### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 6, 2001 Sessi

on
STATE OF TENNESSEE v. JEREMY M ICHAEL SHELTON
Direct Appeal from the Circuit Court for Henry County

No. 12888 Julian P. Guinn, Judge

No. W2000-00457-CCA-R3-CD - Filed July 20, 2001

The defendant, Jeremy Michael Shelton, was convicted of theft of property over $10,000. The trial court im posed a three -year sentence. One y ear is to be served in continuous confinement and the remaining two years are to be served in Community Corre ctions. In this ap peal of right , the defendan t argue s that the evidence was insufficient and that the sentence is excessive. The conviction is affirmed. The judgment is modified, however, to reflect that the confinement portion of the split sentenc

e is to be served in

the local jail.
Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed as M

odified.

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W E LLES and N ORMA M C G EE O GLE , JJ., joined.
Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Jeremy Michael Shelton.

Paul G. Summers, Attorney General & Reporter; J. Ross Dye r, Assistant

Att orn ey G eneral; and Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On the morning of January 6, 1999, employees of Joe Mahan Ford in Paris discovered that
a 1996 Chevrolet Monte Carlo valued at $14,000 was missing fr om their used car lot. The dealership's policy with regard to used cars w as for employees to place the keys in

the ignitions in the morning and

then secure the vehicles in the evening. A pproximately o

ne week before

the theft, employees were unable to f ind the keys t

o the Monte

Carlo. In consequence, the vehicle was secured for several day

s before it was returned to the lot for display. According to the sales manag er, Larry Mahan, the defendant had visited the used car lot shortly before the Monte Carlo's keys disappeared. At the time of trial, Mahan di d not remember whether the defendant test drove the Monte Carlo, however, and stated that any test driving logs from that time period would have been destroyed.-2-

Mark Andrew Gottsacker, who described himself and the defendant

as "best friends" at the time of the theft, testifiedthat at approximately 1:00 a.m. on January 6, 1999, he accompanied the defendant,

who was driving his 1993 Nissan, to the Joe Mahan Ford used car lot. Gottsacker stated that the defendant ha

nded him the key

s to the Monte Carlo, explaining that he had kept them after test driving the car earlier. Gottsacker testified that he unlocked the car by remote but that he and the defendant drove away beca use the y saw some people in a parking lot across the street. He recalled that he and the d efendant then exchanged seats and that when they re turned to the dealership, the defendant exited the passenger side of the Nissan, entered the Monte Carlo, and drove the ca r to a field owned by

Tri-Turf Sod, whe

re both men had pr

eviously wor

ked. According

to Gottsacker, he and the defendant had obtained a license plate the day before from a disabled vehicl

e ownedby Judy Hollingsworth, Gottsacker's fianc ee. The defendan t placed the tag on the Monte Carlo and left the car

in the garage

of an empty h

ouseowned by Ms . Hollingsworth. Gottsacker testified that two days later, he and the defendant drove the Monte Car lo to Eva Beach. He remembered

that at that time, the defendant removed the "Crazy Play

a" vanity l icense plate fr

om his Nissan and placed it on the front of the Monte Carlo.

Gottsacker

testified that shortly thereafter, he and the defendant made the decision to drive to Wisconsin to see his mother. Judy Hollingsworth and Heidi Engleman, the defendant's girlfr iend,
were also included in the trip. The group left at approximately 7:00 p.m. on January 8. Gottsacker and the defendant e

xplained to the two wo

men that they

were test- driv ing the Monte Carlo. Gottsacker

testified that he d

rove the Monte Car

lo for almost all

of the trip and that he initially took back roads to Paducah, Kentucky, before driving onto

the interstate. On January 10, as Gottsacker, the defendant, and Ms. Hollingsworth were en route to pick up Ms. Engleman and leave Wisconsin, they were stopped by

a state trooper. Gottsacker acknowledged having pled guilty to theft arising outof the incident and having received a Range I se ntence of four years, wi th 120 days in confinement

and the balance in Community Corrections. He also acknowledged that he ha d previously been convicted of two theft charges, burg lary, and sale of marijuana.
Judy Hollingsworth testified that she first saw the 1996 Monte Carlo on the evening that she, Gottsacker, the defendant, and Ms. Engleman decided to travel to Wisconsin. When she asked about the car, the defen

dant and Gottsack

er told her that they we

re borrowing it

from a friend, Chr

is Fields. Ms. Hollingsworth re

called that Gottsa

cker drove the v

ehicle initially

and that they took back roads through Tennessee. She r ecalled observi

ng that the inter

ior of the Monte

Carlo was very

clean and the defendant and G

ottsacker respo

nding that the ve

hicle had been detailed. When Ms. Engleman inquired about a paper floor mat under the front passenger seat, the defendant and

Gottsacker replied that it had been left there when the car had been detailed. Ms. Hollingsworth testified that when the group stopped at a conve

nience store in I

llinois, she and Ms. Engleman identified the license plate
on the Monte Carlo

as one previously belonging to Ms. Engleman. She recalled that the defendant and Gottsacker thenexplained that they were test-driving the car and that they had use

d the license plate because no plate

had been provided with the car. Ms. Hollingsworth stated that later, when she and Ms. Engleman were alone at the home of Ms. Engleman's parents in Wisconsin, she suggested that Ms. Engleman call to check on whether the car was stolen. Within 48 hours, she, Gottsacker, and the defendant were stopped by the trooper. Ms. Hollingsworth remembered that when they saw-3-

the off icer's blue lights, the defendant said, "Shit," and, in response to a comment by Gottsacker , "Yeah, [this car] better

not have been reported stolen." After Gottsacker stepped out of the car at the officer's request, Ms. Hollingsworth asked the defendant whether

the car was stolen. The defendant nodded his head affirma

tively and sa

id, "I'm sor

ry." Ms. Ho

llingsworth

confirme d that the " Crazy Playa" lic ense tag belong

ed to the defenda

nt. Trooper Phillip Wenzel of the Wisconsin State Police testified tha t on Ja nuary 10, 1999, acting on information received by a local sheriff's department from the police in Paris, Tennessee, he was on the lookout f

or a stolen white Z

34 Monte Ca

rl o with a Tennessee plate. While driving
an unmarked patrol car, he observed the v ehicle and stoppe

d it. Gottsacker was d

riving at the time and Ms . Hollingsworth and the defendant were passengers. Because Ms. Engleman had already been taken into custody, she was not in the car. Trooper Wenzel stated that after impounding the car, he removedthe Tennessee license tag from the rear of the vehicle and found a "Crazy Play

a" specialty plate on the front of the car.

Darrell Renner, an Adams

Cou nty, Wisconsin, Sheriff 's Deputy, questioned the de

fendant. In his statement

to Deputy Renner, the defendant denied stealing the Monte Carlo and contended that Gottsacker

had claimed

to have rented the

vehicle to drive t

o his mother's home

in Wisconsin. The defendant admitted that he had test-driven the vehicle several days prior to its being stolen, b ut deniedthat he had taken

the keys. He

also admitted that he an d Gottsack er put Ms. E ngleman's license plate on the car, explaining that Gottsacker told hi

m that the dealers

hip had not given h

im a license plate or sticker.

Hei di Englema

n testified on behalf of the defense. She recalled that in January of 1999, Mark Gottsacker aske

d her whether she

wanted to go to

Wisconsin. When she asked whose car they would take, he replied that he

would probably

borrow one from a

friend named Chris Fields. She stated that she left in the Monte Carlo with Gottsacker, Ms. Hollingsworth, and the defendant and drove the car for only a few minutes; otherwise, Gottsacker drov e all the way to Wisc

onsin. Ms. Englemanremembered tha t in Illinois, Ms. H

ollingsworth

read the vehicle

's license plate to her and she recognized the plate as one from a Mercury Coug ar that she owned. She testified that once she reached her parents' h

ome in Wisconsin, she call

ed the sheriff's departments in Madison and Carro

ll Counties because she wa

s suspicious that the

Monte Carlo was sto

len. Subsequently

, a Wisconsin sheriff's deputy arri ved at her parents' hom e and took h er into cus tody. En route to the sher iff's department,

they passed

the stolen Monte Car

lo. Ms. Englema

n identifi ed the "Cr azy Playa" lic ense plate as that of the

defendant.

I

The defendant first contends that the evidence was insufficient. He claims that the testimony of Mark Gottsacker, an accomplice in the crime, was not adequately corroborated. We disagree.

On appeal, of course, the

state is entitled to t

he strongest leg

itimate view of the evidence and all reasonable infe

rences which mig

ht be drawn there

from. State v. Cabbage , 571 S.W.2d 832, 835-4-

(Tenn. 1978). The cred

ibility of the

witnesse s, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jur y as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the suffici ency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favo

rable to the state, any rational trier of fact could have found the essential eleme nts of the crime beyond

a reasonable

doubt. Tenn. R. App.

P. 13(e); State v. Williams , 657 S.W.2d 405, 4 10 (Tenn. 1983). Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956 ) . Because a verdict of guilt against a defendant removes the presumption of innocenceand raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insuff icient to sustain a guilty

verdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

A defen dant cannot be convi cted upon the uncorroborated testimony of accomplices. Sherrill
v. State , 204 Tenn. 427, 433-35, 321 S.W.2d 811, 814- 15 (1959); Prince v. State , 529 S.W.2d 729, 732 (Tenn. Crim. App. 1975). An accomplice is defined as a person who knowingly , voluntarily, and withcommon intent with the principal offers to unite in the commission of a crime. Clapp v. State , 94 Tenn. 186, 194-95, 30 S.W. 214, 216 (1895) ; Letner v. Stat e , 512 S.W.2d 643, 647 (T enn. Crim. App. 1974). The rule is

that there must be some fact testified to which is entirely independent of an accomplice 's testimony; that fact, taken by itself, must lead to an inf erence that a c rime has been committed and that the defendant is responsible therefor. Statev. Fowler , 213 Tenn. 239, 245-46, 373 S.W.2d 460, 463 (1963). This requirement is met if the corroborative evidence fairly and legitimately

tends to connect the accused with the commission of the crime charged. Marshall v. State , 497 S.W.2d 761, 765-66 (Tenn. Cri m. App. 1973). Only

slight circumsta

nces are requir

ed to furnish the necessary corroboration. Garton v. State , 206 Tenn. 79, 91, 332 S.W.2d 169, 175 (1960). To be corroborative, the evide nce need n ot be adequate in and of itself to convict. See Conner v. State , 531 S.W.2d 119, 125 (Tenn. Crim. App. 1975).

Theft of property occurs where, "with intent to deprive the ow ner of property, [a] person knowingly

ob tains or e xercises control over the property without the owner's effec tive consent." Tenn. Code Ann. § 39

-14-104. Obviously

, Gottsacker's

testimony est

ablished the elem

ents of the crime. His testimony, in our view, was suffici ently corrobor ated by other ev idence of th e defendant's involvement

in the theft. The defe ndant admitted to Deputy Renner that he te

st-drove the Monte C arlo shortly before it was stolen from the dealership lot. The defendant admitted to Judy Hollingsworth

that the car was stolen and apologi zed to her f or the inci dent. Final ly, the defenda nt's distincti ve persona lized license plate, "Crazy Playa," wa s found on the front of the vehicle by Trooper Wenzel.

II
Next, the defendant a

rgues that the tr

ial court erred

by orderin

g a sentence of sp

lit confinement

beca use had he s imp ly be en s ent ence d to thr ee yea rs i n th e pen ite nti ary, he would have been eligible for release after serving 30 percent of

his three-year sentence, or approximately 10.81 The defend ant asserts in his brief that he would be eli gible for release at approximately 10.4 months. The defendant only has two d ays of pretrial ja il credit, howev er, and this co urt's calculations re sult in a release eligibility date of 10.8 months.
-5- months. 1 He also complains that the trial court erred by not ordering a sentence of total probation and that he received a harsher sentence than did his accomplice, Mark Gottsacker

. When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court consid

ered the sentenc

ing principles a

nd all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies ina

ppropriate fac

tors or otherwise fails to follow the 1989 Sentencing Act, the presu mption of correctness fal ls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing CommissionComments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any , received at

the trial and sentencing hearin g; (2) the p resentence report; (3) the principles of sentencing and the arguments of c ounsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the de fenda nt's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calculating the sentence for a Class C felony conviction, the presumptive sentence is the minimum in the range if there are no enhancement or mitigating fac tors. Tenn. Code Ann. § 40-35- 210(c). If there

are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but s ti ll within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving bothenhancement and mitigat ing fact ors requires an assignment of relative weight for the enhancement

factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the mitigating factors present. Id.
Especially

m itigated or standard offenders convicted of Class C, D, or E felonies are, o f course, presumed to be fa vorable candida

tes "for altern

ative sentencing

options i n the absen ce of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply here, probation must be automatically c onsidered by the t

rial court i f the sentence imposed is eight years or less. Tenn. Code Ann. § 40-35-303(b).
Among the factors applicable t o probation co nsideration are the circumstances of the offense, the defendant's criminal record, social history and present

condition, and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). The nature and circumstances of the offenses may often be so egregious as to preclude the grant of-6-

probation. See State v. Poe , 614 S.W.2d 403 (Tenn. Crim. App. 1981). A lack of candor may also militate against a grant of probation. State v. Bunch , 646 S.W.2d 158 (Tenn. 1983).

The purpose

of the Community

Corrections Act o

f 1985 was to

provide an alternative means of punishmentfor "selected, nonviolent felony offenders in front-end community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides
a desired degre

e of flexibility

that may be b

oth beneficial to

the defendan t yet serve

legitimate societal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the de fend ant meets the minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily entitled to be sentenced under the Act as a matter of law or right. State
v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are el igible for Community Corr

ections:
(1) Persons who, without this option, would be incarcerated in a correctional institution; (2) Persons who are convicted of pro perty-related, or drug/alcohol-related felony offenses or othe

r felony of

fenses not involvin

g crimes aga

inst the perso

n as provided in title 39, chapter 13, parts 1-5; (3) Persons who ar

e convicted of no

nviolent 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 demon stra te a present or past pattern of behavior indicating violence; (6) Persons who do not

demonstrate a pattern of committing violent offenses ; and Persons who are sentenced to incarceration o r on escap e at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).

A sentence of split

confinement

involves the grant of probation after the partial service of a sentence. Tenn. Code Ann. § 40 -35-306(a). I

t may inclu

de a j ail or workhouse s

entence of up to
one year with the probationary ter m to extend for any period thereafter up to the statutory maximum for the offense. Id.

Init ial ly, the defendant was sentenced as a Range I off ender to three ye

ars in the Department of Correction. The trial court did not apply any e nhancing or mitigating factors. Three years is the minimum in the range. See Tenn. Code Ann. §§ 39-14-105(4), 40-35-110 (making theft of property
over $10,000 a

Class C felony); 40-35-112(a)(3) (fixing Range I sentence for Class C felony at three to six y ears). The trial court ordered that the defendant spend one y ear in confinement, citingth e defendant's lack of candor as grounds for the denial of probation:-7- This is an appropriate

case for alte rnative sen tencing, and this Court orders the sentence served split, with one year of continuous confinement and the balance in the community

corrections pro

gram.
This boy is

a knowledgeab

le, willing leade

r and certainly

a participant.

You can't sell him as some kid gree

n behind the ears

that got led into a

crime. He knew p

recisely what he was doing and he willingly and knowingly entered into it. He's not some child. It's a man here. . . .

In our view, the trial court did not err by denying immediate pr obation. Neither the defendant
nor the state introduced any evidence at the sentencing hea ring. At trial, however, the defense theory
was that Mark Gottsacker was solely responsible for the theft of the Monte Carlo and that the defendant was an innocent bystander in the same position as Ms. Hollingsworth and Ms. Engleman. Thus, based on the defendant's lack of candor and his failure to accept responsibility

for his crimes, despite overwhelming evidence that he had participated in the theft, the trial court properly found that some periodof confinement was necessary. See State v. John Lee Hampton , No. W1999-00983- CCA-R3-CD, slip op. at 15 (Tenn. Crim. App., at Jackson, Dec. 6, 2000).

Because the trial cour t set the defendant's sentence prior to considering alternative sentencing, the judgm ent fo rm reflects that the defendant received a three-y ear sentence in the Department

of Correction with one yea r to be served in continuous confinement and two years to be served in C omm uni ty Co rrec tio ns. Whi le a defe nda nt s ent ence d to spl it c onf ine men t ma y be ordered to serve up to one y

ear in continuous c

onfinement,the time is to be served in the local jail or workhouse. Tenn. Code Ann. § 40-35-306(a). Accordingly, the judgment is modified to reflec t that the defendant is sentenced to a total of three ye

ars: one ye

ar in the county

jail followed by two years in Community Cor

rections.

The defe nd ant argues that his sentence of split confinement violates the principles of sentencing because

he would spend less

time in continuous conf

inement had he be

en sentenced to the Department of Correc tion for th ree year s and become elig

ible for release

in 10.8 months. See Tenn. Code Ann. § 40-35-501(c) (setting release eligibility for Rang e I offenders

at service of 30% of actual sentence). The state points out that eligibility for release does not equate to ac tual release.

In our view, the sentence of split confinement does not violate the principles of sentencing merely because the def

endant may h

ave to serve 1.2 months more than he may have had to serve

in the Departmen t of Correction. As the state corre

ctly notes, t

he defendant wo

uld have no right

to conditional release prior to theexpiration of his Department of Correction sentence. Greenholtz v. Inmates of the Neb. Penal and Correctional Complex , 442 U.S. 1, 7 (1979); Daniels v. Traughber , 984 S.W.2d 918, 924 (Tenn. Ct. A pp. 1998); see Tenn. Code Ann. § 40-35-503(b) (1997) ("Release on parole is a priv

ilege and not a r

ight,

. . . ."). Moreover, because the defendant is to be confined in the local jail, the trial court will retain full jurisdiction over themanner of service of his sentence. Tenn. Code Ann. § 40-35- 212(c); see Tenn. R. Crim. P. 35, Committee Comment. At any time, the-8-

defendant may apply

to the trial court t

o serve the balan

ce of his sentenc

e of confin

ement on probation. Tenn. Code Ann. § 40-35-306(c).

Add iti ona lly, the principles of sentencing include more than the 1989 Sentencin

g Act's oftcited acknowledgment that the most severe offenses should be given priority with regard to sentences of incarceration. See Tenn. Code Ann. § 40-3 5-102(5). T he defendant , age 20, had previously been convictedof theft of property under $500 and sen tenced to six months unsupervised probation. Thus, lesssevere measures than confinement have failed. Split confinement or "'shock probation' is of value in combining both incarceration and rehabilitation as part of a sentencing program." Tenn. Code Ann. § 40

-35-306, Sentenc

ing Commission Commen ts.

Fin all y, the defendant c

omplains that his se

ntence is un fairly harsh as compared to that of Mark Gottsacker. Our law contemplates individualized sentencing. The record re flects that Gottsacker

received a sentence of four year s , wi th 1 20 d ays of confinement and the balance to be served in Community Cor

rections. Gottsac

ker pled guilty

pursuant to agreement and cooperated as
a witness for the state. While Gottsacker's period of c onfinement is shorter than that of the defendant,

his sentence is one year longer. Moreover, Gottsac ker's sentence is to be served consecutively

to two Benton County sentences for which he had b

een granted pr

obation at the time of this offense. The disparity is not unfair.

The conviction is affirmed. The judgment is modified to reflect a sentence of one y ear confinement in the

local jail followe

d by two y

ears in Community

Corrections.

___________________________________ GARY R. WADE, PRESIDING JUDGE