### IN THE CO URT OF CRIMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs May 13, 2 00 9

STATE OF TENNESS EE v . SAM AVERY WIL HOI TE

Direc t Appeal from the Circ uit Court for Bedf ord County No. 16373 Lee R ussell, Ju dge

No. M2008- 01190-CCA -R3-C D - F iled Jul y 24, 2009

The defe ndant, Sam Aver y Wil hoite, was indicted on t en counts of forg ery involving five forg ed chec ks. A Be dford County Circuit Court jury convicted him of eig ht c ounts of forg ery and lesserincluded char g es on two of the co u nts. The trial court merg ed five of the counts, including the lesser- included convictions, with the five other counts and sentenc ed the defe ndant to a n eff ective
term of eig ht y ear s in the Depa rtment of Correc tion. On appea l, he challeng es the sufficie ncy of the evidenc e and the sentenc e imposed by the trial court. After revie w, we aff irm the judgme nts of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

A L A N E. G L E N N , J
., delivere d the opinion of the court, in which D A V I D H. W E L L E S and R O B E R T W. W E D E M E Y E R , J J ., joined.

Michae l J . Colli ns, Assistant Publ ic Def ender , for the a

ppellant, Sam Aver

y Wil hoite.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; D eshea Dulany Fa ug hn, Assistant A ttorney Gene ral; Charles Fr ank Crawf ord, J r. , District Attorney Gene ral; and Michae l D. Randles and Wil liam B. B ottoms, Assi stant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP INION

F ACTS

This case s arises out of the taking of Cathy Gladney ’s purse and chec kbook and subsequent cashingof five una

uthorized chec ks written on her acc ount.

Cathy Gladney
, sole employ ee of L ab Corp in Tullahoma, testified that she laid her purse on

a chair in the kitchen of her work building when she arr ived at work on J uly 9, 2007. She rec alled that L ori Be th Mooningha m came to her office that day for a urine drug scre en. Whil e Mooningha m

was in one of the res trooms and Mrs. Gladney was draw ing someone else’s blood, Mrs. Gladneynoticed two men s tanding in the ki tchen. Mrs. Gladney asked the men to leave and noted that the kitchen had sig ns saying “ Do not enter ” and “ Employ ees O nly .”

Mrs. Gladney testified that she rea liz ed her wallet was missing when she went to lunch that afte rnoon. She called her husband to make sure she had not left her wallet at home and returne d to L ab Corp to se arc h for it ther e. Rea liz ing that her wa llet had been stolen, Mrs. Gladney called the Tullahoma Police Depa

rtment to make a repor

t. Mrs. Gladney also signe d an Affidavit of For g ery with her bank, indicating that she did not write or authorize the chec ks numbere d 2969, 2971, 2972, 2973, and 2975. Mrs. Gladney s ai d s h e l i v ed at 798 Cat Creek Road in Manche ster and did not know t he def

endant. Mrs. Gladney acknow ledg ed that there wer e approx imately six other people in the building at the same time as Mooningha m but said she saw no one other than the two men in the kitchen that da

y

.

David Gladney
, Cathy Gladney ’s husband, testified that he called the bank and canc elled all of thei r ac counts and cre dit car ds afte r Mrs. Gladney rea liz ed her wallet had been stolen. L ater , when the bank sent copies of the chec ks written on their ac co u n t , M r. Gl adney noticed that the chec ks had been cashe d at Two-Way Marke t. He called T im Wil liams, the owner of Two-Way Marke t, to inform him that neither he nor his wife had authorized the chec ks. Wil liams told Mr. Gladney who had been passing the chec ks, and Mr. Gladney contac ted Detec tive Fa rris with the Be dford County

Sheriff’ s Depa

rtment with that information.

L ori Be th Mooningha

m testified t hat on J uly 9, 2007, she went to L ab C orp i n T u l l ahoma for a drug t es t as require d for her promotion to assistant manag er at the Dollar Gene ral Store in Shel b y v i l le. Mooningha

m’s two-y ear -old son; her boy friend, David J ason Wil hoite; and her boy friend’ s fathe r, the defe ndant, acc ompanied her. She rec alled that the defe ndant went with them “bec ause he was g oing to chec k on some painting that he had to do for this lady [.] ” When they

arr ived at L ab Corp, Mooningha m, her bo y friend, and her son went inside, while the defe ndant

rema ined outside in the car

. Howeve r, the defe ndant “kept coming in asking how much longe r we [were] g oing to be

. And he came back in a nd asked wher e the restroom was [located].” Onc e she finished her

test, she re turned to the c ar where the def endant wa s waiting in the backse at.

Mooningha

m testified th at she did not take the defe ndant to chec k on the painting job b ecause the defe ndant “said that he had called the lady and she wasn’t g oing to be home an d h e wanted to ride back to town.” During the drive, the defe ndant “wa s sort of kind of laug hing and was talking about spending other people’ s money .” She returne d to Shelby ville, dropped the defe ndant off at Budg et Motel, and went to w ork. The defe ndant called her while she was at work and asked h er to take him to g et “some money

. . . for some work he had done.” After work that evenin g, Mooningha

m picked up her boy friend and the defe ndant and drove to a woman’s house “betwe en Be ll Buc kle and Wartrac e” at the defe ndant’s direc tion. Mooningha m said the woman’s house was nowher e nea

r Manc hester.

Mooningha

m testified that when they arr ived at the house, the defe ndant went inside for approximately five or ten minutes. When the defe ndant returne d to the car , he had a blank chec k that

-2-he asked Mooningha m to fill out. The defe ndant explained to Mooningha m that the woman owed him money for work he was doing for her, but she was “too fee ble to write [t he chec k] out” and her husband wa s g one. Mooning ham filled out the che ck and the defe ndant walked back to the house
to an elder ly woman sitti ng in a whee lchair. The defe ndant showed the woman the chec k, g ave her a hug, and returne d to Mooningha m’s car

. On t he way back t o S h el by ville, the defendant said he

was g oing to try and cash the chec k, so Mooningha m dropped the defe ndant off at CF’s Food Town. At trial, Mooningha

m identified chec k number 2 9 6 9 i n t h e amount of $120 and signe d “Cathy Gladney” that she filled out for the defe ndant. The defe ndant told her to leave the payee line blank beca use “he didn’t have a

n I D to g et it cashe d.”

Mooningha

m testified that two day s later, the defe ndant called her ag ain asking for another ride to the woman’s house beca use she was g oing to “g ive him an advanc e on some money beca use he was g oing to do some painting.” She drove the defe ndant to the same house, the defe ndant went inside, and h e re turned to the car with a blank chec k numbere d 2972. The defe ndant told Mooningha

m that the woman was still alone and could not fill out the chec k. Mooningha m filled
out the chec k, the defe ndant took it back inside, and then he returne d to the car

. Mooningha m drove the defe ndant sever al place s in an attempt to cash the chec k and then finally dropped him off “down

on the river.” At trial, Mooningha m identified the chec k written in the amount of $135 and signe d “Cathy Gladney .” She noted that a phone number written on the chec k and Two-Way Marke t on the
pay ee line w ere not in her handwriting.

Mooningha

m testified that the defe ndant asked her if she would cash the chec k for him at her bank, but she ref

used beca use she “didn’t know the people persona lly

. . . [or] know if the people’ s chec k was even g ood.” She rec alled that at some point when the defe ndant was in the car with her, he “made a statement like, I wonder if they ’re missing their money now

. . . and was just laug hing.” Mooningha

m stated that she filled out the chec ks for the defe ndant beca use he “ha[d] made sever al threats toward [her]” in the past, and she “kn[e]w how he was when he g ot mad.”

Tim Wil l i am s , owner of Two-Way Marke t, testified that he and some of his employ ees cashe d five chec ks written o n t h e ac co unt of David and Cathy Gladney in J uly 2007. Wil liams

ex p l ai n ed that he knew which employ ee acc epted each chec k beca use t he employ ees init ialed th e tops of the chec ks. Check number 2969 was cashe d by Stephanie Be llinger

. Check 2971 was cashe d by Ang el Warrick. Check 2972 wa s cashe d at Two-Way Marke t, but W illiams could not tell who

acc epted it. He thought that J annie Carmona may have been the employ ee who acc epted that chec k beca use she was “[t] he only one that would usually write telephone numbers” on the chec ks and that chec k had a telephone number on it. Check 2973 was cashe d by J annie Carmona. Wil liams rec alled that he ca shed che ck 2975. All of the c hecks w ere stamped “F or De posit Only ” on the ba ck.

Wil liams testified that the chec k he persona lly acc epted and cashe d, he did so for the defe ndant whom he had known for at least eig ht y ear s. When the defe ndant prese nted the chec k to Wil liams, he said that he had “d[one] work for these people.” W i l l i am s stated t hat when cashing chec ks, he normally called the bank to make sure there is enoug h money in the acc ount to cover the chec k. Howeve r, it was afte r bank hours when the defe ndant arr ived to cash the chec k, so he left a

-3-note for his employ ees not to take any chec ks from the defe ndant “until [he] could g et this verifie d.”

Be fore the acc ount could be verifie d, J annie Carmona cashe d another chec k for the defe ndant on the Gladney s’ acc ount. Wil liams pulled the store’s video surveillance rec ording and saw the defe ndant

come in the store and hand Ca rm o n a a check which she cashe d “without even looking at it.” Wil liams believed it was c heck 2972.

Wil liams testified that sometime later, David Gladney contac ted him inquiring into who had cashe d chec ks on his a ccount, and Wil liams g ave him the defe ndant’s name. Detec tive Fa rris also questioned Wil liams about who had cashe d the chec ks, and Wil liams identified the defe ndant from a photog raphic arr ay

. Ang el Warrick, a former employ ee of Two-Way Marke t, identified the defe ndant in court as

someone she previously had seen in the store. Warrick identified her initials on chec k number 2971 and said she acc epted that chec k as a cashie r at Two-Way Marke t. She was “99.9 perc ent” cer tain the person she acc epted the chec k from was the defe ndant. Warrick identified the defe ndant out of

a photogr aphic lineup as the person who asked her to cash t he chec k. Warrick did not reme mber L ori Be th Mooningham coming into the store

.

Detec tive Br ian Fa

rr i s wi t h the Be dford County Sheriff’ s Depa rtment testified that he

rec eived a telephone call from David Gladn ey on J uly 23, 2007, informing him that his wife’ s chec kbook had been stolen and some of the chec ks had been cashe d by the defe ndant at Two-Way Marke t. Detec tive Fa

rris showed Tim Wil liams and Ang el Warrick photogr aphic arr ay s from which both identified t he defenda nt. Detec tive Fa

rris l ater interviewe d the defendant, and the defendant denied knowing any

thing about the chec ks. During t h e i n t erview, the defe ndant “bec [a] me bellige rent and [Detective Fa rris] terminated the interview.” He interviewe d Mooningha m, and she admitted to signingtwo of the c hecks f or which she was c harg ed with two counts of f org ery

.

The jury convicted the defe ndant of forg ery in counts one, three
, four, five, six
, seven, nine, and ten, a nd of the lesse r-include d char g es of both attempted forg ery and facilitation of forg ery in
counts two and eig ht. Noting that the even- numbere d counts were alternate theories of the oddnumbere d counts, the court merg ed the defe ndant’s convictions in counts two, four, six
, eig ht, and ten into his convictions on counts one, three , five, seve n, and nine.

ANALYSIS

I. Su ff iciency of the Evid ence

The defe ndant challeng es the sufficie ncy of the evidence convicting him of five counts of forg ery

. Specifica lly
, he argues that there was no proof he intended to harm or defr aud anyone. When revie wing a challeng e to the sufficie ncy of the convicting evidenc e, we note that the rele vant question of the revie wing court is “ whether
, afte r viewing the evidenc e in the light most favor able
to the prosec ution, any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

-4-see also Tenn. R. A pp. P. 13( e) (“F indings of g uilt in criminal actions whether by the trial court or jury shall be set aside if the evidenc e is insufficient to support the finding s by the trier of fac t of g uilt beyond a rea sonable doubt.”); State v. Evans, 838 S.W .2d 185, 190-92 (Tenn. 1 9 9 2 ); S t ate v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992) . All que stions involving the cre dibilit y of witnesses, the weight and value to be g iven the evidenc e, and all fac tual issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987). “A g uilty verdic t by t h e jury
, approve d by the trial judge
, acc redits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Gra ce, 493 S.W .2d 474, 476 (Tenn. 1973). Our supr eme c ourt stated the r ationale f or this rule:

This well-settled rule rests on a sound foun d at i o n

. The trial judge and the jury see the witnesses fac e to f ace , hear their testimony and observe their demea nor

on the stand. Thus the trial judge and jury are the primary instrumentality of justice
to deter mine the weig ht and cre dibilit y to be g iven to the testimony of witnesses. In the trial forum alone is there human atmosphere an d t h e t otality of the evidenc e cannot be repr oduced w ith a written re cord in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W .2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1 9 6 3)). A jury conviction remove s the presumption of innocenc e with which a defe ndant is initially cloake d and repla ces it with one of g uilt, so that on appeal
, a convicted defe ndant has the burden of demonstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

Tenne ssee Code A nnotated sec tion 39-14-114 provides, in per tinent part:

(a) A person commits an offe nse who forg es a writing with intent to defr aud or harm another

. (b) As used in this part, unless the conte x t otherwise r equire s:

(1) “F org e” me ans to:

(A) Alter, make, complete, execute o r au t h enti cate any writing so that it purports to:

(i) B e the a ct of a

nother who did not authorize that ac t;

. . . . (C) I ssue, transfe r, reg ister the transfe r of, pass, publish, or otherwise utter a writing that is forg ed within the meaningof subdivision (b)(1)( A)[.]

Tenn. Code Ann. § 39- 14-114(a ), (b) (1)( A)(i) , (C) (2006)

.

-5-In the light most favor able to the S t at e, t h e ev i dence shows that the defe ndant was at L ab

Corp t h e day Mrs. Gladney ’s purse was stol en from the ki tchen of the bui lding and Mrs. Gladney

s aw two men s tanding in the ki tchen. After leaving L ab C orp, t he defenda nt “wa s sort of ki n d o f laug hing and was talking about spending other people’ s money .” L ater that day
, the defe ndant had Mooningha

m drive him to a re s idence near Be ll Buc kle and Wartrac e, an are a nowher e near Manche ster, wher e he returne d with a blank chec k he asked Mooningha m to fill out. The defe ndant claimed to have done work for the elder ly woman living at the residenc e and explained she was too fee ble to fill the chec k out her s el f. M o oningha m filled out chec k number 2969 in the amount of $120 and signe d it “Cathy Gladney .” Two day s later, the defe ndant had Mooningha m drive him to the same house and, following th e same proce dure, went in the house and returne d with another blank chec k. The defe ndant had Mooningha m fill out the chec k, number 2972, in the am o u n t of $135 and signe d “Cathy Gladney .” At some point while the defe ndant was in the car with Mooningha

m, he “made a statement like, I wonder if they ’re missing their money now

. . . and was just laughing .”

Ang el Warrick, an employ ee of Two-Way Marke t, cashe d chec k number 2971 and was “99.9
perc ent” sure she cashe d it for the defe ndant. Tim Wil liams, owner of Two-Way Marke t, te stified that he persona lly cashe d chec k number 2975 for the defe ndant, whom he had known for about eig ht
y ear s. The defe ndant told Wil liams that he had done work for the Gladney s. Wil liams observe d the defe ndant on the store’s video surveillance rec ording cashing chec k 2972. Checks 2969 and 2973

wer e also cashe d at Two-Way Marke t. Cathy Gladney signe d an Affidavit of For g ery with her bank indicating that she did not authorize chec k numbers 2969, 2971, 2972, 2974, and 297 5

. The Gladney s live in Mancheste r.

The defe ndant’s alleg ation that h i s l ac k o f intent to defr aud anyone was evidenc ed by his cashing the chec ks at a place he was well-known is without merit. T h e proof indicated that the defe ndant had trouble finding any wher e else to c ash the che cks, and he told Williams he had done work for the Gladney s as an explanation for his cashing the chec k, yet Cathy Gladney did not know him. Ba sed on the direc t and circ umstanti al p ro o f, a rational jury could have found that the defe ndant intended to defr aud or harm Cathy and David Gladney and thus c onvict him of forg ery

.
II. Sentencing

The trial court conducte d a sentenc ing hear ing, at which the defe ndant admitted that he took Cathy Gladney ’s chec ks into Two-Way Marke t to g et cashe d but claimed he did so for M o o ningha m. He said th at “a t t h e time [he] didn’t know it wasn’t no g ood or [he] wouldn’t have took them in there .” He denied that Mooningha m took him to Wartrac e to g et chec ks from a woman living there ; instead, Mooningha

m prese nted chec ks to him when she returne d from Tullahoma. The defe ndant stated that he is se lf-employ ed as a painter and roofe r and would return to that w ork upon rele ase. Asked if he had a place to live, the def endant sa id he would be stay ing w ith “a lady that I ’ve been talking to while I

was in jail since I

g ot saved[.] ”

-6-On cross-e x amination, the defe ndant acknow ledg ed t h at h e had his probation on other

s entences revoked before but claimed that was “[m ]ainly just for not showing up on t i m e an d n o t making a pay

ment.” He said that when his probation was revoke d in 2007, he was g oing thr oug h

a divorce

. He rec alled that when his probation was revoke d in 2005, “that’s the time [hi s] sons g ot put in jail.” Asked if he was g oing th ro u gh a d i v o rc e or if someone was sent to prison when his probation was revoke d in 1997, the defe ndant stated, “Ye ah. Or Be n Whit e was having problems. I t was just something.”

The court imposed a two-y ear sentenc e on eac h of the five convictions and order ed that all of t he sentences be serve d consec utively except for t h e s entence in count ni ne which was ordere d
to be serve d concur

rently with the sentenc e in count seven, for an eff ective term of eight y ear s. The court orde red tha

t the defe ndant serve his sentence in confineme nt.

The defe ndant argues that the trial court imposed an excessive sentenc e. Specifica lly
, he

asser ts that his criminal rec ord was not extensive, partial con s e c u ti v e s e nte n cing was not appropr iate, and that prison resour ces wo u l d b e better serve d on someone other than “a first-time nonviolent offe nder.”

When an acc used challeng es the leng th and manner of service of a sentenc e, it is the duty of this court to conduct a de novo revie w on the rec ord “with a presumption that the d et er m i n at i ons

m ade by the court from which the appea l is taken are corr ect.” Tenn. Code Ann. § 4 0 -3 5 -4 0 1 (d ) (2006). This pr esumption is “conditioned upon the aff irmative showing in the rec ord that the trial
court considere d the sentenc ing principles and all rele vant fac ts and circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). The presumptio n d o es n o t apply to the leg al conclusions

rea ched by the trial court in sentenc ing the acc used or to the deter minations made by the trial court which are predic ated upon uncontrove rted fac ts. State v. Butler
, 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994); State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994); State v. Bone stel, 871 S.W .2d 163, 166 (Tenn. Crim. App. 1993), overr uled on other g rounds by S t at e v

. Hooper, 29 S.W .3d 1, 9 (Tenn. 2000)

.

In conducting a de novo revie w of a sentenc e, this co u rt m u st consider (a) any evidenc e

rec eived at the trial and/or sentenc ing hear ing, (b) t h e p rese ntence repor t, (c) the principles of
sentenc ing, (d) the arguments of counsel relative to sentenc ing alternatives, (e) the nature and char acte ristics of the offe nse, (f) any mitigating or enhanc ement fac tors, (g ) any statements made by the acc used in his own behalf
, and (h) the acc used’s potential or lack of potential for reha bilitation

or treatment. Tenn. Code Ann. § § 4 0 -35-103, -210 (2006); State v. Taylor, 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001). The part y ch alleng ing the sentenc e imposed by the trial court has the burden of establish i n g t h at the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401 (2006), SentencingCommi ssion Cm ts.; Ashby , 823 S.W .2d at 169.

-7-A. Length of Sentence

In imposing a specific sentenc e within a rang e, a trial court “shall consider, but is not bound by ” cer tain advisory sentenc ing g uidelines, including that the “minimum sentenc e within the rang e of punishment is the sentenc e that shou l d b e imposed” and that “[t] he sentenc e leng th within the
rang e should be adjusted, as appropr iate, by the prese nce or absenc e of mitigating and enhanc ement fac tors[.] ” Tenn. Code Ann. § 40-35-210( c)( 1), (2). The weig hing of the various m i t i gat i n g an d enhanc ement fac tors is “lef t to the trial court’s sound discretion.” State v. Carter
, 254 S.W .3d 335, 345 (Tenn. 2008)

.

The possibl e s en t en ce fo r a Rang e I offe nder convicted of a Class E felony is one to two
y ear s. See Te nn. Code Ann. § 40-35- 112(a) (5). The court e nhance d the def endant’ s based on his prior rec ord of criminal convictions, failure to comply with the terms of a sentenc e involving rele ase in the community
, and beca use he was on probation when the offe nses in this case wer e committed. I d. § 40-35-114( 1), (8), and (13). The court found the three enhanc ement fac tors “pre sent in a very signific ant way .” The court found one mitigating fac tor prese nt, that the defe ndant’s conduct neither

cause d nor threatened serious bodily injury
, id. § 40-35-113( 1), but did not g i ve that fac tor any signific ant weig ht. As such, the cour t s en t ence d the defe ndant to two y ear s on eac h of the five
counts.

The defe ndant argues that the trial court err ed in considering his criminal rec ord “extensive” for enhanc ement purposes. He asser ts that ten misdemeanor convictions for a fifty -y ear -old man is “slig ht compar ed to most criminal defe n d an t s

. ” I t is true that other defe ndants may have more extensive criminal rec ords than this defe ndant; howeve r, to enhanc e the defe ndant’s sentenc e based

o n his rec ord, the court only had to find that the defe ndant “has a previous history of criminal convictions or criminal behavior
, in addition to those nece ssary to establish the app ropriate rang e[.] ” I d. § 40-35-114( 1).

The prese ntence repor

t clea rly supports this enhanc ement fac tor. The report s h o ws five convictions fo r t h ef

t u nder $500, one conviction for assault, three convictions for driving on a revoke d license, and one convic tion for failure to appea r. We note t hat m isdemeanor convictions alone may support enhanc ement of a sentenc e based on prior criminal rec ord. See State v. Ramsey
, 903 S.W .2d 709, 714 (Tenn. Crim

. Ap p

. 1995); see also State v. J ackie J

. Porter, No. W2004-02012-CCA-R3-CD, 2005 WL 2860255, at *3 (Tenn. Crim. App. Oct. 31, 2005) (upholding the enhanc ement of the defe ndant’s sentenc e based on prior criminal rec ord due to the defe ndant’s
two prior misdemeanor conv i ct i o n s , o n e for theft of proper ty under $500 and one for simple possession of marijuana ). In any event, the trial court also enhanc ed the defe ndant’s sentenc e based on his previous failure to comply with the terms of a

sentenc e involving r elea se in the community and beca use he was on probation when these offe nses wer e committed, T enn. Code Ann. § 40-35- 114(8) and (13), both fac tors supported by the rec ord. We cannot conclude that the trial court abused its discretion in enhanc ing the defe ndant’s sente nces f rom one to two year s on eac h count.

-8-B. Consecutive Sentencing

A trial court, in its sound discretion, may impose consec utive sentenc ing in acc ordanc e with Tenne ssee Code Annotated secti on 40-35-115, if it finds any of the following criter ia by a preponde ranc e of the evidenc e:

(1) The defe ndant is a profe ssional criminal who has kn owing ly devoted such defe ndant’s life to c riminal acts as a major sourc e of livelihood;

(2) The defe ndant is an off ender whose re cord of

criminal ac tivity

is ex tensive;

(3) The defe ndant is a dang erous mentally abnorma l person as decla red by a competent psy chiatrist who conclude s as a result of an investigation prior to sentenc ing that the defe ndant’s criminal conduct has been char acte rized by a pattern of re petitive or compulsive beha vior with heedle ss indiffere nce to c onsequenc es;

(4) The defe ndant is a dang erous offe nder whose behavior indicates littl e or no reg ard for human life, and no hesitation about commit t i n g a crime in which the risk to human life is hig h;

(5) The defe ndant is convicted of two (2) or more statutory offe nses involving sexual abuse of a mi nor wit h co nsideration of the aggravating circumstance s arising from the relationship betwee n the defe ndant and victim or vict i m s , t h e time span of d ef endant’s undetec ted s exual activity
, the nature and scope of t he sex ual a ct s an d the extent of the residua l, phy sical and me ntal damag e to the victim or victims;

(6) The defe ndant is sentence d for a n offe nse committed while on probation; or

(7) The defe ndant is sentence d for c riminal contempt.

Tenn. Code Ann. § 40-35-115( b) (2006). These criter ia are stated in the alternative; there fore
, only

one nee d exis t to support the appropriateness of c onsecutive se ntencing

.

In addre ssing consec utive s en t encing, the court noted that the defe ndant had an extensive criminal rec ord and committed the prese nt offe nses while on probation. I d. § 40-35-115( b)(2)
, (6) (2006). The court stated that it “would be fully justified to make all of these sentenc es consec utive
to one another ” but, instea d, only order ed that counts one, three
, five, and seven run consec utively and count nine c oncurr ently with count seven.

The defe ndant arg

ues that the trial court err ed i n imposing partial consec utive sentenc es; howeve r, the rec ord supports consec utive sentenc ing in this case

. Ag ain, the prese ntence repor t ref lects that the defe ndant had five prior convictions for t h ef t u n d er $500, three convictions for driving on a revoked li cense , one conviction for fa ilure to appe ar, and one conviction for assault.

-9-Although the defe ndant is fifty y ear s old, his first conviction occur red when he was thirty -nine y ear s old. Thus, he has amassed these ten convictions in a period of a littl e over ten year s. The trial court may consider misdemeanor offe nses in deter mining if an extensive criminal history is established. See, e.g ., State v. Robert Smit h, No. W2006-00998-CCA-R3-CD, 2007 WL 162181, at *4 (Tenn. Crim. App. J an. 23, 2007), perm. to appea l denied (Tenn. M ay 21, 2007); State v. Nathanie l Robinson, Jr., No. E2004-02191-CCA-R3-CD, 2005 WL2276421, at *7 (Te nn. Crim. App. Sept. 19, 2005), perm. to appea l denied (Tenn. Mar. 13, 2006). The prese ntence repor t a lso r efle cts that the defe ndant was convicted of two counts of theft under $500 on J anuar y 25, 2007, and sentenc ed
to eleve n months, twenty -nine day s on eac h count. His sentenc es wer e suspended to supervised probation afte r service of thirty day s on eac h count and the sentenc es wer e to run consec utively

. There fore
, as found by the trial court, the defe ndant was on probation when he comm i t t ed the forg erie s in this c ase. The rec ord supports the trial court’s imposit ion of consec utive sentenc es.

C. Manner of Service

The defe ndant argues that he “would be better serve d with probation or community

corr ections rathe r than serving an eig ht y ear prison sentenc e.” He asser ts that “pre cious Depa

rtment of Corre ction[] resour ces” would be better serve d on other off

ender s.

As a st andar d offe nder convicted of Class E felonies, the defe ndant s h o u l d be considered

a favor able candidate for alternative sentencing in the absence of evidenc e to the contrary

. T en n

. Code Ann. § 40-35-102( 6) (2006). Moreove r, beca use the defe ndant rec eived a sentenc e of ten y ear s

or less, he was elig ible for p ro b at i o n , an d the trial court was require d to consider probation as a sentenc ing option. I d. § 40-35-303( a), ( b). The bur den wa s upon the defe ndant t o show he was a suitable candidate for probation. I d.; State v. Goode, 956 S.W .2d 521, 527 (Tenn. Crim. App. 1997); State v. Bog g s, 932 S.W .2d 467, 477 (Tenn. Crim. App. 1996). In o rd er to meet this burden, the defe ndant “must demonstrate that probation will ‘subserve the ends of justice and the best interest of both the public and the defe ndant.’” State v. Bing ham, 910 S.W .2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dy kes, 803 S.W .2d 250, 259 (Tenn. Crim. App. 1990)), overr uled on other
g rounds by Hooper
, 29 S.W .3d at 9. There is no brig ht line rule for deter mining when a defe ndant should be g rante d probation. Bing ham, 910 S.W .2d at 456. Every sentenc ing decision nece ssarily require s a case -by -ca se analy sis. I d. Fa ctors to be considere d include the circ umstances surrounding the offe nse, the defe ndant’s criminal rec ord, the defe ndant’s social history and prese nt condition, the need for deter

renc e, and the best interest of the defe ndant and the public. Goode, 956 S.W .2d at 527.

A trial court may deny alternative sentenc ing and sentenc e a defe ndant to confine ment based
on any one of the followingconsidera tions:

(A) Confinement is ne cessa ry to pr otect socie ty by restra ining a defe ndant who has a longhistory

of cr iminal conduct;

-10-(B ) Confinement is nece ssary to avoid depre ciating the seriousness of the offe nse or

confine ment is particula

rly suited to provide an eff ective deter

renc e to others likely to commit si milar offe nses; or

(C) Measur es less restric tive than confine ment have fre quently or rec ently been applied unsucc essfully

to the defe ndant[.]

Tenn. Code Ann. § 40-35-103( 1) (2006). Additionally
, a court should consid er the defe ndant’s potential or lack of potential for reha bilitation when deter

mining if an alternative sentenc e would be
appropr iate. See id. § 40- 35-103(5)

.

In deny ing an al t ernative sentenc e, the court found that the defe ndant was not a suitable candidate for alternative sentenc ing beca use of “his extensive past criminal rec ord and his complete inability to succe ssfully complete probationary periods.” T he court found t hat t he defenda nt “has

no potential for reha

bilitation without service of his sentenc e[,] [a] nd

. . . that the risk that he would commit y et another

crime if r elea sed on probation is ex tremely high.”

The pres en t en ce repor

t ref lects t hat t he defenda

nt had ten prior mi sdemea nor convictions, h ad a n i n t h grade education, and owed over $7000 in unpaid fines, costs, restitution, and civi l judgme nts. As noted by

the trial cour

t, the defe ndant has illustrated a past inability

of completing probationar

y periods. He has rec eived probation on other offe nses and had that probation revoke d in 1997, 2005, and 2007. Moreove r, t h e defe ndant committed the prese nt offe nses while on probation for two counts of theft under $500. The defe ndant’s evidenc ed disreg ard of the terms of probation ref

lects poorly on his potential for reha bilitation, and the rec ord supports the trial court’s conclusion that the “risk that [t he defe ndant] would commit y et another crime i f re l ease d on probation is extremely

high.” The trial court did not abuse its discre tion in denying a n alterna tive
sentenc e.

CONCLUSION

Ba sed on the fore g oing authorities and rea soning, we aff irm the judgme nts of the trial court.

___________________________________ ALAN E. GL ENN, JUDGE

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