      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON
                                                                FILED
                     JANUARY 1998 SESSION
                                                                  March 18, 1998

                                                               Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                             Appellate C ourt Clerk
                                 ) C.C.A. No. 02C01-9701-CR-00035
      Appellee,                  )
                                 ) Shelby County
V.                               )
                                 ) Honorable Arthur Bennett, Judge
                                 )
ANTONIO S. MOORE,                ) (Sentencing)
                                 )
      Appellant.                 )




FOR THE APPELLANT:                  FOR THE APPELLEE:

J. C. McLin                         John Knox Walkup
Attorney at Law                     Attorney General & Reporter
301 Washington Ave., Suite 201
Memphis, TN 38103                   Georgia Blythe Felner
                                    Counsel for the State
Lee Wilson                          Criminal Justice Division
Attorney at Law                     450 James Robertson Parkway
200 Jefferson                       Nashville, TN 37243-0493
Memphis, TN 38103
(At Trial)                          William L. Gibbons
                                    District Attorney General

                                    Perry Hayes
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103




OPINION FILED: ___________________


MODIFIED


PAUL G. SUMMERS,
Judge




                                 OPINION
        Antonio Moore, the appellant, pled guilty to possession of cocaine with

intent to sell in an amount less than one-half of a gram. The appellant agreed to

a three-year sentence, with the court to determine whether the appellant should

receive probation. The court ordered the appellant to serve eleven months

twenty-nine days in jail followed by two years of community corrections.1

Appellant appeals, and the sole issue for our review is whether the court should

have granted the appellant full probation. He requests a nonincarcerative

alternative sentence.



        The appellant was a passenger in a vehicle that was stopped for speeding

by the police. The police officer observed a plastic bag on the floor of the vehicle

which contained approximately fourteen grams of crack cocaine. The appellant

testified that he purchased the cocaine to sell because he needed quick money

to buy an air conditioning machine for use in his work. The appellant testified

that this was the first time that he had purchased cocaine and that someone was

going to help him sell it.



            The appellant is a first time offender who pled guilty to a Class C felony.

He is presumed, absent evidence to the contrary, to be a favorable candidate for

alternative sentencing options. Tenn. Code Ann. § 40-35-102(5) & (6) (Supp.

1995). The appellant was sentenced to split confinement, an alternative to

straight confinement. The appellant contends, however, that he should have

been granted full probation. The appellant is eligible for probation. Tenn. Code

Ann. § 40-35-303(a) (Supp. 1994).




        1
          The judgment sheet and transcript conflict on the exact sentence. We view the transcript as
controlling. W e view this as a thre e-year split sentenc e. State v. Moore, 814 S.W.2d 381, 383 (Tenn.
Crim. App. 1991).

                                                  -2-
       When an appellant challenges the manner of service of a sentence, this

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

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

presumption of correctness is conditioned upon an affirmative showing that the

trial court considered the sentencing principles and all relevant facts and

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

confinement is particularly suited to provide an effective deterrence to others

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

confinement have frequently or recently been applied unsuccessfully to the

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



       The appellant is twenty-three years old. He has no criminal record. He

graduated from high school and attended Kansas Vocational Technical

                                          -3-
Institution and the Climate Control Institution. The appellant has a universal

technician’s license in heating and air conditioning. The appellant has been

employed in this field by Harold Robinson for over two years. Mr. Robinson

testified that the appellant works anywhere from ten to fifty hours a week

depending on the time of year. Mr. Robinson testified that the appellant was a

dependable employee, and he would continue to employ the appellant if he was

granted probation. The appellant also works at the Crowne Plaza Hotel doing

maintenance and air conditioning work. He testified that he works a total of

between fifty and eighty hours per week.



       The appellant lives with his mother, grandfather, and grandmother. The

appellant’s mother and grandfather testified that he had not caused any

problems before this offense and that he was obedient to them. They testified

that the appellant was remorseful about committing the offense. They testified

that if he was granted probation, they would do all that they could to help him.

The appellant assists his family financially.



       The appellant admitted to smoking marijuana since he was arrested in this

case. The presentence report indicates that the appellant was charged with a

drug offense involving cocaine when he was a juvenile. This charge was not

mentioned at the sentencing hearing. The state, the appellant, and the court

agreed that the appellant had no criminal history.



       The trial judge denied probation based on the appellant’s untruthfulness,

the nature of the offense, deterrence, and the avoidance of depreciating the

seriousness of the offense. W e are acutely aware that issues of credibility rest

with trial court; however, we find that the evidence preponderates against the

weight placed on this factor by the court. The trial court did not believe that this

                                         -4-
was the first time that the appellant had purchased cocaine. The court said that

it was unreasonable that a first time buyer would purchase that much cocaine

without knowing whether he could sell it or not. The court also cited the

appellant’s testimony that he was going to throw the cocaine away because he

thought that it was no good. Throughout the proceedings against him, and

repeatedly at the sentencing hearing, the appellant admitted that he purchased

the cocaine with the intent of selling it. He testified to how and from whom he

purchased the cocaine. The appellant was clearly truthful about his guilt. From

our review of the entire record, we conclude that untruthfulness is not a factor

upon which to deny a nonincarcerative sentence in this case.



       The court expressed concern about whether a sentence of probation

would have a deterrent effect on “large dope dealers.” There is an element of

deterrence in every criminal case. State v. Bonestel, 871 S.W.2d 163, 169

(Tenn. Crim. App. 1993). “Before a trial court can deny probation on the ground

of deterrence, there must be some evidence contained in the record that ‘the

sentence imposed will have a deterrent effect within the jurisdiction.’” Id.

(citation omitted); see State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991) (“[t]he

finding of deterrence cannot be conclusory only but must be supported by

proof.”). There is no evidence in the record that sentencing the appellant to full

imprisonment will deter others in his community from selling cocaine. As stated

by the trial court, cocaine use is a serious problem in all communities. However,

absent specific evidence in the record, we must be content that the serious

nature of drug offenses and the need for deterrence is reflected in the sentences

and policies expressed by the legislature in the Criminal Sentencing Reform Act

of 1989.




                                         -5-
       The trial court was also concerned about the nature of the offense and

depreciation of the seriousness of the offense. In short, the court stated “The

sale of cocaine is too serious in all communities...to turn your back on a person

who has a large amount for sale. That’s when you need to do some time.”

When addressing the nature or seriousness of the offense, we are considering

whether incarceration is necessary to avoid depreciating the seriousness of the

offense. See State v. Zeolia, 928 S.W.2d 457, 462 (Tenn. Crim. App. 1996).



       The nature and seriousness of the offense is but one of a number of

considerations that must guide the court in determining whether to grant

probation. State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App. 1993). Before

the nature of the offense alone warrants a probation denial, the act must be

"especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of

an excessive or exaggerated degree," and the nature must outweigh all other

factors. Id. (citing State v. Travis, 622 S.W.2d 529, 534 (Tenn.1981)). While

the amount of cocaine in the appellant’s possession was substantial, he has no

criminal record; he has an education; his employment history is steady and

productive; his home environment is stable; he has a good relationship with his

family; and he has no notable social, physical, or mental conditions which would

bear upon his probation suitability. Thus, we conclude that the nature of the

offense alone does not support the judge's decision. See State v. Cummings,

868 S.W.2d 661 (Tenn. Crim. App. 1992); State v. Ashby, 823 S.W.2d 166

(Tenn. Crim. App. 1991).



        Despite the assistant district attorney’s comparison of the appellant to

Jeffrey Dahmer in closing argument, the appellant does not fit the profile of the

criminal for whom incarceration is the "first priority" as provided in Tennessee

Code Annotated § 40-35-102(5). Nor has he been the subject of failed

                                         -6-
rehabilitative measures. The appellant's criminal conduct is nonviolent, and he

shows good potential for rehabilitation. The appellant meets all the minimum

criteria of eligibility for punishment in a community-based alternative program.

Such punishment is not exactly what either side requests, but it fits the

appellant’s life record and offense.



       The judgment of the trial court is modified; the appellant is sentenced to

three years under the supervision of the Community Corrections Department.

Such a sentence will give the appellant the opportunity to prove himself. If he is

not successful, he may wish that he had served his original sentence and not

requested an alternative.




                                              _____________________________
                                              PAUL G. SUMMERS, Judge


CONCUR:




_____________________________
DAVID G. HAYES, Judge




                                        -7-
_____________________________
JOE G. RILEY, Judge




                                -8-
