### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs S eptember 11, 2001
STATE OF TENNESSEE v. STEPHANIE RENA E PERSON
Direct Appeal from the Circuit Court for Madison County

No. 00-139 Donald H. Allen, Judge

No. W2000-02859-CCA-R3-CD - Filed October 10, 2001

A Madison County jury convicted the Defendant of misdemeanor theft of property, and the t rial court sentence d h er to eleven months and twenty-nine day s of incarceration. The judgment of the trial court specified that

the Defendant

must serve sevent

y-five per cent of the sente

nce prior to elig

ibility for work release, furlough, trusty status, and rehabilitative programs. The Defendant now appeals, challenging both the sufficie ncy of th e evidenc e and the sentence that was imposed. Finding that the evidence was sufficient to support the conviction and that the sentence was properly imposed, we affirm the jud

gment of the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and N ORMA M C G EE O GLE , JJ., joined.

Clifford K. McGown, J r., Waverl y, Tennessee (on appeal); Geo rge Morton Googe, Di strict Public Defender; and Vanessa D. King, Assistant District Public Defender, Jackson, Tennessee (at trial and on appeal), for the Appellant, Stephanie Renae Person.

Paul G. Summers, A ttorney Ge neral and Reporter; Laura McMullen Ford, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee

. OPINION

I. FACTS

The Defendant was in

dicted by the

Madison Co un ty Grand Jury for misdemeanor theft of pro pert y, with the owner of the property being Fred’s Dollar Store. At the jury trial, Tim McGee testified that he is the manager for Fred’s Dollar Store in Jackson, Tennessee. Mr. McGee identified the Defendant as a

person with whom he had come in contact in the store on September 3, 1999. On that date, the Defen

dant activated a

larms when she exite

d the store with

several ite

ms of-2-

merchandise

in her purse that h

ad not been “dea

ctivated.” (When

items a re p urchased, they are “deactivated” and then presumab ly do not set off the alarm). The items of merchandise in the Defendant’s purse that had notbeen deactivate

d included Murine e

ye drops an

d four hair extensi

ons, the total value of which was $10.88. Mr. McGee asked the Defendant if she had paid for the it

ems, and she said she did not. The cashier reported to Mr. McGee that the items had not been presented to her when the De

fendant checke

d out. The Defendant’s seven-year-old daug hter testified that she was six years old at the time of the the ft a nd t hat she had put the Mur ine eye drops and other items in her mother’s purse without her mother’s knowledge. The Defendant’s eight-ye ar-old son testified that he was with his mother shopping at Fred’s on the day of the incident, along with his two sisters. He testifiedthat he saw his “little sister” put the ey

e drops in his mother

’s purse without his mother se

eing. He didn’t t

ell his mother, although he did know that what his little sister had done was wrong. The Defendant’s older daughter testified that she was also present on the day of the alleged theft, and she stated that she was there to buy a clipboard for school. She testified that the Person fam ily h ad a “ bugg y” that contained her “mama’s purse

and some lotion and some Cocoa Butter and my clipboard.” The older sister saw her younger sister putting the ey e drops “and that stuff

that goes on your hair” into the purse. She also did not tell her mother what she had seen.

The Defendant testif

ied that she was sh

opping in Fred’ s with her three c hildren. She first became aware that there was a problem when she was leaving the store and the alarm went off. The Defendant

testified that she had placed the Murine eye drops in the buggy , but not in her purse. Concerning the Murine

eye drops, the Defendant testified, “I didn’teven think about it when I got up to the counter.” She agreed that the hair extensions wer

e in her purse when she was confronted by the manager. She testified that w hen the alarm we

nt off and the mana

ger called he

r back over to check her purse, her s

on “busted out with ‘ Brandi did it’ and th en t hat’s when my

daughter said ‘Brandi did it.’” The Defendant further testified that even though she had to open her purse to get her money to pay

for other items, sh

e did not see the ey

e drops or hair exte

nsions in her purse, because her money was “sitting right on top of it, so I just gr abbed it out. I didn’t eve n dig or anything in the purse.”

In rebuttal, Tim McGee, the manager of Fred’s Dollar Store, testified that after the inc

ident, he took photographs

of the items th

at had been found in the Defendant’s purse. The photographs
were admitted into evidence. Mr. McGee testified that the Murine eye drops for sale at Fred’s were displayed on a shelf situated sixty-eight inches above the floor.

II. ANALY SIS A. Sufficiency of Evidence

The Defendant first contends that insufficient evi dence w as presented to support her conviction. When an accused challenges the sufficiency of the evidence, an appellate c o urt’s standardo f review is whether, after considering the evidence in the light most favorable to the-3-

prosecution, any rational trier of fact could havefound the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (1 979); State v. Dunca n , 6 98 S.W.2d 63, 67 (Tenn. 1985); T

enn. R. App. P. 13(e

). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence , or a co mbination of both direct and circumstantial evidence. State v. Penderg

rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 2000).

In determining the sufficiency of the evidence

, this Court should not r

e-weigh or re

-evaluate the e vidence. State v. Matthews , 805 S.W.2d 776, 779 (T enn. Crim. App. 1990

). Nor may th

is Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956); Statev. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999). Questions concerning the credibility of the witnesses, the weight and v alue of the evide nce, as well as a

ll factual issues raised by the evidence are resolved by the trier of fact. Liakas , 286 S.W.2d at 8 59. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all

reasonable inferences which may be drawn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presum p tion of guilt, the convicted criminal defendant bears the burden of

showing that the e

vidence was leg

ally insuffi

cient to sustain a g

uilty verdict. Id.

In this case, the Defendant basically asserted that her youngest daughter had put the Murine eye drops and hair extensions into the Defendant’s purse without the Defendant’ s knowledge. Thi s theory was supported by the testimony of the Defendant’s three minor children and by the testimony of the Defendant. However , there were several d iscrepancies in

the testimony

of the defense witnesses. The State presented ample evidence,

both direct and ci

rcumstantial,

from which the jury could have reasonably inferred that the Defenda nt put the stolen items in her purse herself, knowingly

failed to pay for the i tems, and attempted to leave the store. The Defendant, who had twice been convicted of forgery, testified that althoug h she obtained money

from her purse to pay for her purchases, she did not see the Murine eye drops or the hair extensions in her purse. As the Statepoints out in its brief, it is obvious that the jury did not find the defense testimony persuasive. We conclude, as did the trial court, that the evidence presented by the state was sufficient to convict the Defendant of

misdemeanor thef

t. This issue is withou

t merit. B. Sentencing

The Defendant next argues that her sentence is excessive. As previously stated, the trial court imposed a sentence of eleven months and twenty-nine days to be served in the local jail. The trial court ordered that the Defendant serve seventy-five percent of the sentence befor e being eligible for work release, furlough, trusty status, and rehabilitative prog rams.
Our analysis begins with well-settled principles that govern our review of a sentence determinat

ion imposed under the Criminal Sentencing Reform Act of 1989. In making its sentencing determination, the trial co urt, at the conclusio n of the sent encing heari ng, determi nes the range of sentence and then determin es the specific

sentence and the propriety of sentencing alternatives by-4-

considering (1) the evidence, if any, received at the trial and the sentencing hearing, (2) the presentencereport, (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 the enhancement and mitigating factor s, (6) any statements

the defendant wishes to make in the defendant's behalf about sentencing, and (7) the pot ential for rehabilitation or treatment. Tenn. Code Ann. §§ 4 0-35-210(a), (

b), -103(5); Statev. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

In mis demeanor sentencing, a separate sentencing hearing is not mandatory, b ut the trial cour t is required to allow

the parties a

reasonable opportunity to be heard on the question of the length of the sentence and the manner in which it is to be served. Tenn. Code Ann. § 40-35-302(a). In this case, the trial court did so. Further, the sentence imposed must be specific and consistent with the purposes and principles of the Criminal Sentencing Reform Act of 1989. Id . § 40-35-302(b). A percentage of not greater than seventy-five perce nt of the sentence should be fixed for service, after which the defendant be comes eligib

le for “work release, furlough, trusty status and rela ted rehabilitative programs.” Id . § 40-35-302(d).

The misdemeanant, unlike the felon, is not entitled to the pres umption o f a minimum sentence. State v. Creasy

, 885 S.W.2d 829, 832 (T

enn. Crim. App. 1994). Howev er, in determining the percentage of the sent ence to be served in actual confinement, the court must consider enhan cementand mitigating factors as well as the purposes and principles of the Criminal Sentencing Reform Act of 1989, and the court should not impose such percentages arbitrarily. Tenn. Code Ann. § 40-35-302(d).

When a criminal defendant challenges the length, range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the se n tence with a presumption that the det erminations made by the trial court are correct. Id. § 40-35-401(d). The Tennessee Suprem e Courthas held th at in misd emeanor sen tencing a trial court is not requ ired to pla ce specific f indings
on the record. See State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). A trial cou rt need only consider the pri nciples of

sentencing and

enhancement an

d mitigating fa

ctors in order to c

omply with the legislative mandates of the misdemeanor sentencing statute. Id.

After a careful review, we

conclude that

the sentence imposed by the trial court is supported by the a ppropriate principles of sentencing. The Defendant has an extensive criminal histor y involving numerous convictions. See Tenn. Code Ann. § 40-35-114(1). The convictions include bothfelonies and misdemeanors . The record als o indicates that the

Defendant has a

previous history of unwillingness to

comply wit h th e con dit ion s of a sen ten ce i nvo lvi ng re lea se i n th e com mun ity. See id. § 40-35-114(8). Thus, the record supports the application of two enhancement factors. As for mitigating factors, the trial cou rt con sidered the needs of the Defendant’s children and the Defendant’s prospects for employment, but obviously felt that the enhancing factors far

outweighed the mitigating f

actors.-5-

A sentence of confinement is justified in this ca

se for several r

easons. First, c

onfinement is necessary to protect society from this Defendant, who has a long history of criminal conduct. See id. § 40-35-103(1)(A). Next, the record indicates that meas ures less restrictive than confinement have f requently and recently be en applied unsuccessfully to the Defendant. See id. § 40-35

- 103(1)(C).

We also note that with certain exceptions, a defendant is eligible for probation if the sentence actually imposed is eight years or less. Id. § 40-35-303(a). However, "[a]lthough proba tion 'must be automatically considered as a sentencing option for eligible de fendants, the defendant is not automatically

entitled to probati on as a matter of law.'" Statev. Davis , 940 S.W.2d 558, 559 (Tenn. 1997) (citing Tenn. Code Ann. § 40-35-303(b) sentencing comm'n cmts). In determining whethe r to grant or deny

probation, the tri

al court may

consid er the circumstances of the offense; the defendant's criminal record, background and social his tor y; the defendant's physical and mental health; the deterrent

effect on other criminal activity; and the likelihood that probation is in the best interests of both the public and the def endant. State v. Parker , 932 S.W.2d 945, 958 (T enn. Crim. App.1996). The defendant bears the burden of establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this case, the Defendant has
no tmet that burden. We conclude that the trial court committed no error in s entencing th e Defendant. This issue is without merit. Accordingly, the judgment of the trial court is in all respects AF FIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE