State of Tennessee v. Solomon Akins - Order

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 26, 2008
• Docket: 02C01-9509-CC-00250
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9509-CC-00250 ) Appellee, ) ) FILED ) DYER COUNTY March 26, 2008 VS. ) ) HON. JOE G. RILEY Cecil Crowson, Jr. Appellate Court Clerk SOLOMON AKINS, ) JUDGE ) Appellant. ) (Sufficiency of Evidence-Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

G. STEPHEN DAVIS CHARLES W. BURSON District Public Defender Attorney General and Reporter 208 N. Mill Avenue Dyersburg, TN 38025-0742 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

PHILLIP BIVENS District Attorney General

JAMES E. LANIER Assistant District Attorney 115 E. Market Dyersburg, TN 38024

OPINION FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE ORDER

This is an appeal as of right pursuant to Tenn. R. App. P. 3. On January 26,

1995, Appellant was convicted by a jury of five counts of selling less than .5 grams of

cocaine. As a Range II offender, Appellant received a sentence of eight years and six

months for each count. All five of these sentences were concurrent to each other, but

consecutive to two previous convictions he was serving on probation. In this appeal

Appellant alleges the evidence is insufficient to support the verdicts, and that his

sentence is excessive. Having reviewed the record in this matter we are of the opinion

that the convictions and sentence are fully supported by the law and evidence and that

this matter should be affirmed pursuant to Rule 20, Rules of the Court of Criminal

Appeals.

Appellant’s complaint concerning the sufficiency of the evidence centers around

his contention that the undercover operative, used by police to buy cocaine from

Appellant, is untrustworthy. As such, Appellant asks this Court to re-weigh her

testimony. We must decline his request.

It is axiomatic that the credibility of witnesses is a matter that is entrusted

exclusively to the jury as the triers of fact. A guilty verdict that is approved by the trial

judge accredits the testimony of the State’s witnesses and resolves all conflicts in the

testimony in favor of prosecution theory. This Court may not reweigh matters of

witness credibility. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978). State v. Evans,

838 S.W.2d 185, 191 (Tenn. Crim. App. 1992). We will not disturb the jury’s obvious

finding that the undercover operative testified truthfully.

-2- Appellant’s complaint with regard to his sentence is waived due to a failure to

argue or cite any authority reflecting why his sentence is excessive. State v. Hill, 875

S.W.2d 278, 284 (Tenn. Crim. App. 1993). However, we have nevertheless reviewed

the record and found the trial judge applied three enhancement factors and one

mitigating factor. No complaint is made as to the application of the enhancement

factors. In addition there is not complaint that applicable mitigating factors were not

considered. Appellant has a previous history of criminal convictions, he had a history

of unwillingness to comply with conditions of release into the community, and the

offenses which are the subject of this appeal were committed while Appellant was on

probation. While Appellant’s conduct did not threaten or cause serious bodily injury to

anyone, this mitigating factor’s importance is diminished by the nature of the offenses

and the seriousness of the enhancement factors. The possible sentence for a Range

II defendant convicted of selling less that .5 grams of cocaine is six and ten years.

Under the circumstances Appellant’s sentence in the middle of this range is not

excessive.

The convictions and sentence are affirmed pursuant to Rule 20, Rules of the

Court of Criminal Appeals.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ WILLIAM M. BARKER, JUDGE

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