        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs May 21, 2002

                STATE OF TENNESSEE v. RICHARD VANOVER

              Direct Appeal from the Criminal Court for Washington County
                       No. 25701, 26392    Robert E. Cupp, Judge



                                No. E2001-01671-CCA-R3-CD
                                      August 27, 2002

Defendant pled guilty to seventeen offenses and was subsequently sentenced to fourteen years in
confinement. On appeal, defendant alleges that trial court committed error in (1) applying certain
enhancing factors, (2) denying any form of alternative sentencing, and (3) ordering consecutive
sentencing. We affirm the judgment.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
NORMA MCGEE OGLE , JJ., joined.

Frederick M. Lance, Jonesborough, Tennessee, and Kristi M. Davis, Knoxville, Tennessee, for the
appellant, Richard Vanover.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Joe C. Crumley, Jr., District Attorney General; and Steven R. Finney, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

        Defendant Richard Vanover was found guilty by a Washington County jury on seventeen
counts, to wit: nine counts of auto burglary, Class E felonies in violation of Tennessee Code
Annotated section 39-14-402; two counts of theft over $1,000, Class B felonies in violation of
Tennessee Code Annotated section 39-14-103; one count of burglary, a Class D felony in violation
of Tennessee Code Annotated section 39-14-402; one count of theft over $500, a Class E felony in
violation of Tennessee Code Annotated section 39-14-103; three counts of theft under $500, Class
A misdemeanors in violation of Tennessee Code Annotated section 39-14-103; and one count of
vandalism under $500, a Class A misdemeanor in violation of Tennessee Code Annotated section
39-14-408.
        Defendant pled guilty, on May 19, 2000, to one count of theft over $1,000, a Class B felony;
one count of non-habitation burglary, a Class D felony; one count of theft over $500, a Class E
felony; eight counts of auto burglary, Class E felonies; one count of vandalism over $500, a Class
A misdemeanor; and four counts of theft under $500, Class A misdemeanors. Defendant received
consecutive sentences of two years for burglary, two years for theft over $1,000, one year for auto
burglary, and one year for theft over $500. The sentences were ordered to be served concurrently
with seven sentences of one-year each for auto burglary, four sentences of eleven months and twenty-
nine days for theft under $500, and one sentence of eleven months and twenty-nine days for
vandalism under $500. Defendant’s effective sentence is six years. The trial court ordered defendant
released on bond without entering a final judgment until June 26, 2001.

        In a separate case, the Washington County Grand Jury indicted defendant on one count of
vandalism over $10,000, a Class C felony in violation of Tennessee Code Annotated section 39-14-
408. The offense was committed while defendant was on bond for the previous vandalism, auto
burglary, and theft convictions. Defendant pled guilty on April 16, 2001 to this charge in exchange
for a sentence of eight years, to be served consecutively to his prior sentences. The trial court denied
defendant any form of alternative sentencing and entered final judgments on June 26, 2001.

                                                Facts

        This appeal involves convictions for offenses that occurred as a result of two separate
incidents, one in April of 1999 and one in April of 2000. The evidence shows that on three nights
defendant served as a “lookout” while two other men burglarized six cars at Carpenter’s Auto Repair
in Johnson City, stealing stereos and other valuables. They also stole a car from J. Sweeney Auto
Sales in Johnson City. Defendant and the others returned to Carpenter’s Auto Repair and burglarized
a building and two other vehicles. Defendant was ultimately arrested and charged with vandalism
and various counts of burglary and theft. Defendant subsequently admitted his involvement in
committing the offenses. Though defendant was seventeen years old at the time, jurisdiction was
transferred from juvenile court to the Washington County Criminal Court where he was later
indicted.

       While defendant was released on bond, he and another underage person were using marijuana
and alcohol. While under the influence, defendant caused damages totaling $10,000 to graves and
grave markers in the historic Oak Hill Cemetery in Johnson City.

       The record reflects that while defendant was on bond, he failed drug screening tests and
refused to submit to a drug screen test.

         Testimony at the sentencing hearing reveals that approximately thirty to thirty-five
tombstones were damaged at the cemetery where defendant committed vandalism. Defendant
testified that he has had a drug problem since he was thirteen and that he had been hanging around
a group of people who were bad influences on him. He stated that he had never been in a drug



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rehabilitation program and that he needed help with his drug problem. He stated that he had
employment lined up with his father and that he was sorry for what happened.

       Defendant’s mother testified that her child had a difficult childhood but that he did not have
any problems during the period when they moved to a different part of town. She stated that if
released, defendant could live at home and that he had several job prospects.

        The presentence report shows that defendant was adjudicated delinquent in 1995 for
aggravated burglary and also shows that defendant was helpful in the investigation of the crimes for
which defendant was convicted. Lastly, it shows that defendant was in special education classes and
performs academically on a third or fourth grade level. Defendant is also willing to make restitution
in the amount of $50 to $100 a month.

                                               Analysis

        When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review of the record with a presumption that the determinations made by the
sentencing court are correct. Tenn. Code Ann. §§ 40-35-401(d), 40-35-402(d) (1997). If our review
“reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different result.” State v. Pike,
978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). On the other hand, if the trial court failed to comply with the statutory guidelines, our review
is de novo without a presumption of correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

         The defendant has the burden of establishing that the sentence is improper. Tenn. Code Ann.
§ 40-35-401(d), Sentencing Commission Comments. In determining whether the defendant has
carried this burden, this Court must consider: (a) the evidence adduced at trial and the sentencing
hearing; (b) the 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. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997).

I. Enhancement and Mitigating Factors

         Defendant alleges that the trial court misapplied enhancement factor (2) of Tennessee Code
Annotated section 40-35-114 in finding that defendant was a leader in the commission of the
offenses. The record indicates that defendant served as a “lookout” for the others involved in the
burglaries and thefts. Regarding the vandalism of the grave sites, the record supports the trial court’s
assertion that, “[Defendant] again got up with his buddies to go out and destroy one of the most
historical things that we have within this community.” Defendant did not have to be the sole leader,
just a leader. State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). The record supports
the application of this factor.


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        Defendant also contends that the trial court erred in not applying mitigating factor (4) of
Tennessee Code Annotated § 40-35-113 and again alleges that he played a minor role in the offenses.
However, for the same reasons supporting the abovementioned enhancement factor, the record does
not support the application of this mitigating factor. The trial court did not err in failing to apply this
factor.

         Defendant asserts that the trial court erred in applying enhancement factor (3) when the trial
court found that the offense of vandalism in a cemetery involved a victim. This Court has previously
stated that “victim” as used in enhancement factor (3) “is limited in scope to a person or entity that
is injured, killed, had property stolen, or had property destroyed by the perpetrator of the crime.”
State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). Such was not the case here as the
“victims” were tombstones and grave sites and those buried within the graves. In Raines, we stated
the following:
                 . . . the term does not include a person who has lost a loved one. . . Moreover,
         giving the term a generic meaning would deprecate this factor and render it
         meaningless. Every time a person is murdered, a spouse, child, parent, sibling or
         collateral relative loses a loved one. Thus, this enhancement factor would be applied
         by operation of law; and, if a serious injury was inflicted, the same would be true.
 Id. If application of this factor cannot be meant to apply when a person loses a loved one, how can
it possibly be meant to apply in a case such as this? Though this Court certainly appreciates the
sense of loss and frustration that the community of Johnson City feels in this case, we believe our
Court has spoken on the issue of the applicability of this factor. Therefore, to avoid giving the term
“victim” a generic meaning as contemplated in Raines, we conclude the trial court erred in applying
this factor. We do conclude, however, that although application of this factor was error, when
viewed in light of the remaining five applicable enhancement factors that defendant does not contest,
the error was harmless beyond reasonable doubt.

        Finally, defendant contends that the trial court erred in not applying the catchall mitigating
factor (13) and should have considered defendant’s age at the time of the offenses, education,
willingness to make restitution, and expression of remorse at the sentencing hearing. We conclude,
however, that the record is replete with evidence rebuffing defendant’s assertion that he is entitled
to mitigation. The evidence shows that defendant failed drug screens and was guilty of vandalism
over $10,000, as well as evading arrest and possession of marijuana while out on bond. The record
certainly supports the trial court’s finding that defendant demonstrated little or no potential for
rehabilitation. Further, the record shows that defendant was at times less than truthful when
testifying and speaking with his presentence investigator. Lack of truthfulness is probative on the
issue of a defendant’s potential for rehabilitation and should be considered in granting or denying
an alternative sentence. State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984); see also State v. Gennoe,
851 S.W.2d 833, 834 (Tenn. Crim. App. 1992). We affirm the trial court’s ruling with respect to
mitigating factor (13).

II. Denial of Alternative Sentencing



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       Defendant contends that the trial court erred in denying him alternative sentencing such as
probation or Community Corrections. He asserts that his sentence to total confinement is unjust.
We disagree and affirm.

        A defendant 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 in the absence
of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). In the instant case, defendant pled to Class C, D, and E felonies. He is therefore
presumed a favorable candidate for alternative sentences. However, the presumption can be rebutted
if
        (A) Confinement is necessary to protect society by restraining a defendant who has
            a long history of criminal conduct;
        (B) Confinement 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) Measures less restrictive than confinement have frequently or recently been
            applied unsuccessfully to the defendant[.]
Tenn. Code Ann. § 40-35-103(1); State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000); State v. Ashby, 823
S.W.2d 166, 170 (Tenn. 1991). Finally, in determining if a defendant is suitable for alternative
sentencing, a court should consider enhancing and mitigating factors. Tenn. Code Ann. §§ 40-35-
113, -114; Tenn. Code Ann. § 40-35-210(b)(5).

        As one option of alternative sentencing, defendant contends that he should have been placed
on probation. A defendant seeking full probation bears the burden on appeal of showing that the
sentence imposed is improper and that full probation will be in the best interest of the defendant and
the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). 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, and the need for
deterrence. State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995). The defendant’s lack of
credibility is also an appropriate consideration and reflects on a defendant’s potential for
rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). Although probation
must be considered, “the defendant is not automatically entitled to probation as a matter of law.”
Tenn. Code Ann. § 40-35-303(b), Sentencing Commission Comments; State v. Hartley, 818 S.W.2d
370, 373 (Tenn. Crim. App. 1991).

       Defendant also argues that the trial court should have allowed him to serve his sentence in
the Community Corrections Program. The Tennessee Community Corrections Act was developed
to “punish selected, nonviolent felony offenders in front-end community based alternatives to
incarceration, thereby reserving secure confinement facilities for violent felony offenders.” Tenn.
Code Ann. § 40-36-103(1). The program is available for
       (1) persons who, without this option, would be incarcerated in a correctional
            institution;



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        (2) persons who are convicted of property-related, or drug/alcohol-related felony
            offenses or other felony offenses not involving crimes against the person . . .;
        (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; [and]
        (6) persons who do not demonstrate a pattern of committing violent offenses . . . .
Id. § 40-36-106(a)(1)-(6). Those who are sentenced to incarceration or are on escape at the time of
sentencing are not eligible for the program. Id. § 40-36-106(a). No defendant has the absolute right
to be sentenced pursuant to the Community Corrections Act. State v. Taylor, 744 S.W.2d 919, 922
(Tenn. Crim. App. 1987).

        As previously noted, the evidence indicates that defendant was less than truthful in
statements to his presentence investigator and testimony to the court regarding his drug use.
Additionally, defendant’s criminal record included a felony conviction for aggravated burglary when
defendant was a juvenile. For purposes of the cemetery vandalism charges, the offenses of
vandalism, auto burglary, and thefts committed while defendant was out on bond were considered
as part of his criminal record. The record also reflects that defendant has abused drugs and alcohol.

        The court found that confinement was necessary to keep from depreciating the seriousness
of the offense - damage to numerous 100+ year-old grave markers. Indeed, the evidence reveals that
the cemetery contained the graves of the designer of the Tennessee state flag, the founder of Johnson
City, the first female mayor of Johnson City, many veterans of the Civil War, and many children.
This Court has stated that in order for alternative sentencing to be denied on the basis of the
seriousness of the offense, the circumstances 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 Hartley, 818 S.W.2d at 374) (citations
omitted)). Defendant’s actions were certainly reprehensible and shocking, and confinement is
warranted so as to both keep from depreciating the seriousness of the offense and to provide an
effective deterrent to others.

        The evidence also showed that defendant had previously committed criminal offenses while
either on probation or out on bond. Finally, application of the aforementioned enhancing factors
support the trial court’s conclusion. We affirm.

III. Consecutive Sentencing

         Defendant asserts that the trial court erred in imposing consecutive sentences. A court may
order multiple sentences to run consecutively if it finds by a preponderance of the evidence that the
defendant fits into one of the categories established in the statute. Tenn. Code Ann. § 40-35-115(b).
It is within the sound discretion of the trial court whether or not an offender should be sentenced


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consecutively or concurrently. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984).
However, as the State points out and the record indicates, the imposition of consecutive sentences
was the product of negotiated plea bargaining and not the trial court’s judgment. As such, defendant
will receive that for which he bargained. We affirm.




                                         CONCLUSION

       Accordingly, we affirm the judgment of the trial court.




                                                          ________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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