# FILED July 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE , §

APPELLEE § VS. C.C.A. No. 01C01-9706-CC-00234 § MARSHALL COUNTY HONORABLE CHARLES LEE LESA MAE MALONE §

APPELLANT (SENTENCING)

FOR THE APPE

LLANT FOR THE APPELLEE Robert H. Plum mer, Jr. John Knox Walkup 415 Bridge Street Attorney General and Report er P. O. Box 1361 425 Fifth A venue, N orth Franklin, TN 37065-1361 Nashville, TN 37243 Karen M. Yacuzzo Assistant Att

orney General 425 Fifth A venue, N orth Nashville, TN 37243 W. Mich ael

McCown District Att

orney General Marshall County Courthouse Lewisburg, TN 37091 Weakley E . Barnard Assistant Dist

rict Attor

ney General Marshall County Courthouse Lewisburg, TN 37091

OPINION FILED: _______________________

AFFIRMED L. T. LAFFERTY,

SPECIAL JUDGE

OPINI ON2 The defendant, Lesa Mae Malone, appeal s as of right from the length and manner of service of a s entence imposed by the Marshall County Circuit Court f or theft of over $ 60,000, a C lass B felon y. She rece ived a sente nce of ten (1 0) years in the Department of Correct ion. The defendant complai ns the tria

l court: ( 1) improperly denied t

he alternati

ve sentencing of community cor rections,(2) improperly used the defendant’s pretrial diversion fr om 1984 as a conviction and also an element of the cri

me to enhance the punishment, and (3) improperly use d the concept of deterrence w hen there was no evidence to that effect in the record . After a revi ew of t he ev iden

ce i n thi s re cord , the bri efs of t he pa rties, and t

he appli cabl

e la w, we affirm the trial court’s ju dgmen t. FACTS The M arshall Cou nty grand jury indicted the defend ant in indictm ent # 12990, involving 356 count s of forgery and i

n count 357, theft

of property over $60, 000. The of

fens es oc curr

ed between October , 199 3 thr ough Janua

ry, 1996.On December 11, 1996, the defendant entered a plea of

guilty to count

357, theft of proper ty over the valu e of $60 ,000. T he othe r 356 co unts of f orgery were d ismisse d. The trial court

set a hearing f

or February 5, 1997, t

o determine the lengt

h of the sentence and the manner of s ervice. The Stat e alleges in al

ternative count

s (356) of forgery an d uttering tha t the defend ant intende d to defraud or harm th e Marsh all Medical Center of Lewisburg,Tennessee and Nationsbank of Tennes see. In count 357, the State a

lleges that

the defendant, between October 15, 1993, and J anuary 19, 1996, com mitted the o ffense of the ft of property from the L ewisburg Comm unity Hospital DBA Marshall Medical Center i n the amount of One Hundred Twenty-Five Thou sand N ine Hu ndred N ine Do llars and eighty c ents, ($1 25,909 .80).3 At the entry of t

he open plea of guilt

y, the State s

ubmitted a sti

pulated statement of fac

ts as to how the defenda nt committed these var

ious offenses. The State believe d it could pro ve the defe ndant, wh ile an emp loyee in the payroll department of the Lewisbur g Community Hospital, forged ce rtain employees’ c ards and time sheets by cutting checks for certain amounts and forging the employees’ names and cashing the same at a bank.A copy of the presentence r eport, int roduced in the sentenci

ng hearing (and in t

he record) descri

bes the defendant’ s criminal activiti es as being achieved by t he defendant submitt

ing false t

ime sheets for al

leged overtime hours on various employees in the nursing department to payr oll and having additional ch ecks issued . The defe ndant w ould then fo rge the em ployees’ n ames on to the checks, co-sign the checks, a nd cash them at a local

bank. Twenty-nine (29) employees were the victi ms of this scheme. Upon being conf ronted by the hospi

tal administrator

s, the defendant

admitted to committi

ng these offenses . Also, the defend ant con fessed to the Lew isburg P olice as t o how she com mitted these o ffenses

. In the presentence report, the defendant offered her version of the events: “I began approximately i n 1994 falsifyi

ng time sheets and havi ng make-up checks written on ot her employees, then I

would cash them for myself. I was having pr oblems getting my child support and I used t he money for myself and to take ca re of my children. It became regular t o do until I w as term inated. I r ealize w hat I did was v ery wr ong an d disho nest. I was try ing to tak e care o f my c hildren , but I did live bey ond m y mea ns. I would like the c hance to pay b ack the mone y if it take s the rest of my life. I am ve ry sorry for wh at I did.”

SENTENCING HEARI NG In her request f

or a minimum sentence and alter native sentenci

ng, the defendant offer

ed the testi

mony of six witnesses,including hers elf. At the commencement of the hearing a disagr eement arose between the St ate and the defendant about an ar

rest for embezzle

ment in 1984. The record est ablishes tha

t the defendant had been arr

ested in 1984 for f

orgery in six ( 6) counts in which she4 forged checks of her e

mployer, Dr. Beech, i

n the amount of $1,900. Apparent ly, the defendant was placed on pre trial di version, restitution made and the charges dismiss ed and expunged. The trial court believed t

here was a question of t his arrest being relevant in t

he absence of a convict ion, but may have become relevant on the question of deter rence a s to the d efenda nt. Mrs. Cathy Darnell, ol

der sister of the defendant,

advised the tr

ial court t

hat the defendant has a very good r elationshi

p with her two daughters, ages eleven (11) and thirteen ( 13). Mrs. Darnell de scribed her si ster as tr ying too hard to pr

ovide for her children and wanting t

o give them the best of

everything. Mrs. Darnell believe d her sister had suff ered so m uch and h ad learned her lesson. M rs. Darnell ad mitted she did not ask the defendant

what she had did with the $125, 909.00, nor had the def endant volunteered any inf

ormation. The witness

saw no evidence of extrava gant living on her sister ’s part. However, t he witness was aware that her sister

lived on a farm in a medium price hom e, drove an Explorer, a nd had b ought tw o horses fo r family recreation and showing. Mrs. Darnell agreed the purchases and upkeep of these horses were expensive. Mrs. Darnell was aware of her sister’s arrest in 1984 and talked to her about

the event at t

he time. The witness i

nformed the trial

court that t

he defendant’s fi

rst husband more or les s abandoned the defendant by entering the military ser

vice and leaving t

he defendant with two babies. An interest ing aspect of Mrs. Darnell’s t

estimony revealed t

hat she and the defenda nt had agreed to off

er approximately $40,000 f or a Merle Norman cosmetic franchi se, in Pulaski , Tennessee in October, 1996. The def endant was to pay $20,000 for her share of the f

ranchise or be at lea st respo nsible fo r her sha re. Ms. Virg inia Stuart an d Ms. Jam ie Ellis, co-em ployees o f the defend ant while at the Lewisburg Community Hospital , advised the t rial court that they had t

he occasion to observe

the defendant advance f rom a switchboard operator to5 secretary of th e Director o f Nursing . They bo th left the hosp ital in 1993 a nd wou ld see the defe ndant on a social basis, eith er in her hom e or at horse shows. B oth witnes ses cha racterize d the de fendan t’s relatio nship w ith her ch ildren as very lo ving. Both w itnesses did n ot observe any extrav agant living on the defe ndant’s pa rt. Both witnesses express ed surprise at the hearing in l

earning the defenda

nt had been arrest

ed in 1984 for a similar offense, but , being friends with the defendant , concluded that

the episod e in 198 4 wou ld not ch ange th eir min ds con cerning the defe ndant. Mr. Roger Malone, the defendant ’s husband, testified he and t he defendant married a couple of year s before the hear

ing. His wife was employed at the hospital as a secretary and he d id not know he r salary. Mr. Malon e was aware of his wife’s problems with her ex-husba nd and his refusal

to pay child suppor

t. Also, Mr. Malone

was aw are of th e defen dant’s p ast arres t and un derstoo d restituti on had been m ade. Mr. Malon e is a vinyl siding installer, who ow ns and paid for his sixty-on e (61) acre farm, wh ich contain ed a me dium thre e bedroo m hom e. Mr. M alone estim ated his income at about $50,000 t o $60,000 in a good year. Mr. Malone advised the trial court that the defendant’s tw o children attended pu blic schools. As to the offense , Mr. Malone learned about the c harges two months after the defendant had been r eleased from the hospital. The d efendant had hidd en this matter from he r husband. M r. Malone stated his reaction as follows:

“I was very upset, ve

ry hurt. I worked har

d all of my life

and tried to make every dollar that I could to pay m y own bills, and it really hurt me”. The defendant never sat isfactori ly explained t

o her husband why she did it. When asked where the $125,909.80 went, the witness r esponded: “I can’t tell you . I have aske d her a hu ndred tim es, and she can’t tell me. If she had gone out and bought a $50,000 vehicle or

a $50,000 horse or $25,000 diamon d ring, I could understan d where part of it wen t. I lived with her during thi s time. I couldn’ t explain to you where t hat kind of money went”

.6 Mr. Malone confirmed that t he defendant purchased t wo spotted geldings f

or about $3,300, leased an Expl

orer in her own name, and paid f or some lawn shrubbery for t he home. Althou gh the defendant w orks, Mr. Malo ne, as to restitution, stated: “I don’t see any way s he can make full restitu tion.” Mr. Joe “Buck” Beard, a very close friend of t he defendant’s husband, advised the trial court of his obs ervations of t he defendant over sever al years. Mr. Beard was a former deputy with the Lewis County Sheriff’s Department and a former member of the Lewisburg Police Depart ment. Since 1993, Mr. Beard had s een the defendant at horse shows, mainly on weekends. He asked the defendant what she did with the money, to which she repli ed she didn’t know. Mr. Beard t estified that the defenda nt did not live an e

xtravagant li

festyle and t

hat possibly s ome of the money went for hors es and traini

ng. Mr . Bea

rd became a

ware of the def

enda nt’ s pas t of

fens e two weeks prior to the he aring. The defendan t was married at age seventeen (17) and two children we re quickly born. The def

endant and her husband separ ated in 1985. He joi

ned the military service leaving her wit h a thirte en (13) mont h old an d a five ( 5) mo nth old

. She received some child support while her husband was i n the service,but this ended when h e ret

urne d. Si

nce t he de fendant’ s di vorc e, s he ha s wor ked a t var ious jobs . At the sentencing hea

ring the defendant

was working two jobs, one at Bri ndley Construction Company and one at a conveni ence store on the weekends.She estima tes her in come at $300 every tw o wee ks. At the first

of February, 1996, t

he defendant was confront ed by an administrator

of the hospita

l concerning the pa

yroll checks. The defendant admitted what she had done and took sole blame for these offens es, includi ng a statement of admission. The defendant described how she comm itted these offenses: “Q. --how did you decide to start doing this?7 A. I remem ber someone needing a ma keup check d one-- Q. What is a makeup check? A. A makeup check is a --was a check that was written that

was produced that wasn’t actuall

y pulled off of t

he payroll sheet . If an error had been made, if they didn’t clock i

n or clock out or i

f someone failed to pa

y them educational pay or whatever the pay was, a makeup check w as issued.--I never planned on doing it. It just happened.

******* Q. So within three t

o four months of being pl aced in this new posi tion, you started stealing ; is that correct? A. Ye s, sir. Q. That ste aling contin ued until yo u got caug ht? A. Ye s, sir.” The defendant submitted t o the trial

court a summary of where she believes the money went and for what. T he defend ant accou nted for app roximate ly $71,000 in this twenty-seven (27) month period of theft, ranging from the purchase of a horse ($3,500), an Explor

er ($10,000), Wal-Mart ($9,000), ut

ilities, and a cell

ular phone ($2,500). The tot

al did not count c

hild care, clothes or cash s pent. The defendant admitted she had the l

ove of her husband, a home, f ood, clothing and t

he care of her children. W hy then did the defend ant com mit this theft? “Q. W hat you are saying is: Y ou spent m oney on your fam ily, but that w as to bring them up to the l

ifestyle that you wanted? A. Right. Q. It wasn’t necessities; it was life style? A. Yes sir, you are r

ight.”8 The defendant furthe

r admitted that

in 1984 she had stole

n $1,900.00 from her employer, Dr. James Beech. The def endant was granted pret rial diversion. The defend ant adm itted adv ising the court sh e wou ld neve r do any thing lik e this ag ain. After an eloquent and passionate ple a for an eight ( 8) year sentence and probation based on t

he requirement of re stituti on in behalf of t

he defendant, t

he trial court sentenced t

he defendant to a mid-r ange sentence of te

n (10) years in t

he Department of Correction.

MANNER OF SERVICE OF S ENTENCE We w ill first review the defendan t’s compla int that the trial cou rt imprope rly denied an alter

native sentence , to-wit; community corrections. Our review of the manner of service of a sentence is de novo upon the record with t he presumption that the trial court’s deter

mination is corr

ect. Tenn. Code Ann. § 40-35-401 (d). Such a review requires us

to consider t

he evidence present

ed at the guil

ty plea and sentencing hearing, the pr

e-sentence repor

t, the pri nciples and purposes

of sentencing,the argument of counsel, the nature and char acterist ics of the off

ense, the existing mitigating and enha

ncing factors,

the statement of

the defendant, and the potenti al for rehabilitation. T enn. Cod e Ann. § 40-35-10 2, -103, -21 0; State v. M oss, 727 S.W.2d 229 (Ten n. 1986); State v. T aylor, 744 S .W.2d 919 (T enn. C rim. A pp. 198 7). The defendan

t ar gues tha t to pl ace her in t he community c orr

ect ion s pr ogr am, in lieu of incar ceration, is bes t for her rehab ilitation. Since the defendan t is not a violent nor an habi

tual criminal , she can be rehabi litated i n such program and counseling . Further, the d efendant c ontends sh e should n ot be denie d comm unity corrections pl

acement due to her prior bad act at the age of

nineteen (19),as that offense occurred ni

ne (9) years prior to the curre nt offense. Si

nce her arrest , the defendant has sought c ounseling, which has had a positive ef

fect on her li

fe and outlook. Her m otive in comm itting the present offense was to b e sure her9 family stayed wit

h her. She acknowledges her ac tions were wrong and she recogni zes they w ere wr ong. In response, t

he State contends t

he trial cour

t was correct i

n ordering the defendant to ser

ve a mid-range sentence a nd in ordering t

he defendant to ser

ve her sentence in confinem ent. Further, the S tate contend s that the trial cou rt was corre ct in applyin g certain enhancing factors

to raise t he defendant’s sent

ence from the minimum of eight (8) years to ten (10)

years, six ( 6) months and by applying one miti gating factor

to reduce the sentence to t

en (10) years. Als o, the tri al court was corre ct in denying an alternative sentence to the defendant in the f orm of commu nity corrections. At the conclusion of

the hearing, t

he trial cour

t set out i ts rulings as to the proper sentence and denial of an alternative sentence . The trial court found four factors appli

cable to the sent

encing procedure. In mitigation the trial court found the defend ant’s crim inal con duct ne ither cau sed no r threate ned ser ious bo dily inju ry. Tenn. Code Ann. § 40-35-113 (1). I n enhancement the tri al court found t hree (3) factors: the defendant has a previous history of cri minal behavior in addition to those

necess ary to es tablish th e appro priate ra nge, T enn. C ode A nn. § 40-35-114(1); t

he offense involve

more than one victim, Tenn. Code Ann. § 40-35- 114(3); and, t

he defendant abused a posi tion of priva

te trust, or used a special

skill in a manner that significantly f acilita ted the commission or t he fulfil lment of the offens e, Tenn . Code Ann. § 40-35 -114 (1 5). The trial court

in applying enhancement f actor (1)--history of cr

iminal behavior--was im pressed the defenda nt began com mitting these offenses six yea rs after completi

ng diversion in 1987.Also, the trial court st ated, “The Court does find that enhancing factor ( 1) and does place significance on the fact that

we are dealing with vi

rtually t he same type of offense, even though comm itted in d ifferent w ays. By that, I m ean diff erent sc heme s.”10 As to enh ancem ent factor (3)-- more tha n one victim --the trial court fo und this factor appli

cable because of t

he unique facts i

n the case and the unique methodology employed b y the defendant to acc omplish the crime . The presentence rep ort contained a vict

im impact statement f

rom the Marshall Medical Center outlining t

he effect of t

hese forged checks on var ious employees in deal

ing with the IRS. The t rial court gave this factor less weight than the others. The trial court

placed great weight

on enhancement factor (15) --a violat ion of private tr ust and special

skill in assessing the pr oper sentence, “The court notes with i

nterest t hat on the expendit

ures which were had during this t

ime, the defendant

spent some money to go to some accounting school an d take som e accoun ting course s while she was using those skills to, apparentl

y, purloin funds

from her employer. So that would be a special skill in ad dition to the viola tion of tru st.” The defendant must establ ish the burden of showing that the le ngth or manner of servic e of the s entenc e impo sed is im proper . Tenn . Code Ann. § 40-35 -401(d ). Sentencing Commission Com ments. However, the presumption of correctness attached to t

he trial cour

t’s determinat

ion is condit

ioned upon the affi

rmative showing in the record t

hat the tri al court considered the sentenci ng principles

and all releva

nt facts an d circum stances . State v A shby, 823 S.W.2d 166 (Tenn. 1991). Persons who are especiall

y mitigated or st

andard offenders convi

cted of Class C, D or E fel onies are presumed to be favora ble candidates f

or alternat

ive sentencing opt

ions in the absence of evidence t

o the contrary. Tenn. Code Ann. § 40-35-102 (5). Si nce the defend ant has plead g uilty to th eft over the valu e of $60 ,000, as a stand ard offe nder, a Class B fe lony, the de fendant is n ot entitled to the presum ption of a fav orable candid ate for a n alterna tive sen tence. We believe there is ample evidence in the record to support the trial court’s determination t

hat the defendant ’s ten (10) year sentence is prope

r. The defendant complains that t

he offense of 1984 should have littl e weight in determini

ng an11 enhancement of the sente nce and it was error

to consider t

his offense i

n enhancing the defendant’s sentence. W e agree with the trial court’s assessm ent that the defendant’s actions in 1984 and t

he present offens e are very signi ficant. I n 1984, the defendant stole $1,900 fr

om her employer and, due to the be nevolence of our cri

minal justic e system, had the benef

it of pret rial diversion and no criminal record. The natur

e of these offenses

are too simila

r for a tri al court to over look. Enhancement factor (1) was p roperly consid ered by the trial co urt. State v. W illiam Jeffrey Ca rico, S.W.2d (Tenn. 19 98). There is no merit to this comp laint. Second, the defendant

complains the tr

ial court i

mproperly found enhancement factor (3)--m ore than on e victim--ap plicable. Th e defenda nt argues th is assessm ent is akin to stat

ing an assault

or robbery has more than one ( 1) victim because t he families of the victi

ms suffer as a dir

ect result of the actions . A review of the pres entence report establ

ishes the defenda

nt defrauded twenty- nine (29) separat e co-employees, as well as the hospi

tal, in f orging these “make up” checks.When these various employ ees attemp ted to correc t their respectiv e financial co nditions, esp ecially with the IRS, that would be one mean task. Although the t rial court did not give thi s factor great weight, t

he overall eff

ect on these vari

ous employees of these f orgeries was substantial. T he trial court p roperly con cluded tha t there was m ore than on e victim in this case, thereby justifying the use of en hancemen t factor (3). The defendan t’s second c omplain t is without m erit. Third, the d efendant c omplain s the trial impr operly fou nd enhan cemen t factor (15)--trust or use of s pecial skill--appli

cable. The defendant points out trust

was ce rtainly in volved , but ther e was n o proo f of a spe cial skill b eing inv olved. However, the trial

court, in as sessing the f acts as to exact

ly how the defendant accomplished the se thefts, believed she utilized her acco unting classes to further12 her schem e. We find ample ev idence in th is record that th e trial court did p roperly find this enh ancem ent applicab le to this defen dant. Ther e is no me rit to this comp laint. Although, the defenda

nt contends the t

rial court should have given great er weight to the miti

gating factor

(1) to impose a sent

ence of eight (8)

years, we find t

he trial cour t correctl y balanced the weight f or each factor i

n arriving at

a ten (10) year sentence. The tr

ial court’ s judgment is aff irmed. Denial of Community Corrections Program The defe ndant stron gly conten ds she m eets the requ irements fo r sentencing into the com muni ty corre ctions p rogram in orde r to reha bilitate he r. Tenn . Code Ann. § 40-36-106--Eligi

ble Offenders, s ets out minimum criter ia for persons a

pplying for alternative sentences. The de fendant subm its she falls within the criteria of: (2) Persons who are convic ted of property-

related, or

drug/alcohol-related felony offenses

or other felony of

fenses not invol

ving crimes against

the person as provided i

n title 39,

chapter 13, part

s 1-5; (3) Persons who are convicted of nonviolent offenses; (4) Persons who are convic ted of felony off

enses in the which t

he use or possession of a weapon was not i nvolved; (5) Person s who d o not dem onstrate a pa ttern of com mitting viole nt offenses; More particularl

y; (C) Felony offenders

not otherwise el

igible under subsection (a), and who would b e usually co nsidered u nfit for proba tion due to h istories of chro nic alcohol, drug abus e, or mental heal th problems, but whose spe cial needs are treatabl

e and could be served best in the community rather than in a correctional

institut ion, may be considered el igible for punishment in the commu nity under the provisions o f this chapter. The defendant argues t

hat if thes e offenses had been committed because of an alcohol or drug probl

em, it would be reasonabl e to assume she would receive community corrections, because her problem would be tr eatable. The def

endant13 concedes her actions do not rise t o the level of mental

health problems,but through her testi mony and her counselor her probl ems are treatabl

e. Through her test

imony, the defendant verba

lized her fear

s concerning her past

marriage, her loss of her children, and her ultimate realization th at her fears were m isplaced. Her counse lor, Susan M iller, a licensed c ounselor a nd therapis t, believes the d efendant c an refrain from th is type o f activity and tha t superv ised pro bation a nd ther apy w ould be nefit her

. Thus, the defendant , through her misguided mental perceptions, is tr eatable in a

comm unity co rrection s system . The trial court

, upon finding t

he defendant inel

igible for probation, began a

n analysis of t

he defendant’s re

quest for community corre ctions placement. The trial court found no li

mitations on the

sentence for community corr ections under Tenn. Code A nn. § 40-3 6-106(a). In denying th e defenda nt’s request fo r comm unity corrections,

the trial court was most concerned tha t the defendant ut

ilized her pos ition of trust t o defraud her co-employees and the hospital , and with the la rge amount of money taken, $125,909.80. In referri ng to the sentenci

ng principles

of Tenn. Code Ann. § 40-35-102 (2) and (3) , the tri al court st ated: “Mr. Plummer has done a very good job in ar guing what the effect of t

he impact of confinement t o this lady would be upon her and her family. But the Court

has to sit i

n a position where i

t views not only t

he defendant and what would be best for the defendant, but it has to view the Court’s decision on society as a whole.

What message would we be sending to our societ y, the other people out there who are working in employment situat ions, young people, if we told them that

you can steal fr

om your employer, not once, and t he second time you steal

from your employer, you can st eal $125,000 and you won’t go to jail ? I’m afraid that message has too often been s ent to the young people of our socie ty and our societ

y in general. That

is that which the Court has to cons ider is not onl y the impact upon this

defendant but upon society as a whole.

The Court do es feel that the crime of this nature that the C ourt has no other alt

ernative than t

o incarcerate

the defendant for

the crimes that she has comm itted.”14 A trial court

is entit led to a presumpti on of correctness in determining a pr

oper sentence if it correctly applied the principles o f sentencing and its findings are suppo rted by the evid ence. State v. B oggs, 932 S .W.2d 467, (T enn. C rim. A pp.. 1996). Although, t

he trial cour

t did not comment on the sent encing principl

es of Tenn. Code Ann. § 40-35-103 (1), ( B) the trial

court did consider this subsection. Tenn. Code Ann. § 40-35-103: (1) Sentences invol

ving confinement should be based on the following circumstances: * * * (B) Confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is part

icularly suited to provide an effective deterrence to others likely to comm it similar offen ses; The sentence imposed should be no gr eater than tha

t deserved for t

he offenses committed, and any inequi ties in sent

encing should be avoided.The sentence imposed should be the le ast severe measure nec essary to achie ve the purposes of t

he Sentencing Act of 1989. A defe ndant’s potent

ial or lack of

potential f

or rehabili

tation or treatmen t should be considered in determ ining the sen tencing altern ative or leng th of term. Trial

judges are encouraged t o use alternat

ives to incar

ceration that

include victim compensation,reparation,or community service. Tenn. Code Ann. § 40-35- 103 (2), (3), (4 ), (5) and (6). W ithin this conte mplation is the placem ent of an elig ible candid ate for c omm unity co rrection s. In State v. C umm ings, 868 S.W.2d 661, (Tenn. Crim. App. 1992), Judge Summers speaking for this court said about

the role of t

he community corrections pro gra m: “The Tennessee Com munity Corrections Act of 1985 was passed by the 1 st Extra ordina ry Sess ion of th e 1985 Gene ral Ass embly

. The purposes of community correct ions was to establ

ish a policy t

o punish select

ed, non-violent

felony offenders

in front end community15 based a lternativ es to inc arceratio n. Bec ause of prison o vercro wding , comm unity correc tions was a way to re serve secu re confinem ent facilit ies for viol

ent felony offe

nders. As part of

the goals of t

he Comm unity Cor rection Ac t, the Gene ral Assem bly establishe d efficient community corrections programs; promoted accountability of offenders to t hei r lo cal commu nit

y; f il led gaps in t he l ocal cor rec ti onal sys tem through the development of a range of sanctions and services;reduced the number of non-violent felony offenders in correctional insti tutions and jail; a

nd provided ‘opportuni ties for of

fenders demonstrat

ing special needs t

o receive servi

ces which enhance their ability t o provide for their families and becom e contributing mem bers of their comm unity’. T enn. C ode A nn. § 40 -36-10 4.” We agree that the defendant may be entitled t

o consideration of the benefit s of a community corrections pr ogram, but was the defendant eligible pur

suant to Tenn. Code A nn. § 40-3 6-106 (c)? The defe ndant m ust establish u nder subs ection (C) s he is suitable for placement in the community corrections program. The defendant must establish a history of chronic alcohol,drug abuse, or mental health problems; these factors we re reasona bly related to a nd contribu ted to the offe nder’s crim inal condu ct; the identif

iable special

need (or needs) are

treatable,

and the treatment of

the special need c ould be best serv ed in the comm unity ra ther than in a corr ectiona l institutio n. We believe the defendant’s misguided mental perceptions do not meet these require ments . Ordinarily , deterrence a lone is not gr ounds for denial of co mmu nity correct ions. State v. A shby, 823 S.W .2d 166, 17 0 (Tenn. 1 991). De terrence is certainly a pr

inciple to c onsider in sent encing, but both c ase law and statut es contem plate tha t consid eration s hould b e qualifi ed. State v. Ashby, su pra; State v. Fletch er, 805 S.W.2d 785, 787 (Tenn. Crim. App. 1991). However, general deterrence, as well as specific de terrence, may be su fficient based on the facts of a particular

case. In State v. M illsaps, 920 S.W.2d 267, 271 (Tenn . Crim. App. 199 5), Millsaps, a bookkeeper and employee for a furni ture company, between 1988 and 1991 stole $80,220. 19. The trial court denied probat

ion on the ground of det errence stating: “I think confi

nement is necessary t

o avoid depreciat

ing the seri ousness of this offens e because it invol ves an incredibl

y large amount of money.”16 In affirming the trial court’s d ecision, Judg e Hayes , speaking fo r this Court, stat

ed: “However, in a case involving facts almost identical to those in the inst

ant case, we observed:

“That the record sup ports the trial court’s reasoning that

if people with s imilar abil ities and i

n similar positions t

o the defendant bel

ieved that t

hey could commit offenses of a similar magnit

ude without having to be confined and without making real resti

tution, t here would be a signif

icant number of them who would yield to criminal temptation with i

mpunity and littl e concern for the har

m caused others---unque stionably,(the sentencing court

) rightful ly considered -- -the need for ef fective deterre nce to o thers like ly to com mit sim ilar, seriou s offens es.” State v. F ranks, No. 03C01-9209-CR-00303 (Tenn. Crim. App.. at Knox ville, De cemb er 22, 19 93). From o ur analysis o f the record, th e defenda nt has not ca rried her bu rden in establishi

ng that she should r

eceive placement in t

he community corrections pr ogram in lieu of conf

inement. The tri al court was corre ct in being concer

ned regarding the seriousness of these m ultiple offenses. The defend ant’s conduct continue d over a twenty-se ven (27) m onth period . She issued , forged, and cashed ap proxima tely six (6) checks a month. The amount of l oss to the defendant ’s co-employees and her employer was an incredibl y large amount of money. Was the defendant really seri

ous about resti

tution? The defendant

offered $10,000 fr

ont end resti

tution, but

the evidence suggested she and h er sister offered $40,000 for a cosm etic franchise in Pulaski, Te nnessee. T here is also ev idence in th is record the d efendant a ttempted to dissuade a co-emp loyee, Bec ky Clark, fro m disclos ing the defe ndant’s actio ns in regard s to Cla rk’s che cks. Another major hurdle the defendant atte

mpted to overcome was the employer thefts of 1984. As to the defendant’ s motive in 1984, the defendant stol

e from her employer because she needed t he money to support hersel f and her very young children. A s previously stated, the defe ndant w as granted p retrial diversion . In this offense the defe

ndant was motivated to s teal, al so for her chil dren, but not f

or

necess ities. The defend ant wa nted the good th ings of li fe, such as trainin g horse s, a17 satelli te dish, cabl

e television, a cellul ar phone, nice clothes, a computer and a ne w Explo rer. We believe the tri al court proper ly considered det

errence in asse ssing the sentence. We ho ld that the facto rs in favor of in carceration o utweigh th e factors aga inst, and the defendant has f ailed to est

ablish that

the trial court erred i

n denying any alternati ve sentence. The tr

ial court’ s judgment is aff irmed.

_____________________________ L. T. Lafferty,

Special Judge CONCUR:

__________________________ Gary R. Wade, Presiding Judge

__________________________ Thomas T. Woodall, Judge