             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                               APRIL 1999 SESSION
                                                             FILED
                                                               July 13, 1999

                                                            Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                         Appellate Court Clerk
                                 )      C.C.A. No. 02C01-9808-CC-00232
      Appellee,                  )
                                 )      Lake County
v.                               )
                                 )      Honorable R. Lee Moore, Jr., Judge
MERRIAN LOGAN,                   )
                                 )      (Sentencing)
      Appellant.                 )




FOR THE APPELLANT:                      FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.                 PAUL G. SUMMERS
113 North Court Square                  Attorney General & Reporter
P. O. Box 26
Waverly, TN 37185                       PETER M. COUGHLAN
(On Appeal)                             Assistant Attorney General
                                        425 Fifth Avenue North
G. STEPHEN DAVIS                        Cordell Hull Building, 2nd Floor
District Public Defender                Nashville, TN 37243-0493
208 North Mill Avenue
P. O. Box 742                           C. PHILLIP BIVENS
Dyersburg, TN 38025-0742                District Attorney General
(At Trial and Of Counsel on Appeal)     P. O. Drawer E
                                        Dyersburg, TN 38025-0220




OPINION FILED: ________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                     OPINION

       The appellant, Merrian Logan, referred herein as the “defendant,” appeals as of right

pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from a judgment of the

Lake County Circuit Court. Upon her plea of guilty to introduction of drugs into a penal

institution, a Class C felony, the trial court imposed a sentence of three years in the

Department of Correction, suspended to six months with the balance to be served on

supervised probation. The defendant presents one appellate issue: whether the trial court

erred in requiring her to serve six months in the Lake County Jail before being placed on

probation.



       Upon a review of the entire record, briefs of the parties, and applicable law, we

affirm the trial court’s judgment.



                                FACTUAL BACKGROUND



       On November 27, 1997, the defendant was arrested by the Lake County Sheriff’s

Department at the Northwest Correctional Complex for introducing marijuana into the

complex. Deputy Sheriff Joseph Vernon, while searching visitors at the complex,

discovered 48.6 grams of marijuana in the defendant’s baby carrier. The defendant was

at the complex to visit her husband, who was incarcerated for the offense of aggravated

robbery. On June 3, 1998, the defendant entered a plea of guilty to unlawfully introducing

a controlled substance, to wit, marijuana, into a penal institution. The trial court was to

determine an appropriate sentence and the defendant’s request for probation.              A

presentence report was ordered. At the conclusion of a sentencing hearing on July 21,

1998, the trial court sentenced the defendant to three years as a Range I, standard

offender. The court also ordered, after service of six months in the Lake County Jail, the

remainder of the defendant’s sentence to be served on supervised probation.




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                                 SENTENCING HEARING



       Joseph Vernon, deputy sheriff for Lake County and sergeant for the Department of

Correction at the Northwest Correctional Complex for fourteen years, testified that he

arrested the defendant at the complex. During a routine search of visitors, Sergeant

Vernon found 48.6 grams (two ounces) of marijuana in a baby carrier in the defendant’s

possession. The defendant was at the complex to visit her husband. The defendant

initially admitted to bringing the drugs into the complex and then denied it. The defendant

and her companion were arrested. Later, after booking, the defendant signed a waiver of

rights and admitted in a signed statement that the marijuana was hers. Her companion

was then released.



       As part of Sergeant Vernon’s duties at the complex, he compiles statistics on drug

use by inmates. Vernon testified that, after monthly random drug screens, twenty-five

percent of the inmates test positive for the presence of illegal drugs. The common form

of entry of drugs into the complex is through visitors. Visitors account for ninety to ninety-

five percent of the illegal entry of drugs into the complex. Thus, Sergeant Vernon testified

that heavy sentences are necessary to deter other visitors from bringing drugs into the

complex.



       The defendant testified she is a resident of Shelby County, Tennessee, and has four

children, ages 6, 8, 9, and 10. Her husband is incarcerated for aggravated robbery. At the

time of sentencing, the defendant was employed at Shoney’s and received an AFDC

supplement. The defendant graduated from high school and sought training at a beauty

college, but failed to complete the course. The defendant takes heart medication. The

defendant admitted she pled guilty to carrying marijuana into the prison. However, in the

presentence report, the defendant stated she did not know the marijuana was in the baby

carrier. Then, the defendant testified that her statement to the probation officer was true,

but “[i]t’s really not true because I knew that she had it. Once we had got there, I knew she

had it, but -- I really knew she had it.” The defendant admitted she was willing to “take the



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charge.” As to her written statement to Sergeant Vernon, the defendant testified “[h]e

wrote it, and I just agreed to it.”



       During cross-examination, the defendant testified her companion was really Tomeka

Birds, but she was using the alias Iris Gilliland. Birds’s baby was listed on the defendant’s

husband’s visitor list, because her husband felt like a godfather to the baby.           The

defendant testified she and Birds had shared an apartment for six months. Birds was at

the complex to see Henry Brooks, but was on Harry Dillard’s visitor list. The defendant

admitted her husband was not the father of any of her children.



       The presentence report verifies the defendant has no history of arrests or

convictions. Based upon this evidence, the trial court imposed a three-year sentence, with

supervised probation after serving six months in the Lake County Jail.



                             SENTENCING CONSIDERATIONS



       The defendant contends that she is entitled to complete probation and that to

incarcerate her for six months would work an undue financial hardship. She has four

children and a good work history. The state counters that the defendant is not worthy of

full probation on the basis she is unwilling to accept responsibility for her criminal conduct

and a particularized need for deterrence in this case, because it involved a penal

institution.



       When a defendant complains of the imposition of his or her sentence, we must

conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). Therefore, the burden of showing that the sentence is improper is upon the

appealing party. Id. The presumption that determinations made by the trial court are

correct 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); State v. Smith, 898 S.W.2d 742, 745 (Tenn.


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Crim. App. 1994), per. app. denied (Tenn. 1995).



       If appellate review reflects that the trial court properly considered all relevant facts,

and its findings of fact are adequately supported by the record, this Court must affirm the

sentence “even if we would have preferred a different result.” State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an

appropriate sentence, the trial court must consider: (1) the evidence, if any, received at

the guilty plea 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 involved; (5) evidence and information offered by the parties on

enhancement and mitigating factors; (6) any statements the defendant wishes to make in

the defendant’s behalf about the sentencing; and (7) the potential for rehabilitation and

treatment. Tenn. Code Ann. §§ 40-35-210(a) and (b), 40-35-103; State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993).



       From our review of the record, the trial court did consider the sentencing principles

of the Tennessee Criminal Sentencing Reform Act of 1989, thus our review is with a

presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Since

the defendant contends she should not have split confinement for six months, the record

must support the trial court’s judgment. In requiring the defendant to serve six months, the

trial court found confinement necessary to avoid depreciating the seriousness of the crime,

confinement was necessary as a general deterrence, and

              [t]he potential for rehabilitation is something that is very
              questionable because in this particular situation, we’ve had
              three or four different stories that Mrs. Logan has told about
              what actually happened. She comes in today and tells even a
              different story. With her attorney making every effort possible
              to get her to accept responsibility for the situation, she just
              refuses to completely do that. Under the circumstances, The
              Court feels that some period of incarceration is necessary
              although The Court does not feel that the presumptive
              minimum of three years total is necessary.



       In certain circumstances, a trial court may deny full probation and consider split

confinement based on the seriousness of the offense. To deny an alternative sentence

                                               5
based on the seriousness of the offense, “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 of

the factors that favor a sentence other than confinement. State v. Hartley, 818 S.W.2d

370, 374-75 (Tenn. Crim. App. 1991). We cannot say the facts in this record meet the

standards set forth in Hartley, 818 S.W.2d at 374-75. However, in arriving at a proper

sentence and its imposition, the trial court is entitled to inquire into the nature and

characteristics of the criminal conduct involved. Tenn. Code Ann. § 40-35-210(b)(4); State

v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983). We concur in the trial court’s finding

that some confinement is appropriate for this offense. The defendant made a conscious

decision to smuggle marijuana into a penal institution in a baby carrier and to deliver the

same to her husband. The Government has a legitimate interest in preventing visitors from

smuggling drugs into prisons. Thus, consideration of the seriousness of the offense was

appropriate.



       As part of ordering the defendant to split confinement, the trial court was concerned

with deterrence. Before the court considers deterrence, there must be some evidence in

the record that the sentence imposed will have a deterrent effect within the jurisdiction.

State v. Bonestel, 871 S.W.2d 163, 170 (Tenn. Crim. App. 1993). This Court has

repeatedly held that a finding of a deterrent effect within the jurisdiction cannot be merely

conclusory, but must be supported by proof. Ashby, 823 S.W.2d at 170.              There is

adequate evidence in the record to support the trial court’s determination that deterrence

is applicable in these facts. Sergeant Vernon testified that a random monthly check of

inmates for drugs reveals twenty-five percent of the inmate population tests positive for

drugs, and the main introduction of illegal drugs into the Northwest Correctional Complex

is through visitors. Sergeant Vernon testified that heavy sentences will act as a deterrent

in the prevention of drug smuggling into penal institutions. We find the trial court was

correct in considering this factor.



       Furthermore, in imposing the six-month confinement period, the trial court was



                                             6
concerned with the defendant’s lack of truthfulness and her potential for rehabilitation.

Credibility is best judged by the trial court, which is in the best position to see and evaluate

the testimony of a defendant. We have held that a defendant’s credibility and willingness

to accept responsibility for the offense are circumstances relevant to determining her

rehabilitation potential. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994);

State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim. App. 1992). We can logically

assume that one who seeks probation and who is less than truthful about her involvement

in the offense would have a poor potential for successful rehabilitation. Such consideration

of truthfulness by the trial court was appropriate under these facts. During the initial

search, the defendant admitted the marijuana was hers, and then denied possession,

resulting in her and Tomeka Birds’s arrests.          The defendant explained her written

statement to Sergeant Vernon as “I just agreed to it.” The defendant was equivocal in her

statements to the probation department. Also, in her testimony, the defendant was

equivocal before the trial court. We conclude that the trial court’s consideration of the

defendant’s candor was a relevant factor in determining the imposition of split confinement.



       The defendant has failed to establish the trial court’s decision, as to split

confinement, was erroneous. Therefore, the trial court’s judgment is affirmed.




                                            ________________________________________
                                            L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE



___________________________________
DAVID G. HAYES, JUDGE




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