            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           DECEMBER 1999 SESSION
                                                           FILED
                                                          March 10, 2000
STATE OF TENNESSEE,            *       C.C.A. # W1999-01089-CCA-R3-CD
                                                        Cecil Crowson, Jr.
      Appellee,                *       HENRY COUNTY Appellate Court Clerk

VS.                            *       Hon. Julian P. Guinn, Judge

JERRY WAYMAN TRAVIS,           *       (Sale of a Schedule II Controlled
                                       Substance)
      Appellant.               *




For Appellant:                         For Appellee:

Teresa McCaig Marshall                 Paul G. Summers
Attorney                               Attorney General and Reporter
308 W. Washington Street
Paris, TN 38242                        J. Ross Dyer
                                       Assistant Attorney General
                                       Criminal Justice Division
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       Robert "Gus" Radford
                                       District Attorney General
                                       Twenty-Fourth Judicial District
                                       P.O. Box 686
                                       Huntingdon, TN 48344

                                       Beth Boswell and Steve Garrett
                                       Assistant District Attorney General
                                       Camden, TN 38320



OPINION FILED:__________________________



REVERSED AND REMANDED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Jerry Wayman Travis, was found guilty of selling a

Schedule II controlled substance. Tenn. Code Ann. § 39-17-417(a). The trial court

imposed a Range I sentence of three years, ordered a six-month period of

continuous confinement, and directed that the balance of the sentence be served in

a community corrections program. A fine of $2,000 was imposed.



              In this appeal of right, the defendant challenges the sufficiency of the

evidence and argues that the trial court committed error as follows:

              (1)    by failing to grant a motion of continuance;

              (2)    by failing to provide instructions on a lesser
                     included charge of criminal responsibility for
                     facilitation of a felony in accordance with Tenn.
                     Code Ann. § 39-11-403; and

              (3)    by failing to find and appropriately apply mitigating
                     circumstances.



              Because the trial court committed prejudicial error by failing to instruct

the jury on lesser included offenses, the conviction is reversed and the cause is

remanded for a new trial.



              On June 16, 1998, at about 7:00 P.M., Union City Police Lieutenant

James Richard Kelly, a drug task force officer, met with Sergeant Donald Wayne

Blackwell and Officer Jock Bass in an effort to purchase illegal drugs as a part of an

undercover operation. Lieutenant Kelly, who was driving a Mercury Cougar

equipped with a video camera, a recorder, and a wireless transmitter, drove to the

Depot Hill area of Paris hoping to purchase cocaine. Initially, Lieutenant Kelly asked

for a "fifty" from a group of three or four black males, which included Israel Patton,

an individual he recognized from a previous transaction a day or two earlier. One of


                                           2
the individuals refused Lieutenant Kelly's request and he continued to drive through

the area. Shortly thereafter, he observed four young black males, including the

defendant, walking along Irving Street. When Lieutenant Kelly asked for a "fifty," the

defendant directed him to drive around the block and made hand gestures toward

"someone" in the area Lieutenant Kelly had just left. Patton was about 70 to 75

yards away. When Lieutenant Kelly returned, the defendant directed him by hand

motions to drive around the block a second time. As he circled back to the area,

Lieutenant Kelly saw the defendant and Israel Patton standing next to each other.

Patton then approached his vehicle and handed him two small rocks of cocaine.

When Lieutenant Kelly asked whether this was all he had, Patton responded in the

affirmative. Lieutenant Kelly handed Patton unmarked bills totaling $50.00 and left

to meet Sergeant Blackwell and Officer Bass to whom he provided the video tape

and the crack cocaine. He acknowledged that the defendant neither took money

nor handled the drugs.



              After his grand jury indictment and arrest some three weeks later, the

defendant first told officers that he was out of town on the date in question. When

informed that there was a video tape of the incident, the defendant acknowledged

his presence at the time of the offense but claimed that all he did was introduce

Lieutenant Kelly to Patton. Although he initially admitted setting up a "deal" with

Patton, the defendant insisted to police that he was not a part of the transaction.



              The video tape establishes that the defendant was approximately five

feet from Patton during the transaction and made no comments. It did not pick up

the hand gestures made by the defendant. Sergeant Blackwell, who questioned the

defendant after his arrest, characterized the defendant as "the runner" and Patton

as "the dealer." A video tape of the interrogation was played for the jury. After it


                                           3
ended, Sergeant Blackwell asked the defendant other questions. He stated that the

defendant claimed that "all [I] did was hook Israel up with this guy...." The crime

laboratory determined that the substance purchased from Patton was 0.08 gram of

cocaine base.



              At trial, the defendant, who had graduated from high school only a few

weeks before the drug transaction, testified as the only defense witness. He stated

that he had plans to attend college on a full athletic scholarship, but that the

indictment precluded admission. He claimed that he had only a casual relationship

with Patton, whom he described as "a drunk" who hung out in the park where the

defendant and his friends played ball. The defendant contended that just prior to

the transaction, he had asked Patton to purchase some cigarettes for him. He

explained that he was merely waiting on Patton to return from a 7-11 market when

confronted by Lieutenant Kelly, who asked for drugs, a request the defendant

claimed as "common for the area." The defendant claimed that he had no idea

Patton sold drugs and denied waiting for the officer's return. The defendant

contended that he did not see any crack cocaine and was unaware of the transfer of

any monies between Lieutenant Kelly and Patton.



              The defendant also explained that he had just been awakened when

initially questioned by police and had mistakenly informed them that he had been

out of town with his sister, with whom he regularly traveled to see family in Illinois.

He asserted that he did not recall the Patton transaction until he read the indictment

almost a month after the occurrence and saw the reference to the green vehicle

driven by Lieutenant Kelly. The defendant, who conceded that he was untruthful

when he told Sergeant Blackwell he was not in the area at the time Patton sold the

drugs, explained that he simply did not know "what was going on" at the time the


                                            4
transaction took place.



              Initially, the defendant contends that the evidence was insufficient. He

argues that the proof did not establish that he possessed either the illegal drugs or

the money involved in the transaction. He submits that he was merely joking, as

was common in the neighborhood, when, upon being asked for a "fifty," he

suggested that Lieutenant Kelly "make the block." While admitting to hand gestures

to Patton, he explained that he was merely motioning him to the area to ask him to

buy cigarettes.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). This court may not reweigh nor re-

evaluate the evidence. Id. at 836. Nor may this court substitute its inferences for

those drawn from the evidence by the trier of fact. Likas v. State, 286 S.W.2d 856,

859 (Tenn. 1956). The credibility of the witnesses, the weight to be given their

testimony, and the reconciliation of conflicts in the evidence are matters entrusted

exclusively to the jury as the trier of fact. Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the

relevant question is whether, after reviewing the proof in the light most favorable to

the state, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983); Tenn. R. App. P. 13(e). The scope of review after a guilty verdict by a jury is

the same whether the evidence is direct, circumstantial, or a combination of both.

See, e.g., State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).



              It is an offense, of course, for one to knowingly manufacture, deliver,


                                           5
or sell a controlled substance. Tenn. Code Ann. § 39-17-417(a). Cocaine is

classified as a Schedule II controlled substance. When the amount is less than .5

gram, the offense is a Class C felony. Tenn. Code Ann. § 39-17-417(c)(2). One

may be equally responsible for the criminal conduct of another if he promotes or

assists in the offense or otherwise benefits. Tenn. Code Ann. § 39-11-402.



              In the light most favorable to the state, the defendant, when told by

Lieutenant Kelly that he was looking for a "fifty," instructed him to "make the block"

and gestured in the direction of Israel Patton. When Lieutenant Kelly returned, the

defendant directed him to again "circle the block." As Lieutenant Kelly returned a

second time, he saw the defendant standing near Patton. The defendant was only a

short distance away when Lieutenant Kelly handed Patton $50.00 for the crack

cocaine. From all of this, it was entirely appropriate for the jury to infer that the

defendant acted as a "runner," whose job it was to act as a buffer and make sales

contacts for Patton. As such, he would have provided substantial assistance in the

commission of the crime and would share equal culpability with the principal.



                                            (1)

              The defendant argues that the trial court erred by refusing to grant a

continuance. The arraignment was July 13, 1998. The defendant was not

appointed counsel until two and one-half months later because of a conflict within

the public defender's office. The trial was November 17, 1998. Defense counsel

made a motion for a continuance on that date, complaining of difficulty in locating

her client because of an incorrect address and no telephone number. At defense

counsel's request, the bailbondsman contacted the defendant. The defendant, who

denied having heard from his bailbondsman, offered as excuses that "I just found

out my girl is pregnant with my child, and it just scares me." Defense counsel, in


                                             6
support of the motion, stated that when she met with the defendant the morning of

the trial, the defendant explained that he "had some personal difficulties that have

kept [me] from keeping in touch with [you]."



              The trial court made the following observation:

              [T]he record should reflect ... that this man has misled
              this court since the very beginning. He didn't appear as
              he was scheduled, and it was necessary to issue a
              capias for him back in July. When he was finally located
              and arraigned, he told this court incorrectly that it was his
              intention to obtain counsel. He had appeared without
              counsel and he was given, at that time in August, until
              September the 21st to be present with his attorney. He
              didn't bother to do it then. He hasn't done it at any time
              since then. Finally, this court simply appointed counsel
              when this man refused to do what he said that he would
              do and set this case for trial. I was informed as late as
              yesterday, notwithstanding having given him an attorney,
              that he refused to confer with the attorney.... [H]e refused
              to contact her; he refused to meet with her; he refused to
              give her a phone number, an address; he couldn't be
              reached; his bondsman couldn't find him. And now he
              comes into court stating that he wants this matter
              continued. This has been nothing but a case of childish,
              irresponsibility in this man refusing to do what he is told,
              or refusing to take advantage of the opportunities he's
              given, and not having an excuse or even legitimate
              reason.



              Defense counsel then stated that the defendant had actually been in

her office on two occasions. Defense counsel also indicated that she met the

defendant "at the courthouse when I was initially appointed," although it is unclear

whether that constituted a third meeting.



              The grant or denial of a continuance motion rests within the sound

discretion of the trial judge. His determination will not be overturned unless there is

a clear showing of abuse of that discretion. Woods v. State, 552 S.W.2d 782 (Tenn.

Crim. App. 1977); Frazier v. State, 466 S.W.2d 535 (Tenn. Crim. App. 1970). When


                                            7
there has been a lack of diligence or neglect on the part of the moving party, the

motion for continuance should be overruled. State v. Jefferson, 529 S.W.2d 674

(Tenn. 1975). A reversal is warranted only when the failure to continue results in an

unfair trial and a different result might reasonably have been reached had the

continuance been granted. Maxwell v. State, 501 S.W.2d 577 (Tenn. Crim. App.

1973).



               The record simply does not demonstrate that the trial court abused its

discretion. The record is not clear on how much communication the defendant and

his defense counsel had in their two meetings before the trial. Moreover, the record

of the trial does not indicate how the defendant might have been prejudiced by the

failure to grant a continuance. The defendant's own neglect should not be the basis

for a continuance, especially when the motion for relief is not made until the date of

the trial. Under these circumstances, the trial court cannot be found to have erred.



                                             (2)

               Next, the defendant argues that the trial court erred by failing to

instruct a lesser included offense, criminal responsibility for facilitation of a felony.

Tenn. Code Ann. § 39-11-403. The defendant argues that the trial judge had a duty

under Tenn. Code Ann. § 40-18-110(a) to include in the instructions to the jury all

lesser included offenses.



               There is a statutory duty on the part of trial courts to charge not only

the offense listed in the indictment, but also all lesser included offenses. Tenn.

Code Ann. § 40-18-110. As pointed out by the state, it has traditionally been held

that the failure to charge a lesser included offense denies a defendant of his

constitutional right to a trial by jury if there are any facts "susceptible of inferring guilt


                                              8
on any lesser included offense or offenses." State v. Wright, 618 S.W.2d 310, 315

(Tenn. Crim. App. 1981). See also McGowan v. State, 17 Tenn. 184 (1836). If,

however, the record is devoid of evidence to support an inference of guilt to the

lesser offense, the trial court is not required to instruct the jury on the lesser offense.

State v. Vann, 976 S.W.2d 93 (Tenn. 1998); State v. Stephenson, 878 S.W.2d 530

(Tenn. 1994). In State v. Bolden, 979 S.W.2d 587 (Tenn. 1998), our supreme court

acknowledged that a "purpose of the statute is to protect the right to trial by jury by

instructing the jury on the elements of all offenses embraced by the indictment [and

to] facilitate ... the overall truth-seeking function of the process." Id. at 593.



                 In Beck v. Alabama, 447 U.S. 625 (1980), the United States Supreme

Court commented upon the basis of the duty to charge lesser included offenses:

                 At common law, the jury was permitted to find the
                 defendant guilty of any lesser offense necessarily
                 included in the offense charged. This rule originally
                 developed as an aid to the prosecution in cases in which
                 the proof failed to establish some element of the crime
                 charged. But it has long been recognized that it can also
                 be beneficial to the defendant because it affords the jury
                 a less drastic alternative than the choice between
                 conviction of the offense charged and acquittal.
                 [P]roviding the jury with the "third option" of convicting on
                 a lesser included offense ensures that the jury will accord
                 the defendant the full benefit of the reasonable-doubt
                 standard.

Id. at 633-34. Recently, in State v. Williams, 977 S.W.2d 101 (Tenn. 1998), a

majority of our supreme court indicated that there was merely a statutory right to a

charge on lesser included offenses rather than a constitutional right.1


        1
           See State v. Staggs, 554 S.W.2d 620 (Tenn. 1977) (a part of the constitutional right to trial by
jury is to have every issue mad e by the evide nce de termin ed by the jur y under a c orrect an d com plete
charge of the law); Strader v. State , 362 S.W.2d 224 (Tenn. 1962). Recent cases stating the rule that
failure to charge a lesser offense is a constitutional deprivation rely on State v. Wright, 618 S.W.2d
310 (T enn. Cr im. Ap p. 1981) (Joe D . Dunca n, Judg e), and inc lude the fo llowing: State v. Belser, 945
S.W .2d 776 ( Tenn . Crim. A pp. 1996 ); State v. Howard, 926 S.W .2d 579 (Tenn. Crim . App. 1996);
State v. Sum me rall, 926 S.W .2d 272 ( Tenn . Crim. A pp. 1995 ); State v. Ruane, 912 S.W.2d 766
(Tenn . Crim. A pp. 1995 ); State v. Lew is, 919 S.W .2d 62 (T enn. Cr im. Ap p. 1995) ; State v. Boyce, 920
S.W .2d 224 ( Tenn . Crim. A pp. 1995 ); State v. King, 905 S.W .2d 207 ( Tenn . Crim. A pp. 1995 ); State
v. McKnight, 900 S.W .2d 36 (T enn. Cr im. Ap p. 1994) ; State v. Vance, 888 S.W .2d 7 76 (T enn . Crim .
App. 19 94); State v. Banes, 874 S.W .2d 73 (T enn. Cr im. Ap p. 1993) ; State v. Richard Darrell Miller

                                                     9
                 In State v. Lewis, 919 S.W.2d 62 (Tenn. Crim. App. 1995), this court

ruled that "virtually every time one is charged with a felony by way of criminal

responsibility for the conduct of another, facilitation of a felony would be a lesser

included offense." Id. at 67. The panel concluded that "criminal responsibility for

facilitation is a lesser degree than that for criminal responsibility for the crime itself

based on the conduct of another." Id. at 68. Because there was evidence upon

which the jury could have convicted Lewis of facilitation, his conviction was reversed

and Lewis was granted a new trial. In State v. Langford, 994 S.W.2d 126 (Tenn.

1999), our supreme court again touched on the subject, holding that "a trial court

must instruct the jury on all lesser included offenses if the evidence introduced at

trial is legally sufficient to support a conviction for the lesser offense." Id. at 128.



                 Recently, in State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme

court revised the standards for the determination of lesser included offenses. The

court noted that a companion case, State v. Dominy, 6 S.W.3d 472 (Tenn. 1999),

overruled language in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), which

recognized a distinction between lesser grades or classes of offenses and lesser

included offenses. The court also adopted a modified version of the model penal

code in order to determine what constitutes a lesser included offense:


and Johnny Wayne Garner, C.C.A. N o. 01C0 1-9703 -CC-0 0087 (T enn. Cr im. Ap p., at Nas hville, Sept.
11, 1998 ); State v. George Rose, C.C.A. No. 02C01-9710-CR-00405 (Tenn. Crim. App., at Jackson,
July 2, 1998 ); State v. Harvey Phillip Hester, C.C.A. No. 03C01-9704-CR-00144 (Tenn. Crim. App., at
Knoxv ille, June 4, 19 98); State v. Bec ky Da vis, C.C.A. N o. 03C0 1-9701 -CR-0 0027 (T enn. Cr im. Ap p.,
at Knox ville, May 1, 199 8); State v. Willie D. Graham, C.C .A. N o. 03 C01 -970 7-C C-0 031 4 (T enn . Crim .
App., at K noxville, Ma y 7, 1998); State v. Warren Tyrone Fowler, C.C.A. No. 03C01-9709-CC-00391
(Tenn . Crim. A pp., at Kno xville, Apr. 29 , 1998); State v. Harvey D'Hati Moore, C.C.A. No. 03C01-
9704-C R-001 31 (Te nn. Crim . App., at Kn oxville, Mar . 18, 1998 ); State v. Daniel Joe Brown, C.C.A.
No. 02C 01-961 1-CC -00385 (Tenn . Crim. A pp., at Jac kson , Dec. 3, 1 997); State v. Michael Tyrone
Gordon, C.C.A. N o. 01C0 1-9605 -CR-0 0213 (T enn. Cr im. Ap p., at Nas hville, Sept. 18 , 1997); State v.
George Brooks, C.C.A. N o. 02C0 1-9602 -CR-0 0050 (T enn. Cr im. Ap p., at Jack son, M ay 15, 199 7);
State v. Janice Hansbrough-Eason, C.C.A. No. 02C01-9504-CR-00098 (Tenn. Crim. App., at
Jack son, De c. 19, 199 6); State v. Hollis Ray Williams, C.C.A. No. 03C01-9406-CR-00209 (Tenn.
Crim . App., at Kn oxville, July 23, 1 996); State v. R andall Sc ott, C.C.A. No. 01C01-9307-CR-00240
(Tenn . Crim. A pp., at Na shville, Jan. 5 , 1996); State v. Deborah Gladish, C.C.A. No. 02C01-9404-CC-
00070 (Tenn . Crim. A pp., at Jac kson , Nov. 21 , 1995); State v. Eric J. Fa ir, C.C.A. No. 02C01-9403-
CR-00055 (T enn. Crim. App., at Jacks on, Nov. 15, 1995).



                                                      10
              An offense is a lesser included offense if:

              (a)    all of its statutory elements are included within the
                     statutory elements of the offense charged; or

              (b)    it fails to meet the definition in part (a) only in the
                     respect that it contains a statutory element or
                     elements establishing

                     (1)     a different mental state indicating a lesser
                             kind of culpability; and/or

                     (2)     a less serious harm or risk of harm
                             to the same person, property or
                             public interest; or

              (c)    it consists of

                     (1)     facilitation of the offense charged or
                             of an offense that otherwise meets
                             the definition of lesser-included
                             offense in part (a) or (b); or

                     (2)     an attempt to commit the offense
                             charged or an offense that otherwise
                             meets the definition of lesser
                             included offense in part (a) or (b); or

                     (3)     solicitation to commit the offense
                             charged or an offense that otherwise
                             meets the definition of lesser-
                             included offense in part (a) or (b).

Burns, 6 S.W.3d at 466-67.



              There is a two-step process in determining whether the evidence

justifies a jury instruction on a lesser included offense:

              First the trial court must determine whether any evidence
              exists that reasonable minds could accept as to the
              lesser included offense. In making this determination,
              the trial court must view the evidence liberally in the light
              most favorable to the existence of the lesser-included
              offense without making any judgments on the credibility
              of such evidence. Second, the trial court must determine
              if the evidence, viewed in this light, is legally sufficient to
              support a conviction for the lesser-included offense.

Id. at 469.

              Facilitation of a felony is, of course, "an offense of the class next below

                                            11
the felony facilitated by the person so charged." Tenn. Code Ann. § 39-11-403(b).

As defined by Tenn. Code Ann. § 39-11-403, facilitation is a lesser included offense

under parts (a) and (c) of the Burns test. The evidence here, in our view, would

have been sufficient to have supported a conviction of the facilitation of selling a

Schedule II controlled substance.



              One may be criminally responsible for facilitation of a felony "if,

knowing that another intends to commit a specific felony, but without the intent

required for criminal responsibility under § 39-11-402(2), the person knowingly

furnishes substantial assistance in the commission of a felony." Tenn. Code Ann. §

39-11-403(a). As indicated by the Sentencing Commission Comments, this is a

theory of "vicarious responsibility." It applies to one who facilitates a crime by

providing substantial assistance to the perpetrator, but who lacks the intent to

promote or assist in the felony or otherwise benefit. If one promotes or assists in

the commission of the offense or otherwise benefits, the crime is one of criminal

responsibility which results in a culpability of equal status to the perpetrator. Tenn.

Code Ann. § 39-11-402.



              Here, the trial court charged criminal responsibility for the conduct of

another but chose not to charge criminal responsibility for facilitation of a felony. In

the light most favorable to the defendant, as is required in the Burns analysis,

Lieutenant Kelly had initially asked a group, including Patton, for a "fifty." He left

that group, drove a short distance, and then made the same request of the

defendant. It is one of the positions of the defendant that Patton, who sold the

drugs, was acting in response to Lieutenant Kelly's initial request to purchase drugs.

Patton had actually met Lieutenant Kelly one or two nights before during a similar

transaction. In that instance, Lieutenant Kelly also sought a "fifty." The defendant


                                            12
claimed that he made no mention to Patton of Lieutenant Kelly's interest in illegal

drugs and did not suspect a possible drug deal. That may be hard to believe but it

was clearly a factual issue for the jury which has the duty of determining the

credibility of witnesses. While initially claiming an alibi, the defendant ultimately

acknowledged his presence to police but argued that the extent of his involvement

was to "hook Israel [Patton] up with this guy and nothing more," something which, in

our assessment, is less than full participation in the crime, but does not qualify as an

innocent bystander. The central questions, of course, are whether the defendant

was in fact a "drug runner," aiding or promoting the offense; an unpaid, casual

accommodator of an illegal drug deal; or merely an innocent bystander as he waited

on Patton for a cigarette purchase. While the jury obviously rejected the claim of

innocence, the circumstances would warrant a possible third alternative. That is,

something other than an "all or nothing" charge. A jury might, for example, infer that

the defendant furnished some casual assistance to Patton or even solicited his

participation without benefitting in any proceeds. The circumstantial evidence would

have supported that conclusion had the jury so inferred.



                It was also error for the trial court not to instruct the jury on the offense

of solicitation.2 That offense is defined by Tenn. Code Ann. § 39-12-102(a):

                Whoever, by means of oral, written or electronic
                communication, directly or through another, intentionally
                commands, requests or hires another to commit a
                criminal offense, or attempts to command, request or hire
                another to commit a criminal offense, with the intent that
                the criminal offense be committed, is guilty of solicitation.

Solicitation is a lesser included offense under at least part (c) of the test enunciated

in Burns. There was evidence that the defendant requested Patton to sell illegal



        2
         While one may be guilty of solicitation whether the crime does or does not occur, one may
not be convicted of both the solicitation and the completed offense. Sentencing Comm ission
Com men ts.

                                                 13
drugs to Lieutenant Kelly. Whether the proof is sufficient to support the offense

charged in the indictment does not affect the trial court's duty to instruct on lesser

offenses if the evidence also supports a finding of guilt on lesser offenses. The jury

must perform the function of fact-finding:

              A trial court's failure to inform the jury of its option to find
              the defendant guilty of the lesser offense would impair
              the jury's truth-ascertainment function. Consequently,
              neither the prosecution nor the defense should be
              allowed, based on their trial strategy, to preclude the jury
              from considering guilt of a lesser offense included in the
              crime charged. To permit this would force the jury to
              make an "all or nothing" choice between conviction of the
              crime charged or complete acquittal, thereby denying the
              jury the opportunity to decide whether the defendant is
              guilty of a lesser included offense established by the
              evidence.

State v. Bolton, 979 S.W.2d at 593 (quoting People v. Barton, 906 P.2d 531, 536

(Cal. 1995)). The facts here, in our view, would also have warranted a charge of

solicitation, an inchoate crime which would result in a lesser punishment.

"Solicitation is an offense two (2) classifications lower than the most serious offense

solicited, unless the offense solicited was a Class B or C misdemeanor, in which

case the solicitation would not be an offense." Tenn. Code Ann. § 39-12-107(b).



              The proof was strong that the defendant participated in some way.

Nevertheless, because the evidence would have supported either the charge in the

indictment or a conviction for facilitation or solicitation, this court cannot classify the

error as harmless under either the constitutional or the statutory standard. There

was an obvious disparity in the degree of participation in the crime as between

Patton and the defendant.



                                             (3)

              Next, the defendant claims that the trial court imposed an excessive

jail term because it failed to consider and apply mitigating factors under Tenn. Code

                                             14
Ann. § 40-35-113. More specifically, the defendant argues that he played a minor

role in the commission of the crime, Tenn. Code Ann. § 40-35-113(4), and that

because of his youth, he lacked substantial judgment in committing the offense.

Tenn. Code Ann. § 40-35-113(6). The state disagrees.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies

inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the

presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.

Crim. App. 1992). The Sentencing Commission Comments provide that the burden

is on the defendant to show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in

this case demonstrates that the trial court made adequate findings of fact.




                                           15
               The trial court rejected the defendant's claim that his role was minor,

finding instead that the defendant arranged the transaction. The evidence does not,

in our view, preponderate against that finding. Moreover, the trial court acted within

its prerogative when it rejected the defendant's claim that because he was not a

strong student, he lacked substantial judgment. Even though the defendant was

only a senior in high school at the time, his language indicated a familiarity with drug

transactions and a degree of street savvy. In summary, the evidence would not

preponderate against the trial court's conclusion that the defendant did, in fact, fully

appreciate the degree of his involvement in the offense. Thus, there was no error in

this regard.



               Because the trial court should have charged the lesser included

offenses of facilitation of a felony and solicitation, the judgment must be reversed. A

new trial is warranted and the trial judge must assess from the evidence presented

in that proceeding whether there are facts "susceptible of inferring guilt on any

lesser included offense or offenses." Wright, 618 S.W.2d at 315. The case is,

therefore, remanded to the trial court for a new trial.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
John Everett W illiams, Judge



_____________________________
Norma McGee Ogle, Judge




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