### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A ugust 20, 2002
STATE OF TENN ESSEE v. JONATHAN THORNTON
Appeal from the Criminal Court for Greene C ounty No. 00-CR-167C James Edward Beckner, Judge

No. E2001-02491-CCA-R3-CD September 30, 2002

The defendant, Jonathan Thornton, was convicted of one count of theft of property valuedat more than $1,000 but

less than $10, 000 and one count of theft of p roperty valued a t less than $500. The trial court imposed concurrent sentences of two y ears and 11 mo nt hs an d 2 9 d ays , r es pe ct iv el y. In this appeal of right, the defendant asse rts (1) that

the evidence is insuffi cient to su pport his convicti ons, (2) that t

he trial c ourt err

ed in its instructions to the jury, and (3) that the trial court erred by denying an alternative sentence. Because the trial court erred by

denying an alternative sentence, the de fendant ’s sentence is modified to a sentence of split confinement with nine months to be served in confinement and the balance to be se rved on probation. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed as Modified

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBER T W. W EDEMEYER , JJ., joined.

Susanna L. Thomas, Newport, Tennessee (on appeal), and Richard Talley , Dandridge, Tennessee (at trial), for the appellant, Jonathan Thornton.

Paul G. Summers, Attorney Gene ral & Reporter; Thomas E. Williams, II I, Assistant

Attorn ey Genera l; and Cecil Mills, Assistant District Attorney Gener al, for the appe llee, the State of Tennessee.
OPINION

On October 5th, 2000, Robert Thornburg of Mohawk discovered that his 2000 Honda 300 Four Trax all-terrain vehicle had been stolen from the back porch of his residence. He estimated tha t the vehicle had a fair market value a t the time of the theft of $5,000.

Nine da ys later, Steve Sauceman discovered that his 2000 Honda Ranche r ES ATV was stolen from the back of his truck. The four-whee ler had a fair market value of $5,000.-2-

Joshua Allen Anderson, who lived with the defendant in October of 2000, testified that he, the defendant, and

Eric Frias had taken ATVs from the Thornbur g and Sauceman

residences during t hat month. According to Anderson, the defendant borr owed his father’s truck the day befo re th e Thornburg theft and supplied hand-held radios to be used during the theft. The three men dre ssed in dark cl othi ng, gathered tools into a red “bookbag ,” and put on gloves in preparation for the crime. They drove the truck to the Thornburg residenc e and pushed a red Honda Four Trax 2000 ATV down
a hill and hid

it in the wo ods. Anderson testified that in preparation for the Sauceman theft, the three
men again

dressed in dark clothing, gathered their tools, and borrowed the defendant’s father ’s truck. They lifted an A

TV out of the back of Sauceman’s truck and drove it to the location of the hidden four-wheeler. There th

ey placed o ne ATV in

the back of their t ruck and the other in a trailer that the defendant had borrowed from a man named Carlos. L ater, they sold one of

the four -wheele rs. The other wa s stolen fr

om them before the

y c ould sell it

. Anderson admitted t

hat he had previously entered pleas of guilt to eight felony theft convicti ons in

relation to the theft of a number of ATVs. At the time of trial, he was incarcerated in the Tennessee Department of Correction boot camp. Anderson also conceded that the defendant had informed the police about his involvement and that of Eric Frias. He acknowledg ed that he had fled to Illinois after being c onfronted by the police in November of 2000.
At trial, A

lichia F rias test ified tha t she lived

withEric Frias, Anderson, the defendant, and the defendant’s girlfriend, Ashley Evans, in October

of 2000. M s. Friasstated she did not pa rticipat e in the Thornburg and Sauceman thefts, but acknow ledged that she had pled gu ilty to one count of facilitation of aggravated

burglary and one count of t

heft ove r $1,000 in

relation to an unre lated the ft. According to Ms. Frias, she saw the defendant, Anderson, and Eric Frias dress in dark clothing a nd gather tools in preparation for the theft of four-wheele rs in October of 2000. Accord ing to Ms. Fria s, the defe ndant pro vided hand-held r adios and gloves t o be used during t he crime s.
Detective James Randolph of the Gre ene County Sheriff’ s Department testified that he questioned the defendant in November of 2000 about the theft of a number of

four-wh eelers in the
area. The def

endant di r ected hi m to the residence shared by Anderson and the Friases. When Detective Randolph arrived at the residence with another c ruiser, Anderson and Eric Frias fled a nd Alichia Frias attempted

to drive away

in a car. Alichia Frias was arr ested at the scene and

Anderson and Eric Frias were later ar rested in Illinois. The ATVs taken from Thornburg and

Sauceman were
never recovered. Detective Randolph acknowledged that the defenda nt was very c ooperative during the investigation.

C arlos Bachtel, who lived behind Ashley Evans' mother, was a defense witness. Whi l e admitting that he ha

d loaned h

is trailer to the defendant on at least two occasions, he testified that h e had not do ne so in October of 2000. Acc ording t

o Bacht el, the tr ailer wa s at his daughter’ s residence from

October 1, 2000, un

til the time

of trial. Joy Covingto n, Ashley Evans' mother , testified that Anderson telephoned her house a number of times a fter his a rrest. While she initially refused to acc ept the charg es for hi s collec t calls, Ms

.-3-

Covington relented o n one occasion. She claimed that during their conversa tion, Anderson informed her that “if [the defendant] did not start taking his calls and helping him out, he would take [the defendant] down with him.”

Defens e witnesse s Chris Hickman and Phillip Ashley testified that they had never purchased four-wheelers from the defenda nt. Ashley admitted purcha sing an ATV from Eric Frias for $800.

The defendant, who testified in his ow n behalf, conceded that he had borrowed Bachtel’s trailer but denied using it to take four-wheelers. He a cknowledged that he owned hand-he ld radios butclaimed that he had

gotten them from his father’s pawn shop. The defendant de nied participation in either of the cr imes.

I The defendan t first

asserts that the evidence is insufficient to support his conviction. Sp ec if ic al ly, he complains that there is no evidence, other than the testimony of accomplices, that he participated in the thefts. On appeal, of course, the state is entitled t o the stronge st legiti mate view of the evidence and all reasonable infe rences which might be drawn there from. State v. Cabba ge , 5 71 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the rec onciliation of conflicts in the proof are matters entrusted to the jury
as the trier of fact. By

rge v. State , 575 S.W.2d 292, 29 5 (Tenn . Crim. App. 1978). When the sufficiency

of the evidence is challenged, the r elevant question is whether, after reviewing the evidence in the light most favorable to the stat e, any ra tiona l trier of fact could have found the essential elements of the cr ime bey ond a rea sonable d

oubt. Ten

n. R. App. P. 13(e); State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1 983). Que stions concerning the cre dibility

of the wit nesses, the weight

and value of

the evidence, as well as all factual issues raise d by the evidenc e are resolved by the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt re moves the

presumpt

ion of innocence a nd raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legall y in sufficie

nt to sustain a guilty ve

rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

It is well settled that a defendant cannot be convicted solely upon the uncorroborated testimonyof

an ac co mp li ce . A n a cc om pl ic e h as tr ad it io na ll y be en de fi ne d a s o ne wh o k no wi ng ly,
vo lu nt ar il y, and with common intent with the principal offender, joins in the commission of a crime. Clap p v. Stat e , 94 Tenn. 186, 30 S.W. 214, 216 (1895). Only slight circ umstances are sufficient corroboration. Those circumstances must, howeve r, be en tirel y indepen dent o f the ac compl ice's testimonyand lead to an infer ence tha t not only has a crime been committed but also that the defendant is implicated in that crime. Garton v . State , 206 Tenn. 79, 332 S.W.2d 169, 175 (1960). Whether a witness's testimony ha s been suf ficientl y c orrobor

ated is a function entruste d to the jury
as the trier

of fact. Sherrill v . State , 204 Tenn. 427, 434, 3 21 S.W.2d 811 (1959); Stanley v. State , 189 Tenn. 110, 222 S.W.2d 384, 386 (1949).

“A person commits theft of property if, with intent to deprive the owner of prop er ty, the person knowingly ob ta ins or exercises control over the property without the owner’s effective-4-

consent.” Tenn. Code Ann. § 39-14-103. Theft of property valued at more than $1,000 but less than $10,000 is a Class D felony. Id. § 39-14-1 05(3). T heft of p roperty valued a t less than

$500 is a Class A misdemeanor. Id. § 39-14-1 05(1). “ Value” is define d as follo ws: (i) The fair market value

of the property

. . . at the time and place of the offense; or (ii) If the fair marke

t value of the property

cannot be ascertained, the

cost of replacing the property within a reasonable time after the offense.

Tenn. Code Ann. § 39-11-106(35)(A). Owners are competent by fa

ct of ownership to testify

to the value of the property

stolen. State v. H amm , 611 S.W.2d 8 26 (Tenn . 1981); R eav es v. State , 523 S.W.2d 218, 220 (Tenn. Crim. App. 1975).
Here, Anderson testified that the defendant participated in ea ch of the two thefts. He claimed that the defendant borrowed his father’s truc k and provided hand-held radios which were us ed in eachof the two cr

imes. Alichia Fria s, who was not involved in either theft, claimed to have seen the defenda nt, Anderso n, and Er

ic Fria s dress in

dark clo thing, g ather to ols, and pu t on glove s in preparationfor the thefts. There was testimony that a trailer which had been borrowed from Bachtel
was used in the second theft. The defendant knew Ba chtel, who did indeed

own a tra iler at the time of the Saucema

n theft. Co

rrobora tion of an accompl ice’s te stimony

need only be slight. In our view, the corroborative testimony met that standard.

II Next, the defendant contends that the trial court erred by failing to correctly

instruct the jury
as to the law governing accomplice testimony. I

n a related claim, he

asserts that the trial court erred by denying his requested jury instruc tion on ac co mp li ce te st im on y. The defendant also complains that the trial court should have instructe d the jury that Alic hia Fria s was, as a matter of law, an accompl ice to the crimes.

The trial court has a duty “ to give a complete charge of the law applicable to the facts of a case.” State v. Harbison , 704 S.W.2d 3 14, 319 (T enn. 1986 ); see also Tenn. R. Crim. P. 30. “[The] defendant has a constitutional right to a correct and compl ete cha rge of the law.” State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law require s that all of the elements of each offense be described and defined in connection with that offense. See State v. Cravens , 764 S.W.2d 754, 756 (Ten n. 1 989). Jury ins truct ions must , howe ver, b e revie wed in the co ntex t of th e overa ll cha rge rather than in isolation. See Sandstrom v. Montana , 442 U.S. 5 10 (1979) ; see also State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. A pp. 19 94). A ch arge i s prejudi cial err or “if it f ails to fa irly submit the l egal issues or if it misleads the jury as to the applicable law.” State v. Hodges , 9 4 4 S.W.2d 346, 352 (Tenn. 1997).

While the defe

ndant may

request special instructions, the jury char ge provided by

the trial judge is suff

icient where it adequately states the law. See, e .g. , State v. Tyson , 603 S.W.2d 748 (Tenn. Crim. App. 1980). When a trial court's charg e to the jury is accurate and

complete, it need-5-

notgive additional special instructions requested by the defendant. See State v. Story , 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).
Here, neither the jury instruc tions nor the or derdeny ing the d efenda nt’s spec ial requ est appears in the record on appeal. The record contains nothing from which this court could determine the content of the instruction on accomplice testimony . Moreover, while the record does contain a copy of the defendant’s requ ested jury instruction regarding the testimony of accomplices, the request does not suggest that Ms. Frias should be de clared an acc omplice. In consequence , the record is inadequate for a review on the merits. I t is the duty of the appellant to prepa re a complete and accura

te reco rd on app eal. Tenn. R. A

pp. P. 24(b ). The fa

ilure to pr epare a n adequa te record for review results in the waiver of that issue. Thompson v. State , 958 S.W.2d 1 56, 172 (T enn. Crim. App. 1997).

III As his final issue, the defendan t asse rts that the trial court erred by denying an alternative sentence. The state

disagr ees. When there is a challenge to the length, range, or manner of service of a sentence, it is the dut

y of this court to conduct a de novo review with a presumption that the determinations made by

the trial court ar e correct. Tenn . Code Ann . § 40-35- 401(d). T his presumption is "cond

itioned up on the af

firmativ e sh ow ing in the record that the trial court considered

the sentencing principles and all relevant fa cts and circumstan ces." Statev. Ashby , 823 S.W.2d 166, 169 ( Tenn. 199 1); see State v. Jones , 88 3 S .W .2d 597 , 60 0 (T enn . 19 94) . "If the trial court applies inappropriate factors or otherwise fa i ls to follow the 1989 Sentencing Act, the presumption of correctness falls." Statev. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commiss ion Comment s provide that the burd en is on the defendant to show the improprie ty o f the sen

tence. Tenn. Code

Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our re vi ew re qu ir es an an al ysi s o f ( 1) th e e vi de nc e, if an y, received at the trial and sentencing hearin g; (2) th e prese ntenc e repor t; (3) the pr incip les of sente ncing and th e argu ments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense ; (5) any mitiga ting
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35- 102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calcula ting the sentenc e for a Cl ass B, C, D , or E fel ony convicti on, the pr

esump tiv e sentence is the minimum in the range if there are

no enhancement or mitigating fac tors. Tenn. Code Ann. § 40-35-210(c). If

there are enhancement

but no mitigating factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-2 10( d). A sentence involving both enhancement and mitigating factors requires an assignment o f relative weight for the enhancement factors as a means of increasing the sentence

. Tenn. Code Ann. § 40-35- 210(e). The sentence must thenbe reduced within the range by any weig ht assigned

to the mitigating factors present. Id.-6-

In arriving at a sen tence of two years, the

minimum within the range, the trial court found enhancement

factor (2), that the defendant was the leader in the commission of an offense involving two or more criminal actors, applicable. See Tenn. Code Ann. § 40-35-114(2). In mitigation, the trial cour t concluded that the defendant’s criminal conduct neither c aused nor threatened seriou s bodily injury. See id. § 40-35-113(1) . The tria l court ordered a sentence of ele ven months and twenty-nine

days for the misdeme anor theft conviction, to be ser ved concurrently with the felony sentence of two year s. The defendant does not quarrel with the enhanc ement and mitigating factors applied by the trial court, nor doe s he complain that the sentences were excessive . He simply asserts that the trial court erred by denying an alternative sentence.

An alternative sentence

is any sentence

that does not involve total confinement. See State
v. Fields , 40 S.W.3d 435 (Tenn. 2001). As a standard offender convicted of a Class D felony, the defendant is presumed to be a favora ble can didat e for al ternat ive se ntenc ing. See Tenn. Code Ann. § 40-35-102(6). In addition, beca use the sentence imposed is eight years or less, the trial court was required to consider probation as a sentencing option. See Tenn. Code Ann. § 40-35-303(b).

The trial court’s determin ation of w hether t he defe ndant is e ntitled to an alternative sentence
an d whether the defe

ndant is a suitable c andidate

for full p

robation are dif ferent inquirieswith different burdens of proof. Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). When,
as here, the defendant is entitled t o the stat utory presumption favoring alternative sentencing, the state must overcome the pre sum ption by the showing of “ evidence to the contrary .” Ashby , 823 S.W.2d at 169; State v. Bingham , 910 S.W.2d 448, 455 (T enn. Crim. App. 1995) overruled in part
on other grounds by State v. Hooper , 29 S.W.2d 1 (Tenn. 2 000); see Tenn. Code Ann. §§ 40-35-102(6), -103 (1997). Converse ly, it is the defendant who has the burden of demonstrating his suitability

for total probation. Bingham , 910 S.W.2d a t 455; see Tenn. Code Ann. § 40-35-303(b) (1997).

While recognizing that the defendant wa s entitled to the presumption in favor of alternative sentencing and that probation should au tomatica lly be considered, the trial court denied both and ordered a fully incarc erative

sentenc e. The tr

ial cour t, observing that

Anderso n, Alichia

Frias, and Eric Frias had been given sentences of inca rceration, concluded that confinement was necessa ry to avoid disparate sentences. See Tenn. Code Ann. § 40-35-102(2)(1997). One of the purposes of the Sentencing Act is to “assur e fair and consistent treatment of all defendants by eliminating unjustified disparity in sentences.” Tenn. Code Ann. § 40-35-1 02(2). O ur supre me court has held t

hat “some disparity [in s enten cing] is justified, depending on the particular crime and the individual criminal.” Statev. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). Moreover, this court has determined that “each
case must be bottomed upon its own facts,” State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987), and that i ndividual ized punish

ment is the essence of alternative sentencing, State v. Dowdy , 894 S.W.2d 3 01, 305 (Tenn. Crim. App. 1994). In consequence , alternative sentences are to be considered

on a case-by -case basis. While this approach may result in s ome dispa

rity , each c ase will be treated fairly and cons istently

based on the proc edures a

nd princi ples that guide all sentencing determinations and an assessment of the facts and circ umstances presented. Moss , 727 S.W.2d at 235. In our view, the trial court e rred by or

dering a fully

incarcerative s entence because others-7-

involved were sentenced to confinement. The record is devoid of any indication of whether

the other sentences were negotiated, what proof was presented at the sente ncing h earings , and w hat fi ndin gs were made by the tri al court judge who imposed the sentences. A propor tionality analy sis under these circumstances is not possible.

As indicate d, this defendant is entitled to a presumption in favor of an alternative sentence “absent evidence to the cont

rary.” See Tenn. Code Ann. § 40-35-102(6). What constitutes such evidence can be found in Tennessee Code Annotated section 40-35-103, which provides , in p ertinent part, asfollows:

Sentences involving

confine ment shoul d be base d on the fo llowing c onsidera tions: (A ) Co nfinement is necessary to protect society by

restraining a defendant who has a long hist ory of crimin al conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense o r co nfineme

nt is parti cularly

suited to p

rovide a n effective dete

rrence to others lik ely to commit sim

ilar crimes; (C) Meas ures les s restrictive than confine ment have

freque ntly or rece ntly been applied unsuccessfully to the defendant[.] Tenn. Code Ann. § 40-35-103(1).

Ini ti al ly, we note that neither subsection (A) nor subsection (C) are appl icab le. The defendant has no criminal record . Measur es less re strictive

than conf

inement h ave not f

requent ly
or recently been applied unsuccessfu lly to the defendant . While t he trial cour t quoted su bsection (B) in its denial of an alternative sentence, it is unclear fr om the re cord whethe r the cou rt, in fact, concluded

that the section was applicable. Certainly , the trial co urt ma de no f actual findi ngs pertaining to that section.

Before a trial court may

deny an a

lternative sentence based

upon the circumstances of the offense, those circumstances “must be ‘especially violent, ho rrifying , shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated deg ree,’ and the natur e of the o ffense

must outwe igh all factors favoring [an alternative sente nce].” State v. Cleavor , 691 S.W.2d 541, 543 (Tenn. 1985); State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). While s erio us crimes, the circumstances of the offense s in this ca se do not r ise to the "exa

gger ated deg ree" l evel. To the extent that the trial court relied on this factor to deny an alternative sentence, the decision was in error. Our supreme court in State v. Hooper , 29 S.W.3d 1, 10 (Tenn . 2000), h eld that:
we will pres ume that a

trial cou rt's de cision to incarcerate a d efendant based on a needfor deterrence is correct so long as any reasonable person looking at the entire record could con

clude tha t (1) a need to dete

r similar c

rimes is pr

esent in the particular community, jurisdiction, or in the state as a whole , and (2) incarceration-8-

of the defendant

may rationally

serve as a deterrent

to others similarly situated and likely to commit sim

ilar crimes.
Our high court also suggested several guiding factors f

or determining whether

a need for deterrence is prese nt and whe

ther inc arcer

ation is “p articula

rly suited” to

achieve that goa l:
(1) Whether other incidents of the charged offense are increasing ly present in the community , jurisdic tion, or in the state as a whol e; (2) whether

the defe ndant' s crime w as the re sult of inte ntional, k nowing, or reck

less conduct or was otherwise motivat ed by a desi re to profit or gain from the criminal behavior ; (3) whether the defendant's crime and conviction have received substantial publicity bey ond that no

rmally expected in the ty pical ca se; (4) whether

the defe ndant wa s a membe

r of a cr iminal ent

erprise , or substa

ntiall y encoura ged or assisted others in a

chieving the criminal objective; (5) whether the defendant has previous ly e ngag ed in cri minal con duct of the same type as the offense in question, irrespective of whether suc h conduct resulted i n previousarrestsor convictions.

Id. at 10-12. Our

supreme court cautioned that “because the ‘science’ of deterrenc e is imprecise at b est, the trial courts should be given considerable latitude in determining whethe r a need fo r deterrence

exists and whether

incarceration appropriately addresses that need.” Id. Our high court noted tha t [d]eterrence is a complex psychologica l process, and the focus on det errenc e thro ugh changes in the penalty structure or sentencing behavior

repres ents but one part of the calculu s. Section 40-35-103(1)(B) recog nizes this re ality as the lang uage of the statute require s only

that conf inement b e “part

icularly suited” to provide a deterrent effec t, and it does not require proof that incarcera tion “will” or

“should” deter

others from comm

itting sim ilar crimes.
Id. at 9. Here, the trial court failed to consider whether there existed a need to deter similar crimes
or whether incarceration of the def endant was particularly

suited to t ha t need. Further, the record does not suppor

t the pre sence of

either o f these f

actors. No evide

nce was present

ed that wo

uld support a finding of any

of the five factors enumerated in Hooper . In our view, there is insufficient proof to support deterrence as a basis for the denia l of an alternative sentence. See As hby , 82 3 S.W.2d at 170.

Fi na ll y, the trial court observed that “from the jury ’s finding in the cas e, [th e defendant] testified falsely unde

r oath” and denied an alternative sentence based upon the defendant’s lack of candor. “A defendant’s truthfulness or mendacity while testifying

on his own behalf, almost without exception, has been deemed probative of his attitud

es towar d society and prospects for rehabilitation and hence relevant to sentencing.” United States v. Grayson , 438 U.S. 41, 51 (1978). “‘[A] fact like-9-

the defenda

nt’s rea diness to li e under o athbefore the judg e who will

sentenc e him would

seem to be among the more precise and conc rete of the availabl e indicia.’” Id. (quot ing United States v. Hendrix , 505 F.2d 1233, 1236 (2nd Cir. 1974)).
Here, the trial court apparently determined that because the defendant testified on his own behalf, but was found guilty, he necessarily lied unde r oath. Otherwise, the trial court did not make any factual finding that

the defendant had indeed offered untrue testimony

. See Grayson , 438 U.S. at 51 (conc luding th at when a trial cou rt finds a defenda nt’s lie to be flagrant it “may be deemed probative of

his prospects for rehabilitation”). While lack of candor is anappropriate consideration in this instance, it

is our view that lack of candor standing alone would not altogether eliminate the prospect of an alternative sentence. The def endant's lack

of cando r is, howe ver, suf ficient t o deny of a sentence of full probation.

Becau se the state

failed to overcom e the pre sumption in f

avor of a n altern ative se

ntence, it is our view that the defendant’s sentence must be mod

ified. Th e twenty -y ear-ol d defendant has no criminal record, a steady em ploy ment history, and is curre ntly working on his post-sec ondary education. Th e p roof est ablished that the c ircumsta

nces of t he offe nses, whi le not suf

ficientl y repreh ensible to justify the denial of an alter native senten ce, were se rious. Un der thes e circumst ances, a period of incarceration is appropriate . The defendan t’s felony sentenc e is, therefore, modified for an effective sentence of split confinement with nine months to be served in the Department of Correction and the balance to be served on probation.

___________________________________ GARY R. WADE, PRESIDING JUDGE