         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 24, 2007 Session

              STATE OF TENNESSEE v. THOMAS HARVILLE, JR.
                      Appeal from the Criminal Court for Sullivan County
                            No. S49,750 Phyllis H. Miller, Judge



                   No. E2005-02108-CCA-R3-CD - Filed February 15, 2008



In October 2004, a Sullivan County grand jury indicted the defendant, Thomas Harville, Jr., on one
count of violating his status as a habitual motor vehicle offender, a Class E felony. Following a June
2005 jury trial in Sullivan County Criminal Court, the defendant was convicted on the sole count of
the indictment and sentenced to two years as a Range I, standard offender, with the defendant to
serve eighty days in jail and the balance of his sentence on community corrections. The defendant
appeals, alleging that the trial court: (1) improperly admitted the preliminary hearing testimony of
a police officer when the state failed to show that the witness was unavailable at trial; (2) improperly
determined that the state could impeach the defendant with a prior felony conviction for evading
arrest; and (3) improperly sentenced the defendant. After reviewing the record, we conclude that the
defendant has waived the first issue on appeal and that the trial court committed no error as to the
other two issues. Accordingly, we affirm the judgment of the trial court.


           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                                         Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J.,
joined. JERRY L. SMITH , J., filed a separate opinion concurring in part and dissenting in part.

George Todd East, Kingsport, Tennessee, for the appellant, Thomas Harville, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; William Harper, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                              OPINION

       At trial, Fritz Fallin testified that on December 27, 2003, he was driving on Stone Drive
toward Lynn Garden Drive in Kingsport, Tennessee. Around 11:00 p.m., he noticed a tan truck
speeding and traveling in the wrong direction on Lynn Garden Drive. Fallin contacted police on his
cellular phone and turned around to follow the speeding truck. The truck turned into a Shell gasoline
station, and the truck’s driver then exited the vehicle. The police arrived on the scene a short time
later.

         Over the defendant’s objection, the transcript of the preliminary hearing was entered into
evidence as the testimony of Officer Matt Cousins of the Kingsport Police Department because the
trial court determined that Officer Cousins was unavailable at trial due to his being on active military
duty in Iraq. At the preliminary hearing, Officer Cousins testified that he responded to the call at the
Shell station. When Officer Cousins arrived in the area of Lynn Garden Drive and Virginia Street,
he saw a tan Chevrolet truck turning right onto Virginia Street from Lynn Garden Drive. He then
saw the truck enter the parking lot of a Shell station. After the truck pulled into a parking space, the
defendant exited the driver’s side and walked into the store. Officer Cousins questioned both the
defendant and a passenger in the vehicle. The defendant denied driving the truck, and the passenger
did not tell Officer Cousins that the defendant had been driving the truck.

        Corporal Todd Harrison with the Kingsport Police Department testified that he also
responded to the call at the Shell station the evening of December 27, 2003. When he arrived at the
scene, he observed Officer Cousins standing outside a tan truck, talking with the defendant.
Corporal Harrison spoke briefly with Fallin about what he had seen that night. Corporal Harrison
then relayed this information to Officer Cousins.

       Raymond Winters, the Sullivan County Clerk of Circuit Court, testified that on February 28,
1994, a judgment was entered declaring the defendant to be a habitual motor vehicle offender.

         Rick Brooks, testifying for the defendant, said that he owned the truck in question. He
testified that on the evening of December 27, he and the defendant were “hanging out” at the
defendant’s house, with the defendant drinking three beers during the evening. The defendant then
received a call from his wife, asking that the two men pick her up from her parents’ house. The two
men then left the defendant’s house. Brooks testified that although the defendant wanted to drive
the truck, he actually drove the truck that evening. Brooks said that he made a wrong turn at the
intersection of Lynn Garden Drive and Stone Drive which resulted in the truck traveling in the wrong
direction on Lynn Garden Drive. Brooks then turned around and sped up to at least sixty-five miles
per hour because he wanted to see how fast the truck would run. Brooks then stopped at a Shell
station because the defendant wanted some cigarettes. According to Brooks, he did not turn onto
Virginia Street to get to the gasoline station. Once Brooks pulled into the parking lot, he let the
defendant out of his truck on the driver’s side because the passenger-side door was difficult to open.
Brooks testified that he told more than one of the officers, including Officer Cousins, that he was
driving the truck.

        At the conclusion of the case, the jury convicted the defendant. The trial court sentenced the
defendant to two years on community corrections, with the defendant to serve eighty days in jail.
The trial court later amended the defendant’s sentences, granting the defendant good time credit for


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twenty-five percent of the eighty days. This appeal follows.

                                             ANALYSIS

                                        Unavailable Witness

        The defendant first argues that the trial court improperly admitted the preliminary hearing
testimony of Officer Cousins at trial because the state failed to establish that the witness was
unavailable. The state counters that the record does not support the defendant’s claim and that the
preliminary hearing transcript was properly admitted into evidence. The defendant did not object
to the admission of the transcript on the basis that the state did not prove that Officer Cousins was
unavailable. As a result, we conclude that the defendant has waived the issue on appeal.


        The Tennessee Rules of Evidence define hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible unless an exception to the hearsay rule
applies. Tenn. R. Evid. 802.


        One such exception to the hearsay rules is the “former testimony” exception. According to
the Rules of Evidence, the former testimony of a declarant who is unavailable as a witness is
admissible. Tenn. R. Evid. 804. Unavailability can be satisfied in several ways, including if the
declarant “is absent from the hearing and the proponent of a statement has been unable to procure
the declarant’s attendance by process.” Tenn. R. Evid. 804(a)(5). As relevant to this case, the Rules
of Evidence define former testimony as “[t]estimony given as a witness at another hearing of the
same or different proceeding . . . if the party against whom the testimony is now offered had both
an opportunity and a similar motive to develop the testimony by direct, cross, or redirect
examination.” Tenn. R. Evid. 804(b)(1). A preliminary hearing transcript “is precisely the type of
former testimony contemplated under [Rule 804(b)(1)].” State v. Michael Dwayne Hatfield, No.
03C01-9307-CR-00233, 1994 WL 102072, at *3 (Tenn. Crim. App., at Knoxville, Mar. 29, 1994);
see Tenn. R. Evid. 804(b)(1), Advisory Comm’n Cmts.


        Additionally, both the Sixth Amendment to the United States Constitution and article I,
section 9 of the Tennessee Constitution give the defendant the right to confront all witnesses against
him. Regarding the Confrontation Clause, the Tennessee Supreme Court has determined:


       When the prosecution seeks to introduce a declarant’s out-of-court statement, and a
       defendant raises a Confrontation Clause objection, the initial determination under
       Crawford[v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)] is whether
       the statement is testimonial or nontestimonial. If the statement is testimonial, then
       the trial court must determine whether the declarant is available to testify. . . . If the


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       declarant is unavailable, the trial court must determine whether the accused had a
       prior opportunity to cross-examine the declarant about the substance of this
       statement. Id. at 68, 124 S. Ct. at 1354. If the accused had such an opportunity, the
       statement may be admissible if it is not otherwise excludable hearsay. If the accused
       did not have this opportunity, then the statement must be excluded.


State v. Maclin, 183 S.W.3d 335, 351 (Tenn. 2006). See also State v. Summers, 159 S.W.3d 586,
597 (Tenn. Crim. App. 2004) (“[T]he State must show that the declarant is truly unavailable after
good faith efforts to obtain his presence” and that “the evidence carries its own indicia of
reliability.”).


         In this case, the defendant cross-examined Officer Cousins during the pretrial hearing, so the
defendant’s right to confront the witness was satisfied. The defendant argues on appeal that the state
did not establish that the witness was in fact unavailable, as is required under Crawford, Maclin, and
Summers, but the defendant did not raise this argument at trial. Instead, the record reflects that at
trial, the prosecutor indicated that Officer Cousins was serving in Iraq and would be unavailable to
testify at trial. The prosecutor stated that he was in possession of an e-mail from Officer Cousins’s
commanding officer, which indicated that the earliest Officer Cousins would return to Tennessee
would be five months from the trial date. The prosecutor inquired whether to file the copy of the e-
mail from the commanding officer as an exhibit. Defense counsel did not question whether the
witness was in Iraq and therefore unavailable; furthermore, defense counsel did not ask to exhibit
the e-mail or even view it, according to the record. Rather, the defendant based his objection to the
pretrial statement on the fact that the witness’s “demeanor wouldn’t be here for the jury to follow,”
and that he would be unable to cross-examine the witness in light of “some questions that may
develop through the course of the trial.” Such concerns have been addressed by the Tennessee
Supreme Court in adopting and interpreting the Rules of Evidence, including the hearsay exceptions,
and therefore the trial court properly ruled that the pretrial statement was admissible under the former
testimony hearsay exception. In short, because the defendant did not dispute the fact that Officer
Cousins was unavailable at trial, he may not raise the issue on appeal. See Tenn. R. App. P. 36(a)
(explaining that a party’s failure to raise an objection at trial waives the issue on appeal). The
defendant is therefore denied relief on this issue.


                         Impeachment of Appellant with Prior Conviction


        The defendant next contends that the trial court erred by ruling that the state could impeach
him with his 2000 felony conviction for evading arrest if he took the stand. The defendant argues
that this ruling prejudiced him because it “prevented” him from testifying at trial. The state
disagrees, arguing that the record supports the trial court’s decision. We agree with the state.


       Rule 609 of the Tennessee Rules of Evidence permits the state to impeach a defendant with

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his prior convictions if certain conditions are met. First, the prior conviction must be for a felony
or a misdemeanor involving “dishonesty or false statement.” Tenn. R. Evid. 609(a)(2); State v.
Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). Fewer than ten years must have elapsed between the
defendant’s release from confinement for the prior conviction and the commencement of the present
prosecution. Tenn. R. Evid. 609(b). Additionally, the state must give the defendant reasonable
pretrial notice of the impeaching convictions. Tenn. R. Evid. 609(a)(3). Finally, the trial court must
find that the impeaching conviction’s probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues. This final condition is the one at issue here.


        In determining whether the probative value of a prior conviction on the issue of credibility
outweighs its unfair prejudicial effect, a trial court should consider the similarity between the crime
in question and the underlying impeaching conviction, as well as the relevance of the impeaching
conviction with respect to credibility. Mixon, 983 S.W.2d at 674; State v. Farmer, 841 S.W.2d 837,
839 (Tenn. Crim. App. 1992). “To determine how probative a felony conviction is to the issue of
credibility, the trial court must assess whether the felony offense involves dishonesty or false
statement.” State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003). If “the prior conviction and instant
offense are similar in nature the possible prejudicial effect increases greatly and should be more
carefully scrutinized.” Long v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980). A trial court’s
decision to admit a prior conviction under Rule 609 will not be reversed on appeal unless the trial
court abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).


         In this case, we note that this court has previously determined that felony evading arrest is
not a crime of dishonesty. State v. Bruce Marvin Vann, No. W2002-00161-CCA-R3-CD, 2003 WL
1702277, at *7 (Tenn. Crim. App., at Jackson, Mar. 31, 2003). However, as was the case in Bruce
Marvin Vann, we conclude that the trial court properly ruled that the state could use the conviction
for impeachment purposes. The trial involved a “swearing match” among witnesses, in which the
jury had to assess the credibility of the state’s witnesses, who testified that the defendant drove the
truck, as well as that of the defendant’s witness, who claimed that the defendant did not drive that
evening. The credibility of the witnesses was the paramount issue. Thus, had the defendant taken
the stand, this felony conviction would have had probative value as to his credibility. Additionally,
as the trial court noted, there is no similarity between the prior offense and the offense for which the
defendant was being tried. Therefore, we conclude that the trial court did not abuse its discretion
in ruling that the state could use the defendant’s felony evading arrest conviction for impeachment
purposes. Thus, the defendant is not entitled to relief on this issue.


                                              Sentencing


       Finally, the defendant contends that the trial court improperly denied full probation or a full




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alternative sentence.1 As stated above, the trial court sentenced the defendant as a Range I, standard
offender, to two years, with the defendant to serve eighty days in jail and the balance of the sentence
on community corrections. A later order of the trial court reduced the jail term by twenty-five
percent, or twenty days. The defendant argues that serving “60 days incarceration would serve to
eliminate the positive work history that he has established,” and that the sentence is “improper given
the work history and the testimony presented before the Court.” We disagree.


        An appellate court’s 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) (2003).2 As the
Sentencing Commission Comments to this section note, on appeal the burden is on the defendant
to show that the sentence 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, the court 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 this respect, for the purpose of meaningful appellate review,


         [T]he trial court must place on the record its reasons for arriving at the final
         sentencing decision, identify the mitigating and enhancement factors found, state the
         specific facts supporting each enhancement factor found, and articulate how the
         mitigating and enhancement factors have been evaluated and balanced in determining
         the sentence. Tenn. Code Ann. § 40-35-210(f) (1990).


State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).


       In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of


         1
           Although the M otor Vehicle Habitual Offenders Act, Tennessee Code Annotated §§ 55-10-601-618 (2004) ,
states that a trial court may not suspend a sentence or fine under the Act, this court has ruled that alternative sentences
are appropriate for persons sentenced under the Act. State v. Martin, 146 S.W .3d 64, 70 (Tenn. Crim. App. 2004).

         2
          W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-
102(6), -114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are
inapplicable to the defendant’s appeal because the defendant, who was arrested and indicted before the Sentencing
Guidelines were amended, did not elect to be sentenced under the revised law.

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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 his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d
229, 236-37 (Tenn. 1986).


                                         Length of Sentence


       Although not raised by either party, we must first address whether the trial court erred by
imposing a two-year sentence. At the sentencing hearing, the trial court noted the existence of the
following enhancement factors:


       (1) The defendant has a previous history of criminal convictions or criminal behavior
       in addition to those necessary to establish the appropriate range;
       (9) The defendant has a previous history of unwillingness to comply with the
       conditions of a sentence involving release in the community; and
       (11) The defendant had no hesitation about committing a crime when the risk to
       human life was high.


Tenn. Code Ann. § 40-35-114(2), (9), and (11) (2003). The trial court also applied the defendant’s
work history as a mitigating factor but ultimately imposed a two-year sentence, the maximum
allowed for a person convicted of a Class E felony as a Range I, standard offender. See Tenn. Code
Ann. § 40-35-112(a)(5) (2003).


         Under the law as it existed before the 2005 amendment, unless enhancement factors were
present, the presumptive sentence to be imposed was the minimum in the range for a Class E felony.
Tenn. Code Ann. § 40-35-210(c) (2003). Tennessee’s pre-2005 sentencing act provided that,
procedurally, the trial court was to increase the sentence within the range based on the existence of
enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Id. at
(d), (e). However, the Tennessee Supreme Court recently held that this system, which allowed the
trial court to enhance a defendant’s sentence based on factors that had not been found by a jury
beyond a reasonable doubt, violated a defendant’s Sixth Amendment rights as interpreted by the
Supreme Court. State v. Gomez, 239 S.W.3d 733, 740-41 (Tenn. 2007) (“Gomez II”) (citing
Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 860 (2007)); See also Blakely v.
Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) (quoting Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)) (“‘Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’”). Thus, the trial court’s application of enhancement factors (9)
and (11) to the defendant’s sentence was improper.


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        However, in this case the presentence report details, and the trial court noted at the sentencing
hearing, that the defendant had a record of over twenty convictions, including a felony conviction
for a previous habitual motor vehicle offender violation, a felony conviction for resisting arrest, and
numerous misdemeanor convictions for such offenses as assault, vandalism, public intoxication, and
driving on a revoked license. In imposing an enhanced sentence, the trial court stated, “if I just go
on your criminal history [your sentence] should be enhanced to two years.” We agree with the trial
court’s reasoning and conclude that the defendant’s extensive history of criminal convictions was
enough to justify the trial court’s imposing the maximum sentence in this case.


                                         Alternative Sentence


         We next consider the defendant’s stated issue, whether the trial court erred in ordering the
defendant to serve a sixty-day jail sentence before serving the rest of his term on community
corrections. The defendant was convicted of a Class E felony and sentenced as a standard offender;
thus, he was “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) (2003). However, this presumption
does not entitle an offender who meets this standard to relief; rather, sentencing issues must be
determined by the facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d
919, 922 (Tenn. Crim. App. 1987) (citing Moss, 727 S.W.2d at 235). Even if a defendant is
presumed to be a favorable candidate for alternative sentencing, the statutory presumption may be
overcome if (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)). A trial court should also consider a 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 435, 438 (Tenn. Crim. App. 1996).
Furthermore, the trial court may consider a defendant’s untruthfulness and lack of candor as they
relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919
S.W.2d 69, 84 (Tenn. Crim. App. 1995).


        The presentence report contained a statement from the defendant in which he claimed that
he was a passenger in the truck the night he was arrested, and he also claimed that he exited the truck
by sliding out the driver’s side door because the passenger-side door “would not shut good unless
you were outside the truck.” The defendant also stated that he told police that he was not driving
that night and had done nothing wrong. The trial court noted that this statement went against the
evidence produced at trial; therefore, the trial court found that the defendant was not being truthful
and did not take responsibility for his actions. Based on these findings, as well as the fact that the
defendant had previously served time on community corrections, the trial court concluded that the


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defendant’s potential for rehabilitation was “extremely low.” In light of this evidence, we conclude
that the trial court properly sentenced the defendant to a period of confinement before serving the
rest of his sentence on community corrections. Thus, the defendant is not entitled to relief on this
issue.


                                         CONCLUSION


        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                             _______________________________
                                                             D. KELLY THOMAS, JR., JUDGE




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