        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 25, 2009

                 STATE OF TENNESSEE v. JOHNNY L. SAPP

              Direct Appeal from the Circuit Court for Bledsoe County
                       No. 29-2006 J. Curtis Smith, Judge




                No. E2008-00663-CCA-R3-CD - Filed March 31, 2010


The appellant, Johnny L. Sapp, was found guilty of one count of possession of a motor
vehicle from which the serial number has been removed in violation of Tennessee Code
Annotated section 55-5-111 and two counts of altering the serial number on a motor vehicle
in violation of Tennessee Code Annotated section 55-5-112. He received a total effective
sentence of two years. On appeal, the appellant argues that the evidence was insufficient to
support his convictions; that his convictions for possession of a motor vehicle from which
the serial number had been removed and altering the serial number on a motor vehicle violate
double jeopardy; and that the trial court erred in denying judicial diversion or probation.
Upon review, we affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are
                                     Affirmed.

N ORMA M CG EE O GLE , J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Johnny L. Sapp.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; J. Michael Taylor, District Attorney General; and James William Pope, III,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background
       In March 2006, the Bledsoe County Grand Jury returned a multi-count indictment
against the appellant, charging him with theft of property valued over $60,000; possessing
a Kubota tractor from which the serial number was removed; possessing a 1992 Ford F250
truck from which the serial number was removed; destroying or altering a serial number on
a Kubota tractor; destroying or altering a serial number on a 1992 Ford F250 truck;
destroying or altering a serial number on a 1997 Ford F350 truck; possessing a Woods front-
end loader from which the serial number was altered, covered, defaced, destroyed, or
removed; possessing a Sundowner horse trailer from which the serial number was altered,
covered, defaced, destroyed, or removed; removing the serial number from a Woods front-
end loader; and removing the serial number from a Sundowner horse trailer.

       At trial, William Henry Shugart testified that he was a cattle farmer from Cohutta,
Georgia. Shugart said that on December 14, 2002, his Kubota tractor with a Woods front-
end loader, which together were valued at $40,900, were stolen from him while he was at
church. Later, police found the tractor and front-end loader and returned the items to
Shugart. A vehicle identification number (VIN) plate was missing from the loader and was
replaced by an American flag sticker. Additionally, a sticker which reflected that the tractor
was an M9000 model had been placed over a sticker which had the correct model number
M8200.

       Charles Kent testified that he owned a small tractor business in Calhoun, Georgia. He
said that he owned a 1997 Ford F350 truck valued at $20,000 and that he kept the truck
inside a fence at the business. In 2001, the truck was stolen. He said that the truck had all
its proper VIN stickers in place. Kent said that the loss of the truck was devastating to his
family business. The truck was eventually recovered by police.

        Lynn Evans, a deputy sheriff who lived in Hillsboro, Ohio, testified that he owned an
EBY stock trailer valued at approximately $10,000 to $11,000. On December 22, 2001, the
trailer was stolen from his farm in Highland County, Ohio. Evans said he eventually got his
trailer back, and the trailer still had its VIN stickers in place.

       Linda Simmons testified that she lived in Ringold, Georgia, and that in March 2002,
her Sundowner horse trailer valued at $15,000 to $16,000 disappeared from her property. She
said the trailer had been a “special order.” She did not get her trailer back but was
compensated by her insurance company.

      John Lamb testified that he lived in Dalton, Georgia. Lamb and the appellant worked
for CSX Railroad, and the appellant had previously done some “backhoe work” at Lamb’s
house. Lamb said that in 1993 or 1994, he bought a used all terrain vehicle (ATV) for



                                             -2-
$3,000 and kept it in a building on the side of his house. In September 1995, the ATV was
stolen. Later, the ATV was located in Bradley County, Tennessee, and was returned to him.

       Jeff Stiles, a criminal investigator with the Tennessee Highway Patrol, testified that
on May 7, 2005, he went to the appellant’s residence after receiving information about a
stolen M8200 Kubota tractor with a Woods front-end loader. Investigator Stiles said:

                     The house that we went to, I don’t remember exactly who
              the owner was, it wasn’t [the appellant], it was just a small
              parcel of ground in front of [the appellant’s] property that there
              was a trailer on that [the appellant] was residing in, along with
              family. The farm was actually in the name of [the appellant].

Investigator Stiles said that the appellant’s property was a “working farm” and that the
trailers and equipment at the residence appeared to have been used. Investigator Stiles asked
the appellant if he could look at the Kubota tractor the appellant had, and the appellant gave
his permission. Investigator Stiles said he saw a sticker identifying the tractor as an M9000
and thought he had the wrong tractor. He looked for a serial number on the Woods front-end
loader, but it was missing; the area where the serial number plate should have been was
“clean,” appearing as if a plate had never been there. Additionally, there was no VIN on the
Kubota tractor. However, Investigator Stiles was able to identify the tractor as Shugart’s by
using a “confidential number” which had been placed on the vehicle by the manufacturer.
The appellant told Investigator Stiles that he bought the Kubota tractor in September or
October 2004 from a man who lived in Rome, Georgia, and whose surname was Russell. He
said he paid cash and had no documentary proof of ownership for the Kubota tractor.

        With the appellant’s permission, Investigator Stiles looked at the appellant’s other
vehicles and equipment. Investigator Stiles examined a black Ford truck which the appellant
said was a 1992 model. Several envelopes blocked Investigator Stiles’ view of the VIN plate
on the dashboard. Investigator Stiles told the appellant that he could not see the VIN plate,
and the appellant directed Investigator Stiles’ attention to the VIN sticker on the door jamb
of the truck. Investigator Stiles said that a VIN sticker applied by a manufacturer is smoothly
adhered; however, the VIN sticker on the door jamb was “peeling off,” had red paint on the
back, and read “VOID,” an indication that it had been peeled off of another vehicle.
Investigator Stiles explained:

                      The [VIN] plates are usually adhesive type plates, like
              glued or riveted on, and the reason they do that is where you
              can’t remove them and make them difficult to remove. The only
              way to remove these, you drill the rivets out and you can remove

                                              -3-
              it, that scratches up the plate and makes it noticeable, or when
              you peel the adhesive tape off, they’re made to self-destruct
              where you can’t peel them off. They’re made to either tear apart
              or leave some type of imprint, the adhesive on there that had the
              wording . . . void or something like that. Usually they say void
              on them after you peel them off to where you can know that
              they’ve been removed.

                     ....

                      I’ve worked auto theft a lot . . . and worked a lot of chop
              shops and things like that, and what people do, I’ve seen them
              where they have torn [VIN stickers] off and didn’t know that
              they had to do that, but what most of them do, they have a paint
              remover. It looks kind of similar to a hair dryer, and heats paint
              up, or you can get a hair dryer that will mostly heat those up
              until the glue softens enough to where you can pull it off.

        Investigator Stiles performed a computer search of the VIN sticker on the door jamb
and discovered that the VIN was registered to a 1992 Ford F250 truck. The black truck’s
license plate was also registered to a 1992 Ford F250 truck. However, the black truck’s seat
belt indicated that it was made in 1996, the owner’s manual in the glove box was for a 1997
Ford F350, and the VIN plate on the dash under the envelopes was registered to a 1997 Ford
F350 which had been reported stolen. Investigator Stiles stated that a VIN sticker should
have been in the glove box of the 1997 Ford F350, but the sticker was missing. The
appellant told Investigator Stiles that he found the black 1997 Ford F350 truck in a “trader
magazine” and paid a man in East Alabama cash for it. However, he was unable to produce
documentary proof of ownership.

       On the appellant’s property, Investigator Stiles found the white 1992 Ford F250 to
which the VIN and the license plate on the black truck were registered. The appellant had
insurance coverage only on the 1992 truck. There was no VIN on the door jamb of the 1992
Ford F250. Investigator Stiles recalled that although the 1992 Ford F250 was white, the door
jamb was red. The VIN on the dash of the 1992 truck matched the VIN on the door jamb of
the 1997 truck. Investigator Stiles said he did not try to start the 1992 truck because the
battery was dead, and, due to the debris on the truck, he opined that the truck had not been
driven in quite a while.

      Investigator Stiles also discovered an EBY trailer on the appellant’s property. The
VIN plate on the trailer was intact, but the trailer had been reported stolen. The appellant

                                              -4-
told Investigator Stiles that Arnold DeBoard gave him the trailer as payment for money he
owed the appellant for the purchase of some cows. Additionally, Investigator Stiles found
a Sundowner horse trailer which had been reported stolen. The appellant said that he bought
the Sundowner horse trailer from a man at a horse sale in Cookeville. The VIN sticker was
missing from the dash of the horse trailer. Investigator Stiles also found on the appellant’s
property an ATV which had been reported stolen. The appellant told Investigator Stiles that
he found the ATV in a trader magazine and arranged to meet the man who owned it at a
McDonald’s parking lot in Calhoun, Georgia. Investigator Stiles testified that the appellant
did not have a title or any documentary proof of ownership for the trailer and the ATV.

       Investigator Stiles also found a Hudson trailer on the appellant’s property. The trailer
had been stolen from CSX Railroad after the railroad leased it from a rental company. The
appellant told Investigator Stiles that a “signal boy” with the railroad gave him permission
to take the trailer.

       Investigator Stiles said that none of the items on the appellant’s farm were concealed
or hidden. However, he said that “they weren’t easily visible from the road either.”

        Tim Duncan, a “special agent with the CSX Railroad Police Department,” testified
that Investigator Stiles invited him to be present when a search warrant was executed at the
appellant’s residence. While there, Duncan found numerous items belonging to CSX,
including fifteen cases of oil, track carts, toolboxes, portable derailers, radios, paper towels,
safety glasses, earplugs, and manual and electric hand tools. Duncan said that he saw more
CSX property at the appellant’s residence than he had seen at any CSX equipment depot.
Duncan said that, as an employee, the appellant was not permitted to stockpile equipment and
that no one was allowed to use CSX property for personal use unless CSX had no further use
for the property.

        The appellant testified that he was married, had three children, and worked for CSX
for thirty-one years. He said that he was the foreman of a “super cat crew” which performed
maintenance on the railroad track. The appellant explained that he was often “on the road”
for work and that his office was at his home. He said that as foreman, he was required to
supply his crew; therefore, supplies were routinely shipped to his home. He said that all of
the CSX equipment at his home was for his job, not for his personal use, because “there was
no other use for” the equipment.

       The appellant said his home was on a working farm. He said that “over the years,”
he had bought and sold a number of used vehicles and equipment. He explained that he
“like[d] to trade” and that he often bought trader magazines or went to auctions to find
equipment. He said that his trades and purchases were typically done in cash to make

                                               -5-
transactions easier. He also said that unless he specifically asked, he did not receive receipts
for his transactions.

        The appellant said that on the day Investigator Stiles came to his home, he was in the
process of rebuilding it after a fire. He maintained that he was given permission to use the
Hudson trailer to haul building materials for his home project and that he planned to return
the trailer to CSX but had not had time.

        The appellant said that he found an advertisement in a trader magazine for a 9000
model Kubota tractor with a Woods front-end loader. The appellant paid a man named
Russell $20,000 cash for the tractor. He said that stickers on the trailer reflected that the
trailer was a 9000 model and that he did not know the tractor was an 8200 model. The
appellant said that he did not check the tractor for a VIN when he bought it. He denied
removing a VIN from the tractor or the front-end loader. The appellant said that he did not
keep any equipment concealed or hidden on his farm.

        The appellant said that in late 2003 or early 2004, he had trouble with his 1992 Ford
F250 truck, so he bought a black 1997 Ford F350 truck that he found in a trader magazine.
The man who sold it to him told the appellant that the F350 had been wrecked and rebuilt and
that it would take some time to get a “rebuilder’s title.” 1 The appellant agreed to give the
man $3,500 upon delivery of the truck and $4,000 upon the delivery of the title. When the
man delivered the F350, the man removed the dealer’s license plate he had on the truck. The
appellant told him that he needed to be able to drive the F350 immediately, so the man took
the license plate from the appellant’s F250 and placed it on the F350. The appellant said the
man also removed a VIN sticker from the F250 and placed it on the door jamb of the F350.
The man then told the appellant, “Now then you can drive it.” The appellant denied directing
Investigator Stiles’ attention to the VIN sticker on the door of the F250, hiding the VIN plate
on the dashboard with envelopes, or telling Investigator Stiles that the truck was a 1992
model. The appellant said that when Investigator Stiles came to his house, he was still
waiting for the title to the F350.

        The appellant said that he had had the EBY trailer for three or four years, explaining
that Arnold Deboard gave him the trailer as payment for cattle Deboard bought from the
appellant. The appellant said he had owned the Sundowner horse trailer for “a little over a
year,” and he had paid $2,500 for it. The appellant said that he had owned the ATV for a
couple of years. He said he found the ATV in a trading magazine and paid a man $500 cash
for it.



       1
           The appellant did not disclose the name of the man who sold him the 1997 truck.

                                                   -6-
       At the conclusion of the trial, the jury found the appellant guilty of possessing the
1992 Ford F250 from which the serial number has been removed, altering the serial number
on the 1992 Ford F250, and altering the serial number on the 1997 Ford F350. The jury was
unable to reach a verdict on the theft offense, and a mistrial was declared. The appellant was
acquitted of the remaining offenses.

                                        II. Analysis

       On appeal, the appellant argues that evidence is insufficient to support his convictions
and that his convictions for possessing the 1992 Ford F250 from which the serial number has
been removed and for altering the serial number on the 1992 Ford F250 violate double
jeopardy. Additionally, he argues that the trial court erred in denying judicial diversion and
in denying full probation.

                              A. Sufficiency of the Evidence

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and 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, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

      Count three of the indictment charged the appellant with possessing a 1992 Ford F250
from which the VIN had been removed in violation of Tennessee Code Annotated section
55-5-111. Tennessee Code Annotated section 55-5-111 provides:

              Any person who knowingly buys, receives, disposes of, sells,
              offers for sale, or has in that person’s possession any motor
              vehicle, engine or transmission removed from a motor vehicle,
              from which the manufacturer’s serial, engine or transmission
              number or other distinguishing number or identification mark or
              number placed thereon under assignment from the division has

                                              -7-
               been removed, defaced, covered, altered or destroyed commits
               a Class A misdemeanor.

The appellant concedes that a VIN sticker had been removed from the door of the 1992 Ford
F250. However, he contends that because VIN stickers or plates were on the truck in other
locations, the evidence was therefore insufficient to sustain his conviction. We disagree. The
statute the appellant violated appears in the Code under the chapter entitled “Anti-Theft
Provisions.” It stands to reason that the purpose of the statute is to prevent the alteration of
identifying marks to mislead others about the identity of a vehicle, which is exactly what the
appellant did in this case. The appellant is not entitled to relief on this issue.

       Count five charged the appellant with unlawfully, knowingly, and fraudulently
destroying or altering the VIN on the 1992 Ford F250 in violation of Tennessee Code
Annotated section 55-5-112. Count six charged the appellant with unlawfully, knowingly,
and fraudulently destroying or altering the VIN on the 1997 Ford F350 in violation of
Tennessee Code Annotated section 55-5-112. Tennessee Code Annotated section 55-5-
112(a) provides:

               No person shall with fraudulent intent deface, destroy or alter
               the manufacturer’s serial, engine or transmission number or
               other distinguishing number or identification mark of a motor
               vehicle or its component parts, nor shall any person place or
               stamp any serial, engine, transmission or other number or mark
               upon a motor vehicle or its component parts, except one
               assigned by the department. A violation of this subsection (a)
               is a Class E felony.

The appellant argues that although the proof established that an identification sticker was
moved from the 1992 Ford F250 to the 1997 Ford F350, “[t]he record does not contain any
evidence that identification numbers on the vehicle[s] . . . were altered, defaced or
destroyed.”

        The proof adduced at trial demonstrates that the appellant with fraudulent intent
altered the VIN of the 1992 Ford F250 and the 1997 Ford F350. First, the appellant defaced
and altered the VIN sticker on the 1992 Ford F250 by removing it from the door jamb. The
appellant then placed that VIN sticker on the door jamb of the 1997 Ford F350 so that the
1997 truck appeared to be the 1992 Ford F250 for which the appellant had proper registration
and insurance. In sum, both vehicles had an altered VIN. Further, according to Investigator
Stiles, the appellant directed Investigator Stiles’ attention to the altered VIN sticker after the
investigator informed the appellant that he could not see the VIN plate on the dash, which

                                               -8-
would have revealed that the truck was a stolen 1997 Ford F350. Additionally, the VIN
stickers were missing from the glove box of both the 1992 and 1997 trucks, and an EPA
sticker on the engine of the 1997 truck read “void,” indicating the sticker had been peeled
off. The appellant acknowledged that the 1992 truck’s VIN sticker was placed on the 1997
truck so he could drive it with the license plate that was registered to the 1992 truck. The
appellant maintained that someone else moved the VIN sticker, a claim the jury obviously
discredited. Accordingly, we conclude that the evidence is sufficient to uphold the
appellant’s convictions.

                                    B. Double Jeopardy

        The appellant next contends that his conviction for possessing the 1992 Ford F250
truck from which the serial number had been removed or altered and his conviction for
altering the serial number on the 1992 Ford F250 truck violate the principles of double
jeopardy. The double jeopardy clauses of the United States and Tennessee constitutions
protect an accused from: (1) a second prosecution following an acquittal; (2) a second
prosecution following conviction; and (3) multiple punishments for the same offense. See
State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). The instant case involves the third
category. In Tennessee, whether two offenses are the “same” for double jeopardy purposes
depends upon a close and careful analysis of the offenses involved, the statutory definitions
of the crimes, the legislative intent and the particular facts and circumstances. See State v.
Black, 524 S.W.2d 913, 919 (Tenn. 1975). This analysis is guided in part by the application
of the test announced in Blockburger:

              “[W]here the same act or transaction constitutes a violation of
              two distinct statutory provisions, the test to be applied to
              determine whether there are two offenses or only one is whether
              each provision requires proof of an additional fact which the
              other does not.”

Black, 524 S.W.2d at 919 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
In order to determine if double jeopardy attaches, our supreme court devised a four-part test:

              (1) a Blockburger analysis of the statutory offenses;

              (2) an analysis, guided by the principles of [Duchac v. State, 505
              S.W.2d 237, 239 (Tenn. 1973)], of the evidence used to prove
              the offenses;




                                             -9-
              (3) a consideration of whether there were multiple victims or
              discrete acts; and

              (4) a comparison of the purposes of the respective statutes.

Denton, 938 S.W.2d at 381. However, “if the offenses are the ‘same’ under Blockburger,
the federal constitutional double jeopardy protections have been violated and the inquiry may
end.” State v. Hayes, 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999).

       As we stated earlier, Tennessee Code Annotated section 55-5-111 is aimed at
punishing the knowing buying, receiving, disposing of, selling, offering for sale, or
possessing a motor vehicle from which the identifying mark has been removed, in other
words, this “Anti-Theft Provision[]” seeks to punish those who buy, sell, receive, or possess
motor vehicles upon which the identifying mark has been removed. Tennessee Code
Annotated section 55-5-112(a) punishes someone who, with fraudulent intent, causes the
defacement, destruction, or alteration of the identifying mark(s) of a motor vehicle; in other
words, this statute is aimed at the person who actually defaces, alters, or destroys the
identifying marks. We conclude that the statutes in question prohibit different acts, require
different mental states, and contain different elements. Therefore, we conclude that the
appellant’s convictions do not violate the principles of double jeopardy.

                                    C. Judicial Diversion

        Next, the appellant contends that the trial court erred in denying him judicial
diversion. A defendant is eligible for judicial diversion when he or she is found guilty of a
Class C, D, or E felony and has not previously been convicted of a felony or a Class A
misdemeanor. See Tenn. Code Ann. § 40-35-313(a)(1)(B)(i) (2006). It is within the trial
court’s discretion to grant or deny judicial diversion. See State v. Parker, 932 S.W.2d 945,
958 (Tenn. Crim. App. 1996). Accordingly, the trial court’s decision will be overturned only
if the court abused its discretion. Id. In other words, we will not interfere with the denial of
judicial diversion if the record contains any substantial evidence to support the trial court’s
refusal to grant diversion. Id. Moreover, we observe that “judicial diversion is similar in
purpose to pretrial diversion and is to be imposed within the discretion of the trial court
subject only to the same constraints applicable to prosecutors in applying pretrial diversion
under [Tennessee Code Annotated section] 40-15-105.” State v. Anderson, 857 S.W.2d 571,
572 (Tenn. Crim. App. 1992).

      In determining whether to grant a defendant judicial diversion, the trial court must
consider all of the following factors: (1) the defendant’s amenability to correction, (2) the
circumstances of the offense, (3) the defendant’s criminal record, (4) the defendant’s social

                                              -10-
history, (5) the status of the defendant’s physical and mental health, and (6) the deterrence
value to the defendant and others. State v. Lewis, 978 S.W.2d 558, 566 (Tenn. Crim. App.
1997). “The trial court should also consider whether judicial diversion will serve the ends
of justice – the interests of the public as well as the accused.” Id. The record must reflect
that the trial court has taken all of the factors into consideration. State v. Electroplating, Inc.,
990 S.W.2d 211, 229 (Tenn. Crim. App. 1998).

        The trial court noted that the appellant’s “lack of criminal history, work history,
present condition, marital and family responsibility, and behavior since arrest” favored
judicial diversion. However, the trial court observed that the appellant’s “lack of candor in
this case was staggering.” The court said:

               Based on [the appellant’s] long history of buying, selling, and
               trading, and based on his general work experience, [he] certainly
               knew that the stolen items found in his possession required
               proof of ownership, yet he had not a single document on any of
               the stolen items. This court heavily weighs in this analysis [the
               appellant’s] glaring lack of truthfulness which extends to events
               that occurred over an extended period of time.

         “Lack of candor and credibility are indications of a defendant’s potential for
rehabilitation.” State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999). Generally,
a trial court is in the best position to assess the credibility of a defendant and his potential for
rehabilitation. Id. The appellant’s lack of credibility weighs against his amenability to
correction. See Anderson, 857 S.W.2d at 574. Additionally, the nature and circumstances
of an offense alone may support a denial of judicial diversion. State v. Kyte, 874 S.W.2d
631, 634 (Tenn. Crim. App. 1993). The trial court determined that the appellant was
involved in criminal behavior that “occurred over an extended period of time.” The
commission of offenses in separate actions over a period of time indicates a sustained intent
to violate the law on the part of the appellant. Therefore, we conclude that the trial court did
not err in denying judicial diversion.

                                        D. Full Probation

       The appellant’s final issue is whether the trial court erred in denying probation.
Appellate review of the length, range, or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court
considers the following factors: (1) the evidence, if any, received at the trial and the
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

                                               -11-
involved; (5) evidence and information offered by the parties on enhancement and mitigating
factors; (6) any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant
in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).
The burden is on the appellant to demonstrate the impropriety of his sentence(s). See Tenn.
Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals
that the trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

        The appellant was convicted of one count of possession of a motor vehicle from which
the serial number has been removed, a Class A misdemeanor, and two counts of altering the
serial number on a motor vehicle, a Class E felony. At the conclusion of the sentencing
hearing, the trial court sentenced the appellant, as a standard, Range I offender, to eleven
months and twenty-nine days for the Class A misdemeanor conviction, one year for the Class
E felony conviction relating to the 1992 truck, and two years for the Class E felony
conviction relating to the 1997 truck, with the sentences to be served concurrently for a total
effective sentence of two years. The trial court found that “an individual with [the
appellant’s] character for untruthfulness [should] serve a term of incarceration.” Therefore,
the court ordered the appellant to serve eleven months and twenty-nine days in the Bledsoe
County Jail for the Class A misdemeanor conviction, three months and eighteen days for the
Class E felony relating to the 1992 Ford F250 truck, and seven months and nine days for the
Class E felony relating to the 1997 Ford F350 truck. In sum, the appellant was ordered to
serve eleven months and twenty-nine days of his effective two-year sentence.

        An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a) (2006). The appellant’s sentences
meet this requirement. Additionally, an appellant who is an especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered a favorable candidate
for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6).2 Moreover, as set forth in Tennessee Code Annotated section 40-35-103(1),
sentences involving confinement should be based on the following considerations:



        2
            The appellant contends that he “is presumed to be a favorable candidate for alternative
sentencing.” However, as of June 7, 2005, Tennessee Code Annotated section 40-35-102(6) provides that
certain offenders “should be considered” favorable candidates for alternative sentencing instead of being
presumed favorable candidates for alternative sentencing. See State v. Carter, 254 S.W.3d 335, 346-47
(Tenn. 2005).

                                                  -12-
              (A) Confinement is necessary to protect society by restraining a
              defendant who has a long history of criminal conduct;

              (B) 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

              (C) Measures less restrictive than confinement have frequently
              or recently been applied unsuccessfully to the defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (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. See Tenn. Code Ann. § 40-35-
103(5).

        In the instant case, the trial court imposed a sentence of split confinement, which is
an alternative sentence. See Tenn. Code Ann. § 40-35-306(a) (2006); State v. Williams, 52
S.W.3d 109, 120 (Tenn. Crim. App. 2001). However, “[t]he determination of whether the
appellant is entitled to an alternative sentence and whether the appellant is entitled to full
probation are different inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.
1996). Therefore, an appellant seeking full probation bears the burden of establishing his
suitability for full probation. Id.; see also Tenn. Code Ann. § 40-35-303(b) (2006). To prove
his suitability, the appellant must establish that granting full probation will “subserve the
ends of justice and the best interest of both the public and the [appellant].” State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (internal quotation marks and citation
omitted), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 8 (Tenn. 2000).
Moreover,

                     [i]n determining one’s suitability for full probation, the
              court may consider the circumstances of the offense, the
              defendant’s potential or lack of potential for rehabilitation,
              whether full probation will unduly depreciate the seriousness of
              the offense, and whether a sentence other than full probation
              would provide an effective deterrent to others likely to commit
              similar crimes.

Boggs, 932 S.W.2d at 477.




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       As we observed earlier, an appellant’s lack of candor and his credibility are indicators
of his potential for rehabilitation, and the trial court is best positioned to assess credibility
and rehabilitative potential. Nunley, 22 S.W.3d at 289. The trial court found the appellant
had a “staggering” lack of candor which weighed against his amenability to correction and
demonstrated the need to serve a period of confinement. The record does not preponderate
against the trial court’s finding. Accordingly, we conclude that the trial court did not err in
denying full probation.

                                       III. Conclusion

       Based upon the foregoing, we affirm the judgments of the trial court.


                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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