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
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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.
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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
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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.
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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)
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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.
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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).
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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
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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
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