         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                       May 2000 Session

                    STATE OF TENNESSEE v. JEREMY JONES

                 Direct Appeal from the Criminal Court for Greene County
                   No. 99CR034     James Edward Beckner, Trial Judge



                                 No. E1999-02207-CCA-R3-CD
                                       August 23, 2000

The defendant appeals his conviction and sentence for theft of property, asserting that insufficient
evidence supported the verdict and that the trial court erroneously sentenced him to three years of
incarceration. We affirm the conviction and modify the sentence to two years of incarceration.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ALAN E. GLENN, JJ., joined.

Douglas L. Payne, Greeneville, Tennessee, for the appellant, Jeremy Jones.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and Eric D. Christiansen, Assistant District Attorney,
for the appellee, State of Tennessee.


                                            OPINION


                                           Introduction

        The defendant, Jeremy Jones, was convicted in the Greene County Criminal Court of theft
of property valued between $1000 and $10,000. Conceding that the property in question, a truck,
was stolen, he argues that the evidence establishes neither his participating in the theft nor his
knowing that the truck was stolen at any time prior to his arrest. Further, he asserts that the trial
court erred in sentencing him to three years of incarceration. After careful review, we affirm the
conviction and modify the sentence to two years.
                                                Background

        From the jury verdict of guilty, we review the facts in a light most favorable to the state.
When the victim, Terry McAmis, identified his stolen truck in a parking lot, he confronted the
operator of the vehicle and contacted the local police department. The subsequent investigation
established that the vehicle had altered vehicle identification numbers (VINs) and had been the
subject of a “title swap” involving a similar, but salvaged, vehicle. Although the defendant
maintained that he was an innocent purchaser, the jury rejected his testimony as well as testimony
from the co-defendant. After conviction, the trial court denied the defendant’s requested minimum
two-year alternative sentence and instead imposed three years of incarceration.


                                              Trial Testimony

        The victim testified that when he went outside on the morning of December 18, 1998, his
1987 Toyota 4x4 truck was gone. He reported the theft to the Greene County Sheriff’s Department.
At trial, the victim valued his truck between $7000 and $7500. Through his testimony, the state
entered a certificate of registration for the vehicle.

        On December 28, 1998, the victim saw a red Toyota truck at the Honda Shop parking lot.
He entered the lot and recognized rust spots on the vehicle, including one that he had repaired with
body filler. He confronted the two occupants, and the three entered the shop.1 Josephine Nicholetta
Shelton, working at the shop, called the police, and she testified that the defendant placed a call for
a Brad, advising Brad that “you might come and get me out.”

        Several officers responded. Officer Roger Self testified that the defendant first claimed that
he owned the license tag on the vehicle, then stated that the seller of the truck had given the tag to
him. Officer Alan Dotson testified that Jones correctly described certain peculiarities of the vehicle;
specifically, coins and two Pioneer radio knobs in the ashtray. Dotson said the license plate on the
vehicle was registered to a 1987 Buick owned by a Brian Webb.

        Detective Sergeant Don Jones noticed VIN alterations. He testified that recent vehicle
models had both public and secured VINs. Public VINs are in plain view or may be easily found
on a dashboard or inside the door frame. Secure VINs are less obvious and may be found in such
areas as the engine and frame crossbeams. He found an unaltered VIN at the cross brace between
the grill and the radiator of the vehicle.

        Greeneville Police Department Detective Sergeant Terry Cannon also responded to the
Honda Shop. He testified that the column of the vehicle had been broken off and the switch
“puttied” back in. Cannon refused the defendant’s request to take the license plate. Officer Self
showed Cannon a knife taken from the occupants, a pocketknife with a “clip” for securing to one’s


       1
           One occupant was a Mr. Inman, who apparently had no further involvement material to this opinion.

                                                      -2-
pocket, and the defendant claimed the pocketknife. However, approximately fifteen minutes after
the defendant left the officers, the plate was gone. A pocketknife, apparently the one returned to the
defendant, was on the truck bumper.

        Cannon further described his conversation with the defendant. The defendant said that on
December 28, 1998, that very day, someone at a local health club approached him and asked if he
wanted to buy a truck. The defendant first declined to identify the seller, then said his name was
Chris, a tall blonde male who trained at the fitness center. The defendant told Cannon that he was
going to seek a loan for the truck the next day at the bank. During this conversation, he admitted that
he had borrowed the license plate from Brian Webb.

       Like Officer Jones, Cannon noted various alterations and inconsistencies on the VINs
throughout the truck. Some secured VINs matched the records for the stolen truck. Cannon
concluded that the truck was, in fact, the one reported as stolen by McAmis.

        Glenn Strange of Strange Auto Parts, a salvage yard, provided testimony regarding the origin
of the altered VINs. He testified that on December 3, 1998, he received a deposit for a Toyota
Forerunner and a Toyota pickup. By February 4, he had received payment in full, except for the
sales tax, which was paid the next day. Strange stated that his records indicated Brad Webb made
the payments and that the vehicles were transferred to Webb.

        Cannon, seeking to “close the gap” between the stolen truck and the source for the altered
VINs, told the defendant that he needed paperwork in the owner’s name to release the vehicle. On
January 5, 1999, the defendant and Brad Webb came to the station with a title in Webb’s name.
Webb, was, of course, not named “Chris” and did not match the original description given by the
defendant. The title he presented was from one of the salvaged trucks. At that point, both men were
arrested.

        Webb2 testified for the defendant and admitted his pending guilty plea for the theft. He stated
that he offered the vehicle without telling the defendant that it was stolen. Webb testified that he
decided to steal a vehicle roughly matching that of the salvaged truck after he purchased the two
vehicles from Strange’s salvage business. Although he did not remember stealing the truck, he did
remember cutting out the VINs and welding others onto the stolen truck frame. He did not recall
going to the salvage yard on January 4, 1999, but he did remember going to the yard the next day
with the defendant.

        The defendant testified that he received the truck from Webb on or up to three days before
Christmas. He denied accompanying Webb to the salvage yard and emphatically denied having any
knowledge or indication that the truck was stolen. He did not remember telling Cannon that he got
the truck on December 28, 1999. He stated that he took the license plate from the truck because he
did not remember Cannon saying that he couldn’t. He did admit telling Cannon about Chris, the


       2
           At trial, the testimony established that Bradley and Brian Web b are brothers.

                                                         -3-
fictitious seller. He also recalled asking officers at the Honda Shop if the numbers on the truck were
wrong and removing the tag with his pocketknife.

        After the jury returned a guilty verdict, the court conducted a sentencing hearing. The
defendant had been arrested on August 12, 1998, for simple possession of cocaine and for possession
of more than .5 grams of cocaine for resale. The twenty-year old defendant’s prior conviction record
consisted of a Class C and a Class B misdemeanor, both traffic offenses, both dismissed after a fine
or driving school. The trial court placed great weight on the defendant’s status as a leader in the
offense and lesser weight on the defendant’s prior criminal record. In mitigation, the trial court
found that the crime did not threaten serious bodily harm or death.

       The trial court denied alternative sentencing because the defendant committed the crime
while on bond, indicating that he was not amenable to rehabilitation. The trial court also noted the
defendant was untruthful because his testimony was rejected by the jury. Finally, the trial court also
noted a need for deterrence.


                                                Analysis


                                       Sufficiency of Evidence

        The defendant appeals the sufficiency of the evidence supporting the jury verdict against him
for theft of property greater than $1000 but less than $10,000 in value, a Class D felony. See Tenn.
Code Ann. § 39-14-103. When a defendant challenges the sufficiency of the evidence, this Court
must determine whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.
1985); Tenn. R. App. P. 13(e). The appellee is entitled to the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn therefrom. See State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).

        The credibility of witnesses, the weight of their testimony, and the reconciliation of conflicts
in the evidence are matters entrusted exclusively to the trier of fact. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury
verdict for the state accredits the testimony of the state’s witnesses and resolves all conflicts in favor
of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty verdict
removes the presumption of innocence enjoyed by defendants at trial and replaces it with a
presumption of guilt. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant
challenging the sufficiency of the evidence carries the burden of illustrating to this Court why the
evidence is insufficient to support the verdict. See State v. Freeman, 943 S.W.2d 25, 29 (Tenn.
Crim. App. 1996).



                                                   -4-
         The defendant was convicted of theft of property: “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. Since the
uncontroverted trial testimony established that the truck was worth between $7000 and $7500, the
theft is graded as a Class D felony. See Tenn. Code Ann. § 39-14-105(3).

        The evidence clearly established that the defendant was in possession of a stolen vehicle.
“The unexplained possession of recently stolen property gives rise to the inference, in light of the
surrounding circumstances, that the person in possession knew that the property was stolen.” State
v. Anderson, 738 S.W.2d 200, 202 (Tenn. Crim. App. 1987). The greater the time interval between
the theft and the discovery of the property in an accused’s possession, the weaker the inference of
criminality. See id. The evaluation of a time interval depends on all the facts and circumstances of
the case, and, intuitively, greater intervals increase the likelihood that stolen property was transferred
to an innocent party. See id.

        Our state’s Supreme Court discussed this inference and clarified its application to cases
involving convictions for larceny in Bush v. State, 541 S.W.2d 391 (Tenn. 1976). In Bush, three
defendants were convicted of second degree burglary. Id. Defendant Marvin Bush’s fingerprints
were recovered from the firearms, and Bush’s girlfriend testified that Jerry Bolton, another
defendant, arrived at her residence around the time of the burglary, advised Bush that he had
obtained some guns, and procured transportation to town from Bush. See id. at 393. Bush returned
alone, and she then accompanied Bush back to town. Bush, Bolton, Billy Walker, and Shadrack
Dean, the third defendant, assembled around the open trunk of Dean’s car at Walker’s café. See id.
at 393. An investigator recovered the guns from Walker, who testified that Bush and Dean brought
the guns to him and sold them to him. See id. at 394.

       The Supreme Court opinion reiterated “the generally approved rule that proof of possession
of recently stolen goods gives rise to the inference that the possessor has stolen them,” even if
possession is the sole basis for conviction and is “‘rebutted by evidence that is not patently false’”
or “‘explained in a credible fashion.’” Id. (citations omitted). The presumption may survive
contradictory evidence, “even the positive testimony of witnesses.” Id. at 395-96 (citing Barnes v.
United States, 93 S. Ct. 2357, 2362 (1973)).

        Conversely, the possession alone does not “raise[ ] a conclusive presumption of guilt” but
rather an inference on a continuum, from near certainty to questionable likelihood of guilt. See id.
at 396. The accompanying facts determine the locus on this continuum. See id.3

         In the instant case, the defendant was found in possession of a stolen vehicle ten days after
its theft. Cf. Peek v. State, 375 S.W.2d 863, 864-65 (Tenn. 1964) (The presumption sufficiently
supported a theft conviction when the defendant possessed a car seven days after it was stolen.). In


        3
              In Bush , the convictions were reversed and remanded to the trial court because of an improper jury
instruction , which im properly asserted tha t the inferen ce itself establish ed guilt. See id. at 398.

                                                      -5-
the instant case we also note suspicious circumstances that tend to establish the defendant’s guilt:
the defendant’s initial fabrication as to the origin of the vehicle and his persistence in recovering the
incriminating license tag. Cf. Anderson, 738 S.W.2d at 204. We further note testimony, by the
defendant’s own witness, that the defendant was in his company to complete purchase of the
salvaged vehicles. Cf. State v. Land, 681 S.W.2d 589, 590, 592 (Tenn. Crim. App. 1984) (The
defendant asserted that a boat in his possession was his and was subsequently convicted of grand
larceny.).

       The defendant offered an explanation for his possession, asserting ignorance that the vehicle
was stolen. Webb also testified that the defendant did not know that the vehicle was stolen. “The
reasonableness of an explanation offered by one found in possession of recently stolen property is
primarily a question for the jury to determine from all the evidence, the fact that possession being
usually but one item of proof.” Cameron v. State, 546 S.W.2d 261, 263 (Tenn. Crim. App. 1976).
The jury determines the weight and credibility of a proferred alibi. See State v. Gautney, 607 S.W.
2d 907, 909 (Tenn. Crim. App. 1980); Smith v. State, 566 S.W.2d 553 (Tenn. Crim. App. 1978);
Smith v. State, 451 S.W.2d 716, 718 (Tenn. Crim. App. 1969).

        The jury, not this Court, hears and views the witnesses as they testify, and that body is
entrusted with the evaluation of the evidence and the credibility of the witnesses. In the instant case,
that body rejected the defendant’s explanations and convicted him as charged. The evidence
established the value of the property, that it had been stolen from the owner ten days before the
defendant had possession of the property, and that the defendant was untruthful and secretive with
the investigators regarding that possession. We conclude that the evidence was sufficient to satisfy
the elements of the statute.


                                              Sentencing

        The defendant asserts that the trial court misapplied enhancement factors and erroneously
imposing incarceration rather than an alternative sentence. When a defendant challenges the length
or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the
record “with a presumption that the determinations made by the court from which the appeal is taken
are correct.” Tenn. Code Ann. § 40-35-401(d). 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). We review
this sentence de novo, for reasons discussed below.


                                 Enhancing and mitigating factors

        The trial court applied two statutory enhancement factors:
        The defendant has a previous history of criminal convictions or criminal behavior in
        addition to those necessary to establish the appropriate range; [and]. . . The defendant


                                                  -6-
       was a leader in the commission of an offense involving two (2) or more criminal
       actors[.]
Tenn. Code Ann. § 40-35-114(1), -(2).4 Then, that court applied one mitigating factor, “[t]hat the
defendant’s conduct neither caused nor threatened serious bodily injury.” Tenn. Code Ann. § 40-35-
113(1). From the presumptive minimum sentence of two years for a Range I standard offender on
a Class D felony conviction, see Tenn. Code Ann. §§ 40-35-133(a)(4), -210(c), the trial court
imposed a three-year sentence, one year below the maximum four-year sentence.

        We do not find that the record supports a conclusion that the defendant was a leader in the
offense, see, e.g., State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993) (“Both of two
criminal actors may be a leader in the commission of an offense.”)(citations omitted), although we
reject the defendant’s assertion that “quite to the contrary, the evidence clearly showed that Brad
Webb was solely responsible for the theft.” Regarding the prior criminal history, the defendant had
been convicted of speeding and reckless driving, Class B and Class C misdemeanors, that were
dismissed after the defendant paid a fine on one conviction and completed a driving school on the
other. Some weight was properly afforded to these misdemeanor convictions. See State v. Ray
Charles Gasaway, No. 01C01-9703-CR-00101 (Tenn. Crim. App. filed March 24, 1998, at
Nashville).5

        On our de novo review, we grant little weight to mitigation factor (1). Authority supports
the proposition that the factor is inherent in every theft, contrasted with burglaries, such that lack of
threat to life or limb in a specific case is not especially noteworthy, see State v. Charles Chesteen,
No. E1999-00910-CCA-R3-CD (Tenn. Crim. App. filed June 8, 2000, at Knoxville); State v. Joel
Guilds, No. 01C01-9703-CC-00112 (Tenn. Crim. App. filed May 27, 1998, at Nashville), although
these cases regarded embezzlement or similar offenses outside the instant context of nocturnal theft
from outside a residence.

        In conclusion, enhancement factor (1) and mitigation factor (1) remain, and, granting both
factors little weight, we impose the minimum sentence of two years.


                                    Alternative sentence versus incarceration

       The defendant asserts that he should have received alternative sentencing and not
incarceration. In support of his argument, the defendant cites his prior employment, although he was
unemployed at sentencing, and claims he has a history devoid of drug abuse or psychiatric problems.


         4
            Although the defendant’s brief asserts that the trial court enhanced the sentence in part because he committed
the instant offen se while o n bond , that court ac know ledged th at the bon ded status w as not a statutorily enumerated factor
and reserved that concern for determining the nature and not the length of sentence.
         5
            The trial co urt prop erly declin ed to con sider the na rcotics arrests as bases for enhancement factor (1). See
State v. Miller, 674 S.W.2d 279, 284 (Tenn. 1984); State v. Bu ckme ir, 902 S.W.2d 418, 424 (Tenn. Crim. Ap p. 1995).



                                                              -7-
To merit the statutory presumption for alternative sentencing provided in Tennessee Code Annotated
§ 40-35-102(6), a defendant must (1) be an especially mitigated or a standard offender; (2) be
convicted of a Class C, D, or E felony; and (3) not possess a “criminal histor[y] evincing a clear
disregard for the laws and morals of society” or “evincing failure of past efforts at rehabilitation[.]”
See Tenn. Code Ann. § 40-35-102(5), -(6). A Class D felony standard offender and not an offender
classified by the statutes as a priority for incarceration, the defendant is “presumed to be a favorable
candidate for alternative sentencing options.” Tenn. Code Ann. § 40-35-102(6).

        Although we must therefore consider probation, “the defendant is not automatically entitled
to probation as a matter of law.” See Tenn. Code Ann. § 40-35-303(b) sentencing comm’n
comments; State v. Harley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). To implement the
purposes of the Criminal Sentencing Reform Act of 1989, we consider whether (1) incarceration is
necessary to protect the public from an offender with a long history of criminal conduct; (2)
incarceration “is necessary to avoid depreciating the seriousness of the offense” or “is particularly
suited to provide an effective deterrence to others likely to commit similar offenses”; and, (3)
“[m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully
to the defendant[.]” Tenn. Code Ann. § 40-35-103 (1)(B)-(C). Although two factors were
improperly applied, we agree with the trial court’s finding sufficient evidence to defeat the
presumption favoring alternative sentencing.

        Regarding deterrence, the “evidence in the record must support a need to deter individuals
other than the appellant from committing similar crimes.” State v. Zeolia, 928 S.W.2d 457, 461
(Tenn. Crim. App. 1996). Any incarceration implies some degree of deterrence, see State v. Davis,
940 S.W.2d 558, 560 (Tenn. 1997), and the trial court’s findings regarding any particular deterrent
effect of incarceration on theft crimes were, at best, limited: “The theft offense being the number one
offense committed in this district or anywhere else in the United States or the world, I guess, it is
important in sentencing to deter.” Confinement for deterrence’s sake, however, must be based on
specific findings, and conclusory determinations are insufficient. See State v. Ashby, 823 S.W.2d
166, 170 (Tenn. 1991). We conclude that the record does not establish the required specificity, and
this factor was not a valid basis for incarceration in the instant case.

         The trial court also found that “the jury had to find that you testified falsely under oath and
that you did so blatantly and that is a factor for denying probation and alternative sentencing.” The
trial judge is in the position of a thirteenth juror, evaluating witness credibility from a first-hand
perspective. Further, the trial courts should consider evidence from trial and a defendant’s potential
for rehabilitation, as noted in our recitation of the standard of review, and candor, remorse, and
credibility are proper considerations as they reflect on the potential for rehabilitation. See Tenn.
Code Ann. § 40-35-103(5); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Dowdy, 894
S.W.2d 301, 306 (Tenn. Crim. App. 1994). A defendant’s lack of candor during testimony may be
considered by the trial court in determining eligibility for alternative sentencing. See State v.
Neeley, 678 S.W.2d 48, 49 (Tenn. 1984); State v. Jenkins, 733 S.W.2d 528, 535 (Tenn. Crim. App.
1987).



                                                  -8-
         Regarding success of recent measures less restrictive than confinement, the trial court
concluded that the defendant committed the instant offense while on bond for two narcotics
violations, one a Schedule II possession for resale that carried a possible Class B felony offense
penalty. We agree that the defendant was the unsuccessful recipient of a recently imposed measure
less restrictive than incarceration and that confinement, in lieu of alternative sentencing, is therefore
appropriate. See, e.g., State v. David Carl Orr, No. W1998-00010-CCA-R3-CD (Tenn. Crim. App.
filed May 19, 2000, at Jackson); State v. Kenneth A. Price, No. 01C01-9310-CC-00338 (Tenn. Crim.
App. filed April 28, 1994, at Nashville) (decisions considering bond status at time of offense as basis
for denying alternative sentencing, albeit in conjunction with other considerations). A defendant
who commits a felony theft while on bond for two Schedule II narcotics offenses demonstrates that
he is not a likely candidate for a successful rehabilitation.

        The defendant’s argument for alternative sentencing addresses Community Corrections and
cites State v. Ball, 973 S.W.2d 288, 295 (Tenn. Crim. App. 1998). Although the instant case shares
some similarities with Ball, that reported opinion makes no mention of any bonded status of the
offender in that case, a significant difference in circumstances. We conclude that the trial court
properly denied alternative sentencing.


                                           CONCLUSION

        We affirm the conviction and modify the sentence to two years.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




                                                  -9-
