# FILED October 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9708-CC-00296 Appellee, ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN, SARA LEIGHA

NE WISDOM, ) JUDGE ) Appellant. ) (Aggr avated Burgla ry and Theft ) (over $1,000))
FOR THE APPE LLANT: FOR THE APPELLEE: VICKI H. HOOVER JOHN KNOX WALKUP 123 N. Poplar St., Suite A Attorney General & Repor ter Paris, TN 39242 MARVIN E. CLEMENTS Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 ROBERT “GUS” RADFORD District Attorney General TODD A. ROSE Asst. District Attor

ney General P.O. Box 686 Huntingdon, TN 38344

OPINION FILED:____________________
AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N Followinga jury trial i n March 19 97, the d efenda nt wa s con victed of one count of aggravated burglary, which is a Class C felony, and one count of theft of propert y over one thousand dollars ($1,000), which is a Class D felony. The jury assessed a fine of five thousand dollars ($5, 000) for the burglary conviction and a fine of three thousand dollars ($3,000) for the theft conviction. The trial court sentenced the defendant to three years for the aggravated burglary convictio n, on e year in confinement and the balance on Community

Corrections. For the th eft convi ction, th e defen dant was se ntenced to two years, one year in continuous confinement and the balance on Community Corrections. The sentences were ordered to run concurrently with one another.

On appeal, the defendant argues that the trial court erred i n ordering her to serve an excessiv

e sentence; that the trial court erred in den ying a sentenc e alterna tive to confinement; that the trial court erred in allo wing th e district attorney t o question her about a past misdemeanor record she claims has been expung ed; and that the trial court erred in failing to grant her a judgment of

acquittal. After a careful review of the record, we affirm the defendant’s convictions and sente nces.

Roy Futrell returned home from w ork on June 21, 19 96, to discover that someone had broken into his residence and stolen many of his personal be longings, primarilyhis guns. Mr. Futrell called the Henry County Sher iff’s Department and William Vandiver, an investi gator with that depar tment, came to

his home

where he g ave Vandiver an inventory

of the items taken.
Steven Wisd om, the d efenda nt’s husb and at th e time, a nd Glen Axl ey, Steven Wisdom’s friend, discussed b efore the burglary how they needed extra money, so they decided to break into the Futrell home. Steven Wisdom had dated Mr. Futrell’s3

stepdaughter

and had previously been inside the home. The defendant had worked with Mr. Futrell and had known his stepdaughter as well
. Consequently, they knew that there were guns inside the home and what hours Mr. Fut rell worked.

As her husband and Axley went inside the home to ge t the belongings, the defendant drove the car and parked i t out of the sight of passersby . When the two had gotten the property, the defendant pull ed up to the residence to pick them up and then drove to outside Paris, Tennessee. Mr. Wisd om then drove the car t o their home in Henry Coun ty.

The two men decided to pawn the guns. According to the testi mony of one of the pawn shop ow ners, t he defe ndant and her husband came to his pawn shop in Martin, Tennessee, and pawned two g uns. The threesplit the money, but Mr. Wisdom testified that he kept the defenda nt ’s share of the money. They then went to Dover, Tennessee, where Axley pawned another gun and split the proceeds w ith the defendant and her husband. They then trav eled to Clarksvill e, Tennessee, where they went out to eat with themoney, and the defendant and her husband eac h used some of the money to get tattoos. The guns that were pawned in Martin and Dover were l ater recovered.

The def enda nt voluntarily spoke with the Benton County Sheriff’s Department, confessed her role in the cr imes, and implicated her codefendants in the crimes. At trial, the defendant testified that she was forced by her husband to parti cipate in the crimes. She also testi fied that she was afraid of her husban d and that he had been violent with her i n the past.

Before addressing the issues before us, we are compelled to add ress what we consider

an inadequate brief fromdefense counsel. The defendant’s one- and onehalf-page brief is almost identical to another brief filed in this Court by defense counsel.4

This probably expla ins why defense counsel was incorrect in her assertion in the case sub judice that the sentencing of the defendant occurred immediately after the trial: that was correct in the other case in which counsel filed a brief with this Court. In the instant case, the record reflects the trial was held on March 24, 1997, and the sentencing hear ing on April 9, 1997, sixteen days later. Moreover, the defendant’s brief states that there are fourissues on appeal, but thenlumps these four issues into two scant sections, w

ithout any reference to the record, hardl y any citations to authority, and an incorrec t statement regarding sent encing. Although we have held that a defendant’s failure to adequately briefissues result ed in waiv er of those issues, we w ill, in this case, addr

ess the issues before us. However, we a dmonish defense counsel for the inadequate brief filed in this Court.
Because the defenda nt ’s first two issues relate to sentencing, we will address those together. The defendant contends that her sentence is exc essive and that the trial court erred by

not considering an alter native sentence such as pr obation. She als o claims that the trial cour t “refused to allow counse l to prepare for a sentencing hearing, which the Tri al Judge conducted immediately after the conclusion of the trial .”
When a defendant challenges the leng th, range, or manner

of servi ce of a sentence, thi s Co urt conducts a de novo rev iew with a presumpti on that the determinationsmade by the trial court are correct. T.C.A. § 40-35-401(d). However, this presumption is conditioned on an affirm at ive indication in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

The defendant bears the burden of showing that the sentence was improper. Id. In determining whether the defendant has met this burde n, this Court must consider (a) th e e vidence adduced at trial and the sentencing hearing;(b) the5

presentence report; (c) the principles of sentencing; (d) the arguments of counsel; (e) the nature and characterist ics of th e offense; and (f) the defendant’s potential or lack of potential for rehabilitation or treatment. T.C.A. §§ 40-35-103(5), 40-35-210(b).

The defendant insists

that she should have recei ved probation. However, we note that although the trial court found the defendant to be entitled to the pres umption of alternative sentencing , she, not the State, has the burden of establishing suitabili ty for full probation. T.C.A. § 40-35-303(b). To meet this bur den, the defendant must illustrate how probation will

“subserve the

ends of justice and the best interest of both the public and the defendant.” State v. Bingham , 910 S.W.2d 448, 456 (quoting State v. Dykes , 803 S.W.2d 250, 259 (T enn. Crim. App. 1990)).

The trial court sentenced the d efendant to the minimum sentence for both the aggravated burgl ary conviction and the theft conviction
. Although the trial court recognizedthat the defendantwas presum ed to be a favorabl e candid ate for a lternati ve sentencing, it concluded that split confinement would be in the best interest of not only the public but also the defendant. The tr ial court based its

decisio n to impose split confinement on several factors, including the circumstan ces of the offense, the defendant’s willingness to l ie, and her failure to accept r esponsibility for her ac

tions. The trial court’s decision to impose split confinement was also based on its desire to prov

ide a deterrence and to avoid depr eciating the seriousness of the crimes committed.
For a trial court to deny

an alternative sentence based on the seriousness of the offense, the circumstance s of the offense “‘must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or ex aggerated degree,’ and the nature of the offense must outweigh all factors favoring a se ntence other than confinement.” Bingham , 910 S.W.2d at 454 (quoting State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)). The trial court’s denial of an alternative sentence6

based on the seriousness of the offense un der T.C.A. § 40-35-103(1)(B), can on ly be upheld if the Hartley

conditions are in the record. Here, the trial court reasoned that the offense in this case was serious because guns w ere stolen. Although w e agree that the theft of guns is serious, the r ecord does not indicate that the Hartley

conditions are met in this case.
The other factors relied upon by the trial court, howe

ver, fully support the sentences imposed in this case. The trial court observed that the defendant “ex hibit[ed] an arrogant willingness to tell anything any way which seem[ed]

to best benefit her at the moment,” referring to the confusion r egarding the defendant’s theft conv iction in Benton County, which the defendant contends had been expunged. As the dist rict attorney and the trial court noted, how ever, nothing in the r

ecord indicat ed tha t the conviction had a ctually been e xpunged. The trial cour t relied even more heav ily on the fact that the defendant remained unable to take responsibility for her actions in committing the instant crimes. This finding, which is supported by the record, h as bearin g on the re habilita tive potential of the defendant. Moreover, under the circumstances of this case , we agree with the trial court that the theft of guns is a serious offe nse, that confinement would providea deterrence, and that some peri od of confinemen t is necess ary to avoid depreciating the seriousness of the offenses committed by the def endant. Accordin gly, the defendant’s sentences are affirmed.

Next, the defendant argues that the trial court err

ed in allowing the

district attorney to question her about her pr ior criminal history. She a rgues that he r past misdemeanor

record had been expunged so the distri c t attorne y should no t have questioned her during tri al about that prior convi ction. She further insists that the trial court’s manner toward her was prejudicial and harsh.
The record indicates

that approximately a month before the trial, the

district7

attorney filed notice of his intent to use the Benton County theft conviction to impeach the defendant should she testify. The record also indicatesthat defense counsel referred to t he Benton C ounty the ft convic tion hers elf duri ng her ope ning stat ement to the jury: “[W]hile she [the defendant] was in jai l, awaitinga hearing in Benton County, which you’ll also hear testimony of that, she w as later--her charg e was dismissed and her r ecord was expunged in Benton County.” Fur the rmor e, counsel ref ers to the defe ndant’s prior ch arge in Benton County at several other times durin g her examin ation of witnesses. The defendant “opened the door” rega rding the theft convicti on in Benton County, so she cannot now complain that the State q uestioned her about that convi ction. Moreover, the record is devoid of evidence tha t th e trial co urt treated her in a harsh o r prejudicial manner. The defendant’s arguments on thi s point lack merit.

Our last issue for review

is whet her the trial court err ed by denying her motion for a judgment of acquittal . A perso n commits aggravated bur glary by enteri ng a habitation without the consent of the property ow ner, but with the intent of committing a felony, theft, or assault. T.C .A. §§ 39-14-402(a)(1), 39-14- 403(a). A

person commits thef t of property if he or she know ingly obtains or ex

ercises control over

the p ropert y without the owner’s effective cons ent, but with the

intent to deprive the ow ner of property. T.C.A. § 39-14-103.

The defendant argued at trialthat she waitedin the car and never enter ed Mr. Futrell’s ho me. In the indictment, the defendant w as charged as a codefendant. Later, the district attorney filed notice for a jury i nstruction to be give n forcri minal responsibility

for conduct of another. Sufficientnotice of criminal liabil ity based upon the conduct of another was satisfied. See State v. Barnes , 954 S.W.2d 760 (Tenn . Crim. App. 1997).
Moreover, the evidence adduced at tri al indicates that the defendantdrove8

her codefendants to Mr. Futrell’s home and waited, out ofsight, while they removed Mr. Futrell’s possessions from his home wi thout his permission. The defendant then drove them from the scene, accompanied her two codefendant s to at least one pawn shop, and obtained a one-third share of the money received for the stolen goods, whi ch she used to treat herself to a dinner and a tattoo. This evidence, when viewed in the light most favorable to the State, is sufficientto affirm the defendant’s convictio ns. See, e.g. , State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes , 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993).

Accordingly, the defendant’ s convictions and sentenc es are affirmed.

______________________________ JOHN H. PEAY, Judge
CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ THOMAS T. W OODALL, Judge