IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 12, 2015

STATE OF TENNESSEE v. TAMMY MARIE HARBISON

Appeal from the Circuit Court for Lawrence County

No. 32633 Stella L. Hargrove, Judge

No. M2015-01059-CCA-R3-CD – Filed February 12, 2015

The Defendant-Appellant, Tammy Marie Harbison, entered an open guilty plea to one 

count of theft of property valued at more than $1,000 but less than $10,000 in the 

Lawrence County Circuit Court. As a Range I, standard offender, she received a threeyear sentence, which was suspended following service of six months in incarceration. On 

appeal, the Defendant-Appellant contends that the trial court abused its discretion in 

denying her request for full probation. Upon review, we reverse the judgment of the trial 

court and remand for entry of a judgment sentencing the Defendant-Appellant to serve 

her three-year sentence on supervised probation. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and ROBERT L. HOLLOWAY,JR., JJ., joined.

William Joshua Morrow, Lawrenceburg, Tennessee, for the Defendant-Appellant, 

Tammy Marie Harbison.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant 

Attorney General; Brent A. Cooper, District Attorney General; and Christi Leigh 

Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

At the May 11, 2015 sentencing hearing, the State introduced a copy of the 

presentence report, which showed that the Defendant-Appellant had been previously 

charged with passing worthless checks.1 The charge was dismissed upon payment of 

 

1 Although the transcript from the Defendant-Appellant‟s guilty plea hearing was not included in 

the appellate record, the record is adequate for our review. See State v. Caudle, 388 S.W.3d 273, 279 

(Tenn. 2012) (“[W]hen a record does not include a transcript of the hearing on a guilty plea, the Court of 
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costs and restitution and the Defendant-Appellant had no other criminal history. 

Ruth Keener, the eighty-two-year-old victim in this case, testified that she hired 

the Defendant-Appellant to help with housework in the fall of 2013. The DefendantAppellant had been working for Keener for approximately ten months when Keener 

noticed that one of her rings was missing and reported it to the police. Keener had 

purchased the ring in 2007 for $1,300. A few weeks later, Keener saw a Facebook post 

listing the ring for sale in a neighboring county and called her son, who notified the 

police. When asked if she trusted the Defendant-Appellant while she employed her, 

Keener stated, “[y]es, I did. She was very friendly, and it was really a shock to me when 

this happened.” Keener testified that although the ring was returned to her . . . she 

“[doesn‟t] trust anybody anymore[.]” On cross-examination, Keener acknowledged that 

the Defendant-Appellant had sent her an email after the incident requesting forgiveness 

for stealing the ring. 

The Defendant-Appellant admitted to taking the ring from Ms. Keener and posting 

a Facebook ad in an attempt to sell it. She confirmed that she had been working for the 

victim for approximately ten months at the time she took the ring. She further testified 

that she had no prior convictions and had never been on probation. She recalled that she 

was contacted by an undercover officer the day after posting the ad and agreed to sell the 

ring to him for $200. When she met the undercover officer, she confirmed that she had 

the ring and was placed under arrest. She told the officer that she had taken the ring 

approximately three weeks before she posted it for sale. At the hearing, the DefendantAppellant claimed that she “love[d the victim] to death,” and when asked what prompted 

her to steal the ring, she stated, “I have no idea, it was stupid. It‟s just something I 

shouldn‟t have done.” 

Carmen Brooks testified that she had been friends with the Defendant-Appellant 

for twenty years. In that time, Brooks had undergone four back surgeries and relied 

heavily on the Defendant-Appellant to assist with cooking, cleaning, and transporting her 

children to and from school. Brooks testified that she had never noticed anything missing 

in her home after the Defendant-Appellant had been there and volunteered to help 

transport the Defendant-Appellant to meet her probation officer. 

Larry Chapman, the Defendant-Appellant‟s nephew, testified that the DefendantAppellant was responsible for caring for her father, who was being treated for cancer. 

Chapman, who had also previously been treated for cancer, further testified that the 

Defendant-Appellant had frequently accompanied him to treatment as well. He stated 

 

Criminal Appeals should determine on a case-by-case basis whether the record is sufficient for a 

meaningful review[.]”). 
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that many members of his family relied on the Defendant-Appellant similarly when they 

were in poor health. Chapman also volunteered to help transport the DefendantAppellant to probation appointments if necessary. At the conclusion of the hearing, 

defense counsel asked the court to allow the Defendant-Appellant to serve her sentence 

on probation. In support, defense counsel noted that this offense was a one-time 

occurrence on an otherwise unblemished record.

This isn‟t something like the embezzlement cases we have where it‟s $5 

one day, and $10 the next day, and $15 the next day. This is one lady who 

on one day did something that she has regretted from that moment forward. 

And she‟s never been on probation . . . [s]he‟s an excellent candidate for 

probation.

The trial court denied the Defendant-Appellant‟s request for probation and 

sentenced her to three years in the Tennessee Department of Correction, with six months 

to be served in the county jail and the remainder on supervised probation. The trial court 

found that a sentence of incarceration was necessary to avoid unduly depreciating the 

seriousness of the offense and to provide an effective deterrent to those likely to commit 

similar offenses. Although the Defendant-Appellant consistently expressed remorse for 

her actions throughout the hearing, the trial court discredited those claims, stating “[i]f 

there‟s any remorse, it‟s because she got caught. She thought [the sale of the ring] was a 

done deal.” The trial court also took issue with the Defendant-Appellant‟s demeanor 

during the sentencing proceeding: 

And [Defense Counsel], th[e]se are my words – “no harm no foul,” because 

that‟s how [the Defendant-Appellant] walked in here to get probation[.] 

“It‟s no big deal. I stole it. She got it back. It‟s no big deal.” That was 

what the court gleaned from her demeanor. I still feel that way [about the 

Defendant-Appellant‟s demeanor] at the end of this hearing – “no harm and 

no foul. I‟m going to get probation.”

This timely appeal followed.

ANALYSIS

On appeal, the sole issue presented for our review is whether the trial court abused 

its discretion in denying the Defendant-Appellant‟s request for full probation and 

imposing a sentence of split-confinement. The Defendant-Appellant contends that (1) 

“there is absolutely no proof in the record that confinement would have a deterring effect 

on similar crimes in the community,” and (2) that “there is no basis in the record to 

support the trial court‟s refusal to order full probation on the grounds that to do so would 
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depreciate the seriousness of the offense.” The State responds that the trial court made 

adequate findings to support its ruling, and that even if the trial court‟s articulation of 

those findings was inadequate, the record as a whole supports the split-confinement 

sentence. Upon our review, we agree with the Defendant-Appellant that there is no 

substantial evidence in the record that would justify the denial of probation in this case. 

 

“[T]he abuse of discretion standard, accompanied by a presumption of 

reasonableness, applies to within-range sentences that reflect a decision based upon the 

purposes and principles of sentencing, including questions related to probation or any 

other alternative sentence.” Caudle, 388 S.W.3d at 278-79. Any sentence that does not 

involve complete confinement is an alternative sentence. See generally State v. Fields, 40 

S.W.3d 435 (Tenn. 2001). Tennessee Code Annotated section 40-35-102(6)(A) states that 

a defendant who does not require confinement under subsection (5) and “who is an 

especially mitigated or standard offender convicted of a Class C, D or E felony, should be 

considered as a favorable candidate for alternative sentencing options in the absence of 

evidence to the contrary[.]” Here, the Defendant-Appellant pleaded guilty to a Class D 

felony as a standard offender. Accordingly, she was considered a favorable candidate for 

alternative sentencing. However, a trial court “shall consider, but is not bound by, the 

advisory sentencing guideline” in section 40-35-102(6)(A). T.C.A. § 40-35-102(6)(D). A 

trial court should consider the following when determining whether there is “evidence to 

the contrary” indicating that an individual should not receive alternative sentencing: 

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

We note that the trial court‟s determination of whether the defendant is entitled to 

an alternative sentence and whether the defendant is a suitable candidate for full 

probation are different inquiries with different burdens of proof. State v. Boggs, 932 

S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant has the burden of establishing 

suitability for full probation, even if the defendant is considered a favorable candidate for 

alternative sentencing. See id. (citing T.C.A. § 40-35-303(b)).
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A defendant is eligible for probation if the actual sentence imposed is ten years or 

less and the offense for which the defendant is sentenced is not specifically excluded by 

statute. T.C.A. § 40-35-303(a). The trial court shall automatically consider probation as 

a sentencing alternative for eligible defendants; however, the defendant bears the burden 

of proving his or her suitability for probation. Id. § 40-35-303(b). In addition, “the 

defendant is not automatically entitled to probation as a matter of law.” Id. § 40-35-

303(b), Sentencing Comm‟n Cmts. Rather, the defendant must demonstrate that 

probation would “„serve the ends of justice and the best interest of both the public and the 

defendant.‟” State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. 

Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). 

When considering probation, the trial court should consider the nature and 

circumstances of the offense, the defendant‟s criminal record, the defendant‟s background 

and social history, the defendant‟s present condition, including physical and mental 

condition, the deterrent effect on the defendant, and the best interests of the defendant 

and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999) 

(citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). The principles of sentencing 

also require the sentence to be “no greater than that deserved for the offense committed” 

and “the least severe measure necessary to achieve the purposes for which the sentence is 

imposed.” Id. § 40-35-103(2), (4). In addition, “[t]he potential or lack of potential for 

the rehabilitation or treatment of the defendant should be considered in determining the 

sentence alternative or length of a term to be imposed[,]” and “[t]he length of a term of 

probation may reflect the length of a treatment or rehabilitation program in which 

participation is a condition of the sentence[.]” Id. § 40-35-103(5). Moreover, our 

supreme court has held that truthfulness is a factor which the court may consider in 

deciding whether to grant or deny probation. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 

1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981)).

Here, the Defendant-Appellant entered an open guilty plea to one count of theft of 

property valued at more than $1,000 but less than $10,000, a Class D felony. See T.C.A. 

§§ 39-14-103, -105(a)(3). Therefore, she was subject to a sentencing range of two to four 

years. Id. § 40-35-112(a)(4). The Defendant-Appellant received a mid-range sentence of 

three years, split-confinement, with the first six months to be served in incarceration and 

the balance on supervised probation. The trial court rejected the Defendant-Appellant‟s 

request for full probation after determining that full probation would unduly depreciate 

the seriousness of the offense and that incarceration was particularly well suited to serve 

as an effective deterrent. See T.C.A. § 40-35-103(1)(B). 

In this case, the trial court failed to articulate the specific facts upon which it 

determined that incarceration was necessary to provide an effective deterrent. Instead the 

trial court stated simply, “I think [confinement] would [provide an effective deterrent]. I 
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think confinement is particularly suited to keep people from stealing from others in the 

privacy of their own home [II: 61].” Despite the wide discretion afforded to trial courts 

in sentencing decisions, the trial court has an affirmative duty to state on the record, 

either orally or in writing, its findings of fact and reasons for imposing a specific sentence 

on the record to facilitate appellate review. See T.C.A. §§ 40-35-209(c), -210(e); see also

State v. Robert Joseph Harr, No. W2011-02735-CCA-R3-CD, 2013 WL 5422801, at *10 

(Tenn. Crim. App. Sept. 27, 2013), perm. app. denied (Tenn. Feb. 12, 2014) (Tipton, P.J., 

concurring and dissenting) (“I do not believe that our supreme court intended Bise and 

Caudle to do away, in wholesale fashion, with Tennessee jurisprudence developed over 

the last thirty years upon which the Sentencing Act is based and in which the Act‟s 

provisions are interpreted.”). The statements of the trial court espousing her personal 

belief about the need for deterrence are not evidence, and no proof was introduced at the 

sentencing hearing related to deterrence. See State v. Dowdy, 894 S.W.2d 301, 305 

(Tenn. Crim. App. 1994); see also State v. Davis, 940 S.W.2d 558, 560 (Tenn. 1997) 

(“[A] finding of deterrence cannot be conclusory only but must be supported by proof.”) 

(citing and quoting Ashby, 823 S.W.2d at 170); State v. Nunley, 22 S.W.3d 282, 286 

(Tenn. Crim. App. 1999) (holding that in order to use deterrence as a justification for 

confinement, evidence must be presented indicating some special need for deterrence.); 

State v. Cheryl Bass, No. M2006-02563-CCA-R3-CD, 2008 WL 544586, at *22 (Tenn. 

Crim. App. Feb. 28, 2008), perm. app. denied (Tenn. Oct. 6, 2008) (holding that it was 

error for the trial court to deny alternative sentencing based on the need for deterrence 

where the trial court‟s statements on the need for deterrence were merely conclusory); 

State v. Shannon Ann Maness and Daryl Wayne Maness, No. W2012-02655-CCA-R3-

CD, 2014 WL 350429, at *6 (Tenn. Crim. App. 2014), perm. app. denied (Tenn. July 15, 

2014) (reversing the trial court‟s denial of alternative sentencing based on deterrence 

because a need for deterrence was not supported by the record). 

Furthermore, the trial court failed to articulate the specific facts upon which she 

based her determination that incarceration was necessary to avoid depreciating the 

severity of the offense. Instead, when discussing this factor, the court stated simply, “the 

court finds that [a probationary sentence] would [depreciate the severity of the offense].” 

Accordingly, we must examine the record to determine if there is any substantial

evidence in the record supporting the trial court‟s determination. State v. King, 432 

S.W.3d 316, 327 (Tenn. 2014) (citing State v. Curry, 988 S.W.2d 153, 158 (Tenn. 1999)). 

Based on the following authority and analysis, we do not. 

 The Tennessee Supreme Court held in State v. Travis that if the seriousness of the 

offense forms the basis for the denial of probation it must be clear that “the criminal act, 

as committed, would be described as especially violent, horrifying, shocking, 

reprehensible, offensive or otherwise of an excessive or exaggerated degree; and it would 

have to be clear that, therefore, the nature of the offense, as committed, outweighed all 
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other factors [favoring] a grant of probation.”2622 S.W.2d 529, 534 (Tenn. 1981). 

Importantly, Travis was also decided under an abuse of discretion standard, which we 

now apply to all trial court decisions regarding manner of service. Robert Joseph Harr, 

2013 WL 5422801 at *10 (Tipton, P.J., concurring and dissenting).

In State v. Trotter, a theft case, the Tennessee Supreme applied this heightened 

standard and determined that the circumstances of the offense alone were sufficiently 

egregious to justify the denial of probation because the defendants stole “nearly half a 

million dollars,” in a scheme which persisted over the course of two years, from one of 

the defendants‟ employers. 201 S.W.3d 651, 654 (Tenn. 2006). Other theft cases in 

Tennessee that have met this standard involved similarly large amounts of money, and 

usually occurred over a protracted period of time. See, e.g., State v. Chestnut, 643 

S.W.2d 343 (Tenn. Crim. App. 1982) (circumstances of the offense met heightened

standard where the defendant embezzled approximately $39,000 from her employer over 

the course of ten months and 157 separate transactions); State v. Purkey, 689 S.W.2d 196, 

201 (Tenn. Crim. App. 1984) (circumstances of the offense met heightened standard 

where the defendant, a county official, embezzled $50,818.48 in a “continuing scheme 

executed over the course of an extended period of time.”); State v. Cary M. Dotson, No. 

E2008-02516-CCA-R3-CD, 2009 WL 3191705 (Tenn. Crim. App. Oct. 6, 2009) perm. 

app. denied (Tenn. April 14, 2010) (circumstances of the offense met heightened standard 

where the evidence showed that the defendant stole at least $227,610 from his employer 

over the course of three and a half years); State v. Chanda Dawn Langston, No. M2009-

02247-CCA-R3-CD, 2010 WL 3822829 (Tenn. Crim. App. Sept. 30, 2010) 

(circumstances of the offense met heightened standard where evidence showed that the 

Defendant forged 149 company checks over the course of four years causing a total loss 

of $233,285.79 to her employer.); State v. Rhonda Brown-Montague aka Rhonda Brown, 

No. W2011-01433-CCA-R3-CD, 2012 WL 6030512 (Tenn. Crim. App. Dec. 5, 2012) 

perm. app. denied (Tenn. April 10, 2013) (circumstances of the offense met heightened

standard where evidence showed that the defendant stole at least $80,000 from her 

 

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This court has questioned the continued viability of the heightened standard of review where the 

trial court denies probation based solely on the need to avoid depreciating the seriousness of the offense 

in light of Bise and Caudle. See State v. Micah Alexander Cates, No. E2014-01322-CCA-R3-CD, 2015 

WL 5679825, at *12 (Tenn. Crim. App. Sept. 28, 2015); State v. Tan Vo, No. W2013-02118-CCA-R3-

CD, 2014 WL 4415296, at *7 (Tenn. Crim. App. Sept. 9, 2014); State v. Edward Shannon Polen, No. 

M2012-01811-CCA-R3-CD, 2014 WL 1354943, at *6 (Tenn. Crim. App. May 3, 2013) perm. app. 

denied (Tenn. Aug. 29, 2014); State v. William Roger Henderson, III, No. M2013-00603-CCA-R3-CD, 

2013 WL 6706200, at *3 (Tenn. Crim. App. Dec. 18, 2013); State v. Delavin Benjamin Mohammed, No. 

M2011-02552-CCA-R3-CD, 2013 WL 1874789, at *6 (Tenn. Crim. App. May 3, 2013) perm. app. 

denied (Tenn. Oct. 16, 2013). However, in State v. Kyto Sihapanya, the Tennessee Supreme Court 

seemingly indicated that the heightened standard of review is still available “in cases where the trial court 

denies probation on only” the seriousness of the offense. No. W2012-00716-SC-R11-CD, 2014 WL 

2466054, at *3 (Tenn. Apr. 30, 2014). 
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employer, a non-profit organization dedicated to providing financial assistance to 

disabled individuals, over the course of three years through a “systematic and complex” 

scheme involving the creation of fictitious individuals and forging of documents.).

We can only conclude that the circumstances of this case simply do not rise to the 

level of violent, horrifying, shocking, reprehensible, offensive, or otherwise of an 

excessive or exaggerated degree sufficient to support a denial of probation on that basis 

alone. While significant, the value of the ring in this case, $1,300, was substantially 

lower than the amounts involved in the previously cited cases. Additionally, all evidence 

indicates that this theft was a one-time occurrence, and not the result of months or years 

of embezzling or stealing. Finally, because the ring was recovered and returned to the 

victim, there was no actual financial loss in this case. All of these factors readily 

distinguish the case at bar from the theft cases previously cited, where the denial of

probation was justified based on the circumstances of the offense alone. 

Finally, the other considerations weigh strongly in favor of a grant of probation. 

The Defendant-Appellant‟s criminal history consists only of one charge of passing a 

worthless check, which was dismissed upon payment of costs. There is no evidence that 

measures less restrictive than confinement have been unsuccessfully applied to her, and 

there is no evidence of a history drug or alcohol abuse or a need for treatment. Under 

these circumstances, the nature of the offense does not outweigh the multitude of factors 

favoring a probationary sentence. See Travis, 622 S.W.2d at 534. Based on our review, 

there is no substantial evidence in the record which would support the denial of 

probation. 

CONCLUSION

Based on the foregoing authority and analysis, we reverse the judgment of the trial 

court and remand for entry of a judgment ordering the Defendant-Appellant to serve her 

three-year sentence on supervised probation. 

_________________________________ 

CAMILLE R. McMULLEN, JUDGE