          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE        FILED
                             JUNE 1998 SESSION
                                                       July 15, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9709-CC-00389
      Appellee,                      )
                                     )    LINCOLN COUNTY
VS.                                  )
                                     )    HON. CHARLES LEE,
ANDRE PARKS,                         )    JUDGE
                                     )
      Appellant.                     )    (Sale of Cocaine)



FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHN HARWELL DICKEY                       JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

MICHAEL D. RANDLES                        DARYL J. BRAND
(At Trial)                                Assistant Attorney General
Assistant District Public Defender        Cordell Hull Building, 2nd Floor
218 North Main Street                     425 Fifth Avenue North
Shelbyville, TN 37160                     Nashville, TN 37243-0493

                                          W. MICHAEL McCOWN
JULIE A. MARTIN                           District Attorney General
(On Appeal)
706 Walnut Street, Ste. 900-A             WEAKLEY E. BARNARD
P. O. Box 426                             Assistant District Attorney General
Knoxville, TN 37901-0426                  Marshall County Courthouse
                                          Room 407
                                          Lewisburg, TN 37091




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                   OPINION


       Defendant, Andre Parks, appeals his conviction by a Lincoln County jury of

the offense of selling cocaine under 0.5 grams, a Class C felony.             He was

sentenced to a term of eight (8) years and eleven (11) months and denied

alternative sentencing. He presents the following issues for our review:

              1.     whether the evidence is sufficient to support the
                     guilty verdict;

              2.     whether the trial court erred in failing to suppress
                     the undercover agent’s in-court
                     identification of the defendant;

              3.    whether the trial court erred by admitting into
              evidence the packages containing the cocaine since it
              had defendant’s name marked on them;          and

              4.    whether the trial court erred in sentencing the
              defendant.

After a careful review of the evidence, we affirm the judgment of the trial court.



                                       FACTS



       The state’s proof showed that on June 20, 1996, undercover agent, Tommy

Biele, was a Dickson police officer on special assignment to the Seventeenth

Judicial District Drug Task Force in Lincoln County. He utilized an unmarked

vehicle containing audio and video equipment. At approximately 5:30 p.m. the

defendant approached Agent Biele’s vehicle. The agent was able to view the

defendant close up, face-to-face. As a police officer, Agent Biele had been trained

to “memorize everything you can about them before they leave.”              The agent

requested of the defendant three (3) rocks of crack cocaine for $50. The defendant

handed the agent three (3) rocks, and the agent paid the defendant $50. The

transaction was videotaped and shown to the jury. The agent did not notice any

distinguishing marks or scars on the seller. Agent Biele was “100% certain” that the

defendant was the same person who sold him cocaine on the date in question.



       The rocks were turned over to another officer. All officers in the chain of

                                          2
custody identified the packaging. The substance was further identified by the

forensic chemist as containing 0.4 grams of cocaine base, a Schedule II controlled

substance.

         At the conclusion of the state’s proof, the defendant offered no witnesses or

testimony. However, the defendant exhibited to the jury his arms which contained

scars.

         The jury convicted the defendant of separate counts of selling and delivering

cocaine based upon this transacton. The delivery conviction was stricken by the

trial court, thus leaving the defendant with a conviction for the sale of cocaine under

0.5 grams.



                         SUFFICIENCY OF THE EVIDENCE



               When reviewing the trial court's judgment, this Court will not disturb

a verdict of guilt unless the facts of the record and inferences which may be drawn

from it are insufficient as a matter of law for a rational trier of fact to find the

defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tenn. R. App. P. 13(e); State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In other words, this Court will not

reevaluate or reweigh the evidence brought out at trial. Since a verdict of guilt

removes the presumption of a defendant's innocence and replaces it with a

presumption of guilt, the defendant has the burden of proof on the sufficiency of the

evidence at the appellate level. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

         The defendant was specifically identified as the person who sold the

controlled substance. The issue of identification is a question for the jury. State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). This issue was resolved

by the jury against the defendant. The chain of custody was properly shown, and

the substance was identified by the forensic chemist as cocaine. The evidence is

sufficient to support the verdict.




                                           3
                           IN-COURT IDENTIFICATION



       Defendant next contends Agent Biele’s in-court identification of the defendant

was tainted by a prior impermissibly suggestive photographic identification.



                                          A.



       Approximately one month after the drug transaction, another agent showed

Agent Biele a photograph of the defendant and inquired as to whether this was the

same person who sold him the drugs. Agent Biele identified the defendant in the

photograph as the same person who sold the drugs. The trial court found this

photographic identification was impermissibly suggestive and suppressed the use

of this identification as a part of the state’s case-in-chief. However, the trial court

found that an in-court identification was sufficiently reliable and independent from

the tainted photographic identification.       The trial court allowed the in-court

identification of the defendant.



                                          B.



       Firstly, we note that the findings of fact of the trial court at a suppression

hearing will not be disturbed on appeal unless the evidence in the record

preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).



                                          C.



       Secondly, convictions based on eyewitness identification at trial following a

pre-trial photographic identification will be set aside only if the photographic

identification was so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377,

384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247,1253 (1968). We, nevertheless, recognize


                                          4
that a pre-trial confrontation procedure may be unlawful if, under the totality of the

circumstances, the procedure is unnecessarily suggestive. Moore v. Illinois, 434,

411 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424, 433 (1977).

       This Court must consider five factors in determining whether the in-court

identification is reliable enough to withstand a due process attack despite the

suggestiveness of the pre-trial identification. Neil v. Biggers, 409 U.S. 188, 199, 93

S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972); State v. Strickland, 885 S.W.2d at 88.

These factors are: (1) the opportunity of the witness to view the criminal at the time

of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’

prior description of the criminal; (4) the level of certainty demonstrated by the

witness at the confrontation; and (5) the time between the crime and the

confrontation. Strickland, 885 S.W.2d at 88.



                                          D.



        In the case at bar Agent Biele had ample opportunity to view the defendant

face-to-face. As a police officer, Agent Biele was trained in the importance of

identification. Agent Biele had absolutely no doubt or hesitation that the defendant

was the person who sold him the drugs. The transaction was memorialized on

videotape. The trial court found that the in-court identification was not tainted by the

prior photographic identification. The evidence does not preponderate against the

trial court’s ruling.

        This issue is without merit.



                        DEFENDANT’S NAME ON PACKAGE



       Defendant next contends the admission into evidence of the drug envelopes

was prejudicial since his name had been written on them. We respectfully disagree.

        One of the officers testified as to her role in the chain of custody. She

received the cocaine from another agent, packaged and sealed it, and wrote



                                           5
identifying information on the envelopes.        The defendant objected to their

introduction into evidence since the defendant’s name had been written on the

envelopes. Since the chain of custody had not been completely established at that

time, the exhibits were marked for identification purposes only. Subsequently, when

the chain of custody was completely established, the trial court admitted the exhibits

into evidence.

       The defendant’s name was written on the envelopes for the purpose of

identifying evidence and establishing the chain of custody. Defendant was not

prejudiced by this procedure.

       This issue is without merit.



                                   SENTENCING



       Defendant was sentenced as a Range II, Multiple Offender, to a term of eight

(8) years and eleven (11) months. The Multiple Offender range of punishment for

this Class C felony was not less than six (6) years nor more than ten (10) years.

See Tenn. Code Ann. § 40-35-112(b)(3). Alternative sentencing was denied.

Defendant now challenges the length of the sentence and the denial of alternative

sentencing.



                                         A.



              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).

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d


                                          6
785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the

range for enhancement factors and then reduce the sentence within the range for

the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for

each factor is prescribed by the statute, as the weight given to each factor is left to

the discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,

848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.

Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).



                                          B.



       The defendant concedes the trial court properly applied the following

enhancement factors:

              (1)    a previous history of criminal convictions in
              addition to those necessary to establish the
              appropriate range, Tenn. Code Ann. § 40-35- 114(1);

              (2)    a previous history of unwillingness to comply with
                     the conditions of release into the
                     community, Tenn. Code Ann. § 40-35-
                     114(8); and

              (3)    adjudications of prior delinquent acts as a
              juvenile which would constitute a felony if
              committed by an adult, Tenn. Code Ann. § 40- 3 5 -
              114(20).

       Defendant had prior convictions for forgery, evading arrest, felony theft,

selling Schedule IV drugs, passing worthless checks, assault and battery, contempt

of court, and simple assault. As a juvenile he had an adjudication for forgery. He




                                          7
had a prior probation revocation. The three (3) enhancement factors were properly

applied.



                                          C.



       Defendant contends the trial court erred in finding that, due solely to the

nature of cocaine, the crime was committed under circumstances under which the

potential for bodily injury to a victim was great. See Tenn. Code Ann. § 40-35-

114(16). The trial court noted that this Court has conflicting opinions as to this

issue. See State v. Keel, 882 S.W.2d 410, 421 (Tenn. Crim. App. 1994); State v.

Millbrooks, 819 S.W.2d 441, 447 (Tenn. Crim. App. 1991). 1 Millbrooks applied this

factor finding the use of crack cocaine to be injurious to the human body. 819

S.W.2d at 447. Keel rejected the Millbrooks analysis in its application of this factor

to all cocaine cases; however, Keel recognized that some cocaine-related cases

can be committed under factual scenarios justifying the application of this factor.

882 S.W.2d at 421-22. We find Keel to contain the better analysis. See also State

v. Robert L. O’Neal, C.C.A. No. 01C01-9610-CC-00438, Marshall County (Tenn.

Crim. App. filed December 30, 1997, at Nashville).

       In this case we find no particular circumstances causing a great potential for

bodily injury other than the nature of the substance itself. Accordingly, we find the

trial court erred in its application of this enhancement factor. Nevertheless, we note

that the trial court specifically stated it gave very little weight to this enhancement

factor in light of our conflicting opinions. Under these circumstances, a sentence

reduction due to the misapplication of this enhancement factor is not justified.




       1
        Permission to appeal was denied in Keel, while no permission to appeal was
sought in Millbrooks.

                                           8
                                          D.



       Defendant further contends the trial court erred in refusing to recognize

mitigating factors. Specifically, defendant contends the trial court should have

considered his seeking treatment for cocaine addiction prior to his arrest and his

potential for rehabilitation. Defendant has an extensive prior criminal history.

Defendant has continued to use drugs and sell them to support his habit. We find

no error in the trial court refusing to recognize any mitigating factors.



                                          E.



       In summary, we find the trial court only erred in its application of one

enhancement factor. This does not necessarily entitle defendant to a reduction of

his sentence. See State v. Lavender, ___ S.W.2d ___ (Tenn. 1998). We find the

trial court’s determination of the length of sentence to be appropriate.



                                          F.



       Finally, defendant contends he should have received an alternative sentence.

He concedes he is not entitled to a presumption that he is a favorable candidate

since he is a Range II Offender.         See Tenn. Code Ann. § 40-35-102(6).

Furthermore, defendant is not eligible for probation since the length of his sentence

exceeds eight (8) years. See Tenn. Code Ann. § 40-35-303(a). The only possible

alternative sentence the defendant could receive is participation in the community

corrections program.




                                          9
                                          G.



       The Community Corrections Act establishes a program of community-based

alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §

40-36-103. A defendant is eligible for participation in a community corrections

program if the defendant satisfies several minimum eligibility criteria set forth at

Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all offenders

who meet these requirements are entitled to such relief. State v. Grandberry, 803

S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36-

106(d) provides that the eligibility criteria shall be interpreted as minimum standards

to guide the court's determination of eligibility of offenders under the Act.

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169.

       The trial court noted defendant’s extensive criminal history and his continued

failure to benefit from measures less restrictive than confinement. The record

certainly supports these findings. We conclude the trial court did not err in denying

alternative sentencing.



                                   CONCLUSION



       For the above reasons, we affirm the judgment of the trial court.



                                           _______________________________
                                           JOE G. RILEY, JUDGE




                                          10
CONCUR:



______________________________
CURWOOD WITT, JUDGE



______________________________
LEE MOORE, SPECIAL JUDGE




                                 11
