State of Tennessee v. Johnny L. Sapp ( 2010 )


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  •         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).
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    (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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