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State v. Dubois

Court of Criminal Appeals of Tennessee, Nashville

June 12, 2017


          Assigned on Briefs March 14, 2017

         Appeal from the Circuit Court for Bedford County No. 18176 & 18179 F. Lee Russell, Judge.

         In 2015, the Defendant, Kelly Renea Dubois, pleaded guilty to one count of theft of property, with the value of the property to be determined by the trial court, and to three counts of forgery, with the trial court to determine the length and manner of her sentence. At sentencing, the trial court ordered the Defendant to serve an effective sentence of nine years and six months in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court improperly sentenced her for a Class C felony theft because there was insufficient evidence to support the value determined, and that the trial court erred when it denied her request for an alternative sentence. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

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

          Donna Orr Hargrove, District Public Defender; Andrew Jackson Dearing, III and Michael J. Collins, Assistant District Public Defenders, Shelbyville, Tennessee, for the appellant, Kelly Renea Dubois.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Robert J. Carter, District Attorney General; Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.



         I. Facts and Procedural History

         This case arises from the Defendant's arrests for theft and forgery in case nos. 18176 and 18179, which were consolidated on appeal. The Defendant entered "open" guilty pleas to three counts of forgery in case no. 18179, and the State recited the following factual basis in support of the plea:

The victim in [case no. 18179] is Ms. Carol McCord. She lived [in Shelbyville], however she has been on an extended stay in the hospital. She . . . had granted power of attorney to a couple of ladies. One of those ladies came to the police department when she saw some checks had been written on the account, and she obviously knew she had not written the checks . . . and [the checks] purported to have [the victim's] signature on [them], and [the victim] was in the hospital, and in no way could have written them. The investigation revealed that the [D]efendant had passed these three checks; two at the Marathon Market in Unionville; and one at the Two Way Market, for various amounts.
The [D]efendant was interviewed and admitted to doing that. She claimed that she did it under the duress of another person.

         In case no. 18176, the Defendant entered an "open" plea to theft of property, with the trial court to determine the value of the theft, and the State recited the following factual basis for the plea:

[T]he facts are that the [D]efendant was an employee at Brad's Market and Deli, here in Shelbyville. The owner of [Brad's] began noticing that his deposits seemed to be less and less and less. He then audited his books, comparing the amount of the deposit to the store receipts for a given day, and noticed that there were discrepancies over a period of time that added up to almost $11, 000. I believe his estimate was $10, 940. And that actually didn't include some other thefts that he believed [had] occurred.
He has a store surveillance system. He looked at that, and it showed that on occasion the [D]efendant, while working, would take money from the store. . . . [A]pparently [the Defendant] would go in after hours, turn off the store alarm, and go into the office, where the deposit bag was and would take money from it.

         The trial court questioned the Defendant as to whether she agreed with the State's summary, to which she replied that she did, however, she disputed the amount of money stolen. The trial court announced that, by agreement of the parties, the issue of the value of the theft was reserved for determination by the trial court. The trial court noted that the Defendant had waived her right to have that determination made by a jury and thus it would make the factual determination before the sentencing hearing. Following the entry of the Defendant's guilty pleas, the trial court held a hearing during which the following evidence was presented: Dudley Braden Jones testified that he owned Brad's Market and Deli where the Defendant had previously worked. At some point during her employment, Mr. Jones noticed that money was missing and that his deposits were "short" of his earnings on a daily basis. Mr. Jones saw a trend that each day he was missing money in varying amounts. A spreadsheet of the business's daily financial ...

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