# FILED
May 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE FEBRUARY 1997 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9606-CC-00242

) ) Washington County v. ) ) Honorable Arden L. Hill , Judge ) ROBERT HARRISON BLEVINS, ) (Burglary and v andalism of property val ued ) under $500) Appellant. ) For the Appellant : For the Appellee : David F. Bautista Charles W. Burson District Public Defender Attorney General of Tennessee and and Debbie Huskins Sandy R. Copous Assistant District P ublic Defender Assistant Attorney Gener al of Tennessee 142 East Market St. 450 James Robertson Parkwa y Johnson City, TN 37601 Nashville, TN 37243-0493 (AT TRIAL) David E. Crockett Laura Rule Hendricks District Attorney General 606 W. Main Street Route 19, Box 99 P.O. Box 84 Johnson City, TN 37601 Knoxville, TN 37901-008 4 and and Kent Garland District Public Defender’s Office Assistant District A ttorney General for the 1st Judicial District P.O. Box 38 142 East Market Street Jonesborough, TN 37659 Johnson City, TN 37601 (ON APPEAL)

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Robert Harrison Blevins, appeals as of right from a jury conviction in the Washington County Criminal Court for burg lary, a Class E felony , and vandalism of property valued under five hundred dollars, a Class A misdemeano r. He was sentenced as a career offender to six years in the custody of the Department of Correction for the felony and to eleven months and twenty -nine days for the misdemeanor to be served concu rrently, but consecuti vely to previous ly imposed sentences. The trial court a lso imposed fines totaling fiv e thousand, five hundred dollars. On appeal, the defendant states his issues as f ollows:

(1) whether the evidence is sufficient to support his convictions; (2) whether the trial

court erred by allow

ing evidence of the defendant’s six prior conv ictions for burglary

to impeach the defend ant’s tes timony; (3) whether the prosecutor violated the defendant’s r ight to a fair trial by questi oning him about his prior convictions and by asking the trial

court to clarify the i mpeachment instruction to the jury ; and (4) whether the trial court erred by denying the defendant’s request for relief from payment of fines. We hold that the evidence is sufficient and that no reversible error occurred.

Officer Jeff Stork of the Johnson City Police Department testified th at he and Officer Jeff Jenkins responded to a cal l reporting a burgl ary in progress nea r the Broadway Hotel and Per kins Restaurant at approx imately 4:00 a.m. on July 29, 1994. He explained that someone had cal led Officer Harrell and tol d him that a person was inspecting the cars and l ooked like they wer e getting ready to br

eak into one. Officer Stork stated that he was i nstructed to park away from the area to avoid scari ng anyone off. He said that he and Officer Jenkins exited their vehic

les and began walking

among the cars parked near the back of the parking lot whi le Sergeant Michael Har ris, who had also arrived, start

ed checking the vehicl es in the front of the lot. He rec alled hearing3

Sergeant Harris, w

ho was approximately

one hundred and fifty yards aw ay, yell at someone to get their hands up. O fficer Stork said that he and Officer Jenkins ran to Sergea nt Harr

is and saw Serg eant Har ris mov ing the defendant

from the front doo r of a gray Nissan and placing him over the hood of the vehicle. He stated that the driver’s side window was

broken and the door was open.
Sergeant Michael Harr is of the Johnson City Poli ce Department testified that he also responded to the call regarding an automobile burglary in progress. He stated that he parked his v ehicle in the Perkins Re staurant lot and walked t owards the Broadway Motel park

ing lot. He said that as he walked towards the motel, he continued to list en to his radio. Sergea nt Harr

is test ified th at Office r Harr ell, who was w

orkingoffduty at a Wal-Mart located nearby, was talking to an uni dentified person on the phone regarding the burgl ary and was simultaneo usly communicating to hi m by radio the information given by t he unknown caller. Ser geant Harris said that

as he walked in the grass between two motel units, he approached the front of the victim’s vehicle. He recalled hearing a loud popping noise and Officer Harr ell telling him ove r the radio that the caller stated that a w indow had just been broken out. Sergeant Harris s aid that he then saw the defendant partiall y in the victim’s

vehicle and that the passeng er’s side window was brok

en. He testified that he could s ee the defendant because a security light was located v

ery close to the vi ctim’s car and explain ed that the defendant had two-thirds of his body

in the car. Sergeant Ha rris said that the defendant w as crouching down with one leg on

the ground and the other in the vehicle, attempting to conceal himself. He testified that the defendant had a pocketbook in his hands. Ser geant Harris stated that he then t old the defendant at least three times to raise his hands, and when the defendant did not respond, he placed him on the front of the car and ar rested him.4 On cross-examination, Se rgeant Harris admitted that he did not interview any witnesses at the s

cene and that he did not know th e name of the person who called Officer Harrell. He stat ed that although he did not ques tion him or obtain his name, he spoke to a man who said that he had called Officer Harrell who was at Wal-Mart and told him about the burglary . Sergeant Harris al so conceded that he failed to mention at the preliminary hearin g that he heard a loud popping noise before seeing the defendant in the victim’s car.He acknowledged stat ing at the preliminary hearing that the caller said that the window was broken with a rock and that he searched the vehicle but did not find a rock. Sergeant Ha rris also stated that he di d not attempt to obtain fingerpri nts from the vehicle.

Traci Jackson, the vic

tim, testified that she and some friend s left Legends during the early morning hours of July 29, 1994, and went to Perkins Restaurant in Johnson City. She stated that she drove her gray Nissan and waited in t he car near the entrance while Shannon Vaughn gave their names for the waiting list. The victim recalled hearing the defendant, whom she did not know, ta lk to Vaughn for a couple of minutes before she got back into the car. She testified that she then parked her vehicle behind Broadway Motel because the restaurant’s par king lot was full. The victim stated that the defendant had walked to w here she had parked her car and started talking to them. She remembered the defendant telling them that his name was Rob w hen Vaughn asked him. She said that as they joined their other friends, she realized tha t she had locked her keys and purse in the car and told her friends. She stated that she attempted to open the doors but both were locked. Th e victim said that her friends told her that they should eat firs t and then either get a spare set of keys from her house or call the police. The victim testified that the defenda nt was present during the entire conversation. She also admitted that the group may have stopped at one of her friend’s motel room before walking to the restaurant.5 The victim testified that they walked to the restaurant and that everyone sat at a bo oth excep t the def endant, who sat app roximate ly three bo oths away wit h two other men. She recalled seeing the defendant leave after approxi mately five minutes. She stated that approximately forty-five minutes later, they left and walked to the hotel office to call the police or a locksmith. She said that the clerk told her tha t the police were already in the parking lot. The vic tim testified that she saw S ergeant Harris and asked him whether he could a ssist her in unlocking

her car. She said that after t alking to Sergeant Harris, s he discovered that someone had br oken into her car and that the passenger’s side wi ndow had been completely sh attered. She stated that nothing had been removed but that her purse had been moved f rom the passenger’s side floorboard to the passenger’s seat. S he also stated that she noticed a large rock lying under her seat that afternoon when vacuumi ng the car. The victi m said that she gave a description of the defendant to Serge ant Harris. She also tes tified that the repair to her window costed one hundred and seventy-nine dollars. The victim stated that she did not give the defendant permiss ion to enter or to damage her car.

Chad Hummon, an acquaintance of the defendant, testified that he saw the defendant at

Perkins Re

staurant on J uly 29, 1994 , at approximately 3: 00 a.m. talking to two w

omen parked in a dark-color ed car near the entrance to the r estaurant. He stated that he waved at the defendant and that h e later sat at a table with him. He said that the two women s at with them for awhile before moving to a separate boot h. Hummon testified that the defendant was in the restaurant with him for about one hour. He also co nceded h aving a prio r convictio n for sec reting pe rsonal pr operty.

The defendant testified that he left Nashvi lle Sound on July 29, 1994, and went to Perkins Restaur ant with a group of his fri ends, including Hummon. He stated that he parked his car in th e rear because the lot was full and walked towar

ds the restaurant. He said that he saw Hummon starting to walk into the restaura nt as a car6

drove up to the entrance. The defendant testified that the victim w as driving, another woman was in the passeng er seat, and a man was in the back seat. The defendant recalled yelling at them and the passenger asking him to come to her side of the car. He said that he then asked them w hether they wanted to par ty and they said that they wanted to eat first. Accor ding to the defendant, the passenger got out of the vehicle, he sat in the passenger seat, and the passenger sat on his lap as the victim tri ed to find a parking space. The defendant testified that the lot was full so they parked in the rear close to his car. He s

aid that the victim stopped at a friend’s motel room before they walked to the restaurant.

The defendant stated that he saw Hummon w hen he entered the restaurant and that he told the v ictim and her friends that he w as going to sit with Hummon instead. He stated that the victim and her friends sat at another table. The defendant testified that he stayed for appr oximately an hour eating and talking with Hummon. He said that when he left the restaurant, he decline d Hummon’s offer for a ride and walked to his car. According to the defendant, several uniformed p olice officers started yelling

at him to freeze as he started to step over a curb to g o between two cars. He denied bei ng inside a gray N issan or knowing any thing about a rock being thrown through the car ’s window. He al so denied knowing that t he victim had locked her keys in her car. The defendant admitted having prio r convictions for attempted firstdegree burglary i n 1987, four counts of third-degr ee burglary in 1987, ag gravated assault i n 1989, l arceny fr om a pers on in 198 9, third- degree bu rglary in 19 90, and t wo counts of robbery in 1990.

In rebuttal, the victim testified that the only other person in her vehicle

was Shannon Vaughn who sat in the passenger seat. She also deni ed that the defendant got into her car and rode with her to park her car.7 Shannon Vaughn testified that she r ode with the victim t

o Perkins Restaurant and that she saw the defendant when the victi m parked in front of the restaurant and she went inside. She said that she was the only person with the victim and that she rode in the passenger’s seat. She denied asking the def endant to get in the car with them, that the defendant rode with them to park, and that she sat with the defendant at a booth at the restaurant. S he stated that the defendant sat two o r three booths away. Vaughn sa id that she was not sure how long the defendant staye d at the restaurant but recalled that he left before they did.

I. SUFFICIENCY OF THE EVIDENCE The defendant contends the evidence is insufficient to establish the defendant’s guilt beyond a reasonable doubt f or the offenses of automob ile burglary and vandalism of property v alued under five hundred dollar s. Essentially, he as

serts that had the trial court ex cluded evidence of the defendant’s pr ior convictions for automobile burglary, the jury could have found that the defendant’s testimony wa s credible and rejected Sergeant Harris’ testimony. The state argues that the evidence overwhelmingly

supports the convictio ns and that the jury w as entitled to reject the defendant’s testimony as untrue. W e hold that there is sufficient evidence to support the convictions.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).8 Pursuant to T.C.A. § 39-14-402( a)(4), a person commits bur glary by entering an automobile wi thout the effective consent of the ow ner with the intent to commit a felony or theft. Vandalis m is defined as knowingly causing damage to or destroying real or

personal property of another without the owner’s

effective consent. T.C.A. § 30-14-408(a).

In the light most favorabl e to the state, the evidence s hows that Sergeant Harris discovered

the defendant bending down in the passenger seat of the vict im’s car holding the victim’s

purse in his hands. Also, a rock was found underneath the seat, and the passenger’s side w indow was broken. Although the defendant testified that he was merely stepping over a curb to walk between two cars when several officers ordered him to freeze, the jury was entitled to reject the defendant’s claim an d accredit the testimony of the state’s w itnesses. Under these ci rcumstances, we conclude that ample proof existed to allow a rational trier of fact to co nclude that the defendant was guilty beyond a rea

sonable doubt of both burglary and vandalism of property valued under five hundred dollars.

II. EVIDENCE OF PRIOR CONVICTIONS Next, the defendant claims that the trial court abused its discretion by allowing evidence of the defendant’s prior burglary convictions to impeach his credibility. He ar

gues that because the prior convictions invol ved the same crime for which he was trie

d, the prejudicial effect far outw eighed any probative value for credibility. The defendant as serts that the state should hav e been limited to using convictions other than th e burglary convi ctions for impeaching the defendant. In the alternative, he contends th at the six prior burg lary convictions should have been described as six convictions for crimes involving dishonesty rather than using the term burglary. The state ar

gues that the trial cour

t properly allow

ed the evidence of the defendant’s prior convicti ons. We agree.9 The admissibility of evi dence is a matter within the trial court’s dis

cretion and will not be rev

ersed on appeal absent an abuse of disc retion. State v. Harris , 839 S.W.2d 54, 66 (Ten n. 1992). Pursuant to the conditions and procedures set f orth in Tenn. R. Evid. 609, the credi bility of the accused may be attacked by presenting evidence of prior convi ctions. One condition req uires that the crime either be a felony or a crime involv

ing dishonesty or false

statement. Tenn. R. Evid. 609( a)(2). Also, the trial court must find that the conviction’s probativ e value on credibilit

y outweighs its unfair prejudicial effect on the subs tantive issues. Tenn. R. Evid. 609(a)(3). In determining the probativ e value of the prior conv ictions, the trial cour

t must assess the similarity between the crime on trial and the c rime underlying the i mpeaching conviction. State v. Farmer , 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). The tri al court must next analyz e the relevance the impeachi ng conviction has to t he issue of credibility. Id

.

Before trial, the state notified t he defendant of its intent to use the following convict ions to impeach the defendant’s credi bility at trial: ( 1) four counts of third-degree burglar

y in 1987, (2) bail j umping in 1987, (3) attempted fir st-degree burglary in 1987, (

4) aggravated assaul

t in 1989, (5) larceny

from a person in 1989, (6) third-degree burglar

y in 1990, and (7) tw

o counts of robbery in 1990. The d efendant filed a motion in limine to ex clude evidence of the defendant’s pr ior convictions due to the similarity of the offenses to the charged offense of burglary of an automobile. In its ruling on the defendant’s motion i n limine, the trial court held that the bail jumping conviction was ina

dmissible. It also concl uded that the defendant’s remaining pr ior convictions could be i ntroduced to impeach the defendant’s cr edibility if he testified because the offenses of burglary, robbery and larceny directly related to the defendant’s truthfulness and the probati ve value on his credi bility was not outw eighed by any undue prejudice.10 The defendant relies upon Tennessee case la w that has held that evidence of the defendant’s conviction for an of fense similar to the one on trial should not be introduced for impeachment purp oses because there is too great a danger of it improperly showing

a propensity to commit that type of crime. See , e.g. , State v. Roberts , 703 S.W.2d 146, 147 (Tenn. 1986) (in aggrav ated assault case, could not show prior assault and

battery conviction ); Long v. State , 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980) (in murder assault case, could not show prior second degree murder conviction). However, the fact that a prior conviction involves a similar crime for which the defendant is being tried does not automa tically require its exclusion. As previously noted, the trial court must ana lyze the prior con viction and the offense on trial to determine whether the conv iction’s probative v

alue on credibility i s outweighed by the danger of unfair prejudice on the substantive issues. See Tenn. R. Evid. 609(a)(3); State v. Farmer , 841 S.W.2d at 839.

In this case, the trial court considered the similarity between automobile burglary and the defendant’s previous convicti ons for burglary, robbery and larceny. It correctly concluded that the felony convictions were for crimes of dishones ty, thus lending greater w

eight to their probativ

e value regarding credibility. See State v. Miller , 737 S.W.2d 556, 559-60 (Tenn. Crim. App. 1987) (bur glary); State v. Caruthers , 676 S.W.2d 935, 941 (Tenn. 1984) (robbery); State v. Hardison , 705 S.W.2d 684, 686 (Tenn. Crim. App. 1987) (petit larceny).

Also, the defendant made his credibi lity an important issu e by denying any wrongdoing and asser

ting legitimate conduct . Under these circumstance s, we are not inclined to question the t rial court’s allow ing all the convict ions for the purpose of impeachment. Thus, although the prior burglary convictions are similar to the off ense on trial, we hold that t he trial court did not abuse its discretion in conc

luding that the11

convictions’ probativ

e value on credibilit

y outweighed any danger of unfair prejudice to the defendant.

The def endant c ontends in the alt ernative t hat the t rial court should ha ve limited references to his pr evious burglary

convictions to his hav

ing six prior c

onvictions for crimes involving dishonesty. We note that the case upo n which he relies, in which this court allowed the trial court’s use of such a procedure, did not receiv e the blessing of our supreme court. See State v. Ross Jones , No. 01C01-9405-CR-00176, Davidson County (Tenn. Crim. App. F eb. 8, 1995), app. denied (Tenn. May 1, 1995) (concurring in results only). In any event, Jones did not hold that the trial court is required to limit the reference to prior conv ictions as the defendant request s. Rather, it only hel d that the trial court’s use of suc h a procedure was not an abus e of discretion in that case. In similar fashion, we beli eve that the circumstances in the present case do not reflec t an abuse of discretion by the trial court in not limiting any references to the defe ndant’s previous convicti ons to felonies involvi ng dishonesty.

III. PROSECUTOR CONDUCT REGARDING IMPEACHMENT The defendant asserts that he was deni ed the right to a fair tri al because the prosecutor engaged in misconduct by the manner in w hich he questioned the defendant about prior burglary convictions being for automobile burglaries. The defendant also contends that the prose cutor improperly requested that the trial court instruct the jury regarding the proper use of evidence of the defendan t’s prior burglary convictions as its l ast instruction although an identical instruction had been given earlie r. The st

ate arg ues that

the acti ons of the

prosec utor do n ot rise

to the l evel of misconduct.

First, we note that the defendant did not object at the time of the prosecutor’s question regarding automobile burglaries nor did he include this issue in12

his motion for new trial. Also, although he objected at the time of the jury instruction in question, it was not included as an issue in his motion for new trial. Pursuant to Rule 3(e), T.R.A.P., an issue is considered waived for appellate review pur

poses if it is not specifically included in the motion for new trial, but is an issue for which the result would be a new tri al. Such i s the case before u s. Moreove r, in the co ntext of plain erro r, we see nothing that affects the substanti al rights of the defendant. See Tenn. R. Crim. P. 52(b).
After the defendant acknowledged on cross-examination that he was convicted in 1987 for four counts of third-degree burglary, the prosecutor aske d him if the convictions wer

e for automobile burglaries.The defendant replied, “No, I don’t think so.” Needless to say, to the extent that the quest ion was for the purpose of eli citing underlying facts of the former c onvictions, it was

improper. See State v. Morgan , 541 S.W.2d 385, 389 (Tenn. 1976); Long v. State , 607 S.W.2d at 485. However, the defendant’s negative response ended the inquiry and the matter was never mention ed again. Under these cir cumstances and with the str ong evidence against the defendant, we do not believe that the question affected the jury verdicts to the defen dant’s prejudice.
As for the jury instruc tion claim, the defendant complains ab out the prosecutor getting the trial court to repeat the i nstruction relating to considering evidence of prior convi ctions only on the issue of credibility. After t he trial court gave its instructions to the jury, the prosecutor stated that it had failed to instruct th e jury regarding both the speci fic offenses for which the defendant had prev iously been convicted and the proper c onsideration of them relativ e to credibility. The p rosecutor requested that the trial c ourt instruct the jury

accordingly, w

hich it did. Howev

er, the trial court had already

instructed the jury i n such a fashion.13 Obviously, the trial c ourt shou ld not ha ve instruc ted the ju ry twice rela tive to the specific prior conv ictions of the defendant. Howev er, there is no showin g that the prosecutor intentionally sought to influence the jury by having the inst ruction given a second time, immediately before de liberation. We note as well, that the instructions were an accurate statement of the law that limited the j ury in its consider ation of the defendant’s prior convicti ons. Again, under these ci rcumstances and the strength of the evidence against the defendant, we do not believe that the pro secutor’s request was misconduct or that the trial court’s reins

truction affected the jury’s verdicts to the defendant’s prejudice. See Judge v. State , 539 S.W.2d 340, 344-45 (Tenn. Crim. App. 1976).

IV. FINES

The defendant argues that the trial court erroneously denie d his request to be relieved from the payment o f fines totaling five thousand and five hundred dollars. He asserts that because he supp orts a wife and two chi ldren and is uneducated, unskilled and heavily

in debt, the trial court should have waived the fines imposed. The state argues that the seri ousness of the offense, the need for deterrence and the defendant’s extensive cri minal background justify the imposition of the fines and that a suspension or reduction of the fine would only depreciat e the seriousness of the offense.

At the trial, the jury returned a fine for the burglar y at three thousand dollars and for the vandali sm at two thousand five hundr ed dollars, each being the maximum for that class of offense. See T.C.A. § 40-35-11(b)(5) a nd (e)(1). At the sentencing hearing, no te stimony was presented by either party, w hich left the filed presentence report and the proof at trial for the trial cour t’s consideration. The defendant conceded that he had enough prior convictions to have a career offender status, thereby requi ring imposition of the maxi mum length of sentence for the felony1 The trialcourt ret ains juri sdicti on, even after final judgment, to modify

the payment sched ule or to red uce or re mit entire ly the amo unt of fines for which the defe ndant m ay be obliga ted. See T.C.A . §§ 40-2 4-101, -1 02 and -104. 14 class involved. See T.C.A. § 40-35-108. The defendant was sentenced to eleven months, twenty-nine day s for the vandalism offense, to be ser ved concurrently w

ith the burglary sentence.

As for the fines, the record reflects that the parties a nd the trial court misunderstood the respectiv e roles of the jury and the t rial court in imposing the fines. The defendant asked the court to “suspend” the fines and the prosecutor asse rted that the state was opposed to a sus pension, stating that “that ’s the jury’s part of this, and that’s the only part that they’re left with.” Then the trial court stated: Well, it’s a wa y for the jury to speak, but, I don’t think the jury when they set that fine understands it’s to -- in some i nstances it ’s almost i mp ossi ble to collect, but we’ll leave that for a future d ay. 1 The motion to reduce the fine is respectfully denied. Each judgment of conviction in this case entered by the trial court states the amount as a “fine assessed by the jur y.” In this fashion, the r ecord reflects that the parti es and the trial court believed

that the fine to be imposed as part of the sentence was to be set by the jury. Such is not the case.

Although the jury is

to “fix” the amount of the fine and r eport it with a gui lty verdict, it is the t rial court that is obli gated to impose a fine, if any - - not to exceed that fixed by the jury -- as part of the sentence. See T.C.A. § 40-35-301(b). The trial court’s imposition of a fine, if any, is to be based upon the factors and princ iples of the 1989 Sentencing Act, such as, pr ior history, potential

for rehabilitation, financial means, and mitigating and enhancing factors, that are relevant to an appropriate, total senten ce. See State v. Bryant , 805 S.W.2d 762, 766 (Tenn. 1991). Thus, the trial c ourt may not simply impose the fine as fix ed by the jury.15 However, we need not remand the case for proper asse ssment of the fine, because the record before us i s sufficient to justify affirming the amount of the fine imposed by the trial court. The presentence report reflects that the twenty-eight-yearold defendant held employment for monthly periods in 1993 and 1994 with four separate employers. No record of employment before 19 93 is presented. The report shows that the defendant owns nothing, but claims a debt of four thousand dollars in addition to an unknown amount for c hild support for a child from a pr evious marriage. The defendant is married and also suppor ts a two-year-ol d child who lives with him and his wife. The defendant is a hig h school dropout who obtained his GED. He claims to be in good physical and mental health, but admitted prev iously using marij uana about once a week for a few year s. He has convictions

for robbery, aggrav

ated assault, larceny from the person, bur glaries, attempted burgl ary, and several mis demeanors. In fact, the defendant was on parole w hen he committed the present offenses.

The defend ant cont

ends tha t his fin ancial status a nd family needs ju stify less than the maximum fines. Although indigency may in certain cases justify no fine, as previously stat

ed, it must be considered w ith the other relevant factor s. Thus, although the defendant’s abili ty to pay a fine is a factor it is no t necessar ily a controlling one. We recognize that an oppressi ve fine can disrupt future rehabilitation and prev ent a defendant from becoming a productive m em ber of so ciety. Such results are not usually compatible with thepurposes and principles

of the 1989 Sentencing Act. However, a significant fine is not a u tomatically precluded just because it works a substantial hardship on a defendant -- it may

be punitive in the same fashion incarceration may be punitive. State v. Marshall , 870 S.W.2d 532, 54 2 (Tenn. Crim. App. 1993).

In the past, the defendant has shown l ittle, if any, inclinat ion to meet the needs of his family and children through honest eff ort. His proven record of disregard for conforming his conduct to the laws of society does not bode well for rehabilit

ation occurring in the near future. In fact, his compilation of such an extensive record in his16

ten years of adulthood, by i tself, warrants maximum fin es for punishment and deterrence. Relief, if any, from the fines shou ld await assessment under his future conduct and circumstances. The amount of the fines imposed by the trial court is proper.
In consideration of the foregoing and the record as a whole , the judgments of the trial court are affirmed.
Joseph M. Tipton, Judge

CONCUR:

Jerry L. Smith, Jud ge

Thomas T. Woodall, Judge