IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 18, 2003

STATE OF TENNESSEE v. ROBERT DENNIS HEISINGER

Direct Appeal from the Circuit Court for Montgomery County

No. 35738 John H. Peay, Special Judge

No. M2002-01217-CCA-R3-CD - Filed March 16, 2004

The appellant, Robert Dennis Heisinger, was convicted by a jury of one count of theft of property

valued at $10,000 or more but less than $60,000. He was sentenced as a Range II offender to an

eight-year sentence in the Tennessee Department ofCorrection. On appeal, he challenges the length

of his sentence and the failure of the trial court to grant him alternative sentencing. We affirm the

judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., joined and

ROBERT W. WEDEMEYER, J., not participating.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Robert Dennis Heisinger.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney

General; John Carney, District Attorney General; and C. Daniel Brollier, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual Background

In 1994, the appellant was charged with four counts of theft of property. The approximate

amount of property involved was $50,000. He was placed on pre-trial diversion, but in August of

1997, pled guilty to two counts in the indictment including one count of theft of property over

$1,000, a Class D felony, and one count of theft of property over $10,000, a Class D felony. The

appellant received a three-year sentence for the theft of property over $1,000 and a four-year

sentence on the theft of property over $10,000, to be served concurrently with the three-year
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sentence. In total, the appellant was ordered to pay over $30,000 in restitution. The appellant did

not serve his sentence in incarceration; he was released on probation pursuant to an October 31, 1997

order. 

In September of 1999, the appellant was indicted on two counts of theft of property valued

at $10,000 or more but less than $60,000. As a result of the pending indictment and the failure of

the appellant to pay court ordered restitution, a violation of probation report was filed against the

appellant on the 1994 charges. 

The 1999 charges stemmed from the appellant’s activity as a representative of Morningstar

Development. In February of 1999, Danny and Terri White contracted with the appellant, acting as

a representative of Morningstar Development, for the construction of a log home from a “log home

kit” in Clarksville, Tennessee. The Whites paid the appellant an initial installment of $22,500

toward a final price of $73,432, for the log home. The contract provided that the home would be

completed within 120 days. 

The appellant did not credit the $22,500 in Morningstar’s books as payment toward the price

of constructing the home. Further, the appellant did not inform Morningstar’s bookkeeper of the

signed contract with the Whites until almost three years after it was signed. The log home kit was

not delivered to the home site until October of 1999, approximately eight months after the contract

was entered into, but construction on the home never began. The appellant did not offer any

explanation or offer to return the initial installment of $22,500 to the Whites. 

The appellant was indicted in September of 1999 by a Montgomery County Grand Jury on

two counts of theft of property valued at $10,000 or more but less than $60,000. Following a jury

trial, the appellant was convicted on one count of theft. The trial court held a sentencing hearing,

during which it heard testimony from various witnesses. As a result, the trial court ordered the

appellant to serve an eight-year sentence in the Tennessee Department of Correction as a Range II

offender, consecutive to the four-year effective sentence on the 1994 charges. The trial court also

violated the appellant’s probation, ordered the appellant to pay restitution in the amount of $22,500

and imposed a $1,000 fine. The appellant appeals, challenging the length of the sentence and the

failure of the trial court to award an alternative sentence. 

Sentencing

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review

on the record of such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §

40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action

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 our review, we must consider the defendant’s potential for

rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
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principles, sentencing alternative arguments, the nature and character of the offense, the enhancing

and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);

Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of

demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

In balancing these concerns, a trial court should start at the presumptive sentence, enhance

the sentence within the range for existing enhancement factors, and then reduce the sentence within

the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight

for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it

comports with the sentencing principles and purposes of our code and as long as its findings are

supported by the record. Id.

Turning more specifically to the facts of this case, the appellant was convicted of theft of

property over $10,000 but less than $60,000. Because this is a Class C felony, and the appellant is

a Range II Offender, the range of punishment is six to ten years at 35%. See Tenn. Code Ann. § 40-

35-112. Furthermore, the presumptive sentence would be the minimum sentence in that range if

there are no enhancing and mitigating factors present. Tenn. Code Ann. § 40-35-210(c).

In imposing the appellant’s sentence, the trial court found the existence of several statutory

enhancement factors, including: (1) the appellant’s prior history of criminal conduct, Tenn. Code

Ann. § 40-35-114(2); (2) the existence of multiple victims, Tenn. Code Ann. § 40-35-114(4); (3) the

appellant’s previous unwillingness to comply with the conditions of a non-incarcerative sentence,

Tenn. Code Ann. § 40-35-114(9); and (4) the appellant’s commission of the present offense while

on probation, Tenn. Code Ann. § 40-35-114(14). 

On appeal, the appellant argues that the sentence given was “excessive under the facts and

circumstances of this case.” Specifically, the appellant challenges the trial court’s application of the

enhancement factors and failure of the trial court to apply any mitigating factors. Further, the

appellant argues that the trial court erred by failing to grant an alternative sentence. The State

counters that the evidence does not preponderate against the trial court’s determination of the

appellant’s sentence. 

Prior to imposing the sentence, the trial court stated:

I’ve considered the purposes and the sentencing considerations set out in the statute

concerning criminal histories and rehabilitation. The sentence . . . deserved under the

fact of the case and the sentence circumstances. I’ve also considered sentencing

considerations, whether or not confinement is necessary, the seriousness of the

offense, whether less restrictive measures have been tried in the past and failed or

were unsuccessful. I’ve considered the evidence I heard at trial, the evidence here

today, and I’ve read the pre-sentence report, which was made an exhibit. And, of

course, the arguments of Counsel. The nature and circumstances of the conduct, Of
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course, these people - - this one named victim lost over - - near $20,000 and it is

obviously a serious offense. 

The trial court started with the minimum sentence of six years and enhanced the sentence

based on the appellant’s prior history of criminal conduct, namely the two guilty pleas from the 1994

charges. See Tenn. Code Ann. § 40-35-114(2). The trial court noted that it gave little weight to this

factor, but that the record supported its application. The trial court next enhanced the appellant’s

sentence because there were multiple victims. See Tenn. Code Ann. § 40-35-114(4). Although the

appellant was only convicted on one count of the indictment, theft of property valued at more than

$10,000 but less than $60,000 from Terri White, the trial court found that the testimony and evidence

demonstrated that the contract for the construction of the home was with Danny and Terri White and

that the money stolen was the common property of both Danny and Terri White. Thirdly, the trial

court found that the appellant had previously demonstrated an unwillingness to comply with the

conditions of a non-incarcerative sentence because the record showed that the appellant was revoked

from pre-trial diversion for failing to adhere to the rules and regulations of his memorandum of

understanding. See Tenn. Code Ann. § 40-35-114(9). Finally, the trial court found that the appellant

committed the present offenses while on probation. See Tenn. Code Ann. § 40-35-114(14). Based

on the application of these four enhancement factors, the trial court enhanced the sentence from six

years to eight years. 

Turning to the mitigating factors, the appellant admits that he did not file a notice of

mitigating factors prior to sentencing, but argues that the trial court should have applied the

following mitigating factors to reduce hissentence: (1) the crime involved no threat of bodily harm,

Tenn. Code Ann. § 40-35-113(1); (2) the appellant acted under strong provocation, Tenn. Code Ann.

§ 40-35-113(2); (3) substantial grounds exist tending to excuse or justify the appellant’s criminal

conduct, though failing to establish a defense, Tenn. Code Ann. § 40-35-113(3); (4) the appellant

was motivated by a desire to provide necessities for his family or himself, Tenn. Code Ann. § 40-35-

113(7); and (5) the appellant’s age, familial relationships and friendships, Tenn. Code Ann. § 40-35-

113(13). He argues that this Court should reduce his sentence from eight years to six years due to

the trial court’s failure to apply these mitigating factors. Specifically, he argues, referring to

mitigating factors (2), (3), and (7), that his sentence merited reduction because of his “extreme

financial troubles” and that “strong provocation” motivated him to commit the offense. In support

of that claim, the appellant cites to testimony at trial wherein it was shown that a company partially

owned by the appellant had a low balance in its bank account. Further, the appellant argues that his

27-year marriage, strong family ties, and good work ethic should mitigate his sentence under the

catch-all factor. See Tenn. Code Ann. § 40-35-113(13). 

We disagree. The evidence at trial showed no motive for the commission of the present

offenses other than personal benefit. The nature and duration of the offense, entering into a longterm contract with home buyers, does not suggest “strong provocation” to commit a crime. There

was no evidence that the appellant’s family was in dire straits. Further, the appellant’s past criminal

record demonstrated that his marriage and family ties had not deterred him from criminal activity

in the years leading up to the conviction. 
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While the trial court did not specifically address any of the mitigating factors raised by the

appellant on appeal, the court noted its responsibility to lower a sentence based upon the application

of any mitigating factors which existed. Consequently, it appears that the trial court considered

mitigating factors, but chose to give them little, if any, weight. Again, the weight given to each

factor is left to the discretion of the trial court as long as it comports with the sentencing principles

and purposes of our code and as long as its findings are supported by the record. Santiago, 914

S.W.2d at 125. 

After reviewing the application of the preceding enhancement and mitigating factors, we

conclude that the evidence does not preponderate against the trial court’s decision to impose an

eight-year sentence on the appellant’s theft of property conviction. Accordingly, we affirm the

sentence imposed by the trial court. 

Alternative Sentencing

A defendant “who is an especially mitigated offender or standard offender convicted of a

Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the

absence of evidence to the contrary.” (Emphasis supplied) Tenn. Code Ann. § 40-35-102(6). 

Although the State in its brief concedes that the appellant is presumptively entitled to alternative

sentencing because he has been convicted of a Class C felony, the State apparently overlooks the fact

that the appellant’s status as a Range II offender deprives him of that presumption. 

Although not entitled to the presumption in favor of alternative sentencing, the appellant is

nevertheless eligible for such. In choosing among possible sentencing alternatives, the trial court

should also consider Tennessee Code Annotated section 40-35-103(5), which states, in pertinent part,

“The potential or lack of potential for the rehabilitation or treatment of a defendant should be

considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-

103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). The trial court may

consider a defendant’s untruthfulness and lack of candor as they relate to the potential for

rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999); see also State

v.Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim.

App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d

at 305-06. 

In the case herein, the appellant claims that the trial court erred in denying him any form of

alternative sentence because the trial court “did not specifically cite Tenn. Code Ann. Sec. 40-36-101

et seq. to explain why . . . [the appellant] could not be placed on Community Corrections.” The State

argues that “a review of the record and applicable authority . . . demonstrates that the evidence does

not preponderate against the trial court’s determination.” 

The trial court, in making its sentencing determination, stated that it considered “whether or

not confinement is necessary” as well as “whether less restrictive measures have been tried in the

past and failed or were unsuccessful.” The trial court also found that 
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[t]he Defendant does have a history of unwillingness to comply with the

conditions of a sentence with release in the community. And this felony was

committed while he was on probation for the two prior convictions on which he had -

- was on probation for the prior convictions. He, of course, had been released

previous to that on pretrial diversion, and that was terminated. 

. . . . 

Now, if I could [wave] a wand for probation I’d be happy to do it. But I don’t

think that’s - - I really don’t think that’s a possibility in this case. And I’ve

considered the sentencing principles for release in the community. And I think in this

particular case its been tried; it did not work. I think the other people that might be

in the same situation as these victims might fall victim to this Defendant in the

future. So, I don’t believe that I can in good [conscience] grant him any type of

release in the community. I just think that’s - - it’s too late for that. 

The record does not preponderate against the trial court’s findings. Further, the appellant has

failed to carry the burden of demonstrating his suitability for probation. It was uncontested that he

committed the present offense while on probation for two similar, if not identical offenses involving

different victims. The trial court properly denied alternative sentencing when it was shown that the

appellant failed at rehabilitation with less restrictive methods and when confinement was shown to

be necessary to avoid depreciating the seriousness of the offense. See Tenn. Code Ann. § 40-35-

103(1). Accordingly, we affirm the trial court’s denial of an alternative sentence. 

Conclusion 

After a thorough review of the record, we conclude that there was no reversible error, and,

therefore affirm the judgment of the trial court. 

___________________________________ 

JERRY L. SMITH, JUDGE