# FILED

Au gust 12, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE APR IL 1997 SESSION

STA TE OF TENN ESSEE, ) ) NO. 03C01-9607- CC-00254 Appellee, ) ) HAWKINS COUNTY VS. ) ) Hon. James E. Beckner, Judge HOYT EDWARD CARROLL, ) ) (Manufacture of Mar ijuana and Appellant. ) P ossession of Drug Paraphernalia )

FOR THE APPELLA NT : FOR THE A PPELLEE : GR EG W. EI CH EL MAN JOHN KNOX WALKUP Distric t Public Defender Attorney Gen eral and Repor ter R. RUSSELL MATTOCK S CL IN TO N J . M OR GAN Assistant D istrict P ublic Defender Assistant Att orney Gener al 1609 CollegePark Dri ve, Box 11 450 James Roberts on Parkway Morristow n, TN 37813-1618 Nashvil le, TN 37243-0493 C. BERKELEY BELL, JR. Distric t Attorney General G. DOUGLA

S GODBEE Assistant

District Attorney G eneral Hawkins County Courthouse Rogersv ille, TN 37857 MICHELLE GREEN Assistant

Distric t Attorney

General Greene County Courthouse Greenevil le, TN 37743

OPINI ON FI LED:

AF FIRMED A

S MODIFIED

JOE G. RI LEY, JUDGE2 OPINION

The defendant, Hoyt E dward Car roll, was ind ict ed on one (1) co unt of the manufactu re of more than one-half ( 1⁄2) ounce but l ess than ten (10) pounds of marijuana, one (1) count of possession of dr ug paraphernal ia, and one (1) count of evading arr es t. A Haw kins County jury c onvicted hi m of the manufacture of marijuanaand possession of drug paraphernalia. The trial court sentenced him to two (2) yea rs i n the Tennessee Depar tment of Correcti on for the manufacture of marijuan a, and eleven (11 ) months and 29 day s in the county

jail for the possession of drug parapher nalia. The sentenc es were or dered t o run conc urre ntly. On appeal, he contends that the evidence was insuf ficient to sustain his convictions, his sentences are excessive, and the trial court err ed in denyi ng alt erna tive senten cing. We AF FIRM h is convi ctions, but M ODIFY hi s misdemeanor sentence.

FACTS

The state’s proof at trial showed that the Hawkins County Sherif f’s Departmenthad information that some marijuana was grow ing in a field near War Creek Road in Hawkins County. On July 26, 1995, four off icers with t he sheriff’s departmentbegan a survei llance operati on in that area. The officers searc hed the
area and found approxi mately six ty (60) mariju ana plants gr owing i n the field. Almost every

plant had agreen str ing attached s o that the plant was tied dow n. At the base of each plant was at least one green bott le containing a liquid substance which smel led like ammonia

. The officers then set upthei r video e quipment. Eventually t wo men, later determined to be the defendant and co-defendant, Rick Coy Smith, approached the plants. Officer

Gerald Gibson te stified that he saw the men obser ving a p lant and “picking around on it . . and one of them, at one point, eve n took the bottle . . . that1 Smith was ac quitted of the manufacture of marijuana and possession of dr ug paraphernalia. Howeve

r, the jur y f ound him g

uilty of possession of marijuana and evading arrest. 3 was sitt ing there and dashed something around, likehe was pour ing someth in g around in the roots.” One of the men pulled leaves off of the plant and put them in a white ba g. After several minutes passed , the officers came out from hiding and identified themselves. Defendant submitted t o the officers’ req uests, but his companion tried to run away

from the officers. One of the officers was able to stop Smi th before he left in his truck. Subs eque ntly, the men were arrested and s earched. Defendant had several green strings in his front pocket, and a mar ijuana leaf w as found between hi s shoe and sock. Th e white ba g contain ing m arijuana leaves was found after Smith dropped it in his attempt to evade arrest. The officers also searched Sm ith’s truck and found three bottles containing ammonia. Dete ctive Joel Hunt tes tified that w hen he arrived at the scene, he requested that the officers pull the pla nts. The leaves were stripped from the pla nts and those leaves, al ong wit h those in the w hite bag, were tested and found to be marijuana. He further testified th at ammonia is a fertilizer. Defendant tes tifi ed on hi s own behalf. He stated that he had been in the
area picking blackberri es when he noticed some pl ants wit h gre en str ingson them. He too k s ome strings off of one of the plants an d put the strings in his truck. He testified that he told Smit h that he had found some marijuana and show ed him the strings. Smith want ed to get some marijuana for his own us e, so defendant agreed to show hi m where the pl ants were. Defendant and Smith proceede d to the area w here he found the plan ts. Smith began colle cting the mar ijuana. Defendant c laimed t hat he w as merely looking at the plants when the off icers identified themse lves. The jury convicted defendant of th e manufactu re of marijuana and po ssession of drug parapher nalia. 1 The trial co urt sentenced hi m as a Range I , Standard Off end er, t o two (2) year s in the Tennessee Department of Correction for4

the manufacture of marijuana, a C lass E felony, and ele ven (11) mont hs and 29 days in the county jail for the possession of drug parap hernalia, a Class A misdemeanor.

SUFFICIENCY OF THE EVIDENCE

In his first ar

gument, defendantcontends that the evidence was insufficient to sustain the verdicts of guilt beyond a reasonable dou bt. He claims that there is
no evidence th at he did anyt hing more than examine aplant. Therefore, he arg ues that the evidence against hi m is merely circumstanti al and insufficient to sustain the jury’s verdict

. Greatweight

is given to the result reached by t he jury i n a criminal trial. A juryverdict accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn.1992). Q uestions concer ning the credibility of the witnesses, the weight

and value to be given the evidence as well as all factual issues rai sed by the evidence, a re resolved by the tri er o f fa ct, not this court. State v. Tuttle , 914 S

. W. 2d 926, 932 (Tenn. Cr im. App. 1995). On appeal, the sta te is entitl ed to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn ther

efrom. Bigbee , 885 S.W.2d at 803; Harris , 839 S.W.2d at 75; State v. Cabbage , 571 S.W .2d 832, 835 (Tenn . 1978). Moreover, a guilty

verdict removes the presumption of innocence which the defendant enjoyed at trial and raises a presumption of guil t on appeal. Stat e v. Grace , 493 S.W.2d 474, 476 ( Tenn. 1973). The defendant has the burden of overcoming this presumpti on of guilt. Id

. In th e pres ent case, defendant and Smi th were found i n a remote area
exam inin g a marijuana pl ant. They immediat ely began tending to the plant by pouring fertilizer on it and tying the plant. Defendant was carrying green strings like those that w ere used to tiethe plants dow n. Althou gh the evidence of hi s guilt i s circumstan tial in nature, circumstanti al5

evidence alon e may be su fficient to support a convicti on. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Butt rey , 756 S.W.2d 718, 721 (Tenn. Crim. App

. 1988). The ref ore, we find that the ev idence was sufficientfor a reasonable trier of fact to find defendant guilty

of both offenses. This is sue is w ithout merit.

SENTENCING

A. In his second and final assign ment of err or, defendant argues that his sentences are e xcess ive. He claim s tha t the trial cour t mis app lied two enhancement fac tors and d id no t give enough wei ght to the only mitigating factor. He further contendsthat th e tria l cou rt err ed in denyi ng som e fo rm of alte rnat ive sentencing. As a result , he claims that his sentences should be reduc ed. B. We first note that the trial j udge in announci ng the sen tence f or manufacturing marijuana impos ed a “determinate sentence of two (2) year s.” The trial judge further stated th at “probation and c omm unit y corre ctio ns an d alt erna tive sentencing should be denied. . .” Yet , the judgment i tself shows a two (2) year sentence to the Tennessee Dep artment of Correc tion wit h the fo llowing notation: “Split confinement 365 days in jail.” There is no ind ication of the len gth of probation after serving the 365 days. When there isa co nfl ict between the court minutes or judgment and the transcript , the trans crip t controls. State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Davis , 706 S.W .2d 96, 97 (Tenn. Crim . App. 198 5). Therefore, we assume th e impo sed s ente nce t o be t wo (2) year s in the Depar

tment of Correction. We also believe this t o be the sentence i ntended by the t rial court

. The judgment shal l be modified to del ete the reference to “Sp li t confinement 365 days in j ail.” C.6 This Court’s r

eview of the sentence imposed by the trial court is de novo with
a presumption of correctness . Tenn. Code Ann. § 40-35 -401(d). This presumption is conditioned upon an affirmative sho wing i n the rec ord that the trial judge considered the sentencing principles and all relevant fact s and circumstances. State v. Ashby , 823 S.W.2d 166, 1 6 9 (Tenn. 1991). The bur den is upon the appealing party

to show that t he sentence is i mproper. Tenn. CodeAnn. § 40-35- 401(d) Sentencing Commission Com ments. At the sentencing hearing, t he trial cour t found that two enhancement f actors applied: (1) the defendant had a previous

history of criminal c onvictions ; and (2) the d efendant was the l eader in the commi ssion of an offense involving two or more actors. Tenn. Code Ann. § 40-35-114( 1) and (2). In mitigation , the trial court found that defendant’s crimina l conduct neither caused nor thre atened serio us b odily injurybut gave it little or no wei ght. Tenn. Code Ann. § 40-35-113( 1). The trial court then sentenced d efendant to th e maximum sentence f or both offen ses. If no mitigating or enhancing factors fo r sentencing are present, Tenn. Code Ann. § 40-35-210(c) provi des that the presumptive senten ce shall be the mi nimum sentence within the applicable range. See Stat e v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim

. App. 1991). However, if such factors do exist, a trial court should start at the min imum se ntence , enhanc e the mi nim um sentence wi thin the rang e for aggravating factors and then reduce the sente nce withi n the range for the mitigati ng factors. Tenn. Code Ann. § 40- 35-210(e). N o p articul ar weight for each factor is prescribed by the stat ute, as the w eight gi ven to each factor is left to the disc retion of the trial court as lon g as its fin dings are s upported by the record. State v. Moss , 727 S.W .2d 229, 237 (Tenn . 1986); State v. S antiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40- 35-210 Sentencing Commission Comments. Defendant argues that the trial c ourt erroneous ly found th at he h ad a previous h istory of criminal conv ictions. Tenn. Code Ann. § 40-35- 114(1). Defendant has two ( 2) prior con victio ns for driv ing on a sus pended license, a convicti on for contempt of court, a conviction for d isor derly con duct and three ( 3)2 Defendant’s counsel in his brief ma

de a poig nant, poin ted, persuasive plea to this Court rel ating to

the stale ness of th ese prio r convictions. He w

rites: To put these

prior convictionsinto histor ical p ersp ective, appellant would once ag ain revi ew for th is Court the

facts. I n 1960, Dwight Da

vid Eisenhower

was still Pr

esident o f the United States. Hawaii had been admittedto St at eh oo d l es s t ha n a ye ar before. AU-2 spy plane piloted by Franc is Gary Powers was shot down over the Soviet Union creating political co nt ro ve rs y, and at the tender age of seve nteen, w hile sti ll a m in or , H oyt Carroll was arrested

for public intoxication. By 1965, John F. Kennedy had served three years of

his presidency, only

to be felled by a

n assassins bullet. Camelotwas over, andLy ndon Johnson

had won hi s own term

as presi dent. Martin Luther Ki ng marched on Montgomery , Alabama. “Westy’ s War” escalated when the new American ar my com mander in Vietnam, General William C. Westmoreland, requested and got the first installment of combat troops. Oh, and Hoyt Carroll was arrested and con victed of his second public intoxication charge. Three y ears later, in 1968, Walter C ronkite, commenting on the Tet Offensive, confided to his television audienc e thathe no longer believedthe Vietnam war was winnable. L yndon Johnson announced he would not seek another term as preside nt. In Tenness ee, Mar

tinLuther King was assa ssinated

in Memphis, and Hoyt Carroll was c onvicted for the third timein eight

ye ars of pu

blic intoxication. He was now twenty-five y ears old. Ho ytCarroll, who has ne ver in his life been charged or

convicted of a drug offense, never again was char ged or convicted of an alcohol related offe nse. Counsel for the Appe ll ant was four years old when last the Appellant was convicted of Public Drunkenness more than twenty-eight years ago . . . As interest

ing and accura te as this h

istorica l analy sis may

be, it unf ortu nate ly w as of only marginalbenefit

in our det erminati on as towhether the defendant had a “pre vious history of criminal convictions.” Tenn. Code Ann. § 40-35-114(1). We, nevertheless, some five y ears after defendant’s most recent conviction, com mend coun sel (whom we assume to be approximately 32 y

ears of age) for his zealous advoc acy. 7 convicti ons for public dr unkenness. Hi s most recent conviction was in 19 91, b ut manyof his convi ctions date back ov er twenty years pr ior to his sentencing on the presentcase. 2 The fact that defendant’s p rior reco rd consists of old misdemeanor convicti ons does not mean that this factor does not appl y. Tenn. Code Ann. § 40- 35-114(1) does not require the prior convicti ons to be recent conv ictions or felony convictions. See State v. M aurice Garner, C.C.A. No . 02C01-9508-C R-00223 (Tenn. Crim. App. fil ed May 19, 19 97, at Jackson) ; State v. William D. Pew itt , C.C.A. No. 01C01-9411-C C-0037 5 (Tenn. Crim. App. filed Augus t 22, 1996, at Nashville); State v. Jer

ome Dixon , C.C .A. No . 02C01 -9508- CC-0 0247 (Te nn. Cr im. App. filed July

26, 1996, at Jack

son). The tr ial court properly applied this enhancement f actor. Defendant also contends t hat the trial court erre d in applyi ng as an enhancement factor that he was the leader i n the commissi on of an off ense8

involv ing two or more actor s. Te n n. Code Ann. § 40- 35-114(2). Al though Smith
was acquitted of manufactur ing marij uana, he was conv icted ofthe lesser offense of sim ple poss essi on of m arijuana. The jury o bviously concluded the defendant
was the actual grower, and Smith was there to assist defendant. This enhancement factor was pr

operly appl ied. Defendant further complain s of the trial court’s finding that th e only miti gating factor applicable w

as entitled to little o r no weig ht. As a miti gating factor , the trial court considered that defendant’s conduct n eith er caused nor threatened seri ous bodily i njury. Tenn. Code Ann. § 40-35 -113(1). H owever , the trial court gave the mitigating factor little, if any, weight. In a case involving drugs, this mitigatingfactor is generally

entitled to l ittle we ight. Se e State v. Marlos Ma nn , C.C.A. No

. 02C01-9504-CC -00101 (Tenn. Crim

. App. filed Oct. 18, 199 5, at Jackson). The trial court did not abuse i ts discreti on in giv ing this fact or little value. See State v. Moss , 727 S.W.2d at 237; State v. S antiago , 914 S.W.2d at 125. We conclude the two-year sentence for ma nufacturing marij uana was an appropriate sentence. However, fairness di ctates that themisdemeanor senten ce of eleven (11 ) months, 29 days be modified. Defendant will be eligibl e forrelease
on the t wo-ye ar felo ny sentence up on reaching his release eligibil ity date. Tenn. Code Ann. § 40-35-501( a)(3). Y et, it is c onceivable that defendant at that time would not be elig ible for relea se on the misdemeanor sentence. Tenn. Code Ann. § 40-35-302. The misd emeanor sentence is modified to six (6) months.

ALTERNA

TIVE SENTENCING

Under the Criminal Sentenci ng Re form Act of 198 9, trial judges are encouraged to use alternativesto incarceration. An especially mitigated or standard offenderconvicted of a Class C, D or E felony is presumed to

be a favorable candidate for alternative sentencing options in the a bsence of evidenc e to the contrary. Tenn. Code Ann. § 40-35 -102(6).9 In determining if incarceration is appr opriate, a tr ial court may consider the need to protect soc iety

by restr aining a defendant

having a long hist ory of cri minal conduct , the need to avo id depreciati ng the seri ousness of the offense, w hethe r confinement is partic ularly appropriate to effectively deter others l ikel y si mi lar to commi t simi lar offenses, and w hether less r estrictiv e measures have often or recentlybeen unsuccessfull y applied t o the defendant. Tenn. Code Ann. § 40-35- 103(1); see also State v. Ash by , 823 S.W.2d at 169; State v. M illsaps , 920 S.W.2d 267, 271 (Tenn. Crim. Ap p. 1995). A court may also consider the mitigating and enhancing fact ors set forth in Tenn. Code Ann. § 40-35 -113 and 114 as they are relevant to the § 40-35- 103 considerations. Tenn. Code Ann. § 40- 35-210(b)(5) ; Stat e v. Boston , 938 S.W.2d 435, 438 (Te nn. Cr im. App . 1996). Additi onally, a court should consider the defendant ’s potential or lack of potential for rehabilit ation when det e rm ining if an alte rnat ive sentence would be appr opriate. Tenn. C ode Ann. § 40-35-103(5) ; State v. Boston , 938 S.W.2d at 438. In d etermin ing whether to grant or deny probation, a trial court should consider the circumst ances of the offense, the defendant's criminal r

ecord, the defendant ’s social history and present condition, the need for deterrence, and the best interest of the de fendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); Stat e v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App

. 1995); State v. Black , 924 S.W .2d 912, 917 (Tenn . Crim. App. 1995). There is no mathemati cal equation to be utiliz ed in determini ng sentencing alternatives. Not only shoul d the sentence fit t he offense, but it shoul d fit the offenderas well. Tenn. Code Ann. § 40- 35-103(2); State v. B oggs , 932 S.W.2d 467 (Tenn. Crim. App. 199 6). Indeed, indi vidualiz ed punishment is the essence of alte rnat ive s entenc ing. State v. Do wdy , 894 S.W.2d 301, 305 (Tenn. Crim. App

. 1994). In summary, sentenc ing must be determined on a case-b y-case basis, tailoring each sentence to th at particul ar defendant based upon thefacts of that
case and the circumst ances of that defendant. State v. Moss , 727 S.W.2d at 235. In the present cas e, we find that the trial c ourt did not err in d enying10

alte rnat ive sentencing. Defendant was untruthful in his trial testimony

and did not accept responsibil ity for his actions. T he defendant's lack of cr edibility is an appropriate considerati on and reflects on a defendant's potentia l for rehabili tation. Stat e v. Chestnut , 643 S.W.2d 343, 353 (Tenn. Cr im. App. 1982). Also, as noted bythe trial court, incarceration is necessary to avoid depreciating the seriousn ess of the offense and to serve as a deterrent. See State v. Dy kes , 803 S.W.2d 250, 260 (Tenn. Crim. App. 1990). The trial cour t pro perl y deni ed al tera tive senten cing.

CONCLUSI ON

In conclusion, we find that t here is sufficien t evidence for a reasonable tr ier of fact to find defendant guilty of the manufacture of marij uana and possession of dr ug paraphernalia. Furthermore, th e sentences imposed b y the trial co urt ar e appropriate, except that the felony judg ment shall be modi fied to delete the reference to “Split confinement 365 days i n jail” and the misde meanor ju dgment shall be modified to reflec t a sentence of six

(6) months. Acco rdin gly, we affirm the judgment of the tr ial court, as modified.

JOE G. RILEY , JUDGE
CONCUR:

JERRY L. SMITH, JUD GE

CHRIS CR AFT, SPECIA L JUDGE