### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE MAY 2000 SESSION

STATE OF TENNESSEE v. CUR TIS R. SPARKS

Direct Appeal from the Circuit Court for Perry County

No. 536 Cornelia Clark, Judge

No. M1999-01330-CCA-R3-CD - Filed August 2, 2000

The defendant, Curtis R. Sparks, was convicted of sale of cocaine over .5 grams. The jury assessed

a fine of $2,000. The trial court imposed a Range I sentence of nin e years. In this a

ppeal of right, the defendant contends that the sentence is excessive and that the trial court should have granted an alternate, community-based sentence. Because the defendant was c learly untruthfu

l in much of his testimony and demonstrated little indication of rehab ilita tion, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Trial Cou

rt Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined.

Cynthia M. Fort (on appeal), Nashville, Tennessee, and Carthel L. Smith, Jr., (at trial), Lexington, Tennessee, for the appellant, Curtis R. Sparks.

Paul G. Summers, Attorney General& Reporter, Jennifer L. Bledsoe, Assistant Attorney Genera

l, and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On November 21, 1996, Twenty-First Judicial District Drug Task Force Agent s Joey Kimble and Bill Trusdale

worked in conjunction with their informant, Chris Smith, to purchase .6 grams of cocaine from the defendant. In preparation for the controlled buy, the agents provided Smith with five marked $20 bills. Smith, who wore a recording device with a transmitter so t hat the agen ts could monitor the transaction, purchased a rock of crack cocaine at

the defendant's

residence. Smith testified that he had known the defendant for years because the defendant worked at a busine

ss Smith's family

owned. Smith stated that when he saw Grip Vaughn at the front door of the residence owned by the defendant's mother and father, he asked V aughn to summ on the defendant onto the outside porch. Smith testified that the defendant instructed him "to go down the road and meet him." Smith traveled a short distance to a place near the defendant's residence, where the transaction was-2-

completed. Afterward, Smith returned to the supervising agents and provided them with theillegal drug. Later, the cocaine was determined to weigh .6 grams. At trial, the state played the audiotape of the transaction for the jury. Officers Kimble and Trusdale and informan t Smith each testified. Special Agent

Glenn Everett, a forensic scientist with the Tennessee Bure

au of Investigati

on Crime Laboratory in Nashville, identified the cocaine and determined its weight.

The defendant testified

in his own behalf. While he acknowledge

d that he had enga

ged in

a conversat ion with informant Sm ith on November 21,

1996, he claimed th

at the meeting was a t Andy "Grip" Vaughn's package store and that he directed Smith "to go somewhere else" to buy the cocaine. The defendant de scribed Smith as "

jitterin g and jumping" as if on drugs. He contended that nobody would "mess with Smitty 'cause Smitty stayed up on the hill and got in all this trouble and . . . was a snitch and everything." The defendant claimed that he had been deer hunting when he met Smith. The defendant denied that he was either a cocaine user or a cocaine dea ler.

Vaughn, who testified for the defense, recalled that the defendant was a

t his place of busin

ess
one day when Smith came by for a few minutes and then left. He was uncertain of the date, however. On cross-examination, he conceded that he also may ha

ve seen the defe

ndant and Smith together at the defendant's parents' residence.

At the sentencing he

aring, Sheriff Th

omas Ward, who h ad known the defendant for approximately

20 years, testified that he had received numerous complaints that the defendant was selling illega l drugs. Based on the se complaints, he h

ad contacted ag

ents with the Twent

y-First Judicial District Drug Task Force and asked for assistance.

Angenette

Yarbro, another confidential informant working with the Perry County Sheriff's Department,

also testified at the sentencing hearing. She stated that she had purchased Soma, which is a controlledsubstance, and c rack cocaine f

rom the defendan

t. She recalled having purchased five Somas for $10. She remembered having bought crack coc ai ne from the defendant on several occasions,"probably more [t imes] than [she] c

ould count." She describe d the place of her crack cocaine purchases as "on

the ridge or up the

re where his hous

e is." She said that she had purchased

as little as $20 worth of drugs at a time from the defendant and as much as $150 worth. Ms. Yarbro stated that at

the time she was ad

dicted to crack cocaine. On cross-examination, she acknowledged that the state had agreed

to dismiss criminal charges against her in exchange for her testimony. She stated that she had already served 46 days in jail by the time she testified.

At the sentencing hearing, the defendant again denied havingever acquired or sold cocaine. He specifically denied

having sold any ille

gal drugs to inform

ant Smith. He descr

ibed Ms. Yarbro as "full of it" and claimed he had never sold cocaine to her. The defendant stated that he owned a house valued at between $65,000 to $70,000, a car wash worth appr oximately

$5,000, and unimproved property valued at $10,000. He claimed that he paid approxima

tely $400 per month i

n child support. Until his incarceration, he had been employed a t Johnson Control, where he had workedfor approximately 20 years. He lost his job as the result of his incarceration and, of course, has been unable to operate his car wash detail shop. His prior record includes several misdemeanor hunting violations.-3-

At the conclusion of the sentencing hea ring, the trial court determined that there were no mitigating factors and that there was one en

hancement fact

or. While observing that

the defendant's prior cri minal convictions w ere for "very min

or offenses invol

ving hunting violatio

ns," the trial cour

t nevertheless

concluded that the defendant's prior criminal history warranted an enhanced sentence. The trial court placed special emphasis on the testimony of Ms. Yarbro, wh ich was specific ally accredited, that the defenda nt had sold

crack cocaine on

numerous occasions in the past and, on at least one occasion, sold Soma pills. The trial court also observed that the defendant testified that he had income from a number of sources other than his employment at Johnson Control and that he had knowingly

failed to report t

hat income to the I

nternal Revenue

Servic e. Thus, the trial court determinedthat the defendant had a much len g thier criminal hist ory than his actua

l record would suggest. Based upon a possible range of eight to 12 years, the trial court determined than an enhancement of the sentence to nine years was appropriate.

Hav ing determined the length of the defendant's sentence, the trial court ruled that the defendant was ineligible for

probation. While n

oting that the defe

ndant was eli

gible for a community corrections sentence, the trial court made the following further findings regarding a possible alternative sentence:

There isn't proof

in the record tha

t Mr. Sparks is a use

r, and his record of employment and hav

in g ob tained credit an

d assets for himsel

f suggest that he, individual

ly, has done well.

But the imposition of

the sale of drugs into his own community is a very serious offense. . . .

I also . . . have to look at the potential or lack of potential for rehabilitation, a n d this is a harder and closer case. I've pointed out already that Mr. Sparks has a re c ord of employment a nd he has a record of having obtained and accumulated assets. He has at least

one well-respecte

d and reputable

memb er of the community , Mrs. [Helen Craig] Smith, who has appeared here in his behal f as a character witness, and he does not have a history of [serious] criminal convictions. * * * I believe that he has, . . . by his own admission, violated federal laws by knowingly under reporting his income and failing to report i ncome to the I.R.S., and I believe that he has been untruthful on the occasions he has testified in this court
, both at trial where the jury found him to be untruthful becaus e his testimony was in direct conflict with th e t estimony of Mr. Smith, and the jury obviou

sly credi ted Mr. Smith's testimony and the drug task force officer's testimony and did not accre dit M r. S parks and . . . he has been untruthful . . . .

[A] person who is untruthful and who refuses to accept responsibility for his actions is deemed to be certainly a less worthy ca ndidate of-4- consideration for rehabilitation.

The trial court also noted that at the sentencing hearing, the defendant had refused to take responsibility

for two of his hunting offenses, claiming that he was covering for someone else. Due to the nature of the crime, the lack of candor on the part of the de

fendant, and the defendant's prior criminal acts, the trial court denied an alternative sentence and required a nine-year term in the Department of Correction.

In this appeal, the defendant makes two claims.

First, he argues th

at the trial court

should have imposed no more than an eight-year sentence. Secondly, he contends that he should have been granted a sentence to community corrections.

When there is a challenge to the length, range, or manner of service of a sen

tence, it is

the duty of this court

to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative show

ing in the record t

hat the trial cour

t considered the s

entencing princi

ples and all relevant facts and circu

mstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see Statev. Jones
, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Se ntencing Act,

the presumption of

correctness fa

lls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the trial an d sentencing hearing; (2) the presentence report; (3) the principles of senten cing and the argu ments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mi tigating or enhancing factors; (6) any statements made by the defendant in his own behalf;an d (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1 987). The recor d in this cas e demonstrates that the trial court made adequate findings of fact.

The purpose of the Community Corrections Act of 1985 was to provide an alternative means of punishment for "selected, nonviolent felony offenders in front-end community based alternatives to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides

a desired degre e o f flexibility that ma y be both benefic

ial to the defenda

nt yet serve legiti

mate societal aims. State v. Grif fith , 787 S.W. 2d 340, 342 (Tenn.1990). Even in cases where the defendant meets the minimum requirements of the Community C orrections Act of 1985, the defendant is not necessarily entitled to be sentenced under the Act as a matter of law or

right. State

v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offender s are elig ible for Community Correctio

ns: (1) Persons who, withou t this option, would be incarcerated in a correctional institution;

(2) Pers ons who are convicted of property-related, or drug/alcohol-related

felony offenses or other felony offenses not-5- i nvolving crimes against the person as provided in title 39 , chapte r 13, parts 1-5;

(3) Persons who are convicted of nonviolent felony offenses ;
(4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;

(5) Persons who do not demonstra te a present or pa

st pattern of behavior indicating violence;

(6) Persons who do not de monstrate a pattern of

committing violent offenses; and

Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).

At first blush, the de

fendant makes a p

ersuasive case

for an alternative sentence. Forty years of age, he has no felony record. The report by the Department of Correction indicates that he has only three prior offenses, all of which were hunting violations. In go od physical condition, the defendant is divorced and has three

children for whom he provides support. A high school graduate, he had been employed by Johnson Control in Linden, Tennessee, from September 1, 1978, until a week before his trial in April of 1999. His wage there was over $10.00 per hour. The defendant reported that he owned a

house, a detail shop, and a 1998 Chevrolet tru

ck. His only indebte

dness was on his vehicle in the amount of $308.

There was adequate proof, however, to establish that the defendant had a significant prior criminal history. Recently, in State v. Winfield , ____ S.W.3d ____ (Tenn. 2000), No. E 1996-00012- SC-R11-CD, 2000 WL 793948 (Tenn., June 20, 2000), our supreme court ruled that prior criminal history can be established by a preponderance of the evidence. That is, even a charge on which a defendant has been acquitted may qualify as an enhancement factor if, at the sentencing hearing, the state is able to prove by the greater weight of the evidence that the defendant committed the crime. Through the testimony of Ms. Yarbro, the state proved by a preponderanc e of the evidenc

e that, in addition to the hunting-related offenses , the defendant has a prior criminal history involving numerous drug sales.

Moreover, the defendant had several opportunities to take some degree of responsibility for his misdeeds but

refused to do so. T

he proof could

have hardly bee

n more overwhelm

ing at trial. There was an audio tape of the transaction and two police monitors. Yet the defendant a

damantly denied any participation in the sale of cocaine and re

jected altogethe

r the accusation

s made against him. During the presentence investigation by the Department of Correction, the defendant declined the opportunity to make a statement. At the sentencing hearing, the defendant not

only continued-6-

to deny any involveme

nt in the drug transaction but also claimed to be innocent of at least two of his misdemeanor hunting offenses which had taken place eight to ten years ago.

While a defendant has every right to maintain his innocence and should do so in

the face of

an unwarranted conviction, his claims in this instance are simply incredible. He dismissed informant Smith as a "snitch" and classified Ms. Yarbro as a liar. The record suggests that the defendant has participated in illegal drug sales for some time and has profited by his actions, but, until now, has

never been caught. Had the defendant indicated any level of acceptance of responsibility, shown the least bit of remorse, or evinced a modest desire to rehabilitate himself, h e ma y have warranted an alternative sentence. That he did not take responsibility

for the offense

, despite conclusi

ve proof to the contrary, demon

strates tha t the trial court acted properly by denying participation in the

comm unity corrections pro

gram. Untruthful t

estimony reflect

s poorly on rehabi

litative potential an d is relevant in determining appropriate sentencing alternatives. See Tenn. Code Ann. § 40-35-103(5). False claims may be a bar to an alternative sentence. State v. Dowdy , 894 S.W.2d 301 (Te nn. Crim. App. 1994).

Accordingly, the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE