# FILED
March 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF C RIMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9702-CR-00065 Appellee, ) ) Shelby County V. ) ) Honorable Chris Cra ft, Judge LARRY TOR RES, ) ) (Unlawful Possession of Over 10 Pounds Appellant. ) of Marijuana with Intent to Sell)

FOR THE APPE LLANT: FOR THE APPELLEE: A C Wharton, Jr. John Knox Walkup Shelby County Public

Defender Attorney General & Reporter Walker Gwinn Janis L. Turner Assistant Public Defender Counsel for the State Criminal Justice Div

ision William C. Moore, Jr. 450 James Robertson Parkwa y Assistant Public Defender Nashville, TN 37243-0493 201 Poplar Avenue, Suite 201 Memphis, TN 38103 William L. Gibbons (At Trial) District Attorney General John Campbell Assistant District A

ttorney General Jerry R. Kitchen Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- Larry Torres, the appell ant, pled guilty in the Shelby County Cri minal Court to the unlawful posses sion of over ten pounds of marijuan a with intent to sell. He agreed to a three-year sentence. The trial court denied Mr. Torres’ petition for a suspended sentence. Appellan t appeals, arguing that the trial court should have imposed a sentence of s plit confinement or probation. We affirm.
The appellant is a resident of Cor pus Christi, Texas. H e is forty-three years old. In October of 1995, the appellant mention ed to an acquaintance named “Henry” that he needed money. Henry told the appell ant about a plan to transport approximately ninety pounds of marijuana from Dal las to Memphis. The appellant testified that Henry arranged all the detail s. The appellant’s job was only to carry

a portion of the marijuana. He w as to earn $1500.
The appellant and Henry rode a Greyhound bus from Dallas to Memphis. Upon arrival, a police dog trained to detect illegal substances alerted the police to the appellant’s carry -on bag. The appellant fled on foot. H e was caught and subdued with mace. One officer suffe red a minor injury. The appellant’s baggage claim ticket

matched a duffle bag that also contained marijuana. The appellant’s bags contained a total of approximately fift y seven and one-half pounds of marijuana. Henry escaped on foot. His bag contain ed approximately thirty seven pounds of mari juana.
When an appellant cha llenges the manner of service of a sentence, this court reviews the evidence de novo with a presumption that the determinations of the trial court are corr ect. Tenn. Code Ann. § 40-35-401(d) (1990). The presumption of correctness is conditioned upon an affirmative sho wing that the trial court considered the sentencing principl es and all relevant facts a nd-3- circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Our review consists of an analysis of the evidence at the sentencing hearing, the presentence report, the prin ciples of sentencing, the ar guments of counsel, the nature and characteristics of the offen se, mitigating and enhancement factors, the defendant’s statements and the defendant’s po tential for rehabilitation o r treatment. Tenn Code Ann. §§ 40-35-102 (Supp. 1994), -103(1990), -21 0 (Supp. 1992); Ashby , 823 S.W.2d at 169.
When deciding a defen dant’s suitability for probation, the trial court should consider the defendant’s crimin al record, social hist ory, present physic

al and mental condition, the nature and circumstances of the offense, the deterrent effect on others, and the defendant’s potential for rehabilitation. Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). A sentence of confinement should be based upon the following considerations: (1) confinement is necessa ry to protect society by restr

aining a defendant who has a l ong history of criminal conduct; (2) confinement is necessary to av oid depreciating the ser iousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit simi lar offenses; or (3) measures l ess restrictive th an confinement has been frequently or recently been applied unsu ccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1) (A) - (C) (1990).
At the hearing on his petition, the appellant testified that he has been employed on and off in the constructi on industry for about five y ears. He holds an associate’s degree from a j unior college. At the ti me of his arrest, he was working on a bachelor

’s degree in physic

al education. In 1987, the appell ant volunteered to serve i n the Army. He receiv ed an honorable discharge after four and one-half years of servi ce.-4- The appellant testified that he had nev er transported drugs before the present offense, and he was forced to do so because he was unable to g et construction jobs and his b ills were mounting. He testified that he did not kno w who gave Henry

the marijuana or to whom it was to be deliver ed. The appellant testified that he and Henry r ode a bus to Dallas wher e they checked into a motel. Henry took their bags and filled them with marijuana while the appellant waited in the room. The appellant testified that when they arriv

ed in Memphis, he and Henry were going to check into a motel. He was going to wait in the room while Henry delivered th e drugs and picked up the money

.
The presentence report indicates that the appellant was arr ested for possession of marijuana in 1985, 1992, and 1994. The appellant’s only conviction was for mi sdemeanor possession of marijuana i n 1985. He was sentenced to six months probat ion. The 1992 arrest was for possession of approximately nine and one half pounds of marijuana. The appellant tes tified that he had smoked marijuana whi le out on bond for the present offense.
Since his arrest, the appellant traveled from Corpus Christi to Memphis several times for court dates. He admitted his gui lt and expressed remorse for his offense.
The trial court denied the appellant’s petition for a susp ended sentence based on the enormity of the offense, the appel lant’s prior criminal activity involving drugs, the failure of rehabilitati ve efforts in the past, and the deter rent effect that incarceration woul d have on the people who w ere to receive the marijuana in Memphis. The cour t noted that the appellant had associated himself with an operation to bring over ninety pounds of marijuana to Memphis. The trial court said that, w hile he could not consider the 1992 charge of-5- possession of nine and one-half poun ds of marijuana as a conviction, he could consider it as part of the appel lant’s social history

.
On appeal, the appellant emphasizes that his criminal record consists on ly of a misdemeanor conviction of marijuana and that the present offense is nonviolent. He argues that his trips from Texas to Memphis for court appearances indicate that he will follow the requirements for release into the community . The appellant asks us to modify hi s sentence to ninety day s incarceration follow

ed by probation. The state essentiall y relies upon the factors articulated by the court to support the de nial of alterna tive sentencing.
The appellant is presumed, absent ev idence to the contrary, t o be a favorable candidate for alternat ive sentencing options . Tenn. Code Ann. § 40-35-102(5) & (6) (Supp. 1995). At the sentencing hear ing, the state had the burden of presenting evidence to rebut this presumption. T he trial court implicitly held that the state had fulfilled it s burden by denying a lternative sentencing . The trial court considered the sentencing principl es and facts; therefore, we rev iew its findings with a presumpti on of correctness, unless the ev idence preponderates otherwise.

We affirm the judgment of the trial court. Incarceration is the least severe measure necessary to achi eve the purposes for whi ch the sentence is imposed. The evidence in the record s upports the court’s finding that incarceration wa

s necessary to avoid depr eciating the enormity or seriousness of the offense. The appellant affiliated himself with a conspiracy or opera tion to transport over ninety pounds of marijuana across state lines from T exas to Tennessee. The court also properly considered the appellant’s arrest record as part of the appellan t’s overall social his

tory. Despite the port rayal of the appellant as a neoph yte in the-6- drug trade, the appellant’s arrest record strong ly suggests a more familiar relation ship with d rugs. Fina lly, the co urt prope rly conside red that rehabili tative measures had been unsuccessful in th e past. The appellant’s lack o f potential for rehabilitation is als

o supported by the appellant’ s use of marijuana while on bond for the present offense. There is no evidence that incarceration would have a deterrent effect as requ ired for reliance on this fact or. See State v. Ashby , 823 S.W.2d 166, 170 (Tenn. 1991).
The judgment of the trial court i s affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-7- _____________________________ DAVID G. HAYES, Jud ge

_____________________________ JOE G. RILEY, Judge