        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 21, 2007

            STATE OF TENNESSEE V. MARGIE FRANCES HAMBY

                  Direct Appeal from the Circuit Court for Blount County
                        No. C-15577    D. Kelly Thomas, Jr., Judge


                 No. E2006-01484-CCA-R3-CD - Filed September 5, 2007


A Blount County jury convicted the Defendant, Margie Frances Hamby, of attempted theft of
property valued under $500, and the trial court sentenced her to six months, with thirty days in
jail and the balance to be served on supervised probation. On appeal, the Defendant contends
that the trial court erred in not granting her full probation. We affirm the judgment of the trial
court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODALL, JJ., joined.

Mack Garner, District Public Defender, Maryville, Tennessee (at trial), J. Liddell Kirk,
Knoxville, Tennessee (on appeal), for the Appellant, Margie Frances Hamby.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Mike Flynn, District Attorney General; Rocky Young, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                           OPINION
                                            I. Facts

        In this case, the Defendant was indicted by the Blount County Grand Jury for one count
of theft of property valued under $500. At her trial, the following evidence was presented:
Jason Jones testified that he was the Food City store manager on November 11, 2004, when the
Defendant came into his store. When she first arrived, his associate advised him to monitor her
with the in-store cameras, which he did. He noticed that she was picking up items from the
shelf, placing them in her buggy, and then placing them back on the shelf. He then saw her pick
up rat poison from a shelf, pull her shirt neck down, and conceal the merchandise in her shirt.

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Jones testified that he then saw the Defendant repeat this process with another package of rat
poison. Immediately thereafter, Jones called the police.

        Jones testified that, after the officers arrived, the Defendant first went to the front of the
store, then turned and went back through the store to the ladies’ restroom, and finally went into
the restroom. Jones said that he sent a female associate into the restroom when the Defendant
exited to see if she had disposed of anything. The female associate found an empty, open
package of pantyhose in the trash can.

        Jones said that he was present when the Defendant was searched. Prior to searching her,
the police officer asked her if she had the contents of the pantyhose package, and the Defendant
said that she did not have any pantyhose with her. The officer then searched the Defendant’s
purse, where he found some pantyhose. Jones testified no packages of rat poison were ever
found on the Defendant. He explained that, after he saw the Defendant conceal the rat poison, he
did not continue to watch her with the in-store camera. There was no video of the Defendant
concealing the pantyhose.

        The videotape of the Defendant in the Food City was then played for the jury. On cross-
examination, Jones testified that he determined what item the Defendant had concealed by going
to the location where he saw her hiding the merchandise in her shirt. Jones agreed that the
Defendant did not leave the store between the time that the items were concealed and when she
was arrested.

       Officer Hank Morris testified that, when he first responded to the call from the Food City
on November 11, 2004, the manager showed him the video while another associate was
watching the Defendant. After viewing the video, the officer waited outside of the restroom for
the Defendant to exit, and he asked her to go to the manager’s office with him. There, he asked
the Defendant if she had any merchandise on her, and the Defendant said that she did not take
anything. He found pantyhose in her purse, and he compared them to the package that was
found in the bathroom to ensure that they were the same size and color as those found in her
purse. He determined that the Defendant did not have a receipt for the pantyhose.

       Based upon this evidence, the jury found the Defendant guilty of the lesser-included
offense of attempted theft of property valued under $500.

        At a sentencing hearing, the following occurred: The trial court noted that the sentencing
hearing had been set for the previous day, but the Defendant had not appeared. She was,
therefore, in custody. Further, the court noted that the Defendant’s record indicated that she had
pled guilty in July of 2004 to theft of property valued under $500, was given unsupervised
probation and diversion, and ordered to pay $20 per month toward her fine and costs. At the
time of the hearing, she still owed $546.



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        The Defendant testified that, on the day of her arrest, she was shopping in Food City with
her coupons, which she kept separated in different containers. She said that, in the process of
looking through the coupons, she would lay the items down on the counters and then pick
another up. She said that, because she has limited mobility and other health problems, she “does
peculiar things that might not seem ordinary.” She said that she did not have any pockets on her
that day so she “put things where they stay.” The Defendant testified that she never took
anything that day at the Food City. She asserted that the pantyhose that were found on her that
day were medical hose that were for keeping her legs warm and keeping the circulation working
better in her legs.

        The Defendant then explained that she only pled guilty to shoplifting in Washington
County out of convenience, and she was not in fact guilty. About missing the sentencing hearing
the previous day, the Defendant said that she appeared at court but went home because her house
was in the process of being condemned, and she was “getting physically sick” and was not able
to think straight.

        On cross-examination, the Defendant clarified that the surveillance video showed her
putting things in her shirt. She was not putting the store’s merchandise in her shirt but, rather,
she was putting the little red plastic containers that hold her coupons in her shirt.

       Based upon this evidence and the arguments of counsel, the trial court found:

               [Y]ou are guilty of attempted theft of goods valued at less than $500.
       That is a Class B misdemeanor. A six-month sentence is imposed. A $500 fine,
       as levied by the Jury, is imposed.

              I’m going to order that [the Defendant] serve . . . 30 days in the jail.
       Balance on probation. Of course, she’s eligible for the 25 percent reduction.

                In reaching this sentence, two things: Number one is a previous
       shoplifting in Washington, for which she accepts no responsibility; second thing
       is this shoplifting, which obviously is on tape, which she continues to accept no
       responsibility. She will not recognize the reality of any situation and address it
       truthfully. She is defiant, which I think is the best word to describe it. She is
       going to say and do what she wants to say and do, irrespective of what the facts
       are. And that was illustrated yesterday by coming up to the courthouse and not
       appearing for the sentencing. And I don’t think there’s anything that a probation
       officer can tell [the Defendant] to do that she would do, unless she just happened
       to want to. Anything else, she’s just going to ignore.

              And this sentence is designed to illustrate the fact that basic criminal laws
       and court orders have to be followed and to not do it, a person goes to jail.

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It is from this order that the Defendant now appeals.

                                            II. Analysis

        On appeal, the Defendant contends that the trial court erred in not granting her full
probation because the punishment in this case is not reasonably related to the seriousness of the
offense for which she was convicted in that the value of the property taken was minimal. The
Defendant was convicted of a class B misdemeanor, which carries a sentence not greater than six
months. T.C.A. § 40-35-111(e) (2003). The trial court sentenced her to six months, with thirty
days to be served in jail and the balance on supervised probation.

        When a defendant challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review of the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-
401(d) (2003). 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. Ross, 49 S.W.3d 833, 847 (Tenn. 2001); State v. Pettus, 986 S.W.2d 540, 543 (Tenn.
1999); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to
the legal conclusions reached by the trial court in sentencing a defendant or to the determinations
made by the trial court that are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d
352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo
review of a sentence, we must consider: (a) any evidence received at the trial and/or sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the arguments of counsel
relative to sentencing alternatives; (e) the nature and characteristics of the offense; (f) any
mitigating or enhancement factors; (g) any statements made by the defendant on his or her own
behalf; and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. See
T.C.A. § 40-35-210 (1997 & Supp. 2002); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim.
App. 2001). The party challenging a sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. T.C.A. § 40-35-401 (2003), Sentencing Comm’n
Cmts.

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides, in part, that the trial court shall impose a specific sentence that is consistent with
the purposes and principles of the 1989 Sentencing Reform Act. See T.C.A. § 40-35-302(b).
Although the Sentencing Reform Act typically treats misdemeanants and felons the same,
misdemeanants are not given the presumption of a minimum sentence. See State v. Seaton, 914
S.W.2d 129, 133 (Tenn. Crim. App. 1995). A separate sentencing hearing is not required in
misdemeanor sentencing, but the trial court must “allow the parties a reasonable opportunity to
be heard on the question of the length of any sentence and the manner in which the sentence is to
be served.” T.C.A. § 40-35-302(a). A misdemeanor sentence, unlike a felony sentence, has no

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sentence range. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        The trial court is allowed greater flexibility in setting misdemeanor sentences than felony
sentences. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). The trial court
should consider enhancement and mitigating factors in making its sentencing determinations;
however, unlike the felony sentencing statute, which requires the trial court to place its findings
on the record, the misdemeanor sentencing statute “merely requires the trial judge to consider
enhancement and mitigating factors when calculating the percentage of a misdemeanor sentence
to be served in confinement.” State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The
misdemeanor offender must be sentenced to an authorized determinate sentence with a
percentage of not greater than seventy-five percent to be served by the defendant before he or
she is eligible for rehabilitative programs. T.C.A. §§ 40-35-302(d). When a defendant
challenges a misdemeanor sentence, this Court conducts a de novo review with a presumption
that the trial court’s determinations are correct. T.C.A. § 40-35-401(d).

        In the case under submission, the Defendant admitted that she had previously pled guilty
to theft of property valued under $500, but she stated that she was not guilty of that offense.
Further, she testified that she was not guilty of taking any property in this case. The trial court
based its sentencing decision on the fact that the Defendant had a previous conviction and that
she accepted no responsibility for her conduct in that case or in the present case. The trial court
also found the Defendant “defiant,” and the court did not think that the Defendant would respect
or listen to her probation officer. The court, therefore, ordered some confinement to illustrate to
the Defendant that court orders must be followed. We conclude that the trial court acted within
its discretionary authority in requiring the Defendant to serve thirty days of her six-month
effective sentence in confinement.

                                         III. Conclusion

       Based on the foregoing reasoning and authority, we affirm the judgment of the trial court.



                                                           ________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




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