     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT KNOXVILLE                                 FILED
                                                                   November 4, 1999
                    AUGUST 1999 SESSION
                                                                   Cecil Crowson, Jr.
                                                                  Appellate Court Clerk



STATE OF TENNESSEE,             )   C.C.A. No. 03C01-9810-CR-00379
                                )
       Appellee,                )   Sullivan County
                                )
v.                              )   Honorable R. Jerry Beck, Judge
                                )
ERIC LAREZ, a/k/a “EASY,”       )   (Sale of Over One-Half Ounce of Marijuana;
                                )    Sale of Over One-Half Gram of Cocaine)
       Appellant.               )




FOR THE APPELLANT:                  FOR THE APPELLEE:

TERRY L. JORDAN                     PAUL G. SUMMERS
Assistant Public Defender           Attorney General & Reporter
P. O. Box 839
Blountville, TN 37617               ERIK W. DAAB
                                    Assistant Attorney General
GERALD L. GULLEY, JR.               425 Fifth Avenue North
P. O. Box 1708                      Nashville, TN 37243-0493
Knoxville, TN 37901-1708
(On Appeal Only)                    H. GREELEY WELLS, JR.
                                    District Attorney General

                                    MARY KATHERINE HARVEY
                                    Assistant District Attorney General
                                    140 Blountville Bypass
                                    P. O. Box 526
                                    Blountville, TN 37617-0526




OPINION FILED: ________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                       OPINION


       The defendant, Eric Larez, appeals his convictions in the Sullivan County Criminal

Court on two counts of the sale of marijuana over one-half ounce and one count of the sale

of over one-half gram of cocaine. He was sentenced as a Range I offender to two years
confinement for each of the counts involving marijuana and nine years in that involving

cocaine, all sentences to be served concurrently. He has filed a timely appeal of these

convictions, alleging as error:
              1. The trial court should have instructed the jury as to a
                 “casual exchange.”
              2. His rights to a speedy trial were violated by the delay of
                 three and one-half years between his being charged
                 with the offenses and being arrested following those
                 charges.

              3. The evidence was insufficient for a conviction as to the
                 sale of a controlled substance.

              4. He should have received a lesser or an alternative
                 sentence.

Based upon our review, we affirm the judgment of the trial court.



                                          FACTS

       The defendant was charged with selling a controlled substance, the sales occurring

on three days in 1993. The first sale occurred on August 17, 1993, when Officer Todd

Harrison, of the Kingsport Police Drug Task Force, assisted by a confidential informant,

arranged for an undercover drug purchase. Officer Harrison and the informant picked up
the defendant at his place of employment. The defendant directed them to an apartment

building located at 201 East Ravine Street in Kingsport. While parked in front of the

apartment, Harrison gave $50 to the informant who then gave it to the defendant. The
defendant got out of the car and went into the apartment. When the defendant returned

to the vehicle approximately four minutes later, he told Harrison “they were out of LSD,” but

“we could get some pot.” Harrison said he would want an ounce, if he were to purchase
marijuana. The defendant then responded, “No problem.”



       Harrison told the defendant he needed to go to a bank to get more cash. In fact,

Harrison wanted to record the serial numbers of the currency with which he was to pay the
defendant, in addition to the $50 already paid. The three then drove to a bank, where

Harrison went inside and recorded the serial numbers. They then returned to the

apartment, where Harrison gave the defendant an additional $100 in cash. The defendant

got out of the car and entered the apartment building. He soon returned to the car with a

plastic baggie of marijuana, which he gave to Harrison. Harrison then drove the defendant
to 717 Virgil Avenue in Kingsport, where the defendant said he lived.



       On August 18, 1993, Harrison planned another drug purchase with the defendant.
He and the informant picked up the defendant at the same Virgil Avenue address where

he had been left the previous afternoon. Harrison’s understanding, based upon what the

informant had said, was that Harrison would purchase one-quarter pound of marijuana
from the defendant for $500. Harrison was to give $300 to the defendant, with the

remaining $200 to be paid upon delivery of the marijuana. Harrison, the informant, and the

defendant went in Harrison’s vehicle to the same apartment building at 201 East Ravine
Street. After Harrison gave him $300, the defendant entered the apartment.              The

defendant returned to the car and told Harrison he could not obtain the marijuana at that

time because the supplier was unavailable. The defendant also told Harrison that he and
another individual, who had come out of the apartment building with the defendant, were

going down the street to where a “bigger stash” was kept “to see if they could get it there.”

The defendant told Harrison to wait at the apartment, and he would return shortly. Soon,
the defendant returned and told Harrison he would have to wait for another hour. The

defendant returned Harrison’s $300.



       As Harrison was counting the returned money, the defendant’s companion told the

defendant that he could obtain the marijuana immediately. Harrison then gave the $300
back to the defendant. The defendant told Harrison to drive around the block for about five

or ten minutes and then return. Harrison did as instructed, and, upon his return to the

apartment, the defendant got into the car and gave him $300 worth of marijuana. The
defendant told Harrison to drive around for another hour and then return for the rest of the

marijuana. Harrison followed these instructions and, upon his return, paid the defendant

$200 for the additional marijuana.


       On August 23, 1993, Harrison and the informant again picked up the defendant at

the defendant’s place of employment and returned to the same apartment building. Before

getting into Harrison’s car, the defendant said he knew the informant had once been a
“narc” and asked for reassurance the two of them were not “narcs.” Upon Harrison’s

saying they were not, the defendant came with them. During the trip, Harrison told the

defendant that he wanted to buy an “eight- ball,” to which the defendant replied they would
have to “see just what they’ve got when we get there.” As they reached the apartment, the

defendant left the car and entered the apartment. Soon he returned and told Harrison that


                                             3
the supplier was not available, but he had been “beeped” and would be available in twenty

to thirty minutes. The three then rode around the neighborhood for a period. Upon their

return, Harrison gave the defendant $100 as a down payment for the cocaine. The
defendant again entered the apartment and returned shortly, telling Harrison an “eight-ball”

is $300. After Harrison gave the defendant the additional $200, Harrison and the informant

drove around for a short time. As they returned to the street in front of the apartment
building, the defendant and another male pulled up in an automobile. The defendant ran

over to Harrison’s car and handed him what the informant described as a “big fat juicy

eight-ball,” saying additionally it was “good stuff.” Harrison then dropped off the defendant
at the Virgil Street address. Upon cross-examination, Harrison testified the defendant had

told the informant that he “could get him whatever he wanted.”



       At the trial, Tennessee Bureau of Investigation forensic scientist David Holloway

testified the substance sold to Harrison on August 17 was 20. 9 grams of marijuana, and

the substance sold on August 18 was 47. 6 grams of marijuana. Tennessee Bureau of
Investigation chemist Celeste White testified the substance sold to Harrison on August 24

was .6 grams of cocaine.




                                             4
                I. FAILURE TO INSTRUCT AS TO “CASUAL EXCHANGE”

       The defendant’s first assignment of error is that the trial court should have instructed

the jury as to a “casual exchange” as to each of the three offenses. Regarding this
instruction, Tennessee Code Annotated § 39-17-418 (1997) provides:

                Simple possession or casual exchange.

                (a) It is an offense for a person to knowingly possess or
                casually exchange a controlled substance unless the
                substance was obtained directly from, or pursuant to, a valid
                prescription or order of a practitioner while acting in the course
                of professional practice.



        Without question, a defendant is entitled to a jury instruction as to lesser included

offenses:

                Since the 19th century, our legislature has required trial judges
                “in cases of criminal prosecution for any felony wherein two (2)
                or more grades or classes of offense may be included in the
                indictment, to charge the jury as to all of the law of each
                offense included in the indictment, without any request on the
                part of the defendant to do so.”

State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996) (citing Tenn. Code Ann. § 40-18-110).



       However, simply because there are lesser included offenses to the offense with

which a defendant has been charged does not automatically mean the defendant is entitled

to a jury instruction on those offenses:

                    Accordingly, before instructing a jury on a lesser offense,
                the trial court must determine whether the evidence, when
                viewed in the light most favorable to the defendant’s theory of
                the case, would justify a jury verdict in accord with the
                defendant’s theory, and would permit a rational trier of fact to
                find the defendant guilty of the lesser offense and not guilty of
                the greater offense.

State v. Elder, 982 S.W.2d 871, 877 (Tenn. Crim. App. 1998) (citations omitted) (emphasis

in original).



       The word “casual” has been defined as: “Occurring without regularity, occasional;
impermanent, as employment for irregular periods. Happening or coming to pass without

design and without being foreseen or expected; unforeseen; uncertain; unpremeditated.”

Black’s Law Dictionary 197 (5th ed. 1979).



       A “casual exchange” can occur “when the transfer of the controlled substance is

made without design,” and “even though money is involved in the transaction.” State v.

Carey, 914 S.W.2d 93, 96 (Tenn. Crim. App. 1995). An example of a casual exchange

is detailed in State v. Helton, 507 S.W.2d 117 (Tenn. 1974) wherein the defendant, Helton,

                                                5
testified that, rather than selling heroin to the informant (whose whereabouts were

unknown at the time of the trial), he was actually returning the “merchandise” to the

informant, Eddie Allison, because he did not want to use it. Thus, according to the
defendant, his sale of heroin was a “casual exchange.” As to this theory, the court stated:

                    There is evidence in the record that Allison was both an
              addict and a drug peddler. There is evidence that Helton was
              a user and that he was neither an addict nor a drug peddler.
              There is evidence that he carried away from Allison’s trailer
              two small packages for his own use and that, after becoming
              ill from the “hit” administered by Allison, his sole purpose was
              to obtain a refund of the exact purchase price from the original
              seller. In our opinion, said evidence constitutes circumstances
              indicating a casual exchange, and it thus became mandatory
              for the trial judge to charge the exact language of the second
              sentence of T.C.A. § 52-1432(a)(2). . . .

Helton, 507 S.W.2d at 121.



      In declining to instruct the jury on a casual exchange of drugs, as requested by

defense counsel in the case sub judice, the trial court stated:

                 Well, this officer had conversations with Larez and they had
             a definite plan to go to the Ravine Street address, a definite
             plan between the officer that testified and Larez. The officer
             gave him money. The officer knew why he was going in. I
             think it’s pretty clear -- I would state for the record it’s pretty
             clear that Mr. Larez, evidently he was getting it from somebody
             else and not the -- himself. Then, he brought it out. And the
             price agreed upon was the price, evidently, that Larez said the
             people inside the Ravine Street address wanted. All right. All
             right. Anything else, Mr. Jordan?



       We agree with the decision of the trial court not to charge the jury as to a “casual
exchange,” for such a charge would not have been justified under the facts. Officer

Harrison had not previously known the defendant, but had been put in contact with him by

the confidential informant. On each of the three occasions Harrison purchased controlled
substances, Harrison picked up the defendant and drove him to the location where the

drugs were obtained, apparently from a third person.           Although the facts become

somewhat more complicated as to the third transaction, the meetings were preplanned, the
parties coming together for the sole purpose of Harrison’s purchasing drugs from the

defendant. There was no relationship between the two or any other reason for them to be

together, other than for Harrison to purchase drugs. A casual exchange cannot result

merely from the fact a drug sale does not proceed efficiently or as promptly as possible.
Thus, this assignment of error is without merit.



          II. DENIAL OF THE DEFENDANT’S RIGHT TO A SPEEDY TRIAL

       In this matter, there was a delay of three years and eight months between the time

                                             6
of the offenses and the defendant’s being served with the presentments. He argues that

this delay violates his right to a speedy trial. The trial court held a hearing on this matter

and denied the defendant’s claim that his speedy trial rights had been violated by the
delay.



         In State v. Bishop, 493 S.W.2d 81 (Tenn. 1973), our supreme court, adopting the

balancing test of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972),

stated as follows:

                    In Barker v. Wingo, supra, the court accepted a “balancing
                test” in which the conduct of both the prosecution and
                defendant are weighed, which test of necessity compels the
                court to approach speedy trial cases on an ad hoc basis. In the
                Barker case the court discussed four specific factors: (1) the
                length of the delay, (2) the reason for the delay, (3) whether
                the defendant asserted a claim to his right, and (4) whether
                defendant was prejudiced by the delay.

Bishop, 493 S.W.2d at 83-84.



         To establish the chronology in the case sub judice, the trial court held a hearing on

the defendant’s motion to dismiss the charges because of the alleged violation of his right

to a speedy trial. An exhibit to the proof adduced at the hearing was a “timeline” which set

out in chronological order the events relevant to the defendant’s motion. We will

paraphrase those events.



         The offenses with which the defendant was charged occurred on August 17, 18, and
24, 1993. Because Officer Harrison was acting undercover at the time, presentments were

not filed on the charges until April 11, 1994, the first capias being issued in Sullivan County

the following day. In the interim, the defendant was arrested on September 30, 1993, in
Greenville, North Carolina, and charged with attempted breaking and entering, for which

he was incarcerated on October 27, 1993. He was paroled by the State of North Carolina

on November 29, 1993. A capias had been issued again by Sullivan County on both
September 13 and 14, 1994.



         On October 28, 1994, the defendant was arrested in Ector County, Texas, and

charged with possession of marijuana, to which he entered a guilty plea and received, as
punishment, three days confinement on November 22, 1994. He was again arrested in

Ector County, Texas, on December 17, 1994, and charged with the possession of

marijuana. He pleaded guilty to the offense on January 6, 1995, and was sentenced to

forty days in jail.   On August 20, 1995, the defendant was arrested a third time in Ector

                                               7
County, Texas, and charged with theft between $20 and $500.



       Another capias was issued in Sullivan County on September 25, 1995; and, on
October 4, 1995, a return was made on the capias issued on September 13, 1994, that the

defendant was not to be found in the county. The defendant was arrested again in Ector

County, Texas, on November 21, 1995, and charged with carrying a prohibited weapon.
He pleaded guilty the following day to theft between $20 and $500, and pleaded guilty to

the prohibited weapon charge on January 3, 1996. On August 15, 1996, he was arrested

again in Ector County, Texas, and was apparently charged with the delivery of marijuana
between one-quarter ounce and five pounds. On September 9, 1996, in Sullivan County,

another capias was issued for the defendant and, on September 20, 1996, a not to be

found return was made on the capias issued on September 20, 1995.


       On May 6, 1997, the defendant’s name was put into the National Crime Information

Center by Sullivan County authorities. Another capias was issued for the defendant by
Sullivan County on September 4, 1997; and a not to be found return was made on the

capias which had been issued on September 9, 1996.



       The defendant was detained on November 27, 1997, in Presidio County, Texas,

“while attempting to cross into Mexico.” The Sullivan County Sheriff’s Department was
contacted as to its NCIC entry regarding the defendant, and he was held for extradition to

Sullivan County. On December 14, 1997, he was transferred to the Sullivan County Jail.



       Thus, the crux of the defendant’s speedy trial argument is that his name was not put

into NCIC until approximately three years and one month after he had been charged with

the offenses in Sullivan County; and he did not learn of the charges until about seven
months later. Given these circumstances, we will now determine whether there was a

violation of the defendant’s right to a speedy trial.



                                  A. Length of the Delay
       In Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, 120 L.Ed.2d

520 (1992), the Court stated, “[T]he presumption that pretrial delay has prejudiced the

accused intensifies over time.” Our supreme court concluded a delay of thirteen years,
as occurred in State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996), was a factor weighing

“favorably for the defendant” and clearly required an analysis of the remaining factors. We


                                              8
make a like holding in this case: the delay weighs in favor of the defendant and requires

additional analysis.



                                B. Reason for the Delay

       In this case, it appears a capias was issued on at least six occasions, and Officer

Harrison and another officer had tried to locate the defendant at his last known place of
residence as well as at his place of employment. It is not apparent from the record

whether the defendant would have been located at the time of one of his several

subsequent arrests in Ector County, Texas, had his name earlier been placed into NCIC.
Additionally, there is nothing in the record to indicate the failure to earlier put the

defendant’s name into NCIC resulted from other than bureaucratic oversight. While this

failure is weighed against the prosecution, the weight is not as great as would be the case
if the delay were intentional to either harass the defendant or to gain an advantage. See

State v. Wood, 924 S.W.2d 342, 347 (Tenn. 1996). However, this factor does weigh

against the prosecution.


          C. Whether the Defendant Asserted His Right to a Speedy Trial

       Obviously, the defendant did not assert his right to a speedy trial during the period

of the delay because he was unaware of the pendency of the charges in Sullivan County.

Under these circumstances, this factor does not weigh against either party.


                             D. Prejudice to the Defendant

       Our supreme court has instructed that we must “view the fourth factor as the most
important: whether the accused has suffered prejudice by the delay.” Wood, 924 S.W.2d

at 348. First, we note that the defendant has neither claimed nor identified specific

prejudice resulting from the delay, basing his claim instead upon the length of the delay.
In fact, since the defendant was unaware of the pendency of the charges, he could not

have suffered anxiety because of them. Thus, our determination with regard to this factor

will center upon whether he suffered any other kind of prejudice as the result of the delay.



       We note two witnesses testified on behalf of the defendant during this trial, Sharon

Burrell and her son, Terry Burrell, with whom the defendant resided at the Ravine Street

address in Kingsport during a portion of the summer of 1993. Both testified that they did
not know the defendant to have drugs in his possession while living with them. The

defendant did not testify during either the trial or the hearing on his motion to dismiss the


                                             9
indictments based upon his speedy trial claim.



         Our supreme court noted in Wood that the fourth factor, prejudice to the defendant,
is entitled to the “greatest weight” of all of the factors. However, the court recognized the

difficulty a defendant may have in proving prejudice:

                It is often extremely difficult, however, for a defendant to
                demonstrate specifically how the delay has impaired his ability
                to defend himself. Courts have recognized this difficulty and
                consequently do not necessarily require a defendant to
                affirmatively prove particularized prejudice. Doggett, [505 U.S.
                at 654-55], 112 S.Ct. at 2692; Moore v. Arizona, 419 U.S. 871,
                42 L.Ed.2d 110, 95 S.Ct. 131 (1974).
Wood, 924 S.W.2d at 348.



         Certainly, we recognize the difficulties encountered in this regard by a person faced
with criminal charges. However, under the particular circumstances of this case, we agree

with the holding of the court in State v. Thomas, 818 S.W.2d 350, 363 (Tenn. Crim. App.

1991):
                Finally, the evidence in this record does not indicate that the
                defendant was impaired in her ability to prepare a defense. In
                fact, it would have handicapped Lentz if she had been forced
                to prepare simultaneously for the charges pending here and
                those in Georgia. This record does not demonstrate, by virtue
                of the delay, any resultant prejudice in her preparation for trial.
                We therefore find no deprivation of Lentz’s right to a speedy
                trial.



         In this matter, there is no allegation or proof that the defendant was hampered in
defending himself because of the passage of time before he was arrested pursuant to the

charges. Further, we note this defendant, like that in Thomas, was charged with other

offenses between the dates of the offenses herein and his receiving notice of their
pendency.      In fact, within approximately eighteen months of the illegal activities in

Kingsport, the defendant had been arrested and convicted three times for violations in

North Carolina and Texas. Had this defendant received more timely notice of these
charges, he could have simultaneously been defending himself in one or two other states.



         Thus, in our analysis, we find factor four weighs slightly in favor of the prosecution;

and, as a result, the defendant’s speedy trial claim must fail.


                           III. SUFFICIENCY OF THE EVIDENCE

         The defendant has next alleged there is insufficient evidence in the record to show

he “sold the controlled substances to Harrison.” As the basis for this claim, he states in his

                                                10
brief:

               There was no evidence presented that indicated that the
               Defendant made a profit on any of these exchanges. Although
               money was involved, the circumstances around the
               transactions, when taken in their totality, indicate that there
               was only a casual exchange, and not a sale of controlled
               substances in violation of Tennessee Code Annotated § 40-17-
               417.



         In each of the three counts of the indictment, the grand jury charged the defendant

“did unlawfully, feloniously, and knowingly sell to Todd Harrison, a controlled substance”

in violation of Tenn. Code Ann. § 39-17-417 (1997), which states as follows:
               Criminal offenses and penalties.

               (a) It is an offense for a defendant to knowingly:

                   (1) Manufacture a controlled substance;
                   (2) Deliver a controlled substance;

                   (3) Sell a controlled substance; or

                   (4) Possess a controlled substance with intent to
                       manufacture, deliver or sell such controlled
                       substance.

Tenn. Code Ann. § 39-17-417 (1997).



         Our standard of review, as to the sufficiency of the evidence, is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)

(emphasis in original). Conflicts in testimony are resolved in favor of the State, which is,
on appeal, “entitled to the strongest legitimate view of the trial evidence and all reasonable

or legitimate inferences which may be drawn therefrom.” State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978); see also State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984)
(questions as to credibility of witnesses are for jury); State v. Johnson, 980 S.W.2d 414,

419 (Tenn. Crim. App. 1998); State v. Zonge, 973 S.W.2d 250, 254-55 (Tenn. Crim. App.

1997).



         Applying these authorities, we disagree with the defendant’s assertion that the

evidence was sufficient to show only a “casual exchange” and have previously considered

that contention in this opinion. Although none of the transactions testified to by Officer
Harrison occurred as a simultaneous transaction, with Harrison handing the money to the

defendant and immediately receiving the drugs in return, the facts remain, as Harrison


                                              11
specifically testified, that in each instance he asked to purchase drugs from the defendant

and in exchange for each payment did receive controlled substances. Although the

defendant did not always provide the type of drugs requested by Officer Harrison, it is
undisputed the meetings were prearranged for Harrison to purchase drugs from the

defendant, and that is exactly what occurred in each case. Thus, the evidence was

sufficient for a rational trier of fact to conclude that the three sales of controlled substances
by the defendant were violations of Tenn. Code Ann. § 39-17-417 (1997).



       For these reasons, this assignment is without merit.


                         IV. PROPRIETY OF THE SENTENCES

       As to the defendant’s conviction for the sale of cocaine, the trial court sentenced him
to confinement for nine years, as a Range I standard offender, which was one year more

than the minimum sentence for this offense. He was sentenced to two-year sentences in

each of the counts charging the illegal sale of marijuana and was fined in all three of the
convictions. The trial court ordered all sentences to be served concurrently.



       When a defendant challenges the length, range, or manner of service of a sentence,

as has the defendant here, this court conducts a de novo review with the presumption the

determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d)

(1997); see also State v. Anderson, 880 S.W.2d 720, 727 (Tenn. Crim. App. 1994). That

presumption is conditioned on an affirmative showing in the record that the trial court did

in fact consider sentencing principles and all relevant facts and circumstances. See State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991) (finding “presumption of correctness which

accompanies the trial court’s action is conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant facts and
circumstances”). The burden is on the defendant to show the sentence is inappropriate.

See Tenn. Code Ann. § 40-35-401 (1997), Sentencing Comm’n Cmt. When our review

supports a conclusion that the trial court imposed a lawful sentence, “then we may not

disturb the sentence even if we would have preferred a different result.” State v. Fletcher,
805 S.W.2d 785 (Tenn. Crim. App. 1991).



       So long as the trial court follows the principles of the Criminal Sentencing Reform
Act of 1989, the weight to be attached to each enhancing and mitigating factor is left to the

discretion of the court. See State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); State v.


                                               12
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The comments to Tenn. Code Ann. § 40-35-

210 (1997) state:

              The sentencing commission specifically did not designate any
              particular numeric value for the enhancement and mitigating
              factors. Other jurisdictions have given these factors numeric
              values but this removes the judicial discretion necessary to
              make individualized sentencing determinations. The provisions
              of this section which require that the judge begin a sentencing
              determination at the statutory minimum will promote a uniform
              sentencing procedure.

Tenn. Code Ann. § 40-35-210 (1997) Sentencing Comm’n Cmt.


                              A. Lengths of the Sentences

       In its setting of the defendant’s sentence for the sale of cocaine, the trial court
considered the enhancing and mitigating factors, as set out in Tenn. Code Ann. §§ 40-35-

113 & 114 (1997). The court applied enhancing factor number (1), the defendant had “a

previous history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range.” The court also found two mitigating factors would

apply: (1) the “defendant’s criminal conduct neither caused nor threatened serious bodily

injury,” and (13), “any other factor consistent with the purposes” of the Criminal Sentencing

Reform Act of 1989. In this case, as “other factor[s],” the court acknowledged that the

defendant had been diagnosed with a bipolar disorder; he had family support; and he had

waived extradition to return to Sullivan County. Finding the aggravating factors outweighed

the mitigating factors, the court sentenced the defendant to nine years, which was one year

more than the minimum punishment for the cocaine offense for which the defendant was
convicted, and to two years each for the marijuana offenses.



       The defendant argues the trial court should have also applied mitigating factor (4),
“[t]he defendant played a minor role in commission of the offense.” Tenn. Code Ann. § 40-

35-113(4) (1997). The defendant argues this factor is applicable because he had no

automobile, the exchanges were “facilitated by Officer Harrison” picking him up, and he
only acquired the drugs as requested but did not “push drugs” onto the officer. Further, the

defendant contends his role was minor because he “exhibited no control over the controlled

substances, and was not able to accurately predict what would be available or what the

price would be.” However, given the nature and extent of the defendant’s activities in the
sale of the drugs, we do not agree his role was “minor.” There is no evidence the

defendant was talked into selling the drugs by Officer Harrison. In fact, they met on each

occasion for the express purpose of Harrison’s purchasing drugs from the defendant.

Even though, apparently, the defendant obtained the drugs from others, he was paid by

                                             13
Officer Harrison for each sale. Thus, the trial court properly found his role was not “minor.”



       In sentencing the defendant, the trial court stated:
                  The Court’s of the opinion the enhancing factors outweigh
              the mitigating factors. The Court’s of the opinion the sentence
              in this case should be nine years on the Class B felony. The
              defendant will receive -- of course receive credit for all time
              served.
                  As to consecutive sentencing factors, although the
              defendant has a record, the Court must consider justice, the
              defendant was eighteen (18) years of age. Although the
              Court’s of the opinion that prior record has a very significance
              -- great significance in length of sentence in regards to
              potential danger, future dangers to the community, the courts
              believe that should be given lesser weight on consecutive
              sentencing factors, and I’m going to direct the sentence will be
              run concurrently.



       We believe the trial court properly identified and applied the enhancing and

mitigating factors. Since the court’s findings are adequately supported by the record, we

may not modify the sentence. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991); State v. Housewright, 982 S.W.2d 354, 356 (Tenn. Crim. App. 1997).

Accordingly, this assignment of error is without merit.



                  B. Denial of Probation or Alternative Sentencing

       The defendant argues that the trial court should have considered other than
incarceration as to the three sentences.



       First, we note the nine-year sentence imposed for the sale of cocaine, a Class B
felony, could not be suspended:

              A defendant shall be eligible for probation under the provisions
              of this chapter if the sentence actually imposed upon such
              defendant is eight (8) years or less; provided, that a defendant
              shall not be eligible for probation under the provisions of this
              chapter if the defendant is convicted of a violation of § 39-17-
              417(b) or (I), § 39-13-304, § 39-13-402, § 39-15-402 or § 39-
              13-504. A defendant shall also be eligible for probation
              pursuant § 40-36-106(e)(3).

Tenn. Code Ann. § 40-35-303(a) (1997).



       Thus, the sentence could not be suspended. In addition, because the defendant
was convicted of the sale of a Schedule I controlled substance in violation of Tenn. Code

Ann. § 39-17-417 (a) & (b) (1997), he was not eligible to have this sentence suspended.

Since we have made this determination as to the cocaine sentence, the question is now

moot as to whether the sentences for sale of marijuana should have been suspended.

                                             14
       The defendant was also eligible to be considered for the Community Corrections

Program, pursuant to Tenn. Code Ann. § 40-36-101 to -306 (1997), the Tennessee
Community Corrections Act of 1985. At the sentencing hearing, it does not appear that the

possibility of alternative sentencing was discussed or findings were made as to whether

the defendant should be placed into the Community Corrections Program. Accordingly,
we will now determine whether the defendant should have been placed into this program.

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



       Initially, we note that according to the Criminal Sentencing Reform Act of 1989, at

Tenn. Code Ann. § 40-35-102(6) (1997), the defendant is not presumed to be a candidate

for alternative sentencing, because he was convicted of a Class B felony. Further, since
the defendant is not benefitted by the presumption he is suitable for alternative sentencing,

he has the burden of establishing such a sentence would “‘subserve the ends of justice

and the best interests of both the public and the defendant.’“ State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259

(Tenn. Crim. App. 1990). In determining whether the defendant should have been given

an alternative sentence, we consider the following principles:

              (1)   Sentences involving confinement should be based
                    upon the following considerations:

              (A) Confinement is necessary to protect society by
                  restraining a defendant who has a long history of
                  criminal conduct;
              (B) Confinement is necessary to avoid depreciating the
                  seriousness of the offense or confinement is
                  particularly suited to provide an effective deterrence
                  to others likely to commit similar offenses; or,

              (C) Measures less restrictive than confinement have
                  frequently or recently been applied unsuccessfully
                  to the defendant[.]
Tenn. Code Ann. § 40-35-103 (1997); see also State v. Ashby, 823 S.W.2d 166, 167

(Tenn. 1991); State v. Bingham, 910 S.W.2d 448, 453-54 (Tenn. Crim. App. 1995).



       According to the presentence report filed with the trial court, in addition to the three
convictions which are the basis for this appeal, the defendant has five other convictions:

              1.    On October 18, 1993, convicted of attempted
                    breaking and entering in Pitt County District Court
                    for Greenville, North Carolina and received a
                    sentence of two years, Cause No. 1993CR021127;

              2.    On November 22, 1994, convicted in Cause No. 94-
                    3366, of possession of marijuana in an amount of
                    two ounces or less in the County Court at Law of

                                             15
                    Ector County, Texas;

               3.   On January 6, 1995, convicted in Cause No. 95-67
                    of possession of marijuana in an amount of two
                    ounces or less in the County Court at Law of Ector
                    County, Texas;

               4.   On November 22, 1995, convicted in Cause No. 94-
                    3471 of theft ($20 or more but less than $500) in the
                    County Court at Law of Ector County, Texas;

               5.   On January 3, 1996, convicted in Cause No.
                    A25097 of carrying a prohibited weapon and
                    received a sentence of two years in the 70th Judicial
                    District Court, Ector County, Texas.



      According to the presentence report, the defendant has lived in Texas for the

majority of his life, but has also lived in North Carolina, Tennessee, and Minnesota. He

has an “unstable” employment history and has been on probation at least twice. In
October 1993, apparently after being put on probation in North Carolina following a guilty

plea to the offense of attempted breaking and entering, the defendant’s probation was

revoked and he was incarcerated. Additionally, as of October 7, 1998, the date of the
presentence report, he was on probation for two years from Ector County, Texas, for the

offense of carrying a prohibited weapon. It appears he has been incarcerated on at least

four occasions, for periods of between three and forty days, following pleas of guilty. The

record reflects the defendant was charged on August 15, 1996, in Ector County, Texas,

with the delivery of marijuana, apparently in an amount between one-quarter ounce and
five pounds.



       Thus, during the years following his sales of controlled substances in Sullivan
County to Officer Harrison, the defendant has been arrested at least six times and

convicted at least five times. It appears he has been incarcerated on four occasions

following convictions, has been on both parole and probation at least once, and has had
one felony conviction. Further, he was on probation at the time of his convictions in

Sullivan County. Thus, the defendant would have been disqualified from alternative

sentencing because confinement was necessary as the result of “his long history of

criminal conduct” and because “measures less restrictive than confinement have frequently
or recently been applied unsuccessfully to the defendant.”



       This assignment is without merit.


                                      CONCLUSION


                                             16
       Based upon the authorities and the reasoning set out herein, we affirm the judgment

of the trial court.




                                      ________________________________________
                                      ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JOSEPH M. TIPTON, JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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