# FILED
June 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9806-CC- 0 027 5 ) vs. ) Marion County ) CALVIN D. HAVNER, ) Hon. Thomas A. Graham, Judg e ) Appellant. ) (Theft)

FOR THE APPE LLANT: FOR THE APPELLEE: PAUL D. CROSS PAUL G. SUMM ERS 1020 West Main Street Attorney General & Reporter P.O. Box 99 Monteagle, TN 37356 CLI NTO N J. MOR GAN Assistant Attorney Gener al 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 JAMES MICHA

EL TAYLOR District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321 STEVEN H. STRAIN Assistant District A

ttorney P.O. Box 130 Jasper, TN 37347-0130

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE

OPINION1 Tenn. Code Ann. §§ 39-14-103, -105(3) (1997). 2 The defendant , Calvin D. Ha vner, appeals fr

om his co nvicti on for th eft of pr opert y over $1000 but less than $10,000, 1 a Class D felony, in th e Marion C ounty Circuit Court. The trial court imposed a sentence of two years and six months with the defend ant serving e leven months and 29 days in the local jail sub ject to work release privileges and the remainder on probation. In this dir ec t appeal, the defendant

raises two issues: (1) whether the trial court erred in giving
a “missing witness

” jury instructi on and in prohibiting the defendant from testifying that he was afraid of the missing witness, and (2) w

hether the trial court properly sentenced the defendant by not granting straight probatio n or com munity corrections. After a review of the record , the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

The state presented the followi ng proof at trial. Robert Bynu m testif ied that he owns an d operates a golf course in Al abama. On October 25, 1996, he discovered that several items had been stolen from his golf course, includ ing two fourwheelers. Mr. Bynum followed the visi bl e tracks leading away from the golf
course. These tracks l ed through woods and fields to the defendant’s f ather’s house, approximately tw o miles behind the golf course in Marion Coun ty , Tennessee. The four wheeler was a 1991 m odel he had purchased for $5500 to $5 600. He use s the four wheelers to travel across the golf course carrying tools because golf cart s are too s low.

Officer Ken Tuders of the Marion County She riff’s Department t estified that he encountered the defendant near his r esidence a few days after the four wheelers were stolen. The officer asked the defendant if he had a four w heeler and if he could examine

it. The defendant rode in the patrol car with the officer to the3

defendant’s home. When they arrived, the four wheeler was in the defendant’s front yard and the defendant possessed the key. The o fficer checked the vehicle identification number and was informed that a f our wheeler with that number had been stolen from Jackson County, Alabama a few days earlier. The defendant told the officer that he bought the four wheeler from Mike through the Swap and Shop radio program. The defendant’s wife told the officer it was MichaelKnight who sold them the four wheeler. The defendant never showed the officer a bill of sale or title to the four wheeler.

The defense presented the following pro of at trial. The defendant testified that in 1996 he l ived in Sweetens Cove on Gour dneck Road and worked for High Standard Pad. Before pur chasing a home there, he liv ed behind h i s parents’ home. In late 1995 there was a fire at his pa rents ’ home in which the defendant and his family lost everything. He was insuredand he received money to replace his family’s personal property. His children from a pre vious marri age wanted a four wheeler to be purchased with some of the ins urance proceeds. On Wednesday or Thursday night prior to

his arrest, the defendant contact ed the Swap and Shop radio program wher e items can be purchased and sold. He receiveda phone call from an individual interested in selling the defendant a four wheeler. The defendant purchased a four wheeler for $1200 from a man he la ter discovered was Mike Godsby. Mr. Godsby gave the defendant a bill of sale for the four wheele r which the defendant lost or mi splaced.

The defendant and his family rode the four wheeler for three or four days all around their home. The defe ndant’s testimony regarding Officer Tuders’ invol vemen t was substantially similar to Officer Tuders’ t estimony. However, the defendant tes tified that he was locked in the back seat of the patrol car as the officer checked the vehicle identif ication n umber, a nd he was un able to re trieve the4

bill of sale b ecause t he offi cer would n ot allow hi m to leave the patr ol car. The defendant did not know the four whee ler was stolen at t he time of purchase. He told the officer that Mike sold him the four wheeler, but he di d not know Mike’s last
name at the time

of arrest. Only recentl

y did he discover that the person was Mike Godsby. The defendant’s wife’s testimony was e ssent ially the same as the defendant’s testimony. She had seen a bill of sale for the four wheeler in their home. She testified that she did not k now it was stolen at

the time of purchase.

Grace Sullivan testified that she lived near the defendant and sa w him riding a four whe eler at le ast two times. Jeff Havner, the defendant’s uncle,testified that the defendant came to his house to see if he wanted to purchase the four wheeler or trade it for a smaller four wheeler

. Ernest King testified that he had seen
a four wheeler in the back of the defendant’s truck on two occasio ns a few da ys before the arrest. The defendant did not try to conceal the f our wheeler while itwas in the back of his truck.

On this evidence, the jur y found the defendant guilty of one count of theft of property over $1000 but less than $10,000.

I. First, the defendant challenges the tr ial court’s jury instruction as to
a missing witness an d the trial court’s prohibiting the defendantfrom testifying that he wa s afraid of the missing witness, Mike Godsby. For a missing witness jury instruction to be proper, three requirements must be met. The evidence must show “[1] the witness had knowl edge of mater ial facts , [2] that a relationship ex ists between the witness and the party that would naturally i ncline the witness to favor the party and [3] that the missing witness was available to the process of the Court forthe trial.” Delk v. State , 590 S.W.2d 435, 440 (Tenn . 19 79). These5

requirements

“are to be strictly

construed, particularl

y when the rights

of acriminal defendant may be affected.” State v. Francis , 669 S. W.2d 85, 89 (Tenn. 1984). Our supreme

court instructed trial judges to “make an informed decision as to the absent witness’ availabilit y to the process of the court, the w itness’ capability t

o elucidate the transaction at issue, a nd whether a relationshi p exists between the witness and the party that woul d naturally incline the witness to favor the party.” Id. T he purpo se of the missing witn ess jury ins truction is to allow a permissi ve inference t hat th e testimony of the missing witness would have been unfavorable t o the party failing to c all the material witne

ss. Id. at 88 (citing Graves v. Unite d States , 150 U.S. 118, 121, 14 S. Ct. 40, 41 (1893)).

The first r

equire ment of Delk

i s satisf ied in this case. The missi ng witness was Mike God sby, who all egedly sold the four wheeler to the defendant. The sale of the four wheeler is a materi al fact in determining w hether the defendant committed theft. Mr. Godsby possesses knowledge mat erial to this case regarding whether he sold the four w heeler to the defendant.

The second a nd thir

d requi rements

of Delk are more

diff icult t o ascertain fro m the recor d. Regarding the thir d requirement that the wi tness be available to the process of the court, there is no information in the record about the witness’ location. We cannot assum e that the witness would have been available to the process of the trial cour t. The second requirement, that a relationship exi sts between the witness and the party which would natural ly incline the wi tness to favor the party, is not satisfied by the facts of this case. The relationship between the defendant and the wit ness is bu ye r and seller. From this r elationship we cannot
assumethat the witness would naturallybe inclined to favor the defendant. In fact, it is more likely that the witness would deny selling stolenproperty

to protect himself from prosecution. See State v. Larry G. Hart , No. 02C01-9406-CC-00111,slip op.6

at 8 (Tenn. Cri m. App., Jackson, June 28, 1995 ). The trial court made no find ings regarding these two requirements. Accordingly, w e find that the trial court erred in giving the missi ng witness jury instruction.
Although the trial court erred i n instructing the jury regarding the missing witness, we apply a harmless error analy sis to the impr

oper inst ruction. Harmless error is an error which does not “affirmatively appear to have affected the result of the trial on the merits.” Tenn. R. Crim. P. 52(a). The missing witness jury instruction allows a permissive inference to be drawn, from the failure of a party to subpoena a missing witness or give reasonable ex planation for failure to do so, that the testimony would hav e been unfavorable to that party

. See State v. Wilson , 687 S.W.2d 720, 724 (Tenn. Crim. App. 1984).

From all theevidence adduced at trial, proof of the defen dant’s guilt
was substantial. The victim followed four wheeler tracks to the defenda nt’s father’s home. The defendant admitted that the four wheel er was in his front y ard and he possessed the key. The defendant could n o t produce any evidence that he purchased the four wheeler, such as a bill of sale or title to the four wheeler. From this evidence, the jury could logically infer that the defendant committed theft. Accordingly, w

e find the missing witnes s jury instruction

was harmless error

.

The defendant challenges the trial court’s exclusion of hi s testimony that he was afr aid of th e missing wi tness. Ap parently, the defendant wasattempting to explain the reason he had not subpoenaed the missing witness. A review of the transcript

of the trial reveals that the defendant testified he was “afraid of what[the missing witness] might

do to [his] fam ily” because he ha d “numerous th ings happen to [his] wife’s car and [his] t ruck.” The state objected to this testimony as irrelevant, and the court sustainedthe objection. The defendant’s assertion that this testimony7

should ha ve been all owed is correct, but fr om the transcript it seems that the testimony

was essentially allowed. The testimony was neve r stricken from the record, and no jury instruction to disregard the

statement was given or requested. This testimony was relev ant to the second prongof Delk regarding the relationship between the missing witness and the defendant and whether the missing witness would have been favorable to the defendant. By sustaining the obj ection, the trial court did not consider the impac t of the defendant’s testimony on w hether the missing witness jury i nstruction was appropr iate. The trial court err ed in not considering this testimony; howev er , we find this was har mless error. As stated previousl y, proof of the defendant’s guilt was subs ta ntial with out the p ermissive inference allowed by the missing witness j ury instruction.

II. Next, the defendant challenges the sentence i mposed by the trial court. The defendant contendsthat the court erred in finding enhancement factors and denying mitigating

factors, in weighing

the factors, and in denying probation or community corrections.

When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the

record with a presump tion that the determinations made by the trial court are cor rect. Tenn. Code Ann. §40-35-401(d) (1997). This presumption is “conditioned upon the affirm ative showing in the record that the trial court consid ered the sentencing principles

and all relevant facts and c ir cumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the se ntence is im p roper is upon the appellant.” Id . In the event the record fai ls to demonstrate the required consideration by the trial court, revie w of the sent ence is pu rely de novo

. Id . If appellate review reflects the trial court properly considered al l relevant factors and8

its findings of fact are adequately supported by the record,this court must affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (T enn. Crim. App. 1991).

In making its senten cing d e termination, the trial cour t, at the conclusion of the sentencing hearing, determines the r ange of sentence and then determines the specific sentence and the prop riety of sente ncing alternatives by considering (1) the evidence, if any, recei ved atthe trial and the sentencing hea ring, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) t he natur e and characteristics of the criminal conduct involved, (5) evidence and informatio n offered by the parties on the enhancement and mitigating factors, (6) any statements t he defendant wishes to make in the defendant’s behalf about sentencing, and (7) the potential for rehabilita tio n or treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35- 103(5) (1997); State v. Holland , 860 S.W.2d 53, 60 (T enn. Crim. App. 1993).

A defendant who “is an especial ly mitigated or standa rd offender convicted of a Class C, D, or E felony is presumed to be a favo rable candidatefor alternat ive sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. §40-35-102(6) (19 97). Thus, a defendant who meets the criteria of section 40-35-102(6) is pre sumed eligible for alternative sentencing unless sufficien t evidence rebuts the presumption. However, offenders who meet the criteria ar e not automatically entitled to such rel ief because sentencing issues should be determined by the facts and circumstances presented in each case. State v. Taylor, 744 S.W.2d 919, 92 2 (Tenn. Crim. App. 1987).

In determining whether to grant probation, the judg e must c onsider the nature and circ umstances of the offense, the defendant’s criminal record, his9

background and social history, hi s pre sent condition, including his physical and mental condition, the deterrent effect on o thercriminal activity, and the likelihood that probation is in the best interests o f both the public and the defendant. See State v. Bonestel , 871 S.W.2d 163, 16 9 (Tenn. Cr i m. App. 1993); Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). The defendant bear s the burden of establishingsuitabili ty fo r probation, even when the defendant is presumed to be eligible for probation. See Tenn. Code Ann. §§ 40-35-303(a)- (b) (1997); State v. Bingham , 910 S.W.2d 448, 45 5 (Tenn. Crim. App. 1995).

The record of the case at bar reflec ts that the trial court th o roughl y considered the relevant sentencing pri n ciples. Accordingly, its determination is entitled to the presumption of corr ectness.

In determining the sentence, the trial court found t hat the enhancement factor

of a prior criminal rec

ord applied because the defendant had
a prior theft conviction. See Tenn. Code Ann. § 40-35-114(1) (1997). Contrary to the defendant’s assertion that the tr ial court denied the mitigating factors the defendant presented, the trial court found two applicable mitigating factors. The t rial court found the defendant’s conduct neither caused nor threatened serious bodily injuryand the defendant assisted the autho rities in locating or recov ering property. See Tenn. Code Ann. § 40-35-113(1), (10) (1997). In weighing these factors, the trial court found the prior theft conviction far outweighed the mitigating factors. The trial court found confinement was necessary to

avoid depreciating the seriousness of the offense and because measu res less re s trictive have frequently or recently been applied unsuccessfully to this d efendant. See Tenn. Code Ann. § 40-35- 103(1)(B), (C) (1997). Therefore, the trial court enhanced the defendant’s sente nce by six months and order ed split confinement.10 The trial court’s findings are supported by the record . Althou gh the defendant was presumed to be elig ible for community cor rec tions, there was sufficientevidence to rebut this presumption. Additionally, the defenda nt has n ot carried the burden of establishing hi s suitability for total probation. The trial court found the defendant was not truthful during the sentencing he aring about his prior theft conviction. A lack of truthfulness is an indi cation o f a defendant’s potential for rehabilit ation. State v. Neeley , 678 S.W.2d 48, 49 (Tenn. 1984); State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 198 3); State v . Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson , 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); State v. Dowdy , 894 S.W.2d 301, 305-06 (Tenn. Crim. App. 1994 ). The trial judge is in the best position to assess a de fendant’s credibility and potential for rehabilitation. A defendan t’s potential for rehabilitation “should be considered in determining the sentence alternative o r length of a ter m to be impo sed.” Tenn. Code Ann. § 40-35-103(5) (1997). The trial court properly sentenced the defendant to a period of confinement.

In consideration of the foregoing and the record as a whole, we affirm the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ JOHN H. PEAY, JUDG E11

_______________________________ DAVID H. WELLES, JUDGE