FILED

February 24, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9611-CC-00465

)

Appellee, )

)

) WARREN COUNTY

VS. )

) HON. CHARLES D. HASTON

LEON WOODLEE, ) JUDGE

)

Appellant. ) (Theft)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF WARREN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

BERNARD K. SMITH JOHN KNOX WALKUP

P.O. Box 490 Attorney General and Reporter

McMinnville, TN 37110

LISA A. NAYLOR

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243 

WILLIAM M. LOCKE

District Attorney General

P.O. Box 410

McMinnville, TN 37110

OPINION FILED ________________________

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. §§ 39-14-103, 39-14-105(1) - (3), 55-5-108(a)(2), 55-5-111.

2

 The judgments contained in the record are inconsistent with the transcripts from 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 . We

will add ress these inco nsis tenc ies when we cons ider th e De fend ant’s third is sue on ap peal.

-2-

OPINION

The Defendant, Leon Woodlee, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure. He was convicted by a Warren

County jury of one count of theft of property valued between $1000 and $10,000,

two counts of theft of property valued between $500 and $1000, one count of

theft of property valued at $500 or less, one count of failing to keep required

records, and three counts of possessing an engine or transmission from which

the identification number had been removed or defaced.1

 The trial court

sentenced him as a Range I standard offender to three years imprisonment for

theft between $1000 and $10,000, two years for one count of theft between $500

and $1000, four years for the other count of theft between $500 and $1000, two

years for theft less than $500, and thirty days each for one count of failure to

keep required records and three counts of possessing an engine or transmission

from which the identification number had been removed or defaced. At the

sentencing hearing, the trial court ordered the theft sentences to run consecutive

to each other, with all rem aining counts to run concurrent with each other and

concurrent with the theft sentences.2 In addition, the sentences were ordered to

run consecutive to a six-year sentence for which the Defendant was on probation

at the time of the present offenses. 

In this appeal, the Defendant argues that the evidence is legally insufficient

to support the theft convictions, that the jury instruction regarding the inference
-3-

from possession of recently stolen property is unconstitutional, and that the

sentence imposed by the trial court constituted an abuse of discretion in several

respects. After reviewing the record, we conclude that the Defendant’s issues

provide no basis for the reversal of his convictions. We do, however, conclude

that the Defendant was erroneously sentenced. Accordingly, we affirm the

Defendant’s convictions but remand this case to the trial court for resentencing.

We begin with a sum mary of the pertinent facts, which are not in serious

dispute. The Defendant is an automobile mechanic and operates a garage in

Warren County, Tennessee. Officer Barry Powers of the McMinnville Police

Department was on a routine patrol during the early morning hours of Sunday,

November 14, 1993, when he noticed a black Chevrolet Monte Carlo parked on

the premises of the Defendant’s garage. Powers became suspicious because

the car did not have a visible license plate and a car fitting that description had

recently been reported stolen. Powers approached the vehicle on foot, shined

his flashlight through the windows, and noticed that the steering column of the car

had been tampered with in such a way as to raise his suspicions further. As a

result, Powers checked the vehicle identification number (“VIN”) with the National

Crime Information Center (“NCIC”) and discovered that Michael Viola had

reported the Monte Carlo stolen from Murfreesboro, Tennessee on October 27,

1993.

Other officers soon arrived on the scene, and the Defendant was called to

come to his garage. Once there, the Defendant was asked about the Monte

Carlo. The Defendant stated that the car appeared on his lot on Saturday

morning, the previous day. He assumed someone had dropped it off and opened
-4-

the car doors and trunk to see if the owner had left a note detailing what needed

to be done to the car. When he could not find a note, he closed and locked the

doors and trunk. No one came to the garage on Saturday to inform him about

what needed to be done to the car. At the conclusion of the work day, the

Defendant left the car as it was. He was not suspicious of these circumstances

because it was fairly common for individuals to leave their vehicles for repair

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 listed as a stolen vehicle, officers asked

the Defendant if there was anything else on the premises which had appeared

under mysterious circumstances. The Defendant pointed out a late-model

Chevrolet engine which was on the ground next to the garage. He stated that a

man had come by his garage a few days earlier in a truck that was smoking very

badly. He asked the Defendant to put in a new engine which he would supply.

The Defendant assumed that the engine sitting on the ground next to the garage

was an engine which the man in the smoking truck had dropped off. The

Defendant did not know the man in the truck nor could he remember his name.

On the ground near the engine was a transmission. According to Officer

John Morgan, the Defendant initially gave conflicting statements regarding the

origin of the transmission. The Defendant later stated that the man in the

smoking truck had expressed a desire to pay for the installation of the engine by

giving the Defendant a transmission. The Defendant assumed that this

transmission had been dropped off by the man in the truck. Officers were able

to determine from the engine and transmission serial numbers that the parts had
-5-

come from a 1989 Chevrolet Blazer which Charles Park reported stolen on

November 6, 1993.

Officers also discovered that the serial number from an engine in a truck

on the premises had been ground off. The Defendant identified the truck as

belonging to his son and stated that he had recently installed the engine. When

asked about the origin of the engine, the Defendant replied that he could not

remember because he had had the engine for more than a year. Officers asked

him if he had a receipt or other record with inform ation about the engine. The

Defendant replied that he did not have a receipt because he had had the engine

for so long and that he did not keep records of engine serial numbers or

information of that type.

Officers confiscated the stolen Monte Carlo, the stolen engine and

transmission, and the truck with the engine lacking a serial number. Law

enforcement officials later decided to run advertisements in the newspaper and

on radio stations asking anyone who had recently purchased an engine or

transmission from the Defendant to have the parts checked by police. In

response to these advertisements, numerous individuals brought vehicles to be

checked. Of those individuals, police found four whose vehicles contained parts

identified as having been stolen or whose serial numbers had been ground.

Those individuals, Jeremy Winfrey, Ronald Wilmore, Jeremy Campbell, and

Randy Wanamaker, had each purchased the parts in question from the

Defendant.
-6-

On January 14, 1994, the Warren County grand jury returned a four-count

indictment against the Defendant based on the November 14, 1993, search of the

Defendant’s garage and discovery of stolen or defaced parts. That indictment,

number 6736, is summarized in the following table:

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 jury returned a five-count indictment

against the Defendant based on the vehicles inspected as a result of the

newspaper and radio advertisem ents. That indictment, num ber 6775, is

summarized in the following 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 indictments were consolidated for trial. The

Defendant was tried from March 28 to March 30, 1995.

At trial, the Defendant did not dispute that the property alleged to have

been stolen was in fact stolen. In addition, he did not dispute that the parts

alleged to lack serial numbers did not in fact have serial numbers. In short, the

Defendant freely admitted that the stolen or defaced property was discovered on

his business prem ises and that he had installed stolen or defaced property in

some of his clients’ vehicles. His defense focused instead upon his mental state.

His chief contention at trial was that he did not knowingly possess stolen or

defaced property.

In support of that defense, the Defendant testified that although the black

Monte Carlo (indictment #6736, count 1) appeared at his garage without an

explanation, lacked a license plate, and contained a steering column which had

been tampered with, he did not know that it was stolen. He stated that it was

fairly common for individuals to leave vehicles for repair without his knowledge

and return later to explain what needed to be done to the vehicles. With regard

to the 1989 Chevy engine and transmission stolen from Charles Park (indictment

#6736, count 2), the Defendant testified that he believed that the parts were

dropped off at his garage by the man in the smoking truck, as he had told Officer

Morgan on November 14, 1993. The Defendant was unaware that they were

stolen. Moreover, the Defendant offered the testimony of Shirley Jones, who

stated that he had overheard part of a conversation between the Defendant and

a man in a smoking truck a few days before November 14, 1993. Jones testified
-8-

that the conversation concerned a transaction in which the Defendant was going

to install an engine in the smoking truck in exchange for a transmission.

With regard to the stolen engines and transmissions which the Defendant

installed in customers’ vehicles (indictment #6775, counts 1-3), he again claimed

that he was not aware that the parts were stolen. He testified that he purchased

engines and transmissions from individuals as well as from dealers and salvage

yards. The Defendant produced several receipts indicating that he had

purchased engines or transmissions from individuals, paying in cash. He

admitted, however, that he could not link those specific receipts to the stolen

parts installed in customers’ vehicles, apparently because he failed to note the

serial numbers of the parts involved on the receipts. Furthermore, the Defendant

stated that although he attempted to locate the individuals named on the receipts,

he was unsuccessful. The Defendant testified that he had never bought an

engine or transmission that he knew was stolen and that he had paid the

individuals named on the receipts a fair market value for the parts. In addition,

the Defendant pointed out that he had reimbursed or purchased new parts for the

customers in whose vehicles he had installed stolen or defaced engines or

transmissions.

With regard to the charges concerning engines or transmissions with

defaced serial numbers (indictment #6736, counts 3-4; indictment #6775, counts

4-5), the Defendant testified that he simply did not look at serial numbers in the

course of his business and that he was unaware that he was supposed to record

these numbers as part of his record-keeping. In addition, the Defendant stated

that other similar businesses in his area did not record serial numbers either.
-9-

Given that he did not look for serial num bers, the Defendant testified that he did

not knowingly possess engines or transmissions whose serial numbers had been

defaced or removed.

The Defendant also offered proof that he frequently worked on vehicles for

police officers. In so doing, he never attempted to prevent them from looking

around his garage while they waited for their vehicles to be serviced. It is

undisputed that the stolen or defaced property which is the subject of indictment

number 6736 was in plain view on the Defendant’s business premises.

After considering the proof presented at trial, the jury found the Defendant

not guilty on count one of indictment number 6736 (theft of the Monte Carlo). On

counts two, three and four of indictment number 6736, however, the jury found

him guilty as charged. W ith regard to indictment number 6775, the jury found him

guilty as charged on counts two, four and five. On count one, however, charging

the Defendant with theft of property valued between $1000 and $10,000, the jury

found him guilty of the lesser grade of theft of property valued between $500 and

$1000. Likewise, in count three, charging theft of property valued between $500

and $1000, the jury found him guilty of the lesser grade of theft of property valued

at $500 or less. The Defendant now appeals to this Court, challenging both his

convictions and his sentences.

In his first issue on appeal, the Defendant argues that the evidence was

legally insufficient to support his theft convictions. We note that the Defendant

does not challenge the sufficiency of the evidence for his convictions dealing with

engines or transmissions lacking serial numbers. The Defendant’s appellate
-10-

challenge to his theft convictions, like his proof at trial, focuses on his mental

state. He contends that he received the stolen property at issue under bona fide

circumstances, had no reason to believe that the property had been stolen, and

was in fact unaware that the property had been stolen. As a result, he argues

that he did not knowingly obtain or exercise control over the stolen property.

When an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.
-11-

A crime may be established by circumstantial evidence alone. State v.

Tharpe, 726 S.W .2d 896, 899-900 (Tenn. 1987). However, before an accused

may be convicted of a criminal offense based only upon circumstantial evidence,

the facts and circumstances “must be so strong and cogent as to exclude every

other reasonable hypothesis save the guilt of the defendant.” State v. Crawford,

225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt

must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference

save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 613. The

weight of the circumstantial evidence and whether every other hypothesis except

that of the guilt of the defendant has been excluded by the evidence presented

are matters for the jury to determine. State v. Tharpe, 726 S.W.2d 896 (Tenn.

1987); William s v. State, 520 S.W.2d 371 (Tenn. Crim. App. 1974).

The offense of theft of property is defined as follows: “A person comm its

theft of property if, with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s

effective consent.” Tenn. Code Ann. § 39-14-103. It is well-established in

Tennessee that the possession of recently stolen property gives rise to an

inference that the possessor has stolen it or had knowledge the property was

stolen and may, in light of surrounding circumstances, support a conviction for

theft. See State v. Land, 681 S.W.2d 589, 591 (Tenn. Crim. App. 1984) (citation

omitted); State v. Hamilton, 628 S.W.2d 742, 746 (Tenn. Crim. App. 1981)

(citations omitted). Moreover, “the inference arising from the proven fact of

possession of recently stolen property is not destroyed by contradictory evidence,

even the positive testimony of witnesses . . . .” Bush v. State, 541 S.W.2d 391,
-12-

395 (Tenn. 1976). The force of the inference does not vanish upon the offering

of an explanation by the defendant, but rather “remains to be weighed by the jury

against the evidence offered by defendant in explanation of his possession of the

recently stolen property.” Id.; see also, Land, 681 S.W.2d at 591. The jury was

instructed on elements of the offense of theft as well as the permissible inference

arising from the possession of recently stolen property.

In the case sub judice, the Defendant does not dispute that the items of

property which are the subject of the theft convictions were, in fact, recently

stolen and were in the possession of the Defendant. At trial, the Defendant

offered an explanation for his possession of the recently stolen property, namely

that he was unaware that the property had been stolen. Applying the reasoning

of Bush, Hamilton and Land to the present case, we believe it was the province

of the jury to weigh the evidence presented by the State, including the inference

arising from the Defendant’s possession of recently stolen property, against the

explanation offered by the Defendant. The jury did so in this case, rejected the

explanation offered by the Defendant, and found him guilty on four of five theft

charges. From our review of the record, we conclude that the evidence

presented, along with the inference which may properly be drawn from the

possession of the recently stolen property, is sufficient to support the Defendant’s

theft convictions beyond a reasonable doubt. The Defendant’s first issue is

therefore without merit.

In his second issue on appeal, the Defendant argues that the jury

instruction on the inference arising from possession of recently stolen property

is unconstitutional. He contends that the inference instruction, in effect, requires
-13-

him to explain his possession of recently stolen property, thereby shifting the

burden of proof from the State to him. Thus, he argues that the inference

instruction violates the principles set forth in Sandstrom v. Montana, 442 U.S.

510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In the case at bar, the trial court instructed the jury on the inference arising

from possession of recently stolen property. The instruction reads as follows:

Now, if you find beyond a reasonable doubt from the evidence that

the property in question has been recently stolen and that soon

thereafter the same property was discovered in the exclusive

possession of the defendant, his possession, unless satisfactorily

explained, is ordinarily a circumstance from which you may

reasonably draw an inference that the defendant had knowledge

that the property had been stolen. However, you are not required

to make this inference. It is for you, The Jury, to determine whether

the facts and circumstances shown by the evidence in this case

warrant any inference which the law permits you to draw from the

possession of recently stolen property. When evidence is offered

that the defendant was in possession of recently stolen property, the

defendant has the right to introduce evidence that he came into

possession of that property lawfully, or possession may be

satisfactorily explained through other circum stances or other

evidence independent of any evidence or testimony offered by the

defendant. In considering whether possession of recently stolen

property has been satisfactorily explained, you are rem inded that,

in the exercise of constitutional rights, the accused need not take

the witness stand and testify. The term “recently,” of course, is a

relative term, and it has no fixed meaning. Whether property may

be considered as recently stolen depends upon the nature of the

property and all the facts and circumstances shown by the evidence

in the case. The longer the period of time since the theft, the more

doubtful becomes the inference that may be drawn from an

unexplained possession. The correctness of the inference and the

weight to be given any explanation that may be drawn by the

evidence are matters that must be determined by you, The Jury, and

you are not bound to accept either. You must weigh all of the

evidence presented as to the defendant’s alleged possession of the

property in question and decide, in light of all the facts and

circumstances present, whether any inference is warranted. You

are reminded that the burden of proving the defendant’s guilt of the

offense beyond a reasonable doubt remains on the State.
-14-

This instruction conforms substantially to the one set forth in the Tennessee

Pattern Jury Instructions. See T.P.I. -- Crim. 42.20. Furthermore, after

instructing the jury on the differences between direct and circumstantial evidence,

the trial court charged the jury as follows:

I have charged you, ladies and gentlem en, concerning certain

inferences that you, The Jury, may make regarding certain evidence

in the case. However, The Jury is not required to make these

inferences. It is the exclusive province of The Jury to determine

whether the facts and circumstances shown by all the proof in the

case warrant the inference which the law permits you, The Jury, to

draw. The inference may be rebutted by direct or by circumstantial

evidence or both, whether it exists in the evidence of the State or is

offered by the defendant. Although the defendant is not required by

law to do so, when the defendant offers an explanation to rebut the

inference raised, you should consider such explanation, along with

all the evidence, to determine not only the correctness of the

inference but also the reasonableness of the defendant’s

explanation. You are not bound to accept either the inference or the

defendant’s explanation. The State must prove, beyond a

reasonable doubt, every element of the offense before the

defendant can be found guilty.

These remarks are the extent of the trial court’s instructions regarding the

permissible inference arising from possession of recently stolen property.

The Defendant argues that the instructions regarding the inference are

unconstitutional in that they impermissibly shift the burden of proof from the State

to him. This argument has been repeatedly rejected by Tennessee courts in

cases involving instructions similar to the ones given in the present case. See

Turner v. State, 541 S.W .2d 398, 401-02 (Tenn. 1976); State v. Craig, 655

S.W.2d 186, 191 (Tenn. Crim. App. 1983); Phipps v. State, 3 Tenn. Crim. App.

574, 581, 464 S.W.2d 341, 344-45, (1970); State v. Jessie F. Harris, C.C.A. No.

01C01-9509-CR-00303, Davidson County (Tenn. Crim. App., Nashville, July 26,

1996). We decline to depart from the sound reasoning announced in these

cases. The Defendant’s second issue is without merit.
-15-

In his third issue, the Defendant argues that the trial court erred in

sentencing him in several respects. In particular, he contends that the trial court

erred by sentencing him outside the applicable statutory range for two of his

convictions, by enhancing his sentences within their ranges, by ordering several

of his sentences to run consecutively, and by failing to impose an alternative

sentence. For the reasons set forth below, we conclude that the trial court erred

in sentencing the Defendant. 

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

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

involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
-16-

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The trial court conducted a sentencing hearing on April 28, 1995. The

proof relied upon for sentencing was essentially that set forth during the trial. The

record does indicate that in September of 1986, the Defendant was charged with

altering the vehicle identification number (“VIN”) of a pickup truck and selling it

to another individual. The Defendant was granted pretrial diversion on those

charges and successfully completed his period of diversion. In addition, the

Defendant pleaded guilty in January of 1989 to two counts of concealing stolen

property over the value of $200. The Defendant was sentenced as a Range I,

standard offender to concurrent terms of six years imprisonment. After serving

three months incarceration, the Defendant was placed on probation for the

remainder of his six-year sentence. He was on probation at the time of the

present offenses. According to his probation officer, the Defendant fully complied

with the terms of his probation until the commission of the present offenses.

At the conclusion of the hearing, the trial court found four enhancement

factors applicable: 1) That the Defendant had a previous history of criminal

convictions or behavior in addition to that necessary to establish the range; 2)

that the offenses involved more than one victim; 3) that the Defendant had a

previous history of unwillingness to comply with the conditions of a sentence
-17-

involving release in the community; and, 4) that the Defendant was on probation

from a prior felony conviction at the time of the commission of the offenses.

Tenn. Code Ann. § 40-35-114(1), (3), (8), (13)(C).

The Defendant suggested as mitigating factors that he suffered from a

heart condition, that he had served in the military, that he had shown remorse

over the incidents, that he had made restitution to his customers, and that

because of his debts and sole ownership of the garage, incarceration would

cause financial ruin. The trial court found one mitigating factor applicable, that

the Defendant’s conduct neither caused nor threatened serious bodily injury.

Tenn. Code Ann. § 40-35-113(1). The trial court found no substantial merit to the

remaining mitigating factors suggested by the Defendant.

The trial court sentenced the Defendant as a Range I, standard offender.

Based on the applicable enhancing and mitigating factors, the trial 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 concurrent
3

 In this appeal, the Defendant does not challenge the revocation of his probation or the order

that the six-year term run consecutive to the sentences for his present offenses.

-18-

In ordering the four theft sentences to run consecutively, the trial judge made

references to his findings that the Defendant’s service as a “fence” for stolen

autom obile parts allowed others to remain in and profit from the business of

stealing vehicles and that the Defendant had failed to respond to less severe

sentences. The trial judge did not, however, mention a particular statutory factor

in support of consecutive sentences. Given the consecutive nature of the theft

sentences, the effective sentence imposed for these offenses was eleven years.

The Defendant requested that the trial court impose some form of

alternative sentence. The trial court declined to do so, instead ordering straight

confinem ent. In so doing, the trial court made reference to the Defendant’s prior

convictions involving circumstances similar to those in the case at bar and his

failure at past rehabilitation efforts, namely his prior service of pretrial diversion

and probation.

The trial court also revoked the Defendant’s probation for his 1989

convictions for concealing stolen property and ordered him to serve the

remainder of his six-year term for those offenses. Furtherm ore, the trial court

ordered the sentences for the present offenses to run consecutive to the six-year

sentence because the present offenses were committed while the Defendant was

on probation. Tenn. Code Ann. § 40-35-115(b)(6).3

On appeal, the Defendant first contends that the trial court improperly

sentenced him outside the applicable statutory range for two of his convictions,
-19-

theft of property valued between $500 and $1000 (indictment number 6775,

count one) and theft of property valued at $500 or less (indictment number 6775,

count three). We agree. It appears that the trial court inadvertently sentenced

the Defendant according to the offenses for which he was indicted rather than the

offenses for which he was convicted.

In indictment number 6775, the Defendant was charged in count one with

theft of property valued between $1000 and $10,000. Tenn. Code Ann. § 39-14-

105(3). In count three of that same indictment, he was charged with theft of

property valued between $500 and $1000. Tenn. Code Ann. § 39-14-105(2).

The trial transcript clearly indicates, however, that the jury found the Defendant

guilty of lesser grades of theft for those offenses. More specifically, the jury

returned a verdict of guilty of theft of property valued between $500 and $1000

for count one and guilty of theft of property valued at $500 or less for count three.

Tenn. Code Ann. § 39-14-105(1), (2). Thus, the Defendant was charged in count

one with a class D felony but was convicted of a class E felony. Tenn. Code Ann.

§ 39-14-105(2), (3). Similarly, the Defendant was charged in count three with a

class E felony but was convicted of a class A misdemeanor. Tenn. Code Ann.

§ 39-14-105(1), (2). The applicable sentencing ranges for a class E felony and

a class A misdemeanor are one to two years and up to eleven months and

twenty-nine days, respectively. Tenn. Code Ann. §§ 40-35-112(a)(5), 40-35-

111(e)(1).

The trial court, however, sentenced the Defendant to four years on count

one and two years on count three. The judgments for counts one and three

indicate that the trial court found the Defendant guilty of and sentenced according
4

 The Defendant also contends that the trial court erred in applying the enhancement factor

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 indicted offenses rather than the convicted offenses. Furthermore, the

orders entering the guilty verdicts into the minutes of the trial court also reflect

that the Defendant was found guilty as charged on counts one and three of

indictment number 6775. What caused these errors is unclear. It is clear,

however, that these sentences are outside the applicable statutory sentencing

range.

We also note that the judgment for count three of indictment number 6736

is inconsistent with the transcript of the sentencing hearing. The judgment for

that count (failure to keep required records) indicates that the thirty-day sentence

is to be served consecutively. The transcript of the sentencing hearing, however,

clearly indicates that the trial court stated that “Counts 4 and 5 of Case N o. F6775, and Counts No. 3 and 4 of F-6736 run concurrent with one another and

concurrent with any sentence imposed by This Court.” The cause of this

inconsistency is unclear.

Given the errors and inconsistencies outlined above, we conclude that we

must reverse and set aside the Defendant’s sentences and remand this case for

resentencing. We will briefly address the Defendant’s remaining allegations of

sentencing errors to provide guidance to the trial court upon remand and to

facilitate possible further appellate review.

The Defendant contends that the trial court improperly applied the

enhancement factor applicable to offenses involving more than one victim.4
applied this factor. As we detailed above, the trial court specifically mentioned four factors. Section

40-35-114(6) was not among those four factors.

-21-

Tenn. Code Ann. § 40-35-114(3). He argues that this enhancement factor is not

applicable because he was convicted of multiple offenses involving separate

victims for each offense. We agree that the record before us does not support

the application of that enhancem ent factor.

The trial court made reference to the Defendant’s customers in whose

vehicles he had installed stolen parts as victims of the thefts in addition to the

original owners of the stolen parts. We do not believe that the customers qualify

as theft victim s for the purpose of this enhancement factor. Simply put, there is

no proof that the Defendant knowingly obtained or exercised control over any

property of the customers with the intent to deprive them of that property. Thus,

because the Defendant was separately convicted for offenses against each

victim, the enhancement factor for offenses involving more than one victim is not

applicable. See State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995);

State v. Clabo, 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995).

The Defendant also challenges the trial court’s imposition of consecutive

sentences for each of his theft convictions. In reviewing this challenge, we are

hampered by the fact that the trial judge did not specify which statutory provision

supported his imposition of consecutive sentences. Upon remand, if the trial

judge again orders consecutive sentences, he should make specific findings of

the statutory provision and facts supporting consecutive sentences. See Tenn.

R. Crim. P. 32(c)(1).
-22-

We do note that in imposing consecutive sentences for the theft offenses,

the trial judge made reference to his finding that the Defendant’s service as a

“fence” for stolen automobile parts allowed others to remain in and profit from the

business of stealing vehicles. Presum ably the trial court was referring to facts

supporting consecutive sentencing pursuant to Tennessee Code Annotated

section 40-35-115(b)(1). That section provides that a court may order

consecutive sentences upon a finding that the “defendant is a professional

criminal who has knowingly devoted such defendant’s life to criminal acts as a

major source of livelihood.” From our review, however, we do not believe that the

record before us supports consecutive sentencing pursuant to section 40-35-

115(b)(1). The State offered no proof at trial or at sentencing that the

Defendant’s criminal acts were a “major source of livelihood.” The record

indicates that the Defendant was a popular mechanic and worked on hundreds

of vehicles from the time he opened his garage in January of 1992 to the time of

the offenses. As the Defendant points out, however, mass media advertisements

to locate stolen parts installed by the Defendant yielded only four customers with

stolen or defaced parts out of numerous individuals checked by the police. In

addition, the record reveals that the Defendant is fifty-seven years old and was

gainfully employed prior to the opening of his garage. We do not believe these

facts demonstrate that the Defendant’s criminal acts were a major source of

livelihood. As a result, we conclude that the record before us does not support

consecutive sentencing for the Defendant as a “professional criminal” pursuant

to section 40-35-115(b)(1). See State v. Linda Culver, C.C.A. No. 01C01-9503-

CC-00057, Stewart County (Tenn. Crim. App., Nashville, Nov. 30, 1995).
-23-

Finally, the Defendant challenges the trial court’s imposition of a sentence

of straight confinement rather than some type of alternative sentence. The

record indicates that the trial court ordered straight confinement without extensive

comment on the Defendant’s request for an alternative sentence. The trial judge

did make reference to the Defendant’s prior convictions involving circumstances

similar to those in the case at bar and his failure at past rehabilitative efforts,

namely his prior service of pretrial diversion and probation.

Of course, a defendant who “is an especially mitigated or standard offender

convicted of a Class C, D, or E felony is presumed to be a favorable candidate

for alternative sentencing options in the absence of evidence to the contrary.”

Tenn. Code Ann. § 40-35-102(6). Our sentencing law also provides that

“convicted felons committing the most severe offenses, possessing criminal

histories evincing a clear disregard for the laws and morals of society, and

evincing failure of past efforts at rehabilitation, shall be given first priority

regarding sentences involving incarceration.” Tenn. Code Ann. § 40-35-102(5).

Thus, a defendant sentenced to eight years or less who is not an offender for

whom incarceration is a priority is presumed eligible for alternative sentencing

unless sufficient evidence rebuts the presumption. However, the act does not

provide that all offenders who meet the criteria are entitled to such relief; rather,

it requires that sentencing issues be determined by the facts and circumstances

presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.

App. 1987). 

Additionally, the principles of sentencing reflect that the sentence should

be no greater than that deserved for the offense committed and should be the
-24-

least severe measure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should also

consider the potential for rehabilitation or treatment of the defendant in

determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5).

When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations

which militate against alternative sentencing include: the need to protect society

by restraining a defendant having a long history of criminal conduct, whether

confinement is particularly appropriate to effectively deter others likely to commit

a similar offense, the need to avoid depreciating the seriousness of the offense,

and the need to order confinement in cases in which less restrictive measures

have often or recently been unsuccessfully applied to the defendant. Tenn. Code

Ann. § 40-35-103(1).

In the case sub judice, as the trial court noted, the Defendant was charged

in 1986 with altering the VIN of a pickup truck and selling it to another individual.

The Defendant was granted pretrial diversion for those offenses. In January of

1989, he pleaded guilty to two counts of concealing stolen property valued in

excess of $200 and was sentenced to concurrent terms of six years. After

serving three months, he was placed on probation for the remainder of his term.

He was indicted on the present charges in January and May of 1994. Given this

history of criminal conduct and the failure of less restrictive measures, we cannot

conclude that the trial judge abused his discretion by ordering straight

confinem ent. See Tenn. Code Ann. § 40-35-103(1)(A), -103(1)(C).
-25-

We do point out, however, that upon remand the trial judge should consider

the Defendant’s eligibility for an alternative sentence and the principles set forth

in Tennessee Code Annotated section 40-35-103. In setting the manner of

service of the sentences, the trial judge should make reference to the relevant

statutory provisions and the specific facts supporting his decision. 

For the reasons set forth in the discussion above, we conclude that the

Defendant’s issues on appeal provide no basis for the reversal of his convictions.

We do, however, believe that the trial court erred in sentencing the Defendant.

Accordingly, we affirm the Defendant’s convictions but remand this case for

resentencing consistent with the principles set forth in this opinion.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE