State v. Leon Woodlee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED NOVEMB ER SESSION, 1997 February 24, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9611-CC-00465 ) Appellee, ) ) ) WARREN COUNTY VS. ) ) HON. CHARLES D. HASTON LEON WOODLEE, ) JUDGE ) Appe llant. ) (Theft)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

BERNARD K. SMITH JOHN KNOX WALKUP P.O. Box 490 Attorney General and Reporter McMinnville, TN 37110 LISA A. NAYLOR Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

WILLIAM M. LOCKE District Attorney General P.O. Box 410 McMinnville, TN 37110

OPINION FILED ________________________ CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING

DAVID H. WELLES, JUDGE

OPINION

The Defendant, Leon Woodlee, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted by a W arren Coun ty jury of one co unt of theft o f property valued between $1000 and $10,000, two counts of theft of property valued between $500 and $1000, one count of theft of property valued at $500 or less, one count of failing to keep required records, and three counts of possessing an engine or transmission from which the identification number had been removed or defaced.1 The trial court sentenced him as a Rang e I standa rd offend er to three years imprisonment for theft between $1000 and $10,000, two years for one count of theft between $500 and $1000, four years for the other count of theft between $500 and $1000, two years for theft less than $500, a nd thirty day s each for one co unt of failure to keep required records and three co unts of possessing an engine or transmission from which the identification number had been removed or defaced. At the sentencing hearing, the trial court ordered the the ft sentences to ru n consecu tive to each o ther, with all rem aining co unts to run concurrent with each other and concurrent with the theft sentences.2 In addition , the sente nces w ere orde red to run consecutive to a six-year sentence for which the Defendant was on probation at the time of the pres ent offens es.

In this appeal, the Defendant argues that the eviden ce is leg ally insufficient to support the theft convictions, that the jury instruction regarding the inference

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

2 The judgments contained in the record are inconsistent with the transcripts from both the trial and the s entenc ing hearin g in term s of the c onvicted offens es and the sente nces im posed . W e will add ress thes e inco nsis tenc ies w hen we c ons ider th e De fend ant’s third is sue on ap pea l.

-2-from possession of recently stolen prop erty is unconstitutional, and that the sentence imposed by the trial court constituted an abuse of discretion in several respects. After reviewing the record, we conclude that the Defendant’s issues provid e no b asis fo r the rev ersal o f his conviction s. We do, however, conclude that the Defendant was erroneously sentenced. Accordingly, we affirm the Defe ndan t’s convictions but remand this case to the trial court for resentencing.

W e begin with a sum mary of the pertinent facts, which are not in serious dispute. The Defendant is an automobile mechanic and ope rates a garag e in Warren Coun ty, Tenn essee . Officer Ba rry Powe rs of the McMinnville Police Department was on a routine patrol during the early morning ho urs of Sund ay, November 14, 1993, when he noticed a black C hevrolet M onte Carlo parked on the premises of the Defendant’s garage. Powers became suspicious because the car did not have a visible license plate and a car fitting that description had recen tly been re ported s tolen. Po wers ap proach ed the vehicle on foot, shined his flashlight through the windows, and noticed that the steering column of the car had been tampered with in such a way as to raise his suspicions further. As a result, Powe rs che cked the veh icle identification numb er (“VIN”) with the National Crime Inform ation C enter ( “NCI C”) an d disco vered that Mic hael Viola had reported the Mo nte C arlo stolen from Murfreesboro, Tennessee on October 27, 1993.

Other officers soon arrived on the scene, and the Defendant was called to come to his garage. Once there, the Defendant was asked about the Mon te Carlo. The Defendant stated that the car appeared on his lot on Saturday morning, the previous day. He assumed someone had dropped it off and opened

-3-the car doors and trunk to see if the owner had left a note detailing what needed to be done to the car. When he could not find a note, he closed and locked the doors and trunk. No one came to the garage on Saturday to inform him about what neede d to be do ne to the c ar. At the co nclusion of the work day, the Defendant left the car as it was. He was not suspicious of these circumstances because it was fa irly com mon for individ uals to leave their ve hicles for repa ir while he was not at his garage and come back later to tell him what needed to be done.

Given that the Monte Carlo was listed as a stolen vehicle, officers asked the Defenda nt if there was anything else on the premises which had appeared under mysterious circumstances. The Defendant pointed out a late-model Chevrolet engine which was on the ground next to the garage. He state d that a man had come by his garage a few days earlier in a truck that was smoking very badly. He asked the Defendant to put in a new engine which he would supp ly. The Defendant assumed that the engine sitting on the ground next to the garage was an engine which the man in the smoking truck had dropped off. The Defendant did not know the man in the tru ck no r could he remember his name.

On the ground near the engine was a transmission. According to Officer John Morgan, the Defendant initially gave conflicting statements regarding the origin of the transmission. The Defendant later stated that the man in the smoking truck had express ed a de sire to pay for the installation of the engine by giving the Defe ndant a transm ission. T he Defend ant as sum ed tha t this transmission had been dropped off by the man in the truck. Officers were able to determine from the engine and transmission serial numbers that the parts had

-4-come from a 1989 Chevrolet Blazer which Charles Park reported stolen on November 6, 1993.

Officers also discovered that the serial number from an engine in a truck on the premises had been ground off. The Defendant identified the truck as belonging to his son and stated that he had recently installed the engine. When asked about the origin of the engine, the Defendant replied that he could not remember because he had had the engine for more than a ye ar. Officers asked him if he had a receipt or o ther reco rd with inform ation abo ut the eng ine. The Defendant replied that he did not have a receipt because he had had the engine for so long and that he did not keep records of engine serial numbers or information of that type.

Officers confiscated the stolen Monte Carlo, the stolen engine and transmission, and the truck with the engine lacking a serial number. Law enforcement officials later de cided to run a dvertis eme nts in the newspaper and on radio stations asking anyone who had recently purchased an engine or transmission from the Defen dant to ha ve the pa rts check ed by po lice. In response to these advertisements, numerous individuals brought vehicles to be checked. Of those individuals, police found four whose vehicles c ontaine d parts identified as having been stolen or whose serial numbers had been ground. Those individuals, Jeremy Winfre y, Ronald Wilmore, Jeremy Campbell, and Randy W a namaker, had each purchased the parts in question from the Defen dant.

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On January 14, 1994, the Warren County grand jury returned a four-count indictment against the Defendant based on the November 14, 1993, search of the Defendant’s garage and discover y of stolen o r deface d parts. That ind ictmen t, number 6736, is summarized in the following table:

COUNT OFFENSE CODE PROPERTY AT ORIGINAL DATE AND SECTION ISSUE OWNER PLACE OF THEFT

1 theft >$1000 39-14-103; 1986 Chevy Monte Michael Viola 10/27/93; 39-14-105(3) Carlo Murfreesboro, Tennessee

2 theft >$1000 39-14-103; 1989 Chevy engine Charles Park 11/6/93; 39-14-105(3) and transmission Chattanooga, Tennessee

3 failure to keep 55-5-108(a)(2) 350 cubic inch unknown not applicable records Chevy engine from son’s truck

4 possession of 55-5-111 350 cubic inch unknown not applicable engine with serial Chevy engine from number removed son’s truck

On May 13, 1994, the Warren County grand jury returned a five-count indictment against the Defendant based on the vehicles inspected as a result of the newspaper and ra dio advertisem ents. T hat ind ictme nt, num ber 67 75, is summarized in the following table:

COUNT OFFENSE CODE PROPERTY PURCHASER ORIGINAL DATE AND SECTION AT ISSUE OWNER PLACE OF THEFT

1 theft >1000 39-14-103; 1991 Chevy Jeremy William 7/25/93 39-14-105(3) engine Winfrey Gaskin Norcross, Georgia

2 theft >500 39-14-103; 1988 Ford Ronald Clarence 2/11/93; 39-14-105(2) engine and Wilmore Masters Duluth, transmission Georgia

3 theft >500 39-14-103; 1991 Chevy Jeremy Steve 10/27/92; 39-14-105(2) transmission Campbell Bennett Chattanooga, Tennessee

4 possession of 55-5-111 350 cubic Jeremy unknown not applicable engine with inch Chevy Campbell serial number engine removed

5 possession of 55-5-111 350 cubic Randy unknown not applicable engine with inch Chevy Wanamaker serial number engine removed

-6-Upon the State’s motion, the two indictments were consolidated for trial. The Defendant was tried from March 28 to March 30, 1995.

At trial, the Defe ndant d id not dispute that the property alleged to have been stolen wa s in fact stole n. In add ition, he did n ot dispute that the pa rts alleged to lack serial numbers did not in fact have serial numbers. In short, the Defendant freely admitted that the stolen or defaced property was discovered on his business prem ises an d that h e had installe d stole n or de faced prope rty in some of his clients’ vehicles. His defense focused instead upon his mental state. His chief contention at trial was that he did not knowing ly possess stolen or defaced pro perty.

In support of that defense, the Defendant testified that although the black Monte Carlo (indictment #6736, count 1) appeared at his garage without an explanation, lacked a license plate, and contained a steering column which had been tampered with, he did not know that it was stolen. He stated that it was fairly comm on for individuals to leave vehicles for repair without his knowledge and return later to explain wh at needed to be done to the vehicles. W ith regard to the 1989 C hevy engine a nd transm ission stolen from Charles Pa rk (indictment #6736, count 2) , the Defe ndant te stified that he believed th at the parts were dropped off at his garage by the man in the smoking truck, as he had told Officer Morgan on November 14, 1993. The Defendant was unaware that they were stolen. Moreover, the Defendant offered the testimony of Shirley Jones, who stated that he had overheard part of a conversation between the Defendant and a man in a smoking truck a few days before November 14, 1993. Jones testified

-7-that the conversation concerned a transaction in which the Defendant was going to install an engine in the smoking truck in exchange for a transmission.

With regard to the stolen engines and transmissions which the Defendant installed in customers’ vehicles (indictment #6775, counts 1-3), he again claimed that he was not aware that the parts were stolen. He testified that he purchased engines and tra nsm issions from individu als as well as from dealers and salvage yards. The Defendant produced several receipts indicating that he had purchased engin es or transmissions from individuals, paying in cash. He admitted, however, that he could not link those specific receipts to the stolen parts installed in c ustom ers’ vehicle s, appare ntly because he failed to note the serial numbe rs of the parts involved o n the rec eipts. Furthermore, the Defendant stated that althou gh he a ttempte d to locate the individuals named on the receipts, he was un succes sful. The Defendant testified that he had never bought an engine or transmission that he knew was stolen and that he had paid the individu als named on the receipts a fair market value for the parts. In addition, the Defendant pointed out that he had reimbursed or purchased new parts for the custome rs in whose vehicles he had installed stolen or defaced engines or transmissions.

With regard to the charges concerning engines or transmissions with defaced serial numb ers (indictme nt #673 6, coun ts 3-4; indictm ent #67 75, cou nts 4-5), the Defendant testified that he simply did not look at serial n umb ers in the course of his business and that he was unaware that he was supposed to record these numbers as part of his record-keeping. In addition, the Defendant stated that other similar busin esses in his are a did not record serial numb ers either.

-8-Given that he did not loo k for se rial num bers, th e Def enda nt testifie d that h e did not knowingly possess engines or transmissions whose serial numbers had been defaced or removed.

The Defendant also offered proof that he frequently worked on vehicles for police officers. In so doing, he never attempted to prevent them from looking around his garage while they waited for their vehicles to be serviced. It is undisputed that the stolen or defaced property which is the subject of indictment number 6736 was in plain view on the Defendant’s business premises.

After cons idering the pro of pres ented at trial, the jury found the Defendant not guilty on co unt one of indictm ent num ber 673 6 (theft of the Monte Carlo). On counts two, three and four of indictment number 6736, however, the jury found him guilty as ch arged. W ith regard to indictment nu mber 67 75, the jury found him guilty as charged on counts two, four and five. On count one, however, charging the Defen dant with th eft of prope rty valued betwe en $1000 and $10,0 00, the jury found him guilty of the lesser grade of theft of property valued between $500 and $1000. Likewise, in count three, charging theft of prop erty valued between $500 and $1000, the jury found him guilty of the lesser grade of theft of property valued at $500 or less. The Defendant now appea ls to this Co urt, challe nging both h is convictions and his sentences.

In his first issue on appeal, the Defendant argues that the evidence was legally insufficient to suppo rt his theft con victions. W e note that the Defendant does not challenge the sufficiency of the evide nce for h is conviction s dealing with engines or transm issions lac king seria l numb ers. The Defen dant’s ap pellate

-9-challenge to his theft convictions, like his proof at trial, focuses on his m ental state. He contends that he received the stolen property at issue under bona fide circumstances, had no reason to believe that the property had been stolen, and was in fact unaware that the property had been stolen. As a result, he argues that he did not know ingly obtain or exercise control over the stolen property.

When an accused challenges the sufficiency of the convicting evidence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecution, any rational trier of fact could have found the essential eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses, the weight and va lue to b e given the evid ence , as we ll as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 62 3 (Ten n. Crim. App. 1987). Nor may this court reweigh or reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the stron gest legitim ate view of the evidenc e and a ll inference s therefro m. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493 S.W.2d at 476.

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A crime ma y be established by circumstantial evid ence a lone. State v. Tharpe, 726 S.W .2d 896 , 899-90 0 (Ten n. 1987 ). However, before an accused may be convicted of a criminal offense based only upon circumstantial evidence, the facts and circumstances “must be so strong and coge nt as to exclude e very other reaso nable hypothesis sa ve the guilt of the defen dant.” State v. Crawfo rd, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, a “web of guilt must be woven around the defendant from which he cannot escape and from which facts a nd circ ums tance s the ju ry could draw n o othe r reaso nable inference save the guilt of the defendant beyond a reaso nable d oubt.” Id. at 484, 613. The weight of the circumstantial evidence and whether every other hypothesis except that of the guilt of the defendant has been excluded by the evidence presented are matters for the jury to determ ine. State v. Tharpe, 726 S.W.2d 896 (Tenn. 1987); William s v. State, 520 S.W .2d 371 (Te nn. Crim. Ap p. 1974).

The offens e of the ft of prop erty is de fined a s follows: “A person comm its theft of property if, with intent to deprive the owner of property, the person know ingly obtains or exercise s con trol ove r the pro perty w ithout th e own er’s effective consent.” Tenn. Code Ann. § 39 -14-1 03. It is w ell-esta blishe d in Tennessee that the possession of recently stolen property gives rise to an inference that the posse ssor has stolen it or had knowled ge the prope rty was stolen and may, in light of surrounding circumstances, support a conviction for theft. See State v. Land, 681 S.W.2d 589, 591 (Tenn. Crim. App. 1984) (citation omitted); State v. Ham ilton, 628 S.W.2d 742, 746 (Tenn. Crim. App. 1981) (citations omitted). Moreover, “the inference arising from the proven fact of possession of recently stolen property is not destroyed by contradictory evidence, even the positive testimon y of witnesses . . . .” Bush v. S tate, 541 S.W.2d 391,

-11-395 (Tenn . 1976). The force of the inference does not vanish upon the offering of an explanation by the defendant, but rather “remains to be weighed by the jury against the evid ence offered by defe ndan t in expla nation of his possession of the recen tly stolen property.” Id.; see also, Land, 681 S.W.2d at 591. The jury was instructed on elements of the offense of theft as well as the permissible inference arising from the p ossession of recently stolen prop erty.

In the case sub judice, the Defendant does not dispute that the items of property which are the subject of the theft convictions were, in fact, recently stolen and were in the posses sion of the Defendant. At trial, the Defendant offered an explanation for his possession of the rec ently stolen prope rty, nam ely that he was unaware that the property had been stolen. Applying the reasoning of Bush, Hamilton and Land to the p resen t case , we be lieve it was the province of the jury to weigh the evidence presented by the State, including the inference arising from the De fenda nt’s possession of recently stolen property, against the explanation offered by the Defendant. The jury did so in this case, rejected the explana tion offered by the Defen dant, an d found him gu ilty on four of five th eft charges. From our review of the record, we conclude that the evidence presented, along with the inference which may properly be drawn from the possession of the re cently stolen property, is sufficie nt to su pport th e Def enda nt’s theft convictions beyond a reaso nable doub t. The Defe ndan t’s first issu e is therefore without m erit.

In his second issue on appeal, the Defendant argues that the jury instruction on the infe rence a rising from posse ssion of re cently stole n prope rty is unconstitutional. He contends that the inference instruction, in effect, requires

-12-him to explain his poss ession of rece ntly stolen property, thereb y shifting the burden of proof from the State to him. Thus, he argues that the inference instruction violates the principles set forth in Sandstrom v. Montana, 442 U.S. 510, 99 S.C t. 2450, 61 L.Ed .2d 39 (1979 ).

In the case at bar, the trial court instructed the jury on the inference arising from possession of recently stolen property. The instruction reads as follows:

Now, if you find beyond a reasonable doubt from the evidence that the property in question has been recently stolen and that soon thereafter the same property was discovered in the exclusive possession of the defendant, his possession, unless satisfactorily explained, is ordinarily a circumstance from which you may reaso nably draw an inference that the defendant had knowledge that the property had been stolen. However, you are not required to make this inference. It is for you, The Jury, to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits you to draw from the possession of recently stolen property. When evidence is offered that the defendant was in possession of recently stolen property, the defendant has the right to introduce evidence that he came into possession of that property lawfully, or possession may be satisfa ctorily explained throu gh other circum stances or other evidence independent of any evidence or testimony offered by the defend ant. In considering whether possession of recently stolen property has been s atisfactorily ex plained, yo u are rem inded tha t, in the exe rcise o f cons titutiona l rights, the accused need not take the witness s tand an d testify. The term “rec ently,” of cou rse, is a relative term, an d it has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the the ft, the more doubtful becomes the inference that may be drawn from an unexplained posse ssion. The correctness of the inference and the weight to be given any explanatio n that may be drawn by the evidence are matters that must be determined by you, The Jury, and you are not bound to accep t either. You must weigh all of the evidence presented as to the defendant’s alleged possession of the property in question and decide, in light of all the facts and circumstances present, whether any inference is warranted. You are reminded that the burden of proving the defendant’s guilt of the offense beyond a reasonable doubt remains on the State.

-13-This instruction conform s substa ntially to the one set forth in the Tennessee Pattern Jury Instruction s. See T.P.I. -- Crim. 42.20. Furthermore, after instructing the jury on the differences between direct and circumstantial evidence, the trial court charged the jury as follows:

I have charged you, ladies and g entlem en, co ncern ing ce rtain inferences that you, The Jury, may make regarding certain evidence in the case. Ho wever, The Jury is not required to make these inferences. It is the exclusive province of The Jury to determine whether the facts and circumstances shown by all the proof in the case warrant the inference which the law perm its you, The Jury, to draw. The inference may be rebutted by direct or by circumstantial evidence or both , wheth er it exists in the evid ence of the S tate or is offered by the defen dant. A lthoug h the d efend ant is not required by law to do so, when the defendant offers an explanation to rebut the inference raised, you should consider such explana tion, along with all the evidence, to determ ine not only the correctness of the inference but also the reasonableness of the defendant’s explanation. You are not bound to accept either the inference or the defen dant’s explana tion. The State must prove, beyond a reaso nable doubt, every element of the offense before the defendan t can be found guilty.

These remark s are the extent of the trial court’s instructions regarding the permissible infere nce arising from possession of recently stolen prop erty.

The Defendant argues that the instructions regard ing the inference are unconstitutional in that they impermissibly shift the burden of proof from the State to him. T his arg ume nt has been repea tedly re jected by Te nnes see c ourts in cases involving instructions similar to the on es given in the pres ent case . See Turner v. State, 541 S.W .2d 398 , 401-02 (Tenn . 1976); State v. Craig , 655 S.W.2d 186, 191 (T enn. C rim. App . 1983); Phipps v. State, 3 Tenn. Crim. App. 574, 581, 464 S.W.2d 341, 344-45 , (1970); State v. Jess ie F. H arris, C.C.A. No. 01C01-9509-CR-00303, Davidson County (Tenn. Crim. App., Nashville, July 26, 1996). We declin e to depart from the sound reasoning announced in these cases. T he De fendan t’s secon d issue is w ithout me rit.

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In his third issue, the De fenda nt argu es tha t the trial c ourt er red in sentencing him in se veral resp ects. In particular, he contends that the trial court erred by sen tencin g him outsid e the a pplica ble sta tutory ra nge fo r two of h is convictions, by enh ancin g his se ntenc es with in their ranges, by ordering several of his sentences to run conse cutively, and by failing to impo se an alternative sentence. For the reasons set forth below, we conclude that the trial court erred in senten cing the D efenda nt.

When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determ inations m ade by th e trial court a re correc t. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fa cts and c ircums tances ." State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, this court must consider: (a) the evidenc e, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sente ncing an d argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement that the defen dant m ade on his own b ehalf; and (g) the po tential or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

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If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may no t modify th e sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

The trial court conducted a sentencing hearing on April 28, 1995. The proof relied upon for senten cing wa s essen tially that set forth during the trial. The record does indicate that in September of 1986 , the Defe ndant w as cha rged with altering the vehicle identification num ber (“V IN”) of a pickup truck a nd se lling it to another individual. The Defendant was granted pretrial diversion on those charges and successfully completed his period of diversion. In addition, the Defendant pleaded guilty in January of 1989 to two counts of concealing stolen property over the va lue of $20 0. The D efenda nt was sentenc ed as a Rang e I, standard offender to concurrent terms of six years imprisonment. After serving three months incarceration, the Defendant was placed on probation for the remainder of his six-year sentence. He was on probation at the time of the present offenses. According to his probation officer, the Defendant fully complied with the terms of his probation until the commission of the present offenses.

At the conclusion of the hearing, the trial court found four enhancement factors applicable: 1) That the Defendant had a previous history of criminal convictions or beh avior in a ddition to that n eces sary to estab lish the range; 2) that the offenses involved more than one victim; 3) that the Defendant had a previous history of unwillingness to comply with the conditions of a sentence

-16-involving release in the community; and, 4) that the Defendant was on probation from a prior felony conviction at the time of the commission of the offenses. Tenn. C ode Ann . § 40-35-114 (1), (3), (8), (13)(C).

The Defendant suggested as mitigating factors that he suffered from a heart condition, that he had served in the military, that he had shown remorse over the inc idents, that he had made restitution to his customers, and that because of his debts and sole o wners hip of th e gara ge, inc arcera tion wo uld cause financial ruin. The trial court found one mitigating factor applicable, that the Defen dant’s co nduct n either caused nor threatene d serious bod ily injury. Tenn. Code Ann. § 4 0-35-11 3(1). The trial court found no substantial merit to the remain ing mitiga ting factors sugge sted by th e Defe ndant.

The trial court sentenced the Defendant as a Ran ge I, standard o ffender. Based on the applicable enhancing and mitigating factors, the trial judge set the sentences as follows:

INDICTMENT, CONVICTED OFFENSE APPLICABLE SENTENCE CONCURRENT/ COUNT OFFENSE CLASS RANGE IMPOSED CONSECUTIVE

#6736, count 2 theft >$1000 D felony 2-4 years 3 years consecutive

#6736, count 3 failure to keep C up to 30 days 30 days concurrent required records misdemeanor

#6736, count 4 possession of C up to 30 days 30 days concurrent engine with serial misdemeanor number removed

#6775, count 1 theft >$500 E felony 1-2 years 4 years consecutive #6775, count 2 theft >$500 E felony 1-2 years 2 years consecutive

#6775, count 3 theft <$500 A up to 11 months, 2 years consecutive misdemeanor 29 days

#6775, count 4 possession of C up to 30 days 30 days concurrent engine with serial misdemeanor number removed

#6775, count 5 possession of C up to 30 days 30 days concurrent engine with serial misdemeanor number removed

-17-In ordering the four theft sentences to run consecutively, the trial judge made references to his findings that the Defendant’s service as a “fence” for stolen autom obile parts allowed oth ers to remain in and profit from the business of stealing vehicles and that the Defen dant had failed to re spond to less severe sentences. The trial judg e did not, however, mention a particular statutory factor in support of consecutive sentences. Given the consec utive nature of the theft sentences, the effective sentence imposed for these offenses was eleven years.

The Defendant requested that the trial court impose some form of alternative sentence. T he trial court declined to do so, instead ordering straight confinem ent. In so doing, the trial court made reference to the Defendant’s prior convictions involving circ umsta nces similar to tho se in th e cas e at ba r and h is failure at past rehabilitation efforts, namely his prior service of pretrial diversion and probation.

The trial court also revoked the Defendant’s probation for his 1989 convictions for concealing stolen property and ordered him to serve the remainder of his six-year term for those o ffenses. Furtherm ore, the trial court ordered the sentences for the present offenses to run consecutive to the six-year sentence becau se the pr esent o ffenses w ere com mitted w hile the D efenda nt was on probation . Tenn. Co de Ann. § 4 0-35-115(b )(6).3

On appeal, the D efendant first conte nds that the trial court improperly sentenced him outside the applicable statutory range for two of his convictions,

3 In this appeal, the Defendant does not challenge the revocation of his probation or the order that the six-year term run consecutive to the sentences for his present offenses.

-18-theft of property valued between $500 and $1000 (indictment number 6775, count one) an d theft of pro perty valued at $500 or less (indictment number 6775, count three). We agree. It appears that the trial court inadvertently sentenced the Defendant according to the offenses for which he was indicted rather than the offenses for which he was convicted.

In indictment number 6775, the Defendant was charge d in coun t one with theft of prope rty valued b etween $1000 and $1 0,000. Tenn. Code Ann. § 39-14-105(3). In count three of that same indictment, he was charged with theft of property valued b etween $500 a nd $10 00. Tenn. Code A nn. § 39-14-1 05(2). The trial transcript clearly indicates, however, that the jury found the Defendant guilty of lesser grades of theft for those offenses. More specifically, the jury returned a verdict of guilty of theft of property valued between $500 and $1000 for count one an d guilty of the ft of property valued at $500 or less for count three. Tenn. Code A nn. § 39-14-1 05(1), (2). Thus, the Defendant was charged in count one with a class D felony but was convicted of a class E felony. Tenn. Code Ann. § 39-14-105(2), (3). Similarly, the Defendant was charged in count three with a class E felony but was convicted of a class A misdemeanor. Tenn. Code Ann. § 39-14-105(1), (2). The applicable sentencing ranges for a class E felony and a class A misdemeanor are one to two years and up to eleven months and twenty-nine days, respectively. Tenn. Code Ann. §§ 40-35-112(a)(5), 40-35-111(e)(1).

The trial court, how ever, sen tenced the Defe ndant to four years on count one and two years on count three. The judgments for counts one and three indicate that the trial court found the Defendant guilty of and sentenced according

-19-to the indicted offenses rather than the convicted offenses. Furthermore, the orders entering the guilty verdicts into the minutes of the trial court also reflect that the Defendant was found guilty as charged on counts one and three of indictment number 6775. W hat caused thes e errors is unclea r. It is clear, however, that these sentences are outside the applicable statutory sentencing range.

W e also note that the judgment for count three of indictment number 6736 is inconsistent with the transcript of the sentencing hearing. The judgment for that count (failure to keep required records) indicates that the thirty-day sentence is to be served consecutively. The transcript of the sentencing h earing, howe ver, clearly indicates that the trial court stated that “Counts 4 and 5 of Case N o. F-6775, and Counts No. 3 and 4 of F-67 36 run con current with one another and concurrent with any sentence impo sed b y This Cour t.” The caus e of this inconsistency is u nclear.

Given the errors and inconsistencies outlined above, we conclude that we must reverse and set aside the Defendant’s sentences and remand this case for resentencing. We will briefly address the Defendant’s remaining allegations of sentencing errors to provide g uidanc e to the trial co urt upon reman d and to facilitate possible further appellate review.

The Defendant contends that the trial court improperly applied the enhancement factor applicable to offenses involving more than one victim.4

4 The Defendant also contends that the trial court erred in applying the enhancement factor for offen ses wh ere the a mou nt of dam age to pr operty tak en from the victim was pa rticularly great. Tenn. Code A nn. § 40-35-114(6). From our review of the record, we do not believe that the trial court

-20-Tenn. Code A nn. § 40-35-1 14(3). He argues that this enhancement factor is not applic able because he was convicted of multiple offenses involvin g sepa rate victims for each offense. We agree that the record before u s does no t support the application of tha t enhancem ent factor.

The trial court made reference to the Defendant’s customers in whose vehicles he had insta lled stolen p arts as victim s of the the fts in addition to the original owners of the stolen parts. We do not believe that the custo mers q ualify as theft victim s for the purpo se of th is enh ance men t factor. S imply p ut, there is no proof that the Defendant knowingly obtained or exercised control over any property of the customers with the intent to deprive them of that property. Thus, because the Defendant was separately convicted for offenses against each victim, the enhancement factor for offenses involving more than one victim is not applicable. See State v. Williamson, 919 S.W .2d 69, 82 (T enn. Crim. A pp. 1995); State v. Clabo, 905 S.W .2d 197, 206 (Tenn. Crim . App. 1995 ).

The Defendant also challenges the trial court’s imposition of con secutive sentences for each of his theft conviction s. In reviewing this challen ge, we are hampered by the fact that the trial judge did not specify which statutory provision supported his imposition of consecutive sentences. Upon remand, if the trial judge again orders consecutive sentences, he should make specific findings of the statutory provision and facts supporting conse cutive sen tences . See Tenn. R. Crim. P. 32 (c)(1).

applied this factor. As we detailed above, the trial court specifically mentioned four factors. Section 40-35-114(6) was not among those four factors.

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W e do note that in imposing consecutive sentences for the theft offenses, the trial judge made reference to his finding that the Defendant’s service as a “fence” for stolen automob ile parts allowed othe rs to remain in and profit from the business of stealing vehicles. Presum ably the trial co urt was re ferring to fac ts supporting conse cutive sen tencing p ursuan t to Tennessee Code Annotated section 40-35-115(b)(1). That section provides that a court may order consecu tive sentences upon a finding that the “defendant is a professional criminal who has knowingly devoted such defendant’s life to criminal acts as a major source of livelihood.” From our review, however, we do not believe that the record before us supports consecutive sentencing pursuant to section 40-35-115(b)(1). The State offered no proof at trial or at sentencing that the Defe ndan t’s criminal acts we re a “major so urce of livelihood.” The record indica tes tha t the D efend ant wa s a po pular m echa nic and worked on hundreds of vehicles from the time he opened his garage in January of 1992 to the time of the offenses. As the Defendant points out, howe ver, mass media advertise ments to locate stolen parts installed by the Defendant yielded on ly four custo mers w ith stolen or defaced parts ou t of num erous ind ividuals ch ecked by the po lice. In addition, the record reveals that the D efendant is fifty-seven ye ars old and was gainfully employed prior to th e ope ning o f his garage. We do not believe these facts demonstrate that the Defendant’s criminal acts were a major source of livelihood. As a result, we conclude that the record before us do es not supp ort consecutive sentencing for the Defendant as a “professional criminal” pursuant to section 40-35-1 15(b)(1) . See State v. Linda Culver, C.C.A. No. 01C01-9503-CC-000 57, Stewart C ounty (Ten n. Crim. App ., Nashville, Nov. 30, 19 95).

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Finally, the Defendant challenges the trial court’s imposition of a sentence of straight confinement rather than some type of alternative sentence. The record indicates that the trial court ordered straig ht confinem ent without extens ive comment on the Defendant’s request for an alternative sentence. The trial judge did make reference to the Defendant’s prior convictions involving circumstances similar to those in the case at bar and his failure at past rehabilitative efforts, namely his prior service of pretrial diversion and probation.

Of course, a defendant who “is an especially mitigated or standard offender convicted of a Clas s C, D, o r E felony is p resum ed to be a favorab le candid ate for alternative sentencing option s in the ab sence of eviden ce to the c ontrary.” Tenn. Code A nn. § 40-35-1 02(6). Our sentencing law also provides that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of pa st efforts at re habilitation, s hall be give n first priority regarding sentences involving incarceration.” Tenn. Code A nn. § 40-35-1 02(5). Thus, a defenda nt sentenced to eight years or less who is not an offender for whom incarc eration is a priority is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all offend ers who meet th e criteria are entitled to such relief; rather, it requires that sente ncing iss ues be determ ined by th e facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 19 87).

Additionally, the principles of sentencing reflect that the sentence shou ld be no greater than that deserved for the offense committed and should be the

-23-least severe measure necessary to achieve the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should also consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in determining the sentence alternative. Tenn. C ode Ann . § 40-35-103 (5).

When imposing a sentence of total con fineme nt, our Criminal Sentencing Reform Act ma ndates the trial cour t to base its decision on the considerations set forth in Tennessee Code Annotated section 40-35-103. These considerations which militate against alternative sentencing include: the need to protect so ciety by restrain ing a d efend ant ha ving a lo ng his tory of criminal conduct, whether confinement is particu larly app ropria te to effe ctively deter o thers lik ely to co mm it a similar offense, the need to avoid depreciating the seriousness of the offense, and the need to order confinement in cases in which less restrictive measures have often or recen tly been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103 (1).

In the case sub judice, as the trial court noted, the Defendant was charged in 1986 w ith altering the VIN of a pickup truck a nd se lling it to ano ther ind ividual. The Defendant was granted pretrial diversion for those o ffenses. In January of 1989, he pleaded guilty to two counts of concealing stolen property value d in excess of $200 and was sentenced to concurrent terms of six years. After serving three months, he was placed on probation for the remainder of his term. He was indicted on the present charg es in Janu ary an d May of 199 4. Give n this history of criminal cond uct and the failure o f less restrictive measures, we cannot conclude that the trial judge abused his discretion by ordering straight confinem ent. See Tenn. C ode Ann . § 40-35-103 (1)(A), -103(1)(C ).

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W e do po int out, h owev er, that u pon re man d the tria l judge should consider the Defendant’s eligibility for an alternative sentence and the princip les set forth in Tenn essee Code Annota ted section 40-35-103. In setting the manner of service of the sentences, the trial judge should make reference to the relevant statutory p rovisions a nd the sp ecific facts s upportin g his dec ision.

For the reas ons se t forth in the d iscussio n above , we con clude tha t the Defe ndan t’s issues on appeal provide no basis for the reversal of his convictions. W e do, however, believe that the trial court erred in sentencing the Defendant. Acco rdingly, we affirm the Defendant’s convictions but remand this case for resentencing consistent with the principles set forth in this opinion.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

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