             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                             MAY 1998 SESSION
                                                   FILED
                                                    October 2, 1998

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )    C.C.A. NO. 02C01-9708-CC-00296
             Appellee,            )
                                  )     HENRY COUNTY
VS.                               )
                                  )     HON. JULIAN P. GUINN,
SARA LEIGHANE WISDOM,             )     JUDGE
                                  )
             Appellant.           )     (Aggravated Burglary and Theft
                                  )      (over $1,000))



FOR THE APPELLANT:                     FOR THE APPELLEE:


VICKI H. HOOVER                        JOHN KNOX WALKUP
123 N. Poplar St., Suite A             Attorney General & Reporter
Paris, TN 39242
                                       MARVIN E. CLEMENTS
                                       Asst. Attorney General
                                       John Sevier Bldg.
                                       425 Fifth Ave., North
                                       Nashville, TN 37243-0493

                                        ROBERT “GUS” RADFORD
                                        District Attorney General

                                        TODD A. ROSE
                                        Asst. District Attorney General
                                        P.O. Box 686
                                        Huntingdon, TN 38344




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              Following a jury trial in March 1997, the defendant was convicted of one

count of aggravated burglary, which is a Class C felony, and one count of theft of property

over one thousand dollars ($1,000), which is a Class D felony. The jury assessed a fine

of five thousand dollars ($5,000) for the burglary conviction and a fine of three thousand

dollars ($3,000) for the theft conviction. The trial court sentenced the defendant to three

years for the aggravated burglary conviction, one year in confinement and the balance

on Community Corrections. For the theft conviction, the defendant was sentenced to two

years, one year in continuous confinement and the balance on Community Corrections.

The sentences were ordered to run concurrently with one another.



              On appeal, the defendant argues that the trial court erred in ordering her

to serve an excessive sentence; that the trial court erred in denying a sentence alternative

to confinement; that the trial court erred in allowing the district attorney to question her

about a past misdemeanor record she claims has been expunged; and that the trial court

erred in failing to grant her a judgment of acquittal. After a careful review of the record,

we affirm the defendant’s convictions and sentences.



              Roy Futrell returned home from work on June 21, 1996, to discover that

someone had broken into his residence and stolen many of his personal belongings,

primarily his guns. Mr. Futrell called the Henry County Sheriff’s Department and William

Vandiver, an investigator with that department, came to his home where he gave

Vandiver an inventory of the items taken.



              Steven Wisdom, the defendant’s husband at the time, and Glen Axley,

Steven Wisdom’s friend, discussed before the burglary how they needed extra money,

so they decided to break into the Futrell home. Steven Wisdom had dated Mr. Futrell’s

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stepdaughter and had previously been inside the home. The defendant had worked with

Mr. Futrell and had known his stepdaughter as well. Consequently, they knew that there

were guns inside the home and what hours Mr. Futrell worked.



              As her husband and Axley went inside the home to get the belongings, the

defendant drove the car and parked it out of the sight of passersby. When the two had

gotten the property, the defendant pulled up to the residence to pick them up and then

drove to outside Paris, Tennessee. Mr. Wisdom then drove the car to their home in

Henry County.



              The two men decided to pawn the guns. According to the testimony of one

of the pawn shop owners, the defendant and her husband came to his pawn shop in

Martin, Tennessee, and pawned two guns. The three split the money, but Mr. Wisdom

testified that he kept the defendant’s share of the money.      They then went to Dover,

Tennessee, where Axley pawned another gun and split the proceeds with the defendant

and her husband. They then traveled to Clarksville, Tennessee, where they went out to

eat with the money, and the defendant and her husband each used some of the money

to get tattoos. The guns that were pawned in Martin and Dover were later recovered.



              The defendant voluntarily spoke with the Benton County Sheriff’s

Department, confessed her role in the crimes, and implicated her codefendants in the

crimes. At trial, the defendant testified that she was forced by her husband to participate

in the crimes. She also testified that she was afraid of her husband and that he had been

violent with her in the past.



              Before addressing the issues before us, we are compelled to address what

we consider an inadequate brief from defense counsel. The defendant’s one- and one-

half-page brief is almost identical to another brief filed in this Court by defense counsel.

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This probably explains why defense counsel was incorrect in her assertion in the case

sub judice that the sentencing of the defendant occurred immediately after the trial: that

was correct in the other case in which counsel filed a brief with this Court. In the instant

case, the record reflects the trial was held on March 24, 1997, and the sentencing hearing

on April 9, 1997, sixteen days later. Moreover, the defendant’s brief states that there are

four issues on appeal, but then lumps these four issues into two scant sections, without

any reference to the record, hardly any citations to authority, and an incorrect statement

regarding sentencing. Although we have held that a defendant’s failure to adequately

brief issues resulted in waiver of those issues, we will, in this case, address the issues

before us. However, we admonish defense counsel for the inadequate brief filed in this

Court.



              Because the defendant’s first two issues relate to sentencing, we will

address those together. The defendant contends that her sentence is excessive and that

the trial court erred by not considering an alternative sentence such as probation. She

also claims that the trial court “refused to allow counsel to prepare for a sentencing

hearing, which the Trial Judge conducted immediately after the conclusion of the trial.”



              When a defendant 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. T.C.A. § 40-35-401(d). However, this

presumption is conditioned on an affirmative indication 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).



              The defendant bears the burden of showing that the sentence was

improper. Id. In determining whether the defendant has met this burden, this Court must

consider (a) the evidence adduced at trial and the sentencing hearing; (b) the

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presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the

nature and characteristics of the offense; and (f) the defendant’s potential or lack of

potential for rehabilitation or treatment. T.C.A. §§ 40-35-103(5), 40-35-210(b).



              The defendant insists that she should have received probation. However,

we note that although the trial court found the defendant to be entitled to the presumption

of alternative sentencing, she, not the State, has the burden of establishing suitability for

full probation. T.C.A. § 40-35-303(b). To meet this burden, the defendant must illustrate

how probation will “subserve the ends of justice and the best interest of both the public

and the defendant.” State v. Bingham, 910 S.W.2d 448, 456 (quoting State v. Dykes, 803

S.W.2d 250, 259 (Tenn. Crim. App. 1990)).



              The trial court sentenced the defendant to the minimum sentence for both

the aggravated burglary conviction and the theft conviction. Although the trial court

recognized that the defendant was presumed to be a favorable candidate for alternative

sentencing, it concluded that split confinement would be in the best interest of not only

the public but also the defendant. The trial court based its decision to impose split

confinement on several factors, including the circumstances of the offense, the

defendant’s willingness to lie, and her failure to accept responsibility for her actions. The

trial court’s decision to impose split confinement was also based on its desire to provide

a deterrence and to avoid depreciating the seriousness of the crimes committed.



              For a trial court to deny an alternative sentence based on the seriousness

of the offense, the circumstances of the offense “‘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.” Bingham, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S.W.2d 370,

374-75 (Tenn. Crim. App. 1991)). The trial court’s denial of an alternative sentence

                                             5
based on the seriousness of the offense under T.C.A. § 40-35-103(1)(B), can only be

upheld if the Hartley conditions are in the record. Here, the trial court reasoned that the

offense in this case was serious because guns were stolen. Although we agree that the

theft of guns is serious, the record does not indicate that the Hartley conditions are met

in this case.



                The other factors relied upon by the trial court, however, fully support the

sentences imposed in this case. The trial court observed that the defendant “exhibit[ed]

an arrogant willingness to tell anything any way which seem[ed] to best benefit her at the

moment,” referring to the confusion regarding the defendant’s theft conviction in Benton

County, which the defendant contends had been expunged. As the district attorney and

the trial court noted, however, nothing in the record indicated that the conviction had

actually been expunged. The trial court relied even more heavily on the fact that the

defendant remained unable to take responsibility for her actions in committing the instant

crimes. This finding, which is supported by the record, has bearing on the rehabilitative

potential of the defendant. Moreover, under the circumstances of this case, we agree

with the trial court that the theft of guns is a serious offense, that confinement would

provide a deterrence, and that some period of confinement is necessary to avoid

depreciating the seriousness of the offenses committed by the defendant. Accordingly,

the defendant’s sentences are affirmed.



                Next, the defendant argues that the trial court erred in allowing the district

attorney to question her about her prior criminal history. She argues that her past

misdemeanor record had been expunged so the district attorney should not have

questioned her during trial about that prior conviction. She further insists that the trial

court’s manner toward her was prejudicial and harsh.



                The record indicates that approximately a month before the trial, the district

                                               6
attorney filed notice of his intent to use the Benton County theft conviction to impeach the

defendant should she testify. The record also indicates that defense counsel referred to

the Benton County theft conviction herself during her opening statement to the jury:

“[W]hile she [the defendant] was in jail, awaiting a hearing in Benton County, which you’ll

also hear testimony of that, she was later--her charge was dismissed and her record was

expunged in Benton County.” Furthermore, counsel refers to the defendant’s prior charge

in Benton County at several other times during her examination of witnesses. The

defendant “opened the door” regarding the theft conviction in Benton County, so she

cannot now complain that the State questioned her about that conviction. Moreover, the

record is devoid of evidence that the trial court treated her in a harsh or prejudicial

manner. The defendant’s arguments on this point lack merit.



              Our last issue for review is whether the trial court erred by denying her

motion for a judgment of acquittal. A person commits aggravated burglary by entering

a habitation without the consent of the property owner, but with the intent of committing

a felony, theft, or assault. T.C.A. §§ 39-14-402(a)(1), 39-14-403(a). A person commits

theft of property if he or she knowingly obtains or exercises control over the property

without the owner’s effective consent, but with the intent to deprive the owner of property.

T.C.A. § 39-14-103.



              The defendant argued at trial that she waited in the car and never entered

Mr. Futrell’s home. In the indictment, the defendant was charged as a codefendant.

Later, the district attorney filed notice for a jury instruction to be given for criminal

responsibility for conduct of another. Sufficient notice of criminal liability based upon the

conduct of another was satisfied. See State v. Barnes, 954 S.W.2d 760 (Tenn. Crim.

App. 1997).



              Moreover, the evidence adduced at trial indicates that the defendant drove

                                             7
her codefendants to Mr. Futrell’s home and waited, out of sight, while they removed Mr.

Futrell’s possessions from his home without his permission. The defendant then drove

them from the scene, accompanied her two codefendants to at least one pawn shop, and

obtained a one-third share of the money received for the stolen goods, which she used

to treat herself to a dinner and a tattoo. This evidence, when viewed in the light most

favorable to the State, is sufficient to affirm the defendant’s convictions. See, e.g., State

v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874 S.W.2d 73, 78

(Tenn. Crim. App. 1993).



              Accordingly, the defendant’s convictions and sentences are affirmed.




                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
PAUL G. SUMMERS, Judge




______________________________
THOMAS T. W OODALL, Judge




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