IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 24, 2007 Session

STATE OF TENNESSEE v. THOMAS HARVILLE, JR.

 Appeal from the Criminal Court for Sullivan County

No. S49,750 Phyllis H. Miller, Judge

No. E2005-02108-CCA-R3-CD - Filed February 15, 2008

In October 2004, a Sullivan County grand jury indicted the defendant, Thomas Harville, Jr., on one

count of violating his status as a habitual motor vehicle offender, a Class E felony. Following a June

2005 jury trial in Sullivan County Criminal Court, the defendant was convicted on the sole count of

the indictment and sentenced to two years as a Range I, standard offender, with the defendant to

serve eighty days in jail and the balance of his sentence on community corrections. The defendant

appeals, alleging that the trial court: (1) improperly admitted the preliminary hearing testimony of

a police officer when the state failed to show that the witness was unavailable at trial; (2) improperly

determined that the state could impeach the defendant with a prior felony conviction for evading

arrest; and (3) improperly sentenced the defendant. After reviewing the record, we conclude that the

defendant has waived the first issue on appeal and that the trial court committed no error as to the

other two issues. Accordingly, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J.,

joined. JERRY L. SMITH, J., filed a separate opinion concurring in part and dissenting in part.

George Todd East, Kingsport, Tennessee, for the appellant, Thomas Harville, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; H. Greeley Wells, Jr., District Attorney General; William Harper, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

At trial, Fritz Fallin testified that on December 27, 2003, he was driving on Stone Drive

toward Lynn Garden Drive in Kingsport, Tennessee. Around 11:00 p.m., he noticed a tan truck
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speeding and traveling in the wrong direction on Lynn Garden Drive. Fallin contacted police on his

cellular phone and turned around to follow the speeding truck. The truck turned into a Shell gasoline

station, and the truck’s driver then exited the vehicle. The police arrived on the scene a short time

later.

Over the defendant’s objection, the transcript of the preliminary hearing was entered into

evidence as the testimony of Officer Matt Cousins of the Kingsport Police Department because the

trial court determined that Officer Cousins was unavailable at trial due to his being on active military

duty in Iraq. At the preliminary hearing, Officer Cousins testified that he responded to the call at the

Shell station. When Officer Cousins arrived in the area of Lynn Garden Drive and Virginia Street,

he saw a tan Chevrolet truck turning right onto Virginia Street from Lynn Garden Drive. He then

saw the truck enter the parking lot of a Shell station. After the truck pulled into a parking space, the

defendant exited the driver’s side and walked into the store. Officer Cousins questioned both the

defendant and a passenger in the vehicle. The defendant denied driving the truck, and the passenger

did not tell Officer Cousins that the defendant had been driving the truck.

Corporal Todd Harrison with the Kingsport Police Department testified that he also

responded to the call at the Shell station the evening of December 27, 2003. When he arrived at the

scene, he observed Officer Cousins standing outside a tan truck, talking with the defendant.

Corporal Harrison spoke briefly with Fallin about what he had seen that night. Corporal Harrison

then relayed this information to Officer Cousins.

Raymond Winters, the Sullivan County Clerk of Circuit Court, testified that on February 28,

1994, a judgment was entered declaring the defendant to be a habitual motor vehicle offender.

Rick Brooks, testifying for the defendant, said that he owned the truck in question. He

testified that on the evening of December 27, he and the defendant were “hanging out” at the

defendant’s house, with the defendant drinking three beers during the evening. The defendant then

received a call from his wife, asking that the two men pick her up from her parents’ house. The two

men then left the defendant’s house. Brooks testified that although the defendant wanted to drive

the truck, he actually drove the truck that evening. Brooks said that he made a wrong turn at the

intersection of Lynn Garden Drive and Stone Drive which resulted in the truck traveling in the wrong

direction on Lynn Garden Drive. Brooks then turned around and sped up to at least sixty-five miles

per hour because he wanted to see how fast the truck would run. Brooks then stopped at a Shell

station because the defendant wanted some cigarettes. According to Brooks, he did not turn onto

Virginia Street to get to the gasoline station. Once Brooks pulled into the parking lot, he let the

defendant out of his truck on the driver’s side because the passenger-side door was difficult to open.

Brooks testified that he told more than one of the officers, including Officer Cousins, that he was

driving the truck. 

At the conclusion of the case, the jury convicted the defendant. The trial court sentenced the

defendant to two years on community corrections, with the defendant to serve eighty days in jail.

The trial court later amended the defendant’s sentences, granting the defendant good time credit for
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twenty-five percent of the eighty days. This appeal follows. 

ANALYSIS

Unavailable Witness

The defendant first argues that the trial court improperly admitted the preliminary hearing

testimony of Officer Cousins at trial because the state failed to establish that the witness was

unavailable. The state counters that the record does not support the defendant’s claim and that the

preliminary hearing transcript was properly admitted into evidence. The defendant did not object

to the admission of the transcript on the basis that the state did not prove that Officer Cousins was

unavailable. As a result, we conclude that the defendant has waived the issue on appeal.

The Tennessee Rules of Evidence define hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible unless an exception to the hearsay rule

applies. Tenn. R. Evid. 802.

One such exception to the hearsay rules is the “former testimony” exception. According to

the Rules of Evidence, the former testimony of a declarant who is unavailable as a witness is

admissible. Tenn. R. Evid. 804. Unavailability can be satisfied in several ways, including if the

declarant “is absent from the hearing and the proponent of a statement has been unable to procure

the declarant’s attendance by process.” Tenn. R. Evid. 804(a)(5). As relevant to this case, the Rules

of Evidence define former testimony as “[t]estimony given as a witness at another hearing of the

same or different proceeding . . . if the party against whom the testimony is now offered had both

an opportunity and a similar motive to develop the testimony by direct, cross, or redirect

examination.” Tenn. R. Evid. 804(b)(1). A preliminary hearing transcript “is precisely the type of

former testimony contemplated under [Rule 804(b)(1)].” State v. Michael Dwayne Hatfield, No.

03C01-9307-CR-00233, 1994 WL 102072, at *3 (Tenn. Crim. App., at Knoxville, Mar. 29, 1994);

see Tenn. R. Evid. 804(b)(1), Advisory Comm’n Cmts. 

Additionally, both the Sixth Amendment to the United States Constitution and article I,

section 9 of the Tennessee Constitution give the defendant the right to confront all witnesses against

him. Regarding the Confrontation Clause, the Tennessee Supreme Court has determined:

When the prosecution seeks to introduce a declarant’s out-of-court statement, and a

defendant raises a Confrontation Clause objection, the initial determination under

Crawford[v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)] is whether

the statement is testimonial or nontestimonial. If the statement is testimonial, then

the trial court must determine whether the declarant is available to testify. . . . If the
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declarant is unavailable, the trial court must determine whether the accused had a

prior opportunity to cross-examine the declarant about the substance of this

statement. Id. at 68, 124 S. Ct. at 1354. If the accused had such an opportunity, the

statement may be admissible if it is not otherwise excludable hearsay. If the accused

did not have this opportunity, then the statement must be excluded.

State v. Maclin, 183 S.W.3d 335, 351 (Tenn. 2006). See also State v. Summers, 159 S.W.3d 586,

597 (Tenn. Crim. App. 2004) (“[T]he State must show that the declarant is truly unavailable after

good faith efforts to obtain his presence” and that “the evidence carries its own indicia of

reliability.”).

In this case, the defendant cross-examined Officer Cousins during the pretrial hearing, so the

defendant’s right to confront the witness was satisfied. The defendant argues on appeal that the state

did not establish that the witness was in fact unavailable, as is required under Crawford, Maclin, and

Summers, but the defendant did not raise this argument at trial. Instead, the record reflects that at

trial, the prosecutor indicated that Officer Cousins was serving in Iraq and would be unavailable to

testify at trial. The prosecutor stated that he was in possession of an e-mail from Officer Cousins’s

commanding officer, which indicated that the earliest Officer Cousins would return to Tennessee

would be five months from the trial date. The prosecutor inquired whether to file the copy of the email from the commanding officer as an exhibit. Defense counsel did not question whether the

witness was in Iraq and therefore unavailable; furthermore, defense counsel did not ask to exhibit

the e-mail or even view it, according to the record. Rather, the defendant based his objection to the

pretrial statement on the fact that the witness’s “demeanor wouldn’t be here for the jury to follow,”

and that he would be unable to cross-examine the witness in light of “some questions that may

develop through the course of the trial.” Such concerns have been addressed by the Tennessee

Supreme Court in adopting and interpreting theRules ofEvidence, including the hearsay exceptions,

and therefore the trial court properly ruled that the pretrial statement was admissible under the former

testimony hearsay exception. In short, because the defendant did not dispute the fact that Officer

Cousins was unavailable at trial, he may not raise the issue on appeal. See Tenn. R. App. P. 36(a)

(explaining that a party’s failure to raise an objection at trial waives the issue on appeal). The

defendant is therefore denied relief on this issue. 

Impeachment of Appellant with Prior Conviction

The defendant next contends that the trial court erred by ruling that the state could impeach

him with his 2000 felony conviction for evading arrest if he took the stand. The defendant argues

that this ruling prejudiced him because it “prevented” him from testifying at trial. The state

disagrees, arguing that the record supports the trial court’s decision. We agree with the state.

Rule 609 of the Tennessee Rules of Evidence permits the state to impeach a defendant with
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his prior convictions if certain conditions are met. First, the prior conviction must be for a felony

or a misdemeanor involving “dishonesty or false statement.” Tenn. R. Evid. 609(a)(2); State v.

Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). Fewer than ten years must have elapsed between the

defendant’s release from confinement for the prior conviction and the commencement of the present

prosecution. Tenn. R. Evid. 609(b). Additionally, the state must give the defendant reasonable

pretrial notice of the impeaching convictions. Tenn. R. Evid. 609(a)(3). Finally, the trial court must

find that the impeaching conviction’s probative value on credibility outweighs its unfair prejudicial

effect on the substantive issues. This final condition is the one at issue here.

In determining whether the probative value of a prior conviction on the issue of credibility

outweighs its unfair prejudicial effect, a trial court should consider the similarity between the crime

in question and the underlying impeaching conviction, as well as the relevance of the impeaching

conviction with respect to credibility. Mixon, 983 S.W.2d at 674; State v. Farmer, 841 S.W.2d 837,

839 (Tenn. Crim. App. 1992). “To determine how probative a felony conviction is to the issue of

credibility, the trial court must assess whether the felony offense involves dishonesty or false

statement.” State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003). If “the prior conviction and instant

offense are similar in nature the possible prejudicial effect increases greatly and should be more

carefully scrutinized.” Long v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980). A trial court’s

decision to admit a prior conviction under Rule 609 will not be reversed on appeal unless the trial

court abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

In this case, we note that this court has previously determined that felony evading arrest is

not a crime of dishonesty. State v. Bruce Marvin Vann, No. W2002-00161-CCA-R3-CD, 2003 WL

1702277, at *7 (Tenn. Crim. App., at Jackson, Mar. 31, 2003). However, as was the case in Bruce

Marvin Vann, we conclude that the trial court properly ruled that the state could use the conviction

for impeachment purposes. The trial involved a “swearing match” among witnesses, in which the

jury had to assess the credibility of the state’s witnesses, who testified that the defendant drove the

truck, as well as that of the defendant’s witness, who claimed that the defendant did not drive that

evening. The credibility of the witnesses was the paramount issue. Thus, had the defendant taken

the stand, this felony conviction would have had probative value as to his credibility. Additionally,

as the trial court noted, there is no similarity between the prior offense and the offense for which the

defendant was being tried. Therefore, we conclude that the trial court did not abuse its discretion

in ruling that the state could use the defendant’s felony evading arrest conviction for impeachment

purposes. Thus, the defendant is not entitled to relief on this issue. 

Sentencing

Finally, the defendant contends that the trial court improperly denied full probation or a full
Although the Motor Vehicle Habitual Offenders Act, Tennessee Code Annotated §§ 55-10-601-618 (2004),

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states that a trial court may not suspend a sentence or fine under the Act, this court has ruled that alternative sentences

are appropriate for persons sentenced under the Act. State v. Martin, 146 S.W.3d 64, 70 (Tenn. Crim. App. 2004).

We note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35- 2

102(6), -114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are

inapplicable to the defendant’s appeal because the defendant, who was arrested and indicted before the Sentencing

Guidelines were amended, did not elect to be sentenced under the revised law.

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alternative sentence. As stated above, the trial court sentenced the defendant as a Range I, standard 1

offender, to two years, with the defendant to serve eighty days in jail and the balance of the sentence

on community corrections. A later order of the trial court reduced the jail term by twenty-five

percent, or twenty days. The defendant argues that serving “60 days incarceration would serve to

eliminate the positive work history that he has established,” and that the sentence is “improper given

the work history and the testimony presented before the Court.” We disagree.

An appellate court’s review of sentencing is de novo on the record with a presumption that

the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003).2 As the

Sentencing Commission Comments to this section note, on appeal the burden is on the defendant

to show that the sentence is improper. This means that if the trial court followed the statutory

sentencing procedure, made findings of fact that are adequately supported in the record, and gave

due consideration and proper weight to the factors and principles that are relevant to sentencing

under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate review,

[T]he trial court must place on the record its reasons for arriving at the final

sentencing decision, identify the mitigating and enhancement factors found, state the

specific facts supporting each enhancement factor found, and articulate how the

mitigating and enhancement factors have been evaluated and balanced in determining

the sentence. Tenn. Code Ann. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994). 

In conducting its de novo review, the appellate court must consider (1) the evidence, if any,

received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
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sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the

criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the

defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code

Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d

229, 236-37 (Tenn. 1986).

Length of Sentence

Although not raised by either party, we must first address whether the trial court erred by

imposing a two-year sentence. At the sentencing hearing, the trial court noted the existence of the

following enhancement factors:

(1) The defendant has a previous history of criminal convictions or criminal behavior

in addition to those necessary to establish the appropriate range;

(9) The defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; and

(11) The defendant had no hesitation about committing a crime when the risk to

human life was high. 

Tenn. Code Ann. § 40-35-114(2), (9), and (11) (2003). The trial court also applied the defendant’s

work history as a mitigating factor but ultimately imposed a two-year sentence, the maximum

allowed for a person convicted of a Class E felony as a Range I, standard offender. See Tenn. Code

Ann. § 40-35-112(a)(5) (2003). 

Under the law as it existed before the 2005 amendment, unless enhancement factors were

present, the presumptive sentence to be imposed wasthe minimum in the range for a Class E felony.

Tenn. Code Ann. § 40-35-210(c) (2003). Tennessee’s pre-2005 sentencing act provided that,

procedurally, the trial court was to increase the sentence within the range based on the existence of

enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Id. at

(d), (e). However, the Tennessee Supreme Court recently held that this system, which allowed the

trial court to enhance a defendant’s sentence based on factors that had not been found by a jury

beyond a reasonable doubt, violated a defendant’s Sixth Amendment rights as interpreted by the

Supreme Court. State v. Gomez, 239 S.W.3d 733, 740-41 (Tenn. 2007) (“Gomez II”) (citing

Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 860 (2007)); See also Blakely v.

Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) (quoting Apprendi v. New Jersey, 530

U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000))(“‘Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.’”). Thus, the trial court’s application of enhancement factors (9)

and (11) to the defendant’s sentence was improper.
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However, in this case the presentence report details, and the trial court noted at the sentencing

hearing, that the defendant had a record of over twenty convictions, including a felony conviction

for a previous habitual motor vehicle offender violation, a felony conviction for resisting arrest, and

numerous misdemeanor convictions for such offenses as assault, vandalism, public intoxication, and

driving on a revoked license. In imposing an enhanced sentence, the trial court stated, “if I just go

on your criminal history [your sentence] should be enhanced to two years.” We agree with the trial

court’s reasoning and conclude that the defendant’s extensive history of criminal convictions was

enough to justify the trial court’s imposing the maximum sentence in this case.

Alternative Sentence

We next consider the defendant’s stated issue, whether the trial court erred in ordering the

defendant to serve a sixty-day jail sentence before serving the rest of his term on community

corrections. The defendant was convicted of a Class E felony and sentenced as a standard offender;

thus, he was “presumed to be a favorable candidate for alternative sentencing options in the absence

of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2003). However, this presumption

does not entitle an offender who meets this standard to relief; rather, sentencing issues must be

determined by the facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d

919, 922 (Tenn. Crim. App. 1987) (citing Moss, 727 S.W.2d at 235). Even if a defendant is

presumed to be a favorable candidate for alternative sentencing, the statutory presumption may be

overcome if (1) confinement is needed to protect society by restraining a defendant who has a long

history of criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence to people likely to

commit similar offenses, or (3) less restrictive measures than confinement have frequently or recently

been applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann.

§ 40-35-103(1)(A)-(C)). A trial court should also consider a defendant’s potential or lack of

potential for rehabilitation when determining if an alternative sentence would be appropriate. Tenn.

Code. Ann. § 40- 35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

Furthermore, the trial court may consider a defendant’s untruthfulness and lack of candor as they

relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.

1999); 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). 

The presentence report contained a statement from the defendant in which he claimed that

he was a passenger in the truck the night he was arrested, and he also claimed that he exited the truck

by sliding out the driver’s side door because the passenger-side door “would not shut good unless

you were outside the truck.” The defendant also stated that he told police that he was not driving

that night and had done nothing wrong. The trial court noted that this statement went against the

evidence produced at trial; therefore, the trial court found that the defendant was not being truthful

and did not take responsibility for his actions. Based on these findings, as well as the fact that the

defendant had previously served time on community corrections, the trial court concluded that the
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defendant’s potential for rehabilitation was “extremely low.” In light of this evidence, we conclude

that the trial court properly sentenced the defendant to a period of confinement before serving the

rest of his sentence on community corrections. Thus, the defendant is not entitled to relief on this

issue. 

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial court

is affirmed.

_______________________________

D. KELLY THOMAS, JR., JUDGE