IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 23, 2010

STATE OF TENNESSEE v. ANTHONY W. HUTCHINSON

Appeal from the Circuit Court for Blount County

No. C-17338 Jon Kerry Blackwood, Senior Judge

No. E2010-01053-CCA-R3-CD - Filed April 25, 2011

The Defendant, Anthony W. Hutchinson, was convicted of one count of theft of property

valued at $1,000 or more, a Class D felony. See Tenn. Code Ann. §§ 39-14-103, 105. In this

appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain

his conviction and (2) the trial court erred by denying alternative sentencing. Following our

review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS,JR.J., delivered the opinion of the court, in which DAVID H. WELLES and

NORMA MCGEE OGLE, JJ., joined.

Raymond Mack Garner, District Public Defender (at trial); and J. Liddell Kirk, Knoxville,

Tennessee (on appeal), for the appellant, Anthony W. Hutchinson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Michael L. Flynn, District Attorney General; and Clinton E. Frazier, Assistant

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

OPINION

The victim, Dennis R. Webb, testified that in August 2007, he was looking for a

contractor to put a metal roof on his garage. Mr. Webb’s son-in-law, Aaron Bruno,

suggested that Mr. Webb contact the Defendant about the job. Mr. Webb already had an

estimate for $6,500, but Mr. Bruno told Mr. Webb that the Defendant would “do it cheaper.”

After speaking with Mr. Bruno, Mr. Webb agreed to let the Defendant give him an estimate

on the job. The next day, the Defendant and Mr. Bruno went to Mr. Webb’s house and took

some measurements. The Defendant told Mr. Webb that he could do the job for $5,300 with
$3,000 paid up front and the remainder to be paid after completion of the job. The Defendant

said that he would order the metal and start the job on August 13th and have the job finished

on August 15th. Mr. Webb asked the Defendant if he was sure he could complete the job so

quickly. The Defendant responded that he did not have any other jobs and that he needed the

money.

The next day, August 9, 2007, the Defendant brought a contract to Mr. Webb’s house

for him to sign. The contract listed the estimated start date as August 13th and the estimated

completion date as August 15th. The contract also provided that a deposit of $3,000 would

be paid with $2,300 to be paid upon completion. Mr. Webb testified that after signing the

contract he gave the Defendant $3,000 in a First National Bank envelope. After August 9th,

the Defendant never returned to Mr. Webb’s home to perform the job. Mr. Webb testified

that he tried “10 or 12 times” to contact the Defendant by phone, but the Defendant would

not answer. After about a month, Mr. Webb contacted the Blount County Sheriff’s Office

(BCSO).

Shortly after contacting the BCSO, Mr. Webb received a phone call from the

Defendant. Mr. Webb testified that the Defendant told him, “I ain’t got the money” and that

“[i]f you take me to court, the [j]udge will just make me pay $15 a month.” According to Mr.

Webb, the Defendant told him there was nothing the police could do because “it was a civil

case” and that the Defendant had “been doing this stuff before.” Mr. Webb also testified that

the Defendant “wanted [Mr. Webb] to meet him out on the road somewhere to fight to get

over it.” Mr. Webb denied being angry at the Defendant or threatening to hurt the Defendant.

However, Mr. Webb admitted he was upset and aggravated about the situation. Mr. Webb

also testified that he would have dropped his complaint with the police if the Defendant had

agreed to come and do the job. However, Mr. Webb testified that during the phone

conversation, the Defendant never offered to actually perform the work or return the money.

Mr. Bruno testified that he was “old friends” with the Defendant and that in August

2007, the Defendant asked Mr. Bruno to refer him to Mr. Webb. Mr. Bruno testified that the

Defendant had no other jobs he was working on at that time. Mr. Bruno also testified that

he went with the Defendant to measure the roof and that he was present when the contract

was signed. According to Mr. Bruno, the Defendant later told him that he had a year to do

the job and that his failure to do the job was a civil matter. On cross-examination, Mr. Bruno

again testified that he was present when the contract was signed but that after the contract

was signed, the Defendant left and came back later to pick up the money “in an envelope.”

Lisa Regan testified that she is Mr. Webb’s niece and that in August 2007, she was

dating the Defendant. According to Ms. Regan, on August 9, 2007, the Defendant called her

and asked her to go with him to Harrah’s Casino. Shortly after they arrived, the Defendant

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began gambling and “pulled out a few hundred dollar bills out of his wallet.” Ms. Regan

testified that “[a]fter [the Defendant] lost all the money that was in his wallet, he pulled out

a bank envelope” and took money from that. According to Ms. Regan, the Defendant

gambled all night long. Ms. Regan eventually went up to her room and fell asleep, when she

woke up the next morning the Defendant “was still at a table gambling.” The Defendant

“had lost everything that he had brought there.”

Ms. Regan testified that the Defendant eventually told her “he messed up.” Ms.

Regan asked the Defendant if he had gambled away Mr. Webb’s money, and he responded

that he would never “admit to them that [he] lost the money.” Ms. Regan offered to loan him

the money if he would let her go with him and pay for the materials. The Defendant “would

[not] agree to that” and “said he would look stupid if [Ms. Regan] went with him to pay for

the material, that if [she] couldn’t just give him the money and him go pay for it [himself],

to forget it.” Shortly after this conversation, Ms. Regan ended her relationship with the

Defendant. Ms. Regan also testified that in August 2007, the Defendant did not have any

other contracts. In fact, Ms. Regan recalled that during this time the Defendant was looking

for work in the “want ads.”

Deputy James Wilson of the BCSO testified that Mr. Webb contacted his office on

September 10, 2007. After taking a statement from Mr. Webb, Deputy Wilson contacted the

Defendant. The Defendant told Deputy Wilson that this was a civil matter and that he had

two years to perform the work. The Defendant admitted that he had not done any work and

had not bought any supplies. However, the Defendant told Deputy Wilson that the money

was not for supplies. Instead, the Defendant claimed that the money “was to secure [the

Defendant’s] . . . position to do the work, so another contractor could [not] come in and do

the work.” Deputy Wilson tried to resolve the situation by convincing the Defendant “to go

ahead and perform the contract.” However, the Defendant told Deputy Wilson that “he was

extremely busy . . . [and] had three contracts that he was under at the time.” Deputy Wilson

testified that the Defendant gave him “the impression [that the Defendant] was so busy that

he did [not] have time to get to Mr. Webb’s work at the time.” The Defendant told Deputy

Wilson that he was “in Georgia at the time working on another job and was just very busy.”

Deputy Wilson testified that to his knowledge, the Defendant never performed the contract

or repaid Mr. Webb.

After speaking with the Defendant, Deputy Wilson subpoenaed the Defendant’s

gambling records from Harrah’s Casino. The records show that on August 9, 2007, the

Defendant gambled for 541 minutes and lost $1,200. The records for August 10, 2007 reflect

that the Defendant lost $1,750 during 77 minutes of gambling. Deputy Wilson testified that

the records for August 8, 2007 reflect that the Defendant lost $1,200 the day before he and

Mr. Webb signed the contract. On cross-examination, Deputy Wilson admitted that the

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Defendant had gambled at Harrah’s Casino on numerous occasions prior to and after August

9, 2007. Based on the foregoing evidence the jury convicted the Defendant of theft of

property valued at $1,000 or more, a Class D felony. See Tenn. Code Ann. §§ 39-14-103,

105.

At the sentencing hearing, the State introduced copies of the Defendant’s prior

convictions in state and federal court as well as the Defendant’s presentence report. In 1999,

the Defendant pled guilty in federal court to four counts of entering a motor vehicle in a

National Park with the intent to commit a theft, using stolen credit and check cards with the

intent to defraud, and scheming to defraud a bank by using stolen blank checks and forging

the signature of the endorser. In October 2003, a federal probation violation warrant was

issued against the Defendant. The Defendant also had state convictionsfor theft over $1,000,

conspiracy to pass worthless checks over $1,000, and two convictions for forgery. The

Defendant was placed on community corrections for these charges and was on community

corrections at the time of this offense. The State also introduced evidence that the Defendant

had violated his community corrections sentence and had additional prior convictions for

disorderly conduct and possession of drug paraphernalia.

The Defendant testified at the sentencing hearing that he was 30 years old and had two

children, one of whom he had custody of. The Defendant claimed that he had ordered the

metal needed to perform the job on Mr. Webb’s roof but that it had come in “like a baby

poop green” so he had to reorder the metal. The Defendant testified that he called Mr. Webb

to inform him of this, but Mr. Webb said, “when I see you I’m going to punch you in the

mouth” and yelled at him. According to the Defendant, he never performed the job becauce

he could not risk having “an angry homeowner come kick a ladder out from one of [his]

employees or [himself.]” The Defendant denied taking Mr. Webb’s money to the casino and

stated that he did not perform the job because Mr. Webb “did [not] act in a business

disposition.” The Defendant denied that at the time he signed the contract it was his intent

to take Mr. Webb’s money without performing the job.

The Defendant blamed his conviction for conspiracy to pass worthless checks on his

girlfriend at the time. He testified that she had written the checks and that he had “got in the

mix because [he] was dating her.” The Defendant also blamed his federal convictions on

someone else, claiming that he “was [not] the one doing the breaking into cars” but was “just

doing the checks.” Despite having failed to comply with the conditions of his federal

probation and state community corrections sentences, the Defendant testified that if placed

on alternative sentencing in this case he would comply with the conditions of his sentence.

The Defendant continued to maintain his innocence, testifying that “[his] deposit is [his]

deposit” and that the contract did not specify what the money was to be used for. However,

when asked whether he had been honest with Deputy Wilson, the Defendant said “I don’t

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know. I sell metal roofing, brother; I’m not always honest.” After cross-examination, the

Defendant was asked by the trial court why, given the Defendant’s indigency, he was able

to pay $5,000 to make bond but not repay his $3,000 debt. The Defendant responded that a

friend paid his bond.

The trial court concluded that the Defendant was a Range II, multiple offender. The

trial court also concluded that the following enhancement factors applied to this case: (1) in

addition to the prior convictions necessary to establish the appropriate range, the Defendant

had a previous history of criminal convictions; (8) the Defendant failed to comply with the

conditions of a sentence involving release into the community; and (13) at the time of the

offense the Defendant was on community corrections. Tenn. Code Ann. § 40-35-114. The

trial court concluded that these enhancement factors outweighed the sole mitigating factor

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

court also concluded that the Defendant should be denied alternative sentencing based upon

his prior criminal record, his failure to comply with the terms of alternative sentencing in the

past, and the fact that less restrictive measures have been unsuccessfully applied to the

Defendant. Accordingly, the trial court sentenced the Defendant to eight years to be served

in the Tennessee Department of Correction.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to sustain his conviction for

theft of property valued at $1,000 or more. The Defendant argues that his “subsequently

behaving irresponsibly with the money does [not] itself amount to an intent to deceive the

victim at the time the money was obtained.” The State responds that intent to deprive an

owner of property may be established by circumstantial evidence. The State argues that the

evidence that the Defendant immediately took Mr. Webb’s money to a casino where he

gambled it away, his refusal to accept Ms. Regan’s offer to buy materials for the job, his

avoidance of Mr. Webb, and his claims to Deputy Wilson that he was busy was sufficient

evidence for a reasonable jury to conclude the Defendant intended to deprive Mr. Webb of

his money.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing 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). This

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

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the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the

defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of

[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93

(Tenn. Crim. App. 1999).

In Tennessee, “[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. In order to obtain

a theft conviction, the State must establish that “(1) the defendant knowingly obtained or

exercised control over property; (2) the defendant did not have the owner’s effective consent;

and (3) the defendant intended to deprive the owner of the property.” State v. Amanns, 2

S.W.3d 241, 244-45 (Tenn. Crim. App. 1999). Consent induced by deception is not

effective. Tenn. Code Ann. § 39-11-106(a)(6)(A). Intent to deprive an owner of property

may be established by circumstantial evidence. See State v. Scales, 524 S.W.2d 929, 931

(Tenn. 1975). Stated another way, a “jury may infer a criminal defendant’s intent from the

surrounding facts and circumstances.” State v. Roberts, 943 S.W.2d 403, 410 (Tenn Crim.

App. 1996), overruled on other grounds by State v. Ralph, 6 S.W.3d 251 (Tenn. 1999).

Situations involving alleged fraud in connection with home repairs or installations

present a unique challenge under the theft statute. In Amanns, a panel of this court

concluded that a contractor’s failure to repay a $6,000 deposit did not constitute the crime

of theft. 2 S.W.3d at 242. The defendant in Amanns entered into a contract to remodel the

alleged victim’s basement. Id. The terms of the contract provided that the alleged victim

would pay a $6,000 deposit. Id. The defendant cashed the check the next day and used a

portion of the money to establish an account with a material supplier. Id. at 242-43. The

defendant began work at the agreed upon time and continued to work until a dispute arose

over the quality of the defendant’s work. Id. at 243. This court concluded that “[w]hile these

facts establish a breach of contract, they fall far short of establishing . . . any intent to

defraud.” Id. at 245.

The facts in the present case differ greatly from those in Amanns. There was nothing

in Amanns to suggest that the defendant never intended to complete the work when he took

the alleged victim’s deposit. However, in this case the Defendant never bought supplies or

began work on Mr. Webb’s roof. Instead, the evidence at trial established that on August 9,

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2007, the Defendant was given $3,000 by Mr. Webb in a bank envelope. The Defendant then

took Ms. Regan to Harrah’s Casino, where he gambled using money from a bank envelope

and lost approximately $3,000. Ms. Regan testified that the Defendant later admitted that the

money was Mr. Webb’s. The Defendant rejected Ms. Regan’s offer to buy the supplies

needed to complete the job. The Defendant avoided Mr. Webb and only spoke to him after

the police had been contacted. When the Defendant spoke to Mr. Webb, he told him that he

did not have his money and, essentially, that he would never get it back. Additionally, the

Defendant lied to Deputy Wilson about what the money was for and why he had not begun

work on Mr. Webb’s roof. Accordingly, we conclude that the State produced sufficient

evidence that the Defendant intended to deprive Mr. Webb of $3,000 when he took the

money from Mr. Webb.

II. Sentencing

The Defendant contends that the trial court erred by denying him alternative

sentencing. The Defendant argues that the trial court failed to “articulate due consideration

for whether a sentence of confinement was deserved under the circumstances.” Additionally

the Defendant contends that there is nothing in the record to suggest “that he is such a danger

or a threat that full confinement is necessary. The State responds that the trial court was

correct in ordering the Defendant’s sentence served in confinement. The State argues that

the trial court’s decision isjustified based on the Defendant’s significant criminal history and

the fact that the Defendant’s alternative sentences have been revoked on two occasions.

An appellate court’s review of sentencing is de novo on the record with a presumption

that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the

defendant to show that the sentence is improper. This means that if the trial court followed

the statutory sentencing procedure, made findings of fact that are adequately supported in the

record, and gave due consideration to the factors and principles that are relevant to

sentencing under the 1989 Sentencing Act, the court may not disturb the sentence even if a

different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991). 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 this respect, for the purpose of meaningful appellate review:

[T]he trial court must place on the record its reasons for arriving at the final

sentencing decision, identify the mitigating and enhancement factors found,

state the specific facts supporting each enhancement factor found, and

articulate how the mitigating and enhancement factors have been evaluated

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and balanced in determining the sentence. Tenn. Code Ann. § 40-35-210(f)

(1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

In conducting its de novo review, the appellate court must consider (1) the evidence,

if any, received at the trial and 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, (5) any mitigating or statutory enhancement factors,

(6) any statement that the defendant made on his own behalf, (7) the potential for

rehabilitation or treatment, and (8) any statistical information provided by the Administrative

Office of the Courts as to sentencing practices forsimilar offenses in Tennessee. Tenn. Code

Ann. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d

229, 236-37 (Tenn.1986).

The Defendant was eligible for probation because the “sentence actually imposed

upon [him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(b). The Defendant

was convicted of a Class D felony but was not presumed to be a favorable candidate for

alternative sentencing because he was classified as a Range II, multiple offender. Tenn.

Code Ann. § 40-35-102(6). No criminal defendant is automatically entitled to probation as

a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant must

establish his suitability for alternative sentencing. Tenn. Code Ann. § 40-35-303(b). In

determining a defendant’s suitability for alternative sentencing, the trial court should

consider whether (1) confinement is needed to protect society by restraining a defendant who

has a long history of criminal conduct, (2) confinement is needed to avoid depreciating the

seriousness of the offense or confinement is particularly suited to provide an effective

deterrence to people likely to commit similar offenses, or (3) less restrictive measures than

confinement have frequently or recently been applied unsuccessfully to the defendant.

Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann. § 40-35-103(1)(A)-(C)). A trial court

should also consider a defendant’s potential or lack of potential for rehabilitation when

determining if an alternative sentence would be appropriate. Tenn. Code. Ann. § 40-35-

103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

The Defendant is mistaken in his assertion that the trial court failed to “articulate due

consideration for whether a sentence of confinement was deserved under the circumstances.”

The trial court denied alternative sentencing on the basis of the Defendant’s significant

criminal history, the fact that the Defendant had failed to comply with the conditions of

alternative sentencing in the past, and the fact that less restrictive measures have been

unsuccessfully applied to the Defendant. The evidence at trial showed that the Defendant

committed this offense with the belief that he could get away with it. Additionally, in

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determining the length of the Defendant’s sentence, the trial court gave little weight to the

mitigating factor that no one was harmed by the Defendant’s actions. While the Defendant

testified at the sentencing hearing that he would comply with the conditions of an alternative

sentence, he already had two alternative sentences revoked and testified that he is “not

always honest.” Accordingly, we conclude that the trial court did not err in denying the

Defendant alternative sentencing.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of the

trial court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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