          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                      OCTOBER SESSION, 1996         FILED
                                                       June 6, 1997

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,        )                        Appellate C ourt Clerk
                           )    No. 02C01-9511-CC-00349
      Appellee             )
                           )    MCNAIRY COUNTY
vs.                        )
                           )    Hon. Jon Kerry Blackwood, Judge
RANDLE DAVIS,              )
                           )    (Delivery of a Schedule II
      Appellant            )    Controlled Substance)



For the Appellant:              For the Appellee:

THOMAS T. WOODALL               CHARLES W. BURSON
203 Murrell Street              Attorney General and Reporter
Dickson, TN 37056-1075
                                ROBIN L. HARRIS
(ON APPEAL ONLY                 Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
GARY F. ANTRICAN                Nashville, TN 37243-0493
District Public Defender
P. O. Box 700
Somerville, TN 38068            ELIZABETH T. RICE
                                District Attorney General
(AT TRIAL AND OF COUNSEL
ON APPEAL)                      ED NEAL McDANIEL
                                Asst. District Attorney General
                                300 Industrial Drive
                                Selmer, TN 38375




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



      The appellant, Randle Davis, was convicted by a McNairy County jury of

delivery of a Schedule II controlled substance, a class C felony. Tenn. Code

Ann. § 39-17-417 (a)(2) and (c)(2) (1993 Supp.). The trial court sentenced the

appellant as a standard, range I offender to forty months incarceration in the

Tennessee Department of Correction. On appeal, the appellant challenges the

sufficiency of the evidence underlying his conviction, asserts that his sentence is

excessive, and contends that the trial court erred in denying him an alternative

sentence.



                             1. Factual Background

      The appellant’s case proceeded to trial on June 26, 1995. At trial, the

State presented the testimony of Kevin Crawford, an officer with the Somerville

Police Department and an agent with the Twenty-Fifth Judicial Drug Task Force.

On December 6, 1993, at approximately 7:30 p.m., Officer Crawford,

accompanied by an informant named Para W ilkerson, visited a residence

reportedly belonging to a Taurus Davis, also known as “Wee W ee.” Crawford

drove his car onto the driveway and observed someone standing on the porch.

After determining that Wee Wee was not at home, Crawford informed the man

on the porch that he wanted to buy crack cocaine and gave him one hundred

dollars. The man entered the residence and returned with seven “rocks” of crack

cocaine. After the transaction was completed, Crawford departed.



       At trial, Crawford identified the appellant as the individual from whom he

had bought the crack cocaine. Crawford had never seen the appellant prior to

the evening of the offense. However, on that evening he was able to clearly see

the appellant. Crawford testified that, although it was dark at the time of the

offense, his headlights were on and directed at the porch. The appellant was


                                         2
also standing underneath two porch lights. Crawford testified that the porch light

alone was sufficient “that, you know, [the appellant] could see ... what the value

of the money I was holding in my hand was, and I could see what I had got in

return in my hand, without having to use additional lighting.” Moreover, the

appellant approached Crawford’s car on three separate occasions: first, in order

to obtain the money; second, in order to deliver the drugs; and, third, in order to

discuss with Crawford the possibility of future transactions. On these occasions,

the appellant leaned into the passenger window. He was a distance of three feet

or less from the officer. Finally, Crawford testified that, during their encounter,

he looked at the appellant carefully for the purpose of subsequent identification.



       On cross-examination, Crawford stated that he returned to the residence

several times following the drug transaction, but did not again encounter the

appellant. Two or three months following the instant offense, Crawford identified

the appellant from an array of twenty or twenty-five photographs. The

photographs had been selected on the basis of Crawford’s description of the

person who had sold the drugs to him:

       I had purchased drugs from a male black, approximately early 20's
       --- years of age; would be approximately six-foot to six-foot-two;
       average color, not heavy, but medium build.

According to the standard procedure of the drug task force, Crawford submitted

the appellant’s case to the District Attorney’s Office in July or August, 1994. The

McNairy County Grand Jury returned an indictment in January, 1995.



       Crawford next encountered the appellant the week prior to trial, as

Crawford was exiting a courtroom. He testified at trial that, on this occasion, he

immediately recognized the appellant. On the morning of the trial, defense

counsel presented Crawford with an array of nine photographs. Crawford again




                                          3
identified the appellant. Crawford asserted at trial that there existed no doubt in

his mind that the appellant was the individual who sold him the crack cocaine.1



        The appellant testified at trial. He stated that Taurus Davis, or “Wee

Wee,” is his first cousin. He could not recall whether or not he visited his cousin

on the date of the offense. He testified that, at the time of the offense, he was

working with the Cornelius Lumber Company and frequently visited his cousin on

weekends. He denied selling or delivering cocaine on the date of the offense

and denied having seen Officer Crawford before the day of the trial. He admitted

that he was aware that cocaine was being sold from his cousin’s residence.



        On July 14, 1995, the trial court conducted a sentencing hearing. The

State relied upon the proof adduced at trial and the pre-sentence report. The

appellant testified on his own behalf. The appellant stated that he was twenty-

two years old and had completed the tenth grade in high school. In 1991 or

1992, he participated in the “Knoxville Job Corps” and received training in

building maintenance. At the time of the sentencing hearing, he was employed

at Venco Furniture Company. He had been employed at the furniture company

since two weeks prior to trial in the instant case. The appellant is married and

has two children. He testified that his family was staying with his wife’s family in

Greenville, South Carolina, until he had resolved his various criminal cases. He

was living with his mother. He testified that he contributed fifty dollars per week

toward the support of his children and also occasionally assisted his mother in

paying bills.



        He admitted that, in the past, he had associated with people who used or

sold drugs, including his cousin. He denied ever using drugs and asserted that

        1
         Crawford conceded during cross-examination that, during the week prior to trial, following
his encounter with the appellant in the courthouse, he looked briefly at the photograph that he had
selected from the photographic lineup two or three months following the offense. He again looked
at the phot ogra ph on the m ornin g of th e trial.

                                                4
he was attempting to detach himself from acquaintances involved in drug-related

activity. He admitted that in early 1994, he was convicted of misdemeanor

possession of cocaine and misdemeanor possession of marijuana. He also

admitted to prior convictions for driving under the influence of an intoxicant and a

weapons offense. The appellant continued to deny any involvement in the

instant offense.



         On cross-examination, the appellant testified that he had not yet fully paid

court costs and fines imposed pursuant to his convictions for cocaine and

marijuana possession.2 He confessed that his employment history is sporadic,

as are his financial contributions to his wife and children.



         The appellant’s mother testified. She confirmed that the appellant had

obtained employment and that he assisted her in paying household bills. She

also testified that he tried to support his family. She observed that, recently, the

appellant was remaining at home more often and appeared to have “learned his

lesson.”



         In sentencing the appellant to three years and four months incarceration,

the trial court found the aggravating factor that the defendant has a previous

history of criminal convictions or criminal behavior in addition to those necessary

to establish the appropriate range. Tenn. Code Ann. § 40-35-114 (1993 Supp.). 3

         2
         On red irect exam ination, he te stified that, wh ile he was emp loyed, he wa s attem pting to
pay the co urt costs and fines .

        3
          The pre-s ente nce repo rt refle cts th at, in a dditio n to th e inst ant o ffen se, th e app ellant ’s
criminal record includes the following:
        (1)      On July 10, 1992, the appellant was arrested and convicted of
                 driving with a revoked license, for which the appellant received a
                 partially suspended sentence of six months;
        (2)      on June 28, 1993, the appellant was arrested for a weapons
                 offense and, on July 1, 1993, was convicted of the offense, for
                 which he was fine d and re quired to fo rfeit the wea pon;
        (3)      On July 1, 1993, the appellant was arrested and convicted of
                 driving under the influence of an intoxicant, for which he received
                 a partially suspended sentence of eleven months and twenty-nine
                 days;
        (4)      On January 6, 1994, the appellant was arrested for possession of

                                                          5
The court concluded that this factor outweighed the mitigating factor that the

appellant’s conduct neither caused nor threatened serious bodily injury. Tenn.

Code Ann. § 40-35-113 (1990). In denying an alternative sentence, the trial

court further concluded that the appellant’s criminal record, the seriousness of

the offense, and deterrence outweighed the presumption of an alternative

sentence. See Tenn. Code Ann. § 40-35-102(6) (1990) and §40-35-103(1)(A),

(B) (1990). In its Sentencing Order, the trial court additionally considered the

appellant’s “lack of steady and continuous employment” and the past failure of

measures less restrictive than confinement. See Tenn. Code Ann. § 40-35-

103(1)(C), (5).



                                        2. Analysis

a.     Sufficiency of the Evidence

       The appellant first challenges the sufficiency of the evidence supporting

the verdict. A jury conviction removes the presumption of innocence with which

a defendant is initially cloaked and replaces it with one of guilt, so that on appeal

a convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant

must establish that the evidence presented at trial was so deficient that no

"reasonable trier of fact" could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R.

App. P. 13(e).



              marijuana and, on September 23, 1994, was convicted of the
              offense, for which he received a partially suspended sentence of
              eleven months and twenty-nine days;
       (5)    On January 13, 1994, the appellant was arrested for possession
              of cocaine and, on September 23, 1994, was convicted of the
              offense, for which he received a partially suspended sentence of
              eleven months and twenty-nine days, concurrent with the
              sentence for possession of marijuana;
       (6)    On September 15, 1994, the appellant was arrested and
              convicted of driving under the influence of an intoxicant, for which
              the appellant received a partially suspended sentence of eleven
              months and twenty-nine days.

                                               6
       An appellate court may neither reweigh nor reevaluate the evidence when

determining its sufficiency. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Questions concerning the credibility of witnesses and the weight and

value to be given the evidence, as well as all factual issues raised by the

evidence, are resolved by the trier of fact, and not the appellate courts. State v.

Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). "A jury verdict approved by the trial

judge accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the State's theory." State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). The State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. Id. See

also State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).



       The appellant essentially argues that Officer Crawford’s identification of

the appellant did not establish the appellant’s guilt beyond a reasonable doubt.

However, “[i]t is well established that the identification of a defendant as the

person who committed the offense for which he is on trial is a question of fact for

the determination of the jury upon consideration of all competent proof. State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). See also State v.

Williams, No. 01C01-9505-CR-00146 (Tenn. Crim. App. at Jackson, November

12, 1996); State v. Rollins, No. 03C01-9308-CR-00250 (Tenn. Crim. App. at

Knoxville), perm. to appeal denied, (Tenn. 1995). Moreover, this court has held

that the identification testimony of a victim is, by itself, sufficient to support a

conviction. Id. We conclude that the evidence adduced at trial is sufficient.



b.     Sentencing

       I. The Length of the Sentence

       The appellant contends that his offense does not warrant a sentence of

three years and four months incarceration in the Department of Correction.

Review, by this court, of the length or manner of service of a sentence is de novo


                                            7
with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. § 40-35-401(d) (1990). This presumption only applies,

however, if the record demonstrates that the trial court properly considered

sentencing principles and all relevant facts and circumstances. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). If the trial court applies inappropriate factors

or otherwise fails to comply with the 1989 Sentencing Act, the presumption of

correctness falls. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.

1992). For the reason set forth later in this opinion, the presumption of

correctness does not accompany the sentence imposed.



       In any event, the appellant bears the burden of establishing that the

sentence imposed by the trial court is erroneous. State v. Lee, No. 03C01-9308-

CR-00275 (Tenn. Crim. App. at Knoxville, April 4, 1995). In determining whether

the appellant has met this burden, this court must consider the factors listed in

Tenn. Code Ann. § 40-35-210(b)(1990) and the sentencing principles described

in Tenn. Code Ann. § 40-35-102 and § 40-35-103.



       Moreover, with respect to the length of a sentence, Tenn. Code Ann. § 40-

35-210 provides that the minimum sentence within the appropriate range is the

presumptive sentence. If there are enhancing and mitigating factors, the court

must start at the minimum sentence in the range and enhance the sentence as

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

range as appropriate for the mitigating factors. Id. If there are no mitigating

factors, the court may set the sentence above the minimum in that range, but still

within the range. Id. See also State v. Dies, 829 S.W.2d 706, 710 (Tenn. Crim.

App. 1991). "[T]here is no particular value assigned by the 1989 Sentencing Act

to the various factors and the 'weight afforded mitigating or enhancement factors

derives from balancing relative degrees of culpability within the totality of the




                                          8
circumstances of the case involved.'" State v. Marshall, 870 S.W.2d 532, 541

(Tenn. Crim. App. 1993)(citation omitted).



       As noted earlier, in determining the length of the appellant’s sentence, the

trial court considered the appellant’s criminal history and also the absence of any

serious bodily injury or the threat thereof. The appellant contends that the trial

court should have applied mitigating factor (6), concerning the appellant’s youth,

and mitigating factor (11), that the defendant committed the offense under such

unusual circumstances that it is unlikely that a sustained intent to violate the law

motivated his conduct. Tenn. Code Ann. § 40-35-113.



       First, with respect to the appellant’s youth, Tenn. Code Ann. § 40-35-

113(6), the record reflects that the appellant was twenty-one at the time of the

instant offense. The appellant does not explain how his age affected his

judgment nor is there any evidence in the record indicating that the appellant

was unable to appreciate the nature of his conduct. See, e.g., State v. Winston,

No. 01C01-9302-CR-00069 (Tenn. Crim. App. at Nashville), perm. to appeal

denied, (Tenn. 1994)(citing State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993), for

the proposition that a defendant’s youth should be considered in the context of

the defendant’s education, maturity, experience, mental capacity or

development, and any other pertinent circumstances tending to demonstrate the

defendant’s ability or inability to appreciate the nature of his conduct). Second,

the record is absolutely void of any evidence indicating that the appellant acted

under “unusual circumstances.” Tenn. Code Ann. § 40-35-113(11). Although

Officer Crawford did not encounter the appellant during his subsequent visits to

Wee Wee’s residence, the appellant himself admitted that he frequently visited

his cousin and was aware that his cousin was conducting drug transactions at his

residence. We conclude that the record supports the trial court’s imposition of a

sentence four months greater than the minimum sentence.


                                         9
      II. The Denial of an Alternative Sentence

       The appellant also contests the trial court’s denial of probation or

community corrections. Tenn. Code Ann. § 40-35-303 (1993 Supp.); Tenn.

Code Ann. § 40-36-106 (1993 Supp.). Both probation and community

corrections are non-incarcerative alternative sentences. See Tenn. Code Ann. §

40-35-104 (c) (Supp. 1993). Therefore, we must initially ascertain whether the

trial court properly excluded the appellant from any form of alternative

sentencing.



       In reviewing a trial court's denial of an alternative sentence, we must

determine whether the appellant is entitled to the statutory presumption that he is

a favorable candidate for alternative sentencing. State v. Bingham, 910 S.W.2d

448, 453 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995)(citing State v.

Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993)). The appellant in this

case is a standard offender convicted of a class C felony and, therefore, is

entitled to the presumption. Tenn. Code Ann. § 40-35-102(5) and (6). This

determination alone does not end our inquiry. The presumption can be

successfully rebutted by facts contained in the presentence report, evidence

presented by the State, the testimony of the accused or a defense witness, or

any other source provided it is admissible as evidence and made part of the

record. State v. Jernigan, 929 S.W.2d 391, 395-396 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1996).



       Tenn. Code Ann. § 40-35-103 provides:

       (1) Sentences involving confinement should be based on
       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


                                     10
              (C) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to
              the defendant.


Bingham, 910 S.W.2d at 454 (citing Ashby, 823 S.W.2d at 169). A court may

also apply the mitigating and enhancing factors set forth in Tenn. Code Ann. §

40-35-113 and -114, as they are relevant to the § 40-35-103 considerations.

Tenn. Code Ann. § 40-35-210(b)(5). Finally, the potential or lack of potential for

rehabilitation of a defendant should be considered in determining whether he

should be granted an alternative sentence. Tenn. Code Ann. § 40-35-103(5).



       Initially, we note that the trial court considered deterrence in sentencing

the appellant. Tenn. Code Ann. § 40-35-103(1)(B). Generally, before a trial

court can deny alternative sentencing on the basis of deterrence alone, evidence

in the record must support a need within the jurisdiction to deter individuals other

than the appellant from committing similar crimes. Bingham, 910 S.W.2d at 455

(citing Ashby, 823 S.W.2d at 170); Bonestel, 871 S.W.2d at 169; State v. Byrd,

861 S.W.2d 377, 380 (Tenn. Crim. App. 1993); State v. Jones, No. 03C01-

9302-CR-00057 (Tenn. Crim. App. at Knoxville, November 22, 1994), perm. to

appeal denied, (Tenn. 1995). A finding that the appellant's sentence will have a

deterrent effect cannot be merely conclusory. Id. Moreover, recently, in State v.

Kirby, No. 03C01-9505-CR-00130 (Tenn. Crim. App. at Knoxville, November 18,

1996), although this court noted “a general acknowledgment of a widespread

and serious problem with drugs which must be deterred,” the court also noted

that “the General Assembly has not seen fit to declare drug offenders as a group

unfit for probation,” or other alternative sentences. In any event, Officer

Crawford testified at trial that, over a period of two or two and one half years, he

was officially involved in fifty or sixty drug cases in five counties, including

McNairy County. He was unofficially involved in other cases. During a six month

period, in McNairy County alone, he orchestrated approximately twenty drug

“buys.” Finally, the appellant himself acknowledged that drug related activity was

                                          11
probably occurring at his cousin’s residence. Accordingly, the record supports

the consideration of deterrence.



       However, we note that the seriousness of the offense would not alone

support the trial court’s denial of an alternative sentence. Tenn. Code Ann. § 40-

35-103(1)(B).

       In order to deny an alternative sentence based on the seriousness
       of the offense, "the circumstances of the offense as committed
       must be especially violent, horrifying, shocking, reprehensible,
       offensive, or otherwise of an excessive or exaggerated degree,"
       and the nature of the offense must outweigh all factors favoring a
       sentence other than confinement.


Bingham, 910 S.W.2d at 454 (citing State v. Hartley, 818 S.W.2d 370, 374-375

(Tenn. Crim. App. 1991)). The record reflects that the appellant sold seven

rocks of crack cocaine, amounting to three tenths of a gram of crack cocaine.

The circumstances of this offense simply do not satisfy the applicable standard.



       Nevertheless, we conclude that the appellant’s criminal history supports

the trial court’s denial of an alternative sentence. Although the appellant’s

criminal record includes only misdemeanors, this court has held that there is no

prohibition against considering misdemeanor offenses to enhance a sentence.

See, e.g., State v. Dean, No. 03C01-9508-CC-00251 (Tenn. Crim. App. at

Knoxville, January 10, 1997); State v. Dixon, No. 01C01-9402-CC-00052 (Tenn.

Crim. App. at Nashville, September 20, 1995); State v. Meeks, No. 02C01-9405-

CC-00101 (Tenn. Crim. App. at Jackson, June 21, 1995), perm. to appeal

denied, (Tenn. 1996). Additionally, with respect to those offenses occurring after

the instant offense but before the sentencing hearing, this court has held:

       [T]rial judges can consider criminal convictions or any other
       criminal behavior which occurred prior to the sentencing hearing as
       constituting a previous history of criminal convictions or criminal
       behavior, regardless of whether the convictions or behavior
       occurred before or after the criminal conduct under consideration.




                                        12
State v. Poole, No. 02C01-9506-CC-00178 (Tenn. Crim. App. at Jackson,

January 31, 1996)(citing State v. Waters, No. 01C01-9106- CR-00158 (Tenn.

Crim. App. at Nashville, February 20, 1992). The appellant proffers no reason

why this court should decline to consider the past failure of partially suspended

sentences to deter the appellant from criminal conduct. Finally, we agree that

the appellant’s sporadic employment history also weighs against an alternative

sentence. See, e.g., State v. Hughes, No. 01C01-9502-CC-00033 (Tenn. Crim.

App. at Nashville), perm. to appeal denied, (Tenn. 1996).



       Therefore, we affirm the appellant’s conviction and the sentence imposed

by the trial court.




                                  ____________________________________
                                  DAVID G. HAYES, Judge



CONCUR:



_____________________________
JOHN H. PEAY, Judge


_____________________________
PAUL G. SUMMERS, Judge




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