### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

anuary 18, 2001
STATE OF TENNESSEE v. CYNTHIA TAYLOR MANN
Direct Appeal from the Circuit Court for Montgomery County

No. 40324 John H. Gasaway, III, Judge

No. M1999-01390-CCA-R3-CD - Filed May 8, 2001

The Defendant plea ded guilt y to theft of

property va

lued over sixty

-thousand dollars , a Class B fel ony. The trial court sentenced the De fendan t as a Range I, standard offender to the minimum eight-year sentence, to be served

in the Tennessee Department of Correction. The Defendant now appeals, arguing t hat the trial court erred in denying her alternative se ntencing. We affirm the judgment of the tr

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

R OBER T W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID H. W ELLES an d T HOMAS T. W OODALL , JJ., joined.

CollierW. Goodlett, Assistant Public Defender, Clarksville, Tennessee, for the Appellant, Cy

nthia Taylor Mann.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, J r ., Assistant Attorney General; John W. Carney, Jr. , District Attorney General; and B. Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION

The Defendant pleaded guilty to theft of property valued over

sixty-thousan

d dollars, a Class B felony, with the manner of service to be determ ined at a sentencing hearing. The trial court sentenced the Defendant as a Range I, standard offende r to the minimum eight-year sentence, to

be served in the Tennessee Department of Correction. The Defendant now appeals, arg uing that the trial co urt erred in denying her alternative sentencing. Spec ifically, the Defendant challenges the trial court’s application of certain enhancement factors in determining her sentence. We affirm the judgment of the tr

ial court.-2- FACTS

In April 1998, the law firm of Marks, Maness and Shell became concer ned that it s trust account was being mishandled. The firm contacted Bob Yates, a partner in the accounting fir m of Thurman, Campbell, and Company to examine the records. Yates testified that he made a list

of the items that he would

need to examine the

account and ga

ve that list

to the Defendant, who was the loan-closing agent for the firm. These items included bank statements, cancelled checks, any other documents

of original entry

and supporting ledgers. Yates received an incomplete bank statement from the Defendant for May 1998, and he informed Carmack Shell, a partner in the law firm. When Yates was finally

able toattain the neces sary docume nts, he identified

disbursements in e

xcess of proceeds on the Defendant’s employee construction mortg age loan in the amount of $357,000.

Carmack Shell , a partner at Marks, Maness an d Shell, testified r

egarding the

Defendant’s ro

le in real estate closings handled by his firm. Shell testified that the Defendant “ultimately did the loan closings herself.” Shell testified that he did not believe he would ever be able to collect on the loss to his firm because the Defendant has never offered to pay anything. Shell testified that because of the Defendant’s actions, his firm was unable to pay its employees their entire annual end-of-the-year bonuses.

Laura Mann, Carmack

Shell’s secretary, testified that because of the Defendant’s actions she
was not able to receive her full end-of-the-year bonus or receive a contribution from the firm for her retirement. Carol Canady, secretary to Albert Marks, who is a partner at the law firm, testified that she did not receive he

r retirement con

tribution from the f

irm and that she re

ceived only

a portion of her bonus because of the Defend ant’s actions. Although there was no guarantee that any of the employeeswould receive a bonus each year, Mann had received one for the last twelve or thirteen years.

Dana

Robertson, an employee at Marks, Maness an

d Shell, testified that during the period of time in qu estion, sh e was workin g on various types of cases at the firm in cluding w ills and divorces. Robertson testified that the Defendant asked her to forge client si gnatures on ce

rtain mortgage do cume nts. Robertson testified that she saw the Defendant forge signatures on the documents. Robertson also testified that she did not receive her bonus or retirement because of the Defendant’s actions.

LoriNelson, the Defendant’s assistant, testified that she worked in th e real estate se ction with the Defendant. Nelson testified that the Defendant never prepared

any balanc

e sheets on the tru

st account. Nelson also testified that she was a friend of the Defendant and that they would sometimes go shopping together. Nelson testified regarding the Defe ndant’s extravagant spending habits.

ANALYS IS

When a criminal defendant challenges the length,range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that the-3-

determinations made by the trial court are correct. Tenn. Code Ann. § 40 -35-401(d). This presumption, however, “is conditioned upon the affirmative showing in the record that thetrial court considered

the sentencing principles and all relevant facts and circumstances.” Statev. Ashby , 823 S. W.2d 166, 169 (Tenn. 199 1). In the eve nt that the recor

d fails to show such

consideration, th

e review of the sen ten ce i s pu rel y de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In m aking its sentencing determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and

the propriety of sentencing alte

rnatives b

y consideri

n g (1) the evidence, if any, receive d at the trial and the sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the cri minal condu ct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statements

the defendant wi

shes to make in the d

efendant's be

half about s entencing, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a) , (b), -103(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

When imposing a sentence, the trial court must make specific findings of fact on the record supp orting the sentence. Tenn. Code Ann. § 40-35-209(c). The purpose of recording the cour t ’ s reasoning is to guarantee the preparation of a proper record for a ppellate review. State v. Ervin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imp osed a lawful sentence after having given due consideration and proper we ight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the re cord, then we may not modify the sentenc e "even if we would have preferred a different result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

Because

the Defendant agreed to the minimum eight-year sentence as part of her guilty plea, the only issue fo

r the trial court t

o determine was t he manner of service of the eight year s. The Defendant

argues on appeal that the trial court erred in denying probation or some type of alternative sentence. With certain exceptions, a defendant is eligible for probation if the sentence ac tual ly imposed is eight years or less. Tenn. Cod e Ann. § 40-35-303(a). “Although probation ‘must be automatically

considered as a sentenci ng option for eligible defendants, the defendant is not automatically

entitled to probation as a matter of law.’” State v. Davis , 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn. Code Ann. § 40-35-303(b) sentencingcomm’n cmts). In determining whether to grant or deny

probation, the tri

al court may co nsider the circumstances of the offense; the defend ant’s crim inal record, background and social history; the defenda nt’s physical and mental health; the deterrent effect on other criminal ac

tivity; and the

likelihood that pro

bation is in

the best interests of both the public and the defendant. State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The trial court may also consider evidence offere d by the part

i es on the statutory-4-

enhanc eme ntor mitigating fa ctors. Tenn. Code

Ann. § 40-35-210(

b)(5); State v. Grissom , 956 S.W.2d 514, 519 (Tenn Crim

. App. 1997)
. The defendant ha s the burden of es

tablishing suitab

ility fo r pro bation. Tenn. Code Ann. § 40-35-303(

b); Ashby , 823 S.W.2d at 169. Additionally, 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).
However, we further note that even if a

defendant is pre

sumed to be a favo

rable candidate for alternative sentencing under Tennessee Code Annotated § 40-35 -1 02(6), the statutory presumption of an a

lternative sente

nce may be

overcome if (A) [c]onfinement i

s necessary

to protect society

by restraining a defendant who has a long his

tory of cri minal conduct; (B) [c]onfin ement is necessary to avoid depreciating the seriousness of the offense or con finement is particularly suited to provide a

n effective det

errent to others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C).
In sentencing the Defendant, the trial court applied the following e nhancement

factors: (1) [t]he offense involved

more th an one (1) vic

tim; (2) [t]he personal injuries inflicted upon or the amount of damage to property sustained by or taken from the vic

tim was particular

ly great; (3) [t]he offense involved a victim and was committed to gratify the defendant’s desire f orpleasure or excitement; and (4) [t]he defendant abused a position of public or private trust, or used a special skill in a manner that significantly facilitated the commission or the fulfillment of the offense. Id. § 40- 35-114(3), (6), (7), (15). T he only mitigating factor applied was that the Defendant’s actions did not cause or threaten to cause serious bodily injury

. Id . § 40-35-113(1).

The Defendant argues that the trial court erred by finding that

the crime involved more than one victim. This Court has prev iously held, i

n a case quite simil

ar to this one, that the employees where the def

e ndant worked constituted multiple victims. See State v. Lesa Mae Malone , No. 01C01-9706-CC-00234, 1998 WL 427387, at *5 (Tenn. Crim. App., Nashville, July 30, 1998). In this case, there was testimony that the partner

s at Marks, Maness

and Shell

were personall

y liable for the loss to their firm. Shell testified that because of the Defendant’s actions, the pa rtners all signed a note for $400,000 to cover the loss. In addition, evidence was presented at the sentencing hearing that the employees of the firm did not receive their full year-end bonuses or a contribution to their retirement funds as they had in ye ars prior. As such, we agree with the trial court that the Defendant’s offense involved more than one victim.

The D efendant argues that the application of fa

ctor number six cons

titutes a double enhancement.

Factor six states, in pertinent part, that “the amount of damage to property sustained by or taken from the victim was part icu lar ly gre at. ” Ten n. C ode Ann . § 4 0-3 5-1 14( 6). Spe cif ica lly, the Defendant argues that this enhancement factor is inherent in the crime charg ed. This Court has-5-

previously

held that “since the punishment for theft is enhanced based upon the amount taken by the accused, use of this enhancement factor constitutes double enhancement in violation of the statute.” State v. Grissom , 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997). However, in this case evidence
was presen ted tha t the Defendant took $357,000.00, which is almost six times the $60,000.00 required to constitu

te a C lass B felony theft of property . “This Court has held this enhancement factor applicable in a case where the theft offense invol ved $52,000–an amount of money approaching the $60,000 amount necessary to put the offense into the next grade of theft and where the ‘losses su

ffered b y the [v ictim busi ness] owners from the defendant’s criminal conduct were particularly

damaging.’” Id. at 518 n.4 ( citing State v. Frank , No. 03C01 -9209-CR- 00303, 1993 WL 539401, at

*4 (Tenn. Crim.App., Knoxville, Dec. 22, 1993)). Additionally, evidence was presented that employees o

f Marks, Maness &

Shell did not receive their full year-end bonuses or contributions to their retirement funds, and the partners were required to sign a note for $400,000.00 to cover the loss caused by the Defendant’s criminal conduct. Under those circumstances, we conclude that the application of this enhancement factor by the trial court was appropria te.

The Defendant arg

ues that the trial c

ourt erred in

finding that the Defendant committed the offense to gratify

her desire for pleasure

or excitement. Evidence was presented at the sentencing he arin g regarding the Defendant’s extravagant spending habits. L ori Nelson testified that on one occasion, the Defendant spent $600 at a department store while they were on their lunch break. Nelson testified th

at such a spending

spree was “norm

al” for the Defe

ndant. Nelson also

testified that the Defendant purchased a Jeep Grand Cherokee and a new Harley Davidson motorcyc le. Laura Mann testified that the Defendant bought her daughter a car when she was only fourteen years old. Carol Canady testified that the Defendant “seemed to probably eat at the best places and

like to go, you know, take trips and things, buying jewelry.” It is clear that the Defendant used a large portion of the money she took

from the firm to satisfy her own extravagant tastes. I n addition, the Defendant went to great leng

ths to take the money. These included bypassing the computer system and c reating her o wn c omp ute r fi eld s to hid e th e mo ney.
The Defendant arg

ues t hat the tri al court erred in finding that the Defendant breached a position of privat

e trust. We

disagree. The Defendant was the loan-closing agent for the firm and handledmost if not all of the closings herself. The firm placed a great deal of trust in

the Defendant. The Defendant was the only person who really understood t he computer program used for the transactions.When the Defendant misappropriated the funds that she was handling for the firm, she breached the trust that had been given to her by the fir m.

We con c lude that the trial court properly considered each of the fore going enhancement factors in determining that the Defendant

was ineligible for alternative sentencing. Regarding the circumstances of the offense, the trial court considered “the course of co nduct o f this Defendant, which involved many intentional transactions on her

part, the sophistication at which the thievery
was committed, the lack of taking full responsibility, lack of coope ration , the considerations regarding confinement, [and] the deterrence in the message to others.”-6-

Fin all y, the Defendant argues that the trial court’s reliance

on the need for de

terrence in this
case is misplaced. In sentencing the Defendant, the trial court found that in addition to the applicable enhancement

factors, confinement was necessar y to avoi d depreciating

the seriousness of

the offense andto serve as a deterrent to others likely to commit similar c rimes. A trial court’s dec ision to incarcerate

a defendant based on a need for deterrence w ill be pre sumed correct “so long as any reasonable

person looking at the entire record could conclude that (1) a need to deter similar crimes is present in

the particular c

ommunity, juri

sdiction, or in

the state as a whole, and (2) incarceration of the defendant may rationally ser ve as a deterrent

to others similarly

situated and likely

to commit similarcrimes. ” State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). Although t

he record in this c

ase lacks the deterrence evidence contemplated by Hooper , the denial of an alternative sentence by the trial court was based on

ot her appropriate factors. Moreover, the Defendant failed to present any evidence showing that the sentence imposed w as improper. Noting that the Defendant has the burden of establishing suitability for probation, we conclude that the Defendant failed to ca rry that burden.
Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE