         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 12, 2003 Session

                      STATE OF TENNESSEE v. SHANI CARR

                       Appeal from the Circuit Court for Coffee County
                           No. 31,485F    John W. Rollins, Judge



                    No. M2002-02261-CCA-R3-CD - Filed March 11, 2003


The defendant, Shani Carr, appeals as of right from her three-year jail sentence imposed by the
Coffee County Circuit Court following her guilty plea to manufacturing methamphetamine, a Class
C felony. She contends that the trial court should not have sentenced her to incarceration based upon
the need for deterrence because the record is devoid of proof for such need. We agree, reverse the
trial court’s sentence of incarceration, and sentence the defendant to split confinement.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                      Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Eric J. Burch, Manchester, Tennessee, for the appellant, Shani Carr.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Charles Michael Layne, District Attorney General; and Kenneth J. Shelton, Jr., Deputy District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On September 10, 2001, drug task force agents went to talk to the defendant and her husband,
Lewis Wayne Carr, at their house in Normandy, Tennessee. When no one came to the door, the
agents walked toward the barn and noticed a burn pile containing bags of iodine-stained filters,
tubing, and boxes of antihistamines. One agent obtained a search warrant and returned to the
defendant’s house where the law enforcement team entered by force. The agents found the defendant
hiding in a closet with a “crank pipe” on the floor beneath her. A search of the property revealed
chemicals and equipment used in manufacturing methamphetamine. The defendant pled guilty to
manufacturing methamphetamine in Case No. 31,485F.
        At the submission hearing, the defendant also pled guilty in Case No. 31,072F to possession
of drug paraphernalia with intent to manufacture a controlled substance, a Class E felony, stemming
from an earlier search of her home. On June 28, 2000, she fled with her nine-year-old daughter on
a four-wheeled all terrain vehicle when officers arrived to execute a search warrant. The search
revealed a purple duffle bag containing chemicals and equipment used for manufacturing
methamphetamine. The defendant later admitted that she had found the duffel bag in her daughter’s
playhouse and had moved it to the dog house. The defendant’s husband told officers that the duffel
bag belonged to Keith Farrar and that he had allowed Mr. Farrar to “gas off” some methamphetamine
the previous night. The defendant does not appeal her conviction or one-year sentence in Case No.
31,072F.

        At the sentencing hearing, the defendant testified that she had an eleven-year-old daughter
and was in the process of divorcing her husband. She said that although she was not actively
involved in the manufacturing of drugs, she was aware of what was going on in her home and used
drugs. She said she had no prior criminal record and had been employed periodically over the last
ten years. She said she was promised a job at Cracker Barrel restaurant upon her release from jail
and intended to live with her mother and daughter. She said she had been in jail for eighty-seven
days and had thought about what she had done. She said she had concluded that drugs are not worth
it and that making a good life for her daughter was the most important thing to her now.

        On cross-examination, the defendant admitted that she had written a number of worthless
checks and had been allowed to pay them off without being convicted. She explained that she did
not know the checks were worthless and had written them before she was fired from her job at
Bridgestone but did not have the money to cover them by the time they were cashed. She said she
had never participated in cooking methamphetamine and did not know how often it was produced
at her house. She acknowledged that her daughter was living in her house at the time the drugs were
manufactured but stated that she would take her daughter elsewhere whenever this was taking place.

        Laura Prosser, who prepared the defendant’s presentence report, testified that the defendant
had no previous convictions. She said the defendant had been arrested before but the resulting
charges were all dismissed or retired. She said the defendant admitted using drugs since 1992. She
said the defendant reported that her husband had abused her physically and mentally for the last five
years. She said the defendant had worked for Tennessee Apparel from 1991 to 1992, for Bridgestone
from 1992 to 1999, and for Design Build Commercial Construction from March to October 2001.
She said the defendant had been fired from her position at Bridgestone. On cross-examination, she
agreed that the defendant did not say that her husband had coerced her participation in the crimes
to which she pled guilty.

        Brenda K. Turner, the defendant’s next-door neighbor, testified that the defendant was a good
friend of her family and had lived next to Ms. Turner’s mother for twelve years. She said that the
defendant had a tumultuous marriage and that the defendant’s husband yelled and threatened the
defendant a lot. She said that the defendant and her daughter had fled in fear to Ms. Turner’s home
to escape the defendant’s husband and that the defendant’s family did not support her much. She


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said the defendant was devoted to her daughter and had worked for most of the six years that Ms.
Turner had known her.

        The presentence report reveals that the thirty-seven-year-old defendant attended high school
through the eleventh grade. The defendant reported suffering from depression and using about one
gram of methamphetamine per month. In addition to the employment history given by Ms. Prosser,
the defendant reported working for Dawn Ray Casual, but this could not be verified because the
business had closed. The report reflects that the defendant had the following arrests: On May 10,
1996, for speeding; on January 25, 1999, for passing worthless checks in an amount up to $100; on
June 18, 1999, for passing worthless checks in an amount up to $100; on November 17, 2000, for
theft of property valued up to $500; and on May 7, 2001, for theft of property valued up to $500.

        The trial court found that no enhancing or mitigating factors were present and sentenced the
defendant as a Range I, standard offender to three years for manufacturing methamphetamine and
to a year for possession of drug paraphernalia with intent to manufacture a controlled substance, to
be served concurrently. It found confinement necessary to avoid depreciating the seriousness of the
offenses and particularly suited to deter others prone to commit this kind of offense.

        The defendant challenges the denial of an alternative sentence, contending that the trial
court’s findings on deterrence are not supported by proof in the record. The state contends that the
defendant was properly sentenced to incarceration based upon the need for deterrence and the
defendant’s history of criminal conduct. We agree with the defendant that the record is insufficient
to support a finding of need for deterrence.

        Appellate 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), -402(d). As the Sentencing
Commission Comments to these sections note, the burden is now on the appealing party to show that
the sentencing 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, we 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 conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of 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
her own behalf and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



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        As a Range I, standard offender convicted of Class C and E felonies, the defendant is
presumed to be a favorable candidate for a sentence other than confinement. See Tenn. Code Ann.
§ 40-35-102(5)-(6). When determining if incarceration is appropriate, the trial court should consider
that (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)). Additionally, the trial court should consider a defendant’s potential or lack
of potential for rehabilitation. Tenn. Code Ann. § 40-35-103(5).

       The trial court sentenced the defendant to confinement based upon the second consideration,
the need to avoid depreciating the seriousness of the offense and the particular suitability of
confinement to deter others likely to commit similar offenses. With regard to a sentence of
confinement based upon the need for deterrence, our supreme court has held that

               the trial courts should be given considerable latitude in determining
               whether a need for deterrence exists and whether incarceration
               appropriately addresses that need. Accordingly, we will presume that
               a trial court’s decision to incarcerate a defendant based on a need for
               deterrence is correct so long as any reasonable person looking at the
               entire record could conclude that (1) a need to deter similar crimes is
               present in the particular community, jurisdiction, or in the state as a
               whole, and (2) incarceration of the defendant may rationally serve as
               a deterrent to others similarly situated and likely to commit similar
               crimes.

State v. Hooper, 29 S.W.3d 1, 10 (Tenn. 2000). In this respect, the court suggested five non-
exclusive factors that reveal “whether a need for deterrence is present and whether incarceration is
‘particularly suited’ to achieve that goal:”

               1) Whether other incidents of the charged offense are increasingly
               present in the community, jurisdiction, or in the state as a whole.
               ....
               2) Whether the defendant’s crime was the result of intentional,
               knowing, or reckless conduct or was otherwise motivated by a desire
               to profit or gain from the criminal behavior.
               ....
               3) Whether the defendant’s crime and conviction have received
               substantial publicity beyond that normally expected in the typical
               case.
               ....



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               4) Whether the defendant was a member of a criminal enterprise, or
               substantially encouraged or assisted others in achieving the criminal
               objective.
               ....
               5) Whether the defendant has previously engaged in criminal conduct
               of the same type as the offense in question, irrespective of whether
               such conduct resulted in previous arrests or convictions.

Id. at 10-12 (emphasis omitted). The court noted that these factors were meant as a guide and need
not all be present before incarceration is deemed appropriate. Id. at 12.

        In its opening argument at the sentencing hearing, the state asked the trial court to take
judicial notice of its docket and asserted that it showed that methamphetamine-related offenses were
rampant in that judicial district. At the conclusion of the sentencing hearing, the trial court stated
the following:

                I’ve been on the bench for 11 years and was assistant district attorney
                for about 5 years, and I was a defense lawyer for about 17 years, and
                in the drug world, it seems like things go in cycles. I think of all of
                the things I have seen, methamphetamine is–and drugs in that
                category–pose one of the greater threats to our society.

The defendant contends that this comment is based upon the trial judge’s personal observations and
is insufficient to establish an increasing presence of methamphetamine-related offenses in the
community, jurisdiction, or state.

         Although a judge may judicially notice some facts establishing a need for deterrence, the trial
court’s extrajudicial observations are not the proper basis for sentencing. Hooper, 29 S.W.3d at 13;
see Tenn. Code Ann. § 40-35-210(g) and Sentencing Commission Comments. “A judicially noticed
fact must be one not subject to reasonable dispute, in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201(b). On the other
hand, “a court may not consider facts outside the record that are within the judge’s personal
knowledge under the guise of taking judicial notice.” State v. Nunley, 22 S.W.3d 282, 288 (Tenn.
Crim. App. 1999).

        In the present case, the trial judge’s observations that drug offenses are cyclical and that
methamphetamine is one of the more dangerous drugs to society come from his personal knowledge,
not just the court docket. His observations are not generally known within Coffee County nor are
they readily determined from some unquestionably accurate source. Even if the trial court had relied
solely upon his observations from the bench, general statements that drugs are a problem in a
particular county “cannot serve as a substitute for factual findings containing comparisons to indicate
increased drug use” in the county, requiring a need for deterrence. State v. Fields, 40 S.W.3d 435,


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442 (Tenn. 2001). We agree with the defendant that the record contains no evidence of a particular
need to deter the manufacture of methamphetamine in the community, jurisdiction, or state as a
whole.

        In our de novo review, we also observe that the other four factors from Hooper do not support
a need for deterrence, especially in the absence of factor one. With regard to factor two, our supreme
court has noted:

               Actions that are the result of intentional, knowing, or reckless
               behavior or those motivated by a desire to profit from illegal activity
               are probably more deterrable than those which are not the result of a
               conscious effort to break the law. . . . . Common sense tells us that
               we may have less ability to deter crimes which are the result of
               provocation, sudden and extreme passion, or even negligent behavior,
               irrespective of whether others who commit similar crimes are
               incarcerated or given probation.

Hooper, 29 S.W.3d at 11. In the present case, the record is devoid of any evidence that the defendant
sought financial profit from the manufacture of drugs in her home. The state argues that the
defendant stood to gain from the production of drugs in her home through her personal use of the
methamphetamine. We agree that the defendant did benefit from the manufacture of
methamphetamine in this way. Nevertheless, in view of the surrounding circumstances in this case,
we believe this factor alone is insufficient to support the need for deterrence and the particular
suitability of full incarceration in achieving that goal.

        The record contains no evidence that the case received any publicity, the subject of factor
three. With respect to factor four, that the defendant substantially encouraged or assisted others in
a criminal enterprise, the state in oral argument before this court maintained that the defendant
cannot plead guilty to manufacturing methamphetamine and then deny assisting others in
manufacturing the drug. It also pointed to the defendant’s moving the duffle bag containing drug
paraphernalia to the dog house from her daughter’s doll house as evidence of assistance. The record
reflects that the defendant’s involvement in the manufacturing of methamphetamine was limited to
her awareness that it was occurring in her home. Although moving the duffle bag could suggest that
the defendant was attempting to conceal evidence that drugs were being manufactured in her home,
nothing in the record suggests that the dog house was a better hiding place than the doll house. We
believe that the minimal evidence in support of factor four cannot be deemed substantial assistance
under the circumstances of this case.

        Finally, with regard to factor five, which relates to undetected or unprosecuted criminal
conduct of the same type as the conviction, the record contains no evidence that the defendant has
ever manufactured methamphetamine herself. The record does reflect that she was aware that
methamphetamine was being manufactured in her home for some time. The limited portions of the
record relating to the facts surrounding the offenses show that the defendant’s husband was allowing


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others to manufacture methamphetamine in the home he shared with the defendant and their
daughter. Laura Prosser testified that the defendant had told her that the defendant’s husband was
physically and mentally abusive. Brenda Turner testified that defendant feared her husband. We
believe that the evidence that the defendant’s awareness that methamphetamine was being
manufactured in her home is insufficient to show that her incarceration would rationally deter others
who are likely to commit similar crimes and find themselves in a similar situation, particularly when
viewed in the perspective of the defendant’s abusive marriage. The evidence does not support a
sentence of full incarceration based solely upon a need for deterrence.

        The trial court also sentenced the defendant to full confinement in order to avoid depreciating
the seriousness of the offense. See Tenn. Code Ann. § 40-35-103(1)(B). “For this provision to
apply, the circumstances of the offense ‘as committed, must be “especially violent, horrifying,
shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,” and the
nature of the offense must outweigh all factors favoring probation.’” Fields, 40 S.W.3d at 441
(quoting State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985) (quoting State v. Travis, 622 S.W.2d
529, 534 (Tenn. 1981)), overruled on other grounds by Hooper, 29 S.W.3d at 9); State v. Hartley,
818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991). In the present case, the trial court made no
findings regarding the circumstances of the offense. Our de novo review of the record reveals that
the sparse facts relating to the defendant’s conviction for manufacturing methamphetamine were not
particularly exaggerated or excessive. Thus, the circumstances of the offense do not overcome the
presumption in favor of an alternative sentence.

        On the other hand, the evidence does reveal that some confinement would be appropriate to
emphasize to this defendant the seriousness of her actions. The proof reveals that although the
defendant had no prior criminal convictions, she admitted using drugs for over ten years and reported
using one gram of methamphetamine monthly. The two crimes to which the defendant pled guilty
occurred over a year apart, which indicates a sustained intent to engage in criminal activity relating
to methamphetamine. Although we do not believe that the record justifies a sentence of full
confinement based upon the defendant’s criminal history as suggested by the state, we believe that
the defendant’s criminal conduct justifies some confinement to avoid depreciating the seriousness
of the offense and to impress upon the defendant the seriousness of her actions. See State v. Butler,
880 S.W.2d 395, 401 (Tenn. Crim. App. 1994) (holding that the circumstances of the offense did
not justify a sentence of full confinement but did warrant some confinement to avoid depreciating
the seriousness of the offense). To date, the defendant has served some eight months of her sentence
in confinement. Any concern about the circumstances surrounding the offense reflecting a particular
need for acknowledging the seriousness of the offense is more than fully met by the time the
defendant has already served.

        Based upon the foregoing and the record before us, we conclude that her three-year sentence
shall be suspended upon time previously served and that the remainder of the time shall be served




                                                 -7-
on supervised probation with the conditions to be set by the trial court. The judgment of conviction
is reversed, and the case is remanded to the trial court for entry of a new judgment consistent with
this opinion.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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