IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 20, 2009

STATE OF TENNESSEE v. BETHANY DAWN HUNT

Direct Appeal from the Circuit Court for Marshall County

No. 08CR64 Robert Crigler, Judge

No. M2008-01983-CCA-R3-CD - Filed January 28, 2010

Appellant, Bethany Dawn Hunt, was convicted on her open guilty plea to a Marshall County

Grand Jury indictment for burglary, illegal possession of a debit card, and two counts of theft

of property valued at less than $500. The trial court merged the theft convictions and

imposed an effective sentence of three years and three months in confinement. Appellant

appeals, asserting the sentence is excessive and contrary to law. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Michael J. Collins, Shelbyville, Tennessee, for the appellant, Bethany Dawn Hunt.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Charles Crawford, District Attorney General; Weakley E. Barnard, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

At her June 25, 2008, plea hearing, the State recited the following facts upon which

the Appellant’s pleas were based. Appellant sought treatment in the emergency room of the

Marshall County Hospital on April 21, 2008. She was on probation for a previous conviction

at the time. After arriving at the hospital, Appellant went into a non-public office; rummaged
through a nurse’s purse; and took a Walmart Discover card, a Walmart discount card, an

ATM card, and between $15 and $20 in cash. She then left the hospital and “hitched” a ride

toward her apartment in a van driven by two people she did not know and who were

completely unaware of what she had done. Witnesses outside the hospital recalled seeing an

individual matching a nurse’s description of Appellant. The individual got into a maroon

van, and the van drove away “in a certain direction.” The van was stopped by police, and

Appellant was asked to step out. Police found the cards on the floor next to where Appellant

was seated. Appellant was arrested and admitted to the theft of the cards, but she denied

taking any cash and claimed to have only $5 in her possession. A search later revealed she

had a total of $16, which fell into the $15-$20 range the victim told police was taken.

Appellant generally accepted the State’s version of the facts, and pled to the indictment.

The trial court sentenced Appellant on August 6, 2008. The only witness to testify at

the hearing was Appellant’s probation officer, Jamie Staggs, who prepared the presentence

report. Ms. Staggs’ testimony and her presentence report revealed the following. Appellant,

who was 30 years old at the time of the offense, admitted to Ms. Staggs that she committed

the crimes. However, she told Ms. Staggs that she did not know what she was doing and that

she went to the hospital seeking treatment for an attempted suicide.

With respect to her medical issues, Appellant claimed she dropped out of high school

after being diagnosed with Lupus. She also reported having rheumatoid arthritis, acid reflux,

and depression. At the time of the presentence report, Appellant had been prescribed a

number of medications. She admitted that she had spent more than a decade on methadone

and admitted to using crack cocaine “every so often” since she was 24 or 25. Appellant

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reported that she had worked only 13 months in her entire life.

The presentence report reflects that the Appellant’s criminal history is lengthy. Her

record contains nine convictions since 2003. Those offenses include contributing to the

delinquency of a minor; assault; driving on a suspended license; public intoxication; and

possession of drugs and drug paraphernalia, including cocaine and methamphetamine.

Appellant has been repeatedly placed on probation. Indeed, she was on probation for a 2006

drug conviction at the time of the instant offense. Moreover, Ms. Staggs also testified that

Appellant was on probation for another conviction when she committed her 2006 offense.

Ms. Staggs noted that Appellant had sought counseling for her addictions. Appellant

provided Ms. Staggs a letter from an admissions counselor at Buffalo Valley stating that she

had been accepted into the facility for treatment.

Thisisthe only drug use admitted in the presentence report. However, in herstatement to the court 1

at sentencing, Appellant noted that it was the first time in 14 years she had been narcotic-free.

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After Ms. Staggs’ testimony, the court heard argument from both sides. The State

asserted that Appellant’s sentence should be enhanced because of (1) her prior criminal

history; (2) her failure to comply with the conditions of release from a prior sentence; and

(3) the fact that this offense was committed while she was on probation. The State conceded

that the courtshould consider Appellant’s acceptance of responsibility as a mitigating factor;

however, the State argued that the court should weigh the enhancing factors heavily in

making its determination. The State asked the court to consider that these offenses

victimized healthcare employees and that they occurred in an emergency room.

While the defense acquiesced in the application of the enhancement factors submitted

by the State, it contested the State’s argument regarding the weight to be given the factors

in arriving at the sentence. The defense also argued that additional mitigating factors should

be considered. In particular, the defense argued that Appellant’s sentence should be

mitigated because she did not cause or threaten serious bodily injury. In addition, the defense

asserted that Appellant had a potentially strong argument that, because the crime took place

in a private portion of an otherwise public building, it was not truly a burglary. The defense

contended that such an argument could have persuaded the jury to acquit the Appellant on

the burglary charge. Consequently, the defense reasoned, Appellant should get far more

credit for accepting responsibility for her actions than the State suggested. The defense also

noted that Appellant’s acceptance of responsibility had spurred her to seek treatment on her

own. Thus, the defense asked the court for a sentence of split confinement or another form

of alternative sentencing.

After hearing the arguments, the trial court sentenced Appellant to an effective term

of 3 years and 3 months. The court considered the absence of serious bodily harm, or threats

thereof, as a mitigating factor, but afforded it “very slight weight.” It also considered

Appellant’s acceptance of responsibility. Furthermore, the court sua sponte applied a

mitigation factor based on the unusual circumstances of the offense, i.e., the offense occurred

while Appellant was “probably high as a kite” and did not evidence a “sustained intent to

violate the law.” The court accepted the State’s arguments regarding each of the three

enhancements the State advocated. In particular, the court noted Appellant’s long criminal

history and her repeated failure to comply with release requirements. Those repeated failures

lead the court to conclude that incarceration was necessary to protect the public from

Appellant, and that less restrictive alternatives were not effective. Thus, the court denied

alternative sentencing and ordered the Appellant to serve concurrent terms of three years and

three months on the burglary conviction, 11 months and 29 days for the theft conviction, and

six months for the illegal possession of a debit card conviction.

II. Analysis

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Appellate review of the length, range or manner of service of a sentence is de novo.

See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers

the following factors: (1) the evidence, if any, received at the trial and the sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;

(5) evidence and information offered by the parties on enhancement and mitigating factors;

(6) any statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in

his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210; see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008);

State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to

demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing

Commission Comments. Moreover, if the record reveals that the trial court adequately

considered sentencing principles and all relevant facts and circumstances, this court will

accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823

S.W.2d at 169. However, in sentencing on misdemeanor convictions, the “trial court need

only consider the principles of sentencing and enhancement and mitigating factors in order

to comply with the legislative mandates of the misdemeanor sentencing statute.” State v.

Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).

Appellant contends her sentence is contrary to law because it is greater than necessary

to serve the purposes of the Sentencing Act. In particular, Appellant asserts that the

relatively small amount taken in this case and the fact that it occurred in the private part of

a public building indicates “that this was no crime of such dimensions that justice would

demand [the] sentence imposed.” In addition, Appellant argues that the trial court erred in

not considering the scarcity of prison resources.

We are not persuaded. The record reveals that the trial court adequately considered

sentencing principles and all relevant facts and circumstances. In particular, the trial court

duly considered the severity of the offense, and the Appellant’s criminal history. See Tenn.

Code Ann. § 40-35-102(1), -(3)(B). It also considered the need for confinement to protect

society and the repeated ineffectiveness of less restrictive measures. See Tenn. Code Ann.

§ 40-35-103(1), -(5). The court placed great weight on the Appellant’s criminal history and

the fact that Appellant had committed other crimes, including this one, while on probation

for previous offenses. In the face of a ballooning criminal record and the repeated

ineffectiveness of less restrictive measures, the court concluded that incarceration was

necessary. We see no error in its decision. Moreover, we are not at liberty to reweigh the

various mitigating and enhancing factors even if we were so inclined. See Carter, 254

S.W.3d at 345. Regardless, we conclude the trial court carefully conducted the “case-by-case

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approach” required by our sentencing laws. See Ashby, 823 S.W.2d at 168 (quoting State

v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)).

As noted above, Appellant has the burden of demonstrating the trial court’s errors in

sentencing. See Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments;see also

Carter, 254 S.W.3d at 344-45. She has not carried that burden.

III. Conclusion

Upon review of the record and the parties’ briefs, we affirm the judgments of the trial

court.

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NORMA McGEE OGLE, JUDGE

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