nothing whatsoever in that regard.” However, for


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this provision to apply, “‘the circumstances of the offense as committed must be especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’
and the nature of the offense must outweigh all factors favoring a sentence other than confinement.”
State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (quoting State v. Hartley, 818
S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). Again, the only evidence regarding the facts and
circumstances of the offenses are the trial court’s findings at the sentencing hearing. We are unable
to conclude from these findings that the nature and circumstances surrounding these offenses are
sufficiently violent, horrifying, or shocking so as to outweigh any factors favoring alternative
sentencing. See State v. Donald Richard Harmon, Jr., No. E2001-01506-CCA-R3-CD, 2002 Tenn.
Crim. App. LEXIS 439 (Knoxville, May 14, 2002). However, in light of the previously mentioned
factors favoring incarceration, the trial court’s application of this factor, although in error, was
harmless.

                In addition to the above factors, the trial court found two enhancement factors to
support the denial of alternative sentencing. The trial court found that the appellant “has a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range” and the appellant “has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community.” Tenn. Code Ann. §§ 40-35-114(1)
and (8) (Supp. 2001). The appellant “does not contest the presence of those factors,” but argues that
less weight should have been afforded these factors based on the appellant’s efforts at self-
rehabilitation and the fact that she has been convicted of only one prior felony. “[T]he weight to be
afforded an existing factor is left to the trial court’s discretion so long as the court complies with the
purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the
record.” State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). We conclude that the
record supports the trial court’s decision.

                 Finally, in sentencing the appellant, the trial court found one mitigating factor to be
present, i.e., the defendant’s criminal conduct neither caused nor threatened serious bodily injury.
Tenn. Code Ann. § 40-35-113(1) (1997). The appellant argues that, additionally, the trial court
should have considered the appellant’s employment with Curran Management, her participation in
the Washington County Detention Center’s A.A. program, and her “expressed sincere remorse for
her behavior” as mitigating factors pursuant to section 40-35-113(13), which provides that the trial
court may consider as a mitigating factor “[a]ny other factor consistent with the purposes of this
chapter.” Id. Even assuming that the trial court should have considered these factors as mitigating,
we conclude that they would not substantially outweigh the appellant’s lengthy criminal history and
lack of potential for rehabilitation.

                                        III. Conclusion
                Based upon the foregoing, the judgment of the trial court is affirmed.




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      ___________________________________
      NORMA McGEE OGLE, JUDGE




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