IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE October 29, 1999
Cecil Crowson, Jr.
JULY SESSION, 1999 Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9806-CR-00219 )
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. PHYLLIS H. MILLER, STEVEN MARSHALL ) JUDGE DEADRICK, )
)
Appe llant. ) (Facilitation-Sale of Cocaine)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD A. TATE PAUL G. SUMMERS Assistant Public Defender Attorney General and Reporter P.O. Box 839 Blountville, TN 37617 MARVIN S. BLAIR, JR.
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
GREELEY W ELLS
District Attorney General
J. LEWIS COMBS
Assistant District Attorney General Blountville, TN 37617
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Sullivan C ounty Grand Ju ry indicte d the D efend ant, St even M arsha ll
Deadrick, for the sale or delivery of 0.5 o r more grams of cocaine and for cons piracy to sell or deliver 0.5 or more grams of cocaine. The Defendant and his co-defendant, James Arthur Carnes, were tried together, and a Sullivan Coun ty jury found the Defendant guilty of the lesser included offense of facilitation of the sale of over one half a gram of cocaine. After considering the Defe ndan t’s criminal record and other pertinent factors, the trial court sentenced him as a Ra nge III persistent offender to thirteen years incarceration and fined him $2,000.00. Pursuant to Rule 3 of the Rules of Appellate Procedure, the Defendant now appeals both his conviction and his sentence. We affirm the judgm ent of the tria l court.
The Defendant’s present conviction arises from events which occurred in early September 1996. At that time, Jerry Ma chen, Jr., a recoverin g drug a ddict, volunteered to work for the Kingsport Police Department’s Vice and Narcotics Division and the Sullivan County Drug Task Force as a con fidentia l inform ant in exchange for compensation. At the trial, Machen testified that he had known both Defendants for ten to fifteen years. Machen, who sold and installed carpet for his father’s busin ess, state d that in ea rly Septem ber, he d iscusse d with Defen dant C arnes th e excha nge of ca rpet and installation fo r cocaine .
Machen met with officers on September 10, 1996 to set up a controlled buy with Defendant Carnes. Machen testified that prior to his meeting with Carnes, officers thoroughly sea rched both h is person and h is van b efore o utfitting h im
3
with a body w ire. He located Defendant Carnes at an apartment inside Carnes’ aunt’s home, which Carnes was remodeling. Machen reported that Defendant Deadrick was also presen t and pa tted Mac hen do wn befo re he co nversed with Carnes. Machen testified that he proposed giving Carnes $200.00 in exchange for five fifty-dollar bags of cocaine. He reported that Carnes refused, stating, “two of anyone else’s make one of [mine],” and agreed to provide four bags for $200.00. Machen paid Carnes $203.00—$200.00 for the cocaine and $3.00 for some pickles which Carnes also sold. Defendant Carnes and Defendant Deadrick then left the apartment for fifteen to twe nty minu tes, repo rtedly to unload trash collected during the remo deling . Mach en sta ted tha t upon their return, Deadrick again patted him down, and Carnes then gave him four bags of cocaine. Before le aving, Ma chen to ld Carne s that he w ould m eet with him the following day to negotiate carpeting the remodeled apartments.
Machen testified that after leaving the apartment, he placed the bags into the pocket of his shirt; later, immediately after he got back into his van, he wrapped the ba gs in a napk in to preve nt dam age to them and placed them back into his pocket. When he arrived back at the prearranged location, he delivered the cocaine to law enforcement personnel. Officers searched him and the van a second time to ascertain whether he was in possession of any other illegal substances. They found no other drugs in the van o r on Ma chen. The officers then de-wired Machen and his van and took a statement from him about the transaction.
On the following day, September 11, 1996, Machen again met with law enforcement personnel to discuss a second drug transaction. On this occasion,
4
Machen was to trade carpet and installation for coca ine. The officers g ave Machen money for his purchase, and he proceeded to a carpet outlet to purchase the carpet. Machen then returned to the officers carrying the carpet in his van, submitted to a search of his person and his va n, and w aited for the officers to wire both him an d his vehic le before procee ding to m eet De fendan t Carne s.
Machen went first to the home of Defendant Carnes’ aunt, Mary Jane Carnes, who met him at the door and informed him that Defendant Carnes was at a nearby hair salon. Machen found Carnes and Deadrick working on a car outside the salon. Upon Machen’s arrival, Machen and Carnes engaged in a heated discussion about the price of the carpet. According to Machen, Machen suggested that he receive “six fifties,” which meant six fifty-dollar bags of cocaine, for the carpet, but Carnes thought that this idea was “ridiculous.” Machen maintained that the two settled on a trade of “four fifties” for the carpet. Carnes instructed Mache n to deliver th e carpe t to his aunt’s home, and Machen testified that he did so. With the help of Mary Jane Carnes’ son, Machen transported the carpet u pstairs to th e apartm ents an d then re turned to the hair sa lon.
Machen testified that when he arrived, Defendant Carnes and Defendant Deadrick were still there working on the car parked in front of the salon. Machen stated that Carnes asked him to go inside and wait. While inside, Machen picked up the pickles that Carn es had promis ed him the previo us night. Shortly thereafter, Defendant Carnes and Defendant Deadrick entered the salon, and Deadrick pulled four fifty-dollar bag s of coca ine out of h is pocke t. Accord ing to Machen, Deadrick asked, “it is four, isn’t it?” to which Carne s respo nded, “ye ah.” Defendant Deadrick a ttempte d to han d the ba gs to Ca rnes, wh o indicate d to
5
Deadrick to instead hand them to Machen. Machen stated that he took the bags from Dead rick, put the m into his shirt pock et, and afte r a short co nversatio n with another man present at the salon, departed and headed to a predetermined location to mee t with police. At the location, he turned over the cocaine and the pickles to Officer David Quillen and submitted to a search of his vehicle and person.
On cross-examination, Machen stated that he was a recovering addict and admitted that he had a buse d coc aine a nd alc ohol fo r sever al years. He also testified that he had occasionally used marijuana. He conceded that he used cocaine in September 1996 and several times afterwards. He acknowledged that his use of drugs did affect his memory to a certain extent. Machen denied using cocaine while working with po lice in this case, but he did admit that he had used cocaine as recently as ten to twenty days before the trial. In addition, Machen stated that he had b een convicted once in 198 1 for possession of cocaine. Machen stated that he was p aid ap proxim ately $200 .00 pe r day fo r his work with the police on Sep tembe r 10 and 11 of 199 6.
At trial, the State introduced the tapes made from Ma chen’s bod y wire recorded on September 10 and 11. The tapes were often unclear or inaudible. They contained no overt references to the sale of cocaine, although on the tape from Septem ber 11, Defe ndant Ca rnes stated at on e point, “Going [sic] in the re and get me some damn baking s oda, or . . . go out here , and ge t some hemp bullshit, and split the bag.” The State also presente d the jury w ith transcrip ts created from the tapes to aid the jury in its comprehension of the evidence on the tapes.
6
Officer David Street of the Kingsport Police Department introduced photographs at trial of Machen, Defendant Carnes, Defendant Deadrick, and Defendant Carnes’ truck which were taken on September 10 and 11. He testified that he had worked surveillance both days, viewing the transactions between the Defen dants and Machen from a nearby tower. He stated that for his surveillance he was supplied with binoculars, a camera, and two police radios, two chan nels of which maintained a connection with Mac hen’s bo dy wire. Photographs from September 10 depicting Defendant Carnes’ truck, in which Officer Street testified that Carnes and Deadrick were riding, and photographs from September 11 showing all three parties were identified and introduced into evidence. Street also testified that on September 11, he supplied Machen with money for the carpet and too k photo graphs of the carpet before Machen met with the Defen dants to nego tiate abou t the carpe t. Street testified that although he never actua lly saw illegal activity from his vantage po int, he did hear “deals being made.”
Officer David Quillen of the Kingsport Police Department’s Vice and Narcotics Division testified that he worked surveillance on September 10 and 11 and met with Mache n following Machen’s contacts with Defendant Carnes and Defendant Deadrick. He stated that he collected the cocaine from both drug deals, photographed the packets, and secured them in a locked filing cabinet at the Vice a nd Na rcotics office u ntil he delivere d them to the King sport City Police Department the following Mond ay. He stated that he also thoroughly searched Machen and took statements from him after collecting the evidence.
7
Corporal Bill Farmer, the evidence custodian at the Kingsport Police Depa rtment, testified that he received the cocaine parcels from Officer Quillen. He stated that he logge d the ite ms in on an evidence sheet and returned them to Quillen in early October for analysis. He stated that he also re ceived the au dio tapes from the drug deals, and he noted that the tapes were checked out several times before the trial.
Richard Joyce o f the Drug Enforcement Administration testified that he received possession of the cocaine packets from Officer Quillen on October 2, 1996 for the purpose of analysis. He stated that upon receipt of the packets, he processed them, put them in an envelope, and sent them to the DEA laboratory in Miami. Aruna Kumar, a forensic chemist at the DE A labo ratory in Miam i, testified that she received and analyzed the contents of the packets. She stated that each pac ket tested pos itive for cocain e. The purity of some packets tested at 85%, while that of others was found to be 84%.
Other law en forcem ent pe rsonn el involve d in the transa ctions on September 10 and 11 also testified at trial and outline d their involvement in the case. Agent Brian Bishop of the Kingsport Police Department testified that on September 10, he m et with M ache n, sea rched him, a nd ou tfitted him with a wire transmitter before his meeting with the Defendants. He reported that Machen was lu cid an d did not appear to be under the influence of any illegal substance during their meetings. Bishop then lis tened to the tra nsm ission s from Mach en’s body wire during the transaction. He testified that when Machen returned, Machen gave him the baggies of cocaine, which he immediately turned over to Officer Quillen. Bishop stated that he searched Machen a second time after the
8
transaction. He als o testifie d that o n Sep temb er 11, h e me t with M ache n, aga in outfitted him with a body transmitter, and then listened to the transm ission while Machen met with the Defendants. Later, when Machen returned, Bishop removed his bo dy wire . His tes timon y conc erning the contents of the transmissions from Machen’s body wires generally matched the audio tapes introduced at trial and Machen’s own testimony regarding the events of September 10 and 11.
Officer Mike T aylor of the Second Judicial Drug Task Force testified that on September 10 and 11, he searched Machen’s van, rode with Agent Bishop, and monitored Mach en’s van and the transactions. He stated that he and Bishop were among other law enforce ment p ersonn el who follo wed M achen to and from their secured location. Taylor stated that despite his thorough search of the van, he found no contraband inside the vehicle.
Stanley Hodges of the Second Judicial District Drug Task Force testified that on September 10, he recorded the transaction between Machen and the Defendants. On September 11, he was a ssign ed to lis ten to th e aud io tape of the transaction as it was being made and to act if an emergency arose. Otherwise, he was to keep Machen under constant surveillance during the transaction. He testified that on September 11, Machen was out of his direct view for appro ximate ly fifteen to tw enty min utes at on e point an d appro ximately th irty minutes at another point during his meeting with the Defendants. Frank LaPoma of the Second Judicial D istrict Ta sk Fo rce tes tified tha t he rec orded the au dio tape of the trans action on Septem ber 11 a nd took notes while monitoring the recording.
9
Defendant Carnes testified in his own defense. He denied ever selling cocaine and c laime d that h is income came from social security disability benefits, the periodic re pair and resale of re posse ssed ve hicles, and the sale of pickles. He explained that he regularly bought jars of homemade pickles from a friend at a local farmer’s market and resold them for extra income. He claimed that he had sometimes paid “around twenty-nine thousand dollars ($29,000.00) a year taxes” on the incom e he m ade fro m the sale of pickles. He insisted that the tapes introduced at trial contained references to the sale of pickles, rather than the sa le of drugs. Carn es claim ed tha t Mach en ha d app roach ed him on September 10, asking for an “eight ball of cocaine,” to which he responded, “I don’t talk tha t, don’t talk that to me,” but maintained that no exchanges were made on September 10. He reported that his aunt, Mary Jane Carnes, paid Machen cash for the carp et and ins tallation on Septem ber 11.
On cross-examination Carnes admitted that he kept no record s of his pickle sales and did not pay taxes. He explained that because Mr. Fallin, the man from whom he bo ught h is pickles, paid sales tax on the pickles, he was not required to pay anything furthe r. He also admitted that in add ition to his truck, he owned a BMW which he was “hiding” in a garage. He further admitted to driving a Jaguar which he had repaired, but he claimed that the veh icle belon ged to his sister, who allow ed him to drive it. He conceded that he sometimes drove other vehicles as well, includin g a Co rvette, a Ford Explorer, a Plymouth convertible, and a Mazda Miata, which he had repaired but which he claimed belonged to other people. Furthermore, he admitted that sometimes he drove a Harley Davidson motorcycle, which he stated belonged to the owne r of a cu stom repair shop. However, he did admit that the licen se tags on the motorcycle w ere
10
registered to his aun t, Mary Jane Carnes. Finally, Defendant Carnes acknowledged having rented several vehicles from different car rental agencies on several different occasions. He claimed he had used the veh icles to transport friends to b asketb all game s in other c ities and fo r other pe rsonal pu rposes .
Mary Jane Carnes, Defendant Carnes’ aunt, also testified for the defense.
She testified that her nephew, Defendant Carnes, Defendant Deadrick, and others had helped her install carpe t in apartm ents in he r home . She stated that Machen installed some carpeting on September 5, 1996, for which she p aid him $200.00 in cash. She stated that a “week or so” la ter, Ma chen return ed to in stall more carpet. On this occasion, she claimed that she again paid him $200.00. W hile Machen agreed through his testimony that Mary Jane Carnes had p aid him for carpet and installation on S eptem ber 5, 1 996, h e den ied tha t she p aid him anything therea fter, recalling that he saw her only briefly on September 10 and not at all on September 11. Ms. Carnes denied any knowledge of the Harley Davidson motorcycle which her nephew had acknowledged on cross- exam ination.
Defendant Deadrick did not testify at the trial. The transcript of the September 11 tape includes only one statement by Defendant Deadrick. Deadrick is quoted stating, “It was four, wadn’t [sic] it,” to which Carnes responds “Steve, ye ah, four.”
11
I. AUDIO TAPES
The Defendant first argues that the trial co urt erred b y allowing tra nscripts of the audio tapes made on September 10 and 11 to be admitted into evidence. He states, “The audio tape . . . would be the best evidence; that a transcript was what a third party thought he or she heard and w ould b e mis leadin g to a ju ry in this cause. He also contends that “the tape was inaudible at times and that the prejudicia l value [of the tape] outw eighed the prob ative value .”
The Tennessee Supreme Court has held that “‘tape recordings and compared transc ripts are adm issible and may be presented in evidence by any witness who was present during their recording or who monitored the conversations, if he was so situated and circumstanced that he was in a position to identify the d eclaran t with certainty, and provided his testimony in whole, or in part, comports with other rules of evidence.’” State v. Cameron, 909 S.W.2d 836, 850 (Tenn. Crim. App. 1995) (citing State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980)).
From a reading of the record, it appears that counsel for the defense initially objected to the a dmission o f the tapes and later reconsidere d their objection s. The record also establishes the following: Machen, the confidential informa nt, from whose body wire the audio tapes were recorded, testified that he had listened to the tapes after the transactions and had reviewed the transcripts. He maintained that he was also familiar with the voices on the tapes. He stated that to the best of his knowledge, the transcript and tapes were accurate.
12
Stanley Hodges of the Second Judicial District Drug Task Force, who introduced the September 10 tape into evidence, testified that he monitored the conversations and recording on Se ptem ber 10 , 1996 . He sta ted tha t imm ediate ly afterw ards, h e ma rked th e tape with his initials and de livered it to Office r David Quillen, who was in charge of the investigation. He concluded that the tape introduced at trial was the tape he recorded on September 10 and that the tape accurately reco rded the even ts that he had m onitored on tha t day.
Officer David Quillen, who introduced the September 11 tape on which the Defe ndan t’s voice is heard, testified that he followed Machen on September 10 and 11 and monitored all transmissions from Machen’s body wire during the transac tions. He stated that he had since listened a second time to both tapes and reported that both tapes were accurate and conveyed what he had heard during the initial transmissions. He also testified that when he collected the September 11 tape, he initialed it for identification purposes.
In addition, Frank LaPoma of the Second Judicial District Drug Task Force testified that he recorded the September 11 audio tape and had listened to the tape during its re cording . He stated that he was also assigned to make notes of the tape du ring the tran smissio ns, which he use d at trial as a m emory aid to recall the transaction. When initially presented with the tape in court, he stated that he was unsure from a visual inspection whether it was the tape he had recorded on September 11, 1996. However, the trial court allowed him to review the tape outside the presence of the jury, and afterw ards, h e state d that it w as in fact the tape which he had rec orded a nd that it co ntained an accu rate portrayal of the September 11 events as he had heard them.
13
Before allowing the jury to hear the Septem ber 10 tape, the trial court instructed them a s follows:
I will give the Jury the following instruc tion. This exhibit, the transcript . . . purports to be a transcript of exhibit number 24 that we are about to play for you. The tape recording, not the transcript is the evidence. The transcript is given to you to assist you in listening to the tape recording, and following the tape recording.
The transc ript is diffic ult— the tap e is difficult to distinguish at times.
At times, there is outside noise. You should keep in mind that the tape is the evidence, and that only the statements, admissions or declarations of a defendant may be considered on the question of guilt or innocence. If you find that there is something in the transcript that you do not hear on the tape recording, or in other words, if there are discrepancies between the tape recording and the transcript, you are to disregard what is on the transcript because the transcript is not evidence. The tape recording is the evidence.
Based upon th e forego ing, we co nclude that the trial co urt com mitted no error by allowing introduction of the tapes and transcripts. The voices on the tapes were ide ntified; a number of different witnesses stated that both the tapes and transcripts were accurate portrayals of the events of September 10 and 11; and the trial court duly instructed the jury that if they noted discrepancies between the tapes and the transcripts, they must disregard the transcripts and consider only the tapes as evidence. We find that witness testimony regarding the tapes and transcripts and the instruction s given to the jury ensured that both the tapes and transcripts were su fficiently reliable fo r introductio n into eviden ce. Th is issue is therefore without m erit.
II. SUFFICIENCY OF THE EVIDENCE The Defe ndan t next co ntend s that th e evidence pre sented at trial was insufficient as a matter of law to support the Defe ndan t’s conviction. Tennessee Code Annotated § 39-11-403 defines the crime of which the Defenda nt was convicted:
14
A person is crimin ally respon sible for the facilitation of a fe lony if, knowing that an other in tends to com mit a specific felony, but without the intent required for criminal responsibility under 39-11-402(2), the person knowingly furnishes substantial assistance in the comm ission of a felony.
Tenn. Code Ann. § 3 9-11-40 3(a). The Defen dant arg ues tha t “[t]he State presented no evidence that the defendant presented any assistance let alone substantial assistance in any criminal behavior a ctivity. . . . Th e reco rd is void that the de fenda nt kne w his co-de fenda nt, Ca rnes, in tende d to co mm it a felony or that he kn owingly fu rnished substa ntial assistance in the commission of the felony.” In his brief, the Defendant implies that the evidence used to convict the Defen dant wa s purely circ umsta ntial.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions wh ether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable do ubt.” In addition, beca use conviction b y a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defend ant bea rs the bu rden of s howing that the evidence was insufficient. McBe e v. State, 372 S.W.2d 173, 176 (Tenn . 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Ten n. 1977)); State v. Tug gle, 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Holt v. State , 357 S.W.2d 57, 61 (Ten n. 1962).
In its review of th e eviden ce, an ap pellate court must afford the State “the strongest legitimate view of the evidence as we ll as all reas onable and legitim ate inferences that may be d rawn therefrom .” Tug gle, 639 S.W.2d at 914 (citing
15
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re- weigh or re-evalu ate the ev idence ” in the reco rd below . Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimony, the court must res olve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.
W e only examine sufficiency relating to the September 11th transaction, as the trial court dismissed at the conclusion of the state’s proof the count relating to the Se ptemb er 10th tra nsaction .
Contrary to the Defend ant’s assertions, the State did present direct evidence that Machen obtained cocaine from the Defendants and that Defendant Deadrick participated in this transaction. Machen testified that Defendant Deadrick was present on September 11, and officers who monitored the transaction betwee n the De fendan ts and Ma chen ve rified this repo rt. In addition, photographs of the Defend ants and M achen take n on Sep tember 11 were introduced into evidenc e. Mac hen a lso tes tified tha t the D efend ant ac tually delivered packe ts of coca ine to him on September 11. Moreover, on the au dio tape of the September 11 transaction, the Defendant is heard to ask his co- defend ant, “It was four, w adn’t [sic] it?” Ma chen explain ed tha t by ma king th is statem ent, the De fenda nt was verifying how m any pa ckets of coc aine h e sho uld give Machen. Finally, the packets of cocaine were collected by officers and analyzed for conten t. Viewing th e eviden ce pres ented a t trial in the light most favora ble to the State, we conclude that the State presented sufficient evidence from which a jury co uld have determ ined th e Defe ndan t’s guilt. W e there fore will not disturb the jury’s findin g on ap peal.
16
III. SENTENCING
Finally, the Defend ant argues tha t the trial court erred b y sente ncing him as a Range III persistent offender to thirteen years incarceration. Although he states that the trial court erred by applying “certain enhancement factors,” he provides no argument in support of this point. Rather, it seems that he prima rily disputes the trial c ourt’s d ecisio n not to apply mitigating factor (4), which states, “[t]he defendant played a minor role in the commission of the offense.” Tenn. Code A nn. §40-35 -113(4).
When an accused challenges the length, range, o r mann er of service of a sentence, this Court ha s a duty to c onduc t a de novo review of th e sente nce with a presumption that the determin ations mad e by the trial court are correct. Tenn. Code Ann. § 40-3 5-401 (d). Th is pres ump tion is “conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91).
W hen conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. State v. Thomas, 755 S.W.2d 838, 844 (Tenn . Crim. A pp. 198 8); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.
17
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due conside ration and proper weight to the factors 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 the sen tence even if we would have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 19 91).
Our review of the record from the sente ncing hearin g reve als that the trial court carefully considered the evidence presented at the trial and sentencing hearing, the Defendant’s history, the enhancement and mitigating factors, and other relevant factors and sentencing principles. Therefore, we conclude that our review of the Defendant’s sentence is de novo with a pres umptio n that the determinations made by the trial court are corre ct. See Ashby, 823 S.W.2d at 169.
In sente ncing the De fenda nt, the tria l court c onsid ered th e Def enda nt’s criminal record. He had previously been convicted of two Class B felonies, one Class C felony, and three Class D felonies. The trial court applied the following enhan ceme nt factors:
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
...
(8) The defendant has a previous history of unwillingn ess to com ply with the conditions of a sentence involving release in the comm unity;
...
(13) The felony was com mitted while on any of the following forms of release status if such release is from a prior felony conviction:
18
...
(B) Paro le . . . .
Tenn. Code Ann. § 40-35 -114( 1), (8), (1 3)(B). T he co urt app lied the followin g mitigating factor: “The defendant’s criminal conduct neither caused nor threatened s erious bodily injury.” Ten n. Code A nn. 4-35-113 (1).
In concluding tha t mitigating factor (4) did no t apply in this case, the trial judge stated,
You played more o f, a lesser role tha n Mr. C arnes , but I find that it was not a minor role considering the testimony of your actions the previous day, Jun e 10, 19 96 [sic], . . . when Mr. Mache n went there to purchase cocaine and testified that you patted him down.
So I think you knew very well what went on. You went, as I recall, with Mr. Carnes both times when he left and went to . . . the building where the Jazz Salon was located and then came back and sold the drugs. The first time, as I recall, you did not go in the building, even though Mr. Carnes stated that you did in his testimony. But, there’s no testimony by the offic ers tha t you we nt in the building.
So, it was just not as great a role as, as Mr. Carnes, but it was close.
W e find no error on the pa rt of the tr ial cou rt in sentencing the Defendant to thirteen years incarceration. The trial court’s finding that the Defendant played more than a minor role in the offense is adequately supported by the record, and the trial judge en unciate d her reasoning for imposing the sentence which the Defendant received. We therefore affirm the sentence imposed.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
19
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE