         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 9, 2002

                STATE OF TENNESSEE v. WILLIAM ROY GRAY

                  Direct Appeal from the Circuit Court for Madison County
                           No. 01-513    Donald H. Allen, Judge



                   No. W2001-02573-CCA-R3-CD - Filed February 21, 2003


The appellant, William Roy Gray, was convicted in the Circuit Court of Madison County of
possession of drug paraphernalia, a Class A misdemeanor, and resisting arrest, a Class B
misdemeanor. The trial court sentenced the appellant to eleven months and twenty-nine days in the
county jail and imposed a one hundred fifty dollar fine ($150) for the possession of drug
paraphernalia conviction and six months in the county jail for the resisting arrest conviction. The
trial court ordered the sentences to be served consecutively. On appeal, the appellant contends that
the trial court erred in denying the appellant’s motion to suppress, in failing to consider certain
mitigating factors when sentencing the appellant, and in ordering the appellant to serve his sentences
consecutively. After a review of the record and the parties’ briefs, we affirm the judgments of the
trial court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal) and Vanessa D. King, Jackson, Tennessee (at
trial), for the appellant, William Roy Gray.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION
                                      I. Factual Background
                 At approximately 4:00 a.m. on May 24, 2001, Madison County Sheriff Deputy
Charlie Yarbrough was patrolling Denmark-Jackson Road when he observed a vehicle parked facing
the street in the driveway of a house he knew to be abandoned. As Deputy Yarbrough pulled into
the driveway, he noticed a black male, later identified as the appellant, seated in the vehicle. Deputy
Yarbrough observed the appellant bend over as if putting something under the seat of the car.
Deputy Yarbrough exited his patrol car and ordered the appellant to “sit up and raise his hands”;
however, the appellant did not respond. Deputy Yarbrough then returned to his patrol car and called
for backup. Deputy Stansell was the first to arrive, followed by Deputy Owen and Sergeant Wester.

                 Upon arrival, Deputy Jerry Stansell proceeded around the back of the house in order
to approach the appellant’s vehicle from the rear. As Deputy Stansell circled the house, he shined
his flashlight into a window and observed that the house was vacant. Deputy Stansell then walked
up behind the appellant’s vehicle and saw the appellant “sitting behind the steering [wheel] . . . in
the driver’s seat and just more or less sitting.” Deputy Stansell also observed “a small three- to four-
inch copper pipe between the [appellant’s] legs in the floorboard directly beneath the seat area there
that’s commonly used to smoke crack.” Initially, the officers informed the appellant that he would
only be issued a misdemeanor citation if he would relinquish the “crack pipe” to the officers.
However, when the appellant refused, the officers advised him that he was under arrest and asked
him to step out of the vehicle. The appellant again refused to comply and locked himself inside his
vehicle. The appellant then attempted to start his vehicle, so the officers positioned their patrol cars
in a manner that prevented the appellant from driving away.

                After several unsuccessful attempts to have the appellant exit his vehicle, Sergeant
Wester contacted Lieutenant Anthony Heavner and requested his presence at the scene. When
Lieutenant Heavner arrived, he attempted to enter the appellant’s vehicle using a “slim-jim,” but
each time Lieutenant Heavner opened the door, the appellant would pull the door closed and lock
it. The officers then dispersed the chemical agent “Capstun” through the windows of the appellant’s
vehicle in an attempt to force the appellant from the vehicle; however, the Capstun had no effect on
the appellant. Finally, Lieutenant Heavner broke one of the vehicle’s rear vent windows and entered
the vehicle through the rear door. The officers had to physically remove the appellant, who clung
to the steering wheel and car door.

                  Prior to breaking the window, Lieutenant Heavner observed what appeared to be a
“crack pipe” in the floorboard between the appellant’s feet. Lieutenant Heavner photographed the
“crack pipe” at that time and again after the appellant was taken into custody. Upon the appellant’s
removal, the officers searched the vehicle and recovered the “crack pipe” and other objects,
including an allen wrench, glass tubing, “steel wool,” a lighter, and nails. Lieutenant Heavner
testified at trial that these materials are often used to make “crack pipes.” No cocaine was found in
the vehicle. The appellant was arrested and charged with possession of drug paraphernalia and
resisting arrest. The appellant was convicted in the Madison County General Sessions Court of both
charges. He was sentenced to eleven months and twenty-nine days in the county jail and assessed
a one hundred fifty dollar fine ($150) for the possession of drug paraphernalia conviction and to six
months in the county jail and a fifty dollar fine ($50) for the resisting arrest conviction, with the
sentences to be served concurrently. The appellant appealed the convictions to the Madison County
Circuit Court.

              Prior to trial in the Circuit Court, the appellant filed a motion to suppress the evidence
obtained from his vehicle, namely the alleged “crack pipe.” At the motion to suppress hearing, the


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appellant argued that the officers “had no legitimate purpose for approaching [the appellant] on his
private property at a car parked at his mother’s home.” The appellant further asserted that the
officers failed to articulate a basis for reasonable suspicion that a crime was being or was about to
be committed. Deputy Yarbrough testified at the hearing that he was familiar with the area and knew
the house to be abandoned. Deputy Yarbrough related that there had been several burglaries in the
neighborhood and that, on “at least four or five” prior occasions, he had discovered individuals
unlawfully on the abandoned property. Additionally, Deputy Yarbrough testified that, after
observing the appellant “bending over as if [he] were hiding something,” he returned to his patrol
car to request backup because he “didn’t know if [the appellant] had a gun.” Deputy Yarbrough
conceded that when he asked the appellant to exit the vehicle, the appellant told him that his mother
owned the abandoned property and that he lived with his mother in the house next door. However,
Deputy Yarbrough testified that he went to the house next door, but no one answered when he
knocked on the door.

                 Deputy Stansell, who responded to Deputy Yarbrough’s call for backup, testified at
the hearing that he did not know who owned the house and, prior to this incident, he did not know
that the house was vacant. Deputy Stansell related that as he approached the appellant’s vehicle from
the rear on the passenger side, he observed what he believed to be a “crack pipe” laying on the floor
in front of the driver’s seat. Deputy Stansell conceded that when he first arrived at the house, he did
not notice anything illegal about the vehicle parked in the driveway, but he added that, based on the
circumstances, it “could have been lawful, or it could have been unlawful.”

                Upon consideration of the proof, the trial court denied the appellant’s motion to
suppress. Following a bench trial, the appellant was convicted of possession of drug paraphernalia
and resisting arrest. The trial court sentenced the appellant to eleven months and twenty-nine days
in the county jail and assessed a one hundred fifty dollar fine ($150) for the possession of drug
paraphernalia conviction and to six months in the county jail for the resisting arrest conviction, with
the sentences to be served consecutively at seventy-five percent (75%). The appellant timely
appealed, arguing that the trial court erred in denying the appellant’s motion to suppress, in failing
to consider certain mitigating factors when sentencing the appellant, and in ordering the appellant
to serve his sentences consecutively. Thereafter, the trial court entered an order allowing the
appellant to serve his sentence at home while being monitored by an electronic ankle bracelet.

                                            II. Analysis
A. Motion to Suppress
               The appellant first challenges the trial court’s denial of his motion to suppress the
evidence obtained from his vehicle. Specifically, the appellant contends that “Deputy Yarbrough
had no cause to go onto the private property of the abandoned house to ‘investigate’ the [appellant’s]
parked car.” Thus, the appellant argues that “the seizure of the alleged crack pipe was illegal and
this case should be reversed.”

               On appeal, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).


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                 Questions of credibility of the witnesses, the weight and value of the
                 evidence, and resolution of conflicts in the evidence are matters
                 entrusted to the trial judge as the trier of fact. The party prevailing in
                 the trial court is entitled to the strongest legitimate view of the
                 evidence adduced at the suppression hearing as well as all reasonable
                 and legitimate inferences that may be drawn from that evidence.
Id. However, the application of the law to the trial court’s findings of fact is a question of law
subject to de novo review. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). When reviewing
a trial court’s ruling on a motion to suppress, the appellate court is not limited to the transcript of the
suppression hearing, but may consider the entire record, including the trial transcript. State v.
Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

                Both the Fourth Amendment to the United States Constitution and Article 1, section
7 of the Tennessee Constitution prohibit unreasonable searches and seizures by law enforcement
officers. The purpose of the Fourth Amendment and Article 1, section 7 is to “‘safeguard the privacy
and security of individuals against arbitrary invasions of government officials.’” State v. Munn, 56
S.W.3d 486, 494 (Tenn. 2001) (quoting State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997)); see
also State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). Consequently, “‘a warrantless search or
seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search or seizure was conducted pursuant to one
of the narrowly defined exceptions to the warrant requirement.’” State v. Binette, 33 S.W.3d 215,
218 (Tenn. 2000) (quoting Yeargan, 958 S.W.2d at 629); Coolidge v. New Hampshire, 403 U.S. 443,
454-55, 91 S. Ct. 2022, 2032 (1971).

                 The United States Supreme Court announced one such exception to the warrant
requirement in Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968), holding that a law
enforcement officer may conduct a brief investigatory stop if the officer has a reasonable suspicion
based upon specific and articulable facts that a criminal offense has been, is being, or is about to be
committed. See also State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). In determining whether an
officer has a reasonable suspicion based upon specific and articulable facts, a court should consider
the totality of the circumstances, including, but not limited to, “the officer’s personal objective
observations, information obtained from other police officers or agencies, information obtained from
citizens, and the pattern of operation of certain offenders. A court must also consider the rational
inferences and deductions that a trained officer may draw from the facts and circumstances known
to him.” Yeargan, 958 S.W.2d at 632; United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct.
690, 695 (1981). The officer “‘must be able to articulate something more than an inchoate and
unparticularized suspicion or hunch.’” Keith, 978 S.W.2d at 867 (quoting United States v. Sokolow,
490 U.S. 1, 7-8, 109 S. Ct. 1581, 1585 (1989)).

               In support of his argument, the appellant cites to In re Williams, 854 S.W.2d 102, 106
(Tenn. Ct. App. 1992), in which the Court of Appeals held the “stop and search” of one of many
vehicles parked in the private parking lot of a nightclub was “invalid . . . and the fruits of the search
were inadmissible as ‘fruit of the poisonous tree.’” In Williams, officers were patrolling the private


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parking lot of a nightclub known as a place for drug use and underage drinking when they observed
Williams and a female companion quarreling in a black Fiero. Id. at 103-04. The officers tapped
on the window and asked to see Williams’s driver’s license. Id. at 104. When Williams opened his
door, the officer observed a whiskey bottle between his legs. Id. The officer then asked to search
the vehicle and Williams consented to the search. Id. In addition to the bottle of whiskey, the officer
discovered a small bag containing cocaine in a pouch on the driver’s side door. Id. The
Commissioner of Safety ordered the forfeiture of the vehicle and, after the chancery court affirmed
the administrative decision, Williams appealed to the Court of Appeals. Id. at 103. The Court of
Appeals concluded that the search was invalid and reversed the forfeiture, holding that
                there was no complaint of the owner of the parking lot as to the
                presence of [Williams] and his vehicle. The police were not seeking
                the perpetrator of a particular crime with information of the
                description of a vehicle connected with that crime. The officers had
                no legitimate reason to approach a vehicle legally parked on private
                property and rap on its window to cause the occupant to open the
                door, nor to demand his driver’s license. The fact that drugs have
                previously been discovered in other vehicles in the same parking lot
        There was nothing suspicious about action of theseor twenty .vehicles parked in the
                is not probable cause for the one of fifteen officers. . .
        parking lot of a night club a few minutes after closing time.
Id. at 105-06.

                We find Williams to be readily distinguishable from the instant case. Although there
was no complaint by the owner of the property, Deputy Yarbrough was on regular patrol of a rural
area when he passed a house he knew to be abandoned. Unlike the parking lot of a nightclub shortly
after closing, it was unusual for Deputy Yarbrough to see a vehicle parked in the driveway of an
abandoned house at 4:00 a.m. Moreover, Deputy Yarbrough observed an individual sitting in the
vehicle. Certainly, based upon these circumstances, it was rational for Deputy Yarbrough to suspect
a crime was being committed and investigate.

                Considering the totality of the circumstances, we conclude, as did the trial court, that
the evidence demonstrates that Deputy Yarbrough had a reasonable suspicion supported by specific
and articulable facts that the appellant was committing, or about to commit, a criminal offense.
Deputy Yarbrough testified both at the suppression hearing and at trial that he knew the house was
abandoned. He related that, when he drove past the house at approximately 4:00 a.m. and observed
a vehicle parked in the driveway, he decided to investigate because there had been several burglaries
in the area and on prior occasions he had discovered other individuals unlawfully “parked” at the
house. Moreover, Deputy Yarbrough testified that as he pulled into the driveway, he observed the
appellant sitting in the vehicle, bending over as if hiding something under the seat. These
circumstances provided a sufficient basis for reasonable suspicion to believe that a crime had been
or was about to be committed. This issue is without merit.

B. Sentencing



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                The appellant next asserts that the trial court erred in sentencing the appellant.
Specifically, the appellant argues that the trial court failed to take into consideration certain
mitigating factors and erroneously imposed consecutive sentences. The State responds that the trial
court properly sentenced the appellant. We agree with the State.

                 When an appellant challenges 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) (1997). Generally, the
presumption of correctness 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). However, the trial court has more flexibility in misdemeanor
sentencing than in felony sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App.
1999) (citing State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). Review of misdemeanor
sentencing is de novo with a presumption of correctness even if the trial court failed to make specific
findings on the record, because the “trial court need only consider the principles of sentencing and
enhancement and mitigating factors in order to comply with the legislative mandates of the
misdemeanor sentencing statute.” Troutman, 979 S.W.2d at 274. The burden is on the appellant to
show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments.

                The misdemeanor sentencing guidelines are codified in Tennessee Code Annotated
section 40-35-302 (Supp. 2002), which provides in pertinent part that the trial court shall impose a
specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing
Reform Act. See also State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). Unlike a defendant
convicted of a felony, a defendant convicted of a misdemeanor is not entitled to a presumptive
minimum sentence. Johnson, 15 S.W.3d at 518 (citing State v. Baker, 966 S.W.2d 429, 434 (Tenn.
Crim. App. 1997)). Rather, in sentencing the misdemeanor defendant, the trial court shall fix a
percentage of the sentence, not to exceed seventy-five percent, that the defendant must serve in
confinement before being eligible for release into rehabilitative programs. Tenn. Code Ann. § 40-
35-302(d). The trial court shall consider the sentencing principles and enhancement and mitigating
factors in determining the percentage to be served and “shall not impose such percentages
arbitrarily.” Tenn. Code Ann. § 40-35-302(d); see also Troutman, 979 S.W.2d at 274. “Thus, a
misdemeanor defendant may be sentenced to the maximum term for the appropriate class, but by
statute, must be deemed eligible for consideration for . . . rehabilitative programs after service of no
more than seventy-five percent of that sentence.” Palmer, 902 S.W.2d at 392 (footnote omitted).

                 In the instant case, the appellant was convicted of possession of drug paraphernalia,
a Class A misdemeanor, and resisting arrest, a Class B misdemeanor. Tenn. Code Ann. §§ 39-17-
425(a)(2) (1997), 39-16-602(d) (Supp. 2002). The authorized sentence for a Class A misdemeanor
is a period not greater than eleven months and twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1)
(1997). The authorized sentence for a Class B misdemeanor is a period not greater than six months.
Id. at (e)(2). Moreover, the trial court is authorized to fix the percentage to be served in confinement,
not to exceed seventy-five percent (75%). Tenn. Code Ann. § 40-35-302(d).


                                                  -6-
                In sentencing the appellant, the trial court considered the presentence report,
evidencing the appellant’s criminal history; a letter from the coordinator of the Pathways Out-Patient
Alcohol and Drug Treatment Program; and the appellant’s medical records. Additionally, the trial
court questioned the appellant regarding his medical condition. The appellant testified that he had
been both HIV positive and infected with Hepatitis A since 1991. He related that he had a doctor’s
appointment every two weeks and was taking five different types of medications. The appellant
stated that he had not worked since he was released from prison in 1994. The appellant conceded
that he had not previously sought drug treatment, but he stated, “I just know I need help.” Following
the arguments of counsel, the trial court sentenced the appellant, ordering the appellant to serve his
sentences in the county jail or workhouse. However, after the filing of this appeal, the trial court
entered an order allowing the appellant to serve his sentence at home while being monitored by an
electronic ankle bracelet due to “the hardship on both the Madison County Sheriff’s Department and
[the appellant].”

                 On appeal, the appellant asserts that the trial court erred in failing to consider as
mitigating factors the appellant’s terminal medical condition, the appellant’s enrollment in long-term
drug treatment, and the fact that the appellant’s conduct neither posed a threat to the public, nor
caused or threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1) and (13) (1997). Our
review of the record reveals that the court did consider the appellant’s medical condition and
enrollment in drug treatment. At sentencing, counsel for the appellant requested that the appellant
be allowed to serve his sentence on probation, either unsupervised or monitored by an ankle bracelet.
The trial court responded,
                 [t]he Court is going to take into consideration the possibility of
                 perhaps using the ankle bracelet that [trial counsel] has referred to.
                 I’m not going to order that today. I don’t feel like it’s appropriate at
                 this time. But obviously, [the appellant] does have a medication
                 situation that is going to cause some problems if he has to serve this
                 eighteen months in the local jail or workhouse. . . . But at this time,
                 I feel like [the appellant] has to serve the jail time, so I am going to
                 order that he serve this time.
                 ....
                 [I]f I let him go onto some kind of house arrest with the ankle
                 bracelet, then I would order that -- or I will consider the application
                 or the request for some type of drug treatment.
Thus, the trial court did consider the appellant’s medical condition and drug treatment, but felt that
the more appropriate sentence at that time would be to require the appellant to serve his sentence in
confinement. The trial court, as it was free to do, agreed to consider at a later date “some kind of
house arrest with the ankle bracelet.” Tenn. Code Ann. § 40-35-302(e). As previously noted, after
the filing of this appeal, the trial court entered an order allowing the appellant to serve his sentence
at home while being monitored by an ankle bracelet.

                The record does not indicate whether the trial court considered as mitigating factors
that the appellant’s conduct neither posed a threat to the public nor caused or threatened serious


                                                  -7-
bodily injury. Tenn. Code Ann. § 40-35-113(1) and (13). However, in misdemeanor sentencing,
“[t]he lack of findings is no basis for holding the trial court in error.” State v. Russell, 10 S.W.3d
270, 278 (Tenn. Crim. App 1999). The presumption of correctness applies despite the trial court’s
failure to make specific findings on the record. Troutman, 979 S.W.2d at 274. This court reviews
misdemeanor sentencing to ensure that the trial court considered the enhancement and mitigating
factors and did not act arbitrarily. State v. Ricky Ray Humphrey, No. E2001-00512-CCA-R3-CD,
2002 Tenn. Crim. App. LEXIS 703, at *4 (Knoxville, Aug. 20, 2002). We conclude that the trial
court did not act arbitrarily and that the sentences imposed by the trial court are supported by the
sentencing principles and the applicable enhancement and mitigating factors. At the sentencing
hearing, the trial court found that the appellant had an extensive criminal history dating back to 1980,
which history consisted of eight prior felony convictions, including drug and robbery convictions,
and four prior misdemeanor convictions. Tenn. Code Ann. § 40-35-114(1) (1997).1 Based on that
history, the trial court stated that “incarceration is really the only option that we have at this point
because of this long, extensive history.”

               Finally, the appellant contends that the trial court erred in imposing consecutive
sentences. Under Tennessee Code Annotated section 40-35-115(b) (1997), the trial court may order
a defendant’s sentences to run consecutively if the trial court finds by a preponderance of the
evidence that:
               (1) The defendant is a professional criminal who has knowingly
               devoted such defendant’s life to criminal acts as a major source of
               livelihood;
               (2) The defendant is an offender whose record of criminal activity is
               extensive;
               (3) The defendant is a dangerous mentally abnormal person so
               declared by a competent psychiatrist who concludes as a result of an
               investigation prior to sentencing that the defendant’s criminal conduct
               has been characterized by a pattern of repetitive or compulsive
               behavior with heedless indifference to consequences;
               (4) The defendant is a dangerous offender whose behavior indicates
               little or no regard for human life, and no hesitation about committing
               a crime in which the risk to human life is high;
               (5) The defendant is convicted of two (2) or more statutory offenses
               involving sexual abuse of a minor with consideration of the
               aggravating circumstances arising from the relationship between the
               defendant and victim or victims, the time span of defendant’s
               undetected sexual activity, the nature and scope of the sexual acts and
               the extent of the residual, physical and mental damage to the victim
               or victims;


        1
          The 200 2 amendm ent to this section added present enhancement factor (1), thereby renumbering former (1)-
(22). See Tenn. Code Ann. § 40-35-114, Amendments. However, for the purposes of this opinion, we will use the
former designations applicable at the time of sentencing.

                                                        -8-
                (6) The defendant is sentenced for an offense committed while on
                probation; or
                (7) The defendant is sentenced for criminal contempt.
The appellant argues that “the trial court made no specific finding that any of these factors applied
in its sentencing of [the appellant].” Our review of the record reveals otherwise. At the sentencing
hearing, the trial court stated, “The Court is going to run these sentences consecutively because of
[the appellant’s] extensive prior criminal history.” Clearly, the trial court imposed consecutive
sentences under subsection (b)(2), i.e., the appellant is an offender whose record of criminal activity
is extensive. This issue is without merit.

                                        III. Conclusions
               Finding no reversible error, we affirm the judgments of the trial court.



                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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