IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 28, 2018

STATE OF TENNESSEE v. STEVEN SWINFORD

Appeal from the Criminal Court for McMinn County

No. 16-CR-262 Andrew M. Freiberg, Judge

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No. E2017-01164-CCA-R3-CD

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The defendant, Steven Swinford, pled guilty to vandalism of property in the amount of 

$1,000 or more but less than $10,000 (Count 1), vandalism of property in the amount of 

$10,000 to $60,000 (Count 2), burglary (Count 3), and vandalism of property in the 

amount of $60,000 to $250,000 (Count 4), for which he received an effective twelve-year 

sentence. The defendant now appeals the twelve-year sentence imposed by the trial court

for his conviction in Count 4, arguing it to be excessive. Separately, the State challenges

the trial court’s application of the criminal saving’s statute of Tennessee Code Annotated 

section 39-11-112 to the defendant’s vandalism conviction of Count 1 through the

amended version of the theft statute of Tennessee Code Annotated section 39-14-105. 

Following our review, we affirm the trial court’s application of the criminal saving’s 

statute to Count 1 and the trial court’s sentencing in Count 4, but remand the case to the 

trial court for a hearing on the matter of sentencing as to Counts 1, 2, and 3. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in 

Part and Reversed in Part; Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS

and ROBERT L. HOLLOWAY, JR., JJ., joined.

Judith Hamilton, Athens, Tennessee, for the appellant, Steven William Swinford.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant 

Attorney General; Stephen D. Crump, District Attorney General; and Emily Petro, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

04/17/2018
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FACTS

Over the course of two days in February 2016, the sixteen-year-old defendant 

vandalized numerous vehicles across McMinn County, Tennessee. The defendant was

transferred to criminal court where he entered open guilty pleas for his crimes and agreed 

to be sentenced subsequently by the trial court. Specifically, on December 5, 2016, the 

defendant pled guilty to three counts of vandalism and one count of burglary. Tenn. 

Code Ann. § 39-14-402, -408. At the guilty plea hearing, the State read the following 

facts surrounding the defendant’s criminal activity into the record:

Your Honor, beginning with Count One of the indictment: On 

February 20th of 2016, officers with the Etowah Police Department 

responded to a vandalism call on Willard Memorial Highway. When they 

arrived, officers came into contact with a Rovanda Davis who stated that 

someone had broken the windows out of her van. She was an employee at 

the Aztec in Etowah and stated that young white males approximately 16 

years of age had come into her store. One of them had tried to buy a can of 

tobacco. And when they didn’t have -- neither could produce and (sic) ID, 

she sent them away. And she further stated that she was closing the store 

that night, and after she had closed the store, she heard a loud noise outside, 

like someone was beating on the walls of the store. She went outside and 

found the passenger side window of her car and the sliding back window of 

her car had been broken out, apparently with a brick that was nearby. And 

that there was a large dent under the window in [the] sliding glass door of 

her car as well, that all of the windows on the van that were remaining had 

been scratched with what appeared to be a piece of brick. And while she 

didn’t see the actual vandalism take place, shortly before that had 

happened, she had seen two juvenile males that appeared to be the same 

two from the store that were in the vicinity of where her car was at the 

Aztec. 

. . .

The out-of-pocket damage -- the damage was several thousand 

dollars. The out-of-pocket damage that [Ms. Davis] had to pay was $1,000.

. . .
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Count Two, Your Honor: On February 21st of 2016, deputies with 

the McMinn County Sheriff’s Office responded to a call regarding a 

vandalism to a tractor belonging to the Etowah Utilities Board that was 

parked about a quarter mile past the Wesleyan Church on County Road 607 

coming from Highway 30 in McMinn County. The caller, Marty Aderhold, 

an employee of the Utilities Board, stated that there were glass and lights 

busted out of the tractor and it appeared to be, by vision, almost entirely 

destroyed. It was taken for an estimate of the repairs to the Ritchie Tractor 

Company, showing a total of $21,427 in damage to the tractor. 

. . .

The total amount that [Etowah Utilities Board] paid out of pocket 

was $1200.

. . .

Okay. And then Count Three and Count Four arise out of the same 

incident where on the 21st day of February of 2016 detectives with the 

McMinn County Sheriff’s Office received a phone call from Scott Cass, 

who’s the owner at East Tennessee Auto Outlet, regarding damage to 

several vehicles on his car lot. And he asked if deputies could be en route. 

When the detective arrived, he observed numerous vehicles on the 

car lot that had [been] vandalized and also a building on the lot that had 

been broken into, which had several antique vehicles that were inside that 

had also been, essentially, completely destroyed. There was video 

surveillance at the property that Mr. Cass supplied to the detectives where 

upon reviewing the surveillance from the night prior, you can see two 

white, apparently, juveniles that are walking around the car lot, essentially, 

busting out windows, kicking vehicles, taking tires and rolling them down 

across the parking lot, and using some sort of an object to strike the 

windows of vehicles, and the sides of vehicles as well. 

This surveillance footage was put up on Facebook and used through 

multiple law enforcement channels. Later identified where (sic) [the 

defendant] and [co-defendant] as the two individuals in the video. 

Detective Witt reached out to the guardians for [the defendant] and [codefendant]. And [the defendant] was interviewed with his guardian present 
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at the McMinn County Sheriff’s Office, advised of his Miranda Rights, and 

agreed to speak further. 

At that time, [the defendant] did admit to his participation in the 

vandalism at the East Tennessee Auto Outlet. Knocking out windows, 

knocking off mirrors, dumping motor oil on the cars, using a pole with [his

co-defendant] to destroy cars, and that it is the East Tennessee Auto Outlet 

on Highway 30, that it was done. [The defendant] and [co-defendant] were 

pretty much just bored. But they had also gone into the shop on the car lot, 

found older cars in the building, and messed up on them. And he identified 

himself on surveillance video. 

[The defendant] was asked also about the Etowah tractor also 

identified as an incident that happened on the 20th of February, but it was 

not at the same time as the car lot and that he and [his co-defendant] had 

busted out windows, and essentially tore up the tractor that was on County 

Road 607. [The defendant] recalled that it was a green tractor, which is 

consistent with the tractor that was called in by Mr[.] Aderhold with the 

Utilities Board. 

And then finally [the defendant] was asked about Ms. Davis’s 

vehicle that was identified as an incident that occurred on the 19th where 

[the defendant] and [his co-defendant] had gone to the gas station in 

Etowah. That they busted a van window out, and that one of the two 

individuals -- I don’t believe [the defendant] identified it as himself. But 

that one of the two individuals were (sic) trying to get dip and it didn’t 

work, so they got mad and busted the van windows. And this all did occur 

in McMinn County, Tennessee. 

The estimated damage to Mr. Cass’s car lot is kind of -- it’s kind of a 

fluid situation because he continues to have vehicles that are brought in 

with what he believes to be damage that occurred in this original incident, it 

just wasn’t discovered at the time. But that the estimated damage at the 

time of the transfer hearing was approaching $250,000. It was originally 

charged as an A felony, but because of that language, approaching 

$250,000, it was bound over as a B felony, 60 to 250. 

The defendant admitted guilt to the crimes as described by the State, and the trial 

court entered convictions for vandalism (Counts 1, 2, 4) and burglary (Count 3) against 

the defendant. 
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The defendant’s three victims testified at the subsequent sentencing hearing on 

May 12, 2017. Scott Cass, the owner of East Tennessee Auto Outlet, stated he had to put 

his business “on hold” after the defendant burglarized and vandalized his property. Mr. 

Cass closed his business for “a week or so,” noting “[i]t was at least a week” before 

people could safely walk on the property due to the amount of glass left in the 

defendant’s wake. Regarding the amount of damages Mr. Cass suffered, he explained, 

“right now it stands at somewhere around at $230,000 range. . . . But like I said earlier, 

we’ve still got stuff that’s not completed at this point.” Mr. Cass explained the “fluid” 

nature of his damages further, stating some of the damage is not identified until a 

customer “drives a car and then has it three or four days and then you’ve got the problem 

that you never had before.” Mr. Cass’s insurance policy covered approximately 

$148,000 worth of damage. A copy of the insurance check was entered into evidence. 

Mr. Cass then explained the damage the defendant caused after burglarizing the 

building on his property. Specifically, the building housed his collection of ten antique 

cars. The defendant damaged the “[c]hrome, paint, [and] windows” of the antique cars, 

destroying the “originality” of the vehicles. Mr. Cass described his property as “a war 

zone” after the defendant’s crimes. A surveillance video documenting the defendant’s 

criminal activity on Mr. Cass’s property was entered into evidence.

On cross-examination, Mr. Cass testified that in addition to the $230,000 in losses 

already described, he also paid his employees $22,000 for loss of work while the business 

was closed for cleaning. In response to questions from the trial court, Mr. Cass stated 71 

cars were damaged on his lot of 150 cars, and he believed his total damages to be 

approximately $250,000.

Ravonda Davis then detailed the damage the defendant caused to her van after she 

refused to sell him and his co-defendant tobacco. She stated her van “had a dent in the 

sliding door that opened. The glass -- the glass in the passenger door was broke (sic). 

And the glass in the sliding door was broke (sic). And it had scratches around it on the 

windows and had a bad word on the windows.” The damages totaled approximately 

$2,000. Ms. Davis explained she “got scared and terrified” as a result of the defendant’s 

actions, and she no longer wants to work on Friday nights. Photographs of the damaged 

van were entered into evidence.

Marty Aderhold, a security officer for the Etowah Utility Board, then testified. He 

explained the defendant and his co-defendant damaged a tractor owned by the utility 

board. Specifically, the defendant and his co-defendant “took something and poked holes 

in the radiator. [They] [b]usted all the glass out of the cab, instrument panels, two-way 
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radios. They cut some hydraulic lines. [They] [t]ook something and beat the hood and 

the headlights and the taillights, everything they could get to they busted, glass wise.” 

Etowah Utility Board paid a $1,000 deductible to repair the damage caused by the 

defendant, and portions of its operations were “down for a month.” Photographs of the 

damaged tractor were entered into evidence. 

Sherry Gaston interviewed the defendant and prepared a pre-sentence report in this 

case, which was entered into evidence. Upon interviewing the defendant and making a 

risk needs assessment, Ms. Gaston found he “scored out for high for violence” in relation 

to his likelihood of re-offending and stated the defendant “was very influenced . . . by 

other people.” Ms. Gaston noted the defendant did not have a prior criminal record.

The parties then stipulated to the entry of the defendant’s recorded interview into 

evidence, and the defendant proceeded with his proof. Audrianna Tilley testified that her 

family provided “the last foster home that [the defendant] resided in” before his arrest. 

Ms. Tilley explained the defendant “was very quiet” at first, but became “very close to 

[her] family.” However, when the co-defendant also entered the Tilley home, “it kind of 

just unraveled from there,” and she noticed a change in the defendant’s behavior “after 

the first night.” Ms. Tilley offered to provide support to the defendant if granted some 

form of alternative sentencing.

Ricky Wilson, the defendant’s Sunday school teacher and the Director of the 

Department of Juvenile Services for McMinn County, stated he did not believe the 

defendant’s criminal activity was “normal behavior for him.” He opined that with “a 

high level” of supervision and a “refrain from other sources of influence,” the defendant 

would be able to comply with probation requirements. Chase Bennett, the defendant’s 

custodial caseworker for the Tennessee Department of Children’s Service, stated the

defendant has had several foster home placements and “run away charges” throughout his 

four years in DCS custody. Since being in DCS custody, the defendant’s longest 

placement was with the Tilley family. 

Upon its consideration of the evidence, the trial court sentenced the defendant to 

twelve years’ incarceration, and the defendant timely appealed.1

ANALYSIS

I. Excessive Sentence.

 

1 The defendant received jail credit from February 21, 2016 through May 12, 2017. 
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On appeal, the defendant argues the trial court improperly enhanced his sentence 

for the Class B felony conviction for vandalism of property in the amount of $60,000 and 

$250,000 in damages to the maximum of twelve years. The defendant contends the trial 

court failed to properly consider the applicable enhancing and mitigating factors, and 

requests “some term” of split confinement. The State asserts the trial court properly 

considered the applicable enhancing and mitigating factors before sentencing the 

defendant to twelve years’ incarceration. Upon our review, we affirm the twelve-year 

sentence of Count 4 to be served in confinement. 

It is well settled that this Court reviews within-range sentences and alternative 

sentences imposed by the trial court under an abuse of discretion standard with a 

presumption of reasonableness. State v. Bise, 380 S.W. 3d 682, 707 (Tenn. 2012); State 

v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Once the trial court has determined the 

appropriate sentencing range, it “is free to select any sentence within the applicable 

range.” State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008) (citing Tenn. Code Ann. § 

40-35-210 (d)). When determining a defendant’s sentence and the appropriate 

combination of sentencing alternatives, trial courts are to consider the following factors:

(1) The evidence, if any, received at the trial and the sentencing 

hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing 

alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the 

mitigating and enhancement factors set out in §§ 40-35-113 and 

40-35-114;

(6) Any statistical information provided by the administrative office 

of the courts as to sentencing practices for similar offenses in 

Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s 

own behalf about sentencing.

Tenn. Code Ann. § 40-35-210 (b). The trial court must state on the record the statutory 

factors it considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-

210 (e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons 

for imposing a particular sentence, however, should not negate the presumption [of 

reasonableness].” Bise, 380 S.W.3d at 705-06. A trial court’s sentence “should be 

upheld so long as it is within the appropriate range and the record demonstrates that the 
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sentence is otherwise in compliance with the purposes and principles listed by statute.”

Id. at 709-10.

The 2005 revised sentencing statutes advise that a defendant is no longer 

presumed to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 

347 (citing Tenn. Code Ann. § 40-35-102 (6)). Instead, the “advisory” sentencing 

guidelines provide that a defendant “who is an especially mitigated or standard offender 

convicted of a Class C, D or E felony, should be considered as a favorable candidate for 

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

Ann. § 40-35-102 (6). However, no criminal defendant is automatically entitled to 

probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather, 

the defendant bears the burden of proving his or her suitability for alternative sentencing 

options. Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-303 (b)). The 

defendant must show that the alternative sentencing option imposed “will subserve the 

ends of justice and the best interests of both the public and the defendant.” Hooper v. 

State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. Hooper, 29 

S.W.3d 1, 9-10 (Tenn. 2000).

Before imposing a sentence of full confinement, the trial court should consider 

whether:

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103 (1)(A)-(C). In addition, the sentence imposed should be 

(1) “no greater than that deserved for the offense committed,” and (2) “the least severe 

measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. 

Code Ann. § 40-35-103 (2), -103 (4). Furthermore, “[t]he potential or lack of potential 

for the rehabilitation or treatment of the defendant should be considered in determining 

the sentence alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-

103 (5). The party appealing a sentence bears the burden of establishing that the sentence 

was improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts. 

Here, the defendant argues the twelve-year sentence imposed by the trial court for 

his conviction in Count 4 was excessive. We, however, disagree. At the sentencing 
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hearing, the trial court considered the presentence report, the purposes and principles of 

sentencing, the evidence presented at the sentencing hearing, the nature and 

characteristics of the charged offenses, statistical information, and the applicable 

enhancing and mitigating factors. See Tenn. Code Ann. § 40-35-210 (b), (e); Bise, 380 

S.W.3d at 705-06. The trial court then addressed on the record the statutory factors it 

considered, stating: 

The pre-sentence investigative report was received and considered. 

The two things of note, the fact that there is no known record of other 

criminality, but you did a doozy on this one. That doesn’t usurp or mitigate 

the fact of what was done in this case. The other thing that was extremely 

significant to this [c]ourt, as of January 1[,] I am to consider the results of a 

risks and needs assessment. . . . And you are high risk. The highest there 

is. But most importantly, you’re at a high risk for violence. And this 

[c]ourt thinks that that is striking and remarkable and weighs it significantly 

against you. 

I’ve already gone through the nature and characteristics of this level 

of criminality, which again spans multiple days. Shows a sustained intent 

to violate the law and increases. Really this micro-aggression of not getting 

tobacco, that vandalism, just find the tractor do it, find an entire business 

and just lay ruin to it, it just enhanced and it escalated before you could be 

caught. The idea that this individual is amenable to correction is -- is folly 

in this [c]ourt’s opinion. 

Statistical information provided by the [c]ourt. I took note of that. 

As it relates -- this is a Class B felony, and you’re not presumed eligible for 

probation with a B felony. There’s no presumption that rests in your favor 

on an eight to twelve year range. And the only statement the defendant has 

made about this case is some curt words with a flat affect at time of plea 

and his audio recording, which was admitted, which, again, this [c]ourt 

finds expression of no remorse of any kind. 

. . .

As it relates to mitigating status, this [c]ourt would have to find 

mitigation and no enhancements. And if I were to find that, the [c]ourt in 

its discretion pursuant to 40-35-109, he doesn’t have a prior record, 

certainly no -- but there is enhancements in this case. So therefore related 

to lower release eligibility of lower service of sentence do not apply 
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because there is enhancement. I’m going to specifically find 40-35-114 

that the damage inflicted to property and sustained by these individuals was 

particularly great. 

. . .

The grand jury decided to indict this as a Class B felony. I’ll just tell 

you: I think this is a Class A. I think this was over $250,000. And this 

[c]ourt’s decision of incarceration is impacted by what this [c]ourt feels like 

by a shade few dollars our law would demand 15 to 25 years mandatory 

prison. There would be no discussion of mitigation or corrections or 

anything else. And I believe the testimony was $250,000 or more. And the 

legislative embodiments that guide this [c]ourt would mean that had it been 

indicted differently or been indicted by what I accredit the proof, this would 

be a minimum of 15 years prison. No other questions asked. So prison 

would be mandated by the level of criminality in this case. You have him 

talk about that the 220 to $230,000 in restitution is the is the amount that he 

could to date verify. But if you look at value as it’s listed in our definitions 

section, 39-11-106 subpart 36, value’s much greater than that. Number 

one, his entire business closed for a week. No level related to that. 

Also, the victim’s not been made whole. Not everything is repaired 

to date. Classic -- he has been trying, the testimony, reasonable efforts to 

obtain replacement costs in the case since February of 2016, which is over 

15 months. And he’s not been able to do so. No accounting of how the fair 

market value in this case has been diminished by the fact that all of these 

vehicles were laid to waste, 70 of the 150 on the lot. There’s been no 

accounting in the restitution about how the market value for his classic 

vehicles. As it stands now, he can’t even repair them. So that would be 

literally almost a total loss from vehicles that he testified have near 

priceless totals. Paying people to not do their jobs, but paying them 

commission just to be a good man and a good citizen and a good boss. 

That was $22,000. He testified, not just in this hearing, but recounted how 

he testified under oath at the bench trial, and he said I feel comfortable that 

my loss is at least $250,000. He described numerous times how that was 

conservative. So once again, I’m going to accredit that testimony and find 

this should have been an A felony, which means it should have been 

nothing but prison to be considered to begin with. 
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But since we are here at a B felony, I’m going to find that that 

enhancement factor weighs much more considerably against you than any 

mitigation. I am going to find mitigation that this criminal neither caused 

nor threatened serious bodily injury. And I’m also going to find a catch-all 

mitigation, which is your age and lack of literal insight into the way the 

world works and society functions as mitigation. But that is substantially 

and severely outweighed by the infliction of damage in this case, which is 

particularly great.

. . .

But this [c]ourt finds the circumstances of these offenses to be so 

serious, so grave with such a lack of remorse, such apocalyptic, that as it 

relates to eight to twelve, this [c]ourt feels that justice is to impose the 

maximum afforded by law, which is a twelve-year sentence. As I do 

impose over ten years, you’re not eligible for probation. Ten years or less 

pursuant to 40-35-303. 

Upon our review of the record, we agree with the trial court’s assessment of the 

enhancing and mitigating factors applied to the defendant’s vandalism conviction of 

Count 4. In reaching the twelve-year sentence, the trial court considered the defendant’s 

youth and noted his crimes “neither caused nor threatened serious bodily injury.” Tenn. 

Code Ann. § 40-35-113 (1), (6). However, the trial court found the defendant’s “level of 

criminality shocks the conscience,” and determined the level of damage the defendant 

imposed upon Mr. Cass was “particularly great.” Tenn. Code Ann. § 40-35-114 (6). 

Further, the trial court held the defendant was not amenable to correction, noting the 

defendant demonstrated “no remorse of any kind” and posed “a high risk for violence.” 

After considering the above factors, the record shows the trial court weighed the 

defendant’s lack of criminal history against his level of criminality against Mr. Cass, and 

found the enhancing factors “severely outweighed” the applicable mitigating factors. 

Accordingly, it is clear the trial court properly addressed the statutory factors it 

considered and the reasons for the ordered sentence before imposing a sentence of twelve

years in confinement for the defendant’s vandalism conviction of Count 4. Tenn. Code 

Ann. §§ 40-35-114 (6); -303 (a). The defendant is not entitled to relief as to this issue. 

II. Failure to Pronounce Sentences in Counts 1, 2, and 3.

Additionally, our review of the record reveals the trial court failed to separately 

sentence the defendant for his convictions in Counts 1, 2, and 3. As evidenced by the 

judgment forms, the defendant received an effective sentence of twelve years’ 
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incarceration. Specifically, the judgment forms indicate the trial court imposed a twoyear sentence in Count 1, a six-year sentence in Count 2, a four-year sentence in Count 3, 

and a twelve-year sentence in Count 4, all run concurrently to each other. Though the 

judgment forms reflect the individual sentences imposed in each conviction, the trial 

court failed to articulate the same at the sentencing hearing. Rather, at the hearing, the 

trial court pronounced the defendant’s sentence as simply, “12 years TDOC.” The trial 

court further stated, “I don’t find that there’s any less restrictive means to achieve justice 

in this case than 12 years to serve in the Tennessee Department of Correction, credit for 

time served from February 21, 2016 until today’s date.” No further pronouncements

were made by the trial court as to the sentences imposed for Counts 1, 2, and 3.

As noted above, the trial court must state on the record the statutory factors it 

considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-210 (e); 

Bise, 380 S.W.3d at 705-06. Further, “[t]he record of the sentencing hearing is part of the 

record of the case and shall include specific findings of fact upon which application of 

the sentencing principles was based.” Tenn. Code Ann. § 40-35-209 (c). While the trial 

court’s sentencing rationale is clear in the record, the trial court failed to articulate the 

individual sentences for Counts 1, 2, and 3, and the record is absent a written order 

outlining the same. Tenn. Code Ann. § 40-35-210 (a)-(d); see also State v. Gauldin, 737 

S.W.2d 795, 798 (Tenn. Crim. App. 1987). Because the trial court failed to comply with 

Tennessee Code Annotated section 40-35-210, we must remand this case to the trial court 

for a hearing on the issue of sentencing for Counts 1, 2, and 3.

III. Application of the Amended Theft Statute to Count 1.

Independent of our above analysis, the State contends the trial court erroneously 

changed the defendant’s vandalism conviction in Count 1 from a Class D felony to a 

Class E felony pursuant to Tennessee Code Annotated section 39-11-112, the criminal

saving’s statute.

2

 The defendant did not address this issue on appeal; however, our 

 

2 Regarding whether this issue is properly before this Court, we agree with the reasoning of 

another panel of this Court in State v. Keese, wherein we determined the State did not have an appeal as 

of right or a statutory right to appeal a trial court’s application of the criminal saving’s statute to a 

defendant’s theft conviction. State v. Charles Keese, No. E2016-02020-CCA-R3-CD, __ WL __, (Tenn.

Crim. App., Knoxville, December 19, 2017). The Keese court reasoned the issue presented by the State 

contemplated the offense classification system of theft, rather than the applicable sentencing range for 

theft and thus, it did not fall under the State’s limited appellate options of Rule 3 of the Tennessee Rules 

of Appellate Procedure or Tennessee Code Annotated section 40-35-402. However, in finding the issue 

to be one of statutory interpretation rather than sentencing, the Keese court determined the issue to be a 

question of law, which could be properly raised by either party after the defendant initiated a timely 

appeal. Tenn. R. App. P. 13 (a); see State v. Russell, 800 S.W.2d 169, 171 (Tenn. 1990). Based upon this 
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review affirms the trial court’s application of the criminal saving’s statute to the 

defendant’s vandalism conviction of Count 1.

This Court is called to review issues of statutory construction de novo with no 

presumption of correctness. State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016) (citing 

State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015)). “The most basic principle of 

statutory construction is to ascertain and give effect to the legislative intent without 

unduly restricting or expanding a statute’s coverage beyond its intended scope.” State v. 

Howard, 504 S.W.3d 260, 269 (Tenn. 2016) (quoting Owens v. State, 908 S.W.2d 923, 

926 (Tenn. 1995)). The intent of the legislature is determined “from the natural and 

ordinary meaning of the statutory language within the context of the entire statute without 

any forced or subtle construction that would extend or limit the statute’s meaning.” State 

v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). “When the statutory language is clear 

and unambiguous, we apply the plain language in its normal and accepted use.”

Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson, 23 S.W.3d 

270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous that we may reference 

the broader statutory scheme, the history of the legislation, or other sources.” In re Estate 

of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn. Mun. League Risk 

Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).

At work in this appeal is the relationship between the vandalism, theft, and 

criminal saving’s statutes found in Tennessee Code Annotated sections 39-11-112, 39-

14-105, and 39-14-408. Regarding the relationship between the three statutes, the State 

asserts that within the context of the defendant’s vandalism conviction of Count 1, “[t]he 

value of property damaged is a question of fact for the fact finder,” and thus, an element 

of the offense. According to the State, “the amended [theft] statute redefined the 

essential element of value and assigned offense classifications to the new value ranges.” 

As a result, the State argues the criminal saving’s statute does not apply to Count 1 

“[b]ecause the amendments to Tenn[essee] Code Ann[otated] [section] 39-14-105 altered 

an element of vandalism,” rather than altering the penalty for the offense. We, however,

disagree. Upon our review of the statutes at issue, it is clear the amended theft statute 

provides the defendant with a “lesser penalty” for his vandalism conviction, thus 

invoking the criminal saving’s statute. Tenn. Code Ann. § 39-11-112.

Our statutory analysis begins under the general principle that “a criminal offender 

must be sentenced pursuant to the statute in effect at the time of the offense.” State v. 

Smith, 893 S.W.2d 908, 919 (Tenn. 1994) (citing State v. Reed, 689 S.W.2d 190, 196 

 

reasoning, we, like the Keese court, will address the trial court’s application of the criminal saving’s 

statute to the defendant’s vandalism conviction, as raised by the State on appeal.
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(Tenn. Crim. App. 1984); 24 C.J.S. Criminal Law, § 1462 (1989)). The exception to this 

rule is found in Tennessee Code Annotated section 39-11-112, also known as the criminal 

saving’s statute. The exception provides: 

When a penal statute or penal legislative act of the 

state is repealed or amended by a subsequent legislative act, 

the offense, as defined by the statute or act being repealed or 

amended, committed while the statute or act was in full force 

and effect shall be prosecuted under the act or statute in effect 

at the time of the commission of the offense. Except as 

provided under § 40-35-117, in the event the subsequent act 

provides for a lesser penalty, any punishment imposed shall 

be in accordance with the subsequent act.

Tenn. Code Ann. § 39-11-112 (emphasis added). It is within this context that we review 

whether the criminal saving’s statute applies to the defendant’s vandalism conviction of 

Count 1 by way of the amended theft statute found in Tennessee Code Annotated section 

39-14-105.

In Count 1, the defendant was indicted under the vandalism statute of Tennessee 

Code Annotated section 39-14-408. Per statute, “[a] person commits the offense of 

vandalism who knowingly: [c]auses damage to or the destruction of any real or personal 

property of another . . . knowing that the person does not have the owner’s effective 

consent;” or “[d]amages merchandise offered for retail sale by a retail merchant.” Tenn. 

Code Ann. § 39-14-408 (b)(1), (b)(3). The statute orders a trial court to impose 

punishment for vandalism under the theft statute, stating: “[a] person violating 

subdivision (b)(1) or (b)(3) is a principal under § 39-11-401 and shall be punished as for 

theft under § 39-14-105, after determining value under § 39-11-106.” Tenn. Code Ann. § 

39-14-408 (c)(1) (emphasis added). Tennessee Code Annotated section 39-11-106 

defines “value” as “[t]he fair market value of the property or service at the time and place 

of the offense,” or “[i]f the fair market value of the property cannot be ascertained, the 

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

Ann. § 39-11-106 (36)(A)(i), (ii). Thus, value is a separate consideration from the 

penalty imposed under the vandalism statute. Tenn. Code Ann. § 39-14-408 (c)(1).

We now turn to whether the exception outlined above applies to the defendant’s 

vandalism conviction through the amended theft statute. At the time of the defendant’s 

crimes and convictions, Tennessee Code Annotated section 39-14-105 defined theft 

offenses and their correlating felony classification by the value of damages levied by a

defendant’s criminal activity. The theft statute provided:
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(a) Theft of property or services is:

. . .

(2) A Class E felony if the value of the property or services obtained is 

more than five hundred dollars ($500) but less than one thousand dollars 

($1,000);

(3) A Class D felony if the value of the property or services obtained is one 

thousand dollars ($1,000) or more but less than ten thousand dollars 

($10,000)[.]

Tenn. Code Ann. § 39-14-105 (a)(2), (a)(3). However, the Public Safety Act of 2016 

amended the valuation and offense classification system for theft. 2016 Pub. Acts, c. 

906. The amended theft statute provides:

(a) Theft of property or services is:

. . .

(2) A Class E felony if the value of the property or services obtained is 

more than one thousand dollars ($1,000) but less than two thousand five 

hundred dollars ($2,500);

(3) A Class D felony if the value of the property or services obtained is two 

thousand five hundred dollars ($2,500) or more but less than ten thousand 

dollars ($10,000)[.]

Tenn. Code Ann. § 39-14-105 (a)(2), (a)(3) (2017). Accordingly, after the amendment, a 

theft resulting in damages between $1,000 and $2,500 shifted from a Class D felony to a 

Class E felony.3

Looking to the normal and ordinary meaning of the statutory language, the 

vandalism statute specifically provides that “after determining value,” the defendant 

 

3 We also note, Tennessee Code Annotated section 39-14-103 outlines the general elements of 

theft, providing: “A person commits 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 (a).
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“shall be punished as for theft under § 39-14-105.” Tenn. Code Ann. § 39-14-408 (c)(1)

(emphasis added). The Sentencing Commission Comments make clear that the theft 

statute at issue is, in effect, a sentencing statute, explaining the statute “provides the 

punishment for the offenses of theft. These offenses are punished according to the value 

of the property or services obtained.” Tenn. Code Ann. § 39-14-105, Sentencing 

Comm’n Comm’t (emphasis added). The comments further note that “[v]alue is defined 

in § 39-11-106.” Id. Thus, the theft statute is applicable to a defendant who has 

committed vandalism at the punishment phase. 

In Count 1, the defendant was indicted for the Class D felony of vandalism of 

property in the amount of $1,000 and $10,000 for his actions committed on February 20, 

2016. Tenn. Code Ann. § 39-14-408. On December 5, 2016, the defendant pled guilty to 

the same. As explained above, prior to the entry of judgment against the defendant, our 

legislature amended Tennessee Code Annotated section 39-14-105 to reflect a change in 

the offense classification system of theft, and in turn vandalism. The amended version of 

Tennessee Code Annotated section 39-14-105 went into effect on January 1, 2017. 

At the sentencing hearing on May 12, 2017, the State offered testimony from the 

victim in Count 1, Ms. Davis, who stated the defendant inflicted $2,000 in damages on 

her van. Tenn. Code Ann. § 39-11-106. As such, the punishment applicable to the 

defendant’s vandalism conviction in Count 1 moved from a Class D felony to a Class E 

felony under the amended theft statute. Tenn. Code Ann. § 39-14-105 (a)(2). Though 

the defendant committed the vandalism of Count 1 before the legislature amended the 

theft statute, because the amended theft statute provided for a “lesser penalty,” the 

criminal saving’s statute applied to the defendant’s conviction. Tenn. Code Ann. § 39-

11-112. Accordingly, the trial court appropriately sentenced the defendant for a Class E 

felony in Count 1 after applying the criminal saving’s statute to the conviction. 

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the twelve-year 

sentence imposed in Count 4, but remand this cause to the trial court for a hearing to 

include findings of fact as to the reasons for the ordered sentences in Counts 1, 2, and 3. 

We further direct the trial court to apply the criminal saving’s statute to the defendant’s 

conviction in Count 1.

____________________________________

J. ROSS DYER, JUDGE