        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs October 7, 2008

                  STATE OF TENNESSEE v. TONEKA Y. REID

                    Appeal from the Circuit Court for Williamson County
                      No. II-CR012358       Timothy L. Easter, Judge



                     No. M2007-02572-CCA-R3-CD - Filed April 3, 2009


The defendant, Toneka Y. Reid, appeals as of right from her jury conviction in the Williamson
County Circuit Court of theft of property valued at five hundred dollars or less, a Class A
misdemeanor. The trial court sentenced the defendant to eleven months and twenty-nine days to be
served in jail. The defendant contends that the trial court erred in denying her motion to suppress
and in denying probation or 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. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and CAMILLE R. MCMULLEN , JJ., joined.

Dana M. Ausbrooks and David Ausbrooks, Assistant District Public Defenders, attorneys for
appellant, Toneka Y. Reid.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Derek K. Smith, Deputy District Attorney
General, attorneys for appellee, State of Tennessee.

                                           OPINION

        Franklin Police Officer Andre Davis testified that he received a call on September 28, 2006
from the Cool Springs Mall security office regarding a group of women suspected of shoplifting.
Upon arrival, he and another officer noticed five women near the Claire’s Boutique who fit the
description provided by mall security. All the women were carrying shopping bags and one woman
was carrying a purse that appeared to be stuffed with several items. When the women noticed the
officers approaching, they left Claire’s and began to walk toward the food court area of the mall.

       Officer Davis stated that he approached the defendant and asked her if “she had anything in
the bag that she shouldn’t.” He recalled that the defendant told him, “No.” With the defendant’s
consent, Officer Davis searched the Lane Bryant shopping bag to discover items from Wet Seal that
still had the tags on them. When asked, the defendant told Officer Davis that she did not have a
receipt for the items. At this point, two of the five women began making a scene by talking loudly
and using profanity, so the officers decided to move their investigation to the mall security office.


        Once at the security office, Officer Davis read the defendant her Miranda rights, and the
defendant admitted that the items in her shopping bag were stolen. He recalled that the defendant
told him that she had no job and that she made money as a “booster.” Officer Davis described a
booster as someone who takes orders from other individuals, shoplifts the items, and makes money
from the individuals’ purchase of the requested merchandise. He recalled that the defendant
indicated that her booster activities were just an “every day thing.” In addition to the merchandise
recovered from the defendant, Officer Davis also found two detailed shopping lists of orders the
defendant hoped to fill that week through her “booster” activities.

                                             ANALYSIS

                                    Denial of Motion to Suppress

        The defendant contends that the trial court erred in denying her motion to suppress based
upon her allegation that she was not properly advised of her Miranda rights prior to questioning by
the police. The State contends that the record supports the trial court’s findings that the defendant
was advised and waived her rights prior to giving her statement to the police. Following our review,
we agree with the State.

        “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Id. Both proof presented at the
suppression hearing and proof presented at trial may be considered by an appellate court in deciding
the propriety of the trial court’s ruling on a motion to suppress. State v. Henning, 975 S.W.2d 290,
299 (Tenn. 1998); State v. Perry, 13 S.W.3d 723, 737 (Tenn. Crim. App. 1999). However, the
prevailing party “is entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that may be drawn from the
evidence.” Odom, 928 S.W.2d at 23. Furthermore, an appellate court’s review of the trial court’s
application of law to the facts is conducted under a de novo standard of review. State v. Walton, 41
S.W.3d 75, 81 (Tenn. 2001) (citations omitted).

        In Miranda v. Arizona, 384 U.S. 436, 471-75, 86 S. Ct. 1602, 1626-28 (1966), the United
States Supreme Court held that a defendant’s statements made during a custodial interrogation are
inadmissible at trial unless the State establishes that the defendant was informed of his right to
remain silent and his right to counsel and that he knowingly and voluntarily waived those rights.
Whether the defendant made a voluntary, knowing, and intelligent waiver of those rights depends


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“‘upon the particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.’” Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880,
1884 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). The
waiver must be “‘made with full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.’” State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000)
(quoting State v. Stephenson, 878 S.W.2d 530, 544-45 (Tenn.1994)). The State has the burden of
proving the waiver by a preponderance of the evidence. State v. Bush, 942 S.W.2d 489, 500
(Tenn.1997).

        Officer Davis testified at the suppression hearing that when he took the defendant to the mall
security office, he advised her of her Miranda rights before questioning her any further. He stated
that she indicated that she understood her rights and agreed to speak with him. Although Officer
Davis did not recite the warnings from a written form or card, he testified regarding what he told the
defendant and the advised rights, as testified to, conformed to Miranda. The defendant never asked
for an attorney or asked to cease questioning. He explained that he did not have a written waiver
form because the questioning occurred away from the police station. On cross-examination, he
denied that the defendant asked to speak to her attorney, Ed Swinger. He did state that although the
defendant was not handcuffed, she was not free to leave once he took the women to the mall security
office.

        The defendant testified that she asked another officer if she could call Ed Swinger, her
attorney. The defendant claimed that she was handcuffed and escorted downstairs to the mall
security office. The defendant denied making any admissions to Officer Davis. On cross-
examination, the defendant claimed that she was returning a pair of jeans to exchange for a larger
size. She acknowledged that she never told Officer Davis that she wanted to speak to an attorney.
She also acknowledged that she had been convicted four times previously of theft valued at under
five hundred dollars and ten times for various other offenses. When asked for an explanation
regarding all the other items found in the Lane Bryant bag and her purse, the defendant could offer
none.

         Franklin Police Department Officer Robert B. Rose testified that he assisted Officer Davis
in the investigation. He stated that none of the women requested an attorney at any time while being
questioned. Franklin Police Department Officer Tommy Justus testified that none of the women
requested an attorney and that he never heard the name “Ed Swinger” specifically mentioned at any
time during the investigation. He further testified that if a suspect requests an attorney, an officer
must cease questioning.

        The trial court credited the testimony of the officers that the Miranda warnings were given
to the defendant prior to questioning. The trial court further found that the warnings sufficiently
advised the defendant of her rights and that the totality of the circumstances showed an
understanding, knowing and voluntary waiver of those rights. The defendant was also not unfamiliar
with the criminal justice system in light of her self-acknowledged lengthy criminal history. Based



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upon the evidence presented at the evidentiary hearing, we conclude that the evidence does not
preponderate against these findings. The defendant is denied relief on this issue.

                                  Denial of Alternative Sentencing

        The defendant also contends that the trial court erred in denying her probation or alternative
sentencing. The jury convicted the defendant of theft of property valued at less than five hundred
dollars, a Class A misdemeanor. The jury imposed a fine of $1500, which the trial court reduced to
$1000 at sentencing upon the defendant’s motion. The trial court imposed a sentence of eleven
months and twenty-nine days to be served at seventy-five percent based upon the defendant’s history
of criminal convictions and her admission that shoplifting was her profession. The trial court also
denied probation and alternative sentencing based upon the defendant’s criminal history, the
defendant’s past failed efforts at rehabilitation, the need to avoid depreciating the seriousness of the
offense, and the defendant’s admitted involvement “in a profession whose goal is to steal and sell
stolen merchandise.”

        Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides that the trial court shall impose a specific sentence consistent with the purposes and
principles of the 1989 Criminal Sentencing Reform Act. Tenn. Code Ann. § 40-35-302(b).
Misdemeanor sentencing is designed to provide the trial court with continuing jurisdiction and a
great deal of flexibility. See State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998); State v. Baker,
966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). In misdemeanor sentencing, the trial court retains
the authority to place the defendant on probation either immediately or after a time of periodic or
continuous confinement. See id. § (e).

        The record reflects that the defendant has been previously convicted of four offenses
involving the theft of property valued at five hundred dollars or less. Her criminal history also
reflects five misdemeanor assault convictions and two criminal trespass convictions. The
defendant’s probation has been revoked in the past. She admitted to the police that she did not work
because she earned money by shoplifting and selling the merchandise. The record reflects that the
trial court gave ample consideration to the purposes and principles of our sentencing act in
determining the defendant’s sentence and in denying her probation or alternative sentencing. We
conclude that the defendant’s sentence should be affirmed.

                                           CONCLUSION

       In consideration of the foregoing, the judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        D. KELLY THOMAS, JR., JUDGE




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