          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                                AT KNOXVILLE                  August 17, 1999

                                                             Cecil Crowson, Jr.
                             JULY 1999 SESSION              Appellate C ourt
                                                                Clerk



STATE OF TENNESSEE,                  )
                                     )    NO. 03C01-9807-CR-00259
      Appellee,                      )
                                     )    McMINN COUNTY
VS.                                  )
                                     )    HON. CARROLL L. ROSS,
CHRIS SMITH,                         )    JUDGE
                                     )
      Appellant.                     )    (Sale of Cocaine - Three Counts)



FOR THE APPELLANT:                        FOR THE APPELLEE:

CHARLES M. CORN                           PAUL G. SUMMERS
District Public Defender                  Attorney General and Reporter

WILLIAM C. DONALDSON                      TODD R. KELLEY
(At Trial)                                Assistant Attorney General
Assistant District Public Defender        Cordell Hull Building, 2nd Floor
110 ½ Washington Avenue NE                425 Fifth Avenue North
Athens, TN 37303                          Nashville, TN 37243-0493

JOHN E. HERBISON                          JERRY N. ESTES
(On Appeal)                               District Attorney General
2016 Eighth Avenue South
Nashville, TN 37204-2202                  WILLIAM W. REEDY
                                          Assistant District Attorney General
                                          130 Washington Avenue NE
                                          P. O. Box 647
                                          Athens, TN 37371-0647




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                   OPINION


       Defendant, Chris Smith, was convicted by a McMinn County jury on three

counts of selling cocaine under 0.5 grams, Class C felonies. The trial court

sentenced defendant as a Range II multiple offender to ten years on each count to

run concurrently. The following issues are presented in this appeal as of right:

       (1) whether the trial court erred in denying defendant’s motion to
           sever the offenses;

       (2) whether the evidence was sufficient to establish venue in McMinn
           County; and

       (3) whether the sentences are excessive.

After a careful review of the record, we find no error and AFFIRM the judgment of

the trial court.



                                      FACTS



       Although defendant does not challenge the sufficiency of the substantive

evidence to support the convictions, a brief summary of the facts would be

appropriate. The state’s proof showed that on July 17, 18, and 19, 1996, an

undercover agent purchased crack cocaine from defendant. On each occasion the

transaction occurred on Kilgore Street in Athens; the defendant approached the

agent’s vehicle; the agent gave the defendant $100; the agent was asked to circle

the block; and the defendant subsequently gave to the agent slightly less than 0.5

grams of crack cocaine. The defendant offered no proof at trial.



                          SEVERANCE OF OFFENSES



       Defendant contends the trial court erred in not severing the three counts for

separate trials. The state contends the offenses were part of a common scheme

or plan and were properly tried together. We find no reversible error in refusing to

sever the offenses.




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                          A. Common Scheme or Plan



       Even though offenses are properly joined in an indictment, a defendant has

the right to severance of the offenses “unless the offenses are part of a common

scheme or plan and the evidence of one would be admissible upon the trial of the

others.” Tenn. R. Cr. P. 14(b)(1). A “common scheme or plan” is established if the

modus operandi of the offenses is similar, and they occur within a close proximity

of time and location so that there can be little doubt that the offenses were

committed by the same defendant. State v. Peacock, 638 S.W.2d 837, 840 (Tenn.

Crim. App. 1982). This Court has repeatedly acknowledged the common scheme

or plan application to drug transactions with similar factual patterns. See State v.

Steve Edward Houston, C.C.A. No. 01C01-9711-CC-00510, Giles County (Tenn.

Crim. App. filed October 28, 1998, at Nashville)(citing numerous decisions of this

Court authorizing consolidation for similar drug transactions). In the case at bar, all

three offenses involved the same undercover agent, the same defendant, the same

location of sale, the same amount of money, a similar amount of crack cocaine, a

similar method of operation by the defendant, and occurred on three consecutive

days. We conclude these offenses constitute a “common scheme or plan” as

contemplated by Tenn. R. Crim. P. 14(b)(1).



                             B. Tenn. R. Evid. 404(b)



       Tenn. R. Crim. P. 14(b)(1) sets forth an additional requirement for trial

consolidation; namely, the evidence of each offense must be admissible in the trial

of the others. This must be determined pursuant to Tenn. R. Evid. 404(b). See

State v. Hoyt, 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995). Tenn. R. Evid. 404(b)

relates to the admissibility of other crimes and requires (1) a jury-out hearing; (2) a

determination of a material issue other than conduct conforming with a character

trait; and (3) a finding that probative value outweighs unfair prejudice. Id. Evidence

of other crimes may be admissible to show motive; intent; guilty knowledge; identity;


                                          3
absence of mistake or accident; a common scheme or plan; or completion of the

story. N. Cohen et al., Tennessee Law of Evidence § 404.6 (3d ed. 1995).



      Although the trial court did not make findings as required by Tenn. R. Evid.

404(b), defendant is entitled to no relief. The defendant’s participation in each

offense was probative of his identity and established a common scheme or plan.

Furthermore, the facts of each case were identical except for the date.



      This issue is without merit.



                                           VENUE



      Defendant contends the state failed to establish venue since the only

testimony relating to venue was that Kilgore Street was “[h]ere in Athens.” We

disagree with defendant’s contention.



      The state must prove venue by a “preponderance of the evidence.” Tenn.

Code Ann. § 39-11-201(e). The state’s proof indicated that the drug transactions

took place in Athens. The jury could properly determine that Athens is in McMinn

County. See State v. Marbury, 908 S.W.2d 405, 408 (Tenn. Crim. App. 1995);

State v. Chadwick, 750 S.W.2d 161, 165 (Tenn. Crim. App. 1987). Furthermore,

both the defendant and the state have overlooked the testimony of Detective Bill

Matthews, who monitored all three transactions, and responded affirmatively when

asked if “all these events occurred in McMinn County, Tennessee.”1



      This issue is without merit.




      1
          See Trial Transcript, page 14.


                                             4
                                  SENTENCING



      In his final issue Defendant contends the trial court erred in its determination

of enhancement and mitigating factors and imposed an excessive sentence. We

disagree.



      This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



      The pre-sentence report indicates that the defendant had 17 prior

convictions, including 11 felony convictions.      Many of the felony convictions

apparently were committed on the same date, thereby limiting defendant to a Range

II offender. Defendant was on felony probation at the time of the commission of the

instant offenses. Furthermore, defendant was on probation when he committed and

was subsequently convicted of casual exchange of drugs. However, the casual

exchange occurred after the date of commission of the present offenses but prior

to sentencing on the present offenses.



      The trial court found no mitigating factors. The trial court found the following

enhancement factors: previous history of criminal convictions in addition to those

necessary to establish Range II punishment; previous history of unwillingness to

comply with the conditions of a sentence involving release in the community; and

commission of the instant felonies while on probation for a felony. See Tenn. Code

Ann. § 40-35-114(1), (8), (13)(C).



      Defendant contends the trial court erred in failing to find as a mitigating factor

that defendant’s conduct neither caused nor threatened serious bodily injury. See



                                          5
Tenn. Code Ann. § 40-35-113(1).        This factor need not be applied to those

convicted of selling cocaine. State v. Vanderford, 980 S.W.2d 390, 407 (Tenn.

Crim. App. 1997).



       Defendant finally contends the trial court erred in finding a previous history

of unwillingness to comply with conditions of a sentence involving release in the

community. Tenn. Code Ann. § 40-35-114(8). Although defendant concedes he

was convicted of the casual exchange of drugs which was committed while he was

on probation for a prior offense, he argues this enhancement factor is not applicable

since the commission of that offense occurred after the commission of the present

offenses.   A criminal conviction or criminal behavior occurring prior to the

sentencing hearing may be considered as evidence of a prior history of criminal

convictions or criminal behavior under Tenn. Code Ann. § 40-35-114(1), regardless

of whether the criminal behavior occurred before or after the commission of the

offense under consideration. See State v. Burl Jarrett, C.C.A. No. 02C01-9710-CC-

00418, Hardeman County (Tenn. Crim. App. filed August 21, 1998, at Jackson);

State v. John Allen Chapman, C.C.A. No. 01C01-9604-CC-00137, Grundy County

(Tenn. Crim. App. filed September 30, 1997, at Nashville). Regardless of whether

the questioned conviction is considered under enhancement factor (1) or

enhancement factor (8), we see no reason to reduce the sentence.



                                  CONCLUSION



       For these reasons, we AFFIRM the judgment of the trial court.




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                                    ____________________________
                                     JOE G. RILEY, JUDGE




CONCUR:


____________________________
GARY R. WADE, PRESIDING JUDGE



____________________________
DAVID H. WELLES, JUDGE




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