       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            JANUARY 1998 SESSION          FILED
                                                           March 12, 1998

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 02C01-9702-CR-00065
      Appellee,                  )
                                 ) Shelby County
V.                               )
                                 ) Honorable Chris Craft, Judge
LARRY TORRES,                    )
                                 ) (Unlawful Possession of Over 10 Pounds
      Appellant.                 ) of Marijuana with Intent to Sell)




FOR THE APPELLANT:                  FOR THE APPELLEE:

A C Wharton, Jr.                    John Knox Walkup
Shelby County Public Defender       Attorney General & Reporter

Walker Gwinn                        Janis L. Turner
Assistant Public Defender           Counsel for the State
                                    Criminal Justice Division
William C. Moore, Jr.               450 James Robertson Parkway
Assistant Public Defender           Nashville, TN 37243-0493
201 Poplar Avenue, Suite 201
Memphis, TN 38103                   William L. Gibbons
(At Trial)                          District Attorney General

                                    John Campbell
                                    Assistant District Attorney General

                                    Jerry R. Kitchen
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
       Larry Torres, the appellant, pled guilty in the Shelby County Criminal

Court to the unlawful possession of over ten pounds of marijuana with intent to

sell. He agreed to a three-year sentence. The trial court denied Mr. Torres’

petition for a suspended sentence. Appellant appeals, arguing that the trial court

should have imposed a sentence of split confinement or probation. We affirm.



       The appellant is a resident of Corpus Christi, Texas. He is forty-three

years old. In October of 1995, the appellant mentioned to an acquaintance

named “Henry” that he needed money. Henry told the appellant about a plan to

transport approximately ninety pounds of marijuana from Dallas to Memphis.

The appellant testified that Henry arranged all the details. The appellant’s job

was only to carry a portion of the marijuana. He was to earn $1500.



       The appellant and Henry rode a Greyhound bus from Dallas to Memphis.

Upon arrival, a police dog trained to detect illegal substances alerted the police

to the appellant’s carry-on bag. The appellant fled on foot. He was caught and

subdued with mace. One officer suffered a minor injury. The appellant’s

baggage claim ticket matched a duffle bag that also contained marijuana. The

appellant’s bags contained a total of approximately fifty seven and one-half

pounds of marijuana. Henry escaped on foot. His bag contained approximately

thirty seven pounds of marijuana.



       When an appellant challenges the manner of service of a sentence, this

court reviews the evidence de novo with a presumption that the determinations

of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The

presumption of correctness is conditioned upon an affirmative showing that the

trial court considered the sentencing principles and all relevant facts and

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circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Our review

consists of an analysis of the evidence at the sentencing hearing, the

presentence report, the principles of sentencing, the arguments of counsel, the

nature and characteristics of the offense, mitigating and enhancement factors,

the defendant’s statements and the defendant’s potential for rehabilitation or

treatment. Tenn Code Ann. §§ 40-35-102 (Supp. 1994), -103(1990), -210

(Supp. 1992); Ashby, 823 S.W.2d at 169.



       When deciding a defendant’s suitability for probation, the trial court should

consider the defendant’s criminal record, social history, present physical and

mental condition, the nature and circumstances of the offense, the deterrent

effect on others, and the defendant’s potential for rehabilitation. Stiller v. State,

516 S.W.2d 617, 620 (Tenn. 1974). A sentence of confinement should be based

upon the following considerations: (1) confinement is necessary to protect

society by restraining a defendant who has a long history of criminal conduct; (2)

confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to others

likely to commit similar offenses; or (3) measures less restrictive than

confinement has been frequently or recently been applied unsuccessfully to the

defendant. Tenn. Code Ann. § 40-35-103(1)(A) - (C) (1990).



       At the hearing on his petition, the appellant testified that he has been

employed on and off in the construction industry for about five years. He holds

an associate’s degree from a junior college. At the time of his arrest, he was

working on a bachelor’s degree in physical education. In 1987, the appellant

volunteered to serve in the Army. He received an honorable discharge after four

and one-half years of service.




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       The appellant testified that he had never transported drugs before the

present offense, and he was forced to do so because he was unable to get

construction jobs and his bills were mounting. He testified that he did not know

who gave Henry the marijuana or to whom it was to be delivered. The appellant

testified that he and Henry rode a bus to Dallas where they checked into a motel.

Henry took their bags and filled them with marijuana while the appellant waited in

the room. The appellant testified that when they arrived in Memphis, he and

Henry were going to check into a motel. He was going to wait in the room while

Henry delivered the drugs and picked up the money.



       The presentence report indicates that the appellant was arrested for

possession of marijuana in 1985, 1992, and 1994. The appellant’s only

conviction was for misdemeanor possession of marijuana in 1985. He was

sentenced to six months probation. The 1992 arrest was for possession of

approximately nine and one half pounds of marijuana. The appellant testified

that he had smoked marijuana while out on bond for the present offense.



       Since his arrest, the appellant traveled from Corpus Christi to Memphis

several times for court dates. He admitted his guilt and expressed remorse for

his offense.



       The trial court denied the appellant’s petition for a suspended sentence

based on the enormity of the offense, the appellant’s prior criminal activity

involving drugs, the failure of rehabilitative efforts in the past, and the deterrent

effect that incarceration would have on the people who were to receive the

marijuana in Memphis. The court noted that the appellant had associated

himself with an operation to bring over ninety pounds of marijuana to Memphis.

The trial court said that, while he could not consider the 1992 charge of

                                          -4-
possession of nine and one-half pounds of marijuana as a conviction, he could

consider it as part of the appellant’s social history.



       On appeal, the appellant emphasizes that his criminal record consists only

of a misdemeanor conviction of marijuana and that the present offense is non-

violent. He argues that his trips from Texas to Memphis for court appearances

indicate that he will follow the requirements for release into the community. The

appellant asks us to modify his sentence to ninety days incarceration followed by

probation. The state essentially relies upon the factors articulated by the court to

support the denial of alternative sentencing.



        The appellant is presumed, absent evidence to the contrary, to be a

favorable candidate for alternative sentencing options. Tenn. Code Ann. §

40-35-102(5) & (6) (Supp. 1995). At the sentencing hearing, the state had the

burden of presenting evidence to rebut this presumption. The trial court implicitly

held that the state had fulfilled its burden by denying alternative sentencing. The

trial court considered the sentencing principles and facts; therefore, we review its

findings with a presumption of correctness, unless the evidence preponderates

otherwise.



       We affirm the judgment of the trial court. Incarceration is the least severe

measure necessary to achieve the purposes for which the sentence is imposed.

The evidence in the record supports the court’s finding that incarceration was

necessary to avoid depreciating the enormity or seriousness of the offense. The

appellant affiliated himself with a conspiracy or operation to transport over ninety

pounds of marijuana across state lines from Texas to Tennessee. The court

also properly considered the appellant’s arrest record as part of the appellant’s

overall social history. Despite the portrayal of the appellant as a neophyte in the

                                          -5-
drug trade, the appellant’s arrest record strongly suggests a more familiar

relationship with drugs. Finally, the court properly considered that rehabilitative

measures had been unsuccessful in the past. The appellant’s lack of potential

for rehabilitation is also supported by the appellant’s use of marijuana while on

bond for the present offense. There is no evidence that incarceration would

have a deterrent effect as required for reliance on this factor. See State v.

Ashby, 823 S.W.2d 166, 170 (Tenn. 1991).



       The judgment of the trial court is affirmed.




                                               __________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




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_____________________________
DAVID G. HAYES, Judge




_____________________________
JOE G. RILEY, Judge




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