# FILED
March 31, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUARY 2000 SESSION

STATE OF TENN ESSEE, ) ) M1999-01200-CCA-R3-CD Appellee, ) ) Williamson County v. ) ) Honorable Cornelia A. Clark, Judge SUSAN L. ADA

MS ) a/k/a SHANNON ADA

MS , ) (Theft Under $500)

) Appellant. )

FOR THE APPELLANT: FOR THE APPEL LEE : SUSAN L. A

DAMS, PRO SE PAUL G. SUMMERS a/k/a SHANNON ADA

MS Attorney General & Repor ter 116 High Street Portland, Tennessee 37148 DAVID H. FIN DLEY Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243

AFFIRMED
L. T. LAFFER

TY, SENIOR JUDGE2 

### OPINION

The appellant, Susan L. Adams, a/k/a Shannon Adams, re f erred herein as “the defendant,” appeals as of right from a sentence imposed by the W illiamson County Circuit Court confini ng her for six (6) months in the Williamson County Jail. The defendant presents one appellate issue: Whether the trial court erred i n sentencing the defendant to six (6) month s incarceration for committing the Class A misd emeanor offense of theft under $500.00 After a review of t he entire record, b riefs of the parti es and ap plicable law, we AFFIRM the trial cour

t’s judgment. BACKGROUND On January 4, 1999, the defendant was arrested by security of Proffitt ’s Department Store at Cool Springs Galler ia in Franklin, Tennessee, for concealing two (2)

shirtsand a coat without paying for the merchandise. The value of the items wasfou r hundred five dollars ($405.00). On April 12, 1999 , the defendant en tered a plea of guilty to theft of property under $500. Under the terms of the plea agreement , the place of confinement would be the Williamso n Co unty Jail, and the trial court would impose a sent ence and consider a request for suspension of sente nce. On April 30, 1999, the tr ial court conducted
a sentencing hearing, and, after listeni ng to the testimony of the defendant, the defend ant’s mother, and reviewing ex hibits, the court imposed a s en ten ce of six (6) months in the county jail. The trial

court denied probation. Mrs. Peggy Underhill , the defendant’s mother, testified that her daughter’s first DUI occurred in Kentuc ky two (2) weeks before the defendant’s eighteenth (18th) birthday. The defendant lost her driver’s license but was not put on probation. Thedefendant attended counseling at Pathfinders Alcohol Treatment Center near Gallatin, Tennessee, for thirty (30) days. Mrs. U nderhill stated that the defendant enrolled in an interi or design college in Atlanta, Georgia. She testified that the defen dant was s ho t in the left shoulder while joggingin a park, a nd her go ld necklace was stolen. Her daughter still suffers from this gunshotwo und and h as lost some use of her left arm. M rs. Underhill stated tha t the defendant attempted sui cide twice and sought treatment for depression at Parthe non Pavilion Hospital i n Nashville, Tennessee, on two (2) occasions.3 Mrs. Underhill testified that the defendant was in an abusive relationship with her previousboyfriend, and it was necessa ry for her daughter to obtain protective orders against him. While a protective order was i n force, Mrs. Underhill stated that

the defendant
was in a restaurant

in Nashville, Tennessee, when someone grabbed the defen dant’s hair from behind. The defendant turned arou nd and struck the person w ith a glass. The assailant was the current girlfriend of the ex-boyfriend. Mrs. Underhill stated t hat the defendant was found guilty of ag gravated assault and pl aced on probation for three (3) years. Mrs. Underhill testified that she was awar e that the defendanthad been arrested
a total of four (4) times for DUI and that the defendant was on bond from a DU I arrest when she committ ed the th eft off ense. Mrs. Underhil l wa s also aware of the forgery charges against the defendant but did not know the details. Mr

s. Underhill testified that she did not know that the defendant was using an alias and stated that the defendant w as living with her at the time of the theft and DUI offenses. The defendant testified that her mother’s testimony was correct. She stated that her first DUI was two w

eeks before her eighteenth (18 th ) birthday and that she w as treated as
a juvenile and giv

en a fine. The defendant stated that she moved to Atlanta, Georgia, where she was shot in the left sh oulder, which affected her

. She has recovered approximately ninety (90) percent use of her arm. As an adult, the defendant testified that she has been arrested on three (3) additional ch arges of DUI, one of which was dismis

sed,
one of which she was found not guilty, and one of w hich she is presently

serving. Onher third arrest for DUI, the defendant stated that she was treated at the Buffalo Valley, Inc., Alcohol Treatment Center. The defendant testified tha t she w ent to Parthenon Pavilion twice to help wit h her drin king and d epressio n. The de fendan t stated that she saw a psychiatri st in Hen dersonvil le, Tenn essee, whi le dealin g with her pro blems with her exboyfriend. The defendant described her relatio nship with her ex- boyfriend as being very controlling. Although they dated for sev en (7) years, she did n ot know that he was married but estranged from his wife. The defendant stated that she was taki ng medication for her depression but was persu aded by her ex-boyfri end to stop takingthe medication. Since her incarceration at Co rrect ions Corporation of America, the defendant has resumed taking hermedicat ion. She sta ted that sinc

e she has been in jail, s he realiz es that she mu s t4

select her friends more carefully and that drinking is not

the solution. In fact, the defendant stated that if sh e had been inc arcerated upon her first arr est, she would not have reoffended. As to the aggra vated assault c harge, th e defen dant tes tified t hat she h ad the exboyfriend arrested for stalking an d violation of the protective orders. The situation was so volatile that she had to q uit her jobas a van driver for a day car e center. The defendant stated that the ex-boyfriend beat her badly once at a gas station. The defendant testified that she was in the parking lot ofa restaurant when she saw her ex-boyfriend. While inside the restaurant, her hair was grabbed from behind. Thi nking that it was the ex- boyfriend, she turned and hit the assailant with a glass. She stated that she pled guil ty to aggravated assault and was given thr ee ( 3) years probation. She stated that arr est warrants for violation of probation w ere pending as a result of the theft charge. As to the theft charg e , the defendant testified that she was incarcerated at Corrections

Corporation of America in Davidson County for her third DUI when s he met Marcia Baldwin. After the defendant was released from incarceration, Ms. Bal dwin called her on New Year’s Eve, and they went shopping at the Co ol Spr ings Galleria. After Ms. Baldwin ran out of money, s he asked the defendant toput two (2) sweats hirts in her bag and leave the store without paying for them. The defendant stated that she knew w hat she
was doing, and she took the bag o ut of the store. She was stoppe d. Prior to the incident, th e defendant and M s. Baldwi n had sever al drinks a

t Ruby Tuesd ay’s in th e Mall. Th e defendant testified tha t she was due to be re leased from t he Davidson Coun ty DUI charge
on May 1, 1999, and her violation of probation was set for May 6, 1999 . The defendant stated that she intends to retur n to school and has two (2) jobs awaiting her release. When asked in cross-examinatio n why t he defendant did not give her t rue name, the defendant testified that her name is Shannon Suzette A dams , although she told the arresting officer her name was Susan Lee Adams.She stated that she was embar rassed to give her true name and did not want her name to appear in the paper. When asked for her date of birth, the defendant stated that it was August 2, 1972. How ever, she gave the arresting officer

the date of August 4, 1972. Later in her testimony, the defendant testified that her true date of birth is August 22, 1972. W hen questioned as to why her address at5

arrest was 1112 Lenox Gables, A tlanta, Georgia, the defendant s tated tha t the officer called the Department of Safety and obtained that add ress. She admitted that as o f January 1, 1999, she was living i n Franklin, Tennessee. The defendant denied that she
was trying to hide her address from anyone. As to the for gery charges, the defenda nt testified that she was living in an apartment complex when a neighbor gave her a check. The neighbor

asked the defendant to cash the check, which she did, althoug h she knew it was a forgery. The defendant testified that the three ot her checks were cashed by the neighbor, which the defendant knew were forgeri es as well. It was stipulated by the State and the defendant that the trial court c an consider the four(4) arrest warrants issued for the defendant by the Clerk of Sumne r County on March 8, 1998, for the offenses of forgery. These offenses w ere retired upon payment of restitution. Also, the trial court was to consider a judg ment of conviction for the defendant
on March 1 1, 1999, for the o ffense of D UI, sec

ond off ense. She recei ved a fine of six hundred dollars ($600.00), and confinement for eleven (11) months and twenty-nine (29) days, with the defendant to serve ninety (90) days, and the balance of th e sentence o n probation for eleven (11) mont hs and twenty-nine ( 29) days by the Dav

idson County Criminal Court. The d efendant was given twenty- one (21) days credit. Further, the trial court was

to consider a judgment of the Dav idson County Probate Cour t for a conviction of DUI, first offense, by the defendant on October 11, 1993. The defendant wassentenced to a fine of two hundred fifty dollar s ($250.00) and eleven (11) months and tw enty-nine (29) days confinement, with eleven ( 11) months and twenty-ni ne (29) days of supervi sed probation. LEGAL ANALYSIS The defendant asserts that the evidence at the

sentencing hearing w

as insufficient to support a judgment

of six (6) months

in incarceration. Fur

ther, the defendant contends that the trial court erred i n not finding mitigating factor (1), Tennessee Code Annotated § 40-35-113, to wit: the defendant’s cri minal conduct neither caused nor threatened serious bodilyinjury. The State counter s that the record reflects th at t he trial court properly considered all applicable sentencing factors correctly in imposing the sentence. When a defendant complains of his or her sentence , we must co nduc t a de novo6

review with a presumption of corr ectness. Tenn. Code Ann. § 40-35-40 1(d) (1997). The burden of showing that the sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401 Sentencing Commis sion Comments at 590. This presumption, however, “is conditioned upon the affirmative showing in the record that the tri al court considered the sentencing principles on all rel evantfacts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). I n conducti ng a de novo review of a sentence, this Court must consider: (a) the evidence, if any , at the sentencing hearing ; (b) the pre-sentence report, if any; (c) the princi ples of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the cr iminal conduct; (e) any statutory mitigatin g or enhancement factors; (f) any statement that the defendant made i n her own behalf; and (g) the potential or lack of potential for rehabilitation or

treatment. Tenn. Code Ann. § 40- 35-103, -210(b) (1997 & Supp. 1998). In determining a proper misde meanor sentence, the trial cour t need only consider the principles of se ntencing and en hancement and mitigating factors in order to comply wit h the l egislative mandates of the mi sdemeanor statute. Tenn. Code Ann. § 40- 35- 302(d); State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998); State v. Creasy, 885 S.W.2d 829, 832 (T enn. Crim. App.) perm. app. denied (Tenn. 1994). The record clearly est

ablishesthat the trial court fully complied with the principles of sentencing as mandated by th e Tennessee Reform Sent encing Act of 1989. In enhancing the sentence, the trial court found two (2) factors applicable: (1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriat e range; and (8) the defendant has a previous history of unwillingness to comply withthe cond itions of a sentence involv ing release in the
commun ity. Tenn. C ode Ann. § 40-35-114. The record full y supports the applicati on of these enhancement facto rs. The de fendant has a history of DUI co nvictions and participated in forging stolen checks. The defendant, at the ti me of the commission of the theft, was on bail release for DUI and on probation for the offense of aggrav ated assault. As to mitigation, the trial court did not apply any factor. Although miti gation factor (1), that the defendant’s criminal conduct neither caused nor thre atened serious bodily injury, is applicable, we find in our de novo review that the

defendant is entitled to littl e weight as to7

this factor. Tenn. Code Ann. § 40-35-113. Also, the trial court found that the defendant
was not candid in her testimony as to the correctness of he r name and a ddress. More specifi cally, the defendant would not answer a direct question as

to her name or address. We f ind that the defendant’s sentence of six (6) months incarceration is not excessive. The defendant's consistent history of criminal conduct and her poor history of rehabilitation outweigh the defendant’s arg ument that twenty-one (21) days in custody has taughther the error

of her ways. We are unfavorably impressed that the de fendant, while
on bond a nd during probation, intentionally decided to assist a fellow inmate in stealin g itemsfrom a department store. The efforts of

past counseling for DUI’ s and psychological treatmenthave not been successful to rehabilitate this defendant. Th ere is no merit to this issue. The trial court’s judgment of six (6) months confinement i s affirmed.

L. T. LAFFERTY, SENIOR JU DGE

CONCUR:

DAVID H. WELLES, JUDGE

JERRY L. SMITH, JUD GE