        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

                                         -2-
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,

                                         -3-
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

                                         -4-
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.

                                          -5-
      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.




                                          -6-
      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

                                         -7-
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.

                                          -8-
      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

                                         -9-
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.”




                                          -10-
                                 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.




                                         -11-
       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.

                                          -12-
       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:

                                           -13-
       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

                                           -14-
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.

                                         -15-
                                 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.




                                         -16-
       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:

                                         -17-
              ...
             (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

                                        -18-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -19-
