# FILED February 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9611- CC-00465 ) Appellee, ) ) ) WARREN COUNTY VS. ) ) HON. CHA RLES D. HASTON LEON WOODLEE, ) JUDGE ) Appe llant. ) (Theft)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : BERNARD K. S MITH JOHN KNOX WALKUP P.O. Box 490 Attorney Generaland Reporter McMinnvill e, TN 37110 LISA A. NAY LOR Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 WILLIAM M. L OCKE Distri ct Attorney General P.O. Box 410 McMinnvill e, TN 37110
OPINION FILED ________________________ CONVICTI ONS AFFIRME D; REMANDED F OR RESENTENCING DAVID H. WELLES , JUD GE1 Tenn. Code Ann. §§ 39-14- 103, 39-14-105( 1) - (3),55-5-108(a)( 2), 55-5-111

. 2 The judgments contained i n the record ar e inconsist

ent withthe transcripts fr om both the trial and the s entenc ing hearin g in term s of the c onvicted offens es and the sente nces im posed . W e will add ress thes e inco nsis tenc ies w hen we c ons ider th e De fend ant’s third is sue on ap pea l. -2- 

# OPINION

The Defendant, Leon Woodlee, appeals as of right pursuant to Rule 3 of th e Tennessee Rules of Appell ate Procedure. He was convicted b y a W arre n Coun ty jury of

one co unt of theft o f property valued between $100 0 and $10,000, two counts of t heft of pr op erty valued between $500 and $1000, one count of theft of propert y valued at $500 or less, one count of failingto keep requi red records, and three c ounts ofpossessing an engine or transmission fr om which the identificatio n number had been removed or de faced. 1 T he trial court sentenced him as a Rang e I standa rd offend er to three year s imprisonment for theft between $1000 and $10,000, two years for one count of theft bet

ween $500 and $1000, four years for t he other count of theft between $500 and $1000, two years fo r theft less than $500, a nd thirty day s each for one co unt of failure to keep required r

ecords and three co unts of possessing an engine or t ransmission from which the id en tifi cation number had been r emoved or defaced. At the sentencing hearing, the trial court ordered the the ft sentences to ru n consecu tive to each o ther, with all rem aining co unts to run co ncurrent wi th each other and concurrent

with the theft

sentences. 2 In addition , the sente nces w ere orde red to
run consecutive to a six-year sentence f or which theDefendantwas on probati on at the time of the pres ent offens es.

In this appeal , the Defendant argues that the eviden ce is leg ally insuffi cient to support t he theft convict ions, that the jury instructi on regarding the inference-3-

from possession of recently stolen prop erty i s unco nstitut ional, a nd that the sentence imposed by the trial court constit uted an abuse of di scretion in several respects. After reviewing t he record, we conc lude that the Defendant’ s issues provid e no b asis fo r the rev ersal o f his conviction s. We do, however, conclude thatthe Defendant was er roneously sentenced. Accordi ngly, we affirm the Defe ndan t’s convictions but r emand this case to the trial court for resentencing.

We begin with a sum mary of the pert inent fac ts, whic h are notin seri ous dispute. The Defendant is an aut omobile mechanic an d ope rates a garag e in Warren Coun ty, Tenn essee . Officer Ba rry Powe rs of th e McMinn ville Poli ce Department was on a routi ne patrol during the ea rly morning ho urs of Sund ay, November 14, 1993, when he not iced a black C hevrolet M onte Carlo parked on the premises of the Defendant’s garage. Powers became suspicious b ecaus e the car did not

have a visi ble li cense plate and a car fit ting that descript ion had
recen tly been re ported s tolen. Po wers ap proach ed th e vehicle on foot, s hined his flashl ight thr

ough the windows, and noticed that the steering col umn of the car had bee n tampered with in such a way as to rai se his suspicions furt her. As a result, Powe rs che cked the veh icle identification numb er (“VIN”) with the Nat ional Cri me Inform ation C enter ( “NCI C”) an d disco vered that Mic hael Viola had reported the Mo nte C arlo stolen f rom Murfreesboro, Tennessee on October 27, 1993.

Otherofficers soon arrived on the scene, and t he Defendant was cal led to
come to his gar

age. Once there, the Defendant was as ked about the Mon te Carlo. The Defendant stated that the car appeared on hi s lot on Satu rday morning, the previ ous day. He assumed someone had dropped i t off and op ened-4-

the car doors and t runk to see i f the owner had l eft a note d etaili ng what needed to be done to thecar. When he could not f ind a note, he closed and l ocked the doors and trunk. No one came to the garage on Sat urday to i nform him ab ou t what neede d to be do ne to the c ar. At the co nclusion of th e work day, the Defendant left t he car as it was. He was not suspi cious of t hese circumstances because it was fa irly com mon for individ uals to leave t heir ve hicles for repa ir while he was not at his garage and come back later to tell him what needed to be done.

Given that the Monte Carlo was li sted as a stol en veh icle , offi cers asked the Defenda nt if there was anyt hin g else on the pr emises which had appeare d undermysterious c ircumstances
. The Defendant pointed out a late-model Chevrolet

engine which was on the ground nex t to the gar

age. He state d that a
man had come by his garage a few days earli er in a truck that was smoki ng very badly. He asked the Defendant t o put in a new en gi ne which he would supp ly. The Defendant assumed that the engine si tting on the ground next to the garage was an en gine which the man in the smoki ng truck had dr opped off. The Defendant did not

know the man in the tru ck no r could he remember his name.

On the ground near the eng ine was a transmissi on. According to Officer John Morgan, the Defendant initi ally gave confli cting statement s rega rding the origin of the tr

ansmission. The Defen dant later stated th a t the man in the smoking truck had express ed a de sire to pay for t he instal lation of the engi ne by giving the Defe ndant a transm ission. T he D efend ant as sum ed tha t this transmissi on had been dropped off by the man in the truck. Officers were able to determine fr

om the engine and tr

ansmission seri al numbers that the parts had-5-

come fr om a 1989 Chevrolet Bl azer which Charl es Park reported stolen on November 6, 1993.

Officers also discov

ered that t he serial number from an engine in a truck
on the premises had been g round off. The D e fendant iden tifi ed the truck as belonging to his son and stated that he had recentl y instal led the engi ne. When aske d about the origin of the engine, the Defendant repli ed that he co uld no t remember because he had had the engine for more than a ye ar. Officers asked him if h e had a receipt or o ther reco rd with inform ation abo ut the eng ine. T h e Defendant replied that he did not have a receipt because he had had the engine f or so lo ng and that he di d not keep recor ds of engine serial numbers or informati on of that t

ype.

Officers conf iscated the stol en Monte Carlo, t he stolen engi ne and transmissi on, and the truc k with theengine lacki ng a serial nu mber. Law enforcementofficials later de cided to run a dvertis eme nts in the newspaper and
on radio stat ions asking any one who had recentl y purchased an e ngine or transmiss io n from the Defen dant to ha ve the pa rts check ed by po lice. In response to these adver tisements, numerous indivi duals brought vehicles

to be checked. Of those individual s, police found four whose vehicles c ontaine d parts identif ied as having been stolen or whose ser ial numbers had been gr ound. Those ind iv idu als , Je remy Winfre y, Ronald Wilmore, J eremy Campbell, and R andy Wan amaker, had each purchased the parts i n question f rom the Defen dant.-6- On January 14, 1994, t he Warren County grand jury returned a four -count indict ment against the Defendant based on the November 14, 1993, search of t he Defendant’s gar

age and discover y of stolen o r deface d parts. That ind ictmen t, number 6736, is summarized in the fol lowing tabl e:
COUNT OFFENSE CODE SECTION PROPERTY AT

ISSUE ORIGINAL

OWNER DATE AND

PLACE OF THEFT 1 theft >$1000 39-14-103; 39-14-105(3) 1986 Chevy Monte

Carlo Michael Viola 10/27/93; Murfreesboro, Tennessee 2 theft >$1000 39-14-103; 39-14-105(3) 1989 Chevy engine

and transmission Charles Park 11/6/93; Chattanooga, Tennessee 3 failure to keep records 55-5-108(a)(2) 350 cubic inch Chevy engine from son’s truck unknown not applicable

4 possession of engine with serial number removed 55-5-111 350 cubic inch Chevy engine from son’s truck unknown not applicable

On May 13, 1994, the Warren County grand j ury returned a five- count indi ctment against the Defendant based on the v ehicles i nspected as a result of the newspaperand ra dio adv ertisem ents. T hat ind ictme nt, num ber 67 75, is summarized in the f

ollowing table:
COUNT OFFENSE CODE SECTION PROPERTY

AT ISSUE PURCHASER ORIGINAL OWNER DATE AND

PLACE OF THEFT 1 theft >1000 39-14-103; 39-14-105(3) 1991 Chevy

engine Jeremy

Winfrey William

Gaskin 7/25/93

Norcross, Georgia 2 theft >500 39-14-103; 39-14-105(2) 1988 Ford

engine and transmission Ronald

Wilmore Clarence

Masters 2/11/93;

Duluth, Georgia 3 theft >500 39-14-103; 39-14-105(2) 1991 Chevy

transmission Jeremy

Campbell Steve

Bennett 10/27/92;

Chattanooga, Tennessee 4 possession of engine with serial number removed 55-5-111 350 cubic inch Chevy engine Jeremy

Campbell unknown not applicable

5 possession of engine with serial number removed 55-5-111 350 cubic inch Chevy engine Randy

Wanamaker unknown not applicable-7-

Upon the State’s motion, the two ind ictments were consolidated for trial. The Defendant was tried from March 28 to March 30, 1995.

At trial, the Defe ndant d id not dispute that the property alleged to have been stolen wa s in fact stole n. In add itio n, he did n ot dispute that the pa rts alleged to lackserial numbers did notin fact have serialnumbers. In shor t, the Defendant freely

admitted t hat the stolen or defaced property was discovered on his busine s s prem ises an d that h e had installe d stole n or de faced prope rty in
some of his cl ients’ vehicles . His defensefocused instead upon hi s mental state. His chief contention at trialwas that he di d not kn owing ly possess stol en or defaced pro perty.

In support of t hat defense, the Defendant testifi ed that although the bl ack Monte Carlo (i ndictment#6736, co unt 1) appeared at his garage wi thout an explanati on, lacked a license plate, an d contained a steering column which had be en tampered with, he did not know t hat it was stolen. He stated that it wa s fairly co mm on fo r indiv iduals to leave vehi cles for repair wi thout his knowledge and return later to explain wh at needed to be done to the vehicles. W ith regard to the 1989 C hevy engine a nd transm ission stolen from Charles Pa rk (indict ment #6736, count 2) , the Defe ndant te stified that he believed th at the parts were dropped off at

his garage by the man in thesmoking truck, as he had told Of ficer M organ on November 14, 1993. The Defendant was unaware tha t they were stolen. Moreover, t he Defendant offered the test imony of Shirley Jones, who stated that he had overheard part of a conversati on between the Defendant and
a man in a smoking truck a few days before November 14, 1993. Jones test ified-8-

thatthe conversati on concerned a tr ansaction i n which the Defendant was going to insta ll an engi ne in the smoking truck in exchange for a t ransmission.

With regard to t he stolen engi nes and transmissi ons which the Defe ndant instal led in customers’vehicles (indict ment #6775, counts 1- 3), he again clai med thathe was not aware t hat the parts were st olen. He test ified t hat he purchased engines and tra nsm ission s from individu als as well as f rom dealers and sal vage yards. The Defen d ant produced sever al receipts indi cating t hat he had purchased engin es or tra nsmis sion s from ind ivi dual s, payin g in cash. He admitted, h owever, that he could not link t hose specifi c receipts to the stolen parts installed in c ustom ers’ vehicle s, a ppare ntly because he fail ed to note t he serial numbe rs of the parts involved o n the rec eipts. Furthermore, the Defendant stated that althou gh he a ttempte d to locate t he indivi duals named on the receipts, he was un succes sful. T h e Defendant test ified t hat he had never bought an engine or transmiss ion that h e knew was stolen and that he had p aid the individu als named on the receipts a fair market value for the parts. In additio n, the Defendant pointed out that hehad reimbursed or purchased new par ts for t he custome rs in whose vehi cles he had installed stolen or def aced eng in es or transmissions.

With regard to the charges concerning engines or t ransmissi o ns with defaced serial numb ers (indictme nt #673 6, coun ts 3-4; indictm ent #67 75, cou nts 4-5), the Defendant testifi ed that he si mply did not look atserial n umb ers in the
course of his busi ness and that he was u naware that he was supposed to record these numbers as part of his record- keeping. I n additi on, the Defendant stated thatother similar busin esses in his are a did not record serial numb ers either.-9-

Given that he did not loo k for se rial num bers, th e Def enda nt testifie d that h e did not knowingly pos sess engines or t ransmissions whose serial nu mbers had been defaced or removed.

The Defendant also of fered proofthat he fr

equently worked on vehicl es for police of ficers. In so doing, he never attempted to prevent them from looki ng around his garage whi le they wai ted for t heir vehi cles to be ser viced. It is undisputed thatthe stol en or defaced prop erty whi ch is the subj ect ofindict ment number 6736 was in plain view on the Defendant’s business premises.

After cons idering the pro of pres ented at trial, the jury found the Defendant not guilty on co unt one of indictm ent num ber 673 6 (theft of theMont e Car lo) . On counts two, thr

ee and four of i ndictment number 6736, however, t he jury found him guilty as ch arged. W ith regard to indictment nu mber 67 75, the jury found him guilty as charged on coun ts t wo, fou r andfi ve. On count one, however , charging the Defen dant with th eft of prope rty valued betwe en $1000 and $10,0 00, the jury found him guilt

y of the l esser grade of theft of property valued between $500 and $1000. Likewise, in count t hree, charging theft of prop erty valued between $500 and $1000, the j ury found him guilty of the l esser grade of theft of property valued at $500 or less. The Defendant nowappea ls to this Co urt, challe nging both h is convictions and his sentences.

In his fi rst iss ue on app eal, theDefendant argues t hat the evi dence was legally insufficient to suppo rt his theft con victions. W e note that the Defendant does not challenge t he suffi ciency of the evide nce for h is conviction s dealing with
e ng ines or transm issions lac king seria l numb ers. The Defen dant’s ap pellate-10-

challengeto his theft convictions, l ike his proof at t rial, f ocuses on his m enta l state. He contends that he received t he stolen pr operty at

issue under bona fide circumstances, had no reason to bel ieve that the property had been stolen, and
was in fact

unaware that t he property had been stolen. As a result , he argues that he did not know ingly obtain or exercise control over the stolen property.

When an accused chall enges the suff iciency of the convi cting evi dence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecut ion, any r at ional tr ier of f

act could have found the essent ial eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U. S. 307, 319 (1979). Questions concerning the credibil ity of the witnes ses, the weightand va lue to b e given the evid ence , as we ll as all factual issues rai sed by the evidence, ar

e resolved by

the tri er of fact , notthis court. State v. Pappas , 754 S.W.2d 620, 62 3 (Ten n. Crim. App. 1987 ). Nor may thi s court rewei gh or reevalua te the evide nce. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8).

A jury verdi ct approved by the tri al judge accredits t he State’s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is enti tled to the stron gest legitim ate viewof the evidenc e and a ll inference s therefro m. Cabbage , 571 S.W.2d at 835. Because a verdict

of guilt removes the presumption of innocence and repl aces it with a presumpt ion of gui lt, t he accused has the bur den in thi s court of illustrati ng why the evidence is insuf ficient to support the verdict returned by the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); G race , 493 S.W.2d at 476.-11- A crime ma y be established by c ircum stantial evid ence a lone. State v. Tharpe , 726 S.W .2d 896 , 899-90 0 (Ten n. 1987 ). However, befor e an accused may be convicted of a cri minal offense based only upon ci rcumstantialevidence, the facts and circumstances “must be so str

ong and coge nt as to exclude e very otherreaso nable hypothesis sa ve the guilt of the defen dant.” State v. Crawfo rd , 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). I n other words, a “web ofguilt must be woven around the defendant from whic h he cannot escape and f ro m which facts a nd circ ums tance s the ju ry could draw n o othe r reaso nable inference
save the guil t of the def endant beyond a reaso nable d oubt.” Id. at 484, 613. The weightof the ci rcumstantialevidence and whet her every ot her hypothesis except that of the guil t ofthe defendant has been excluded by the evidence presented
are matters for

the jury to determ ine. State v. Tharpe , 726 S.W.2d 896 (Tenn. 1987); William s v. State , 520 S.W .2d 371 (Te nn. Crim. Ap p. 1974).

The offens e of the ft of prop erty is de fined a s follo ws: “A person comm its theft of propert

y if, with intent to deprive the owner of property, the perso n know ingly obt ains or e xercise s con trol ove r the pro perty w ithout th e own er’s effective consent.” Tenn. Code A n n. § 39 -14-1 03. It is w ell-esta blishe d in Tenne ssee that the possession of recently stolen pr operty gi ves rise t

o an inferen ce that the posse ssor has stolen it or had knowled ge the prope rty wa s stolen and may, in l ight of s urrounding ci rcumstanc es, support a convic tion for theft. See State v. Land , 681 S.W.2d 589, 591 (Tenn. Cr im. App. 1984) ( citati on omitted); State v. Ham ilt on , 628 S.W.2d 742, 746 (Tenn. Cri m. App. 1981) (citat ions omitted). Moreo v er, “t he inference arising f rom the proven fact of possession of recently stolen pr ope rty is not dest royed by cont radictor y evidence,
even the positive testimon y of witnesses . . . .” Bush v. S tate , 541 S.W.2d 391,-12-

395 (Tenn . 1976). The force of t he inference does not vanis h upon the offering of an explanati on by the defendant, bu t rather “remains to beweighed by thejury against the evid ence offered by defe ndan t in expla nation of his possession of the
recen tly stolen property.” Id. ; see also , Land , 681 S.W.2d at 591. The jury was instructed on elements of t he offense of theft as well as the permissibl e inference arising from the p ossession of recently stolen prop erty.

In the case sub judice , the Defendant does not di spute tha t the items of prop erty which are th e subject of the theft

convicti ons were, in fact, r ecent l y stolen and were in th e po sses sio n of the Defendant . At tr ial, t he Defendant offered an explanati on for his possession of the rec ently stolen prope rty, nam ely thathe was unaware that t he property had been stolen. Applying t he reasoning of Bush , Hamilton and Land to the p resen t case , we be lieve it was the province of the jury to weigh the evidence presented by the State, including the i nference arisingfrom the De fenda nt’s possession of recently stolen pro perty, against t he explanati on offered by the Defendant. The jur y did so in thi s case, rej ected the explana ti on offer ed by the Defen dant, an d found him gu ilty on four of five th eft charges. From our revi ew of the recor d, we con clud e that the evidence presented, along with the inference which may p roperly be drawn from the possession of the re cently stolen property, is sufficie nt to su pport th e Def enda nt’s theft convicti ons beyond a reaso nable doub t. The Defe ndan t’s first issu e is therefore without m erit.

In his second is sue on appeal, t he Defen dant ar gues that the jury instruct ion on the infe rence a rising from posse ssion of re cently stole n prope rty is unconstit utional. He contends that the infer

ence instr uction, in effect, requires-13-

him to explain his poss ession of rece ntly stolen property, thereb y s hifti ng the burden of proof f rom the State to him. Thus, he argues that the inference instruct ion vi olates t he princi ples set forth in Sandstrom v. Montana , 442 U. S. 510, 99 S.C t. 2450, 61 L.Ed .2d 39 (1979 ).

In the case at bar , the trial court instructed the jury

on the infer

ence arisi ng from possession of recently st olen property. The inst ruction reads as foll ows: Now, if you find beyond a reasonable doubt from the evi dence that the property in questi on has been recentl y stolen and that soon thereafter the same property was discoveredi n t he exclusive possession of the defe ndant, his possession, unl ess sat is factorily explained, is ordinarily a circumst ance from which you may reaso nably draw an infer ence that t he d efendant had knowl edge thatthe propert

y had been stol en. Howev er, yo u are not requi red to make this inf

erence. It

is for you, The Jury, to determine whether the fac ts a nd c ircums tances shown by the evidence in this case warrantany

inf ere nce whi ch t he l aw pe rmi ts you to draw from the possession of rec ent ly stol en property. When evidence is offered thatthe defendant was i n possession of recently stolen pro perty, the defendanthas the ri ght to int roduce evidence that he c ame into possession of that property lawfully,or possessi on m ay be satisfa ctorily explained throu gh other circum stances or ot her evidence independent of any evidence or testi mony offered by the defend ant. In considering whether pos session of r ecently st

olen property has been s atisfactorily ex plained, yo u are rem inded tha t, in the exe rcise o f cons titutiona l rig hts, the accused need not take the witness s tand an d testify. The term “rec ently,” of cou rse, i s a relative term, an d it has no f ixed meaning. Whether property may be considered as r

ecently st

olen depe nds upon the nature of the property and all t he facts and circumstances shown by the evidence in the case. The l ongerthe period of time since the the ft, the more doubtful becomes the infer ence that may be dr awn from an unexplained posse ssion. The correctness of the infer

ence and the weightto be given a ny expl anatio n that may be drawn by the evidence are matters that must be determined by you, The Jury , and you are not bound to accep t eith er. You must wei gh all of the evidence presented asto the defendant ’s all eged possession of the property in questi on and decide, i n light of all the facts and circumstancespre sent , whether any inference is warranted. You are reminded that the burden of pr oving thedefendant’s guilt of the offense beyond a reasonable doubt remains on the State.-14-

This instruction conform s substa ntially to th e one set fort h in the Tennessee Pattern Ju ry Instruction s. See T.P.I. - - Crim. 42.20 . Furthermore, after instruct ing the jury on the di fferences b etween direct and circumstant ial evi dence, the trialcourt charged the jury as f ollows: I have charge d you, ladies and g entlem en, co ncern ing ce rtain inferences

that you, The Jury, may make regarding certai n evidence in the case. Ho weve r, The J ury is not requir ed to make these inferences. It is

the exclus ive prov ince o f The Jury to determine whetherthe facts and ci rcu ms tances shown by al l the proof in the case warrant t he inference which the law perm its you, The Jury, to draw. The inference may be rebutted by dir ect or by cir

cumstantial evidence or both , wheth er it exists in the evid ence of the S tate or is offered by the defen dant. A lthoug h the d efend ant is not requir ed by law to do so, when the defendant offers an explanation to rebut t he inference raised, y

ou should consider such explana tion, along with all the evidence, to determ ine not onl y the corr ectness of t he in ference but also t he reasonableness of the defendan t’ s explanati on. You are not bound to accept ei ther the i nference or t he defen dant’s explana ti on . The State must pr ove, beyond a reaso nable doubt, ever y element of t he offense befor e th e defendan t can be found guilty. These remark s are the extent of t he trialcourt’s instruct ions regardi ng the permissible infere nce arising from possession of recently stolen prop erty.

The Defen da nt argues that the instructions regard ing the inference are unconstit utional in that they impermissi bly shif t the burden of proof

from the State to him. T his arg ume nt has been repea tedly re jected by Te nnes see c ourts in
cases inv

olv inginstr uct ion s si mi l ar to the on es given in the pres ent case
. See Turner v. State , 541 S.W .2d 398 , 401-02 (Tenn . 1976); State v. Craig , 655 S.W.2d 186, 191 (T enn. C rim. App . 1983); Phipps v. State , 3 T enn. Cri m. App. 574, 581, 464 S.W.2d 341, 344-45 , (1970); State v. Jess ie F. H arris , C.C.A. No. 01C01-9509-CR-00303, Davidson County (Tenn. Cri m. App., Nashvil le, Jul y 26, 1996). We declin e to depa rt from the sound reasoning announced in these cases. T he De fendan t’s secon d issue is w ithout me rit.-15- In his third issue, the De fenda nt argu es tha t the trial c ourt er red in sentencing him in se veral resp ects. In parti cular, he contends that the trial court
er red by sen tencin g him outsid e the a pplica ble sta tutory ra nge fo r two of h is convictions, by enh ancin g his se ntenc es with in their r anges, by ordering several of his sentences to run conse cutively, and by failing to impo se an altern ativ e sentence. For the reasons set fort h below, we concl ude that the trialcourt err ed in senten cing the D efenda nt.

When an accused chall enges the lengt h, range, or t he manner of service of a sentence, t his court has a duty to

conduct a de novo review of the sentence with a presumption t hat the determ inations m ade by th e trial court a re correc t. Tenn. CodeAnn. § 40 -35 -40 1(d ). Thi s presum p tion is "condi tioned upon t he affirmative showing in t he record that the tri al court considered thesentencing principl es and all relevant fa cts and c ircums tances ." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, this cour t must consider : (a) the evidenc e, if a ny, received at the tri al and the sentencing heari ng; (b) t he presentence report; (c) the principl es of sente ncing an d argum ents as to sentencing alternat ives; (d) the nature and characteristi cs of the criminal conduct involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement thatthe defen dant m ade on his own b ehalf; and (g) the po te ntial or l ack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).-16- If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawfulsentence after having given due considerat ion and properweight to the factors and princi ples set out under the sentenci ng law, and thatthe trial court's findings of fact are adequately su pported by the recor d, then
we may no t modify th e sentence even i f we would have pr eferred a di fferent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The trial court c onducted a sentencing hearing on April28, 1995. The proofrelied upo n for senten cing wa s essen tially that set forth during the trial. The record does indicate thatin September of 1986 , the Defe ndant w as cha rged with alteri ng the vehicle identificati o n num ber (“V IN”) of a pickup truck a nd se lling it t o another individual. The Defendant was granted pretrial div ersion on those charges and succes sfully c ompleted his period of di version. In addit ion, the Defendant pleaded guilty in January of

1989 to two counts of concealing st olen property over the va lue of $20 0. The D efenda nt was s entenc ed as a Rang e I, standard off

ender to concurr

ent terms of six years impri sonment. After serving three months incarcer ation, t he Defen dant was placed on probat ion for t he remainderof his

six-year sentence. He wa s on pr obation at the time of the presentoffenses. According to his probat ion offi cer, the Defendant fully complied with the terms of his probation untilthe commission of the present offenses.

At t he conclusion of

the hearing, the tri al court f ound four enha ncemen t factors applicable: 1) That t he Defendant had a previous histor y of cri minal convicti ons or beh avior in a ddition to that n eces sary to estab lis h the ran ge; 2) thatthe offens es inv olved more than one vict im; 3) that the Defendant had a previoushistory of unwilli ngness to comply with the conditi ons of a sentence-17-

involv ing release i n the community; and, 4) that the Defendant was on probation from a prior felony convi ction at the time of

the commission o f the offenses. Tenn. C ode Ann . § 40-35-114 (1), (3), (8), (13)(C).

The Defendant sugge s ted as mi ti gat ingfac tor s th at h e su ff ere d fr

om a heart con ditio n, that he had served in t he military, that he had shown remorse
overthe inc id e nts, that he had made restit ution to h is customers, and that because of his deb ts and sole o wners hip of th e gara ge, inc arcera tion wo uld
cause financial ruin. The trialco urt f ound one mitigat ing factor applicable, that the Defen dant’s co nduct n ei ther caused nor threatene d serious bod ily injury. Tenn. Code Ann. § 4 0-35-11 3(1). The trialcourt found no substanti al merit t o the remain ing mitiga ting factors sugge sted by th e Defe ndant.

The trial court sentenced the Defendant as a Ran ge I, standard o ffender. Based on the appli cable enhancing and mitigati ng factors, the tri al judge set the sentences as follows: INDICTMENT, COUNT CONVICTED

OFFENSE OFFENSE

CLASS APPLICABLE

RANGE SENTENCE

IMPOSED CONCURRENT/

CONSECUTIVE #6736, count 2 theft >$1000 D felony 2-4 years 3 years consecutive #6736, count 3 failure to keep

required records C

misdemeanor up to 30 days 30 days concurrent #6736, count 4 possession of

engine with serial number removed C

misdemeanor up to 30 days 30 days concurrent
#6775, count 1 theft >$500 E felony 1-2 years 4 years consecutive #6775, count 2 theft >$500 E felony 1-2 years 2 years consecutive #6775, count 3 theft <$500 A misdemeanor up to 11 months,

29 days 2 years consecutive #6775, count 4 possession of

engine with serial number removed C

misdemeanor up to 30 days 30 days concurrent
#6775, count 5 possession of

engine with serial number removed C

misdemeanor up to 30 days 30 days concurrent3 In thi s appeal, the Defendant does not challenge the revocati on of his probation or the order that the six-year

term run consecutive to the sent ences for his pr

esent offenses. -18- In ordering t he four thef t sentences to run consecutively, the tri al j udge made
r eferences to his f indings t hat the Defendant’s servi ce as a “fence” for stol en autom obile parts allowed oth ers to re main in and profit from the busi ness of steali ng vehicles a nd that the Defen dant had failed to re spond to less severe sentences. The trial judg e did not, however , mention a par ticula r statutory factor in support of consecutive s entences. Given the consec utive nature of the theft sentences, the effec

tive sentence imposed for t hese offenseswas eleven years.

The Defendant requested t hat the tri al court i mpose some form of alternative sentence. T he trial court declined to do so, instead ordering straight confinem ent. In so doing, the tri al court made reference to t he Defendant’s prior convicti ons involving circ umsta ncessi mi lar to tho se in th e cas e at ba r and h is failur e at past reh abilit

ation eff orts, namely

his pri or service of

pretri al diversi on and probation.

The trial court also revo ked the Defendant’s pr obation for

his 1989 convicti ons for conceal ing stol en property and ordered him to s erv e the remainderof his six-year term for those o ffenses. Furtherm ore, the trial court ordered the sentences f or the present

offenses to run consecutive to the si x-year sentenc e becau se the pr esent o ffenses w ere com mitted w hile the D efenda nt wa s on probation . Tenn. Co de Ann. § 4 0-35-115(b )(6). 3

On appeal, the D efendant first conte nds that the trial court impr operly sentenced him outside the applicable statutory range for two of his convict ions,-19-

theft of propert

y valued bet

ween $500 and $1000 (indict ment number 6775, count one) an d theft of pro perty valued at $500or less ( indict ment number 6775, count three). We agree. It appears that the tri al court i nadvertent ly sentenced the Defendant accordi ng to the of fenses for which he was indi cted rather than the offenses for which he was conv icted.

In indict ment number 6775, theDefendant was charge d in coun t one with theft of prope rty valued b etween $1000 and $1 0,000. Tenn. Code Ann. § 39-14- 105(3). In count t hree of that same indictment, he was charged wit h theft of property valued b etween $500 a nd $10 00. Ten n. Code A nn. § 39-14-1 05(2). The trial t ranscript clearly indicates, however, t hat the jury found the Defendant guilty of lesser

grades of th eft for

those offenses. More speci fical ly, t he jury returned a verdict

of guilty

of theft of propert

y valued bet

ween $500 and $1000 forcount one an d guilty of the ft of propert y valued at

$500 or less for count thr ee. Tenn. Code A nn. § 39-14-1 05(1), (2). Thus, the Defendant was charged in count
one with a cl ass D felony but was convi cted ofa class E fel ony. Tenn. Code Ann. § 39-14-105(2), (3). Si milarly , the Defendant was charged in count t hree with a class E felony but

was convicted of a clas s A mi sdemeanor. Tenn. Code Ann. § 39-14-105(1), (2). The appl icable sentencing ranges for a class E fel ony and
a class A misdemeanor are on e to two year s and up to eleve n months and twenty-ni ne days, respect ively . Ten n . Code Ann. §§ 40-35- 112(a)(5), 40-35- 111(e)(1).

The trialcourt, how ever, sen tenced the Defe ndant to four year s on count
one and two years on count three. The judgments f or co unts one and thr ee indicate thatthe tri al court f ound the Defendant gui lty of and sentenced accordi ng4 The Defendant also cont ends that t he trial

court erredin apply

ing the enhancement f actor for offen ses wh ere the a mou nt of dam age to pr operty tak en from the victim was pa rticularly great. Tenn. Code A nn. § 40-35-114(6). From our review of the record, we do not believe that the trial court -20- to the indi cted o ffe nses rather t han the convic ted offenses . Furthermore, the orders enteri ng th e guilty ver dicts into t he minutes of the trialcourt also refl ect thatthe Defendant was f ound guilt

y as charged on counts one and three of indict ment number 67 75. W hat c aused thes e errors is unclea r. It is clear, however, that thes e sentences are ou tside the appli cable stat utory sentencing range.

We also note that t he judgment for count three of indict ment number 6736 is inconsistent with t he transcri pt of the s entencing hear ing. The judgment for thatcount (fai lure to kee p required r ecords) indi cates that the thir ty-day sentence is to be served consecut ively . The transcript of t he sentencing h earing, howe ver, clearly indicates that th e trialcourt stated that “Counts 4 and 5 ofCase N o. F6775, and C ounts No. 3 and 4 of F-67 36 run con current with one another an d concurrent

with any sentence i mpo sed b y This Cour t.” The caus e of this inconsistency is u nclear.

Given the errors and i nconsistenci es outli ned above, we concl ude thatwe must reverse and set

aside the Defenda nt’s sentences and remand this case f or resentencin g. We will briefl y address the Defendant’s remaini ng allegat ions of sentencing er rors to provide g uidanc e to the trial co urt upon reman d and to facil itate possibl e furt her appel late r eview.

T he Def endant contends t hat the trial court improperly

applied t he enhancement factor appl icable to offenses i nvolvi ng more than one v ict im. 4applied this factor . As we detai led above, the tri al court sp ecifical ly menti oned four factors. Secti on 40-35-114(6) was no t among those four fact ors. -21- Tenn. Code A nn. § 40-35-1 14(3). He argues that t his enhancement fact or is not applic able because he was convic ted of mult iple o ffen ses involvin g sepa rate vi cti ms for each off

ense. We agree that the re cord before u s does no t support the application of tha t enhancem ent factor.

The trialcourt made refer ence to the Defenda nt’s customers in whose vehicleshe had insta lled stolen p arts as victim s of the the fts in addition to th e originalowners of thestolen par ts. We do not beli eve that the custo mers q ualify
as theft victim s for the purpo se of th is enh ance men t factor. S imply p ut, there is
no proof that

the Defendant knowi ngly obtai ned or exerci sed control over any property of the customers with theintent to deprive them of that property. Thus, because the Defendant was s eparat ely convicted for of fenses against each vi cti m, the enhancement factor for offenses involv ing more than one vi ctim is not applicabl e. See State v. Williamson , 919 S.W .2d 69, 82 (T enn. Crim. A pp. 1995); State v. Clabo , 905 S.W .2d 197, 206 (Tenn. Crim . App. 1995 ).

The Defendantalso chall enges the trial court’s imposition of con secutive sentences for each of his theft conviction s. In reviewing this challen ge, we are hampered by the fact

that the t rial j udge did notspecify which stat utory prov ision supported his imposit ion of consecut ive sentence s. Upon rem and, if the trial judge again orders consecutive sentences, he sh ould make specifi c findi ngs of the statutor

y provis ion and facts supporti ng conse cutive sen tences
. See Tenn. R. Crim. P. 32 (c)(1).-22- We do note that in imposing consecutiv e sentences for the theft offenses, t he trial j udge made reference to his finding that the Defendant’s service as a “fence”for stol en automob ile parts allowed othe rs to remain i n and profit from the business of steal ing vehicl es . Presum ably the trial co urt was re ferring to fac ts supportingconse cutive sen tencing p ursuan t to Tennessee Code Annotated section 40- 3 5-115(b)(1) . That secti on provides t hat a court may or der
consecu tive sentences upon a fi nding that the “defendant is a p rofes sional criminal who has knowingly devoted su ch defenda nt’s lif e to criminal acts as a majorsource of livelihood.” From our review, however, we do not beli eve that the record b efor e us supports conse cutive sentencing pursuant to secti on 40-35- 115(b)(1)

. The State offered no proof at trialor at senten cing that the Defe ndan t’s criminal acts we re a “major so urce of livelihood.” The record indica tes tha t the D efend ant wa s a po pular m echa nic and worked on hundreds of vehicles

from the ti me he opened his garage i n January of 1992 t o the time of the offenses. As the Defendant points out, howe ver, mass media advertise ments to locate stolen parts instal led bythe Defendant yielded on ly four custo mers w ith stolen or defaced parts ou t of num erous ind ividuals ch ecked by the po lice. In addition, the record reveals that the D efendant is fifty-seven ye ars old and was gainfully employed prior to th e ope ning o f his garage. We do not believe these facts demonst rate th at the Defendant ’s cri minal acts wer e a major source of livel ihood. As a res ult, we co nclude that the record before us do es not supp ort consecutive sentencing f or the Defendant as a “professi onal criminal ” pursuant to section 40-35-1 15(b)(1)

. See State v. Linda Culver , C.C.A. No. 01C01- 9503- CC-000 57, Stewart C ounty (Ten n. Crim. App ., Nashville, Nov. 30, 19 95).-23- Finally, the Defendantchallenges the tri al court’s i mposition of a sentence of straight

confinement r

ather than some t

ype of alternative sentence. The record in dicates that the t rial court ordered straig ht confinem ent without extens ive comment on the Defendant’ s request for an alternative sentence. The tri al judge did make reference to the Defendant’ s prior conviction s involv ing circ umstances similar to those i n the case at bar an d h is failur

e at past rehabili tative eff orts, namely his pri or servi ce of pretrial di version and pr obation.

Of course, a defendant who “is an especially mitigated or standard offe nder convictedof a Clas s C, D, o r E felony is p resum ed to be a favorab le candid ate foralternat ive sent enc ing option s in the ab sence of eviden ce to the c ontrary.” Tenn. Code A nn. § 40-35-1 02(6 ). Our sentencing l aw also provi des that “convicted felons committ ing the most severe offenses, possessing cri minal histori es evincing a clear di sre gard for t he laws and morals of society, and evi n cing failure of pa st efforts at re habilitation, s hall be give n first priority regarding sentences involv ing incarceration. ” Tenn. Code A nn. § 40-35-1 02(5). Thus, a d efenda nt sentenced to ei ght years or less who is not

an offender f

or whom incarc eratio n is a priori ty is pr esumed eligibl e for alternative sentencing unless sufficient

evidence rebuts the presu m ption. Howeve r, the act does not providethat all offend ers who meet th e criteria are entitled to such relief; rather, it requires that sente ncing iss ues be determ ined by th e facts and circumstances presented in each case. See State v. Taylor , 74 4 S. W.2d 9 19, 922 (Ten n. C ri m. App. 19 87).
Additionally, the principles of sentencing reflect

that the sentence shou ld be no greater t han that deserv ed for the offense co mmitted and should be the-24-

least severe measure necessary to achieve the purposes for whi ch the sentence is imposed. Tenn. Code Ann. § 40- 35-103 (3) - (4 ). The court should also consider

the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in determining the sentence alternative. Tenn. C ode Ann . § 40-35-103 (5).

When imposing a sentence of total con fineme nt, our CriminalSentencing Reform Act ma ndates the trial cour t to base its deci sion on the consider ations set forth in Tennes see Cod e Annotated sect ion 40-35-103. These considerat ions which militate against alternat ive sentenci ng include: the need to protect so ciety by restrain ing a d efend ant ha ving a lo ng his to ry of cr iminal conduct , whether confinementis particu larly app ropria te to effe ctively deter o thers lik ely to co mm it
a similar offense, the need to avoid depreciati ng the seriousness of the off ense, and the need to or

de r confinement in cases in whi ch less rest rictive measures have often or

recen tly been unsuccessful ly appli ed to the defendant. Tenn. Code Ann. § 40-35-103 (1).

In the case sub ju dice, as the tri al court noted, the Defendant was c harged in 1986 w ith altering the VIN of a pickup truck a nd se lling it to ano ther ind ividual. The Defendant was grante d pretri al diver sion for those o ffenses. In January of 1989, he pleaded guil ty to t wo counts of conceal ing stol en p rope rty value d in
excess of $20 0 and was sentenced to concurrent terms of six y ears. After serving thr

ee mo nth s, h e was

pla ced on pr

obat ion for

therema ind er of hi s te rm. He was indicted on the present charg es in Janu ary an d May of 199 4. Give n this history of criminal cond uct and the failure o f less restrictive measures, we cannot conclude that thetr ial j udge abused his di scretion by orderi ng straight confinem ent. See Tenn. C ode Ann . § 40-35-103 (1)(A), -103(1)(C ).-25- We do po int out, h owev er, that u pon re man d the tria l ju d ge should consid er the Defendant’s el igibil ity for an alternat ive sentenceand the princip les set forth in Tenn essee Code Annota ted secti on 40-35 -103. In set ting the manner of service of the sentenc es , the trial j udge should make refer ence to the relevant statutory p rovisions a nd the sp ecific facts s upportin g his dec ision.

For the reas ons se t forth in the d iscussio n above , we con clude tha t th e Defe ndan t’s issues on appeal provi de no basis for the rever sal of his convict ions. We do , however, believe t hat the trial court erred in sentencing the Defendan t
. Acco rdin gly, we a ffirm the Defendant’s convicti ons but remand thi s case for resentencin g consistent with the principl es set fort h in thi s opinion.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE