State v. Carroll ( 1997 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE          FILED
    APRIL 1997 SESSION
    August 12, 1997
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,                  )
    )     NO. 03C01-9607-CC-00254
    Appellee,                      )
    )     HAWKINS COUNTY
    VS.                                  )
    )     Hon. James E. Beckner, Judge
    HOYT EDWARD CARROLL,                 )
    )     (Manufacture of Marijuana and
    Appellant.                     )     Possession of Drug Paraphernalia)
    FOR THE APPELLANT:                         FOR THE APPELLEE:
    GREG W. EICHELMAN                          JOHN KNOX WALKUP
    District Public Defender                   Attorney General and Reporter
    R. RUSSELL MATTOCKS                        CLINTON J. MORGAN
    Assistant District Public Defender         Assistant Attorney General
    1609 College Park Drive, Box 11            450 James Robertson Parkway
    Morristown, TN 37813-1618                  Nashville, TN 37243-0493
    C. BERKELEY BELL, JR.
    District Attorney General
    G. DOUGLAS GODBEE
    Assistant District Attorney General
    Hawkins County Courthouse
    Rogersville, TN 37857
    MICHELLE GREEN
    Assistant District Attorney General
    Greene County Courthouse
    Greeneville, TN 37743
    OPINION FILED:
    AFFIRMED AS MODIFIED
    JOE G. RILEY,
    JUDGE
    OPINION
    The defendant, Hoyt Edward Carroll, was indicted on one (1) count of the
    manufacture of more than one-half (½) ounce but less than ten (10) pounds of
    marijuana, one (1) count of possession of drug paraphernalia, and one (1) count of
    evading arrest. A Hawkins County jury convicted him of the manufacture of
    marijuana and possession of drug paraphernalia. The trial court sentenced him to
    two (2) years in the Tennessee Department of Correction for the manufacture of
    marijuana, and eleven (11) months and           29 days in the county jail for the
    possession of drug paraphernalia. The sentences were ordered to run concurrently.
    On appeal, he contends that the evidence was insufficient to sustain his convictions,
    his sentences are excessive, and the trial court erred in denying alternative
    sentencing.     We AFFIRM        his convictions, but MODIFY his misdemeanor
    sentence.
    FACTS
    The state’s proof at trial showed that the Hawkins County Sheriff’s
    Department had information that some marijuana was growing in a field near War
    Creek Road in Hawkins County. On July 26, 1995, four officers with the sheriff’s
    department began a surveillance operation in that area. The officers searched the
    area and found approximately sixty (60) marijuana plants growing in the field.
    Almost every plant had a green string attached so that the plant was tied down. At
    the base of each plant was at least one green bottle containing a liquid substance
    which smelled like ammonia.
    The officers then set up their video equipment. Eventually two men, later
    determined to be the defendant and co-defendant, Rick Coy Smith, approached the
    plants.
    Officer Gerald Gibson testified that he saw the men observing a plant and
    “picking around on it . . and one of them, at one point, even took the bottle . . . that
    2
    was sitting there and dashed something around, like he was pouring something
    around in the roots.” One of the men pulled leaves off of the plant and put them in
    a white bag.
    After several minutes passed, the officers came out from hiding and identified
    themselves. Defendant submitted to the officers’ requests, but his companion tried
    to run away from the officers. One of the officers was able to stop Smith before he
    left in his truck.
    Subsequently, the men were arrested and searched. Defendant had several
    green strings in his front pocket, and a marijuana leaf was found between his shoe
    and sock. The white bag containing marijuana leaves was found after Smith
    dropped it in his attempt to evade arrest. The officers also searched Smith’s truck
    and found three bottles containing ammonia.
    Detective Joel Hunt testified that when he arrived at the scene, he requested
    that the officers pull the plants. The leaves were stripped from the plants and those
    leaves, along with those in the white bag, were tested and found to be marijuana.
    He further testified that ammonia is a fertilizer.
    Defendant testified on his own behalf. He stated that he had been in the
    area picking blackberries when he noticed some plants with green strings on them.
    He took some strings off of one of the plants and put the strings in his truck. He
    testified that he told Smith that he had found some marijuana and showed him the
    strings. Smith wanted to get some marijuana for his own use, so defendant agreed
    to show him where the plants were.
    Defendant and Smith proceeded to the area where he found the plants.
    Smith began collecting the marijuana. Defendant claimed that he was merely
    looking at the plants when the officers identified themselves.
    The jury convicted defendant of the manufacture of marijuana and
    possession of drug paraphernalia.1 The trial court sentenced him as a Range I,
    Standard Offender, to two (2) years in the Tennessee Department of Correction for
    1
    Smith was acquitted of the manufacture of marijuana and possession of drug
    paraphernalia. However, the jury found him guilty of possession of marijuana and evading
    arrest.
    3
    the manufacture of marijuana, a Class E felony, and eleven (11) months and 29
    days in the county jail for the possession of drug paraphernalia, a Class A
    misdemeanor.
    SUFFICIENCY OF THE EVIDENCE
    In his first argument, defendant contends that the evidence was insufficient
    to sustain the verdicts of guilt beyond a reasonable doubt. He claims that there is
    no evidence that he did anything more than examine a plant. Therefore, he argues
    that the evidence against him is merely circumstantial and insufficient to sustain the
    jury’s verdict.
    Great weight is given to the result reached by the jury in a criminal trial. A
    jury verdict 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). Questions concerning the credibility of the witnesses,
    the weight and value to be given the evidence as well as all factual issues raised by
    the evidence, are resolved by the trier of fact, not this court. State v. Tuttle, 
    914 S.W.2d 926
    , 932 (Tenn. Crim. App. 1995). On appeal, the state is entitled to the
    strongest legitimate view of the evidence and all reasonable inferences which may
    be drawn therefrom. 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 guilt on appeal. State v.
    Grace, 
    493 S.W.2d 474
    , 476 (Tenn. 1973). The defendant has the burden of
    overcoming this presumption of guilt. Id.
    In the present case, defendant and Smith were found in a remote area
    examining a marijuana plant. They immediately began tending to the plant by
    pouring fertilizer on it and tying the plant. Defendant was carrying green strings like
    those that were used to tie the plants down.
    Although the evidence of his guilt is circumstantial in nature, circumstantial
    4
    evidence alone may be sufficient to support a conviction. 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. Buttrey, 
    756 S.W.2d 718
    , 721 (Tenn. Crim. App. 1988).
    Therefore, we find that the evidence was sufficient for a reasonable trier of fact to
    find defendant guilty of both offenses. This issue is without merit.
    SENTENCING
    A.
    In his second and final assignment of error, defendant argues that his
    sentences are excessive.        He claims that the trial court misapplied two
    enhancement factors and did not give enough weight to the only mitigating factor.
    He further contends that the trial court erred in denying some form of alternative
    sentencing. As a result, he claims that his sentences should be reduced.
    B.
    We first note that the trial judge in announcing the sentence for
    manufacturing marijuana imposed a “determinate sentence of two (2) years.” The
    trial judge further stated that “probation and community corrections and alternative
    sentencing should be denied. . .” Yet, the judgment itself shows a two (2) year
    sentence to the Tennessee Department of Correction with the following notation:
    “Split confinement 365 days in jail.” There is no indication of the length of probation
    after serving the 365 days.
    When there is a conflict between the court minutes or judgment and the
    transcript, the transcript 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. 1985).
    Therefore, we assume the imposed sentence to be two (2) years in the Department
    of Correction. We also believe this to be the sentence intended by the trial court.
    The judgment shall be modified to delete the reference to “Split confinement 365
    days in jail.”
    C.
    5
    This Court’s review 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 showing in the record that the trial judge
    considered the sentencing principles and all relevant facts and circumstances.
    State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991). The burden is upon the
    appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-
    401(d) Sentencing Commission Comments.
    At the sentencing hearing, the trial court found that two enhancement factors
    applied: (1) the defendant had a previous history of criminal convictions; and (2) the
    defendant was the leader in the commission 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 criminal conduct neither caused nor threatened serious bodily
    injury but gave it little or no weight. Tenn. Code Ann. § 40-35-113(1). The trial
    court then sentenced defendant to the maximum sentence for both offenses.
    If no mitigating or enhancing factors for sentencing are present, Tenn. Code
    Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum
    sentence within the applicable range. See State 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 minimum sentence, enhance the minimum sentence within the range for
    aggravating factors and then reduce the sentence within the range for the mitigating
    factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is
    prescribed by the statute, as the weight given to each factor is left to the discretion
    of the trial court as long as its findings are supported by the record. State v. Moss,
    
    727 S.W.2d 229
    , 237 (Tenn. 1986); State v. Santiago, 
    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 court erroneously found that he had a
    previous history of criminal convictions.      Tenn. Code Ann. § 40-35-114(1).
    Defendant has two (2) prior convictions for driving on a suspended license, a
    conviction for contempt of court, a conviction for disorderly conduct and three (3)
    6
    convictions for public drunkenness. His most recent conviction was in 1991, but
    many of his convictions date back over twenty years prior to his sentencing on the
    present case.2 The fact that defendant’s prior record consists of old misdemeanor
    convictions does not mean that this factor does not apply. Tenn. Code Ann. § 40-
    35-114(1) does not require the prior convictions to be recent convictions or felony
    convictions. See State v. Maurice Garner, C.C.A. No. 02C01-9508-CR-00223
    (Tenn. Crim. App. filed May 19, 1997, at Jackson); State v. William D. Pewitt,
    C.C.A. No. 01C01-9411-CC-00375 (Tenn. Crim. App. filed August 22, 1996, at
    Nashville); State v. Jerome Dixon, C.C.A. No. 02C01-9508-CC-00247 (Tenn. Crim.
    App. filed July 26, 1996, at Jackson).           The trial court properly applied this
    enhancement factor.
    Defendant also contends that the trial court erred in applying as an
    enhancement factor that he was the leader in the commission of an offense
    2
    Defendant’s counsel in his brief made a poignant, pointed, persuasive plea to this
    Court relating to the staleness of these prior convictions. He writes:
    To put these prior convictions into historical perspective, appellant
    would once again review for this Court the facts. In 1960, Dwight David
    Eisenhower was still President of the United States. Hawaii had been
    admitted to Statehood less than a year before. A U-2 spy plane piloted by
    Francis Gary Powers was shot down over the Soviet Union creating political
    controversy, and at the tender age of seventeen, while still a minor, Hoyt
    Carroll was arrested for public intoxication. By 1965, John F. Kennedy had
    served three years of his presidency, only to be felled by an assassins bullet.
    Camelot was over, and Lyndon Johnson had won his own term as president.
    Martin Luther King marched on Montgomery, Alabama. “Westy’s War”
    escalated when the new American army commander in Vietnam, General
    William C. Westmoreland, requested and got the first installment of combat
    troops. Oh, and Hoyt Carroll was arrested and convicted of his second public
    intoxication charge. Three years later, in 1968, Walter Cronkite, commenting
    on the Tet Offensive, confided to his television audience that he no longer
    believed the Vietnam war was winnable. Lyndon Johnson announced he
    would not seek another term as president. In Tennessee, Martin Luther King
    was assassinated in Memphis, and Hoyt Carroll was convicted for the third
    time in eight years of public intoxication. He was now twenty-five years old.
    Hoyt Carroll, who has never in his life been charged or convicted of a drug
    offense, never again was charged or convicted of an alcohol related offense.
    Counsel for the Appellant was four years old when last the Appellant was
    convicted of Public Drunkenness more than twenty-eight years ago . . .
    As interesting and accurate as this historical analysis may be, it unfortunately was of only
    marginal benefit in our determination as to whether the defendant had a “previous history of
    criminal convictions.” Tenn. Code Ann. § 40-35-114(1). We, nevertheless, some five years
    after defendant’s most recent conviction, commend counsel (whom we assume to be
    approximately 32 years of age) for his zealous advocacy.
    7
    involving two or more actors. Tenn. Code Ann. § 40-35-114(2). Although Smith
    was acquitted of manufacturing marijuana, he was convicted of the lesser offense
    of simple possession of marijuana. The jury obviously concluded the defendant
    was the actual grower, and Smith was there to assist defendant. This enhancement
    factor was properly applied.
    Defendant further complains of the trial court’s finding that the only mitigating
    factor applicable was entitled to little or no weight. As a mitigating factor, the trial
    court considered that defendant’s conduct neither caused nor threatened serious
    bodily injury. Tenn. Code Ann. § 40-35-113(1). However, the trial court gave the
    mitigating factor little, if any, weight. In a case involving drugs, this mitigating factor
    is generally entitled to little weight.     See State v. Marlos Mann, C.C.A. No.
    02C01-9504-CC-00101 (Tenn. Crim. App. filed Oct. 18, 1995, at Jackson). The trial
    court did not abuse its discretion in giving this factor little value. See State v. Moss,
    727 S.W.2d at 237; State v. Santiago, 914 S.W.2d at 125.
    We conclude the two-year sentence for manufacturing marijuana was an
    appropriate sentence. However, fairness dictates that the misdemeanor sentence
    of eleven (11) months, 29 days be modified. Defendant will be eligible for release
    on the two-year felony sentence upon reaching his release eligibility date. Tenn.
    Code Ann. § 40-35-501(a)(3). Yet, it is conceivable that defendant at that time
    would not be eligible for release on the misdemeanor sentence. Tenn. Code Ann.
    § 40-35-302. The misdemeanor sentence is modified to six (6) months.
    ALTERNATIVE SENTENCING
    Under the Criminal Sentencing Reform Act of 1989, trial judges are
    encouraged to use alternatives to incarceration. An especially mitigated or standard
    offender convicted of a Class C, D or E felony is 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).
    8
    In determining if incarceration is appropriate, a trial court may consider the
    need to protect society by restraining a defendant having a long history of criminal
    conduct, the need to avoid depreciating the seriousness of the offense, whether
    confinement is particularly appropriate to effectively deter others likely similar to
    commit similar offenses, and whether less restrictive measures have often or
    recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
    103(1); see also State v. Ashby, 823 S.W.2d at 169; State v. Millsaps, 
    920 S.W.2d 267
    , 271 (Tenn. Crim. App. 1995).
    A court may also consider the mitigating and enhancing factors 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); State v. Boston, 
    938 S.W.2d 435
    , 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the
    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 at 438.
    In determining whether to grant or deny probation, a trial court should
    consider the circumstances of the offense, the defendant's criminal record, the
    defendant’s social history and present condition, the need for deterrence, and the
    best interest of the defendant and the public. State v. Grear, 
    568 S.W.2d 285
    , 286
    (Tenn. 1978); State 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 mathematical equation to be utilized in determining sentencing
    alternatives. Not only should the sentence fit the offense, but it should fit the
    offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 
    932 S.W.2d 467
    (Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of
    alternative sentencing. State v. Dowdy, 
    894 S.W.2d 301
    , 305 (Tenn. Crim. App.
    1994). In summary, sentencing must be determined on a case-by-case basis,
    tailoring each sentence to that particular defendant based upon the facts of that
    case and the circumstances of that defendant. State v. Moss, 727 S.W.2d at 235.
    In the present case, we find that the trial court did not err in denying
    9
    alternative sentencing. Defendant was untruthful in his trial testimony and did not
    accept responsibility for his actions. The defendant's lack of credibility is an
    appropriate consideration and reflects on a defendant's potential for rehabilitation.
    State v. Chestnut, 
    643 S.W.2d 343
    , 353 (Tenn. Crim. App. 1982). Also, as noted
    by the trial court, incarceration is necessary to avoid depreciating the seriousness
    of the offense and to serve as a deterrent. See State v. Dykes, 
    803 S.W.2d 250
    ,
    260 (Tenn. Crim. App. 1990). The trial court properly denied alterative sentencing.
    CONCLUSION
    In conclusion, we find that there is sufficient evidence for a reasonable trier
    of fact to find defendant guilty of the manufacture of marijuana and possession of
    drug paraphernalia. Furthermore, the sentences imposed by the trial court are
    appropriate, except that the felony judgment shall be modified to delete the
    reference to “Split confinement 365 days in jail” and the misdemeanor judgment
    shall be modified to reflect a sentence of six (6) months. Accordingly, we affirm the
    judgment of the trial court, as modified.
    JOE G. RILEY, JUDGE
    CONCUR:
    JERRY L. SMITH, JUDGE
    CHRIS CRAFT, SPECIAL JUDGE
    10