         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 November 29, 2005 Session

                    STATE OF TENNESSEE v. BETTY GOUGE

                      Appeal from the Criminal Court for Unicoi County
                             No. 5337   Robert E. Cupp, Judge



                    No. E2005-01358-CCA-R3-CD - Filed January 20, 2006


The defendant, Betty Gouge, pled guilty to one count of sale of one-half gram or more of cocaine,
a Class B felony, one count of possession with intent to sell one-half gram or more of cocaine, a
Class B felony, and one count of possession with the intent to sell less than ten pounds of marijuana,
a Class E felony. The Unicoi County Criminal Court sentenced her to eight years for each Class B
felony and one year for the Class E felony to be served concurrently as a Range I, standard offender
in the Department of Correction. The defendant appeals, contending that the trial court erred in
denying her probation or alternative sentencing. We affirm the judgments of the trial court but we
remand case number 5337, Count 3, to the trial court for the judgment to reflect that the defendant
pled guilty and was found guilty.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part
                  and Case Remanded for Entry of Amended Judgment

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL, J., joined.

William B. Lawson, Erwin, Tennessee, for the appellant, Betty Gouge.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Joe
C. Crumley, Jr., District Attorney General; and Melanie Futrell Gwinn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s possession of controlled substances and sale of cocaine
to an undercover informant. On February 4, 2003, the defendant’s cousin, acting as an undercover
informant, went to the defendant’s home and bought an “eight ball” of cocaine from the defendant.
The defendant consented to a search of her home where officers found approximately 20 grams of
cocaine, approximately 126 grams of marijuana, $1583 in the defendant’s purse, and $553 in an
envelope in the defendant’s bedroom.
        At the sentencing hearing on March 4, 2005, the defendant testified that she got the cocaine
from Amy Teague, a woman who lived in her house. She said it was the only time she had ever sold
drugs. She said she had been in a car accident and was hospitalized for three months with a head
injury and other internal injuries. She said the head injury had affected her memory. She said that
Ms. Teague only lived with her for three months and that she was trying “to get rid” of the cocaine
when she sold it. She said she told her cousin that Ms. Teague had the cocaine and that her cousin
said he would get rid of it for her. She said she took money for the cocaine because Ms. Teague
owed her money. She said Ms. Teague gave her the cocaine as payment for the money she was
owed. She said she was having financial difficulties and needed the money. She said she believed
one gram of cocaine was worth two hundred dollars. She said the only income she had was her son’s
social security. She said she only sold drugs one time and would never sell drugs again. She said
she had one prior conviction for public intoxication and two speeding tickets.

        On cross-examination, the defendant testified that the $1583 she had in her purse when she
was arrested came from her son’s social security check and from her daughter to fix the driveway.
She acknowledged officers found $553, her savings, in an envelope in her bedroom. She denied
knowing about any needles or spoons with residue lying around her house. She said the marijuana
found in her bedroom belonged to her. She said she paid $100 for the marijuana but would not say
who sold it to her. She admitted officers also found three bags of marijuana, one bag of cocaine,
scales, and rolling papers in the living room, all belonging to her. She said she used the scales to
measure marijuana to give to her family. She said she did not sell the marijuana to her family but
weighed it so they would know how much they had. She said she did not remember how much she
charged for the cocaine she sold to her cousin.

        On redirect examination, the defendant testified that she was involved in a car accident in
1990. She said that she considered herself a “borderline intellectual functioner” and that she had a
hard time remembering things.

        DEA Task Force Agent Ritchie Walker testified that he had been involved in over five
hundred narcotics investigations. He said the defendant sold 3.2 grams of cocaine to the undercover
informant. He said the defendant had 19.5 grams of cocaine in her possession. He said the
defendant was correct in her testimony about a gram of cocaine being worth two hundred dollars on
the street. He said the total value of all the cocaine the defendant possessed was approximately
$4000. He said the normal price of an “eight ball” of cocaine was $250.

        The trial court stated that it had reviewed the presentence report and that it had a hard time
understanding it because of conflicting statements about where the defendant’s son lived, what her
address was, and when her husband had died. The presentence report states the defendant had a prior
conviction for public intoxication and two speeding tickets. The report also shows the defendant left
high school in the ninth grade and reported no prior employment. During the hearing, the trial court
interjected many times to question the defendant further on her inconsistent statements about when
her husband died, her finances, and who sold her the marijuana. Based on the defendant’s lack of



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candor, the trial court denied the defendant probation and alternative sentencing. In making its
decision, the trial court stated:

                Well, I’m going to put you in jail because you won’t tell me the truth,
                and that’s a shame because I wouldn’t have put you in jail probably
                if you’d told me the truth on everything, and you didn’t. They found
                a lot of cocaine on you, not Amy, but on you. You were selling it.
                You had scales to measure marijuana. You had marijuana two or
                three different places. And you told me on this witness stand under
                oath that you gave it to your children but you weighed it out for them.

                        ....

                        But it’s important that you weigh it out, wasn’t it? See, you’re
                lying to me, ma’am. You’re lying to me. Well, I’m going to deny
                probation for you. I’m going to order you in jail today for lying to
                me. Your credibility is at issue with me, ma’am, which means if you
                get up here and lie on this witness stand, you’ll do anything that we
                don’t want you to do. You’ll do everything we don’t want you to do
                on probation.

         On June 1, 2005, the trial court conducted a hearing to reconsider the defendant’s sentence.
The defendant told the trial court she was on methadone for her injuries she received in the car
accident. She said she got methadone from a clinic in North Carolina. She said she was taken from
the jail to the hospital after she thought she was having a heart attack. She said it was determined
to be stress on her heart and she was released after twenty-four hours. The trial court stated:

                [S]he can still yet go to the methadone clinic in North Carolina. She
                can attend her son’s thing. She looks physically fit today, and tells
                me that she’s taking drugs because of -- I mean, methadone because
                of an accident. She’s lying to me again. So, she’s to report to jail --
                I’ll give her a week.

The trial court set an appellate bond of $50,000.

         On appeal, the defendant contends that the trial court erred in denying her probation or
alternative sentencing. She asserts that she is statutorily eligible for probation, that the crimes were
nonviolent, and that she has a short criminal record. She also asserts that her mental agility is
questionable and that she has a history of serious illness, head injuries, and bodily injuries. The state
asserts that the trial court did not err in sentencing the defendant to the Department of Correction.
It asserts the burden was on the defendant to prove she would be a favorable candidate for probation
because the defendant was convicted of two Class B felonies and was not presumed favorable. The



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state asserts the defendant’s lack of candor reflects on the defendant’s potential for rehabilitation and
on depreciating the seriousness of the offense.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d) (2003).1 However, the presumption of
correctness 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). The burden is on the appealing party to show that the sentence is improper.
T.C.A. § 40-35-401(d) (2003), Sentencing Commission Comments. This means 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 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).

        When determining if incarceration is appropriate, a trial court should consider whether (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 T.C.A. § 40-35-
103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set forth in
T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5) (2003); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). In addition, a trial court should consider a defendant’s potential or
lack of potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

        The defendant is eligible for probation because she received an eight year sentence. See
T.C.A. § 40-35-303(a). However, the burden is on the defendant to establish her suitability for total
probation and “that probation will be in the best interest of the defendant and the public.” State v.
Ring, 56 S.W.3d 577, 586 (Tenn. Crim. App. 2001) (citing State v. Baker, 966 S.W.2d 429, 434
(Tenn. Crim. App. 1997)). In determining if the trial court should grant probation, it must consider
the nature and circumstances of the offense; the defendant’s criminal record; the defendant’s social
history; the defendant’s present condition; and the deterrent effect on the defendant. State v.
Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App. 1999). The trial court should also consider the
defendant’s potential for rehabilitation and treatment in determining the appropriate sentence. See
T.C.A. § 40-35-103(5).




        1
          W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-
102(6), -210, -303 and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 6, 7, 8. However, the amended code sections are
inapplicable to the defendant’s appeal.

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       The presumption of favorable candidacy for alternative sentencing extends to a defendant
“who is an especially mitigated or standard offender convicted of a Class C, D, or E felony.” T.C.A.
§ 40-35-102(6) (2003). When the defendant is presumed to be an eligible candidate, the state can
overcome the presumption with “evidence to the contrary.” Id. Because the defendant was
convicted of two Class B felonies, she is not presumed to be a favorable candidate for alternative
sentencing. See id. Therefore, the state had no burden to justify confinement in this case. State v.
Beverly Dixon, No. W2004-00194-CCA-R3-CD, Shelby County, slip op. at 8 (Tenn. Crim. App.
June 30, 2005), app. denied (Tenn. Dec. 5, 2005) (citing State v. Joshua L. Webster, No. E1999-
02203-CCA-R3-CD, Blount County, slip op. at 3 (Tenn. Crim. App. Dec.4, 2000)).

         “The trial judge is in the best position to assess a defendant’s credibility and potential for
rehabilitation.” State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999). This court has
previously held that a defendant’s lack of candor reflects on the defendant’s rehabilitation potential
and is a proper consideration in the trial court’s determination of whether a defendant should receive
an alternative sentence. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State
v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). Even in cases when the defendant is
presumed to be a favorable candidate for alternative sentencing, if the defendant lies while testifying,
the presumption can be overcome. See State v. Catherine May Cooper, No. E2004-02515-CCA-R3-
CD, Sullivan County, slip op. at 4-5 (Tenn. Crim. App. Nov. 4, 2005) (“[T]he trial court did not err
in considering the defendant’s lying under oath as a basis for denying alternative sentencing and
probation.”).

        The record reflects the defendant has a short criminal history. However, the defendant had
approximately 20 grams of cocaine, approximately 126 grams of marijuana, and $2136 in her
possession on the day of the offense. The defendant admitted that the marijuana belonged to her but
denied that the cocaine did. She admitted buying the marijuana, weighing it, and distributing it to
her family. The defendant testified she had never had a job and dropped out of high school in the
ninth grade. During the sentencing hearing, the defendant testified inconsistently about when her
husband died, her finances, and who sold her the marijuana. The defendant reported in her
presentence report that her husband died on January 17, 2001, then told the trial court that he died
in 2002, then stated it may have been 2001. She testified that she was in “dire financial straits” but
acknowledged that she had $2136 in cash when she was arrested and that her monthly bills did not
exceed two thousand dollars. She testified that she was not going to reveal who sold her the
marijuana, then she testified that she did not remember who sold it to her, and then she testified she
did remember who sold it to her but did not reveal the source.

        The trial court’s findings that the defendant was untruthful and failed to accept responsibility
for her crimes are supported by the record. Based upon the defendant’s lack of candor and the
seriousness of the current offenses, we conclude the trial court did not err in denying the defendant
alternative sentencing and probation, and the defendant is not entitled to relief on this issue. We
affirm the judgments of the trial court but we note omissions in the judgment for Count 3 in case
number 5337 of the guilty plea and finding of guilt. We remand the case for entry of a corrected
judgment for that count.

                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE

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