IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1998 June 9, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9706-CC-00230 )
Appellee, )
) LINCOLN COUNTY
V. )
)
) HON. CHARLES LEE, JUDGE DEV ON W ELLS , )
)
Appe llant. ) (SALE O F SCH EDUL E II DRU G)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN HARWELL DICKEY JOHN KNOX WALKUP District Public Defe nder Attorney General & Reporter
CURTIS H. GANN JANIS L. TURNER Assistant Public Defender Assistant Attorney General 105 S outh M ain 2nd Floor, Cordell Hull Building P.O. Box 1119 425 Fifth Avenue North Fayetteville, TN 37334 Nashville, TN 37243
WILLIAM MICHAEL McCOWN
District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney General
J.B. COX
Assistant District Attorney General P.O. Box 904
Fayetteville, TN 37334
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Devon Wells, appeals his convictions of two counts of sale of
a Schedu le II controlled substan ce following a jury trial in the Linco ln Coun ty Circu it Court. The trial court sentenced him as a Range II Multiple Offender to two consecu tive sentences of nine (9) and seven (7) years. He was also fined a total of $100,000 for the two convictions. In this appeal, Defendant argues that the evidence was insuffic ient to e stablis h guilt beyond a reasonable doubt and that the sentence imposed was excessive and contrary to law. We affirm the judgment of the trial court.
On April 26, 1996, at approximately 5:00 p.m. in the Scales Heights area of Fayetteville, Tennessee, Agent Shane Daugherty, an undercover officer with the 17th Judicia l District Drug T ask Fo rce, and Shirley N eal, a con fidential inform ant, made two purchases of less than .5 gra ms of cr ack coc aine from Defen dant. Both Agent Daugherty and Ms. Neal, as well as Agent Robert L. Briscoe, Jr., Director of the 17th Judicial Drug Task Force, and Ms. Donna Flowers, forensic chemist from the Tennessee Bureau of Investigation, testified at trial on behalf of the State.
Agent Daugherty testified that he met with Shirley Neal, the informant, and Agent Briscoe in a parking lot in the downtown area of Fayetteville on April 26, 1996 at approximately 4:30 p.m. Agent Daugherty searched Ms. Neal and her vehicle, gave her fifty dollars in recorded confidential funds, attac hed a con cealed m icro cassette recording device, and then left with Ms. Neal in her car. Agent Briscoe stayed in the parking lot as Agent Daugherty and Ms. Neal drove towards Locust Street.
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The two of them arrived at Locust Street at about 5:00 p.m. According to Agent Daugherty, they were not targeting any particular individual but were looking for street dealers in general. They were first approached by a black male wearing khaki shorts and a white shirt, but Ms. Neal did not know his name so they decided to keep on looking. Agent Daugherty and Ms. Neal then saw Defendant stand ing in front of a green house waving them over. When Agent Daugherty and Ms. Neal indicated they wa nted to purch ase tw o fifty dollar amounts of crack cocaine, Defendant got into the back seat of Ms. Neal’s car and told them to circle the block.
Agent Daughtery testified that Defen dant wa s wearin g black p ants an d a white t-shirt and that he could clearly see the movements of Defendant in the back seat from where he wa s pos itioned in the fro nt sea t. Defe ndan t pulled a clea r plastic bagg ie out from his front pocket and he then handed Agent Daugherty some crack cocaine in exchan ge for fifty dollars. Next, Defendant handed Ms. Neal some crack cocaine to which s he resp onded by telling De fendan t that she did not want any “crumb s.” He the n hand ed her a nother ro ck in exch ange fo r her fifty dollars.
Agent Daugherty and Ms. Neal then dropped the Defenda nt back off where they had picked him up and returned to the parking lot where Agent Briscoe was waiting. As soo n as De fendan t was ou t of sight, Agent Daugherty turned off the recording device and too k the crack co caine Ms. N eal had purc hased fro m Defendant into his possession. He placed the two purchases in separate baggies and evidence folders and handed them over to Agent Briscoe. Agent Daugherty and Ms. Neal described Defendant to Agent Briscoe and Ms. Nea l told Agent Briscoe Defendant’s name.
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Agent Briscoe testified that he knew Defendant prior to the date upon which the present offenses occurred. However, after Agent Daugherty and Ms. Neal turned over th e purc hase d crac k coca ine to h im, alo ng with their description and name of the dealer, Agent Briscoe drove over to Locu st Stre et to ver ify for him self that the person they described as the dealer was in fact Defendant. Agent Briscoe was able to verify that it was indee d Def enda nt who sold the cra ck coc aine o n Apr il 26, 1996. A gent Bris coe also testified that he took into custody the crack cocaine purchased by Agent Daugherty and Ms. Neal and that he turned that evidence over to the Tenn essee Bu reau of Investigation for analysis. Ms. Flowers of the TBI testified that as a fo rensic ch emist sh e perform ed two te sts on the substances given to her by Agent Briscoe, and that they were both in fact crack cocaine. The two packets contained .2 and .3 grams of cocaine base.
I. Sufficiency of the Evidence
Defendant claims that there was insufficient evidence to support a finding of guilt because the evidence regarding the identification of Defendant as the dealer is weak.
When an accused challenges the sufficiency of the convicting evidence, the stand ard is w hethe r, after re viewing the evid ence in the ligh t mos t favora ble to the prosection, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ). This stand ard is a pplica ble to fin dings of guilt predicated upon direct evidence, circumstantial evidence or a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the
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State is entitle d to the strong est leg itimate view of th e evide nce a nd all inferences therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support th e verdict re turned b y the trier of fac t. State v. Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982)); State v. Grace, 493 S.W.2d 474, 476 (Ten n. 1973).
Questions concerning the credibility of the witnesse s, the weig ht and va lue to be given the evidence, as well as all factual issues raise d by the evidenc e, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. A jury verdict approved by the trial judge ac credits the State’s w itnesses and res olves all co nflicts in favor of the State. Grace, 493 S.W.2d at 476.
It is clear to this Court that the State proved all the elements of the crime charged beyond a reasona ble doubt. De fendant took fifty dollars each from Agent Daug herty and Ms. Neal and sold each of them crack cocaine. They in turn gave the substances they purc hased from D efenda nt to Agent Briscoe. The substance s were submitted to the TBI crime laboratory whe re they tested po sitive for cocaine base. Both Agent Daugherty and Ms. Neal unequivocally identified Defendant as the person who sold them the controlled substance. Furthermore, both Ms. Neal and Agent Briscoe testified that they knew Defen dant’s ide ntity prior to the transaction, and Agent B riscoe ev en drove back to L ocust S treet to verify for himself that the
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description of the dea ler given by Agent Daugherty and Ms. Neal was indeed the Defen dant.
There is ample evidence in the record of the identification of Defendant as the person who so ld the crac k cocain e. This iss ue is witho ut merit.
II. Sentencing
Defendant argues that the sentences he received for the two convictions of sale of a controlled substance are excessive and contrary to law.
When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 4 0-35-40 1(d). Th is presum ption is “co nditioned upon th e affirmative showing in the reco rd that the trial court considered the sentencing principles and all relevant fac ts and circ umsta nces.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). There are, however, exceptions to the presumption of correctness. First, the record must d emon strate that th e trial court considered the sentencing principles and all relevant fac ts and circ umsta nces. Id. Second, the presumption does not ap ply to the legal conclusions reached by the trial court in sentencing. Third, the presumption does not apply when the determinations made by the trial court are predicated upon uncontroverted facts. State v. S mith, 898 S.W.2d 742, 745 (Tenn. Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).
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Our review requires an analysis of: (1) The evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his ow n beh alf; and (7) the d efend ant’s potential for rehab ilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103, & - 210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentenc e after having given due consideration and proper weight to the facts and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record, we find that the trial court followed proper statutory sentencing procedure, and therefore, review by this Court is de novo with a presumption of correctness.
The trial court found the following three enhancement factors to be applicable:
(1) that Defendant has a previous history of criminal behavior in addition to that necessa ry to establish the appropriate range; (2) that Defendant has a previous history of unwillingness to comply with the conditions of probation; and (3) that Defendant was on probation at the time of the present offense. Tenn. Code Ann. § 40-35-114 (1), (8), and (13)(C). T he court found no mitigating factors to apply.
Defendant had four prior felony convictions and several misdemeanor convictions, and a s the tria l court n oted, h e was one fe lony conviction away from
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being sente nced as a R ange III offend er. Th e trial co urt justifia bly placed great weight upon this enhancement factor. We also find that enhancement factor number (8) was properly applied by the trial court. Defendant previously violated the boot camp probation program and was not able to abide by the terms and conditions of his release into the community. Furthermore, the trial court was correct in applying enhancement factor (13) since Defendant was actually on probation when he was arrested for the present offense. In fact, Defendant had been released into the comm unity for only 35 days when he sold crack cocaine to Agent Daugherty and Ms. Neal.
Tennessee Code Annota ted sectio n 40-35 -210 pro vides that the minimum sentence within the rang e is the pre sump tive senten ce for a C lass C fe lony. Tenn. Code Ann. § 40-35-21 0(c). If there are enhan cing and m itigating factors, the court must start at the minimum sentence in the range and enhance the sentence as approp riate for the enhancement factors and then reduce the sentence within the range as appropriate for the m itigating factors. Tenn . Code An n. § 40-35-21 0(e). If the trial judge com plies with th e purp oses and p rinciple s of se ntenc ing an d his findings are adequately supported by the record, then the weight assigned to the existing enhancing and mitigating factors is generally left to the discretion of the trial court. See State v. Mars hall, 870 S.W .2d 532, 541 (Tenn . Crim. A pp.), perm. to appeal denied (Tenn . 1993). S ale of a Sched ule II contro lled subs tance, a Class C felony, has a sente nce range of six (6) to ten (10) years for a R ange II Multiple offender. Tenn. Code Ann. §§ 39-17-417(a)(3) and (c)(2); 40-35-112(b)(3). The trial court c orrect ly found three e nhan cem ent fac tors to a pply and no m itigating factors to apply. The trial court imposed a nine (9) year sentence on one count and a (7) year sentence on the other. The trial court has the discretion to impose a sentence
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which, in its judgment, best fits the totality of the circumstances relating to a particular Defendant and the precise circumstances of the cas e. State v. Mars hall, 888 S.W .2d 786 , 788 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1994). The trial court is not precluded under the Sentencing Reform Act from considering the fact that consecutive sentences might be appropriate in its assessment of what weight to give related enhancement factors. In the instant case, the trial cou rt clearly acted within its discretion in imposing the sentences of nine (9) and seven (7) years.
The trial cou rt was a lso justified in imposing consecutive sentencing for the offenses involved. There is no dispute that Defendant was on probation at the time of the comm ission of the presen t offenses . See § 40-3 5-115 (b)(6). F urther more , this Defendant has a lengthy history of criminal behavior and convictions. See 40-35- 115(b)(2). We also find from the record that consecutive sentencing is necessary to protect the public against further criminal conduct by Defendant and that consecu tive sentencing is reasonably related to the severity of the offenses committed. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The trial court was well within its d iscretion in o rdering th e sente nces to b e run co nsecu tively to each other and to the prior sentence for which he was on probation at the time he committed the present offenses.
Defendant further argue s that h is actions only comprised one transaction and that he co uld no t therefo re be c onvicte d of two coun ts of sa le of a co ntrolled substance. However, when Defendant got into the car, he made two separate sales of crack cocaine, one to Age nt Da ughe rty and one to Ms. N eal. Ea ch of th em p aid Defendant fifty dollars separately. Although both sales may have o ccurre d within just minutes of each other, they are still considered to be two separate criminal
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actions. See, e.g., State v. Black, 524 S.W.2d 913 (Tenn. 1975) (two separate and distinct offenses committed even though they occurred at substantially the same time and in the cou rse of a sin gle crimin al episod e or trans action); State v. Mitch ell, C.C.A. No. 87-185-III, Williamson County (Tenn. Crim. App., Nashville, Sept. 27, 1989) perm. to appeal denied (Tenn. 1990) (kidnapping of several people at one time is a s eparate offense a s to each victim). Th is issue is w ithout me rit.
Finding no m erit to D efend ant’s claims, we accordingly affirm the judgment of the trial cou rt.
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THOMAS T. W OODALL, Judge
CONCUR:
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GARY R. WA DE, Presiding Judge
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L. T. LAFFERTY, Special Judge