         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 7, 2006

               STATE OF TENNESSEE v. JAMES DAVID CREASY

                   Direct Appeal from the Circuit Court for Hardin County
                           No. 8368    C. Creed McGinley, Judge



                     No. W2005-00590-CCA-R3-CD - Filed May 16, 2006


The defendant, James David Creasy, was convicted of possession with intent to manufacture, deliver,
or sell a schedule II drug (methamphetamine) and possession of drug paraphernalia. The trial court
imposed an eight-year sentence for the possession of methamphetamine conviction and an eleven-
month and twenty-nine day sentence for the possession of drug paraphernalia conviction. The Range
II sentences were ordered to be served concurrently. In this appeal, the defendant asserts (1) that the
evidence was insufficient to support the conviction for possession with intent to manufacture,
deliver, or sell methamphetamine and (2) that the sentence is excessive. The judgments of the trial
court are affirmed.

                  Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE, JJ., joined.

Guy T. Wilkinson, District Public Defender (on appeal), and Bob Gray, Selmer, Tennessee (at trial),
for the appellant, James David Creasy.

Paul G. Summers, Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General;
Robert "Gus" Radford, District Attorney General; and John W. Overton, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        On October 13, 2003, Keith Amos, a Hardin County Deputy, detected a vehicle traveling
eighty-four miles per hour in a fifty-five miles per hour zone. The officer began to pursue the
vehicle and the driver, Jessie A. Lambert, pulled into the parking lot of a bait shop, got out of the
truck, and raised its hood. The defendant was a passenger in the Lambert vehicle. When the officer
arrived, he ordered the driver back into his seat and called for back-up. Because he suspected the
driver, who acted "a little nervous," of driving while under the influence, the officer asked for and
received permission to search the vehicle. He found a handgun, a bag containing what appeared to
be a controlled substance, drug paraphernalia, scales, and clear plastic bags. Both the driver and the
defendant were placed under arrest.

        At trial, Keith Amos testified that the driver admitted having drunk two beers earlier in the
day and acknowledged having ingested "a pill of some nature." The officer recalled that when he
discovered the gun, the driver claimed ownership and insisted that the defendant did not have any
knowledge of it. He testified that he found a syringe, a spoon, a straw, some Q-tips, and a clear bag
with residue of a "crystal-like substance" inside a black case and a set of scales in a black bag. It was
the officer's opinion that the straw, spoon, and syringe could be used to prepare methamphetamine
for injection. He explained that smaller plastic bags found in the black bag were often used to
package drugs and that the scales were typically used to weigh drugs for distribution. The officer
recalled that two days after his arrest, the defendant claimed ownership of the "dope," which was in
the black case, but denied that he was selling drugs or had any awareness of the gun.

        By the time of trial, Officer Amos was unable to find the electronic scales and plastic bags
he had confiscated from the vehicle. On cross-examination, he acknowledged that the defendant had
no money, no books or ledgers, and no cell phone in his possession at the time of his arrest. The
officer also acknowledged that neither the scales nor the plastic bags recovered at the scene were
subjected to any testing to determine whether they contained drug residue. He also conceded that
it was possible that the scales could have been used to weigh items other than drugs.

        Michael Pope, an officer with the Savannah Police Department, testified that he provided
assistance to Officer Amos during the traffic stop. He stated Officer Amos obtained consent to
search the vehicle and did so in his presence. He recalled that Officer Amos found a gun and
narcotics during the search and conducted field sobriety tests on the driver of the vehicle.

       Tara Barker, a special agent forensic scientist with the Tennessee Bureau of Investigation
(TBI) Crime Laboratory, tested the substance seized by Officer Amos during the search of the
vehicle and identified it as .5 grams of methamphetamine.

        The defense rested without introducing any evidence.
                                                 I.
        The defendant asserts that the evidence was insufficient to support the conviction for
possession with intent to manufacture, deliver, or sell methamphetamine. He contends that because
the state was unable to produce at trial the scales seized during the search and because no other items
associated with those "in the drug business," such as money, a cell phone, and books or ledgers, were
found, the evidence was insufficient to establish that he had any intent to manufacture, deliver, or
sell.

        On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.


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State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Because a verdict of guilt against a defendant removes the presumption of innocence and raises a
presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992).

       "It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance with intent
to manufacture, deliver or sell such controlled substance." Tenn. Code Ann. § 39-17-417(a)(4)
(2003). "It may be inferred from the amount of a controlled substance . . . possessed by an offender,
along with other relevant facts surrounding the arrest, that the controlled substance . . . [was]
possessed with the purpose of selling or otherwise dispensing." Id. § 39-17-419 (2003).

         Here, there was testimony that Officer Amos seized .5 grams of methamphetamine, several
small plastic bags, and scales. He explained that the bags were of the type used to package drugs and
that "in drug situations," scales were typically used to weigh different amounts for distribution. The
defendant admitted to the officer that he was in possession of the case and bag in which the
methamphetamine, scales, clear plastic bags, and drug paraphernalia were found. Even though the
state was unable to produce the small plastic bags and scales at the trial, the jury chose to accredit
the testimony of the officers, which was its prerogative. The jury accepted the explanation for the
missing items and inferred an intent to manufacture, deliver, or sell from the presence of the plastic
bags and scales. See State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). Under
these circumstances, it is our view that the evidence was sufficient.
                                                 II.
         At the conclusion of the sentencing hearing, the trial court determined (1) that the defendant
had a previous history of criminal behavior and convictions in addition to those necessary to
establish the appropriate range and (2) that the defendant had a previous history of unwillingness to
comply with the conditions of probation. See Tenn. Code Ann. § 40-35-114(2), (9) (2003). The
defendant asserts that his Range II, eight-year sentence is excessive. He argues that the trial court
inappropriately enhanced his sentence. The state contends that the trial court properly enhanced the
sentence because of the defendant's extensive criminal history and prior history of unwillingness to
comply with the conditions of probation.

        When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is
"conditioned upon the affirmative showing in the record 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate
factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission


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Comments provide that the burden is on the defendant to show the impropriety of the sentence.
Tenn. Code Ann. § 40-35-401, Sentencing Comm'n Comments.

        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 own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210
(2003); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        At the time of the offense, a Range II sentence for possession with intent to manufacture,
deliver, or sell methamphetamine, a Class C felony,1 was six to ten years. See Tenn. Code Ann. §§
39-17-417(c)(2)(A), 40-35-112(b)(3) (2003). In calculating the sentence for a Class C felony
conviction, the presumptive sentence is the minimum in the range if there are no enhancement or
mitigating factors. Id. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial
court may set the sentence above the minimum, but still within the range. Id. § 40-35-210(d). A
sentence involving both enhancement and mitigating factors requires an assignment of relative
weight for the enhancement factors as a means of increasing the sentence. Id. § 40-35-210(e). The
sentence should then be reduced within the range by any weight assigned to the mitigating factors
present. Id. The weight to be assigned to the appropriate enhancement and mitigating factors falls
within the sound discretion of the trial court so long as that court complies with the purposes and
principles of the 1989 Sentencing Act and its findings are supported by the record. State v. Boggs,
932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). If the trial court's findings of fact are adequately
supported by the record, this court may not modify the sentence even if it would have preferred a
different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        In his brief, defense counsel candidly acknowledges that "there can be no denial that the
defendant has a substantial prior record." The presentence report confirmed that the forty-year-old
defendant had been previously convicted of assault, escape, failure to appear (two convictions),
driving under the influence (DUI) (six convictions in addition to the felony DUI conviction used to
establish the defendant's range), disorderly conduct, driving with a revoked license (eight
convictions), and two traffic offenses. Under these circumstances, the record supports the trial
court's determination that Tennessee Code Annotated 40-35-114(2) was entitled to substantial
weight.

       The presentence report also confirmed that a sentence of probation for the defendant had been
revoked three years earlier. Thus, the second enhancement factor, the defendant's previous history
of unwillingness to comply with the conditions of probation, was properly applied. See Tenn. Code



        1
         Possession with intent to manufacture, distribute, or sell .5 grams or more of methamphetamine is a Class B
felony under current law. See Tenn. Code Ann. § 39-17-417(c)(1) (2005). This crime, however, was committed in
October of 2003.

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Ann. § 40-35-114(9). There were no mitigating factors. In our view, the trial court acted within its
authority by imposing the mid-range, eight-year sentence.

       Accordingly, the judgments of the trial court are affirmed.




                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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